Victims’ Rights – Why is a Victims’ Rights
Commissioner / an Ombudsman
necessary?
Michael O’Connell
Commissioner for Victims’ Rights
TOT – LPSK Maret 2013
Literature Review
Problem Identification / Definition
• State-centred Criminal Justice System
• Victims became “saddled with enforcement and prosecutorial responsibilities
for a process that did not address their needs or their losses” (Young 2001,
p6).
• As criminal justice systems became bureaucratised and public officials
professionalised, a greater “distance [grew] between the victim, the offender
and the criminal process” (Sanders 1999, p1)
• The absence of a precise role for the victim, other than as a
prosecution witness, is inconsistent with the victim’s actual
importance to the criminal justice system.
• Elevating victims’ rights is seen as an appropriate way to
ensure victims are given their proper status in the
criminal justice system.
Victims’ Rights Instruments
United Nations Declaration of Basic Principles of
Justice for Victims of Crime and Abuse of Power
(1985):
– Guide-book on victim assistance;
– Guide-book for policy-makers.
Commonwealth Statement of Basic Principles of
Justice for Victims of Crime (endorsed by Senior Law
Officers for the Commonwealth 2005).
National Charter on Victims’ Rights (endorsed by the
Standing Committee of Attorneys-General, Australia
1993):
– SCAG Secretariat
Australia’s Declarations / Charters
Victims of Crime Act 1994 (ACT);
Victims Rights Act 1996 (NSW);
Victims of Crime Rights & Services Act 2006 (NT)
– administrative statement;
Victims of Crime Act 2008 (QLD);
Victims of Crime Act 2001 (SA);
Victims Charter Act 2006 (VIC);
Victims of Crime Act 1994 (WA); and,
Declaration on Victims’ Rights (TAS) –
administrative statement.
No federal declaration / charter
National Charter on Victims’ Rights – agreed by all
jurisdictions in 1993
Common features of declarations /
charters
Passive
Services
Information
Procedural
Consultation
Participation
Victims and their rights
There is no statutory obligation on public
officials to require or compel them to advise
victims of their rights and ensure victims
understand their rights.
This presumes victims are conversant with
their rights and are aware that they must take
some action such as requesting information.
Australian studies on the effectiveness of
victims’ rights charters / declarations
Research in South Australia (Gardner 1990; Erez et
al 1994) shows that despite the declaration on victims’
rights many victims felt they did not get the information
they needed and too many public officials treated
them ambivalently.
A review on victims of crime (JSU 1999, 2000)
revealed positive outcomes attributable to the
declaration and steps taken to implement it.
Western Australia reviews done in the same era
produced both positive and negative findings, but also
raised questions about implementation and
compliance.
Australian studies on the effectiveness of
victims’ rights charters / declarations
The 2004 New South Wales statutory review
of its victims’ legislation noted that:
“Many victims, friends and families of victims,
and victim support groups observed that the
terms of the Charter are simply not being
followed by government departments and
agencies in their dealings with victims.”
Australian studies on the effectiveness of
victims’ rights charters / declarations
In its 2005 community consultation paper on
a Victims’ Charter, the Victoria Department of
Justice concluded:
“…there is a need for the provisions of [a
Victims’ Charter] to be clearly articulated and
for well co-coordinated implementation
process and compliance mechanisms to be
established.”
Australian studies on the effectiveness of
victims’ rights charters / declarations
Victims of Crime Support Program Annual
Report 2006-07, the Australian Capital
Territory’s Victims of Crime Co-ordinator
highlighted:
“…individual cases of agencies failing to
adhere to governing principles contained in the
Act, inconsistencies between agencies in their
application or implementation of the governing
principles, and problems in addressing the failures
of these bodies to implement the Act’s
requirements.”
Australia Enforcement Measures
Agency - Australia
ACT – Commissioner for Victims of Crime
NSW – Victim Services
QLD – Victims of Crime Co-ordinator
WA - Attorney-General
VIC - Secretary, Dept of Justice
Recommend
Advocacy Complaints Remedy
Yes
Yes
Yes
Monitor / Yes
Monitor / Yes
Monitor / Yes
Yes
Monitor / Yes
Yes
Non-compliance / Remedy
Advise the minister
Advise the minister
Advise the minister
Minister to present annual report to Parliament
Advise the minister
Victims’ Rights – USA, UK & Canada
Are the Australian experiences unique?
USA studies on the effectiveness of
victims’ rights charters / declarations
Victim-advocacy has led every state to adopt constitutional
and/or statutory victims’ rights.
Victims’ rights are largely pious platitudes unless they are
accepted as mandatory practices.
Beloof (2005) identify 3 obstacles to mandatory rights:
Government discretion to deny rights.
Lack of a meaningful remedy to enforce rights.
Appellate court discretion to deny review.
Having an agency designed to enforce victims’ rights is an
important way to improve service for crime crimes and to
enhance the attainment of victims’ rights (Kercher & Johnson
2005)
USA Enforcement Measures
UK studies on the effectiveness of victims’
rights charters / declarations
Considered a Victim Ombudsman as an alternative to the existing agencybased complaints procedures or as an additional arbiter.
