Vengeance should not be thine: Let the victim be heard in court, but not to the exclusion of justice, says Paul Cooper

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The Independent Online
SEVERAL days after Barry Hayes was savagely attacked outside a south Liverpool pub, in apparent retaliation for admonishing a group of youths who damaged his car, he appeared before television cameras in his hospital bed. A patently decent man, he recounted his dreadful experience and expressed his bewilderment at a justice process that, for him, showed more concern with the well- being of offenders than with justice for the victims of crime.

His television appearance prompted the Home Secretary, Michael Howard, to speak of the problems caused by 'do-gooders' and of the need for a shift of focus from concern for offenders to justice for victims. Similar sentiments have been expressed in the past few days by the Prime Minister. In a lecture to the Social Market Foundation in London he called for a national effort to build 'an anti-yob culture'. He said that new legislation would make it easier to prosecute people for intimidating behaviour and would 'punish revenge attacks hard'. He also said that courts should 'pay full regard to the effect of a crime on the victim'.

Some would question whether the criminal justice system really is excessively preoccupied with the welfare of criminals, but their victims certainly suffer - both at their hands and from the shortcomings of a process that has ignored their needs.

Pressure groups that speak up for the victims of crime point to the tendency of criminal justice professionals to regard victims as peripheral to their main preoccupations of prosecuting and processing offenders. A mother of a murder victim told me of her frustration at an imbalance in the system. She pointed out that while offenders, through their lawyers, can address sentencers, and may contribute to decisions about parole, the system offers little scope for similar contributions from victims.

The Government, which incidentally takes a similar approach to the Labour Party in this, intends to expand the information on victims that is available to sentencers and parole boards. Home Office standards that regulate the work of probation officers, who write reports on offenders for sentencing courts, are being revised, and these reports could soon contain more specific information on the impact of the crime upon its victim.

Similarly, the Home Office has plans to extend the provisions for relatives of murder victims, contained in the 1990 Victims Charter, to victims of other serious offences. The Charter gives relatives of murder victims the right to report their views and anxieties about plans for the release of offenders, through probation officers, to the Parole Board.

So far, probation officers have handled their responsibility to relatives of murder victims cautiously, working only with small numbers. In the main, those involved have reacted positively. Some have welcomed the chance to clarify issues about the process of life sentencing, while others have used probation officers to communicate with the offender and resolve questions unanswered since the murder. In a few cases, relatives have requested face-to-face meetings.

In the long run, however, an expanded role for victims in decisions on sentencing and parole is likely to raise deep and perplexing issues that have, as yet, only been touched upon in the English jurisdiction.

The United States, on the other hand, is a long way down the road of victim participation. Many American states require not only a report on the offender, but also a 'victim impact statement' as part of the sentencing process. The statement involves a report on any loss and physical injury caused by the offender, a comment on any relevant changes in the victim's welfare, and a forecast of future psychological needs.

Such a report was prepared in a murder case in Maryland, a state that retains the death penalty. The murder was committed by two drug addicts, Booth and Reid, who were disturbed, in the course of a household burglary, by the occupants, Mr and Mrs Bronstein. The Bronsteins, an elderly couple with a mature family, were bound, and stabbed in the chest repeatedly. Their bodies were discovered two days later by their son.

Victim impact statements were prepared on the Bronsteins' son and daughter, reporting the loss of loving parents and grandparents, describing their nightmarish experiences on arriving at the family home and emphasising the long-term traumatic impact of the crime.

Booth and Reid were sentenced to death but appealed to the American Supreme Court on the ground that the use of victim impact statements offended due process provisions in the Eighth and 14th Amendments of the Constitution.

They argued that the statements introduced a capricious element into the capital sentencing decision and the majority of the Supreme Court found in their favour. The Court took the view that hugely variable factors in the personal make-up and social position of individual victims should not influence a court's decision on whether an offender should live or die.

The American experience suggests that giving greater prominence to victim information may hold the risk of turning sentencing and parole decisions into a lottery, unless the status and purpose of victim information are more sharply defined, and the role of the victim in relation to the offender and court is clarified.

It may be mistaken for us in Britain to think of an expanded role for victims that simply follows the American path. Perhaps, instead, we should start to consider other models in which victims are more central to the justice process. We could look, for example, to southern Africa and Japan, where there are traditions of involving victims in responses to crime. These aim to produce real compensation for victims; and punishment of offenders reinstates the rights of the victim through mediation that includes apology and reparation by the offender, and, sometimes, forgiveness by the victim. It may be, therefore, that in promoting the role of victims in the criminal justice process we also need to consider whether our approach to punishing offenders needs to change.

The author is senior lecturer in criminal justice management at Liverpool John Moores University.

(Photograph omitted)

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