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.
Introduction
The 2012 Directive establishes minimum standards designed to strengthen the rights of victims of crimes and ensure they receive appropriate information and support, protection and that they are able to participate in criminal proceedings. Directive-derived rights exist at three different levels. First, basic service level rights comprising interaction rights, information rights and support rights. 12 Second, procedural level rights such as the right to privacy and protection and access to justice processes, including investigation and trial proceedings. 13 Both of these species of rights give the victim the opportunity to participate and to be heard in court without fear of intimidation but neither allow victims to influence decision-making processes. They are not legally enforceable. The third level comprises substantive rights. These rights, by contrast, are enforceable rights to participation and reparation. 14 Substantive participatory rights include the right to make submissions to the police, prosecutors, the court and parole bodies, and to have those submissions taken into account with a view to influencing the outcome of decision-making or criminal proceedings. Such enhanced, enforceable participatory rights allow victims substantive input into the criminal justice process. With the exception of England and Wales, the recent national reviews have all supported (and developed) the substantive right to state-funded independent legal representation in the context of defence applications to question the victim in relation to sexual history or character evidence at the pre-trial stage. This right is derived from the right to be heard under Article 10 of the Directive 15 combined with the right to access to legal aid in Article 13 of the Directive as interpreted by reference to the broader right to a fair trial in Art 47 Charter.
The result of the EU referendum on 23 June 2016 meant that Britain left the EU on 31 January 2020. A transition period until 11p.m. on 31 December 2020 followed. 16 The UK has now entered what was described in 2018 by AG Szpunar as “terra incognita” in terms of EU law. 17 As he predicted, the tide is now receding and EU law is flowing down the rivers and out of the estuaries. 18 The 2018 Act repealed the European Communities Act1972 19 while converting the entirety of EU law but, not the EU Charter on Fundamental Rights, with the exception of fundamental rights or principles which exist irrespective of the Charter, into domestic law as retained EU law. The general effect of the legislation is that domestic courts can no longer refer any matter to the CJEU. 20 Neither are the courts bound by post-exit CJEU jurisprudence or indeed, in certain circumstances, pre-exit EU case-law which has been converted to retained law. 21 Retained law is, therefore, the new basis for these rights and any future interpretation will not involve the CJEU or Charter rights.
The main theme of this piece will involve exploring the basis of these rights under retained law before going on to consider some of the challenges to developing these rights in the UK courts which, without their primary driver, the Directive, will rely on the common law without the domestic benchmark of a written constitution. Victim participation rights have been conceptualised from a needs-based perspective. However, giving full effect to victim participation rights requires a legal system that conceptualises the victim in terms of rights. A rights-based approach places the victim at the heart of the criminal justice process and closer to its objective of ensuring a fair trial. 22 This was recognised as early as 1985 by the Council of Europe and the results continue to reverberate throughout the criminal justice systems of the EU Member States.
(Re)Conceptualising the Victim: from a Needs-Based to a Rights-Based Perspective
The first recitals of the Council of Europe’s recommendation of 1985 recognised that focusing on the relationship between the State and the offender has sometimes tended to add to rather than to diminish the challenges for the victim. 23 In this formulation, victims have no place in the system and, therefore, are not entitled to perform any specific role in criminal proceedings beyond serving public interests by reporting their victimisation to the police or being obliged to support the state by acting as witnesses. This study revealed that victims experienced this as debasing treatment by the offender and, as such, a form of secondary victimisation. Participation on this basis is due to the damage and not the criminal wrong incurred by the individual. 24 Under this scheme, the focus is on the harm and trauma that victims endure, on their need for support and protection against further victimisation, and on a social welfare-based orientation on the deservingness of victims. The criticism is that it involves side-lining the victim which tends to reinforce the negative impact of the crime on the victim or to subject the victim to secondary victimisation by treating the victim in a manner that adds to the abusive behaviour of the offender. 25 This approach has been described as a needs-based approach and is characteristic of thinking in the 1970s and 1980s. It gave way during the 1990s, to the rights-based model. This model, by contrast, recognised a violent crime as a human rights violation that entitles the victim to redress and to criminal proceedings as a redress mechanism. The victim is seen as wronged, not harmed; and because the victim is wronged they can legitimately expect that their legal community will not allow the offence to pass with impunity.
