20 June 1996
Jennie Bristow looks at what's wrong with victims' rights.
Michael Howard's 'Victim's Charter', unveiled on Tuesday as part of a new
law-and-order package, is a dangerous move. Aimed at addressing the widely-perceived
problem that victims of crime are also victims of the insensitivity of the
legal system, the measures proposed that victims of crime play a larger
part in the prosecution process than ever before.
Among the proposals outlined in the 'Victims' Charter' was the introduction
of 'impact statements' - statements which are designed to make the legal
system take into account the effects of a crime on its victim. With this
scheme, to be piloted over a year in six police force areas from August,
a victim of a crime will have the opportunity formally to explain how they
feel about what has happened to them. This explanation will then have to
be taken into account by the police, the Crown Prosecution Service and the
courts before they deal with the criminal.
Such a scheme may appear, at first sight, to be relatively harmless. It
does not, after all, give victims of crime much more of a say than before:
as Home Office Minister David Maclean was careful to point out, the charter
'is not going to give victims the right to change charges and the right
to determine sentence' (The Guardian, 19 June). However, simply by putting
the concept of 'victim's rights' on the agenda it has very real implications
for those rights we hear very little about today - the rights of the defendants.
The legal system is presently structured on the basis of a simple principle:
that all citizens are innocent until proven guilty. Before the state can
punish anyone for committing a crime, it first has to prove that the defendant
has done something wrong. For this reason, a court case is based largely
on facts and evidence, and the feelings of the victim - or the defendant,
for that matter - about their ordeals simply do not come into it.
Obviously this system does not always work. Some victims of genuine crimes
have to undergo the gruelling process of a trial only for the criminal to
be acquitted. Likewise, some innocent people have to undergo years of imprisonment
because they have been found guilty of something they did not do. However,
the principle of establishing whether someone really committed a crime before
punishing him for it is surely a principle worth defending.
Not according to the 'Victim's Charter'. The thrust of the arguments for
'victims' rights' is that proving 'what actually happened' in a particular
case is not enough. Whatever a defendant did or did not do has to be weighed
up against the emotional impact of the act upon its victim. The court makes
a judgement based not on what is proved to be true, but based on how far
they sympathise and believe the prosecution.
The effect of these changes is to place more emphasis on people's subjective
interpretations of events, and less emphasis on the facts of the case. When
dealing with an 'impact statement' such as the one proposed by Howard, the
subjective reactions of the victim, the police and those in court all have
to be considered seriously.
Making the law more open to subjective interpretations of events in this
way is highly problematic. As anyone who has ever sat on a jury knows, no
two interpretations of anything are the same: particularly those of the
prosecution and the defence. Taking into account the feelings of the victims
can only have one consequence: to diminish the rights of the defendant.
One example of the way this works is the argument of the victims' rights
against cross-examination techniques. Groups such as 'Victim Support' argue
cross-examination intimidates the victim and accuses him or her of lying.
What they fail to address is the fact that, without the defence being able
to disprove the prosecution's version of the truth, the defence will never
be able to prove his innocence.
Yet the right of the defendant to remain innocent until proven guilty is,
it seems, irrelevant in this discussion. The only criticisms of the 'Victim's
Charter' have been from those who believe that it is not paying enough attention
to the victim. The charity 'Victim Support', for example, is arguing for
the emotional reactions of relatives of murder and manslaughter victims
to be taken into account by the prosecution, and for the identities of victims
of sex assaults to be hidden from the defence. In other words, it wants
people to be taken to court without knowing either what they have done,
or who they have done it to.
Things have not gone this far yet. However, New Labour is no doubt drawing
up its plans now for further attacks on our rights.
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