Dr McGregor's speech to Napier Pilot City Trust Unity Day - 23 April 2021
Tēnā koutou, Tēnā koutou, Tēnā koutou katoa
I would like to thank the organisers of this conference for the opportunity to speak to you about victims’ experiences in the criminal justice system and some of the improvements I have seen develop since I gave my recommendations to government on how to reform the criminal justice system for victims.
For this presentation I will outline my recommendations from my report Te Tangi o te Manawanui which were based on two years of consultation that began in 2018 with over a thousand victims of crime and their supporters through the Hāpaitia te Oranga Tangata –Safe and Effective Justice Reform programme.
Through my consultation process I clearly heard the voices, fears, tears, anger and frustration of Māori and Tauiwi victims of crime. They talked about the lack of fairness, and the lack of justice they experienced in our criminal justice system.
They told us that the system is offender-centric and not victim-centric. They told us they do not feel safe in the system, they do not have enough information, support or voice.
They told us that victims’ justice needs are not recognised well enough, and that there is insufficient knowledge of victims’ rights in the justice workforce. Support services are not easily accessible, integrated or tailored to help people heal from victimisation, and there are few prevention initiatives to stop re-victimisation.
Māori victims of crime told us that the system does not work for iwi, hapū or whānau, and that constitutional reform is required so that there is recognition of Te Tiriti o Waitangi. The system needs to make room for an iwi perspective, tikanga Māori processes and kaupapa Māori models of healing and that, actually, we need a new justice system that is tailored to the people in Aotearoa.
Now I am keenly aware that most individuals in the criminal justice system work hard every single day, go above and beyond their duties and do everything in their power to keep people safe and improve systems and services especially for victims of crime. I want to acknowledge those people and their efforts and be clear that any criticisms I have of the justice system are of the system itself and not of individual people who constantly strive to make Aotearoa New Zealand safer for all of us.
I would like to highlight a few of the high-level themes that emerged from research into victims’ issues and from hearing from victims, victims’ advocates, judges, lawyers and government officials, including that:
- we can’t easily track victims’ experiences in the criminal justice system because we don’t collect sufficient data on victims, and justice agency IT systems are not linked together to enable us to gain a picture of victim experiences in the justice system.
- despite having a responsibility to uphold the very few victims’ rights victims have, after twenty years, under the Victims Rights Act 2002, we still do not measure or monitor whether their rights are being upheld and we know from multiple cases and complaints that many of their rights are not upheld. For example, we know that thousands of victims who are entitled to be on the Victim Notification Register are not on there, most probably because of a lack of training of Police officers and others in the system to know and understand how important being registered is for receiving vital safety information.
- we DO know that many victims are not just significantly dissatisfied with their experiences in the CJS but that concerningly some are irreversibly harmed by it. (One rape complainant said “the system makes you want to kill yourself”.)
- we know that we don’t have what most other similar Western countries do have - that is an Independent Victim focused Commission, Commissioner, or even a dedicated Victims of Crime Ombudsman. Any of these roles or mechanisms could proactively measure and monitor victims’ rights, receive victims’ complaints and focus on improving systems and processes for victims.
- we have a justice sector workforce that lacks victim expertise to provide the range of diverse Māori and Tauiwi victims with the tailored support and advice they require.
- and finally, we heavily underinvest in victims in the criminal justice system with less than 50 cents in every 100 dollars the Government spends on the justice system ringfenced for victims.
Hearing from victims
I would now like to outline just a couple of examples from recent victim complaints that provide a little more context to what some of these high-level gaps mean in practice.
In my face-to-face consultations I heard from a woman whose head was split open when a man, a stranger, threw a bottle at her. Her friend called the Police and the victim reported that the Officer in Charge (OC) was ‘excellent’. He listened and empathised, and after taking her statement he got her in an ambulance so she could have stitches for the wound. After reporting the offence, she waited in fear for 7 weeks before the police found the time to interview the suspect. In the first few weeks she called the police weekly asking for information about her case. She didn’t know who the man was and was fearful he could find her and attack her again. After calling and calling the Police she found out that the first OC had gone on leave and the second OC was inundated with cases so couldn’t interview the suspect. The third OC had only read her statement went to interview the suspect. After interviewing the man, he came back to the victim and said to her: "Look he's a really nice guy, he's just got married, he's got a good job, do you really want to ruin his life?" She found the courage to say ‘yes’, she did want to prosecute mainly because she didn’t want this man to do the same thing to anyone else. The case took almost a year to go through to court. She had to call the Police and the courts regularly to find out when the case was to be heard. She attended the trial, but wasn't introduced to the police prosecutor who didn’t even know she was there or who she was.
