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December 10, 2021

Is justice for victims always criminal justice?

To what extent can an adversarial system of justice meet the needs and wants of victims of crime? The government’s new consultation on “delivering justice to victims” proposes policies to make the criminal justice system more “satisfying” ie less stressful and painful for victims. But I’m not sure the measures suggested will resolve the harm felt by victims and am worried they prejudice the rights of those accused of crime to a fair process.

What do victims actually want? As the Ministry of Justice points out, we don’t know nearly enough about the victims who don’t speak out. There is a huge reliance on self-selecting surveys (such as this). The media often paints victims as focussed on punishment, retribution and a formal criminal justice response. That’s undoubtedly true for a lot of victims. They want their day in court, they want the accused to be convicted and they want a heavy sentence. Most of the recent increases in sentencing law (dangerous driving, assaults against emergency workers etc) are the result of campaigns by victims’ organisations. But just under the surface is a much more complex picture of victims’ agendas.

The primary need for most victims is for someone they respect to listen to their story and to empathise with the frustration and pain the crime has caused. For some people that seems to be enough, and they don’t want much more. Most victims also want to know something is being done to investigate the crime and to stop the accused doing it again. Many victims don’t necessarily want the accused prosecuted and they certainly don’t want to go to court. In over half of domestic abuse crimes reported to the police, the alleged victim will not cooperate with the police. Some may be motivated by fear, but Hoyle and Sanders’ seminal research suggests many victims just want the abuse to stop, not for the perpetrator to be arrested.

We have recently done research with NHS workers and police officers who have been assaulted or abused at work. Obviously, all victims think such behaviour is wrong and want to be treated with respect at work. But when asked about the impact of the most recent incident on them, many respondents said “none”. The same crime can affect people very differently according to their personality and the context. I discussed assaults with a young police officer the other day. He said he didn’t report minor crimes like being shouted at, or a suspect trying to kick him. He just wasn’t that bothered, though found it “horrific” when someone spat at him as he was speaking. But he said some colleagues would report everything and wanted every incident prosecuted.

Police officers themselves don’t think victims always prioritise prosecution. We asked officers (via a survey) what they thought victims wanted most. Top priority was to have the crime acknowledged by the police – to be listened to. Way down the list was “to have their day in court”.

The government’s white paper assumes that criminal justice is the gold standard for justice and what most victims seek. But justice can be achieved by victims in all kinds of ways, and I’m not convinced that formal prosecution processes always offer the best resolution for individual victims. Our adversarial system will always struggle to put the victim at the heart of the process. The process is formal dispute between the state and the accused, not between the alleged victim and the accused. The resolution of the case may deliver retribution for the victim but is unlikely to bring healing. And if the victim views retribution as the main plank of the healing process, then any sentence is likely to seem too lenient.

My concern about the well-intentioned proposals from the Ministry of Justice is that they are unlikely to provide significant support to victims – for those engaged in the court process reducing delays would make the greatest difference. But they also seem to threaten the rights of suspects and defendants to a fair process. This starts with language. The whole document refers to victims. But if the Ministry of Justice is talking about the criminal justice process, the right neutral term is complainants, since everyone accused is innocent until proven guilty. Using the right term does not deny the pain of those who have been assaulted or burgled.

It is right, as the consultation suggests, that the criminal justice process should acknowledge the harm done by crime to individuals and communities. But the government is on a slippery slope in implying that the individual alleged victim’s view should influence whether the accused be prosecuted and what sentence should be meted out. The white paper suggests prosecutors should meet with victims before deciding whether to charge (“Prosecutors should take into account the views expressed by the victim, and sometimes their family, about the impact that the offence has had. We are seeking views on how this works in practice and whether more should be done to take victims’ views into account.”). But how on earth can a conversation between prosecution and alleged victim not bias what should be an objective decision to prosecute or not in the public interest? Two victims who suffer exactly the same type of crime will react to it differently. If someone gets involved in a fight with a friend, they are very unlikely to co-operate with any police prosecution for common assault. But if the same common assault is meted out by a stranger, they may be burning with rage. Should those feelings affect whether a prosecution goes ahead? Surely in Gilbert & Sullivan’s words the punishment should fit the crime?

The white paper completely ignores restorative justice (“an approach to justice that seeks to repair harm by providing an opportunity for those harmed and those who take responsibility for the harm to communicate about and address their needs in the aftermath of a crime”), yet restorative justice is proven to heal the harm of crime better than criminal justice. Out of court disposals get no mention, whereas research indicates that many victims are keen to get some kind of police resolution of crime without going to court. There is an acknowledgment that many victims want to be supported by advocates, counsellors and/or therapists. But no recognition that access to such services may be the only form of justice some victims want.

Of course, we absolutely need serious crime to be prosecuted and for complainants to cooperate with and have a good experience of the court process. People who commit serious crime need to face justice in court and make amends. But we shouldn’t sacrifice the fairness of our system on the alter of a misconceived victims’ strategy.  Fewer delays, better communication, high quality witness support, and the management of expectations about sentencing would improve victims’ satisfaction with the criminal justice system immeasurably. But healing the harm can best be done outside the walls of the court.

 

 

 

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