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Involving victims in sentencing

Forgive my cynicism but after 35 years of defending in criminal cases and watching the endless chipping away at the rights of defendants I smell a rat and feel a thin end of a wedge coming on when the government talk about giving the victims of crime say in choosing the punishment. OK, so far we seem to be talking low level crime and community punishments but I fear it will not remain that way for long.

We already have victim impact statements being read out in court before sentencing in murder cases. These are a fraud. The very fact it is read out before sentence gives the impression it will be taken into account by the judge. Why else would it be read out during the very part of the case when the judge is hearing about aggravating and mitigating features of the case?

The judge listens, says it’s very moving and then ignores it for the purposes of sentence. He has to. If he didn’t ignore it, if he did say he had increased the sentence on account of it there would be grounds for an appeal. So what’s the point? It’s nothing short of the court trying to look all politically correct saying ‘here we are showing we care for victims of crime’.

What’s wrong with the old system whereby a member of the family or more usually a police officer read out a statement on the steps of the court?  It let the family have their say. It happened after the sentence had been passed and no one thought it had any effect because it clearly didn’t. How many families now understand that the reading of the victim impact statement won’t have any effect on the sentence?

Transparency
It also gives a very unfair advantage to the articulate. Imagine on the one hand the case of professional parents of a young murder victim, who has just got a good degree and is on the verge of a bright future. Those parents will be able to write a brilliant moving statement about their daughter and their own terrible loss. Contrast that with another young woman whose parents split up years ago and who fell into drug addiction and prostitution. The single parent perhaps themselves poorly educated and unable to articulate their similar feelings of grief and despair. Both lives equally valuable, both parents equally distraught but very different victim impact statements. It shows what a sham they are. And I thought we were supposed to have more transparency in sentencing these days.

At the risk of over simplifying things the whole point of prosecutions by the state was introduced into English law possibly as long as a thousand years ago in order to replace the previous chaotic system of blood-feuds whereby the relatives of a murdered person were entitled to seek bloody revenge on the perpetrators and blood-feuds might continue through several generations.   

I think most of us would agree we have improved things a bit since then. I am happy to acknowledge that if anyone murdered any of my children my rage would be so great that I would want to kill the person responsible, preferably by digging their heart out with a spoon!

That may seem a little over the top but I am sure I am not alone in that view. I cannot imagine the grief and pain caused by an act or murder. But that is precisely why the victim’s of such an offence are not the first people to be asked about sentence but the very last. How can the victims of so horrible an offence possibly be in the correct frame of mind to decide on a punishment since no punishment can be as bad as what the perpetrator has already done to them and none can bring the victim back to life?

Law of the lynch mob
That is why we have submitted to allowing the state, as a neutral arbiter to deal with criminal cases of all grades of seriousness and we leave it to the state, through our elected representatives to decide the appropriate range of sentences and then leave it to the judgment of (mostly) professional judges to decide the actual punishment appropriate.

And long may that continue because once punishment in particular cases is opened up to general debate we will be back to the rule not of law but of the mob. You can imagine newspapers like the Sun or Daily Mail running a ‘choose the sentence’ campaign.

All said to be very democratic I am sure but in truth just the law of the lynch-mob. We may be a long way from this at the moment, although I am reminded it is there in the wings every time I hear a murder victim’s family saying that life should mean life. Once you start on such a process of inviting the victims of crime to decide the appropriate sentence, even in relatively low level crimes it is but a short path to extending that right to say driving offences, and then assaults and before you know it all manner of sentences will be decided by the victims.

Related
Mark George QC Posted by on October 12, 2012. Filed under Crime,Prisons,Sentencing. You can follow any responses to this entry through the RSS 2.0. You can leave a response or trackback to this entry

6 Responses to Involving victims in sentencing

  1. CrimeLine.info® Reply

    October 13, 2012 at 11:21 am

    “What’s wrong with the old system whereby a member of the family or more usually a police officer read out a statement on the steps of the court? It let the family have their say.”

    This very sentence displays what in the mind of the public is the core problem at the heart of the criminal justice system. Lawyers and judges have for far too many years treated the system as if it belongs to them and them alone. Its systems and practices served the convenience of the main players and for far too long has ignored the very people it is intended to serve, namely the wider public and also victims.

    For far too long there has been a disconnect between the facts of the case, the sentencing exercise and the person or persons who are so often the primary victims of the crime. The point is made that the victim statement makes ‘no difference’ to the actual outcome, but that is far from the point at all. It is important that people not only feel that their viewpoint or feelings are heard, but that it is done at the correct time and in the correct forum. If that is not the sentencing hearing then I do not know what is.

    I do not recognise the differences between the middle-class educated victim and the perhaps not so eloquent. The art of conveying the real hurt and trauma of a crime is not dented in the least by the quality of grammar or wide use of language. If I am wrong on that then perhaps the answer is to provide resources so that nothing is missed due to a perceived lack of eloquence. For my part I find the whole sentiment grossly patronising.

    It is further often thought that the points made are obvious and would not be lost on a judge. I am not so sure about that either. It is only in very recent times for example that the true value of items lacking intrinsic monetary value (eg photographs or trinkets) have been recognised in burglary cases.

