Debate on Victims Rights in Criminal Justice System

“We need to re balance the system so that it delivers real justice for victims and the wider community” (David Blunkett, 2002).

Critically assess the current debate regarding victims’ rights.

INTRODUCTION

CMS Funding was announced in June 1999 to “streamline the criminal justice system”(Chief Secretary, Alan Milburn, www.hm-treasury.gov.uk/newsroom, 1999), with a Ministerial Priority on Policing established (Rt Hon. Jack Straw, http://news.bbc.co.uk, 1999, March, 25). Following the publication of the Auld Report (www.criminal-courts-review.org.uk, 2001, September) a Government White Paper was published advocating a ‘joined up system’, echoing the “joined up Government in action” approach promoted by the Home Secretary in 1999 (Rt Hon. Jack Straw http://news.bbc.co.uk, 1999, March, 25). The remit of this White Paper was to identify a ‘clear focus on fighting and reducing crime’(Justice for All, HMSO, http://www.cjsonline.gov.uk, 2002, July).

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The rule of law should represent the ideal of a universal goodness exhibiting “no negative impact on any given society, and no negative characteristics that could apply to its nature’, likening it to Bentham’s ‘good in-and-of-itself’” according to Thompson (Thompson, 1975, Page 266). Unfortunately, it appears to be this concept that has swung too far in the favour of society’s miscreants to the detriment of their victims and the communities in which these offenders live, prompting the current debate on victims’ rights and David Blunkett’s intentions to re-address “the balance to deliver real justice to victims and the wider community” (Blunkett www.policesupers.com/police, 2002, July).

DISCUSSION

Whilst all people might be considered equal according to classicist precepts, with governments created by those individuals to protect the people’s rights through the recognition of a social contract (McCoubrey and White, 1999, Page 60 – 84), David Blunkett singles out a specific sector of society by suggesting that:

“nearly three quarters of street crime offenders are under 17 and a hard core five per cent of juveniles are responsible for 60 per cent of offences for their age group” (Blunkett, www.publications.parliament.uk, 2002, November, 14)

Clearly, despite the introduction of innumerable projects designed to re-integrate offenders back into their communities, the growth in lawless behaviour has not diminished. Many measures to restrain unacceptable behaviour are now available, amongst which are Youth Offending Teams, Final Warning Schemes, Detention and Training Orders, Acceptable Behaviour Programmes, Parenting Orders, Reparation Orders and Anti-Social Behaviour Orders (Blunkett, www.publications.parliament.uk, 2002, November, 14) although, retrospectively, little appears to have improved.

In December 2003 Lord Falconer of Thoroton emphasised that this:

“crime and anti-social behaviour corrupts communities, eating away at the fabric of the way we all want to live our lives”

(Lord Falconer, www.dca.gov.uk2003, December 3).

An increasing lack of morality appears to be more prevalent within modern society, with Chief Superintendent of Greater Manchester Police describing these amoral youths as “feral” (The Times Newspaper, 2005, May, 18). Despite all the legislation at the disposal of the criminal justice system, however, the ‘yob culture’ appears to be endemic, with the vulnerable in society more at risk of becoming victims than ever before.

The media report lurid headlines on a daily basis: “Beaten to death on his doorstep” (Daily Mail, 2005, May 21); “Beaten up on Video Phone” (Daily Mail, 20/05/05); “Hoody ban eases shoppers’ fear” (Daily Mail, 20/05/05, page 8). The edition on May 19^th 2005 reported how ‘thugs attack a funeral car’ by launching an 8 foot length of wood through the windscreen of the car travelling immediately behind the hearse. It has been reported that “…some forces are not making good use of legislation and tackling the imitation firearm problem” (Green, Deputy Chief Constable, Greater Manchester in Daily Mail, 20/05/05, Page 8) when children, some as young as 13, routinely carry replica BB guns, which can cause serious injury to targets up to 30 yards away, around the streets.

In 2002 the Home Secretary intended:

“to deliver real justice to victims and the wider community and strike a fair balance between the rights of victims and the accused”

(Blunkett, www.policesupers.com, July 17).

Evidence of this can be seen in the introduction of Problem Orientated Policing which incorporates community initiatives, together with a number of other stakeholders within the criminal justice system and aims to introduce additional improvements to the youth justice system and establish “more effective justice for victims and the wider community” through “more effective punishment and rehabilitation..”.(Leigh, Read and Tilley, 1996).

Protecting the community should be at “the heart of a stable and civilised society” and these changes to the criminal justice system should be in accordance to society’s needs and expectations (Lord Chancellor, www.policesupers.com, 2002, July, 17). An example of which can be seen in South Africa which incorporates the ethos of restorative justice [known as ‘Zwelethemba’] with the essence of maintaining peace in the community (Roche, 2004: 85). Money received from this programme is contributed back into the community to reduce poverty and unemployment and attempt to remove the need for ‘draconian repressive measures’ (Roche, 2004: 231).

