Criminal Proceedings And Victim’s Influence

Introduction

The criminal justice system faces considerable improvements concerning the quality of services to those individuals who are enrolled in the system and deal with the revision of key policies. One of the most fundamental issues is the purpose of the sentencing, including the definition of the main figures in the criminal justice process. The paper deals with a discussion of victims’ opportunity to influence the criminal proceedings in the modern criminal justice system of England and Wales through an analysis of The Code of Practice for Victims revised in 2015. The idea of using this Code as a primary source seems to be practicable since it is the basis of current victim-related legislation in England and Wales.

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The gradual examination of the victim’s influence on the decision-making through the stages of the police investigation, pre-trial, trial, appeals, post-trial, and restorative justice will be provided in the form of recommendations concerning the optimal degree of their impact and its corresponding advantages. The paper refers to the previous version of the Code and other legislative acts that may affect victim-related policies within criminal justice.

The analysis of the Code proves that the victims are treated as passive subjects, who are marginalized within the criminal justice system and introduced to victim care services instead of being involved in the criminal proceeding. Therefore, it appears effective to strengthen the victim’s position by providing improved services as well as promoting the victim’s involvement through the opportunity to appeal, receive increased compensation, and submit additional VPS. However, participation in the trial may enhance the subjective attitude of the juror.

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Key Definitions

The discussion of victim’s influence in the criminal justice system requires a comprehensive understanding related to the way of defining victim and victim’s influence. According to the 2013 Code of Practices for Victims of Crime, a victim was defined as “a person who has suffered harm, including physical, mental or emotional harm or economic loss which was directly caused by criminal conduct”. The definition of a victim was broadened in the 2015 version of the Code, with a victim defined as “A natural person who has suffered harm, including physical, mental or emotional harm or economic loss which was directly caused by a criminal offense” (Ministry of Justice: 2015, p. 1). As confirmed by Moynihan, who analyzed the current legislation about victim’s influence (2015, p. 27), there is no considerable difference between both definitions. It implies that the way the victim is defined does not impact the borders of the victim’s influence on criminal justice processing. Determining the influence of victims on the criminal justice system seems complicated because the prosecutor represents the interests of a victim. Considering the participation of victims during the trial, it is possible to estimate their potential impact as the way, in which the speech of the victim alters juror’s attitudes and decision-making. In other words, one can measure the victim’s influence by a difference between the juror’s decision-making in case the former participates as compared to the case when he is not involved.

Police Investigation Stage

The first stage of criminal proceedings focuses on providing pro-victim services and has no place for the victim’s influence within policy decision-making. At the stage of the police investigation, the victim is entitled to be informed concerning the expectations from the criminal justice proceedings, whereas the police must direct their actions towards reducing potential harm to the victim regarding the acknowledgment of reporting a crime. According to the Code, the victim may request or not request confirmation of having reported the crime, which may be interpreted as a characteristic of victim-focused decision-making: “You may request not to receive such acknowledgment.

Though people criticized this stage for the lack of empathy for victims (Criminal Justice Joint Inspection: 2015, p. 8), another evidence of emphasis on victim’s benefit is stated further in the Code: “an assessment of whether you want to support, and if so what help or support you may need”, including the consideration of the categories, to which the victim belongs and whether the additional services are necessary (Code of Practice for Victims of Crime: p. A., s.1). The following passages of the Code focus on the victim’s right to be aware of the updated time frames, to be provided with an explanation of the decision not to investigate the crime as well as to receive advice and necessary information in case no person is being charged (Code of Practice for Victims of Crime, part. A. sec.18). Subsections 1.2 – 1.11 also represent maximum assistance to the victim to cope with the situation with emphasis on the victim’s emotional comfort in parts 1.8 – “have the number of interviews limited to those that are strictly necessary for their investigation” and 1.9 – “have medical examinations kept to a minimum and carried out only where strictly necessary for the criminal proceedings” (Code of Practice for Victims of Crime, part. A., p. 19). The analysis of these parts of the Code allows assuming that the position of the victim has been considered within the harm he experiences as a passive subject, but the second subsection demonstrates the victim’s opportunity to have a voice.