The European Union Agency for Fundamental Rights (“FRA”) 26 echoed the need to reconceptualise the victim in criminal proceedings and to shift the emphasis from a needs-based to a rights-based model. Five different versions of victim were distinguished: first, the victim reduced to a witness serving to deliver evidence in the public interest; second, the damaged victim being allowed to pursue civil law claims to restitution on a civil-law add on to criminal proceedings; third, the harmed victim conceptualised as an individual in need and deserving of sympathy and help; fourth, the wronged victim acknowledged as the individual whose rights are violated and who, therefore, is entitled to redress; fifth, the victim not only acknowledged as the person wronged but, consequently, also recognised as entitled to a role as part of the criminal proceedings. These versions can be viewed as stages in the progress of the victim of violent crime, from a radically marginalised position as a witness to the status of a party to the criminal proceedings. The reality of any criminal justice system is that it will be a composite of traits and elements that relate to different stages of the “ideal-type” evolutionary process. 27 The FRA report acknowledges this shift “disrupts the delicate mechanism of criminal proceedings” and, while it is not clear that any one State has achieved the profound and consistent reorganisation envisaged by the Directive, most criminal justice systems are moving along the continuum. 28 This shift involves moving away from the bipartite relationship between the State and the accused towards a tripartite relationship between the accused, the victim and society. 29 In this scheme, the victim is treated as a witness whose rights have been infringed and who is legitimately entitled to expect proceedings to be instituted and carried on in a thorough and effective matter affording to the victim a prominent role.
The rights-based model 30 also underpins the right of a victim of violence under Article 13 of the ECHR 31 to an effective remedy 32 in terms of an effective criminal justice response to the wrong. 33 “In human rights terms, the development moves from conceptualising victims’ rights as a status negativus towards perceiving them as a status positivus.” The role of the State shifts from a “patronising position” to a “duty bearer” 34 owing duties to individuals living under its jurisdiction as rights holders. The emphasis shifts from protecting the (harmed and vulnerable) victim from criminal proceedings conducted by state authorities towards asserting and defending the victim’s rights through these proceedings. 35 Instead of removing the victim from the proceedings, the goal is to have proceedings conducted in a manner that limits and controls the risk of secondary victimisation, 36 a goal which must always be reconciled with an adequate and effective exercise of the rights of the defence. 37
The FRA report points out that Article 47 of the Charter offers greater scope than Article 13 ECHR. 38 While the latter focuses on the right to an effective remedy, the former links the right to an effective remedy to the right to a fair trial. This broadens the scope of the inquiry beyond simply ensuring an effective remedy to the fairness of the trial itself thereby opening up a broader range of participation rights. Furthermore, while Article 13 of the ECHR limits the right to an effective remedy before a national authority, Article 47 guarantees the right to an effective remedy before a court. 39 Linking into these provisions is the Directive. It is broader than both Art 47 of the Charter and Article 13 ECHR. While these latter provisions grant procedural rights only to victims of serious human rights violations specifically mentioning “violence” or “crimes against the person,” the Directive grants rights to all victims of crimes.
The Directive, the Needs-Based and Rights-Based Models
The Directive combines elements of both the needs-based and the rights-based approaches. 40 The rights-based model underpins the following provisions: Article 1’s “objectives” describes that the purpose of the directive is “to ensure that victims of crime receive appropriate information, support and protection and are able to participate in criminal proceedings.” The rationale of this Article is participation. This is underlined in Recital 26 which specifies that, when providing information, “sufficient detail should be given to ensure that victims are treated in a respectful matter and to enable them to make informed decisions about their participation in proceedings.” Similarly, Article 4 (1) of the directive obliges Member States to ensure that victims are offered information “to enable them to access the rights set out in this [d]irective.” The Report argues that the term that best captures the objective of the directive is “recognition.” Article 1 states that “Member States shall ensure that victims are recognised and treated in a respectful […]manner.” This phrase relates to Recital 9 which provides that “[c]rime is a wrong against society as well as a violation of the individual rights of victims. As such, victims of crime should be recognised and treated in a respectful […]manner.” This, the Report considers, is the clearest expression of a rights-based victim concept. Variously, Recitals 16, 22 and 31 as well as Articles 6, 7 and 8 refer to criminal offences committed against or suffered by the victim which are all premised on a rights-based victim concept. Recital 17 interprets gender-based violent offences as “a form of discrimination and a violation of the fundamental freedoms of the victim.” Also, Article 25 (5) provides that training shall aim to enable practitioners “to recognise victims.” Both Recital 7 and Article 25 (2) also express in a particularly clear form a rights-based victim concept and a rights-based understanding of criminal justice.
