THE INTERESTS OF THE VICTIM

The need to acknowledge victimisation is beginning to dawn in quite a few jurisdictions of modern European countries. I pause only momentarily to consider why it is that in the last quarter of the twentieth century the ‘victim support’ movement began to impinge upon the consciences of the administrators of criminal justice, although the scheme of compensation for victims of violent crime, introduced in 1964, is traceable to the writings of Margery Fry in the late 1950s.

It cannot be gainsaid that victims of crime have to be reckoned with by the functions of the criminal process, aided by the civil law. The victim undoubtedly has interests that demand official recogni­tion and protection. Compensation for the injury or loss caused has been with us for over 40 years now, but administered entirely out­side the criminal justice system. Compensation for crimes of vio­lence has, since 1996, been put on a statutory footing, administered by a government agency on a tariff system. But there are now efforts to encompass the victim within the criminal process. There are at present, as I see it, two solutions being proffered.

The first is prominently visible by practical reform of existing criminal justice. The point is made that there is an over-emphasis on the rights of the accused. Provisions such as limitations on the consequences of insisting on the right to silence, or the greater dis­closure of the accused’s defence in advance of trial are clearly attempts to redress an inequitable balance. It is claimed that society is over-protective of the offender. The shift towards easing the pros­ecutor’s task of convicting the supposedly guilty is an essay in assuaging the victim’s irritation at a system that so often fails to bring offenders to justice.

The other solution is to approach the problem of crime control alongside, if not distinctly outside, the due process model of crimi­nal justice. The fundamental principle is that one would start from the position of victims’ rights, while in no way forgetting the rights of offenders in jeopardy of their liberty. There is in the dichotomy of the two models a sense that, rights being in competition, the emphasis is to focus upon those areas where the interests of victims and offenders coincide. A prime example of this line of reasoning is where reparation by the offender to the victim leads to the imposi­tion of a more lenient treatment in the labelled offence and penalty by the criminal court. More and more, the interests of victims have been reducing the retributive element in the criminal justice system, although there may be occasional notorious cases where private revenge may surface. Reconciliation and mediation are cur­rently being proposed as devices to circumvent the divisiveness of criminal justice. Restorative justice is the favoured theory of con­temporary criminologists (it is even the flavour of the month for many reformists). But does restorative justice have any (and if so, what) role to play in the criminal trial process, or even within the spectrum of the criminal process as a whole? Restorative justice, strictly applied, can operate in any event only at the stage of penal disposal, since it operates only as and when the offender has admit­ted at least involvement in the criminal event, if not legal guilt, in causing harm to the victim.

One thing, however, is tolerably clear. Criminal justice, as we know it, cannot provide (nor can it hope to cope with) the appropri­ate formulae for all, or indeed many, of the legitimate claims of vic­tims and society. Where then do we go in search of a system of dealing with antisocial conduct which is currently labelled ‘crimi­nal’?

What do the following incidents have in common? A number of cars are stolen or vandalised in a leafy suburb of a provincial town; a child on a housing estate is discovered to have been sexually abused by a foster parent; a bunch of youths cause a serious distur­bance in the village community centre; a bank clerk disappears with customers’ deposits; a well-known financier is discovered to have defrauded the Inland Revenue over a number of years of sub­stantial sums of money; a young woman is raped in an area of town notorious for the commission of sexual assaults; an aged couple are found dead in their home from severe injuries inflicted by stab wounds; a paedophile ring is uncovered in a residential hostel run by a charitable organisation; an area of town has been terrorised by persistent burglaries and witness-intimidation by a family of broth­ers; a supermarket finds that its losses are exceeding the acceptable slippage of 2 per cent of its stock... and so on and so on. What, if any, attributes do these disparate, daily occurrences, events, hap­penstances - call them what you will - share? True, they all indi­cate the commission of an offence within the country’s criminal calendar; more relevantly, they present to an ordered society varie­gated social problems which call for variable responses from the agencies of social control. How should we as a society in fact respond? Apart from affixing on the convicted offenders the label of criminality to each of the criminal events, each of them automati­cally becomes susceptible to criminal justice, and then only at the stage of sentencing - itself a process that is not intrinsically judi­cial, but is rather administrative.

