Earlier this year, Labour’s Victims’ Taskforce headed by Sir Keir Starmer QC published its recommendations on a proposed new Victims’ Law. The Conservative Party Manifesto was quick to follow suit which promised that it would be ‘standing up for victims.’ The Conservatives have also promised a Victims’ Law, and a statutory inquiry into institutional failures to prevent child sexual abuse. (This inquiry has only recently started its work, but its public pronouncements carefully adhere to the terminology of the victim-survivor movement).
- This articles features in Proof, issue 1 – the new magazine of the Justice Gap. It an updated version of an article previously run on the site (here)
So what we see are both the UK’s main political parties co-opting the rhetoric and demands of victimhood, albeit that they espouse only one category of victim. Both show scant regard for the concept of defendants’ rights.
This tunnel vision is a problem. For example, the Labour Taskforce’s document used the word ‘victims’ features 334 times, the word ‘complainant’ twice, and the word ‘witness’ 29 times. In stark contrast, the word ‘defendant’ appears only five times.
Both parties adopt an unashamedly populist stance in relation to crime, with a predominant focus on sexual offending against women. Readers of either document would not realize that since the United Nations took up the victims’ cause in its 1985 Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, crime rates in the West have been steadily falling.
Labour’s report made 14 recommendations, including:
- A statutory framework for victims’ services;
- A mandatory duty to report suspected child abuse;
- A new Code of Practice requiring police to record victims’ allegations;
- ‘An annual assessment’ by the Victims’ Commissioner of steps taken to dispel myths and stereotypes about victims;
- A victims’ legal right of review of decisions not to prosecute or to discontinue a prosecution;
- A revised Victims’ Code ‘setting out victim entitlements’;
- An annual evaluation by the Victims’ Commissioner of steps taken to improve the way in which victims and witnesses are treated in court;
- A statutory duty on judges to hold ‘ground rules’ hearings ‘to control the way vulnerable victims and witnesses are treated in court’.
The Conservative Manifesto is less specific, though it proposes pre-trial cross-examination of ‘child victims’ and ‘specialist victims’ training’ for publicly-funded advocates in serious sex cases. The word ‘victim’ of course imputes guilt to any accused.
Victims vs suspects
As Wendy Kaminer explained in a prophetic article entitled ‘Victims Versus Suspects’ in 2001, the problem with giving complainants (pre-victims) a constitutional role in criminal matters is that it fundamentally unbalances the justice system, by pre-empting the findings of a competent court: ‘When we identify and legally empower a victim before conviction, we assume that a crime has been committed… .’
She goes on:
‘Defendants occupy the center of attention in criminal trials because they’re the ones being prosecuted. The rights conferred upon criminal suspects are limitations on the power of the state to imprison its citizens.’
The Labour Taskforce report’s predominant focus (as the identities of those listed as contributors to the report confirm) is violence against women and girls: the new class of super-victims. By contrast, the ‘elderly’ or ‘disabled’ do not merit a mention. The crime of fraud is referred to once. The report uses the ambiguous term, ‘homicide’, 11 times. By contrast, the word ‘sexual’ appears 42 times, and the word ‘abuse’ 37 times.
It states: ‘Many victims, particularly victims of personal or sexual violence, lack the confidence to come forward to report crime.’ A few pages on, ‘many’ has turned into ‘most’: ‘Most victims of personal or sexual violence are unlikely to report their allegations to the police.’
I have argued before that it is the Crown Prosecution Service’s desire for show trials, particularly in sex cases, that results in over-long indictments and protracted hearings, often with multiple defendants. The scandals of Rochdale, Rotherham, and other towns where mainly Pakistani gangs were found to have abused young girls with impunity, for over a decade, have cast a long shadow of shame over the law enforcement process, which is now engaged in a kind of penitential rearguard action against the scourge of sex crime more generally.
None of this should, in theory, affect the rights of the defence. However, Labour wishes to transform the present system into a ‘criminal justice service’. The Conservatives are similarly preoccupied by the need for efficiency. But the justice system represents one of three constitutional arms of government. Remodelling it, in this technocratic way, as a ‘service’ suggests a sadly diminished constitutional vision.
