Justice isn't supposed to make a victim 'feel better', Damian Green

Coming next month to a courtroom near you: victims get the chance to say how bad they feel

16 November 2013

9:00 AM

16 November 2013

9:00 AM

Coming next month to a courtroom near you: a bewildered young man, freshly convicted, trembles in the dock while awaiting his fate. But just before sentencing, a weeping widow stands, turns welling blue eyes to the bench and beseeches His Honour: ‘I cannot forgive him for his part in my husband’s death. My life is ruined. I beg you to punish him to the maximum.’ Murmurs of assent are shushed in the public gallery. ‘Well,’ says the judge, ‘I had planned leniency, in light of the coercion from older bullies and his mental age of six. However, since you ask so nicely — Officer! Take him down and throw away the darned key!’ And the gallery erupts in applause.

All right… hands up to a smidge of exaggeration. But only a smidge. An adjustment to court procedure, proudly announced last week by the policing and victims minister Damian Green, is designed not only actively to include victims of crime in a trial but, he hopes, in some cases to ensure that their inclusion will lead to tougher sentences. Victim support groups are naturally as cock-a-hoop as Green is pleased with himself; neither appears to have noticed that, by plonking the most fraught of emotion where emotion has no useful place, this move undermines a judicial system that has stood us in pretty good stead for centuries.

The change, under the new Victims’ Code, is that between guilty verdict and sentence the victim of a crime — or, in cases of murder or manslaughter, the relatives of the victim — will have the right to read aloud a self-penned ‘victim impact statement’ to ram home the effect that the crime has had upon them.

The victim impact statement is not new; in the West it originated in 1982, in touchy-feely California (you’d guessed that already, hadn’t you?) and it was imported to England and Wales in 2001. Until now, however, it has had caveats: it has been at the judge’s discretion whether or not to include it and, where it has been included, usually excerpts only have been read out, by the judge or the prosecutor. Under such limitations, fewer than 10 per cent of victims even know they may write a statement and, of those, even fewer bother. Now, by contrast, they will all be told of their right early in the criminal process and nobody, not even the judge, can prevent them standing up in court and, quite literally, having their say.

The niggling question is: why?

If, as the victim may hope, it will move a judge towards a slightly more severe sentence, then it shouldn’t. What would be the point of a rigorous trial etiquette — the scrupulous selection of a jury, the strict rules of cross-examination, the meticulous care in summing up — if the outcome were then to be blown out of the water by a strategic whimper?

The whole point of the social contract that underpins our legal system is a tacit acknowledgement that whimpering and pain are impediments to justice; thus, in the interests of fair play, we outsource the justice to a controlled, external and near-as-dammit impartial arena. Muddle the two and it quickly becomes not fair at all.

Consider, for example, an imbalance of eloquence. A victim impact statement written by, say, thee or me might move a grown man to tears; another, perhaps from someone hampered by inadequate education, might as easily bore unto death. What about a similar imbalance of vengefulness? One family might be much taken with the pound of flesh while another, perhaps for religious reasons, chooses forgiveness. Meanwhile, what happens when the victim — the tramp, the recluse, the neglected — has nobody to speak of the ‘impact’ his death has had upon them? So: when the identical crime has been committed, do we really expect a judge to select a different sentence for different circumstances like these?

Consider, too, how one person’s impact can be quite unlike another’s. Imagine, for instance, that the man who killed Sarah Payne in 2000 had only recently been convicted and was now awaiting sentence. Should her mother, Sara, read a statement? Sara, who rallied, fought, campaigned and earned a nation’s respect? Or should it be her father, Michael, who descended into alcohol, violence and imprisonment? God knows, none among us dares guess which path we would take; neither suggests a lesser love for Sarah and neither suggests a lesser ‘impact’. To whom, then, would we have the judge listen?

There are other jurisdictions, of course, who care nothing for such lily-livered concerns. Some even invite family members to participate in execution — to throw the first stone, to wield the first blade. In Saudi Arabia, the family of someone murdered can choose between the death penalty or clemency in return for diyya, a.k.a. blood money; the going rate for the second is apparently around $11 million, making forgiveness a nice little earner.

I know, I know. It’s a heck of a stretch to introduce such barbarism into the matter of reading aloud from a sheet of A4. Nevertheless, the extremes serve to illustrate the difference between cultures that believe the victim somehow owns the crime and those, like ours, that do not. And the current emphasis on the ‘rights’ of victims is increasingly confusing that essential difference.

