Victims Bill Consultation

Ministry of Justice

102 Petty France

London, SW1H 9AJ

Email:  victimsbillconsultation@justice.gov.uk

2 Feb 2022

Dear Victim and Witness Policy and Strategy Team

Response to Victims’ Bill Consultation

Thank you for the opportunity to respond to the Victim’s Bill consultation. I am responding on behalf of the Hundredfamilies charity which supports families who have been bereaved as a result of killings by people with serious mental illness. We work as well with the NHS, Ministry of justice, Police, Victims’ Commissioners and others to improve services to victims and embed learning after such tragedies. I am also a member of the Ministry of Justice ‘Victims Panel’.

There are on average around 100 – 120 homicides by people with serious mental illness in the United Kingdom each, and every year, which is a considerable proportion of the total number of recorded homicides.

These killings cause immense trauma and devastation to individuals, families, and whole communities. The effects are difficult to deal with and can persist for years.

Mental health related homicides feature in many areas of significant public concern. We know that around two thirds of all domestic homicides are mental health related, with around half of the perpetrators having a recognised mental health diagnosis at the time of the incident. Research shows many lone actor terrorists, offenders in gang related homicides, and people who kill children all suffered from serious and often untreated mental illnesses at the time.

Many are highly visible homicides, deeply concerning to the public, yet our consistent experience is that the families of those affected do not receive the same rights and entitlements that victims of non-mentally disordered offenders are routinely given.

We hope the new Victims’ Bill will be a real opportunity to restore some balance, and significantly improve the rights and entitlements of victims of mentally disordered offenders.

We support the main themes of the consultation, to

• increase the voice of the victim in the criminal justice process
• Increase transparency
• make sure there is clear accountability when things go wrong, and
• support victims to rebuild their lives

To do so we suggest the new Victims’ Bill should:

• specify that the NHS must be required to deliver services and entitlements to victims of mentally disordered offenders.

Currently the code just says victims may receive services from the NHS but doesn’t require the NHS to deliver services to victims.

In particular, we say victims of mentally disordered offenders should have a right to information about the case from NHS Trusts and agencies, and be able to receive appropriate trauma informed support from them. The reasons for this are explored in greater detail below.

Under the Victims Code, families of homicide victims are entitled to ‘enhanced rights’, but currently the NHS fails to treat them any differently from any other victim (or even ordinary members of the public).

Victims affected by homicides committed by mentally disordered offenders need to receive enhanced rights and entitlements from the NHS as well as Criminal Justice Agencies.

Requiring the NHS to provide services to such victims would not only increase transparency, it would also help victims rebuild their lives.

• require the Crown Prosecution Service, NHS, Ministry of Justice agencies and medical professionals to share information with victims of mentally disordered offenders – particularly when an offender pleads guilty to manslaughter by reason of diminished responsibility and/or receives a hospital order

Currently victims of mentally disordered offenders are routinely denied access to important information about the case – including psychiatric reports on the offender which form the basis for diminished responsibility cases.

These reports are produced and discussed in secret without including the victims. These are extremely serious crimes yet crucial evidence for deciding the case is often not tested in public nor shared with the victim’s family.

Psychiatrists may be experts in mental disorder, but they are not trained or experts in the extent of personal culpability or responsibility following serious offending.

In the Yorkshire Ripper case, when Peter Sutcliffe’s plea of guilty to manslaughter to diminished responsibility was initially accepted by the Crown Prosecution Service at his trial in April 1981, Mr Justice Boreham said:

The matter that troubles me is not the medical opinions because there is a consensus. It seems to me that all of these opinions … are based simply on what this defendant has told the doctors, nothing more. … Where lies the evidence which gives these doctors the factual basis for these pleas? It is a matter for the defendant to establish. It is a matter for a jury.“

The current position gives the impression that judicial decisions invariably are being heavily influenced, if not decided in secret by psychiatrists, rather than judges or juries and with little or no possibility for examination or discussion in open court.

Currently victims of mentally disordered offenders cannot know on what basis the psychiatric reports are being made – or if they rely solely on what the offender decides to tell them, which in the absence of any corroboration may or may not be accurate.

We are not suggesting that all diminished responsibility cases should go to full trial, we are saying the Victims’ Law should allow for psychiatric reports in these cases to be made available to victims’ families.

Victims of mentally disordered offenders need to know the evidence on which the conviction is based. Psychiatric reports can provide important and helpful information for victims about the full circumstances of the killing, which can aid their understanding and help them cope and recover.

Often the reason for the failure to disclose psychiatric reports to victims is the claim of alleged ‘patient confidentiality.’

