A new storm has erupted in the UK after a judge was overheard saying that victim impact statements made no difference to parole hearings. The problem with this statement was that it was overheard by the parents of a murder victim who had just finished giving a victim impact statement, during which they said that they were “serving a life sentence of heartache and grief and pain” at a hearing whereat their son’s killers were applying to be moved to open prisons.
Judge Graham White has since apologised to the family, and the Chairman of the Parole Board, Sir David Calvert-Smith, has said that there will be an investigation into the comments.
According to the victim’s mother those comments were as follows:
“'I feel so very sorry for these families. They make these statements thinking they are going to make a difference, but they make no difference at all. Someone should tell them.”
Well it would appear that inadvertently through a private conversation, overheard by the victim’s family, he has ensured that they have in fact been told.
The reaction to hearing this is perfectly justified when she asserts “The heartache that we go through to do these statements, to be told they don't make any difference.”
The issues that arise from this are: regardless of whether the Judge should have been more careful as to who could hear his conversation, is what he said correct; and is the pain caused by giving a victim impact statement justified by their utility?
In Ministry of Justice issued guidance, a victim personal statement is defined as giving victims “the opportunity to explain how the crime affected them and their family, and what the impact of release will be.”
The Shadow Justice Secretary, Sadiq Khan, has rejected the assertions made by Judge White. He claims that without hearing from the victim’s family, the Parole Board could not find out from the offender whether they understood the impact of their crime on the family. He also, very sensibly, pointed out that a victim impact statement could influence licence conditions in an open prison or on day release.
However, Judge White was correct in his defence when he pointed out that victim impact statements did have an impact but did not affect the Parole Board’s assessment of the prisoner’s risk. The validity of victim impact statements is therefore dependent on the prominence of risk as a factor on which the decision is based. If risk is the primary factor, then there is little point in subjecting victims to an ordeal which will no doubt be traumatic, but secondary to an actuarial assessment of the offender.
Herein rests the key problem I have with victim impact statements of any kind. I am in favour of increasing the involvement of victims within the criminal justice system; they should be cared for, and treated with far greater respect and dignity than they are currently afforded. This being said, I fear that asking them to bare their pain and suffering, only for it to be dismissed, is not only undignified, but bordering on cruel.
The therapeutic nature of describing the suffering caused by a crime is arguably not in doubt, although to be ignored in the face of procedure and routine legal practice, must be a terrible process through which to be put, and the ability to speak out during the process and reclaim some of the focus from the offender, to be heard and feel a part of the process is arguably of benefit to the victim.
The problem I have with victim impact statements is that when their contents are aired as part of a legal procedure, rather than in some form of counselling, I cannot envisage a way in which they can justifiably be taken into account in any decision making process, and as such only serve to reiterate that the victim’s opinions and pain are irrelevant.
I have already sought to draw attention to the difficulty in using victim impact statements in parole hearings, as they can only really be of any use once the Parole Board have made a determination as to release or transfer to a lower security facility, and then go on to consider licence conditions.
The issue becomes more problematic in sentencing. How can a victim impact statement properly influence sentencing? The reason why it should not is the same reason why we do not allow victims to sentence their offenders. Judges are expertly placed to arrive at an appropriate sentence, free from an emotional attachment to the case; this goes some way to ensuring consistency and proportionality. That is not to say that victims’ pain, and the harm caused is not a part of those considerations, but the decision should not alter based solely on a victim impact statement.
How then can we involve victims in the process and make them feel as though they are at the heart of the criminal justice system? Victim impact statements may not be the best way, but they may be more effective if the extent to which they will be taken into account is made clear to the victim prior to them making one. This would enable them to come to an informed decision as to whether the benefit is worth the personal trauma of reliving the crime. This would also help to limit the feelings of disappointment and dismissal felt by victims when their statements do not operate as a major factor in the decision making process.
An acknowledgement and understanding of victims’ suffering, and the impact which crime has on them, is the best way to progress, rather than to aspire to some form of consultation with victims, wherein their views will seldom be weighty considerations which impact a decision. Therefore to an extent Judge White was correct in what he said, victims should be told, or rather better informed.