A solicitor friend tells of a recent client with a bone to pick. Her son was dead, a man was to stand trial and she complained bitterly that, ‘It’s not fair: the defendant sees his barrister whenever he wants and we never get to see ours.’ She was not a stupid woman; just one among many who are losing sight of what had to be explained to her: there was no ‘our’ barrister. The prosecutor’s client was the Crown, not the family.

This is not to say that the family does not deserve support, care and compassion; nobody denies the good work done by police family liaison officers, few would quibble with public funding for bereavement counselling where it is wanted, and support groups — for those who like that kind of thing — should be similarly aided.

But what Damian Green needs to recognise is that none of the above is the job of the judiciary. A court is not empowered to make victims ‘feel better’ — at least not beyond doing what it does best: quelling emotion and calming passion in favour of the factual, straightforward administration of fair trials and just sentences. That, done properly, makes us all feel better.

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Show comments
  • Sanctimony

    “… at least not beyond doing what it does best: quelling emotion and calming passion… ”

    Well, Damian Green is admirably equipped in administering the above… never was there a man so devoid of character or charisma.

    My local MP is a slavish devotee to his party’s line…. in the forlorn hope that he mght benefit from promotion in an already lacklustre cabinet.

    Well it ain’t going to happen, Damian!

  • A further corruption of the so-called justice system.

    1. Notice again that the above provides further evidence for the view that western governments are nowadays wilfully fomenting abuse hysteria – by actively encouraging victims to ratchet up their alleged levels of hurt following any incident.

    2. The justice system is supposed to give the defendants in the courtrooms the benefits arising from any doubts. However, it is quite clear that, with regard to this issue, the very opposite is the case, and that the defendants are being disadvantaged quite significantly by allowing COMPLETELY UNTESTABLE evidence from hostile witnesses – i.e. their accusers – to count against them.

  • tjmac7

    How else can appropriate compensation be determined if we don’t assess the affect of the crime on the victims? in the future, every case will be a whiplash case.

    • SimonS

      Very simply – not in a criminal case.

      Compensation is determined in a civil court case which follows the criminal one. In this civil case the victim is the claimant rather than the state – and as such is fully represented, and likely to be the beneficiary of the ruling.

      • alabenn

        The compensation is not monetary, it is about getting the amount of redress that the victim feels is appropriate.
        This situation has come about because justice has become an act driven by cost cutting, as little as days or months in prison for some of the most vile crimes.

        • mikewaller

          I think that you have to start further back. As far as I can see our legal system is two thirds a job creation scheme for lawyers and only one third seeing that justice is done. That is why the Coalition is trying desperately to reduce costs. SimonS’s notion that the State is in the saddle and that the victim has not role other than to bear witness in a criminal trial is very much part of the trouble. Even if personified in the Queen, the State in criminal trials is a nebulous concept almost entirely detached from the real world, “its” every action circumscribed by centuries of lawyers beavering away at that modern alchemy, jurisprudence. We need victim statements and much else to force the legal profession to face up to the fact that it is not just a point scoring game, but something of very real importance in the lives of those affected by criminal activity.

  • Julie

    It’s a good idea and will help criminals, IMO. Besides the court system being a dull, boring, time consuming process, criminals lose emotion by their third experience IMO. On the inside of prison and on the outside, they mix with people (family and friends) who are numb to the effects of crime. “You’re a man now son” can be heard in a courtroom from a father to his gang member son following in his footsteps while many criminals say, “I though my behaviour was normal”. Having a stranger share how the crime affects them brings the human aspect into the crime and shames the criminal who is used to being applauded. I am surprised the UK isn’t already doing this. It’s not cumpolsory where I live so not many people take up the opportunity.

  • Shorne

    When I was a prison- based Probation Officer the Governor asked me to start running discussion groups for the prisoners. After a group of them had been assembled by my uniformed colleagues I would start things off by suggesting a topic. One afternoon I asked what would definitely stop them from offending. After comments like “free drugs” and “make the dole £500 a week” I asked what might happen if ,when there was an identifiable victim of a crime, and he/she was willing then the victim would be able to retire with the Judge or Magistrates and assist in determining the sentence. The reaction was so extreme that the Prison Officer who was sitting at the back moved closer to the button that operated the alarm bell. In short they panicked at the mere thought of this happening. It’s something I’ve never forgotten. The practice is also common to some of the earliest criminal codes we know about.

