A National Scheme for Legal Advocacy in Sexual Offences
There should be a national scheme for independent legal advocacy in sexual offences across England and Wales. The scheme should provide:
- Free and independent legal advice and representation for complainants of serious sexual offences. This should be available to the guardians of complainants who are children or adults with intellectual or mental disabilities (except where the guardians are the accused or are key defence witnesses).
- Advice on best practice for police and other criminal justice practitioners, including:
- As part of Continued Professional Development (CPD) training
- A national helpline (similar to the Bar Council’s ethics and practice guidance helpline).
You can read more about how you can help make this happen here.
Which rights need protecting?
Complainants have the right to respect for their private and family life, home and correspondence, under Article 8 of the European Convention of Human Rights, which is enshrined in UK law by the Human Rights Act 1998. Intrusive investigations and requests from defence teams often lead to attempts to access complainants private data. Legal advocates can help ensure that access is only granted when it is fair, relevant and proportionate.
What do you mean by ‘private data’?
When we talk about private data we mean things such as:
• Data from mobile phones
• Data from social media
• Medical records
• Counselling and therapy records
• School records
• Social services records
• Other local authority records
• Records from other help and support teams and organisations (such as homelessness charities)
• Any other personal records a person may have, such as a diary or journal.
These are all things that have been routinely requested in the course of sexual offences investigations.
What should the scheme look like?
Legal advice and advocacy for complainants should include:
- Information & advice before reporting to police (via a national helpline).
- This is for specific legal questions about a complainants’ situation and experience of sexual violence, not for general queries about the criminal justice process.
- General queries about the criminal justice process are better answered by Independent Sexual Violence Advisors (ISVAs), who offer ‘informed choices’ sessions to victim-survivors.
- Requests for consent to collect digital evidence and/or other private data held by third-parties.
- Complainants should not be able to give consent without waiving an opportunity for legal advice.
- Waiving legal support should not be possible on the same day as the ABE interview recording.
- Victims’ Right to Review (VRR).
- ISVAs are currently expected to help complainants with VRR, however they are not allowed to know the facts of the case or provide legal advice. Complainants wishing to undertake VRR should therefore be offered the support of a lawyer.
- Consultation with disclosure officers and/or prosecutors to make representations for complainants during decisions about disclosure of unused material to the defence.
- Representation on applications to admit evidence under sexual history or bad character provisions.
- In the first instance, these representations should be made to the CPS.
- Attendance and submissions at case management hearings (instructing counsel where relevant) where the complainant feels their representations were not given due consideration by the CPS.
- Attendance (but not involvement) at trial.
- The advocate should not be able to make submissions to the court. Instead they would raise concerns with the Crown (or counsel for the Crown). The Crown (or counsel for the Crown) would be responsible for deciding whether to raise a legal argument with the court.
- This is similar to recent recommendations in the Republic of Ireland (O’Malley Review, 2020, para. 6.15).
- Facilitate written complaints to the relevant criminal justice agency, ombudsman, or Member of Parliament, in line with the Victims Code.
- Any further legal action, e.g. judicial review, would involve referral to other organisations, e.g. Centre for Women’s Justice. This may require additional funding due to increased demand.
- Make, review, and appeal applications to the Criminal Injuries Compensation Authority.
- While this would ideally be free for the complainant, there is scope for supplementing the funding for this role with a small % commission on successful claims.
The scheme should be ‘opt-out’, rather than ‘opt-in’. This means that by default, complainants are assumed to require this support upon police/CPS request for private data. Complainants will have to specifically state that they waive their right to the support if they decide they do not want it.
Who should be a Complainants’ Lawyer?
The complainants’ lawyer role should be a dedicated, salaried position.
Complainants’ lawyers must be legally qualified professionals who are experienced at practicing law involving sensitive evidence.
Complainants’ lawyers should be completely independent from criminal justice agencies. This means they should not be employed by the police or the CPS, nor should they be based in their buildings.