However, elsewhere the directive resembles more a needs-based approach. Article 2 defines “victim” by reference to harm caused by a criminal offence. This definition includes family members. Further the directive premises rights to services on victims’ personal “needs.” (Articles 8, 9 (2) and Article 22)
This combination is perhaps not surprising given the practical requirement to ensure compatibility with more than one criminal justice system ranging from the civil law traditions of countries such as Germany, which has a system of joint prosecution (Nebenkläger), to Sweden which has a comparable system of joint prosecution 41 (Målsägandebiträde) but which has mixed inquisitorial-adversarial system; 42 to common law adversarial systems of the UK and Ireland in which the victim is not a party to the proceedings and where there are different levels of rights, with different functions some of which are enforceable while others are not. 43
Victim Participation Rights in the UK
The UK government’s Victims’ Charter was first published in 1990. 44 The Victims’ Charter was replaced with the Code of Practice for Victims of Crime (the Code), which came into effect in 2006. 45 The Code set out the minimum level of needs-based services that victims of crime should receive from criminal justice agencies and other organisations in England and Wales. It was updated in 2013 and again in 2015, primarily to reflect the Directive. The Court of Appeal in R v Killick 46 engaged with the Draft Directive to the extent that it held that the complainants were merely exercising their right to seek a review of the prosecutor’s decision not to prosecute. 47 That right, the court considered, is in essence the same as the right expressed in Article 10 of the Draft Directive which provides that “ [M]ember States shall ensure that victims have the right to have any decision not to prosecute reviewed.” 48 The CPS Right to Review Scheme 49 now gives effect to the principles laid down in R v Killick and in Article 11 of the Directive.
A Victims’ Strategy published in 2018 identified a number of specific changes the Government stated it intended to make to the Code and the revised code 50 sets out 12 (non-enforceable) rights of victims of crime. 51 Three categories of victims are entitled to enhanced rights under the Code including vulnerable or intimidated victims. 52
Reports by the Victims’ Commissioner for England and Wales and the Victims’ Commissioner for London criticise, at the operational level, the poor and inconsistent application and implementation of the Victims’ Code across criminal justice service providers 53 and, more fundamentally, they highlight the need for victim participation to be placed on an enforceable statutory footing rather than in non-enforceable codes of practice. In her 2018/2019 analysis on the use of Victim Personal Statements, 54 the Victims’ Commissioner for England and Wales reported that, for the sixth year running, “victims of crime are being deprived of the opportunity to make a Victim Personal Statement and make their voices heard in court,” with only one in seven victims (14%) stating that they were offered the chance by police to make a statement 55 while only 46% of victims felt their personal statement had been taken into account by the criminal justice system. The Independent Victims’ Commissioner for London in her March 2019 report found that many victims of crime still do not know about the Victims’ Code of Practice 56 and only 20% of online respondents whose crime was reported to the police were offered the opportunity to make a Victim Personal Statement. 57 Critical of the way in the Victims’ Code is applied and implemented, the London Victims’ Commissioner advocated for the creation of a Victims’ Law.
In a similar vein, the Victims Commissioner Report recommended that the Ministry of Justice should provide statutory recognition for the rights and role of victims in the criminal justice process together with the obligation on criminal justice agencies to uphold those rights. 58 This should include a set of enforceable minimum guarantees for victims in criminal proceedings 59 with enhanced procedural rights including the right to review decisions by the police and the CPS 60 and the right to be heard in any court or administrative proceedings relating to charge, sentencing or parole decisions involving the offender. Separately, there are recommendations 61 for independent legal representation for victims in response to requests for access to or disclosure of private or confidential information, communications or records. Recommendation 7 62 provides that when a decision to disclose is made including a victim’s previous sexual history, the victim should be informed of the material that will be disclosed and the reasons for the disclosure.