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The second subsection refers to Victim Personal Statement (VPS), the purpose of which is “to give you a voice in the criminal justice process” providing VPS would be considered as a part of the evidence before sentencing in case the defendant is found guilty (Code of Practice for Victims of Crime: p. A., p. 21). It means that the impact of a crime on a victim will be considered under the condition that the court considers it appropriate. Thus, although the victim is allowed to have a voice in criminal proceedings, it does not provide a guarantee of this voice’s consideration in the court, which may make VPS a means to satisfy the victim’s decision to be listened to instead of providing real influence on the decision-making. While the degree, to which juror considers VPS, is unknown, the opportunity to submit VPS enhances the victim’s participation and should be favored. According to the report of the Victim’s Commission on the Code, the victims “were found to be generally supportive of the VPS process and the ability to make a statement to provide an account of their experiences in their own choice… 78% of victims who made a VPS said they would make a VPS in the same circumstances” (The Victim’s Commissioner: 2015, p. 16). Since the jurors consider the VPS and emphasize the need to receive more VPS (The Victim’s Commissioner: 2015, p. 16), in A Review Of Complaints, the Victim’s Commissioner states that promoting VPS is highly appreciated (2015, p. 5). Though the preparation stage does not provide an opportunity to impact the decision-making concerning the investigation process, which is justified by the character of the first stage (it is dedicated to gathering information and evidence, while the decisions would be made further), the option to write a VPS is the main opportunity to be heard at this stage. The tendency to address the needs of the victim instead of guaranteeing the opportunity to influence decision-making is also evident in the next stages of the criminal proceedings, which will be discussed further in the current paper.

Pre-Trial Stage

Similar to the police investigation stage, the pre-trial stage includes charge and bail victims and provides opportunities to influence the criminal proceeding. Apart from ensuring the victim’s awareness of the decision to prosecute the suspect, it is necessary to provide the victim with respective access to review the decision based on “Victims’ Right to Review Schemes”. However, the cases in which the scheme is applied include those, where the suspect was identified and interviewed under caution (The Crown Prosecution Service: 2017), which considerably limits the opportunity of the victim to review the decision (The Crown Prosecution Service: 2017). The outcome of the given review varies from confirmation of the previous decision to the announcement of the further proceedings, which demonstrates that the Victim’s Right to Review can influence the decision to prosecute. It is possible to confirm this assumption by the fact that in case the victim disagrees with the results of the review, the right to apply to the High Court for a judicial review has been identified under the scheme (The Crown Prosecution Service: 2017). Hence, contrary to the previous change, apart from being informed and comforted, the victims have opportunities to influence the decision-making twice during the pre-trial, which does not guarantee the satisfaction of the victim’s will but engages a victim in the criminal justice proceeding. When dealing with an offense out of court, the police, Youth Offending Team, and the Crown Prosecution Service have to ask about the victim’s position in case of out-of-court disposal (Code of Practice for Victims of Crime: p. A., p. 21). It provides an opportunity to influence the criminal proceeding even if the offense is dealt with without taking it to the court. At this stage, the victims are provided with adequate opportunities to influence the decision through the Review Schemes, thus their impact should not be increased. At the following post-charge and pre-trial stages, the pro-victim direction defined through VPS within police investigation and via Review Schemes at the pre-trial stage no longer exceeds the limits of awareness and the access to additional service with the Witness Care Unit (Code of Practice for Victims of Crime: p. A., p. 23) with no impact or participation in the criminal proceeding.

Trial Stage

The third stage of the criminal proceedings includes trial, where the victim has obligations to pass a cross-examination according to the order identified by the court, whereas the victim as the witness has little impact on the criminal process. The core of this stage is that the victim is attending court as the Witness – a third party who has faced indirect harm from the offense. By definition, in case the state that represents the public interest and the defendant are the subjects of the criminal proceeding, the role of the victim is insignificant. The exclusion of the victim from participation in the proceeding makes him an ambiguous participant, whose function is to provide evidence, if needed, instead of protecting his interests. For example, subsection 3.3 of the Code identifies the cross-examination of witnesses, which is purposed to check the reliability of evidence provided by the victim (Code of Practice for Victims of Crime: p. A., p. 26). Although the interests of the victim are considered during cross-examination, according to the statements of the Ministry of Justice provided in the recommendations for improvements, the fairness and justice of the trial depend on the court: “it is up to the court to make sure the trial is conducted in a fair and just manner” (2013). It means that even if the fairness of the trial is questioned by the victim and his/her rights are violated during cross-examination, the court is responsible for making a decision, whereas the victim’s authority is minimal. The reason is that at this stage, the victims have to conduct discomfort physical examination and other procedures to prove that they were affected by the offense. The emotional well-being of the victims and their preparedness for examination are not mentioned in the court, which means that the primary improvement needed at this stage is consideration of the victim’s psychological well-being and the guarantee of its consideration by the juror. Moreover, it is necessary to ensure the opportunity to submit VPS at this stage due to the relevant changes in the victim’s condition affected by the state. Consideration of the victim’s psychological wellbeing and updates on VPS would considerably broaden the victim’s influence on the process and provide a base for further impact at the sentencing stage.

