Terra incognita: Victim Participation Rights, Sexual Offending and Brexit

Abstract

Over the past four decades, the importance of safeguarding the rights of victims of crimes has been progressively recognised. While the European Convention on Human Rights, the EU Charter of Fundamental Rights, as well as the European Union Directive on the Rights of Victims of Crime Directive 2012/20 EU have all contributed to this change, this recognition has been driven primarily by EU law. 1 By contrast with the general provisions of the European Convention on Human Rights adopted in 1950, 2 which seeks merely to establish minimum standards in 46 very different States, the Directive sets out in detail the component elements of rights in a legislative text. Further, it enjoys probably both direct effect and certainly supremacy and has the overt intention to harmonise the law in the Member State to which it applies. 3 Increasingly, victims are seen as rights-holders. There is now a growing consensus that victims of crime have an inherent interest in the manner in which criminal justice is administered with accompanying rights as a participant. This concern is heightened 4 in cases of sex offending and has resulted in national reviews and inquiries into the investigation and prosecution of sexual offences 5 in the adversarial criminal jurisdictions of the UK and Ireland. One of the rights focussed on in these reports was the substantive participatory right to state-funded independent legal representation for defence applications to question the victim in relation to sexual history or character evidence at the pre-trial stage. Ireland played a significant leadership role in these initiatives and it extended the already established right from the trial to the pre-trial stage. By contrast, a report commissioned by the Victims’ Commissioner indicates that England and Wales is far behind in providing substantive participatory rights to victims of crime 6 while proposals exist in Scotland and Northern Ireland to follow the Irish approach and place the right on a statutory footing. The decision of the UK to leave the EU now means that the domestic implementing measures and any unimplemented provisions are converted to retained EU law by the European Union (Withdrawal) Act 2018. 7 Further, the Act removes Charter rights from domestic law on exit day 8 while retaining in domestic law fundamental rights or principles which exist irrespective of the Charter. 9 I will explore here some of the challenges for the UK courts in defining and interpreting these retained law rights. Crucially, any future development will not have access to the “benchmark” 10 of either EU law or a written constitution. The UK’s relationship with the Convention is an evolving one and, while general Convention protections continue to apply, for now at least, 11 I will focus here on implications for the UK’s uncodified constitutional order. This now diluted legal order will be more reliant on common law rights which, by contrast with rights in a written constitution, generally lack a hard -fundamental status.