Victim Personal Statements
- Introduction
- Purpose
- Principles
- Definition of "victim"
- The form of the victim personal statement
- The contents of the victim personal statement
- Children
- Procedure
- General considerations
- Homicide Cases - CPS Service to Bereaved Families
- Annex A - Victim Personal Statements
Introduction
The victim personal statement (VPS) scheme gives victims an opportunity to describe the wider effects of the crime upon them, express their concerns and indicate whether or not they require any support.
Purpose
The purpose of a VPS is to:
- give victims the opportunity to state how the crime has affected them - physically, emotionally, psychologically, financially or in any other way;
- allow victims to express their concerns in relation to bail or the fear of intimidation by or on behalf of the defendant;
- provide victims with a means by which they can state whether they require information about, for example, the progress of the case;
- provide victims with the opportunity of stating whether or not they wish to claim compensation or request assistance from Victim Support or any other help agency;
- provide the criminal justice agencies with a ready source of information on how the particular crime has affected the victim involved.
Principles
It is important to note that the principles relating to, respectively, victim impact statements and victim statements as expounded in R v Hobstaff [1993] 14 Cr. App. R. (S) 606 and R v Perks The Times 11/5/00 are valid for VPS, that is to say that:
- the evidence of the effects of an offence upon a victim must be in admissible form;
- the court must pass what it judges to be the appropriate sentence having regard to the circumstances of the offence and of the offender, taking into account, so far as the court thinks it appropriate, the consequences of the offence to the victim;
- the opinions of the victim or the victim's close relatives as to the appropriate level of sentence are not relevant.
Attention is also drawn to the judgement in an unduly lenient sentence case of R v Black and R v Gowan [2006] EWCA Crim 2306. The Court referred to Attorney General's Reference 59 of 2006 EWCA Crim 2096 which stated that a VPS which was not put before a sentencing judge could not be considered for the purpose of deciding whether or not the sentence was unduly lenient but it could be taken into account when, having found the sentence unduly lenient, the court turned its attention to what sentence would be appropriate.
The Practice Direction issued by the Lord Chief Justice is set out at Part III.28 of the Consolidated Criminal Practice Direction and is reproduced at Annex A.
It is important that the victims' expectations about the VPS are not raised unduly with the effect that victims subsequently feel they have been misled about the purpose of the VPS in the sentencing process. The VPS may help to provide a fuller understanding of the nature and impact of the crime when passing sentence. Prosecutors are advised to adopt a conservative approach when answering victim questions about VPS namely that the VPS is very unlikely to affect the sentence.
Definition of "victim"
A victim is defined as "a person who has complained of the commission of an offence against themselves or their property". The term includes bereaved relatives or partners (including same sex partners) in homicide and fatal road traffic cases, as well as parents or carers where the victim is a child or a vulnerable adult. It also includes small businesses. Large retailers or corporations do not come within the definition of victim. Road traffic offences where death or serious injury has occurred are also included in the scheme.
The form of the victim personal statement
Making a VPS is entirely optional and a victim can make more than one VPS. Where made, most VPS will be in addition to the usual witness statement. However, in some cases, for example, where the victim is in fact the bereaved, the person making the VPS will not have made a witness statement. In all cases the VPS will be subject to the provisions of Section 9 of the Criminal Justice Act 1967.
The scheme envisages two stages when a VPS may be taken:
Stage one
A victim from whom a witness statement has been taken will be given an opportunity of making a VPS when that witness statement is taken. It will take the form of an additional section added to the end of the witness statement, lined off and clearly separate, with its own heading. Victims who are not asked to make a witness statement, for example, the bereaved, will not normally be able to participate in the stage one process.
Stage two
The victim can provide a separate statement at any time describing any longer term effects of the crime. This may be in addition to a stage one statement or it may be the first statement that the victim provides (for example, if the victim did not wish to make a VPS when the witness statement was taken or is not in fact a witness).
The contents of the victim personal statement
While the scheme encourages the victim to say as much as he or she wants to say, in his or her own words, the guidance issued to police officers does allow the officer taking the statement to offer some general advice as to what the victim could include, for example, express legitimate concerns such as feeling vulnerable or intimidated. The officer should also explain the limitations of the scheme, especially the fact that a court cannot take account of the opinions of the victim so far as sentence is concerned. Nevertheless, while the officer can give general advice, it is ultimately for the victim to decide what information to include in his or her VPS.
