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CHAPTER 3: VICTIM STATEMENT SCHEMES IN OTHER JURISDICTIONS

3.1 This chapter reports the results of the literature review undertaken in order to obtain information on the operation of victim statement schemes in other jurisdictions.

3.2 Victim statement schemes exist in various forms in most common law jurisdictions. As such, one of the aims of the evaluation was to obtain information on the manner in which such schemes operate. The most relevant scheme for purposes of comparison with the Scottish pilot scheme is probably that operating in England and Wales (see Hoyle et al, 1998; Morgan and Sanders 1999; Graham et al, 2004), but victim statement schemes also operate in the Republic of Ireland, ²² almost all US states (for accounts of schemes in New York and Ohio states respectively, see Henley et al, 1994; Erez and Tontodonato, 1990), Canada (see Meredith and Paquette, 2001), Australia (see Sumner, 1994; Erez et al, 1994) and New Zealand (see Morris et al, 1993). It is more difficult to obtain information in English on continental European legal systems, but a recently published article describes a victim statement scheme operating in the Netherlands (Kool and Meorings, 2004).

3.3 The following short section summarises, as far as possible, some of the key features of victim statement schemes in other jurisdictions. It is far from a complete account, given that published information on the various schemes is very limited, the only comprehensive evaluation available being that of the pilot victim statement scheme in England and Wales.

THE ADMINISTRATION OF VICTIM STATEMENT SCHEMES

3.4 The way in which victim statement schemes are administered in different jurisdictions varies according to a number of factors such as the point in the criminal justice process at which the statement is taken, whether the statement is in written or oral form and, for written statements, whether they are completed by the victim themselves or by a criminal justice professional on the victim's behalf.

3.5 In the pilot victim statement schemes in England and Wales, 3 different methods of obtaining a victim statement were evaluated between 1997 and 1998. In all of them, the process commenced with the police sending a letter to the victim inviting them to take part in the statement scheme at the same time as they sent the letter informing the victim that the defendant would be prosecuted. ²³ Method 1 involved sending a victim statement form along with this letter and inviting the victim to return it. Method 2 involved sending a statement form only to those victims that opted into the scheme, by sending back a reply slip attached to the original letter. Method 3 involved a police officer visiting the home of victims who opted into the scheme and completing a form on their behalf.

3.6 When the victim statement scheme was rolled out across the whole of England and Wales, however, none of these methods was the one eventually utilised. Under the victim statement scheme that presently operates in England and Wales (called the Victim Personal Statement scheme), the police officer who initially interviews the victim will ask them if they want to make a personal statement, after they have finished making their witness or evidential statement. ²⁴ If they wish to do so, the personal statement, although intended to be in the victim's own words, is actually written by the police officer. The main reason for the change in procedure compared to the pilot schemes was that it was decided that the victim personal statement should be available at the point at which the decision on whether or not to prosecute is taken. Whether or not a victim makes a statement at the point of the initial police interview, they are given a leaflet stating that they are entitled to make a personal statement at a later date (whether for the first time, or to update any statement that they have already made). If the victim does decide to make a statement at a later date, they do so by contacting the police, who then arrange to take the statement at the victim's home, at the police station or at some other mutually convenient place. Thus the statement, even at this stage, is completed by the police officer, and not by the victim themselves (Home Office, 2003).

3.7 The English personal statement scheme is not the only scheme in which statements are not self-completed. Statements are also written on behalf of victims by criminal justice professionals in the Netherlands, parts of the US, in some Australian states and in some parts of New Zealand. In both the evaluation of the English pilots (Hoyle et al, 1998) and in a survey undertaken in New Zealand (Victims Task Force, 1993), it was found that levels of satisfaction with the victim statement scheme did not differ significantly according to whether the statement was self-completed or was completed by a police officer/other criminal justice professional.

3.8 Another way in which statement schemes might differ is according to whether the statement is made in writing, as in Scotland, England and Wales and the Netherlands, for example, or whether the victim has an opportunity to make a verbal statement in open court, as in some US states. ²⁵

3.9 The Canadian victim statement scheme permits both written and oral presentation, as does the South Australian scheme, that in Victoria, Australia and the schemes operating in some US states. In these hybrid written/verbal arrangements, victims are offered the opportunity both to make a written statement and, if they wish to do so, to read out their written statement in court. In New Zealand, a further variation in practice exists, in that a statement may be recorded on audio or videotape and played to the sentencing judge.

