Attached is my submission on the proposed Sexual Violence Legislation Bill

Submission Contents

1. Background

2. Open commentary

3. Clause and Act specific comment

Background

I have over thirty years’ experience of working with victims in law enforcement, government justice departments and public non-government environments. I have worked with victims and survivors of sexual violence, including children, and have specific training in the handling of vulnerable witnesses and achieving best evidence. I have strong experience in working with vulnerable witnesses in a court setting and have worked closely with the justice systems, public prosecutors, and courts within various countries such as England Wales and Scotland, Australia, New Zealand, America, Canada and EU countries such as the Netherlands. I have a track record of successful prosecutions at court where recorded interviews were used to assist witness and court processes and I have been part of the changes on how sexual violence witnesses are treated by the justice process in my own country and that of others through close multi-agency working. I would proffer that I am professionally able to make comment on the proposed Government Bill.

Open Narrative

Anybody who has worked on this Bill will know, there is no reliable data pointing to what works best, and that victimologists have for a great many years, from numerous countries, looked elsewhere for ideas on how to reach the holy grail; the best experience from a victim perspective and yet maintain the balance for the processes of justice. My view is there is no one single structure out there that can be copied. Whether it be Governments, or Justice departments seeking to make their own system better for victims, the end result has always been the same; they take some of what they think is good, flavour it to their own country culture and roll it out hoping to make a difference. This Bill is the same and is another missed opportunity to go the extra mile and bring about real change for victims of sexual violence, children and vulnerable witnesses.

The Hammond report was quite clear that small incremental changes will never be able to right, what was never there in the first place or eroded over many decades of time. And yet here we are doing exactly that. We should stop looking to other countries for what they are doing, yes, use their experiences to rewrite history in ours, and have the courage to put it out there to succeed or fail knowing that it cannot be any worse than it is now. What the Law Commission recommended in 2015 stands good as of today.

These are my bullet point views of what would be required, are not limited to, and put together before reading the Hammond Report.

· New courts designed specifically for all sexual offences, serious crime with sexual motive, child witnesses, domestic violence, vulnerable witnesses.

· Specific trained Judges only

· Crown prosecutors named and trained, and barristers if used

· Dedicated law enforcement teams

· Centralised and dedicated support services

· Any Bill must be fully victim centric

· Careful use of wording that vulnerable witnesses understand

· Victim support sufficient to cope with needs of the victim, potentially for life

· Support the use of independent victim advocates

· Police to extend family liaison officers to sexual violence victims

· Govt funded and supported safe houses, not just relying on Salvation Army

· Witness protection for victims of sexual violence, and domestic violence cases

· Move to part inquisitorial system for crimes where sexual violence is present or where witnesses are deemed vulnerable

· Out of court pre-recorded evidence in chief and cross before court, no exceptions, part of the inquisitorial process, so any appeals are to that Judge alone.

· Witness does not step a foot in court and never meets the defendant

· Witness impact statement read out with the court cleared, fully, plus media.

Act and clause specific comments

Part 1 Evidence Act 2006

S4.

1. Provision for trauma informed support/assistants through dedicated victim advocates, training in trauma informed practices to be added to them. Current victim support service fails.

2. Rewrite definition of rape should include men.

S85 and sub sections

1. Judges and lawyers/barristers need to have training in consistency around inappropriate questions. Defence have been given clear rein for too long

2. Use of the words ‘ordinary’ or ‘usual’ or ‘alternative’ sets a tone for the victim in that they should just follow, and this is evidence that tweaking an existing set of legislation that was never victim centric will always have contamination. The use of video evidence in chief and cross mandatory. Enlarge on the current Scottish 2019 proposals and take some direction form the Dutch Inquisitorial system; victim never steps foot in court and never has to face the defendant.

S106 and subsections

1. Present practice in family violence cases where often sexual manipulation is or has been used if not outright is for police to use their phones to record fresh evidence. The issue of body worn cameras by Police needs to be overruled. My son is a backwater Tasmanian cop and they have had them for months. For goodness sake get real. Fresh on scene evidence, is good evidence, and body worn cams are forensically handled and can’t be altered or tampered with. Phones can.

2. Victim should never have to see the defendant. Full stop. No exceptions, no appeals.

3. A ‘child indicates their wish to give evidence’ ‘If an appropriate adult representing the child indicates’, bad use of language.

4. Cross exam as above, always outside court, go the full way no exceptions. Defence lawyers are clever people they can get what they need. They might like the witness quaking in their boots, but they don’t need them, and THAT is the difference.

5. Editing of the witness statement on video pre-record NOT allowed. The Judge can make directions if necessary, on summing up. If you had Inquisitorial system for sexual offences none of this would be a problem.

S126

1. Judges need training. Have a list as to who can and cannot hear sexual violence cases. Get the training and hear the case.

2. Witness support in court, next to victim to support. A need for victim advocates to have a centralised role.

Part Two Victims Rights Act 2002

S22

1. The victim impact statement can currently be altered before it gets to the judge if deemed inappropriate. This should never be done. Advice can be given through advocates, but impact statements should not be gagged.

2. Information given to victims should include information given to victim advocates. Force victim support to act.

Law Comm Report

S28

1. Clear the court should include media. It is of no public interest.

2. Pre-record evidence in chief and cross all done outside of court and before trial. Witness never places a foot in court. Appeals limited to further cross requests until everybody satisfied. Inquisitorial would prevent the need for appeals.

3. The design of courts never took into account the need for spare rooms just for victim advocates and clients. New courts, new design, really new legislation and support services would cover it, the present does not and cannot, so good in print poor in reality.

Part three CPA 2011

S125

1. The inquisitorial system in Holland ensures pre-record takes place before trial. Both chief and cross. Designed to not bring a witness into court. They do have an appeal system, but they have to exhaust the cross first, and only then will the Judge decide if the witness has to be crossed by direct means, don’t forget, inquisitorial system does not involve trial by jury. I have undertaken joint investigations in Holland and worked with both the Police and the Judge when undertaking law enforcement action against organised crime in that country. I have attended court hearings and given evidence where Judge and admin staff alone heard my evidence. The Supreme Court office for the hearing was just like a residential home, informal, with everybody in jeans and sneakers. In one case there was no cross exam. In another case, there was, but only with Judge and defence lawyer present, again, very informal settings and questions. I have the experience to back my evidence up. So, an example of where they almost go the whole way. The current Bill before Scottish parliament involves the use of pre-recorded evidence before court. And the widely known Barnahus principle used in Norway where early forensic interviews are collected, with 360 support from the start, which is relied upon. So, there are models out there looking to achieve what is best for the victim and placing the victim at every stage of the legislation. Mesh this together and you have a fresh start close to the Hammond report and no need for appeals.

Conclusion

This Bill tweaks various existing legislation and I believe will ultimately fail, to achieve to what it sets out to do. I like to think this was a missed opportunity. But the process for making this submission makes me realise that calling it an opportunity, was a euphemism.

Ian Tyler

NOTE: The term victim is one used relating to person(s) who have been subject to some form of crime. The term is used in a timeline surrounding the prosecution stage. The use of the word victim in this respect should not be considered a slight on those who are now survivors.

Ian.R.Tyler