Children
Child witnesses who are victims should be given the opportunity to make a VPS after completing either a video-recorded interview or a written statement. In such cases the VPS should be given in the same format as their witness statement, for example, where the evidential witness statement is video-recorded, the VPS should also be recorded on video.
In the first instance the young witness should be given the opportunity to make the statement themselves but in some circumstances it may be appropriate for the parent/carer to provide the statement on the child's behalf. In some cases it may be necessary to take a statement from both the victim and the parent/carer, in order to establish a full picture of the impact of their experience. This will usually depend upon the age and level of understanding of the child.
In cases where the witness statement has been taken in the form of a video-recorded interview, the VPS should follow on the same tape. There should however be a clear break between the two. This may be by dividing the two statements with a still image, for example, the police force logo. Alternatively, the interviewer may make a statement on the tape acknowledging the change from the evidential interview to the VPS.
If a stage two statement is needed, this should, unless there are exceptional circumstances, be taken in a written format according to Achieving Best Evidence (ABE)./p>
Procedure
How the Crown Prosecution Service will use the victim personal statement
The VPS should be contained within the file received from the police and where obtained pre charge, should be considered by the reviewing prosecutor. Where a VPS is not contained within the file, prosecutors should check with the Police whether the victim has made a VPS, or has been asked if s/he wishes to make a VPS.
Key points are:
- prosecutors should consider the VPS in the same way as any other statement when reviewing the file to establish whether the Code tests are met;
- although the VPS ought not to contain evidence that could be used against the defendant, there will be cases where the VPS contains evidence that the prosecutor will wish to adduce. In some cases, for example where there are injuries, it may be appropriate to seek a statement from someone who can provide supporting evidence;
- the VPS may contain information that will assist the prosecutor and the court when bail is considered.
If the victim does not want to make a VPS, this should be recorded by the officer in the witness statement.
Querying the omission of a VPS is especially important in cases of a sensitive nature where the victim may be vulnerable or intimidated or in cases where the victim is a member of a minority group. For victims from minority ethnic groups, disabled people, lesbians, gay men, bisexual and / or transgender people, and older people, the consequences of a crime may be far greater than for other victims of similar crimes. Background, language, culture and simply the personal experience and perceptions of some victims may make it more difficult for them to explain, or even speak about the effects of the crime. Prosecutors need to be alert to these factors and, where necessary, they may need to encourage the police to approach victims again in order to obtain a VPS.
Procedure where the victim personal statement is contained within the body of the witness statement
In most cases the VPS will be contained within the body of the witness statement and will be disclosed to the defence when the witness statement is served.
Summary cases
The witness statement containing the VPS should be served upon the defence as part of the normal process of providing the defence with copies of statements on which we intend to rely. As with any other statement, it may be necessary to edit out any sensitive material. If a trial or Newton hearing is to be held, prosecutors should follow the following procedure:
- If the prosecutor takes the view that the VPS contains evidence that he or she wishes to adduce at trial, he or she should inform the defence of his or her intention to lead that evidence before the trial takes place;
- If the prosecutor considers that the contents of the VPS cannot or should not be adduced in evidence at trial, the defence should be informed that the prosecution considers the contents of the VPS to be unused material for the purposes of any trial although they may be placed before a court if the defendant is convicted.
Crown Court cases
Where the case is committed/sent to the Crown Court the witness statement containing the VPS should be included in the committal bundle/prosecution papers. It need not be edited unless it contains sensitive material.
Prosecutors may choose to bracket those parts of the VPS that they do not propose to adduce in evidence or they may wish to consider the position with Counsel. Whichever route is taken, the defence must be informed at the earliest reasonable opportunity whether or not the prosecution proposes to lead evidence contained within the VPS.
Procedure where the victim personal statement is stand alone
Where there is a stand alone VPS - for example where the victim makes a stage two statement or the person making the VPS is not a witness - the following procedures should be followed:
Summary cases
- the VPS should be served upon the defence when received. If the defendant has pleaded not guilty and the VPS contains evidence that the prosecutor wishes to adduce at the trial, it should be served on the defence under cover of the usual Section 9 Criminal Justice Act 1967 notice. If the prosecutor does not intend to adduce the contents as evidence at trial, the statement should be served on the defence informing them of this with the caveat that in the event of a conviction the contents may be placed before the court.