3.10 Focus groups undertaken with Canadian victims who had made victim statements indicated widespread support for the opportunity to read out their statement, the victims perceiving (whether accurately or not) that the sentencing judge would be more likely to pay attention to it than if it was merely in writing (Meredith and Paquette, 2001). By contrast, an evaluation of the victim statement scheme in the Netherlands concluded that there was little or no desire among victims to be able to make an oral statement to the court (Kool and Meorings, 2004). ²⁶

3.11 Statement schemes also differ according to the procedures used to collect statements from children. The majority of jurisdictions in which statements are self-completed do not permit children below a certain age to complete a statement themselves, requiring instead that a parent or carer does this. In the statement scheme operating in South Australia, however, special provision is made for young children, giving them the option of writing the statement in their own words or drawing a picture that sums up their feelings about the alleged offence. This is passed to the sentencing judge in the same way as a victim statement completed by an adult.

3.12 Statement schemes differ according to whether they allow for victim impact statements or victim opinion statements, the former permitting the victim only to provide a factual account of the impact of the offence, with the latter permitting the victim to express his or her view on the appropriate sentence (Sanders et al, 2001). The Scottish pilot scheme was clearly a victim impact statement scheme, as is that of England and Wales, the Republic of Ireland and Canada, for example. Victim opinion statements are permissible in a number of US states and in parts of Australia.

3.13 In September 2005, the Department for Constitutional Affairs published a consultation paper, Hearing the Relatives of Murder and Manslaughter Victims, seeking views on proposals to enable "bereaved relative[s in murder and manslaughter cases], if they wish, to make a personal statement in court before sentence on how the death has affected them, either directly themselves, or through a lawyer or suitable representative" in England and Wales (Department for Constitutional Affairs, 2005, para 45). At the time of writing, no further steps had been taken in respect of these proposals.

RESPONSE RATES

3.14 Up to date, reliable information on response rates to victim statement schemes in other jurisdictions is difficult to obtain. The most detailed information available is that in relation to the English pilot victim statement schemes. As described above, ²⁷ 3 different methods of implementation were evaluated in 5 different pilot areas. Methods 1 and 2 involved the victim completing a victim statement form and returning it by post, whereas method 3 involved the statement being taken by a police officer in the victim's own home. ²⁸ The response rates for each pilot area are shown in Table 3.1.

3.15 As Table 3.1 shows, the overall response rate was 30%, but this varied considerably between the different pilot areas. The highest response rate was found in Merseyside (44%), where victims were simply offered the opportunity to make a statement in a letter from the police and returned the statement form by post. The 2 pilot areas in which police officers visited the home of victims to take their statements in person both had response rates of 19%. The lowest response rate was in the MPD, where victims had to return a reply slip indicating that they wished to make a statement before they were even sent a statement form.

Table 3.1: Response rates to the English pilot statement scheme

Source: Hoyle et al (1998), at p.25.

3.16 It is worth noting at this point that the scope of the offences covered by the English pilot scheme was narrower than that covered by the Scottish scheme and thus the response rates are not directly comparable. Of particular note is the fact that the Scottish scheme included all assaults, whereas the English scheme included only assault occasioning grievous bodily harm and domestic violence cases. ³⁰ This should be borne in mind in the context of chapter 4, where it is reported that the overall response rate to the Scottish pilot scheme is 14.9%, ³¹ considerably lower than the rate found in the English pilot scheme. The published research on the English pilot schemes does not break down response rates by offence category, but it seems likely that the higher response rate is partly a result of the greater seriousness of the offences involved. ³²

3.17 Aside from the English evaluation, information on response rates is rather patchy, although it is clear that the main conclusion to be drawn is that they vary enormously. US studies have found response rates of 60% (in sexual assault cases) (Walsh, 1986); 55% (in felony cases, that is, relatively serious offences) (Erez and Tontodonato, 1990) and, in studies that examined participation in relation to all levels of offence, 27% and 15% (Tobolowsky, 1999). In a New Zealand study, victim statements were submitted in 6% of District Court cases and 49% of High Court cases (Victims Task Force, 1993).

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