This case is just one of many I hear where it is the victim who bears the burden of chasing the system to get the necessary information they need for their wellbeing. Not knowing when the accused is going to be spoken to by the Police is one of the riskiest times for a victim. They need to know if and when the accused is to be spoken to and what the outcome is. Victims not knowing causes huge anxiety and of even more concern, they need to know if the accused is not being taken into custody because if they are not, the victim’s safety and life maybe at risk.
I have heard multiple complaints from Judges that they often don’t get accurate or updated information about a victim’s circumstances and they say they frequently know very little about a victim’s needs and they would like to know more.
For victims of crime, it is not easy to report harm and it seems there is a crisis of confidence in the criminal justice system for victims.
Victims say the criminal justice system is experienced as an immense and complicated maze that many have described as ineffective. Some victims say they were further harmed and indeed re-victimised by the justice system and many say they received little justice.
The New Zealand Crime and Victims Survey (NZCVS) tells us that less than a quarter of victims had reported crimes against them. This figure reduces to less than 20% for family violence and to 6% for sexual violence. It is of huge concern that some of those who have been through the criminal justice system have stated that they would not advise others to report crime.
Te Tangi o te Manawanui: Recommendations for Reform
As a result of years of listening to victims, in my advice to the government to improve the system for victims, I have made four high level recommendations.
The first one that what I will spend most of my time speaking about is focussed on the short term and is aimed at improving procedural justice and safety for victims now. There are many aspects of our criminal justice system that need fundamental longer-term change if the needs of victims are to be properly addressed. However, there is also much that can and needs to be done now to improve the experience of victims in our current system.
A key focus of procedural justice is victims’ safety. Most of us are aware right now that there are competing justice needs. For example, we know there is enormous pressure in the criminal justice system to reduce remand numbers and increasing numbers of accused offenders are being released on Electronically Monitored bail. Many victims have reported feeling that their safety has not been prioritised especially when their views on bail are not always sought even in very high-risk situations. And, in this regard Police do not seem to have the necessary robust systems and training to recognise which victims are at very high risk from very motivated offenders who are determined to harm them.
I hear from victims who find that the offender has breached their Protection Orders or bail conditions on multiple occasions only for them to be let out again on bail. One victim I spoke to doesn’t dare to leave her house when her ex-partner is out on bail because she is so certain he will harm her again if he finds her. She believes he will never stop until he kills her, or he dies. The system has failed to keep this woman and her children safe over the 26 years she has reported abuse by him against her and her children and now her grandchildren.
Another example of a failure of safety in the system is of a mother I spoke to, whose daughter was murdered by an offender who was out on parole from a conviction for another violent offence and in breach of his parole conditions. The offender’s family had not reported to police that the offender breached his parole by leaving the family home to take a two week visit to another city. It was during this visit that he murdered this mother’s daughter.
Just these examples alone should remind us that if we focus on anything in our justice reform programme, we need to focus on victim safety as a priority.
So, change is needed on many fronts if we are to improve procedural rights for victims as they move through the system, and we need to look closely at the many opportunities there are to improve justice processes for victims. In particular, we know there is a lack of overall co-ordination of the multiple people in the system who victims need to be in contact with. Because victims don’t have their own lawyer to guide and advise them, a key solution is to provide victims with a single point of contact that is independent of the currently restricted siloed police and justice roles. This has been recommended multiple times over many years and does happen in overseas jurisdictions. It has long been recognized that victims need someone who can help them understand the various processes and legal jargon. They need someone who knows the system and can chase people in the system to make sure they complete their obligations to victims.
For this reason, the new MSD initiative that is providing independent sexual violence court support advisors is a positive step. This service will provide victims with a support person in court while the victim is giving evidence, the support person will liaise with police and prosecutors for the victim, will explain what is happening in court and will generally strive to help the victim get the information they need and get though the system without being re-traumatised. If this service is as successful as it should be, I would hope this service could be scaled up and also expanded to other crime types.
