Should victims have a say in criminal proceedings?

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Imagine a set of circumstances in which a young woman—brunette, comely, latterly pregnant—is walking down a dark alleyway; her husband is engaged, at home, in decorating the nursery and anticipates the return of his wife. The young woman reaches about halfway down the thoroughfare and is accosted by two hooded men. The men barricade the passage. The men proceed to subdue and rape her—the brunette, comely, latterly pregnant young woman. When the case comes to trial, the young woman is likely to appear as a principal witness for the prosecution and tender her testimony—but the content and scope of her input is invariably restricted by the design of tactful questioning by counsel; and the victim can exert no substantive, personal influence on the sentence passed.[1] The question at issue in this discussion is whether victims should be afforded greater participatory rights at trial, and particularly so in the sentencing of their offenders. It is submitted this proposition is met with two principal objections: victim participation (i) presents challenges for the impartiality of the court, and (ii) is difficult to reconcile with English adversarial tradition. These related points will be considered in turn, and a potential, existing solution underscored.

 

Impartiality of court proceedings

 

That victims should enjoy a right to participate in the sentencing procedure appeals, inter alia, to a moral argument,[2] and does so, it is submitted, successfully. It may be argued that if the victim is both the living testament to, and the recipient of the harm of the defendant’s injustice, is it not morally wrong to reduce their role merely to extrinsic participant, of no greater significance than any other witness? It seems a logical assumption that ‘crime has a human face, and that face deserves standing and a say in the matter’.[3] It has been argued elsewhere that, developing Aristotelian logic, whether a harm actually constitutes a punishable wrong to a recipient can be influenced by that recipient’s own conduct relative to that harm, viz. his or her consent to the harm.[5] In this connexion, it might appear only natural to allow for victim input: if the victim has full input in whether the ‘harm’ constitutes a ‘wrong’ per se, the victim should be allowed input post factum—that is, having influenced the matter of the defendant’s liability, there should be scope for influence upon the sentence passed to account for that liability. Such an unbroken series of inputs by the victim might moreover promote better proportionality of sentencing: their victimisation uniquely enables an appreciation of the actual effects of the crime, which the defendant’s sentence might then properly reflect.[6] However, it is suggested that input of this nature may be liable to prejudice the impartiality of court proceedings, to which every defendant enjoys an essential human right.[7] Decision-makers, like the trial judge, ‘must be independent of anybody or anything which might lead them to decide issues coming before them [including sentencing, which demands no less objectivity and certainty[8]] on anything other than the legal and factual merits of the case …’ at issue.[9] Equality of legal treatment under the rule of law thus demands that ‘the power exercised by imposing obligations on offenders in response to their offending ought, in principle, to be exercised consistently as between citizens, according to settled standards[10]—principle and transparency.[11] Under a participatory rights model, the relevant law and the material facts will conceivably admit of a third factor: emotion—it would be paradoxical to expect a victim to be disinterested and dispassionate.[12] Furthermore, and indeed contrary to the argument indicated above, consistent and measurable ‘retributive-proportionality’ of sentencing decisions may in fact be prejudiced by reference to information that is not ‘objective, verifiable and subject to scrutiny’;[13] and which inevitably varies between cases, some victims offering forgiveness, others vindictiveness.[14] It follows that in sum, as Hellerstein contends, an individual victim’s opinion on the ‘correct’ sentence must be ‘irrelevant to any legitimate sentencing factor, lacks probative value in a system of public prosecution, and is likely to be highly prejudicial’.[15] In this vein, the Court of Appeal has held that inviting the mutually variable and inconsistent inputs of victims, such as those just described, risks cases that are substantively similar being disposed of differently—conceivably, two different sentences for the same ‘wrong’: victims should not be allowed input of the type mooted ‘otherwise cases with identical features would be dealt with in widely different ways, leading to improper and unfair disparity […]’.[16] Under a participatory model the success of outcomes becomes measurable chiefly by reference to the satisfaction of the individual victim; not by a comparison of a contemplated outcome with those of like cases.[17] Finally, whilst the right to participate may be personally vindicatory or cathartic for the victim,[18] it must not be neglected that this psychological ‘gain’ for the victim may entail the erosion of the defendant’s rights. As argued above, his Article 6 Convention rights are at stake; and the mollification of a particularly vindictive victim may result in further curtailment of the defendant’s freedoms that a weightier custodial sentence entails.