But as Lady Hale has said in the Supreme Court:

There is a difference between cases where a court or tribunal is administering the property, care or treatment of a patient in his own best interests and cases which are concerned with the proper management of a patient who has in the past been dangerous. There is a balance to be struck. The public has a right to know, not only what is going on in our courts, but also who the principal actors are.“

Similarly in a case of Michael Stone, a mentally disordered patient who killed a woman and her young child and then attempted to restrict the amount of information given to his victims’ family, Mr Justice Davis said:

Mr Stone’s right to privacy in this context …  have arisen out of Mr Stone’s own acts – acts found to have been criminal. He has, as it were, put himself in the public domain by reason of those criminal acts, which inevitably created great publicity…. Of course that is not to say that a convicted murderer forfeits all his rights under Article 8; of course he does not. But here the information sought to be disclosed relates – and relates solely – to the investigation foreseeably arising out of the very murders which he himself committed.“

Consequently, we say the law already recognises that the confidentiality of mentally disordered offenders is not absolute, and where such offenders have been convicted of very serious crimes indeed, ‘patient confidentiality’ cannot be a legitimate reason to withhold information from victims’ families.

We say it should not be up to an offender, or their psychiatrists, to decide how much information their victims receive.

We say the Victims Law should permit such information to be given to them.

Sharing this information would increase transparency, help ensure accountability, and give victims a clear understanding of what happened to allow them to rebuild their lives.

• allow victims of mentally disordered offenders to give Victim Personal Statements at Mental Health Review Tribunals (also known as First Tier Tribunals (mental health)) considering the release of mentally disordered offenders

Currently victims of serious crimes are not allowed to make statements to First Tier Tribunals (mental health), but they are allowed to do so at Parole Board hearings.

Victim Personal Statements (VPS) would not only benefit victims being heard, they would also benefit the working of Tribunals as well.

The Parole Board acknowledges the utility of Victim Personal Statements to improve their work and decision making. They say:

“VPS can provide useful context and information for the [Parole] panel about:

• the original impact of the offence when it was committed;
• the lasting impact of the offence since it was committed; and
• the impact that the prisoner’s release would have on them, their family, their community, or those with close ties to them or their family.

VPS may provide the panel with information relevant to questions it may explore with the prisoner for example,

• the impact of their behaviour,
• their insight into their behaviour,
• their remorse,
• their empathy; and
• appropriate licence conditions

We suggest Tribunals would similarly benefit from hearing a Victim’s Personal Statement.

Mentally disordered offenders who have been convicted of serious crimes can apply to First Tier Tribunals for release within six months of conviction and every year thereafter.

First Tier Tribunals are held in secret, do not meet the requirements of open justice, and do not afford victims sufficient consideration.

Hearing such statements would not only improve the quality of their decision making, it would also give victims a voice in a legal process that affects them greatly but which currently largely excludes them.

We know form the experience of some of our families that Victim Personal Statements are allowed at Mental Health Tribunals in Scotland and have been found to be helpful. It is difficult to understand why they are not allowed in England and wales.

The current system here isn’t fair, and our families are considerably disadvantaged.

Allowing victims to present Victim Personal Statements at First Tier Tribunals (mental health) would significantly increase the voice of the victim in the criminal justice process. It would increase transparency and accountability and better support victims to recover.

• require First Tier Tribunals (mental health)
  • to give victims the reasons for their decision
  • to allow victims to request a review of a tribunal decision 

Currently when the Parole Board considers and decides on the release of dangerous offenders, there is a requirement for them to give victims reasons for their decision and an opportunity to appeal the Parole Board’s decision if they so wish.

But when the First Tier Tribunal (mental health) considers and discharges mentally disordered offenders who have been convicted of equally serious crimes and have been considered dangerous, there is no such requirement to give victims reasons for their decision or offer the chance of appeal.

Requiring Tribunals to give victims the reasons for their decisions and offering a right of appeal, would help increase the voice of the victim in the criminal justice process. It would increase both transparency and accountability.

• require all families of victims of mentally disordered offenders to be granted non-means-tested legal aid at Inquests involving state agencies

Many of the families we represent are dependent on the Inquest to provide information and answers to questions that have not been forthcoming from criminal justice or other investigations.

Inquests are often the only places where victims can receive information and have the opportunity to question agencies involved in the case, as they are considered ‘interested parties’.

But the current system is unfair, unbalanced and in need of reform. It needs to give victims an effective voice with effective representation.

Currently in many Inquests all the state agencies are legally represented – paid for out of the public purse – whilst victims’ families are not.  Few if any of our families get Legal Aid and consequently many are not properly represented.