The 2012 Directive was implemented in Scotland by the Victims and Witnesses (Scotland) Act 2014. The courts considered the complainer’s right to effective participation under section 1(3) of the 2014 Act 63 in the case of RR v HMA and LV. 64 Restrictions on the admission of evidence in relation to sexual history or character are set out in s 274 of the Criminal Procedure (Scotland) Act 1995 and the exceptions to the restrictions are found in section 275. 65 The petitioner had only been told of the section 275 defence application some four months after it had been granted in part, when the Crown sought to precognosce her. The petitioner contended that she had a right to be heard at the Preliminary Hearing in terms of the Victims and Witnesses (Scotland) Act 2014 and under the underlying Directive and drew analogies with applications for recovery of medical and sensitive data in which the Scottish courts have held that a complainer is entitled to be represented before the court, WF v Scottish Ministers. 66 The court did not consider that effective participation required a right to independent legal representation in the context of the s. 275 application on the basis that
“[N]either the statutory provisions nor Article 8 carry with them a right for a complainer to be convened as a party. In the absence of statutory intervention, the system of criminal prosecution remains an adversarial one between the Crown and the accused. The complainer’s status is still that of a witness to the facts libelled.”67
Reasoning from the perspective of the complainer as a witness, on the peripheries of the trial, the court considered that it was sufficient for the complainer’s position to be ascertained and represented by the Crown. 68
Since this case the report of the Dorrian Review Group was published. It noted the reform proposals of the O′ Malley Report in Ireland to extend the right to independent legal representation back to the pre-trial stage and that the provision of publicly funded independent legal representation up to but not including the trial was recommended for Northern Ireland in Sir John Gillen’s Review. 69 The Review Group recommended 70 that publicly funded independent legal representation should be made available to complainers in respect of section 275 applications, 71 and appeals 72 as soon as possible, recognising that legislative change will be required to effect this.
The legislatures of the UK implemented the Directive in different ways giving effect to a range of non-enforceable and enforceable rights. The courts in England and Wales have upheld the procedural right to review the prosecutor’s decision not to prosecute while the Scottish courts recognised the substantive right to state-funded representation in applications for recovery of medical or sensitive data and the Victims Commissioner Report made a recommendation along similar lines. Surprisingly the Scottish courts did not recognise the right in the case of an application to question in relation to sexual history. The underlying conception was based on need rather than the right of the victim resulting in the complainer being viewed as merely a witness and not a party to the proceedings. The results of reviews in Scotland and Northern Ireland made a specific recommendation that the right to State-funded representation for claimants in applications to question in relation to sexual history at the pre-trial stage be placed on a proper statutory footing. While these results illustrate perhaps an uneven transposition of the Directive in the UK, 73 it does represent a beginning. What is less clear, however, is how victims’ rights will be developed into the future.
Brexit, Retained Law and the UK’s Unwritten Constitution
The EUWA 2018 section 1 repeals the European Communities Act 1972. 74 In terms of the substantive law, the Act’s main purpose is to preserve existing EU law as it applies to the UK on exit day 75 by converting it into domestic law. 76 These laws need to be assessed and then, as appropriate, repealed, revoked or retained, depending upon their relevance and significance. The central tenet of the Act is that (for the most part) rights and obligations previously established by EU law should continue to apply in the UK following exit day. The principle of legal certainty underpins the entire policy of the 2018 Act. However, the preservation of EU law is not without its difficulties given the various different ways in which EU law by means of the ECA has taken effect in domestic law.
