A victim's right to be heard: Adam Sage looks at the case for giving those who have been wronged more say in the legal process

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The Independent Online
IT WAS a vicious and unprovoked attack, the sort that leaves lasting mental scars. Janet, a social worker, was in her office when a teenage client who had a grudge against her burst through the door and sprayed her with petrol. Brandishing a cigarette lighter, the teenager threatened to set her on fire before being restrained by colleagues.

That night, Janet's daughter reacted angrily, swearing vengeance and promising that the attacker would 'never do that again'. Janet (not her real name), a kindly woman in her mid-fifties, took a more measured approach, telling her daughter to stay clear of the accused. 'I said 'Let the police and the courts deal with it; that's what they're there for'.'

Now, however, she's not so sure.

A week after the incident, the teenager appeared at a magistrates' court in the Midlands and was remanded on bail. It was a predictable decision, given that the defendant had no history of violence and that the attack did not cause any lasting injuries.

Yet no one had told Janet that there was any chance of the teenager being freed, no one had sought her views on the case and no one bothered to let her know the outcome of the hearing. This failure to involve her in the legal process has left her confused, angry and afraid. While she is not about to set herself up as a vigilante, she has profound doubts about the system's ability to fulfil what she sees as its duty to protect her and punish her attacker.

'If someone had asked me: 'How do you feel about it', I could have coped. But it's as though I have no value,' she said. 'The feeling they gave me was that I mean nothing in this community.'

Her comments raise two questions that are attracting increasing attention and anxiety within legal circles. How far should the victims of crime be kept in touch with their cases? And how far should they be able to influence those cases?

Last week, Lord Williams QC, a former chairman of the Bar Council, described Janet's treatment as 'quite monstrous' and indicative of a 'very serious defect' in the criminal justice process.

This is a view gaining currency among lawyers, who recognise that victims have traditionally been seen as little more than pawns to be placed at the disposal of the professionals. They believe that a system which denies victims the right to a minimum of information is in urgent need of an overhaul.

The charity Victim Support argues that victims should be told about the charges levelled against the defendant, any bail applications, the verdict and sentence. Each step should be explained fully. Further, if an offender is released from prison early, or if a conviction is overturned on appeal, the victim should be made aware.

This information is occasionally provided by the police, but only on a sporadic and haphazard basis, the charity says. For instance, it cites a recent case in which a rape victim went through the ordeal of giving evidence, convinced the jury that she was telling the truth and saw her alleged attacker sentenced to five years' imprisonment. Twelve months later, she met him near her home just days after he was released on appeal at a hearing about which she knew nothing.

The charity's criticisms have been taken up by the Royal Commission on Criminal Justice, which recommended in its recent report that 'victims should so far as practicable be kept informed'. Yet some lawyers believe that until there is a statutory duty on the police and the Crown Prosecution Service to provide information, they will continue to claim that it is too time-consuming and costly to do so. These lawyers say that victims should be kept abreast of developments as a matter of course and not just when it is 'practicable'.

But Janet wants more than information. She wants the authorities to take account of her opinions on a case that she says has affected her entire family. In particular, she says that if the defendant is found to be psychologically disturbed, he should be treated. If not, he should be imprisoned. 'Apparently, I'm being represented by the prosecuting solicitor, but he has never contacted me. I don't know who he is, let alone what he said. I think I'm entitled to my say.'

Some lawyers, particularly in the United States, agree with her. They believe that when the state prosecutes a defendant, it does so on behalf of the victim, whose voice should therefore be decisive in influencing whether the case goes ahead and the sentence that is handed down. In some US states, people who have suffered as a result of an offence have the right to address the jury before the punishment is determined.

In England and Wales, too, there is growing support for moves that would give victims a greater say in the legal process. In a series of recent cases, police officers have protested that the sentences failed to reflect the victims' 'wishes or interests'. For instance, after a schoolboy rapist was given a suspended sentence and told by the judge to pay for his victim to go on holiday, John Over, the Chief Constable of Gwent, said he was 'deeply concerned about the fact that the victim of crime is coming very much last'.

And when a woman who had been subjected to a serious sexual assault made the same complaint at the last Scottish Conservative Party conference, John Major said that he had 'heard her message'.

One option is for prosecutors to find out what victims want before a trial takes place and then convey their views to the court. Although these opinions would not be conclusive, judges and magistrates could take them into account before ruling on bail or a sentence. Similarly, the CPS would consider a victim's wishes before deciding whether the case goes ahead.

The assumption often made by police officers is that such a system would inevitably lead to longer sentences, although Victim Support says there is no evidence to back up this theory. Indeed, victims want reparation or protection more than revenge, the charity believes.

A second option is for the court to be provided with an 'impact statement', detailing the effects of a crime, but excluding any hint of the victims' views about sentencing. Indeed, this already happens to an extent, although not systematically, with judges considering the damage perpetrated by an offender before deciding on the punishment.

Many commentators, however, are wary. They say that sentencing is an issue of public policy and not a matter for the victim. Society as a whole should determine to what extent it wants to punish and perhaps rehabilitate offenders, deter other criminals and protect potential victims. Consistency, they argue, should be a key part of the criminal justice system and a process that relies on the wishes of different individuals will be inherently inconsistent. Andrew Ashworth, professor of law at King's College, London, said last week: 'Prosecution is a matter for the public and you cannot have a system which depends on whether a particular victim is vindictive or forgiving.'

Neither does Prof Ashworth support the introduction of victim impact statements. 'Is it right that a particular offender should receive a more severe sentence because his victim suffered abnormally serious after-effects or that another offender should receive a much lower sentence because his victim was counselled successfully and apparently recovered quickly?' he asks in a recent article in The Criminal Law Review. This would reduce the legal process to a matter of chance, not policy, he says.

His views will displease Janet, but many lawyers hope that they hold sway. They believe that she should be given information and help, but not influence.