Contents

Chapter 4
The court experience of complainants

Issue three: availability of information and support for complainants

4.110Section 12 of the VRA 2002 states that victims must be given information as soon as practicable on a range of matters. For victims of sexual violence specifically, we know that the provision of advice, information, and support is linked to reduced attrition318 and to a more positive victim experience.319 However our consultation revealed some issues in this area.

The number of people a complainant must interact with at trial

4.111Complainants in sexual violence cases report feeling overwhelmed, confused, and distressed by the number of people they interact with and to whom they are required to repeat their story from the time of complaint to the conclusion of proceedings. For instance, Crown prosecutors are expected to explain to the victim, or have Police or a victim adviser explain, the court processes and procedures, and are expected to keep the victim informed of what is happening during the course of the trial.320 But this is distinct from the role of having direct, day-to-day contact with victims, which is a role usually filled by Police. The key Police contact for the complainant is usually the “officer in charge” of the investigation. But in Crown prosecutions, it is the Crown prosecutor that should ensure the officer or investigator in charge advises victims of the outcome of sentencing and fully explains the reasons for the judge’s decision.
4.112A related problem is the lack of understanding of the nature of the prosecutor’s role. Prosecutors represent the interests of the State, not the victim, but most complainants lack the requisite knowledge and experience of criminal theory and process to appreciate this. As has been noted by one prosecutor:321

Speaking as a prosecutor, we are the community’s advocate and not the complainant’s. We are perceived by the complainants as their lawyer – and we often don’t disabuse them of that because they haven’t got one.

4.113From the complainant’s perspective, it is confusing having to communicate with so many different people simply to stay informed about the progress of the case. The diffusion of the responsibility to keep the complainant informed (between the officer in charge of the case, the prosecutor and an assigned victim adviser) makes it difficult to ensure complainants get all the information they are entitled to. More can be done, we suggest, to streamline the number of people to whom a complainant must talk at trial and to clarify their roles for the benefit not only of complainants but for all the participants in the court system.

The role of the specialist court-based victims’ advisersTop

4.114In New Zealand, the court-based victims’ advisers work under the Ministry of Justice and are tasked with providing information to victims of criminal offences. There are currently 73 such advisers attached to different base courts throughout the country.322 Their role includes keeping victims informed about a case, advising them of their rights, helping victims understand and participate in the court system, and organising a safe environment for a victim to appear in court, including consideration of modes of evidence and entry and exit from court buildings to avoid media.
4.115Since 2010, the Ministry of Justice has also employed “specialist” advisers who are intended to assist victims of sexual violence specifically.323 There are currently 20 such specialist advisers attached to different courts throughout the country. We are told by the Ministry of Justice that, although they have no specific figures, demand for these advisers is high and anecdotal reports suggest that sexual violence victims are one group that rely heavily on this service.324

4.116There are, however, issues with the limited scope of the role of specialist victims’ advisers. They are a highly useful resource for victims engaged with the criminal justice system but because they are attached to courts and operate under the auspices of the Ministry of Justice, they are assigned to a case only once charges are filed. Advisers therefore cannot provide support and information at other relevant stages, such as at the time when a complainant is deciding whether to report an incident of sexual violence to Police. Nor is it strictly within the scope of their role to, for example, provide follow up support or assistance to victims who decide not to pursue a complaint with Police, or to complainants who do make a complaint but where Police decide not to file charges.

4.117Numerous studies of the needs of victims of sexual violence show the desirability of support that “wraps around” the victim from beginning to end (see Part D). The conventional timelines of a trial, to which the specialist victims’ advisers are currently bound, does not align with the needs of complainants in sexual violence cases.

Recommended reformsTop

4.118We make two overarching recommendations for reform. The first is to expand the role of the specialist advisers who currently sit within the Ministry of Justice, so that they can support complainants in a more flexible and responsive way. More thought should subsequently be given to establishing a fully independent sexual violence adviser (an “ISVA”) to eventually take over this role. The second recommendation is to ensure that up to date, comprehensive, coherent written information about the trial process is always made available to complainants through the proper channels.