Families of homicide victims have a had a similar specialist service for several years. This service was recently expanded in a nation rollout of additional homicide case workers providing important intensive wrap around support for these families.
I have spoken to some family homicide victims who said their specialist case worker was, in their words, “a god send”. Many victims have told me that they may not have remained sane or even survived (and we know that sometimes a homicide is followed by a suicide) had they not had their specialist case worker walking beside them - some for a decade, providing support through police and court processes, and then submissions to parole hearings.
Some victims have said that it was primarily the adversarial nature of the courts that left them feeling re-traumatised. For this reason I am hopeful that the new Sexual Violence Legislation Bill will at least provide rape victims who have complained of feeling relentlessly attacked, humiliated, undermined and repeatedly accused of lying during long and brutal cross examination with some new protections for example with Communication Assistants helping Defence phrase questions in a way that allows a victim witness to provide their best evidence.
And in other efforts to move victims from the periphery and more towards the centre of the system there have been many calls for a shift from a purely adversarial system to one that includes more inquisitorial, restorative, therapeutic and whānau-focussed processes that listen to victims’ voices while also holding offenders to account for their actions. For this reason, Judge Taumaunu’s initiative Te Ao Mārama provides a new opportunity to weave therapeutic processes from the specialist courts into all District Courts.
Throughout our consultation process, we heard that a whānau-centred approach is particularly essential for a justice system that is to work for Māori. Research tells us that Māori are more likely to experience crime and re-victimisation compared with non-Māori and we know that victimisation not only affects the whole whānau but the burden of victimisation is often experienced as part of the effects of ongoing colonisation which can impact the cohesion of whānau and hapū over generations.
In the report ‘Ināia Tonu Nei’, Māori called for Government to work with Māori in any reform of the criminal justice system. Recent positive steps I’ve seen in this regard include the significant new senior leadership position of Pou Whakatere, the Deputy Secretary of Justice Māori. And as a result of this role I have heard that significant system design work by Māori for Māori is being led across the justice sector by his team, Ātea a Rangi. In addition, Ināia Tonu Nei have begun working in partnership with the most senior leaders across the justice sector to improve outcomes for Māori.
For my part, since I began this role 5 years ago, I have repeated the need for at least a partner Chief Victims Advisor Māori. Having worked in an NGO setting for most of my working life I have been used to having the benefit of always working alongside my Treaty partner. Since coming into Government, I have continually asked for a similar partnership arrangement.
As we continue to acknowledge that change is needed on many fronts, we also need to mention that a justice workforce that reflects the diversity of victims, needs to be developed. This workforce should possess the knowledge, skill and attitudes to be culturally competent, and fully trained to not only understand trauma, but also violence and its impact on people. It is interesting to me that in Universities we have Schools of Criminology but not Schools of Victimology.
In terms of upskilling our justice workforce, I have been pleased to hear about the training of Ministry of Justice officials on recognising and responding to victims of family violence. In addition, both the judiciary and lawyers recently have been voluntarily engaging in training to understand the impact of sexual violence and family violence. The training is designed to help them understand some of the rape myths about sexual violence that undermine accurate views of sexual offending, and to understand how perpetrator behaviour and system failures can trap a victim of family violence into an unsafe situation. I am pleased that the latest online training workshop for lawyers on family violence has received nearly 600 registrations so far.
Changing the system
There are many aspects of our criminal justice system that need fundamental change if the needs of victims are to be addressed. For example, as mentioned earlier, a key problem is that victims are not recognised as a party in the legal system. They do not have their own lawyer that can act on their wishes, as the accused has. So, victims are at a disadvantage from the start.
Because victims are relegated as a witness to the Crown’s case, ironically, some prosecutors say that to protect the victim from a re-trial, the prosecutor spends as little time with the victim as possible, in case the Defence accuses them of ‘coaching’ the ‘witness’. As you can imagine in the year or more waiting to go to trial, victims have a lot of questions about the process, but they have no lawyer to consult. Often victims who are to be cross examined in trial will only meet with the Prosecutor on the day of the trial or the day before the trial.