Crown Court cases
- if the VPS contains evidence that the prosecutor wishes to adduce at trial, it should be included within the committal bundle/prosecution papers or served as additional evidence, depending on the time when the statement is received;
- in those cases where the VPS does not contain evidence that the prosecutor intends to adduce at trial, the original together with a copy should be sent to the Crown Court with either a covering letter or a frontispiece stating: "Victim Personal Statement: it is not intended to adduce the contents in evidence at trial and it is provided to the court in accordance with the provisions of the Victim Personal Statement scheme";
- copies should also be served on the defence.
General Considerations
At the point of statement taking, the police officer should complete an initial needs assessment. The aim of the initial needs assessment is to provide a snapshot of the victim/witness needs at the charging stage, trigger relevant support and assist the charging prosecutor's decision-making. The initial needs assessment should comment on whether a VPS has been made.
Prosecutors should always check whether a VPS has been offered and taken, and advise to do if appropriate. Prosecutors should always check whether the VPS is up to date.
If the VPS is recorded on video, prosecutors should apply the same principles as set out for the written VPS. In practice it should be very unusual to receive a stage two VPS recorded on video rather than in written form. The usual undertakings should be obtained as is current practice.
In the magistrates court the prosecutor should, where a VPS exists (either within the witness statement or as a standalone VPS), bring this to the attention of the court following conviction and make reference, as appropriate, to the contents of the VPS when opening the facts of the case.
By providing the defence with a copy of the VPS in advance of a guilty plea, it should be possible to establish any areas of dispute before the hearing at which the defendant is sentenced. The prosecutor may have to consider whether or not evidence needs to be called to resolve the dispute; for example, if the defendant does not accept a fact contained within the VPS that is likely to affect sentence, it may be necessary to adjourn for a trial of fact following the principles set out in R v Newton 77 Cr. App. R. 13, CA and subsequent appeal court cases. On the other hand, if the dispute relates to, for example, inadmissible hearsay contained within the VPS, it would be inappropriate to refer to the relevant passage at all.
Copies of the VPS should be sent to NOMS as part of the pre-sentence report package.
Homicide Cases - CPS Service to Bereaved Families
Prosecutors will offer to meet bereaved families in homicide cases at important stages of the CJS process to explain the anticipated progress of the case, what is expected to happen at each court hearing and the possible sentences available for the offences charged. At the first meeting with the bereaved family prosecutors will explain the purpose of the VPS, disclosure of the VPS and the relevance of the VPS in sentencing. Further details regarding the CPS service to bereaved families can be found at 'Homicide Cases - CPS Service to Bereaved Families'
Annex A - Victim Personal Statements
III.28.1 This section draws attention to the Victim Personal Statement scheme, which started on 1 October 2001, to give victims a more formal opportunity to say how a crime has affected them. It may help to identify whether they have a particular need for information, support and protection. It will also enable the court to take the statement into account when determining sentence. In some circumstances, it may be appropriate for relatives of a victim to make a Victim Personal Statement, for example where the victim has died as a result of the relevant criminal conduct.
III.28.2 When a police officer takes a statement from a victim the victim will be told about the scheme and given the chance to make a Victim Personal Statement. The decision about whether or not to make a victim personal statement is entirely for the victim. A Victim Personal Statement may be made or updated at any time prior to the disposal of the case. It will not normally be appropriate for a Victim Personal Statement to be made after the disposal of the case; there may be rare occasions between sentence and appeal when an update to the Victim Personal Statement may be necessary, for example, when the victim was injured and the final prognosis was not available at the date of sentence. If the court is presented with a victim personal statement the following approach should be adopted:
a. The victim personal statement and any evidence in support should be considered and taken into account by the court prior to passing sentence.
b. Evidence of the effects of an offence on the victim contained in the victim personal statement or other statement, must be in proper form, that is a witness statement made under section 9 of the Criminal Justice Act 1967 or an expert's report, and served upon the defendant's solicitor or the defendant, if he is not represented, prior to sentence. Except where inferences can properly be drawn from the nature of or circumstances surrounding the offence, a sentencer must not make assumptions unsupported by evidence about the effects of an offence on the victim.
c. The court must pass what it judges to be the appropriate sentence having regard to the circumstances of the offence and of the offender, taking into account, so far as the court considers it appropriate, the impact on the victim. The opinions of the victim or the victim's close relatives as to what the sentence should be are therefore not relevant, unlike the consequence of the offence on them. Victims should be advised of this. If, despite the advice, opinions as to sentence are included in the statement, the court should pay no attention to them.
d. The court should consider whether it is desirable in its sentencing remarks to refer to the evidence provided on behalf of the victim.
