Code of Practice for Victims of Crime

In 2012, the EU adopted a new victims’ rights directive introducing minimum standards on the rights, support and protection of victims.⁹⁵ Article 22 is of significance in the context of hate crime.

Article 22(1) states that, in assessing the needs of victims, an assessment must be carried out to determine if the victim has any particular “protection needs” and the extent to which they would benefit from “special measures” in the course of criminal proceedings “due to their particular vulnerability to secondary and repeat victimisation, to intimidation and to retaliation.”

Article 22(2) states that the assessment should take the personal characteristics of the victim, the nature of the crime and the circumstances of the crime into account.

92 HM Government, Challenge it, Report it, Stop it: Delivering the Government’s hate crime action plan (Home Office 2014)

<https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/307624/HateCrimeActionPlanProgressReport.pd f>

93 HM Government, Challenge it, Report it, Stop it: Delivering the Government’s hate crime action plan (Home Office 2014)

<https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/307624/HateCrimeActionPlanProgressReport.pd f>

94 Home Office, Action Against Hate: The UK Government’s plan for tackling hate crime (2016)

<https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/543679/Action_Against_Hate_-_UK_Government_s_Plan_to_Tackle_Hate_Crime_2016.pdf>

95 The Directive 2012/29/EU of the European Parliament and of the Council replaced the previous Council Framework Decision 2001/220/JHA.

Article 22(3) goes on to state that particular attention should be paid to victims who “have suffered a crime committed with a bias or discriminatory motive, which could notably be related to their personal characteristics.” It goes on to note that, in this regard, victims of hate crime “shall be duly considered.”

In the context of criminal investigations, the “particular attention” to be paid to victims includes the following measures which the Directive states in Article 23(2) should be made available to victims:

(a) interviews with the victim should be carried out in premises designed or adapted for that purpose;

(b) interviews with the victim should be carried out by or through professionals trained for that purpose;

(c) all interviews with the victim should be conducted by the same persons unless this is contrary to the good administration of justice;

(d) all interviews with victims of sexual violence, gender-based violence or violence in close relationships, unless conducted by a prosecutor or a judge, being conducted by a person of the same sex as the victim, if the victim so wishes, provided that the course of the criminal proceedings will not be prejudiced.

In the context of court proceedings, the Directive goes on to provide in Article 23(3) that the following measures should be made available to victims:

(a) measures to avoid visual contact between victims and offenders including during the giving of evidence, by appropriate means including the use of communication technology;

(b) measures to ensure that the victim may be heard in the courtroom without being present, in particular through the use of appropriate communication technology;

(c) measures to avoid unnecessary questioning concerning the victim’s private life not related to the criminal offence; and

(d) measures allowing a hearing to take place without the presence of the public.

In response to these new rules under the EU Victims' Rights Directive, the UK amended its Code of Practice for Victims of Crime (2015) to fulfil its EU obligations. The Code of Practice sets out enhanced entitlements for “victims of the most serious crime, persistently targeted victims and vulnerable or intimidated victims”.⁹⁶ Under this Code of Practice, a hate crime is considered a serious crime, and enhanced entitlements are available for victims who are deliberately targeted, or victims whose quality of evidence is likely to be diminished by

96 Ministry of Justice, Code of Practice for Victims of Crime (Ministry of Justice 2015)

<https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/476900/code-of-practice-for-victims-of-crime.PDF>

intimidation or their vulnerability due to a physical or mental disability.⁹⁷ Vulnerable and intimidated witnesses giving evidence in court are entitled to ask the police or the Witness Care Unit for special measures. The CPS will make the decision to go ahead with any application for such measures, or the court of its own motion may raise the issue. The court will ultimately decide on the necessity of an order for special measures.⁹⁸ Special measures can involve screens or curtains to shield a witness from the defendant while giving evidence;

examination via a live-link; giving evidence in private; the removal of wigs and gowns by legal professionals; and video-recorded evidence-in-chief.⁹⁹ In addition, special communication aids, such as alphabet boards, and Registered Intermediaries are also available to witnesses who are eligible for special measures on the basis of age or incapacity.¹⁰⁰

97 Ministry of Justice, Code of Practice for Victims of Crime (Ministry of Justice 2015)

<https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/476900/code-of-practice-for-victims-of-crime.PDF>

98 The criteria for eligibility and granting a special measures direction are set out in ss. 16-22A of the Youth Justice and Criminal Evidence Act 1999. The use of special measures for hate crime are examined further in section 7.5.

99 Youth Justice and Criminal Evidence Act 1999, ss. 23-28.

100 Youth Justice and Criminal Evidence Act 1999, ss. 29-30.