 

Adversarial versus restorative justice

 

In considering the impact of victim participatory rights on the adversarial traditions of English court procedure, it is necessary first to consider what is the purpose of victim participation; and specifically, what model of criminal justice it seeks to promote. As Edna Erez and Julian Roberts submit, victim participation and concepts of restorative justice are ‘related initiatives with overlapping interests’.[19] A criminal justice system modelled on such a concept serves ‘a process where all stakeholders affected by an injustice have an opportunity to discuss how they have been affected by the injustice and to decide what should be done to repair the harm’.[20] The approach, therefore, is dialogic and the aim is reparative, such that victim input into the discourse, as a principal stakeholder in the defendant’s act, is essential.[21] It is patent, therefore, that victim participatory rights, whose function is to promote a form of restitutive mediation between victim, defendant and other stakeholders, is prima facie irreconcilable with a ‘dichotomous’, adversarial criminal justice model, which is geared towards the protection of the public interest of an official admonishment of unacceptable behaviour, rather than the protection of the interests of private parties per se.[22] In particular, ‘sentencing is a question of public interest which should not be influenced by the desires of the particular victim’.[23] Doak may be correct to observe an overlap in both criminal and civil liability—the latter expressly vindicating the interests of the claimant—in terms of their shared concepts of ‘fault’, and thus a potential overlap of public and private interests in a single transgression;[24] but there remains an important difference of priority between the two spheres: in tort, fault frequently and consciously gives way to claimant-oriented goals such as compensation,[25] whereas in crime, fault figures are the sole criterion—offenders ‘should be punished because … of the wrongs they have culpably done’.[26] Any proactive participation by victims in criminal justice would thus require a fundamental remodelling along, perhaps, continental inquisitorial lines, which model eschews the two-party ‘contest’ on the question of the defendant’s fault and thus may allow for broader participation as part of the judicially-controlled inquisition.[27] Moreover, as considered above, victim participation may in fact be equally capable of inviting a result inconsistent with the aims of reparation and forgiveness: a more punitive sentence, and a vindictive, rather than conciliatory ambition in connection with the most onerous acts; and such an ambition, contrary to the view of some commentators,[28] it is submitted is unlikely to be attenuated, at least consistently, simply by an earnest request for forgiveness. It may be too simplistic, therefore, to speak in absolute terms of either ‘retributive’ or ‘restorative’ justice as fully explaining participatory rights; victim participation, in practice, may frustrate any attempt to achieve either of these norms outright, and result in an arbitrary and irregular variance between the two (depending on the participating victim). By contrast, the received model of criminal justice, firmly premised on retribution, does not risk this bipolarity.

 

Conclusion

 

In view of these twofold objections to substantive victim participation, the solution may already be present in English criminal procedural law: the Victim Personal Statement (VPS), whereby a victim is afforded ‘a formal opportunity to say how a crime has affected them’,[29] which the court is then empowered to consider, in determining the sentence of the defendant, ‘as far as the court considers it appropriate’.[30] Crucially, the VPS provides for victim input at the material sentencing stage, but in a manner that does not encounter, to the same problematical extent, the barriers discussed above: in particular, the judge unequivocally remains the impartial decision-maker, everything else being equal—the court ‘should pay no attention’ to the opinions of the victim as to the sentence to be passed.[31] The court will moreover correctly reject as inadmissible any personal statement whose content is unsupported by some evidence.[32] However, studies indicate that this procedural right is underutilised,[33] and even when utilised the significance of the victim’s experience is limited to that of a competing factor to be considered when determining sentence, on a discretionary basis, by the trial judge. Perhaps ironically, rather than improve a participating victim’s satisfaction, the VPS may produce disaffection where any expectations they engender—that a sentence will be influenced thereby—are ‘often’[34] frustrated.[35] On balance, whilst the VPS may presently represent the best theoretical solution to the tension between decision-making impartiality and victim participation and empowerment, the question remains as to what meaningful advancement on the status quo, as described in the introduction, this opportunity constitutes for victims.