Expansion of the role of the specialist victims’ advisers

4.119One way to ensure victims are adequately informed is for ongoing, centralised support to be provided to victims by way of a single liaison point between the complainant and the criminal justice system, in the form of an “attached advocate”. That person would provide ongoing support and information to complainants according to a timeframe that makes sense to the complainant, rather than one that runs in tandem with the trial.

4.120The Law Commission put such an option forward in its Issues Paper in the form of Independent Sexual Violence Advisers (ISVAs),325 drawing on the proposal that was first made in From “Real Rape” to Real Justice: Prosecuting Rape in New Zealand.326 The ISVA would be an adviser appointed to a victim from their first point of contact with Police or another agency. The ISVA would provide support and advice until the victim’s complaint was resolved and help give effect to the various rights to information and support encompassed in the VRA 2002.
4.121The ISVA proposal received support from a number of different stakeholders (from the legal and sexual and family violence sectors, other organisations, and individuals). Submitters noted that it could alleviate the burden on the prosecutor thus facilitating the justice process.327 An ISVA would allow the victim to have greater awareness of what was occurring and to ask questions.
4.122In England, Wales, and Scotland, ISVAs were introduced in 2006.328 They give practical support and information to victims, liaise with other agencies, and give the victim specific information about criminal justice processes and police investigation. A 2009 review of ISVAs found that their services were successfully meeting “the practical, non-therapeutic support and information needs of victims of rape and sexual violence”.329
4.123Some submitters to the Law Commission’s Issues Paper expressed reservations as to the resourcing required to implement an ISVA proposal. We would not recommend implementation of an ISVA proposal if that were to have a negative effect on funding of the sexual violence support sector. We note the submission of the National Collective of Rape Crisis and Related Groups Aotearoa, which said that “the provision of ISVAs should not be at the expense of providing and encouraging the use of other support services such as specialist sexual violence agencies”.330

4.124In the first instance, we recommend that the role of specialist sexual violence victims’ advisers who sit under the Ministry of Justice should be expanded into a non-legal support role from the earliest point of contact with the system, throughout trial if any, and onwards. They should provide support and information and act as a liaison with Police, court staff, and lawyers. Advisers should not need to be a lawyer or legally trained but do need to be familiar with the court process. However, as noted, their support role should not be limited to the court process.

4.125In order to give effect to this proposal, the Ministry of Justice and the Ministry of Social Development must collaboratively consult on extending the role of the existing advisers as recommended above. Both agencies’ involvement is required to give effect to the combined justice and social support functions of the specialist advisers, and to ensure that their role is not limited to that of advisers who are attached only to courts. To provide proper support to victims of sexual violence specifically, their role needs to go beyond that, and should be reshaped with that objective.

4.126We realise that these advisers would not be “ISVAs” in the sense that they are not independent of government – rather they are employed and funded by government. For some victims, the fact that they are dealing with a support person who is independent of government may be very important, but to the extent this is not possible (for example due to funding) then we would expect the expanded specialist adviser role to be exercised as independently as is reasonably possible and with the interests of the victim uppermost.

4.127We also recommend that further thought should be given to the expertise and specialist knowledge required of people who are recruited to the expanded specialist adviser role. Submitters suggested that they need to be able to communicate and co-ordinate with sexual violence sector service providers331 and may need training on cultural sensitivity, age appropriateness, and disability awareness. We are told that the initial recruitment for the role of specialist sexual violence victims’ adviser, when first created, was done quickly in order to roll out the service as soon as possible.

4.128This proposal may be a less resource-intensive method of introducing some of the benefits of the ISVA model, without having to create an entirely new role. However, we would also recommend that further thought be given to establishing a fully independent adviser to eventually take on this role under the commission entity proposed in Part D of this Report.

Information for complainants

4.129We also recommend that the Ministry of Justice should fund the sexual violence sector to create a comprehensive and detailed guide, written for laypeople, to inform complainants and their support people about the whole trial process in a sex offence case, the ability to give evidence via alternative means, and other important information. Funding should be on an ongoing basis so the guidance can be regularly updated as required.

