sou · H4B360 · 2016-10-05 00:00:00 — One example is the injured party counsel, a lawyer appointed and paid by for the state to safeguard the rights of the crime victim (injured party) in investigations and legal pro- ceedings after crimes. To further ensure that the injured party is given good support during the legal process we now propose three amendments to the Injured Party Counsel Act. The examination of whether to appoint an injured party counsel must take place immediately after a preliminary investigation has been opened or resumed in cases concerning sexual offences. Stricter requirements should be introduced concerning the expertise and suitability of a person appointed as an injured party counsel. The provision on substitution, i.e. the right of a representative to appoint someone else to replace them when they have a temporary impediment, should be amended to state that an injured party counsel may not appoint someone else to replace them without having the permission of the court. There is already a strong presumption in favour of appointing an injured party counsel at an early stage of a criminal investigation to provide support and assistance for the person who has been a victim of a sexual offence. Moreover, in several examinations an early appointment of an injured party counsel has proved to be a success factor in investigations of sexual offences. Despite this, investigations have repeatedly shown that injured party counsel are not appointed at an early state often enough during criminal inves- tigations. In order be able to improve the quality of criminal investiga- tions, it should be made clear that it is virtually compulsory to already appoint an injured party counsel in the initial stage of a criminal investigation. To ensure this, we propose amending the Injured Party Counsel Act to state that the examination of the appointment of an injured party counsel must take place immediately after a preliminary investigation has been opened or resumed. we are proposing a directive aimed at the point in time when con- sideration is to be given to appointing an injured party counsel. The requirement of an immediate examination means that the matter ought to come under consideration by the court at most a day or a couple of days after a decision has been taken to open or resume a preliminary investigation into sexual offences. But there should still be some scope for the leader of the pre- liminary investigation not to submit a request for an injured party counsel to the court for examination at this early stage. The exception should, however, be applied restrictively, and in doubtful cases the prosecutor should submit a request for an injured party counsel to the court along with the possible reasons to the contrary so that the court is able to examine the matter. We also think that stricter requirements should be set regarding the expertise and suitability of injured party counsel. The law should therefore state that only a person who is particularly suitable for the assignment in question on account of their knowledge and experience and of their personal qualities may be appointed. This proposal is made against the background that assignments as in- jured party counsel are often given to relatively inexperienced lawyers at law firms with or without members of the . For the injured party counsel to be able to provide support for the injured party, and also for the counsel to have an equal standing with the prosecutor and the defence counsel, there is, in our view, reason to set stricter requirements concerning the experience and suitability of the injured party counsel in particularly sensitive cases such as in investigations of sexual offences and offences in close relationship, for instance. It should be specifically pointed out that it is the court appointing the injured party counsel that has a special responsibility to see that the counsel appointed not only meets the general qualifications for the appointment but is also suitable in the particular case. Finally, we propose restricting the right for an injured party counsel to appoint another counsel to replace them through “sub- stitution”. An appointment as an injured party counsel is – in the same way as an appointment as the public defence counsel of a suspect – a personal appointment. In order for the injured party counsel to be able to provide support for the injured party as in- tended, that person must have confidence in their counsel. Under the present legislation an injured party counsel may appoint another representative to replace them as long as this does not result in a noteworthy increase in the costs in the case. But if the substitution would result in such an increase in costs, the permission of the court is required. For public defence counsel, in contrast, the permission of the court is always required for sub- stitution. During the course of the investigation we have become aware that it is common for appointed injured party counsel to appoint another lawyer to replace them, and this has been experienced as very negative by the injured parties affected. The possibility of substitution should be retained, but should be restricted to bring it into line with what applies to public defence counsel. Examination of the handling of sexual offences by the judicial system The of bringing legal proceedings vary between different kinds of offences. Sexual offences belong to the type of offences that can be particularly difficult to investigate. In many cases the offences are committed out of the public view. This means that the evidence is often restricted to the information given by the crime victim and the suspect. At the same time, the same requirements concerning legal security and evidence that apply to other types of offence are obviously applicable. For a prosecutor to be able to bring a prosecution they must be able, on good grounds, to expect a conviction. As a rule, to