On 2 February 2015, in a satirical post entitled ‘Tuff on Rape,’ the political blogger Anna Raccoon/ Samantha Cameron-Blackie pointed out the reductio ad absurdum underlying the assumption that more crimes of this type should be prosecuted:
‘There are, apparently, 15,000 rapists in Britain’s prisons already – if only 5% of rapists are convicted, a figure I understand Ms Saunders goes to bed at night mumbling to herself, then we need an extra 285,000 prison places urgently. Wandsworth is our largest prison, and that only holds 1,800 prisoners, so we are talking about 150 Wandsworths being built immediately.’
Starmer’s Taskforce is typically New Labour in its assumption that more bureaucracy is the cure to social ills. Insist on endless statutory reporting mechanisms and mandatory reporting: a jobsworth’s paradise. Demand that more public money be spent on telling people what their ‘entitlements’ are. Encourage satellite litigation and complaints by those aggrieved by decisions of prosecuting authorities, never mind if their case was weak, who will then demand compensation from a Victims’ Ombudsman’s Service for breach of their ‘entitlements’.
The result, I fear, will be a chronic inability to see wood for trees, and a surge in false allegations.
Starmer is famous for his claim that it is ‘more sophisticated’ to start with the assumption that a complainant is telling the truth. ‘Believe the victim’ is the new cool.
So it comes as no surprise to read the report’s authors’ complaint about the police:
‘There is a persistent culture in many forces in favour of a pre-investigation to see whether a crime has been committed rather than acceptance of the victim’s report.’
What this signals is a desire to shift away from a justice system in which the state acts on behalf of the public, to one where agencies such as the police and the CPS act as advocates for complainants.
It cannot be emphasised too strongly how dangerous this is, precisely because it reverses the presumption of innocence. And it eclipses the fact that a criminal trial is a battle over the accused’s right to liberty; it is his freedom (not that of the complainant) that is at stake. This is particularly important in the vengeful, lynch-mob atmosphere that typically accompanies allegations of sex abuse nowadays.
Predictably, the authors wheel out the standard complaint that ‘victims’ are subject to ‘myths and stereotypes’ (they only mean one type of victim). But as law lecturer Helen Reece argues in her 2013 paper, ‘Rape Myths: Is Elite Opinion Right and Popular Opinion Wrong?’, all this does is to substitute a new set of politically correct ‘myths about myths’, and avoids having to grapple with the messy and murky business of human behaviour in a down to earth way.
Two examples of how much the Labour report seeks to privilege just one class of ‘victim’ will suffice. It says that victims of personal and sexual violence should not have to attend a police station to report offences, unlike everyone else. Instead, they should attend a independent reporting centre (as yet unspecified).
But far more disturbing than this is the proposal to limit the rights of the defence to challenge the prosecution’s case, in any case where a witness is deemed vulnerable (that is, any complainant in a sexual case). Thus, it is proposed that judges should have power to dictate the form of questions; to impose ‘restrictions on advocates putting their case’, and to restrict comment on evidential inconsistencies.
A search for truth
Victims’ rights advocates view justice as a form of therapy. This is to misunderstand what justice is designed to achieve, which is to search for the truth, as Kaminer explains:
‘The victim’s credibility must be tested; inaccuracies or inconsistencies in her story must be revealed. Taking a cue from the therapeutic culture, victims’ rights advocates tend to impute virtue to victimhood, but, of course, it is sometimes misplaced. Taking the presumption of innocence seriously means that we can never take an accusation at face value.’
The real problems with our politicians’ approach are their disregard of constitutional fundamentals, and a refusal to acknowledge underlying problems that beset the criminal justice system; delays, inefficiencies, insufficient rooting out of weak cases early on, the collapse of criminal legal aid, and so on. The extreme valorisation of victims in the public sphere is degrading our criminal justice system into a primitive retributionalism.
Barbara is a barrister practising at 1 Gray's Inn Square. She specialises in public and administrative law; human rights & civil liberties; and professional discipline and regulatory law. Her practice includes mental capacity and court of protection work, judicial review, inquests, healthcare law, professional discipline and employment law.