Tierney and Elliot predict 77 that the real legacy of the Act falls to be evaluated in terms that are fundamentally constitutional in nature. The UK’s commitment to EU law operated as a benchmark against which the compatibility of domestic legislation fell to be evaluated 78 while the UK was a Member State of the EU. Perhaps not surprisingly, the 2018 Act, 79 on the one hand, removes Charter rights from domestic law on exit day 80 but, surprisingly, on the other, it also provides that this “does not affect the retention in domestic law … of any fundamental rights or principles which exist irrespective of the Charter.” 81 Paradoxically the principle of supremacy, at some level, will continue to play a role. The Act sets out to disapply the principle of the supremacy of EU law 82 but it immediately reinstates it by providing for “the principle to continue to apply so far as relevant to the interpretation, disapplication or quashing of any enactment or rule of law passed or made before exit day.” 83 It is very unclear how the doctrine of supremacy of retained EU law is compatible with the doctrine of parliamentary sovereignty as recognised in section 5(1) of the 2018 Act. The House of Lords Constitution Committee offered an alternative formulation which would allow the Act to maintain legal certainty in relation to transposed EU law which until exit or IP day was accorded primacy in domestic law, while doing so in a way consistent with the doctrine of Parliament’s legislative supremacy. 84 The Act, however, does not adopt this approach but provides 85 that the principle of the supremacy of EU law does apply to a modification made post-exit of any enactment or rule of law passed or made pre-exit if the application of the principle is consistent with the intention of the modification. 86 While this principle may no longer be entirely free standing, provision exists for it to continue to apply to pre exit law and any modifications made post exit so far as consistent with the intention of the modification. As Tierney and Elliot summarise, “[T]he paradoxical consequence is that while the Act is intended to effect a break with the European legal order by reconceptualising EU law as domestic law, the supremacy principle — a central feature of that legal order’s architecture — is at the heart of the Act.” 87
Despite the ongoing role of the principle of supremacy of EU law, domestic courts cannot refer any matter to the CJEU on or after exit day and the general effect of section 6 is that domestic courts, while not bound by post-exit CJEU jurisprudence, can in certain circumstances have regard to it. 88 Questions about the “validity, meaning or effect” of retained EU law must be decided “in accordance with any retained case law and any retained general principles of EU law.” 89 In this way the Act provides, between sections 5 and 6 for a complex legacy situation.
The principle of supremacy of EU law survives under s5 (3) for certain purposes. The courts need to give effect to this. In doing so, while having no capacity to refer cases to the CJEU, they do need to have regard to EU law including case law and ‘retained general principles of EU law’. In so doing, section 5(5) offers a window to continue to apply fundamental rights or principles which exist irrespective of the Charter through the concept of general principles in relation to pre-exit law. Apart from its potential relevance to supremacy, it arguably also remains relevant as a source of retained EU law in indirect ways as informing “any fundamental rights or principles which exist irrespective of the Charter.”
Controversially, section 26(1) of the EU (Withdrawal Agreement) Act2020 90 allows a Minister to specify, in regulations, 91 the circumstances in which any court or tribunal (not just one of the two domestic courts of last resort) is not to be bound by retained EU caselaw. 92 This measure further complicates the already very complex legal picture contained in ss 5 and 6 of the 2018 Act. It empowers the executive branch of government to exercise what is essentially a judicial function, allowing ministers by way or regulations to provide “the test which a relevant court or relevant tribunal must apply in deciding whether to depart from any retained EU case law” 93 But in the event that this power is not exercised, the tests remain those set out in sections 5 and 6 of the 2018 Act.
The right to state-funded independent legal representation of a victim in the context of sexual history has not yet been fully vindicated in any of the UK jurisdictions. 94 While there has been some development as a result of the Directive, the complete shape of these measures is as yet unrefined. Sections 2–4 deal with what is meant by “retained law.”95 Section 3 converts direct EU legislation into retained direct EU legislation but it specifically excludes EU Directives. Instead section 2 makes provision for “EU-derived domestic legislation.” 96 Further, in a case where only part of a Directive is implemented, the potential exists for an overlap between sections 2 and 4 which latter provision saves the unimplemented aspects of a Directive. 97 The implementing measures in the UK, the 2018 Act in Scotland, and the unenforceable rights in the Charters and Codes in England and Wales and in Northern Ireland, are converted by s 2 to retained law and any unimplemented provisions in the Directive are converted through section 4.