obtain a conviction the information given by the injured party must be supported by other evidence. This is the reason why it is of great importance to investigate sexual offences promptly and with high quality. It is, of course also of great importance from the perspective of the suspect that the investigation is conducted professionally and with high quality. All the crimes reported cannot be cleared up. This applies irrespec- tive of whether they are sexual offences or other offences. There are a number of reasons for this. Some reports are hard to investigate, for example because the report is made some time after the actual incident or because the perpetrator is not known. A preliminary investigation does not need to be opened if it is apparent that the crime cannot be investigated. In addition, some cases taken up by the as, for example, reports of rape can later turn out to be another offence, for example sexual coercion or sexual molestation. It can, of course, also be the case that what has been reported is not an offence. So expectations that all reports of sexual offences will lead to convictions are not realistic. But what everyone can expect is that the judicial system will always do its utmost to clear up reported offences. It is therefore important that the parties in the judicial system act with a high degree of professionalism; that they are offered access to and take part in training necessary to perform their tasks; and that there are enough resources and methodological support. A further crucial factor in achieving a satisfactory clear-up rate is that the legislator makes sure that the officials have the legal regulations needed. The main authorities in the judicial system that handle matters of sexual offences are the general courts, the Swedish Prosecution Authority, the Swedish Authority and, to some extent, . We have therefore limited our examination to these authorities. Health care services have an important function regarding the preservation of evidence in sexual offences. We have therefore chosen to examine that particular part of their role. Our examination has been carried out by representatives of the Committee meeting or consulting in some other way with repre- sentatives of these various authorities and discussing, in that setting, how they work on sexual offences and what problems the authority itself has identified (where any have been identified). In addition, a large number of reports and analyses, training programmes and other material have been reviewed and analysed. This examination has resulted in the conclusions and proposals for action presented in this report. General account of our examination In the main, the work of the health care services in assisting the law enforcement authorities to preserve evidence in matters concerning sexual offences functions satisfactorily. There are a number of health care facilities in the country that are aimed solely and directly at victims of sexual offences. These facilities are particularly well-equipped to provide good care of crime victims in combination with the careful execution of preser- vation of evidence for use in criminal investigations. There are also good possibilities of positive cooperation with the local , which is probably of benefit to criminal investigations. However, it is not possible – and, in our view, not necessary either – to have special clinics for victims of sexual offences in the whole of the country. For natural reasons this would involve a relatively small number of such clinics, which would mean that many crime victims would have to great distances to be examined. Arrangements of that kind seem to be less suitable considering that the victim is often in a phase of acute shock. Instead, it is important to make sure that good care and preservation of evidence can be provided at existing emergency hospitals and health care facilities around the country. In our examination we have also found that the reception of victims of sexual offences by health care services generally main- tains a satisfactory level across the country. If the victim seeks emergency care, there are specialist gynaecologists at hospital emergency departments even in out-of-hours care. The evidence preservation kit produced by on Men’s Violence against Women ensures that reliable and complete preservation of evidence can be carried out at the victim’s first contact with heath care, irrespective of where in the country, on what day or at what time that takes place. Since the guide that accompanies the evidence preservation kit also contains support about how to look after and treat the crime victim, we are also of the view that there are good possibilities of maintaining an even and satisfactory standard in the treatment of these victims across the country. There are certain problems regarding the handling of samples taken in evidence preservation. Some of these deficiencies are attributable to the work of the Swedish Authority, for example when the release of samples taken in health care is not requested. It has also emerged that for space reasons some clinics do not save samples for two years as recommended by on Men’s Violence against Women. The reason why the recommended period is so long is that many crime victims choose not to make a report to the right after the incident. If the samples have been thrown out by the time when the report is made, the possi- bilities of carrying out a crime investigation are much poorer. We therefore propose commissioning to review whether it is suitable to issue regulations requiring health care services to save samples from the evidence preservation kits for two years. An extensive reform of the handling of legal certificates [i.e. certificates in criminal matters] was carried out in 2006. The back- ground to the reform, which gave the main responsibility for issuing legal certificates, was the fact that these certificates had been of varying