Sentencing

At the stage of sentencing, the victims are also entitled to receiving well-timed information on the sentencing decision without the guaranteed opportunity to influence it, but the participation of the victim in the hearing may challenge the juror’s subjectivity. The fourth section reveals the rights of the victim to receive sentencing information, where the pro-victim approach is manifested via naming the establishments, which are responsible for the condition of the victim. In passages 4.1 – 4.4, Witness Care Unite and the police are identified as the sources of further services for victims, including the time frames and the content of the service: “You are entitled to be informed by the Witness Care Unit of the sentence given to the suspect (of convinced) within 1 working day of the Witness Care Unit… This includes a short explanation of the meaning and effect of the sentence” (Code of Practice for Victims of Crime, s. 4.3., p. 27). In the next passages, the victim is “entitled to be referred to the CPS who will answer any questions you may have” and bereaved close relative in a qualifying case is “entitled to be offered a meeting with the CPS representative who will explain the sentence given” (Code of Practice for Victims of Crime, part. A. sec. 4, p. 27). These passages demonstrate that it is necessary to inform the role of the victim in the decisions and to have a complete awareness of the situation. It implies a passive position of the victim, who is receiving instead of being a subject, being capable of responding, although a controversial option to have a voice remains allowed.

This option is reading aloud VPS; however, the effectiveness of this decision may be questioned. On the one hand, it provides an opportunity to have a voice and to demonstrate own perspective. The multiply criticism of the criminal justice system of England and Wales regarding the victims’ participation may be confirmed by recalling the purposes of sentencing according to the Criminal Justice Act and the position of victims in this process. Under the Criminal Justice Act of 2003, the purposes of the sentence implied punishment of the offenders, the reduction of crime, the reform and rehabilitation of offenders, the protection of the public, and making reparations to the persons affected by the offense (Criminal Justice Act: 2003, p. 12, s. 142). In compliance with this definition, the victims and the individuals affected by the crime are the last to be protected, which means that in case of offense, criminal justice is purposed to cure the functioning of the society instead of protecting the victim’s interests. However, the offense is conducted against the victim, which implies that the victim has suffered the most. Hence, he has a major interest in the criminal justice system and, therefore, should have an opportunity to influence the decision-making. On the other hand, since the victim’s participation was reported to shift the attitudes of the juror, it may challenge j objectivity of the latter. The analysis of the research on victim's effect on the sentence by Karp and Warshaw proves that the presence and participation of victims may influence juror’s position concerning the punishment: “Analysis shows that when co-victims testify, they do increase the likelihood that jurors will find their punishment wishes to be important” (2006, p. 289). This information requires balancing between the consideration of the victim’s interest and the objectivity of the judge, which might be reached through increased compensations to the victim instead of allowing the latter to affect the juror’s position. This opportunity requires attentive consideration of the impact caused by the offense on the victim, including the shifts in psychological well-being. The sentencing stage is the most favorable for consideration of the victim’s position: the further stages of appeal do not cause a significant influence on the victim.

Appeals Stage

At the stage of appeals, the victim remains a passive subject, who is expected to receive guidelines from above with unguaranteed consideration of VPS. At the beginning of Section 5, the use of passive voice in the description of the case may be interpreted as an emphasis on the result of the action, which averts attention from the circumstances of decision-making and the responsible individuals: “If an application is made to the Crown Court to appeal against a conviction or sentence in the Magistrate’s Court” (Code of Practice for Victims of Crime, sec. 5, p. 27). In this part and the following passages of the Code, the victim is entitled to receive necessary services, a place for sitting, and accurate information (5.4 – 5.5), which represents the expected passiveness of the victim. However, the voice of the victim may be listened to in the court of appeal through VPS, which “the court will always take into account” (Code of Practice for Victims of Crime, sec. 5, p. 28). The reason for consideration of VPS is ‘the continuing impact the crime has had on you”, although according to the further statements, “VPS should not contain any comments about the sentence given or whether the appeal should succeed or not” (Code of Practice for Victims of Crime, sec. 5, p. 28). These cited parts of the Code are controversial since they announce the victim’s right to be considered in the decision-making under the condition that the victim does not demonstrate their position in the case. Such a formulation allows assuming that the decision-making of the appeal may consider the effects of the offense but does not tolerate the victim’s voice regarding the possible decision. Substantial enhancement of the victim’s influence on the Commission’s resolution should not occur since the victim is not objective and responsible for the decision. However, it is vital to create measures, such as compensation, that guarantee consideration of the victim’s condition resulting from the crime’s continuing efforts.

