Coming next month to a courtroom near you: a bewildered young man, freshly convicted, trembles in the dock while awaiting his fate. But just before sentencing, a weeping widow stands, turns welling blue eyes to the bench and beseeches His Honour: ‘I cannot forgive him for his part in my husband’s death. My life is ruined. I beg you to punish him to the maximum.’ Murmurs of assent are shushed in the public gallery. ‘Well,’ says the judge, ‘I had planned leniency, in light of the coercion from older bullies and his mental age of six. However, since you ask so nicely — Officer! Take him down and throw away the darned key!’ And the gallery erupts in applause.
All right… hands up to a smidge of exaggeration. But only a smidge. An adjustment to court procedure, proudly announced last week by the policing and victims minister Damian Green, is designed not only actively to include victims of crime in a trial but, he hopes, in some cases to ensure that their inclusion will lead to tougher sentences. Victim support groups are naturally as cock-a-hoop as Green is pleased with himself; neither appears to have noticed that, by plonking the most fraught of emotion where emotion has no useful place, this move undermines a judicial system that has stood us in pretty good stead for centuries.
The change, under the new Victims’ Code, is that between guilty verdict and sentence the victim of a crime — or, in cases of murder or manslaughter, the relatives of the victim — will have the right to read aloud a self-penned ‘victim impact statement’ to ram home the effect that the crime has had upon them.
The victim impact statement is not new; in the West it originated in 1982, in touchy-feely California (you’d guessed that already, hadn’t you?) and it was imported to England and Wales in 2001. Until now, however, it has had caveats: it has been at the judge’s discretion whether or not to include it and, where it has been included, usually excerpts only have been read out, by the judge or the prosecutor. Under such limitations, fewer than 10 per cent of victims even know they may write a statement and, of those, even fewer bother. Now, by contrast, they will all be told of their right early in the criminal process and nobody, not even the judge, can prevent them standing up in court and, quite literally, having their say.
The niggling question is: why?
If, as the victim may hope, it will move a judge towards a slightly more severe sentence, then it shouldn’t. What would be the point of a rigorous trial etiquette — the scrupulous selection of a jury, the strict rules of cross-examination, the meticulous care in summing up — if the outcome were then to be blown out of the water by a strategic whimper?
The whole point of the social contract that underpins our legal system is a tacit acknowledgement that whimpering and pain are impediments to justice; thus, in the interests of fair play, we outsource the justice to a controlled, external and near-as-dammit impartial arena. Muddle the two and it quickly becomes not fair at all.
Consider, for example, an imbalance of eloquence. A victim impact statement written by, say, thee or me might move a grown man to tears; another, perhaps from someone hampered by inadequate education, might as easily bore unto death. What about a similar imbalance of vengefulness? One family might be much taken with the pound of flesh while another, perhaps for religious reasons, chooses forgiveness. Meanwhile, what happens when the victim — the tramp, the recluse, the neglected — has nobody to speak of the ‘impact’ his death has had upon them? So: when the identical crime has been committed, do we really expect a judge to select a different sentence for different circumstances like these?
Consider, too, how one person’s impact can be quite unlike another’s. Imagine, for instance, that the man who killed Sarah Payne in 2000 had only recently been convicted and was now awaiting sentence. Should her mother, Sara, read a statement? Sara, who rallied, fought, campaigned and earned a nation’s respect? Or should it be her father, Michael, who descended into alcohol, violence and imprisonment? God knows, none among us dares guess which path we would take; neither suggests a lesser love for Sarah and neither suggests a lesser ‘impact’. To whom, then, would we have the judge listen?
There are other jurisdictions, of course, who care nothing for such lily-livered concerns. Some even invite family members to participate in execution — to throw the first stone, to wield the first blade. In Saudi Arabia, the family of someone murdered can choose between the death penalty or clemency in return for diyya, a.k.a. blood money; the going rate for the second is apparently around $11 million, making forgiveness a nice little earner.
I know, I know. It’s a heck of a stretch to introduce such barbarism into the matter of reading aloud from a sheet of A4. Nevertheless, the extremes serve to illustrate the difference between cultures that believe the victim somehow owns the crime and those, like ours, that do not. And the current emphasis on the ‘rights’ of victims is increasingly confusing that essential difference.
A solicitor friend tells of a recent client with a bone to pick. Her son was dead, a man was to stand trial and she complained bitterly that, ‘It’s not fair: the defendant sees his barrister whenever he wants and we never get to see ours.’ She was not a stupid woman; just one among many who are losing sight of what had to be explained to her: there was no ‘our’ barrister. The prosecutor’s client was the Crown, not the family.
This is not to say that the family does not deserve support, care and compassion; nobody denies the good work done by police family liaison officers, few would quibble with public funding for bereavement counselling where it is wanted, and support groups — for those who like that kind of thing — should be similarly aided.
But what Damian Green needs to recognise is that none of the above is the job of the judiciary. A court is not empowered to make victims ‘feel better’ — at least not beyond doing what it does best: quelling emotion and calming passion in favour of the factual, straightforward administration of fair trials and just sentences. That, done properly, makes us all feel better.