The possibilities for court-led development of these converted victims’ rights remains unclear. It involves a complex interaction of ‘fundamental rights or principles’ which survive the clear provision that the Charter of Fundamental Rights is not part of domestic law, the limited application of the principle of EU law supremacy after Brexit, and the overwhelming principle of Parliament’s legislative supremacy or sovereignty (restated in s.38 of the 2020 Act). Into this mix come fundamental common law rights, the relationship of which to EU law was already an issue of some difficulty before Brexit. 98 This ‘terra incognita’ precipitates questions about the “fundamentality” of rights at common law 99 in the context of a post-Brexit legal vacuum and the wider context of the UK’s uncodified constitutional order wherein Parliament remains legislatively supreme. Elliot argues that the operational fundamentality of most common law rights is achieved by means of judicial review and statutory interpretation and is the product of a process of constitutional triangulation that implicates the three key principles: parliamentary sovereignty, the rule of law and the separation of powers. 100 Viewed through this lens, rights can be accorded a meaningful, if not an unqualified, form of fundamentality. 101
While there has been some obiter judicial support in the UK for treating common law rights as enjoying a hard form of fundamentality which could potentially, in certain circumstances, lead to a striking down of incompatible primary legislation, 102 the reality is that no court has ever attempted to do so in any case. The supremacy of Parliament is more often firmly restated. 103 Those who advance the very possibility of unconstitutional legislation acknowledge that the very concept is limited to highly exceptional, relatively extreme, and thus unlikely, circumstances.
By contrast, rights protection under a written constitution tends to be accompanied by an express empowerment of judges to invalidate rights-incompatible legislation. 104 While invalidation may well not be commonplace, neither is it wholly exceptional or theoretical. It uncontroversially lies within the judicial domain, and does not raise the legitimacy concerns that such intervention would inevitably trigger in the UK. Despite the apparent difference in levels of resilience between common law and constitutional rights, Elliot argues that “great caution” should be exercised before dismissing the common law’s capacity to invest rights with meaningfully fundamental status merely because it does not conceptualise them, whether theoretically or operationally, in paradigmatically hard, rights-as-absolute-trumps, terms. 105 In fact, in the final analysis, he concludes that rights fundamentality in the UK is a question of degree. 106
Making this case, to begin, mere theoretical fundamentality plays an important role in that its very existence underlines the risk of a constitutional crisis in the event of executive overreach. 107 Moreover, there are degrees of hard and soft fundamentality. 108 Illustrating the importance of soft fundamentality, Lord Phillips explained statutory provisions that potentially conflict with common law constitutional rights are sometimes resolved interpretively rather than confrontationally by assigning to the offending provision ‘an interpretation … that it couldn’t [linguistically] bear’, so as to throw ‘the gauntlet back to Parliament.’ 109 And the depth and breadth of common law rights are different from constitutional rights. 110 While not all common law rights achieve the status of hard-fundamentality, some do and the hardest form of fundamentality is reserved to a privileged subset of common law right such as access to justice. 111
Elliot 112 then considers that the mechanisms which invest common law rights with operational fundamentality are the methodologies of judicial review and statutory interpretation. The role of courts as reviewers of the legality of administrative action and as interpreters of legislation is key and courts, in turn, are constrained by the twin structural features of the constitutional order: the separation of powers and parliamentary sovereignty. Beginning with judicial review, courts adherence to the rationality test prior to the Human Rights Act 113 offered a significantly less demanding standard of review than proportionality and produced demonstrably lower levels of rights protection. 114 The perceived constitutional basis for curial resistance to proportionality review is based on the view that it would “involve a review of the merits of the decision” and would therefore be incompatible with the appeal/review distinction. 115 Accelerated by the passing of the HRA, it is now acknowledged that the proportionality test can and does apply when rights and other highly-regarded values are in play at common law, and that it can do so without doing violence to the constitutional principle of the separation of powers. 116 This change is explicable not by reference to any basic constitutional reordering but rather by reference to evolving perceptions of how the unwritten constitutional order is to be understood. The incorporation of the principle of proportionality at common law “…[e]ven in areas of law lying beyond the domains of EU and international human rights law” has increased “the scope of rationality review.” 117 As a consequence, the doctrine of the separation of powers is more fluid allowing for a greater sensitivity to the judicial obligations imposed by the rule of law to embrace fundamental common law rights. 118 On this basis, contemporary understandings of the judicial role are the product of a “triangulation process” 119 that is sensitive not only to the limitations implied by the separation of powers but to the rule of law.