We agree with the House of Commons’ Justice Committee on the need for a level playing field for bereaved victims at Inquests:

“The Ministry of Justice should…, for all inquests where public authorities are legally represented, make sure that non-means tested legal aid or other public funding for legal representation is also available for the people that have been bereaved.

Providing legal aid for affected families would help increase the voice of the victim and support real accountability where things have gone wrong.

• should require NHS agencies to provide or finance appropriate trauma informed care and counselling services for victims of mentally disordered offenders.

Dame Louise Casey’s 2011 report into the needs of 400 families bereaved by homicide in England and Wales found that all of them experienced significant physical and mental health problems as a result. Depression, Anxiety, Post Traumatic Stress disorders were common. Some even attempted suicide.

Yet invariably NHS agencies routinely ignore the needs of victims of serious offences committed by mentally disordered offenders and concentrate exclusively on the well-being of the offender.

On the rare occasions when mental health services do acknowledge the need of victims, they are invariably told to contact their GP and go to the end of an extended waiting list for some generic cognitive behavioural therapy, which is completely inappropriate for such traumatic, violent, and enduring bereavements.

They are treated as any other member of the public. Their ‘enhanced rights’ to appropriate support (according to the Victims’ Code) are rarely, if ever, recognised by the NHS.

In some cases, Victim Support Homicide Service is able to offer some limited trauma-informed counselling sessions, which can often be helpful in the short term, but as many of our families report they can be too few in number to be of lasting assistance.

Where patients of NHS mental health trust have committed a homicide, we request the Victims’ Law specifically require the NHS and mental health trusts to assist, support and finance trauma informed care and counselling for victims of mentally disordered offenders, particularly when their own patients have committed a homicide.

Such a measure would significantly support victims to help rebuild their lives.

• should strengthen the powers of the Office of the Victims’ Commissioner so that agencies must have a statutory duty to cooperate with and provide information to the Commissioner and address any deficiencies

The Commissioner does extremely valuable work but has no powers currently to compel state agencies to cooperate with her, and require them to effectively address any concerns she may raise.

Strengthening her powers would clearly increase the voice of the victim in the criminal justice process, it would increase transparency and help provide clearer accountability when things have gone wrong.

• should provide an easy and clear pathway – possibly through regional Victims’ Commissioners – to enable victims to complain effectively and obtain appropriate action and accountability should agencies fail to comply with their responsibilities under the Victims’ Code.

Currently there’s no easy way for a victim to lodge a complaint when their rights and entitlements under the victims’ code have not been met. There is no easy way for them to get their concerns addressed and dealt with effectively. Currently it appears criminal justice agencies and others can chose to ignore victims’ complaints and concerns without any sanction whatsoever.

There should be an easier way for victims to get their concerns addressed. We have no particular proposals for this but consider the establishment of regional Victims’ Commissioners with appropriate powers to be a potential way of coordinating this to secure a greater voice for victims, increased transparency. More accountability and support for victims.

In summary we suggest the Victim’s law should:

• specify that the NHS must be required to deliver services and entitlements to victims of mentally disordered offenders;

• require the Crown Prosecution Service, NHS, Ministry of Justice agencies and medical professionals to share information with victims of mentally disordered offenders – particularly when an offender pleads guilty to manslaughter by reason of diminished responsibility and/or receives a hospital order;

• allow victims of mentally disordered offenders to give Victim Personal Statements at Mental Health Review Tribunals (also known as First Tier Tribunals (mental health)) considering the release of mentally disordered offenders;

• require First Tier Tribunals (mental health)
  • to give victims the reasons for their decision
  • to allow victims to request a review of a tribunal decision; 

• require all families of victims of mentally disordered offenders to be granted non-means-tested legal aid at Inquests involving state agencies;

• should require NHS agencies to provide or finance appropriate trauma informed care and counselling services for victims of mentally disordered offenders;

• should strengthen the powers of the Office of the Victims’ Commissioner so that agencies must have a statutory duty to cooperate with and provide information to the Commissioner and address any deficiencies;

• should provide an easy and clear pathway – possibly through regional commissioners – to enable victims to complain effectively and obtain appropriate action and accountability if agencies fail to comply with the code;

We believe these provisions in a new Victims’ Law would substantially increase the voice of victims in the criminal justice and other processes, they would increase transparency and accountability and promote much greater confidence in the system.

They would support families better to try and cope and recover from the trauma that has been inflicted on them, through no fault of their own.

They would promote justice for the families we represent.

Please do not hesitate to get in touch should you have any questions.

Yours faithfully

Julian Hendy

Director – Hundredfamilies.org

Registered Charity: 1161287