    • Jackthesmilingblack

      “an identifiable victim of a crime”
      Sound flogging on the village green, perhaps? Now that`s what I call prime time television.

      • Shorne

        I don’t really understand what you mean. I used the term because with some offences like shoplifting or, say VAT fraud it’s hard to identify a specific victim.

  • Tom M

    “…It’s not fair: the defendant sees his barrister whenever he wants and we never get to see ours….”

    That sentence reminds me of another in the same vein:
    Two women in a card shop looking at Christmas cards. “why are all these cards so religious” one asks the other.
    Education education education.

    • Jackthesmilingblack

      “Two women in a card shop looking at Christmas cards. “why are all these cards so religious” one asks the other.”
      Nice one.

  • Terence Hale

    Justice isn’t supposed to make a victim ‘feel better’. Sounds like the victim who said “I don’t recognize this court”, it was decorated since the last time the victim was there.

  • mikewaller

    Written by a lawyer, this fulfills all my worst expectations. My one experience as a juror convinced me that lawyers have turned the whole legal process into a very profitable intellectual game, the rules of which they alone understand. Some protections this game affords the accused are most certainly warranted, no least because of the huge evidence of the unreliability of the police; but the whole thing has gone much too far. At the root of it lies dear old Blackstone’s Formulation: “Better that 9 guilty men escape than one innocent suffer”. It sounds very grand but carries the implicit assumption that the courtroom is the be all and end all of things. If, however, you live in a world where career criminals of the worst kind are continually “beating the rap” with the help of sharp lawyers, you might take a very different view. But, of course, members of the legal profession of all stripes rarely live in such areas, so that’s alright.

    In the case I witnessed one such lawyer, pitted against a CPS dumbo, got what I am pretty certain was a career criminal of a serious robbery charge by hectoring a young man into changing “Yes, the man I saw is the man in the dock” into “Well I suppose I could be mistaken” at the third time of asking, or, more accurately, bullying. At that point, with what I considered indecent haste, the judge abandoned the trial. Since then I have been convinced that jurors, not the judge, should have the role of determining whether or not such changes of mind are genuine or just the result of the kind of bullying that would be considered unacceptable in most other milieu.

    Last year’s Reith lecturer, Niall Ferguson, put the position very succinctly by saying: “We now have not the rule of Law but the rule of lawyers” . Of course, it would be very cruel to interfere with the brilliant game play of Ms Sarler and her pals by injecting a few real world considerations such as the victim statement proposal, but I cannot help but think that it would be to the general good.

    • Ahobz

      She seems to be a journalist

    • Jackthesmilingblack

      “Better that 9 guilty men escape than one innocent suffer”

      More than a little last season.

      • mikewaller

        As the date given for it is 1765 that is not altogether uprising.

  • Rockin Ron

    Justice is supposed to deliver justice for the victim and society. However, all too often it is about preserving the rights of the defendant at the expense of the victim, so I support any initiative to give victims more say in the justice system. The argument made by these two sentences cancels all of the points made by this ill informed article. End of.

    • Alex Silva

      lol wut? you think your bullshit subjective handwaving “cancels all the points” made by the article? You are completely retarded. Allowing victim emotions to affect sentencing is absolutely ridiculous and a mockery of justice.

      Now if the victims were allowed to give a statement specifically to the perpetrator, I have no problem with that. All the supposed benefits of letting a victim explain “exactly why the crime was so hurtful” can be achieved in this way without affecting the unbiased results of the trial

  • Ahobz

    Disagree entirely with this. The purpose of sentencing is to reflect the gravity of the crime and the harm it has done society. One significant aspect of that harm is the effect the crime has had on the direct vicitms.

    The law alreaady operates the thin scull rule, so that killing by a blow that would not have killed a person with a thicker skull does not cease to be murder, because most people so hit would not have died if the thin sculled victim did die. A villain takes his victim as he finds him or her. There is no difference in principle with a harsher sentence where a victim is more vulnerable and more affected than another might be.

    Indeed the current sytem where some cases include impact statements and some do not, seems to me more inimical to even handed justice than a system where all cases have the possibility of including impact statements.

    • Nohourwastedinthesaddle

      skull, with a k