Post-Trial Stage

It is necessary to revise the least participation of the victim expected at the post-trial stage: the opportunities to argue against the decision via the victim’s lawyer should be given to provide the consideration of his voice. Moreover, in case of criminal case review, the Commission decides whether the victim must be informed. According to the Code, it “will assess the potential impact on you and will decide if you should be notified” (Code of Practice for Victims of Crime, sec. 6, p. 29). It means that at the post-trial stage, the victim is excluded from the criminal proceeding and even may not be informed about the decisions made in case the Commission considers that there is no need in informing the victim. If the victim has been excluded, the Commission is obligated to “record the reasons for its decisions as to the form of contact with you”, but will notify the police, if it is appropriate” (Code of Practice for Victims of Crime, sec. 6, p. 29). The relevance of contacting the victim is decided by the Commission and may be provided to the police, while the victim is neither a subject nor a witness at the post-trial stage of the criminal proceeding. It questions whether the criminal justice system is intended to keep victims completely aware of the case if part of the proceeding runs without notifying the victim. Concerning the issue of the victim’s contact with the Commission, the Court, and the policy, the statutory Probation Service Victim Contact Scheme may be analyzed as an effort to inform the victim about the proceeding without any opportunity to influence the situation. In particular, Victim Contact Scheme (VCS) implies “being informed of the stages of the offender’s sentence… and to make representations about victim-related conditions that can be attached to the offender’s release license” (Code of Practice for Victims of Crime: sec. 6, p. 30). This option is available for the victims of violent and sexual offenses, where the offender receives a minimum of 12 months of sentence and appears to be purposed to ensure the safety and awareness of the victim and publicity. Contrary to the previous section, such as post-trial, when the consideration of the victim’s voice is not guaranteed, the 6th section of the code focuses on the victim’s condition and safety (Code of Practice for Victims of Crime: s. 6, p. 30). It means that at this stage of a criminal proceeding, victims are capable of influencing the proceeding via the VCS, although it relates to their safety and comfort. The impact on the victim at this stage may be increased by proving him an opportunity to argue the decisions via the victim’s lawyer. This opportunity would reduce the number of unsatisfied victims, which would prevent the need for restorative justice if the case has been delivered to the court.

Restorative Justice and Victim’s Interest

Restorative justice leaves a victim within a narrow range of opportunities and does not allow him considerably influence the situation, since the decision on the case has already been made. Restorative justice may provide another chance to the victim to impact the situation by joining the victims and offenders. The benefit to the victim is that the procedure helps “to be heard and sometimes to have a say in the resolution of offenses” (Code of Practice for Victims of Crime: s. 7, p. 34). Since this initiative may be a part of sentences after criminal proceedings, while the criminal proceedings are ongoing and a part of out-of-court disposal, it may be characterized as a compromise between the parties. The victim may experience emotional satisfaction by expressing his or her view on the offense and due to the offender’s apology. The benefit of the offender is that he or she may avoid more serious punishment and have another opportunity to cope with the situation. The benefit of the state in restorative justice is that it can satisfy both the victim and the offender without further criminal processing, which prevents unnecessary spending and reduce the burden of the criminal justice system. Despite the overall benefits of this option, the victim has an opportunity with a lack of choice: in case the court has offered this restorative justice, sentencing or further proceedings are unlikely, which means that the victim has little impact on the case. The increase of the victim’s influence at this stage is useless because there are no other options for decisions; thus, enhancement of the victim’s influence should not occur.

Conclusion

The analysis of victims’ status and role in criminal justice proceedings demonstrate that they remain a passive parties. Therefore, it is not recommended to considerably increase their influence. The criticism of the current legislation demonstrates that the changes should focus on services’ improvement for the victims instead of substantial reforms of the policies. The analysis of victims’ effects on the case during various stages of criminal proceedings demonstrates that they are considered the third party – a passive subject that is not allowed to influence the decision-making. Though improvements in services would considerably improve their experience of being a victim and should be favored, revision of the victim’s role in broadening the opportunity to be involved in the decision-making may challenge the juror’s objectivity and attenuate the integrity of the adversarial system. In particular, the influence of victims during the police investigation stage and pre-trial stage should not be increased. However, at the trial stage, another opportunity to update the VPS would provide an opportunity for the victim to communicate their condition and to allow the judges to consider new information to make a fair decision. At the sentencing stage, it would be beneficial to increase compensation to the victims instead of allowing them to participate in the hearing and alter the juror’s objectivity. At the appeal stage, victims have a minor opportunity to affect Commission’s decision, which should not be changed, whereas, at the post-trial stage, the victims should be allowed to argue against the final decision via the lawyer. Restorative justice does not provide an option to impact the decision on the case; therefore, an extension of the victim’s influence at this stage is not substantiated. Overall, it is necessary to revise the victims’ position as the passive third party, but the extension of their influence may negatively affect the objectivity of the decisions.

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