 

[1] Jonathan Doak, ‘Victims’ Rights in Criminal Trials: Prospects for Participation’ (2005) 32(2) Journal of Law and Society 294, 297-8, 307.

[2] Edna Erez and Julian Roberts, ‘Victim participation in the criminal justice system’ In R. C. Davis, A. Lurigio, & S. Herman (Eds.), Victims of Crime (4th ed, SAGE Publications 2013).

[3] Stephanos Bibas, The Machinery of Criminal Justice (OUP 2012) 85.

[4] Zachariah Pullar, ‘Aristotle, Injustice and Criminality: Could the Antiquity be of Contemporary Relevance?’ (2017) exeterlaw.org.

[5] ibid.

[6] Ian Edwards, ‘Victim Participation in Sentencing: The Problems of Incoherence’ (2001) 40(1) The Howard Journal of Criminal Justice 39, 41; Cassell PG, ‘In Defense of Victim Impact Statements’ (2009) 6 Ohio St. J. Crim. L. 611, 619-20.

[7] Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR) Article 6.

[8] Andrew Ashworth, ‘Responsibilities, Rights and Restorative Justice’ (2002) 42(3) The British Journal of Criminology 578, 586.

[9] Thomas Bingham, The Rule of Law (Penguin Books 2011) 92.

[10] Ashworth (n 7) 581.

[11] ibid.

[12] Any deleterious effect on the rule of law is only exacerbated by the reality that not all victims can be expected to avail themselves of their participatory rights, suggesting further inequality in the treatment of defendants.

[13] Edwards (n 6) 49.

[14] Ashworth (n 7).

[15] Dina Hellerstein, ‘The Victim Impact Statement: Reform or Reprisal’ (1989) 27(2) Am. Crim. L. Rev. 391, 429.

[16] R v Nunn [1996] 2 Cr. App. R. (S) 136, 140 (Judge J).

[17] Ashworth (n 7) 578.

[18] Edna Erez, ‘Victim Participation in Sentencing: Rhetoric and reality’ (1990) 18(1) Journal of Criminal Justice 19, 23-4; Edwards (n 5) 43.

[19] Erez and Roberts (n 1).

[20] John Braithwaite, ‘Restorative Justice and De-Professionalization’ (2004) 13(1) The Good Society 28.

[21] ibid.

[22] Andrew Ashworth, ‘What Victims of Crime Deserve’ (paper presented to the Fulbright Commission on Penal Theory and Penal Practice, University of Stirling, September 1992).

[23] Andrew Ashworth, ‘Punishment and Compensation: Victims, Offenders and the State’ (1986) 6(1) OJLS 86, 119.

[24] Doak (n 1) 300-01. E.g. battery, which is recognised as both a criminal and a tortious offence.

[25] e.g. Nettleship v Weston [1971] QB 691 (QB) 699-700 (Lord Denning).

[26] Michael Moore, Plac­ing Blame: A Gen­eral The­ory of the Crim­i­nal Law (OUP 2010) 107.

[27] Doak (n 1) 308, 310, 313.

[28] Carrie Petrucci, ‘Apology in the Criminal Justice Setting: Evidence for Including Apology as an Additional Component in the Legal System’, (2002) 20(4) Behav. Sci. Law 337.

[29] Criminal Practice Directions (October 2015) VII Sentencing F: VICTIM PERSONAL STATEMENTS; F.1.

[30] ibid; F.3, (e).

[31] ibid. See also R v Perks [2000] Crim LR 606 (CA) [15].

[32] Perks (n 31).

[33] Julian Roberts and Marie Manikis, ‘Victim Personal Statements: A Review of Empirical Research’ (Report for the Commissioner for Victims and Witnesses in England and Wales 2011) <www.justice.gov.uk/downloads/news/press-releases/victims-com/vps-research.pdf> accessed 13 June 2018.

[34] Edwards (n 6) 50.

[35] Carolyn Hoyle, Ed Cape, Rod Morgan and Andrew Sanders, ‘Evaluation of the ‘One Stop Shop’ and Victim Statement Pilot Projects’ (Report for the Home Office Research Development and Statistics Directorate 1998) <http://citeseerx.ist.psu.edu/viewdoc/download?doi=10.1.1.606.9980&rep=rep1&type=pdf> accessed 16 June 2018.

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