As arbiter of last resort, ombudsman could deal with victim-complainants
who remain unhappy with an agency’s response.
Could not comment in legal decisions but could investigate and comment on
the way a victim was treated or a case was handled.
Could also be a “champion” of victims’ interests.
Ombudsman could supplement an existing rights-based approach or
replace such.
Victim Support Scotland recommended that the Scottish Executive appoint
a Commissioner for Victims of Crime. A Commissioner would give advice
and other help to victims, witnesses and their families, as well as be a
champion for victims’ rights.
UK Enforcement Measures
Agency - England
Nth Ireland Commissioner for Victims & Survivors
England & Wales Commissioner for Victims & Witnesses
British Parliamentary Ombudsman
Advocacy Complaints
Recommend
Remedy
Yes
Rec legal &
procedural change
Yes
Rec on policy &
funding
Yes
Yes
Non-compliance / Remedy
Rec action to put grievance right
Highlight lessons to be learnt
Rec payment for financial loss /
inconvenience
Parliamentary Ombudsman, Britain
Provides a complaint handling service for victims of crime who have a
complaint about the way in which any of the criminal justice agencies has
carried out its obligations under the Victims’ Code and who have been
unable to get their complaint satisfactorily dealt with by the agency
concerned.
If ombudsman finds something has gone wrong he or she will ask the
organisation to:
Provide an explanation and acknowledgement of what went wrong
Take action to put the matter right, including giving you an apology
Where ombudsman finds serious faults he or she can also recommend
that:
Changes be made in the way the organisation works so that similar things do
not happen again
Highlight lessons that should be learnt
Payment should be made for a financial loss or for the inconvenience or worry
caused.
The ombudsman, however, has no formal power to enforce his or her
recommendations.
Canada studies on the effectiveness of victims’
rights charters / declarations
Victim study – Quebec (Wemmers & Cyr 2007)
Crime victims are not systematically told about services
to help them;
Almost half of victims of violent crime did not receive
information about victim-compensation;
The majority of victims were not informed about the
progress of their cases – almost all victims would have
liked to have been informed;
Over two-thirds were dissatisfied with the information
received
Victims who felt they were not treated fairly by
authorities are more likely to suffer psychological
harm, such as PTSD & low self-esteem.
Canada studies on the effectiveness of victims’
rights charters / declarations
The need for a Federal Ombudsman for
victims of crime has evolved since the 1990s;
The creation of the Office was recommended
by victims' advocates and parliamentarians to
ensure that the needs of victims are properly
addressed.
Canada Enforcement Measures
Agency - Canada
Advocacy Complaints
Office of the Citizens’ Representative (not victim specific)
Yes about
government
agencies &
services
Ontario Ombudsman (not victim-specific)
Yes about
government
services
Canadian Federal Ombudsman for Victims of Crime
Yes
Yes
Recommend
Remedy
Non-compliance / Remedy
Mediate
Annual report to Parliament
Yes
Rec to agency, then if non-compliance
report to Parliament via Premier
Yes
Report to Minister for Justice
Publicly report on findings
The ‘words’ of declarations on victims’ rights do not
always mirror (match) the acts of those tasked with
helping victims.
Commissioner for Victims’ Rights
Strengthening Victims’ Rights – South
Australia
Victims of Crime Co-ordinator
The functions of the Victims of Crime Coordinator were:
Advise the Attorney-General on how best to use government
resources to help victims of crime
Carry-out functions assigned by the Attorney-General
• Monitor & report on compliance with the declaration
To be an ex officio member of the Victims of Crime Ministerial
Advisory Committee.
Commissioner for Victims’ Rights Functions
Commissioner for Victims’ Rights assumed these
functions but was also tasked with more functions, so
his / her role is likened to a Crime Victim Ombudsman.
To assist victims in their dealings with prosecution
authorities and other government agencies.
To monitor and review the effect of the law and of court
practices and procedures on victims.
Commissioner for Victims’ Rights - Functions
If another Act authorises or requires the Commissioner to make
submissions in any proceedings – to make such submissions (either
personally or through counsel).
To personally, or through counsel, make submissions at the sentencing
stage on the impact of the crime on victims and victims’ families in cases
resulting in the death or permanent total incapacity of the victim.
To make submissions to the Court of Criminal Appeal on guideline
sentences.
To consult the Director of Public Prosecutions in the interests of the
victims in general and in particular cases about matters including victim
impact statements and charge bargains.
To consult with the judiciary about court practices and procedures, and
their effect on victims.
