19 Victims Adrift

PRIVATE PROSECUTIONS TODAY are obsolescent, if not obsolete. Ever since the family of Stephen Lawrence unsuc­cessfully raised the criminal liability of his killers (two men were later convicted by the Crown Prosecution Service of his mur­der), the victim’s ability to prosecute had been severely truncated.

But legislation persists to confer the right of the individual (the victim) to prosecute. To allow the public prosecutor to trump the victim’s access to the courts, and then instantly to drop the criminal proceedings, is intrinsically unfair. More apposite, it would be fairer to abolish the right to prosecute individually. The state’s duty to safeguard the victim is a matter of social justice. Where the Director of Public Prosecutions declines to take criminal proceed­ings, there is statutory recognition that he may take over the prose­cution from the private prosecutor and then proceed to discontinue the suit. In effect, criminality is, by implication, a public concern, in which the victim is of course a prime concern, but only as a cru­cial witness.

If private prosecutions are a dead letter, there remains a desire that, if a case is not prosecuted, the Director of Public Prosecutions should be required to supply adequate and intelligible reasons for his decision. In the Treadaway case, however, Rose LJ dampened the hope that reasons would ordinarily be given not to prosecute.¹ In the Republic of Ireland a similar approach was made. In H v Director of Prosecutions and the Commissioner of Gardia Siochana,^{[191] [192]} O’Flaherty J, in the Supreme Court, said that ‘in deciding whether to bring or not to bring a prosecution, the Director is not settling any question or dispute or reciting rights or liabilities; he is simply mak­ing a decision on whether it is appropriate to initiate a prosecution’.

The Manning case was treated by Gillen J (now LJ) in Re Adams,^[194] however, as little more than a working illustration of ‘that excep­tional class of case where even a Director of Public Prosecutions will be required to furnish reasons to a victim for failing to prose­cute’. In that case, the applicant had successfully sued for damages for injuries inflicted on him by a police officer while on reception at Castlereagh Holding Centre, Belfast. Gillen J, at the end of an exhaustive review of the case law, declined to order the giving of reasons by the DPP not to prosecute the police officer or other offic­ers in attendance at the Holding Centre. (Paradoxically, the docu­mentation in the judicial review proceedings effectively disclosed the reasons for not prosecuting.)

The decision to prosecute or not is, like any other administrative decision or act, susceptible to judicial review. As such, the tradi­tional grounds should apply to uphold the administrator’s decision, or otherwise. But, in upholding such action, the court ought, as a general rule, to demand some explanation, and not just exception­ally. The duty to consult can often predicate the legitimate expecta­tion induced by the decision-maker. Reasons alone will often satisfy the public that a prosecution is not justified.

The disappearance of the victim of crime from the criminal jus­tice system reinforces the awareness of the exclusivity of Article 6 of the European Convention on Human Rights to the fairness in public of a criminal trial; the fact that the criteria for Article 6 encompass the pre-trial procedure after the defendant has been charged with a criminal offence, does not minimise the priority accorded to the trial proceedings. The human rights question remains whether the policy and practices of the public prosecutor excludes the like activity of a private prosecutor. The answer would appear to be unanimous, that it applies to public prosecutions alone. The existence of the European Arrest Warrant would seem impliedly to support a single system of prosecution policy. Like letter-writing today, it slips from view.

The trend towards greater involvement by victims in the criminal justice system is not new; in practice the victim of crime predomi­nated until the creation of a police force in 1829 and the ultimate establishment of a public prosecutor in 1880. Even then public prosecution did not obliterate private action in the criminal courts, although such private prosecutions dwindled in the twentieth cen­tury, while legislation seeking to protect indirectly the victims of crime continued. But in providing relevant evidence for a fair trial, victims have displayed little direct interest to the court. Apart from allowing victim witness statements to be proffered in the sentenc­ing process, there is no formula for victims to participate as wit­nesses in the trial other than in testifying to admissible events.

The voice of the victim was freshly aired when a scheme for vic­tim support was launched by the retiring Director of Public Prosecutions, Sir Keir Starmer QC. His analysis of insufficient con­cern for the plight of victims induced a national review and reform of victim issues that call for action both before and after trial. Active participation by way of evidence or advocacy is incompatible with the due process of a fair trial under Article 6 ECHR, peculiarly where the mode of criminal trial by jury adequately encompasses the populace and excludes the professional adjudicator.

At the time of my becoming in 1994 the chairman of Victim Support (the National Association of Victim Support Schemes), the publicly funded organisation (to the tune of £13m a year from cen­tral government, in addition to 20 per cent from its own income) was well established, focusing its volunteer members on assisting victims with the personal consequences of being victims of crime. At that point the emphasis of its activities had been extended to the establishment of an ancillary system of witness service for victims only at the Crown Court. The activity perceptibly shifted its pur­pose from general assistance and counselling to criminal justice activity. The immediate interest became focused on the sentencing of offenders rather than with the trial process and its immediate consequences.

The primary role of Victim Support grew out of its origins in the 1970s as an adjunct of work by probation officers; as such it associ­ated its work within the non-custodial aspect of the criminal justice system in pursuance of its aspect of criminal prosecutions. With the diminution in the early twentieth century of the private prosecu­tion and the advent of the police force and formal prosecution in 1880, the victim of crime became increasingly irrelevant to the criminal process.

Another development in the early days of the twenty-first century was the desire of the victim support movement to be involved, either directly or indirectly, with the sentencing of offenders. This was most marked on the part of the families and associates of those killed unlawfully. Victim impact statements (a phrase borrowed from the United States as victim statements) were sufficiently pro­lific in documentation preferred to public prosecution to require official recognition. While some victim statements were acceptable to the criminal courts, the legal profession was resistant to any offi­cial form of the statements being used in the sentencing process, although there was some judicial sympathy for the ability to rebut an accusation made by the offender’s advocate that had gone unchal­lenged in the course of the trial. A pilot scheme of advice and assis­tance to the relatives of homicide victims was sponsored by the Government. But the results of the study were insufficiently adopted to warrant any reform, and no action was taken.

The role of the victim today would seem to fit much more neatly into the scope of civil justice. Advice and assistance by the social system should be less trammelled by a principle of restorative jus­tice, and more concerned with the remedying of individual harm or hurt, less with a sense of mutuality between the wrongdoer and the injured. Just as the State has the overriding duty to safeguard its citizenry, so the corollary should be an aspect of civil justice, to supplement the safeguard by appropriate action by its social agents. In any event, its past primary role in criminal justice has long since gone. A system of justice to victims is adrift.