quality. During our examination quite a number of comments have been made about the present system for drawing up and obtaining legal certificates. Some of these comments relate to who is in an appropriate position to issue legal certificates, especially in matters concerning sexual offences. Other comments concern the question of whether enough legal certificates are obtained and whether this may, in that case, be related to the fact that a charge has to be paid for the certificates, at least when they are obtained from . The reform implemented in 2006 has not been evaluated. We have been unable to carry out a deeper review of the legal certificate reform within the framework of our remit. We also take the view that it would be inappropriate to carry out such a review without the authority responsible for the certificates, i.e. of Forensic Medicine, being represented. We therefore propose commissioning to con- duct a review of the legal certificate reform in consultation with other authorities that have knowledge and experience of legal certificates. General account of our examination The examination we have carried out shows that there are problems in the handling of matters concerning sexual offences by the Swedish Authority. Several of the problems have already been identified by the Authority, which has also adopted certain measures to rectify the problems. In the Swedish Authority it is essential to set priorities between different matters to ensure that existing resources are used in the best possible way. But in the case of investigations into sexual offences such priorities often result in these investigations having to stand aside for investigations of other offences. At present just under 15 per cent of rapes reported to the lead to a prosecutor bringing a prosecution for an offence. The handling of these matters in the Swedish Authority accounts for the great bulk of this dropout. At the same time, relevant knowledge and methods are available regarding how to work on investigations of sexual offences in the Authority to make them succeed. But there are great differences in terms of how well these methods have been implemented in the organisation. There are good examples of units that do successful work, but also quite a number of examples of the opposite. As stated initially, measures have been taken in the Swedish Authority to rectify the deficiencies in the handling of sexual offences identified by the Authority itself. One such measure is the decision to set up a development centre whose tasks include work- ing on developing methods for investigating sexual offences. How- ever, it is currently too early to say anything about what results may follow from the decisions made or measures taken in the Swedish Authority. So the Swedish Authority needs to continue working on the problems identified. It is also important that the Authority ensures that enough resources are allocated to investigations of sexual offences and that these offences are given a clearly defined place in its organisation. If this is not done, there is a clear risk that investigations of sexual offences will be given lower priority than investigations of other offences. Finally, it is also important that the Swedish Authority continues to work actively to im- prove the attitudes still found regarding sexual crime. To ensure that the work in the Authority in these areas moves forward, the Swedish Authority should be instructed to provide regular reports on the measures taken. It is also important to ensure continuously that the working methods adopted reach out to the whole of the organisation. The results of these measures should also be monitored and followed up in an appropriate way. Preliminary investigation leaders in investigations of sexual offences When a sexual offence is reported, it is, as a rule, important to take certain investigative measures promptly. This applies, for example, to the examination of the crime scene and the preservation of evidence on the injured party. It is also important to appoint an injured party counsel at an early stage. Despite this, it has turned out that relevant investigative measures are not always taken at an early stage. It has, for example, emerged that preliminary investigation leaders in the often make their own early appraisals of evidence in investigations of sexual offences. If they then make the assessment that the matter will not lead to a prosecution or a conviction, it is often the case that no further investigative measures are taken in the matter. In our view, the quality of preliminary investigations in general would improve if, as a general rule, a prosecutor was the preliminary investigation leader of all investigations of sexual offences. Against this background we propose commissioning the Swedish Authority to consider, in consultation with the Swedish Prosecution Authority, whether the Authority’s regulations and general advice on the leadership of preliminary investigations in criminal matters should be amended so that, as a general rule, a prosecutor takes over the leadership of the preliminary investigation when it concerns sexual offences. The internal organisation of the Swedish Authority Recently it has become increasingly common for sexual offences to take place on the internet. There have not been that many cases that have been investigated and led to a prosecution, but several of them have been very extensive and therefore very resource- consuming. It is also highly likely that the number of offences of this type will increase in the future. It has been decided in the new organisation that all sexual offences, apart from child pornography offences and procuring, will be investigated as local matters. So, this also applies to abuse that takes place on the internet. The arrangements put in place appear to be less than well-considered. A better arrangement would be to handle these matters at regional level in the