Commissioner for Victims’ Rights - Monitoring
Total Victims
Elizabeth
Books Distributed
%
Victims Referred
to Agency %
Victims Referred to
VCO %
3904
74.95%
1.13%
3.25%
3193
68.31%
1.13%
3.29%
2914
76.56%
1.48%
6.01%
798
68.92%
1.13%
1.38%
Far North
1048
40.55%
2.67%
1.91%
Mid West
484
36.36%
3.31%
4.13%
North East
496
63.51%
1.61%
3.23%
West Coast
682
66.42%
2.93%
2.79%
Eastern Suburbs
3190
75.74%
2.88%
8.62%
South Coast
2380
65.71%
1.97%
3.82%
Sturt
3875
57.88%
0.72%
3.64%
Hills - Murray
1097
65.91%
3.28%
3.28%
Riverland
704
73.01%
1.99%
2.70%
994
77.46%
1.91%
1.31%
Holden Hill
Western Suburbs
Barossa - Yorke
South East
Commissioner for Victims’ Rights - Enhancing
Victim-letter
notification:
Name of accused
First court date &
court particulars
Reminder of right to
make a VIS
Commissioner for Victims’ Rights - Reviewing
State-funded victim compensation – validation of
victims’ statements etc
Police information for victims’ compensation claims:
Designated process with accountability chain
Commissioner for Victims’ Rights – Inquiring /
Consulting
Able to require a public agency or official to consult with
him/her regarding steps that may be taken by the
agency/official to further the interests of victims; and
After such consultation, may, where he/she believes that
the agency or official has failed to comply with the
declaration of principles, recommend that the agency or
official issue a written apology to the relevant victim.
The Commissioner is required to have regard for the
wishes of the person (victim)
Victims’ Rights – A compellable right
Under the Criminal Law
(Forensic Procedures) Act,
2007 victims have a right to
request the destruction of a
forensic sample or material
(see section 39)
That Act compels the Police to
provide a victim (relevant
person) with information
pertaining to above (see section 12)
Victims’ Right – An enforceable penalty
Under the Correctional Services Act, 1988 (SA) a
public official who misuses confidential information
from the Victims Register is liable for a penalty of up
to $10,000 (Aust).
Victims Register comprises information on victims who want to
be kept informed about prisoners pending release, among
other things, and is maintained by Correctional Staff in a
Victim Services Unit
Commissioner for Victims’ Rights - Budget
Staffing
Commissioner + Programme & Policy
Officer + Project Support Officer
($300,000, including on-costs)
Goods & services ($60,000, including rent
& computer charge-back)
Project funding
Letter-notification ($35,000)
Child-Witness Assistance Officers
($310,000)
Victim assistance ($50,000)
Legal funding ($250,000)
Case Examples – Victim participation
Victim participation – charge bargaining /
charge withdrawal
• Anti-violence order – negotiation of variation of a
condition without consulting the victim
• A child’s plea – demand for a prosecution to happen
contrary to the victim’s view
Victim participation – in criminal
proceedings
• Pre-court preparation – legal orientation rather than
physical orientation
• Disclosure – intrusion into victim’s (and others’) privacy
• Cross examination – access to statement made to a
Royal Commission
Victim participation – in sentencing
• Victim impact statement – judge’s questions on victimoffender reconciliation
• Circle sentencing – giving the victim voice
• Mental impairment – licence variations
Victim participation – in post-court
• Parole – review of all applications by murderers for
release on parole
• Sentence reduction – giving the victim voice
Victim participation – civil proceedings
• Victim sued:
For libel based on submission made to parole board
As a third party to an alleged ‘unlawful detention / arrest’ by police
• Freezing order – protecting assets of murder victim
(domestic violence)
Victim participation – Coroner’s Court
• Allegations of incomplete / inept preliminary investigation
by the police
• Appropriateness of ‘mental health’ decision to release a
person detained under mental health law
• Challenge adequacy of criteria used to assess applicants
with ‘vision impairment’ and other health issues for
driver’s licence.
Victim & Witness Protection
• Household and workplace security
• Assistance moving house
• Assistance applying for state-funded victim
compensation
• Assistance paying for treatment
Lessons Learnt - Conclusions
Commissioner For Victims’ Rights – Lessons Learnt
Although declarations / charters ‘proclaim’ victims’ rights (or at least principles),
they do not (in general) mandate procedures by which to enforce them.
One of the greatest challenges is ensuring compliance. In fact, compliance with
victims’ rights should be a priority. Victims’ rights are illusory if there is no redress
for victims.
Holding public officials and agencies accountable under a victims’ rights
declaration / charter is right – because victims’ rights are right.
The enforcement mechanism should be independent from political interference
and/or pressures.
Awareness among public officials and the public is vital, so training, education and
other ‘awareness’ raising initiatives are necessary.
Technology can enhance monitoring, facilitate compliance and provide useful
‘managerial’ information.
Always be mindful of victims’ views / needs, so listen ‘actively’.
Victims’ Rights – Compliance Measures – Lessons Learnt
Decide which individual or agency will accept accountability for monitoring and
reporting on compliance.
Decide what type of compliance system – for example, driven by a centralised or
local board – given the political system or political context.
Decide what role key stakeholders (including government agencies & nongovernment organisations) will play.
Decide whether it is appropriate to create remedies for violations of victims’ rights.
Decide if enforcement is viable under existing budget constraints (and be prepared
to prioritise).
Decide what, if any, additional functions the individual / agency charged with
compliance should have (for example, training public officials & raising victims’
awareness).
Build in to victims’ rights declaration / laws, as well as the compliance mechanism,
an evaluation plan
Parallel – Procedural & Distributive Justice