Giving vengeance a voice in court

It is hard to remember a reform to the UK’s criminal-justice system which was not geared towards giving victims a ‘voice’ or ‘presence’ in the courtroom. This week, yet another victim-centred reform was announced, one which would allow for victim-impact statements to be read out in court by victims or their relatives. Victim’s minister Dominic Green said that the reforms would ‘give victims a real say in proceedings’.

Victim-impact statements are nothing new. They have been a part of the sentencing process since they were introduced under the 2003 Criminal Justice Act. They involve the victim, or the family of a victim, giving a witness statement to the prosecution describing the emotional effect that a crime has had on them. They are read by the trial judge and will almost always be mentioned in the course of their sentencing remarks. Under the new reforms, the statement would not be read by the judge in private, but in open court before the sentencing commences.

It has long been said that victims lack a ‘voice’ in criminal proceedings. Since the 1990s, when then UK home secretary Jack Straw bemoaned the exclusion of victims from the courtroom and argued for a more ‘victim-centred approach to criminal justice, successive governments have tried to reform the system to allow for a greater role for victims. This latest reform is just the most recent, and perhaps the most explicit, manifestation of this trend towards giving victims a greater ‘voice’ in criminal proceedings.

But this trend could be disastrous for criminal justice. One of the best things about our system is that every defendant gets treated in the same way. Everyone, whether they are accused of the most heinous murder or the pettiest theft, is given the same rights and protections through the application of due process. They are led into the dock, asked if they want to plead guilty or not guilty, and then the trial will eventually proceed with the swearing-in of the jury. It is completely unemotional. This can be an extremely difficult spectacle for complainants and their families, who have to watch while someone who is accused of causing major, often tragic, upset to their lives is given the respect embodied in a fair and objective trial.

The criminal trial is no place for the victim to vent their emotional distress. Fundamentally, the trial is not about them at all. They are not a party to the proceedings, nor should they be. The trial process is about determining the fundamentally social question of whether a defendant deserves to be deprived of their liberty and, if so, for how long. A victim’s emotions have no place in deciding what should be an objective and impartial question, determined not in the name of the victim, but in the name of society.

The trend towards a victim-centred justice system has manifested itself in a number of ways. We often hear debate over whether the cross examination of vulnerable complainants should be limited to make the experience less distressing. The Criminal Justice Act 2003 allowed for evidence to be given behind a screen to alleviate stress. Complainants in rape cases have been given permanent anonymity in order to make the process of giving evidence less traumatic. We have even repealed ancient legal traditions – like the double-jeopardy rule, which prevented defendants being tried for the same crime twice – in the name of providing greater ‘justice’ for victims.

We now have new government roles for dealing solely with victim-centred reforms, including a victim’s minister and a victim’s commissioner, the latter role often being occupied by victims of high-profile crimes. Both in the procedure of the criminal trial and in policy formation around criminal justice, victims are becoming the central concern.

It is no exaggeration to say that this move towards a victim-centred justice system is fundamentally changing our criminal-justice system for the worse. It is changing the criminal trial from an impartial social process into a means through which victims are given closure through their assailant’s punishment. The welfare and experience of the victim is being used to justify the repeal of ancient legal protections and processes, to the detriment of the defendant and, accordingly, wider society.

A victim’s emotions have no place in the criminal court. While we can, as human beings, acknowledge and pay due deference to the hardship of a criminal trial, particularly for the victims of the crimes under consideration, we must keep the central purpose of this ancient social ritual at the forefront of our minds. We cannot allow a victim-centred approach to justice to turn our courtrooms from the hopefully objective and impartial arbiters of the social will, into the organs of state-sanctioned revenge.

Luke Gittos is law editor at spiked, a paralegal in criminal law and convenor of the London Legal Salon.