There is no reason why all culprits should be selected for prose­cution and hence squeezed into the single straitjacket of the crimi­nal process, as we know it. Indeed, the burden of what I have to say is that there is everything to be said in favour of a selective process whereby variable criminality is assessed and evaluated with a view to differentially appropriate action. It is not simply a diversion from criminal justice, but a matter of constructing alternative ways of effective social control. To speak of crime suggests an analogy with disease, implying that crime, like disease, is a unitary phenomenon, whereas we are dealing with a variety of disparate crimes or, rather, criminal events. We should instantly appreciate that there is no sin­gle theory or practical response to all crimes (or criminal events) any more than there is a single theory or cure to be found to explain and treat all diseases. Lord Atkin once defined crime in the follow­ing terms:

The domain of criminal jurisprudence can be ascertained only by exam­ining what acts at any particular period are declared by the State to be crimes, and the only common nature they will be found to possess is they are prohibited by the State and those who commit them are pun­ished. ¹¹

Just so, except that I would replace the word ‘punished’ by action on the part of society to reduce the risk of harm. We would do well if we invariably talked about crimes - criminal events, more accu­rately - and how society should respond to them. The abstraction of crime is an unhelpful deviance from sensible debate and dialogue.

Is it then axiomatic, as is so often assumed, that a criminal trial of any serious, or less serious offence - I take that to encompass all cases tried at the Crown Court - is a necessary prerequisite to social intervention in the offender’s liberty? If the investigation of the event - how, when and why - took place first, without necessarily identifying the perpetrators (just as happens in a Coroner’s Court to determine the cause of death), the proceedings would not need to be constrained by the strict rules of evidence in criminal cases, which the Law Commission proposed should be relaxed further to allow for the admissibility of hearsay evidence (enacted in the Criminal Justice Act 2003);^{[161] [162] they would proceed on the basis of the civil standard of proof, the balance of probabilities; and in non-jury trial there would not need to be the inscrutable and inarticulate verdict of a jury.}

The complainants of the incident would be an agency, possibly the local authority, but specifically not the Crown Prosecution Service. The police would doubtless have to be the fact-gatherers, working to the orders of the complaining authority. Once the civil court’s verdict was delivered, there would be time enough to con­sider what action, if any, should be taken against any identified cul­prits. The range of sanctions might conceivably be those currently available, but the decision-makers of what those sanctions should be would not be exclusively the judiciary, high or low, although the county court judge might be the appropriate chair. It would be a composite body, with a large element of the local community most affected by the disturbance. Systems outwith^[163] criminal justice should be available, appropriate to the social conduct under scru­tiny.

Even if we cannot in some instances dispense with the individu­alised justice of the due process model, or tailor it to some aspect of crime control, may we not sensibly use the civil process in favour of justice? There is, for example, clearly room for use by local authori­ties of their protective powers of the local citizenry under the Local Government Act 1972 to proceed by way of injunctive relief against offenders who manage to frustrate the process of criminal justice. In 1995 Coventry City Council was in possession for a whole year of an order from a High Court judge banning two brothers, who had terrorised a housing estate, from entering a defined restricted zone. The relief thereby afforded to the inhabitants was, if ephemeral, immense. The ASBO, set up by the Crime and Disorder Act 1998, proved ineffective, if only because it was framed in the context of the criminal courts. Its replacement by the device of civil injunc­tions seems a much more suitable means of dealing with public dis­order. Civil (or social) justice is preferable to the heavy armoury of criminal justice.

Civil justice might also be made available in certain circum­stances as a direct auxiliary to the criminal courts as part of a two­way process. A contemporary problem prompts the idea. Only half of the prosecutions for rape end up in a conviction. The victims of these forensic circuses have to undergo the ordeal of reliving the criminal event and frequently do not even have the satisfaction of knowing whether their version of events has been accepted by the jury, let alone the result of a favourable verdict.

The ordeal of the experience in the witness-box is frequently exacerbated by the tenor and temper of cross-examination, particu­larly aggravated if conducted by the alleged rapist himself, reviving the horrors of the criminal event, rather than by his advocate. The problem appears insoluble so long as the accused’s right to defend himself subsists uncontrolled, or, at most, controlled only within narrow judicial constraints. A remedy may lie in a radical proposal. The proposal commended itself to Sir William Utting in his 1997 report to government, People Like Us, on the safeguards for chil­dren susceptible to abuse. The idea met a deafening silence.

Whenever the Crown Prosecution Service decides to prosecute an accused with rape or other serious sexual offence, there should be a prerequisite that a certificate to proceed to a criminal trial be applied for in the county court. The civil process would establish, accord­ing to the civil standard of proof, the responsibility of the defendant for the commission of the alleged criminal act. Civil liability would be the basis for the certificate, but the court would have to be satis­fied that a criminal trial would be appropriate. On past records, many cases would end at the civil stage, the victim at least gaining the important satisfaction of having established her case in the courtroom. The court would always have the additional power to grant an injunction (where appropriate), and even to award dam­ages. The grant of a certificate to proceed to a criminal trial ought to result in a high rate of conviction, thus remedying the present unsatisfactory state of a high acquittal rate. Pleas of guilt would be more forthcoming if the accused’s version of the criminal event had been rejected by the certifying court. This proposal is, I think, work­able, although it has resource implications for the county court.