Contents

Chapter 9
Proposal for reform

Overview of assessment by provider and right of review

First contact with provider

9.74When a victim seeking participation in the alternative process contacts a provider, the provider should discuss the various options available to a victim in respect of an incident of sexual violence, including the criminal justice option.

9.75If the victim wishes to continue down the alternative process route, the provider would need to advise the victim as to the programme it provides, its key features, and any possibility of the programme being adapted to meet the victim’s justice needs (for instance if the victim did not wish to meet with the perpetrator but wished to reconcile with her or his own family). The provider should also supply information regarding any other programmes that are operating in the geographical area, in case the victim preferred a different programme.

Eligibility criteriaTop

9.76If the victim wishes to participate in a programme without a perpetrator and the victim is assessed by the provider as eligible to participate in the alternative process (as per the criteria discussed later in this chapter), the programme can proceed and the victim must be advised of his or her continuing right to file a complaint with Police.623
9.77If the victim wishes to participate in a programme involving a perpetrator, the provider will need to meet with the victim and perpetrator separately and, in accordance with the legislative eligibility criteria and guidelines/good practice standards, determine the respective eligibility of the victim and perpetrator to participate in the process.624 At this point the provider should also confirm the identity of the perpetrator, for instance through the perpetrator providing appropriate identification, such as a passport and driver’s licence. This seeks to mitigate the possibility that the perpetrator may give a false name and thus escape further consequences if he or she subsequently commits a further act of sexual violence.625

9.78If the perpetrator is not eligible or does not wish to participate in the process, the victim may be offered a place in an adapted programme, if appropriate.

Risk assessmentTop

9.79If the perpetrator wishes to and is eligible to participate in the alternative process, the provider would conduct a risk assessment in accordance with the risk assessment framework in order to determine firstly whether the case is one that meets the “public interest legislative descriptor test” (see Chapter 8). As part of the assessment the provider would also determine if the case poses an unacceptable risk to community safety and therefore should not proceed through the alternative process.626

9.80If, after conducting the assessment, the provider concludes that the case is prohibited from proceeding due to public interest factors or an unacceptable risk to community safety, the provider would advise the victim and perpetrator of its decision; the reasons for it; and the right of the victim and perpetrator to seek a review of this decision.

Suitability assessmentTop

9.81If the provider assesses that the case is safe to proceed, then the provider will then need to conduct a suitability assessment. In conducting this assessment the provider needs to take into account the individual dynamics of the case in order to assess whether it is suitable for the victim and perpetrator to proceed through the process or whether, for instance, the victim may be subjected to secondary victimisation through the process or be at risk of physical violence (particularly in the case of intimate partner violence).627 As part of this assessment the provider would also need to ascertain the perpetrator’s capacity to move to a point of accepting and acknowledging the harm caused by his or her actions to the victim.

9.82If the provider determines that the case is not suitable, the provider would advise the victim and perpetrator of its decision and the reasons for it and a place in the relevant alternative programme would not be offered. We consider that there should be no review of a provider’s decision to deny entry to the programme based on the suitability assessment, as this decision must be based on the provider’s specialist expertise and opinion on the particular case in question and with all the relevant information before them.

9.83If, having done the assessment, the provider determines that the case is appropriate to go through the programme offered, the victim and perpetrator would be:

9.84If the victim and perpetrator still wish to proceed and (having obtained legal advice if desired) provide written consent, the programme would commence.

ReviewTop

9.85If sought by a victim or perpetrator, a review of the provider’s decision under the risk assessment would be conducted by a review panel, which, as is discussed further below, we recommend be constituted for the purpose of carrying out that review.

9.86If, after review, the review panel determined that the initial decision was made incorrectly by the provider, it could identify the errors and refer the case back to the provider for reconsideration.

9.87However, if the review panel determined that the initial decision was made correctly, it would advise the victim and perpetrator of its decision. That would not exclude the right, if any, of the parties involved applying for that decision to be judicially reviewed.

623The victim should also be advised of her or his other options at other points in the assessment process where the alternative process is not made available to the victim and perpetrator – for instance if the perpetrator did not wish to participate; the case was unsuitable to proceed through the process; or the provider determined that the case posed an unacceptable risk to community safety. It may be possible at that point for the victim to participate in a programme without a perpetrator.
624See discussion below regarding the development of guidelines and the legislative eligibility criteria.
625This point was highlighted to us by Police as being a necessary precaution. Email from Tina Chong (Police Policy Group) to the Law Commission regarding alternative trial process (8 September 2015).
626This assessment is conducted using the risk assessment framework to be developed: see Chapter 8 and further discussion below.
627See detailed discussion on what constitutes suitability and the suitability assessment in Chapter 8 and further discussion below.