Because they don’t have a lawyer to advise them, victims are reliant on busy Officers in Charge and Court Victim Advisors with hundreds of cases, to provide victims with important information including: ever-changing court dates (as trial dates are set and then cancelled, sometimes at the last minute), information about the plea outcome, about bail decisions, and about sentencing decisions. Making sure victims receive these important pieces of information is vital.
Furthermore, when victims have to participate in the criminal justice system, they need someone to provide them with information about their role in the system and their rights. They need full preparation to understand how the process of cross examination works, what the role of the Defence is, an understanding of the limits of what they are allowed to say in court, and the limits of what they can say in their Victim Impact Statements and so on. Last week I heard about a trial that had to be aborted because the victim was not properly prepared, and inadvertently gave inadmissible evidence multiple times. The costs to the victim and the system for failing to support the victim can be huge.
If victims are lucky enough to have a key person walking alongside them through the long and complex legal processes, explaining the justice process and the victim’s role in it, then, even if the outcome is not what they may have hoped for, at least the victim knows that they did their very best and they were provided with all of the information and support they needed. This is one way the system can at least provide ‘procedural justice’ to a victim. Unfortunately, based on the complaints I have received and the consultations I have conducted it seems that few victims, even victims of serious crime, receive this level of support.
So, despite the huge structural gaps in the adversarial system for victims, there is much that we can do now to improve the experience of victims in our current system by improving the support and information victims of crime receive.
And, I will repeat, the most important place we need to start with when improving our systems is in ensuring victims’ safety.
As I have mentioned, gaps in information in the criminal justice system, especially when dealing with interpersonal harm, can put victims lives at risk.
Key risk points include when information is passed from one part of the system to another, for example when passing information between Police, Corrections, and Courts.
Improving information flow, while it may not seem important, may in fact save lives. Our paper-based courts are a huge problem and so making sure the correct information gets to the right person at the right time is fundamental to safety.
Lack of linked up IT systems between Police, Justice and Corrections cause significant problems for victims. When there are manual methods used to transfer information, human error can occur, and a lot of wasted effort can be used just trying to pass information between agencies. Many of these key information transfer points could be improved. Getting safety information, such as the fact that an offender is about to be released on Bail to the victim, needs to be provided as soon as the decision is made. I have heard from some women who have reported partner violence and the Police have done their best to contact the women within the hour of the Judge making the decision to Bail the offender into the community, only to find that their partners were already at the house trying to get in to harm them.
I’m pleased to say that there is much work within government focused on trying to improve procedural justice and safety for victims at the moment. One example from just last week is of a website or App that is being developed for victims by the High Impact Innovation Team at the Department of Corrections. I have been working with this team for several years now and the idea for this website (that can be downloaded as an App on to a victim’s phone) began immediately after a conversation I had with two others in Corrections.
We discussed our concerns that it was hard for victims to access information about when an offender was about to be released from prison. With timely information, victims who were fearful of the offender being released and coming to harm them again, could be warned and may have a chance to get to safety. At the time of our conversation, the Corrections staff were trying to find a safe and easy way victims could access information about the offender’s release. To develop this App, this team spent two years consulting and designing this tool with the victims and victim advocates I put them in touch with. At the end of the process, the victims who trialed the App, said they wished they had the App when they were dealing with the criminal justice system. We are all hopeful that if this App is successful, it may be expanded to Police and Justice agencies.
So overall, to improve procedural justice for victims, at a minimum, all government agencies especially those who are obligated under the Victims’ Rights Act, needed to review their many and varied complex systems that aim to provide victims with information or services. Safety audits should especially be conducted when more than one agency’s responsibility overlaps with another. Reviews, of measurements and monitoring processes to ensure justice sector agencies are at least complying with the provisions of the Victims’ Rights Act should be regular and ongoing. And there should be victim-focused oversight, management and leadership seeking opportunities to improve systems and services for victims where possible by listening to victims’ justice needs.
To this end I was delighted, after I strongly complained to the Secretary of Justice Andrew Kibblewhite about the need for leadership across the justice sector solely focused on victims, that on my recommendation, the Secretary immediately set up a Victims Leadership Group to do just that. And I was similarly impressed when I contacted the Police Commissioner Andrew Coster, last year and asked him to conduct a safety review of police processes especially focused on victims having their views on bail collected and safety information being given to victims in high risk situations. He immediately set up this review.