Authority. The reason for doing so is that special problems are associated with offences that take place on the internet. One such problem is the changes in conditions on the internet. If these investi- gations were centralised, this would, for instance, have the advantage that officers working with this type of offences would be better able to keep up to date with the developments concerning, for example, new applications and chat sites. Offences that take place on the internet do not have any geographical base in either and the injured parties are often to be found at very different places in, and probably also outside, the country. The Swedish Authority is currently considering working on the basis of the kind of organisational change we would like to see by introducing both one national and several regional centres for IT offences, which would then handle sexual offences that take place on the internet. A final decision on such a change had not been taken when this report went to press. We therefore propose commissioning the Swedish Authority to make regular reports on the progress of work to ensure that the Authority has the best organisational arrangements in place to handle investiga- tions of sexual offences in which the internet is the crime scene. During our examination we have been informed that investigators at the Swedish Authority often run into problems during crime investigations regarding crimes taking place on the internet. Some of these problems have to do with the fact that the legislation has still to be updated in the light of modern technology. This applies, for example, to the search provisions and the provisions that permit the seizure of information. There are also a number of problems linked to the possibility of tracing a suspected perpe- trator by means of their “IP number”. We have had neither the remit nor the time to take on these issues as part of the remit the Committee has had. However, in spring the Government appointed two new inquiries in this area. Some of the tools we consider that the law enforcement authorities currently lack may be proposed by the inquiries appointed. However, the problems linked to the possibility of tracing a suspected perpe- trator by means of an IP number have still to be addressed. General account of our examination The Swedish Prosecution Authority has a sufficiently well-functioning organisation for handling matters regarding sexual offences. For instance, through its special development centres the Swedish Prosecution Authority has a well-developed organisation for pro- ducing methodological support and conducting legal development. The Authority’s in is responsible for the legal monitoring and follow-up of questions regarding sexual offences. It also supervises the Authority’s operational activities. These operational activities function well since individual prose- cutors handling sexual offences work in specialised teams. The prosecutors in the teams are given special training and older and more experienced colleagues provide support for younger prosecutors on the team. Special deliberations on the investigation of sexual offences where the internet is the crime scene The Swedish Authority is already considering an organisational change regarding the handling of sexual offences that take place on the internet. Similarly, the Swedish Prosecution Authority should analyse how its organisation it comes to handling these offences. There may be reason to consider whether these investigations should also be handled in a more concerted way in the Swedish Prosecution Authority. One reason is that criminal investigations of sexual offences that take place on the internet are a relatively new case type and that it is therefore essential that the prosecutor responsible not only has special knowledge of sexual offences but is also familiar with IT law and the problems caused by the internet being the crime scene. Moreover, this type of matter tends to grow into very extensive investigations, many parts of which require fast decisions about investigative measures. At present the prosecutor responsible tends to retain their duties at their public prosecution office while the extensive investigation of sexual offences on the internet is in progress. We therefore propose commissioning the Swedish Prosecution Authority to consider whether there is a need of a better organisation for investigations of sexual offences that take place with the internet as the crime scene. General account of our examination The Courts of has a sufficiently well-functioning organisation for handling matters regarding sexual offences. The long-term work done on treatment issues in the Courts of has led to several improvements for people who have to appear as a party or witness in, for example, cases regarding sexual offences. The climate for hearings in these trials has improved, and this means that people being examined are better able to provide their information. This then leads to the courts having a better basis for their decisions. There is no specific specialisation for judges, which means that, as a rule, all judges in general courts handle all types of cases and matters heard there. But individual judges are offered a training programme at (part of the ) and are also able to take part in training offered by external companies as well. The training programmes of contain both training dealing explicitly with sexual offences and training of importance for strengthening the individual judge in their role as the presiding judge. Work on treatment issues should continue Most people who visit a court as a defendant, injured party or witness have never been in contact with a court before, or may only have had such contact on a few occasions. Irrespective of what role a particular person has in the proceedings, many find the visit unpleasant. Feelings of uncertainty, stress and nervousness are common before an appearance in court.