Victim-impact statements: a pointless charade

Last week, the English criminal-justice system was sent into brief meltdown when a member of the judiciary accidently let slip his view that victim-impact statements, the witness statements delivered on behalf of the victim at the end of a successful prosecution, ‘made no difference’ to the board’s decision on whether to grant two killers a place in an open prison. The idea of these statements, introduced into criminal law as part of the Criminal Justice Act 2003, is to ensure that the views of the victim are reflected in the sentencing of the defendant. The judicial council, which sets sentencing guidelines for judges, acknowledged the introduction of the statements by allowing judges to consider the ‘views of the victim’ when passing sentences.

The circumstances of the judge’s gaffe this week were certainly unfortunate. The family of Colin McGinty, who was murdered in 2001, had to hear his remark at the conclusion of the killers’ parole hearing, which they were viewing over a video link. The judge immediately apologised for letting slip the remark, before sending the killers to open prison as they had requested. The family were understandably frustrated that they had to relive the murder of their son only to have their views effectively disregarded by the parole board.

But that is the problem with setting victims up to expect therapeutic results from the justice system. In recent years, pretty much every single policy reform, announcement or piece of advocacy research has encouraged the criminal-justice system to be more accommodating to victims. Over and over again, the Crown Prosecution Service has reiterated its commitment to ‘reorienting’ the criminal-justice system around the rights of the victim, often at the expense of the defendant. It is entirely understandable that McGinty’s family feel as though they have been let down by a justice system that they expected to deliver them ‘closure’.

But the criminal-justice system has to maintain its commitment to objectivity and impartiality. While victim-centred reform has made many aspects of criminal justice more accommodating to victims, sometimes at the expense of a defendant’s right to traditional rights and freedoms, there are many areas of the system in which a judge’s discretion is still tightly defined. Parole judgments are one such area. That is why it is entirely appropriate that victim-impact statements have ‘no impact’ on the question of whether prisoners are placed in open conditions, given that this judgement is made on the basis of assessing the risk posed by the offender to members of the public. The views of the victim’s family cannot have any bearing on this question.

The saddest fact about this case is that the process of reading the victim-impact statement had to be gone through, despite the fact that the judge thought it made no difference. That the judge thought it appropriate to acknowledge the statements before the court shows that they have a ritualistic quality to them, and that the process of acknowledging them is more important than their, well, impact. Plainly, the statements were before the court for no other reason than to give the impression that the decision was more emotive than it could ever legally be.

This was just one example of how a ‘victim-centred’ approach to justice lets down genuine victims, while also undermining a defendant’s right to an impartial and objective assessment of his case. The more we encourage the impression that legal judgements will be focused around the emotional needs of the victim, the more we will come unstuck when the judge is objective and seemingly uncaring. The same is true of reforms around the cross-examination of vulnerable witnesses: the more we pretend that the criminal-justice system is solely an emotional talking shop for complainants to vent their feelings, the more complainants will feel let down when a robust defence barrister seeks to take their account of their feelings to pieces. What the McGinty case shows is that the victim-centred approach to justice encourages unhelpful myths about the workings of the system, and ends up harming victims more than it helps.

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