4.130Some guidance, aimed specifically at complainants, is currently in existence but it is either outdated or does not cover all the areas of the process. The factsheet currently published through the Ministry of Justice Victims Centre does not set out legal information such as what constitutes a sex offence or the criteria that must be met for prosecution.332 The “Rape Survivors Legal Guide”333 does this more comprehensively. It was a local initiative undertaken through the Wellington Community Law Centre, but the terminology has not been updated to reflect the passing of the CPA 2011. The Police publication Information for Victims of Sexual Assault deals mainly with the early stages of reporting and investigation.334
4.131These may be compared to information released by the United Kingdom’s Crown Prosecution Service in its Policy for Prosecuting Cases of Rape.335 That policy is “particularly designed for those who support victims of rape, whether professionally or personally”.336 It provides a layperson’s explanation of the entire process from initial reporting through to trial. It lets victims and their supporters know what they can expect in terms of the process, obligations and support available from various agencies during each stage of the investigation and prosecution:337

The CPS is fully committed to taking all practicable steps to help victims and witnesses through the often difficult experience of becoming involved in the criminal justice system.

Initiatives such as special measures, meetings between the CPS and witnesses, and the creation of dedicated Witness Care Units staffed by CPS and police personnel are all designed to increase the confidence of victims within the criminal justice system…

When a witness attends court, the CPS prosecutor presenting the case or the CPS caseworker will introduce themselves and answer any general queries that a witness may have. However, they are not permitted to discuss the detail of the case with a witness.

4.132Our recommendation is that the Ministry of Justice should fund the creation of a guide that is similarly comprehensive, but that the sexual violence sector and the legal community should be tasked with creating the guide itself. It should be written in such a way that it will be accessible, coherent, and will provide answers to the kinds of questions that most commonly arise for complainants who are in court or are contemplating laying a complaint with Police. It should be published both in hard copy and online in a fully accessible format, and translated into languages identified as appropriate. In addition, if the recommendations in Part C are accepted, this guide should include an explanation of what alternatives to trial exist and how to access them.

Recommendations

318Jo Lovett and Liz Kelly Different systems, similar outcomes? Tracking attrition in reported rape cases across Europe (Child and Woman Abuse Studies Unit, London Metropolitan University, 2009) at 111.
319Amanda Robinson Independent Sexual Violence Advisors: a process evaluation (Home Office, 2009).
320Crown Law Solicitor-General’s Prosecution Guidelines (2013) at [5].
321Elisabeth McDonald “Complainant desire for information, consultation and support: How to respond and who should provide?” in McDonald and Tinsley (eds), above n 228, 168 at 181.
322Email from Ministry of Justice to Law Commission regarding alternative trial process reference (7 October 2015). Advisers are also able to provide coverage for nearby courts (for instance, an adviser with a base court at Hamilton may also provide coverage to Taumarunui, Te Awamutu, and Te Kuiti).
323Government Response to Te Toiora Mata Tauherenga – Report of the Taskforce for Action on Sexual Violence, Incorporating Views of Te Ohaakii a Hine – National Network Ending Sexual Violence Together (September 2010) at [26].
324Email from Ministry of Justice to the Law Commission regarding alternative trial process reference (7 October 2015).
325Law Commission, above n 229, at 41.
326McDonald “Complainant desire for information, consultation and support: How to respond and who should provide?” in McDonald and Tinsley (eds), above n 228 at 213.
327Law Commission, above n 232, at [432].
328Amanda Robinson Summary: Independent Sexual Violence Advisors - a process evaluation (Home Office, 2009) at 18.
329At iii. See further Appendix E.
330Law Commission, above n 232, at [446].
331At [433].
332Victims Information For victims of sexual violence: Moving through the criminal justice system - What happens and how to get support (Ministry of Justice, 2014).
333Wellington Community Law Centre “Rape Survivors Legal Guide: Navigating the Legal System after Rape” (Wellington, 2011).
334Information for Victims of Sexual Assault (New Zealand Police, 2013).
335Crown Prosecution Service (UK) CPS Policy for Prosecuting Cases of Rape (2012).
336At [1.1].
337At [7.20]-[7.21].