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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
Commissioner for Victims’ Rights
TOT – LPSK Maret 2013
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):
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
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.
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.
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.”
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.”
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.”
Are the Australian experiences unique?
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)
Considered a Victim Ombudsman as an alternative to the existing agency-based 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.
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.
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.
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.
Strengthening Victims’ Rights – South Australia
The functions of the Victims of Crime Co-ordinator 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 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.
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.
Name of accused
First court date & court particulars
Reminder of right to make a VIS
State-funded victim compensation – validation of victims’ statements etc
Police information for victims’ compensation claims:
Designated process with accountability chain
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)
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)
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 + Programme & Policy Officer + Project Support Officer
($300,000, including on-costs)
Goods & services ($60,000, including rent & computer charge-back)
Child-Witness Assistance Officers ($310,000)
Victim assistance ($50,000)
Legal funding ($250,000)
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’.
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 & non-government 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