Plans to give victims more say in sentencing will deal another blow to the concept of equality before the law argues Charlotte Reynolds

Whose justice?

Section 67 of the bill allows for the creation of a new statutory body, the Sentencing Advisory Panel. Its role would be to consult police, probation officers and victims before recommending suitable punishments to the Court of Appeal.

Section 54 of the bill seeks to create a non-custodial sentence called a 'reparation order', requiring a young offender to make reparation to the victim of their crime. Before making such an order, the court would obtain and consider a written report on the attitude of the victim towards the proposed punishment.

Jack Straw, the home secretary said of the proposals: 'We are committed to implementing an effective sentencing system for all the main offences to ensure greater consistency.' Greater consistency in sentencing is an admirable goal, but how this will be achieved by allowing the victim more involvement is baffling. Punishing similar crimes similarly is an essential element of justice. But whose justice are we talking about here?

With increased emphasis on the role of the victim, the basis upon which a sentencing decision is made will inevitably become more subjective. It is simply not possible to uphold the notion of consistent and equal treatment of similar crimes if the individual impact of the crime upon the victim, how the victim feels about it, is taken into account when passing sentence.

While the Crime and Disorder Bill is not yet law, the sentiment behind it can be seen at work in Jack Straw's decision at the end of last year, subsequently upheld in the High Court, that the Moor's murderer Myra Hindley should die in jail. A Home Office spokesman stated unambiguously that, in deciding Hindley should remain in jail despite having served all of her 30 year sentence, Straw had taken into account 'the views of the victims' relatives'. Whether or not Myra Hindley remains in prison is not my concern here. The point is that in decisions relating to important areas of criminal justice public policy is being made in response to the emotional responses of a few, that private feelings are driving public policy.

As ever, the USA is leading the way in the recognition of increased rights for victims in law. Special units are dedicated to assisting victims, on the basis that overworked prosecutors, police and others in the criminal justice system may have to direct their efforts in ways not always consistent with victim needs. One could be forgiven for thinking they were there to ensure a fair and just trial. State legislatures have passed laws like the New Jersey Crime Victim's Bill of Rights, which allow victims to make a statement in person to the court, prior to sentencing, about the impact of the crime on their lives.

What does it say about justice when necessarily subjective and emotional responses are allowed to influence the outcome of court proceedings? It means that crime is being redefined to be less about what a defendant has done in fact, and more about how the alleged victim feels about it. That is a cue for inconsistency in the courts, where the punishment for the same crime can change from case to case according to the victims' response.

Indeed the notion of punishment changes altogether when the focus shifts to the wishes of the victim. Punishment is conventionally about holding individuals responsible for their actions and making them accountable to society for their wrongdoing. It is about saying that it is wrong to kill a person or steal a car and that society will not tolerate it. When the victim is placed at the centre of the sentencing process, however, punishment is no longer about an individual paying his dues to society, but about paying reparation to the victim for the harm caused. The notion of punishment as a blaming mechanism is diminished and the role of the criminal justice process is reduced to looking after victims.

The proposals on victims and sentencing in the Crime and Disorder Bill may seem modest enough. But they represent a real shift in sentencing policy in the UK, particularly when viewed alongside other new laws which illustrate the move from objective standards to a more subjective approach within sentencing practice.

Take for example the new laws dealing with stalking. Criminal offences are usually defined with reference to two elements. First the actus reus, the act itself, and secondly the mens rea, the mental element. The mental element requirement relates solely to the state of mind of the defendant. The state of mind of the victim is simply not relevant. Yet in the Protection from Harassment Act, the offence is defined with reference to how the victim felt. It does not matter whether the defendant intended to do anything to harass anybody or not, the only relevant question is how the alleged victim interpreted his actions.

Proposals relating to the feelings of the victim are not the only way in which the approach of the law has become less consistent. Take for example the increased sentence available to the courts, under recent proposals, where an offence is deemed to be racially aggravated. When the criminal justice system concentrates on the characteristics of the victim rather than on what the offender has actually done, it is an inevitable consequence that the perpetrators of similar crimes will be treated unequally. How long will it be before the severity of punishment is dependent on whether the sandwich was stolen from Marks & Spencer or Tesco?