My second recommendation to government was to develop an integrated social and justice approach focussed on restoring victims’ wellbeing. A criminal justice system focused primarily on people who offend will inevitably fail to adequately address the needs of victims. I therefore recommended that victims need to be served by a seamless system that co-ordinates a range of proactive and comprehensive health and social services tailored to deal with the wide-ranging impacts of crime on their lives. These services should be available regardless of whether the crime against them is reported to or investigated by Police.
We know that once harmed, a victim’s risk of being harmed again is hugely increased. Much prevention of re-victimisation is possible in the community when appropriate kaupapa Māori and Tauiwi wrap-around services are engaged early on.
Given that most victims don’t report the crimes against them to the Police, the least we can do is provide easily accessible quality social services in a seamless way rather than putting the burden on victims to seek out the support they need.
I became particularly concerned about the burden on victims as they sought support services when I was involved in some research looking into the needs of burglary victims and victims of workplace robberies. Some victims of workplace robberies were severely traumatized having been beaten, injured and/or threatened with a weapon and yet they could not close their shop because the shop was also their livelihood. Many of these victims had to contact ACC, security firms, as well as health and mental health professionals. They had to try to find their way through multiple systems and had to repeat their information over and over again. They would call one service only to be referred to a different part. They would have to fill out multiple electronic or paper-based forms to access the help they needed to try to move on in their lives. Most had no case worker to help them. One victim had to contact over 20 services to get the help he and his family needed. Language barriers and disabilities can be a huge problem for victims of crime as they attempt to recover post victimisation.
There needs to be a review of the myriad of complex pathways victims must travel to access the support they need to stay safe and heal. This recommendation calls on the government to develop a response so that victims of all crimes do not have to carry the burden and costs of finding the help they need.
My third recommendation is that government needs to develop a variety of alternative justice processes by partnering with Māori and working with restorative justice specialists and other communities to develop a variety of alternative therapeutic justice processes.
A criminal justice system designed around the punishment of offenders will never be capable of fully addressing the needs of victims. It is necessary to critically examine and propose reform of some of the more fundamental underpinnings and core processes of our current adversarial system.
Some victims will never want to report to an adversarial justice system that only has jail as an option and may be more interested in a justice process where the person who harmed them commits to complete treatment to stop their harmful behaviour.
Māori have long said that services and systems that are designed by Māori work best for Māori. To achieve better services for Māori means being committed to our obligations under Te Tiriti o Waitangi. The justice system needs to recognise and incorporate Te Ao Māori models of healing and tikanga principles; the Crown must deliberately partner with iwi, hapū, whānau and Māori communities to design and deliver kaupapa Māori responses to crime that have a clear focus on whānau and whakapapa.
We also need to invest in promising restorative and alternative pathways, to better understand and improve them for victims, and use them to establish the foundation for long term and transformational change. To this end I am about to commission some research to look at the pockets of restorative justice and kaupapa Māori justice processes already working in Aotearoa so that we can begin to invest in these important alternative, therapeutic ways of dealing with harm.
My fourth and final recommendation is, in many ways, the most important one, that we need a Te Tiriti-based independent body or mechanism in Aotearoa that can properly enforce victims’ rights and monitor and improve the justice system from a victim’s perspective.
Because there has been no measurement or monitoring of Victim Rights across the Justice sector in the last twenty years, meaningful transformation for victims is unlikely without a specialist victims-focussed mechanism to help drive the changes that are necessary if we are to re-build victims’ trust and confidence in our justice system.
Victims have been sidelined and neglected for too long and to be effective any new mechanism must be developed with Māori.
If the criminal justice system is to be responsive to the needs of victims, it must be structured to ensure that victims and their whānau can influence change. Further, any transformation must be properly resourced, including the strengthening of a victim-focused, and culturally capable workforce.
Transforming the criminal justice system so that it can genuinely meet victims’ needs in 21st-century Aotearoa continues to be an enormous challenge, and action is needed at all levels. Transformation is unlikely to be easy or fast, but for all our sakes we need to be bold and we need to keep going.