The victims take over the law courts

Last week, the Crown Prosecution Service (CPS), which undertakes all prosecutions for criminal offences in England and Wales, launched a policy allowing victims to review any decision taken by it to not charge a suspect or to halt a prosecution for lack of evidence.

This right will only apply to decisions made by the CPS, and will not apply to police decisions not to investigate an allegation. The prompt for this policy change came from a Court of Appeal judgement in 2011 in the case of Christopher Killick, in which the court included a recommendation that such a right should exist in the course of a judgement.

CPS head Keir Starmer justified the move on the basis that it bolsters the victim’s position in the criminal-justice system. He described how the policy will prevent victims being mere ‘bystanders’ in the course of criminal justice and how ‘it is now recognised by the criminal-justice system that the interests of justice and the rights of the victim outweigh the suspect’s right to certainty’.

This glib dismissal of the defendant’s right to certainty in the name of victims’ rights shows just how influential the ‘victim’ has become in criminal proceedings. But the decision also comes at a historical low point for the authority of the CPS. This new policy is driven by two factors: a historical move towards a more victim-centred justice system and the CPS’s own profound crisis of institutional authority.

The policy follows a number of cases in which the CPS’s ability to judge whether or not to prosecute has come under close scrutiny. In the course of Operation Yewtree, the CPS issued a public apology for its decision not to prosecute the late liberal MP Cyril Smith on the basis of evidence presented to it in the 1970s. The investigation into the Cyril Smith case followed criticism of the CPS after a lawyer had failed to proceed against those involved in what became known as the Rochdale sex-ring case, because of doubts raised about the credibility of the victims. The new policy is not driven by sympathy for victims, nor is it a straightforward response to the decision of the Court of Appeal. It is a cynical and ill-thought-out attempt to counter a perceived lack of public faith in the CPS to make the right calls on prosecutions.

Usually, the decision whether to prosecute signifies the first involvement of the CPS in a criminal case. The CPS lawyer making the decision has to establish that there is sufficient evidence to prosecute and that it is in the public interest to do so. The fact that the CPS does not feel confident that its lawyers can get this decision right, when it represents such a significant aspect of its role in any given case, shows just how depleted the authority of the CPS has become.

But there are other factors at play. The new policy is symptomatic of a justice system that is reorientating around the rights of the victim at the expense of the rights of the defendant. Victims now play a greater role in criminal proceedings than they ever have before. For example, since 2003 it has been possible to read statements out in court from the victims of serious offences in the course of sentencing a defendant at the end of a case. Judges are entitled to take these victims’ statements into account when passing sentence.

Moreover, numerous legislative changes have been enacted to make it easier for victims to give evidence and to minimise the distress of the trial process. These have included allowing victims to be questioned from behind a screen or by video link. Most significantly, in relation to a defendant’s rights to finality in his dealing with the state, we also saw the repeal of double jeopardy in 2003, meaning defendants could be tried again for crimes of which they had been acquitted. All of these reforms have been justified on the basis of giving a more central role to victims in the administration of justice.

But the idea that victims have any ‘rights’ whatsoever when it comes to criminal proceedings is a dangerous legal falsehood. There are two parties in a criminal case: the defendant and the state. Because the state is able to utilise an enormous amount of resources in bringing prosecutions, the defendant’s rights are a vital means through which the playing field is levelled. The defendant’s right to finality, his right to certainty that the state will not pursue him over and over again for the same offence, was eroded by the repeal of double jeopardy. Now, with the introduction of the right to review, the CPS seems ready to do away with it completely.

The trend towards ‘victim-centered justice’ has extremely draconian connotations for the way justice is administered. In the victim-centered courtroom, all that matters is closure for the victim, even if that closure comes through denying and overriding due process and the erosion of fundamental freedoms. Victims are, and must be, ‘mere bystanders’ in a criminal case. Otherwise, the objective and impartial administration of justice stands to be replaced by the emotionalised and draconian passing of state-sanctioned revenge.

Luke Gittos is a paralegal working in criminal law and convenor of the London Legal Salon.