While the proportionality test is an important means by which rights infringements can be judicially scrutinised at common law with a degree of rigour that is consonant with characterising such rights as fundamental in the first place, it is insufficient on its own. Interpretive methodology also plays an axiomatic part. 120 Elliot compares the position at common law with that which prevails under the HRA, as an example of a textual fundamental rights regime, in order to test how far courts are able and willing to go in rendering rights-consistent interpretations at common law and under the HRA 121 thereby assessing the degree of fundamentality with which rights can be invested at common law. While both the common law and the HRA disclose bold interpretative approaches yielding rights-consistent interpretation of relevant provisions, 122 there are key differences. First, whether a comparable level of protection will actually be offered at common law and under statute may depend on the common law right that is in play. Equally, a court may be unwilling to go as far in terms of interpretive protection as it would if the interpretive obligation under the HRA were engaged or there may be an elite subset of common law rights that attract stronger protection than the HRA can afford. The second difference relates to the legal foundations upon which the HRA and the common law rest. The former, being founded in mere statute law, appear vulnerable to other legislation, but its international law roots in fact imply a greater degree of resilience. Meanwhile, although common law rights may appear to be subject to legislative displacement, because of their ambiguous status, which on one view renders them immune to legislative interference, it is simplistic to assume a complete lack of resilience. The third difference relates to rights’ “existential resilience.” 123 By contrast with the existential resilience of the HRA regime, which may be considered relatively limited, curtailed as it is by parliament’s willingness not to repeal it, is the existential resilience of the common law which is almost certainly very considerably greater, given that it is an inherent aspect of the legal system.
Without free-standing higher-level constitutional norms, domestic or European, victims’ rights now fall into the category of retained law in the UK and, like all statute law, it will be vulnerable to other legislation. Only a small core of common law rights enjoy the resilience of hard-fundamentality in the UK. More typically, common law rights are embued with an operational fundamentality by means of proportionality and statutory interpretation and this is a product of the process of constitutional triangulation involving the principles of parliamentary sovereignty, the rule of law and the separation of powers. But the degree of operational fundamentality afforded to common law rights is merely a function of changing perceptions of how the three principles in the triangulation process relate to and shape one another as opposed to any more radical alteration to the constitution itself.
Conclusion
The rights-based approach to protecting victims recognises a violent crime as a human rights violation that entitles the victim to participate in the criminal justice system and for criminal proceedings to function as a redress mechanism for the victim. While the directive does not require that victims of violent crime be parties to the criminal proceedings, the Resolution of the European Parliament “[a]sks the Commission and the Council to further develop the rights of victims so that the EU can play a leading role in the protection of victims’ rights.” 124 It may be impossible to settle on an homogenous approach to victim participation between different jurisdictions due to their diverging legal traditions and backgrounds 125 but in terms of one substantive participation right, the direction of travel at EU level is converging on a narrowly tailored limited right to independent legal representation for victims as witnesses in the context of defence applications to question in relation to sexual history. By contrast with the Irish approach which extended the right to the pre-trial stage, the right has not been fully vindicated in any of the jurisdictions in the UK although calls have been made in all three jurisdictions for the right to independent legal representation to be placed on a statutory footing. Looking further into the distance, other rights which have generated some traction in England and Wales and Scotland 126 are rights in the event of a decision not to prosecute under Article 11 of the Directive.
Directive-derived rights now form part of retained law. While an ongoing limited role for the supremacy of EU law is envisaged and, any fundamental rights or principles which exist irrespective of the Charter remain relevant to arguably pre- and post-exit law at a higher and lower normative level. But, longer term, the loss of benchmarking from EU law and the Court of Justice combined with the lack of a written constitution mean that when developing these statutory rights, the UK will be reliant on the weaker operational fundamentality of common law rights. For now, in terms of EU law, the tide has receded and the river beds are dry. The future of victim participation rights in the UK lies in terra incognita.
* I would like to thank Niamh Nic Shuibhne and Professor Stephen Tierney for their helpful comments on earlier drafts.
Footnotes
Declaration of conflicting interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.