    As for the public dictating sentencing I am not so sure the issue is clear cut. We do see people saying life ought to mean life, and what is actually wrong with that viewpoint? Disagree by all means, but to seek to drive such views from the CJS is simply trying to curtail the views you do not care for. And it is interesting that what at one point may have been seen as lynch mob mentality is now the norm. I give 2 examples – the new(ish) offence of death by careless driving, brought in to force after decades of dissatisfaction with a small fine following death. The other view was that if you did drive carefully then you would not be at risk. A point now widely accepted. The second is in relation to manslaughter where we have seen a dramatic rise in sentence, from so called ‘single punch cases’ (following R v Appleby and other cases) to those involving knife crime. These shifts have all been brought about by public attitudes. I do not actually recognise the lynch mob attitude in the cases that Mark speaks about, sure they do exist. But what I see is in the main families in distress putting forward their views with dignity and restraint.

    • Duane Bridger Reply

      October 13, 2012 at 12:29 pm

      Justice seen is justice served. That is a principal which is accepted & rightly so. Whilst on the one hand the community’s participation in the system is welcomed & the views of victims should be sought. Having too often appeared in courts where the victim impact statements follow a trend of descending from a social butterfly to an agoraphobic mess due to a cat fight at 3 in the morning, I am cynical.

      The “public interest” is something that is often taken into account when prosecuting as is the public protection when sentencing. When looking at those in the courtroom the public are almost always absent.

      Victims rarely attend court unless its a particularly heinous crime. How much interest do the public really have in the criminal justice system.

      We all sighed a sigh of relief & were relieved that Abu Hamza was deported. Other than via the media how much did any of us really participate? Not much.

      Assange is another example. Now one may suggest that these examples are little far from home & the whole purpose of the involving victims in the sending exercise is to allow them to participate & to feel vindicated.

      The purpose of sentencing isn’t a revenge exercise, we all know that. By allowing victims to dictate sentences will only fuel discontent between the perpetrators & the victim & also further reduce the role & function of the judiciary.

      The public have successfully put pressure on the government to consider legislation. ASBOS come to mind, as do the examples mentioned by @CrimeLine.Info which is a reflection that they do have a say.

      Crime affects any person badly. Being unable to sleep for days after a burglary is not unique & one should trust that judges are experienced enough to know how crime impacts on victims & that they will inflict a punishment which fits the crime, the victim & the offender.

  2. simon burrows Reply

    October 13, 2012 at 12:10 pm

    If the justice system belongs to the public, the public will want to decide how it operates. Many see criminal justice as being much more like civil justice than some lawyers do- it is about redress between victim and perpetrator, and not just about reflecting the community’s abhorrence of the crime. That means it becomes personalised- its about that victim of that crime carried out by that perpetrator. All of which means that the impact of the crime on the victim (or his family) takes centre stage in the process in the same way as the perpetrator’s own circumstances, his mitigation, does. How this is brought into effect in the real world of the Courts is difficult. But if criminal justice is not to be brought further into disrepute in the eyes of the public, egged on by the repulsive red-top media in this Country, then something has to be done to address this problem. We saw the judiciary increasing sentences after the summer disturbances last year, notably in Manchester, perhaps that will have to happen more often when offences cause particularly strong reactions. The alternative, I fear, will be a more US style of fixed sentences that removes any room for mercy or fairness for the perpetrator.

  3. agbanks Reply

    October 13, 2012 at 12:11 pm

    Sadly, every word of this reply privileges ignorant reaction to individual cases over intelligent consideration of what’s just, practical and in the broader public interest. It only serves to clarify why it’s so important to restate the principles thoughtfully set out above.

  4. Matt F Reply

    October 13, 2012 at 12:38 pm

    Apologies CrimeLine.info, but I feel you are entirely wrong. When you let the public (especially the victims) weigh in at the point of sentencing you get something like what happened in the s127 case of Azhar Ahmed, who merely made an unpopular political observation at the wrong time. Read the sentencing remarks: http://www.judiciary.gov.uk/Resources/JCO/Documents/Judgments/azhar-ahmed-sentencing-remarks-09102012.pdf

    What happened in Mr Ahmed’s case is that he expressed a strong but crude sentiment that soldiers are murderers who should die and go to hell. Ex soldiers and far right activists seized upon his remarks and spread them far and wide, including putting them in front of the mother of a soldier recently killed in action. She phoned the police. Later, a lynch mob (yes an actual mob) turned up at what they thought was his home but was in fact the wrong address. They shone torches through the windows in the early hours of the morning in a bid to send a message of intimidation. People phoned the company that Ahmed listed on Facebook as his employer and harassed them. All of this was seen as evidence of the seriousness of his “crime”. This is mob justice, not real justice.

    From the Orwellian sentencing remarks of a district judge: “There is, I am informed, a specific programme that can address your thinking and behaviour.” <this for unpleasant political speech. We have already arrived.

  5. Konran Reply

    October 16, 2012 at 10:06 pm

    I have never understood why the victim impact statement does not form part of the PSR to be taken into account when a sentence is suggested by the probation service

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