On the 29th October 2013 a new Victims’ Code was announced by the Ministry of Justice. Under the new system victims will be able to read a Victim Personal Statement to the court after a guilty verdict but before sentence is passed. This is significant because it allows victims to read the statement themselves whereas under the current system the judge reads the statement in private and a small exert may be read aloud in court by the prosecuting barrister.
In addition to this, the new Victims’ Code will enable businesses, who are victim to 9.2 million crimes each year, to write Victim Personal Statements for the first time. The code will also make mandatory a police referral to victims’ services, make clear what a victim can expect from the system, who they should receive help from, and sets out rules for compensation if the victims do not receive the support they are entitled to.
In October 2011 a report for the Commissioner for Victims and Witnesses in England and Wales written by Professor Julian Roberts and Marie Manikis, contained a review of empirical research into Victim Personal Statements. The report found that in the three years before the report was published Witness and Victim Experience Survey (WAVES) data found that only 42% recalled being offered the opportunity to make a Victim Personal Statement, and of all those who recalled being offered the opportunity 55% wrote a Victim Personal Statement. Research found that victims of violent crime were more likely to make a statement than those who were victims of another type of crime.
The reason for providing the statement was most commonly to communicate a message to the court and the offender, whereas some wanted their statement to have an impact on sentence, although it was found that victim statements rarely contained prejudicial material such as a recommendation for sentence, unless they were encouraged to do so. There is also evidence that victims may be confused by how victim statements are used and how these differ from other documents submitted to the police.
Research recent to the report suggests that legal professionals have a more positive attitude than previously to victim impact statements, whilst judges in other jurisdictions report that victim impact statements are beneficial in determining the seriousness of the offence, or when determining the amount of compensation to award.
There are those who welcome the move as it provides victims with a voice otherwise kept silent by criminal proceedings. Javed Khan, Chief Executive of Victim Support, said “We warmly welcome this decision which gives victims the choice to explain to a court in their own words the personal and emotional impact a crime has had on them and their families, a process we know can help victims cope and recover from crime.” Whilst Victims Minister Damian Green MP stated that the proposals would: “give victims a real say in proceedings”.
It is arguable that victim impact statements can be beneficial to both the victim and the offender as the victim may experience a therapeutic effect, whereas the offender will be forced to confront the consequences of their actions.
One of the main arguments in favour of Victim Personal Statements is that it increases victims’ satisfaction with proceedings. Damian Green stated: “It will enable them to feel that the whole process is much fairer and they have literally had their say before the judge passes sentence”. However the 2011 report found that of those that gave a Victim Personal Statement only 39% felt that their statement had been fully taken into account by the judge. Whether this figure will increase if the statement is read by the victim themselves or if having done so dissatisfaction increases if they feel they have been ignored and further victimised by the system, only time and further research will tell.
Shadow Justice Secretary Sadiq Khan has criticised the plans claiming they will not achieve the promised changes stating: “With their toothless code, there'll be no one taking charge of the impact statement, meaning it continues to be sidelined. The necessary change can only be achieved by Labour's victims' law”.
The positivity of giving victims a voice in criminal proceedings, particularly prior to sentencing, is a matter of some debate. If one accepts the retributivist principles of sentencing then the sentence should be proportionate to the harm caused and the offender’s culpability, Victim Personal Statements may help assist the judge in terms of understanding the extent of the harm caused but this is more problematic than it may at first appear.
The issue is less problematic when considering property offences, for example if an item is stolen from an affluent family then the harm caused to them may well be arguably less than if the same item was stolen from a poor family.
However a very different picture emerges when one transfers the question to violent offences. Is it right to say that the harm is greater if the victim is much loved by close family than if the same victim was devoid of family? One can argue that the impact of the crime is more widely felt by virtue of there being more people to feel it but is it therefore more serious?
Another example which is less clear cut is if the families of two murder victims both give impact statements describing their grief. One family is particularly eloquent whereas the other is not; the delivery of the first statement is likely to have a far greater impact than the second, although this is no reflection on the two families’ comparative grief or love felt for their lost loved one.
This will inevitably have some influence over the judge when it comes to sentencing; judges are after all only human and not completely immune to highly emotive displays. This will, as Marcel Berlins argued back in 2006, lead to a hugely unfair influence over judges between different classes and categories of victims. Damian Green has responded to this criticism by stating that judges are professional and should be trusted to do their job.
Although speaking about an earlier scheme Marcel Berlins’ argument holds even more weight when faced with the new scheme. He stated:
“The articulate, the educated and the attractive will be able to put up a quality performance; those with lesser advantages - and whose loved ones could not be painted in saintly colours - will be even more disadvantaged at the trial. The victim's advocate scheme is misguided and should be abandoned, or at least placed elsewhere in the trial process - after, never before, the sentence.”
I would like to make clear that I am not in any way opposed to victims being supported through the criminal process and given assistance to reduce the potential trauma caused by the system. In this regard the new Victims’ Code is a success as it places the burden on the system to provide support rather than on the victim to seek it out.
Victims should have service rights and if the main reason for allowing the reading of Victim Personal Statements is to make victims feel as though they have been heard then perhaps a finding from the 2011 report may offer an alternative which avoids the negative aspects of the victim delivering their statement in court. Once the judge has read the statement an acknowledgement could be made of the harm to the victim whilst giving reasons for sentence, thus acknowledging that they have indeed been listened to and their opinions incorporated into the decision making process.