Blakemore suggests that social policy should evaluate how policies impact on peoples’ lives (Blakemore, 1998: 5). Acceptable behaviour is enforced through law and morality which is maintained through rules and principles: “the cement of society” (Devlin cited in Elliott and Quinn, 1998: 449). This ‘cement’ illustrates legal moralism that has been identified as ‘socially significant’ (Cotterrell, 1989: 1), providing an analysis of law’s conceptual structures (1989, Page 3) and emphasising the importance of shared values, ultimately influencing individuals’ behaviour (Pampel, 2000: 57) a decline, as the result of organic solidarity differentiating collective conscience, creating an environment for an increase in crime. This philosophy of inter-related support has been recognised as structural functionalism which, taken to extremes, acknowledges that poverty and crime are normal and natural functions within any healthy society (Pampel, 2000, Page 75).

The Legal Action Group, meanwhile, suggest that “victims’ and defendants’ rights are mutually incompatible” (Cape, 2004) and suggest that victims rights are not being catered for; their rights are neither acknowledged nor respected. However, they also ascertain that, in making it easier to convict defendants is not in the best interests of the victims. The fragility between rights to security and freedom and the obligation to protect communities, reflects a natural result of shared morality without which “rules would lack meaning” (Pampel, 2000, Page 67). This factor was clearly recognised by David Blunkett who acknowledged “…the public felt that the system had swung too far in favour of the accused” (Criminal Justice Conference, www.cjsonline.org.uk, 2002, June, 19).

However, this intensely deep-rooted problem of lawlessness within communities cannot be solved by the police alone. Henham observes that this can only be achieved through:

“disregard of formal legal controls which prove an obstacle to the production of a high conviction rate” although he acknowledges that “due process” maintains an “adherence to courtroom procedure and protection of the individual” (Henham, 1998, Page 592).

Pampel observes that “the problems of society become most visible when change occurs, and recent decades have brought immense social and economic changes” (Pampel, 2000: 52). Durkheim, meanwhile, noted that society works best when it exercises control over individuals (Pampel, 2000: 72). Laws are intended to regulate relationships with the result that conflict is avoided, enabling government and education to progress.

With the intention of better justice through more consistent sentencing, the White Paper preceding the Criminal Justice Act 1991 suggested that “convicted criminals get their just deserts” (HMSO, 1990, Cm 965; Worrall, 1995). Restorative justice, however, is identified through mediation, conferencing, circles and reparative boards such as the utilisation of victim/offender mediation with the intention of reconciliation as opposed to merely conciliation, reflecting how restorative justice can fit into the existing criminal justice system and the identity of a modern definition of community, followed by the ethos of forgiveness. Whilst this concept has relevance in today’s society, human rights’ issues and society’s concepts of punishment’s role create a rhetoric which still needs to be resolved.

The National Victim Support Programme was considered a way forward with respect

to society’s acceptance of restorative justice but:

“both of the major political parties have pursued half formed and in many ways half hearted policies in relation to victims of crime. There is little indication of change in this area” (Newburn and Crawford, 2003 117).

Restorative justice is viewed with suspicion due to concern amongst the community in relation to appropriateness of restorative justice for cases of violence and the appropriate punishment in such cases. Added to this, the managerialism and financial control have impacted on the restorative justice movement.

Where there is no precedent, the focus of control is balanced between local and central government, with penal reform likely to be forced into the background as:

“the front bench Home Affairs spokesmen of both the major parties battling to ‘out-tough’ each other, there appears little prospect of coherent and forward-thinking policy-making” (Newburn and Crawford, 2003:178).

Individual and collective morality would assume that offenders should be punished to maintain the stability of the community and maintain their safety. A collective conscience ensures that the majority accept the rule of law and accept that deviance needs to be punished. Many organisations have highlighted the growth in recorded crime despite these measures in place to punish the offender.

Punishment falls into various areas from incapacitation to retribution, deterrence to rehabilitation. Psychologically, restorative justice is assumed to invoke aesthetic sentiment of forgiveness for miscreants and release for victims. What it fails to do is provide society with assurances that their safety and integrity will be maintained in an atmosphere where the offenders’ rights appear to be upheld in variance with those of the victim, or the fundamental rights the victim is entitled to expect. Conformity through inner positive motivation exemplifies the theory of rehabilitation, although it has been criticised for disparity in proportionality.

The concept is not based on the degree of offence committed or focused on the criminal’s past, but on future rehabilitation to preclude re-offending through changes of circumstances. An equally important part of restorative justice must be in measures to prevent crimes being committed. Funding of £6 million has been invested in a Government programme to reduce crime. Some of these measures include restorative justice, enforcement of financial penalties, CCTV initiatives, treatment of offenders, youth inclusion initiatives, targeting policies and intervention work in schools (www.crimeredution.gov.uk).

CONCLUSION

Meanwhile, three years after it was recognised that real justice for victims and the wider community might be lacking, many changes to the criminal justice system have been introduced. In terms of victims rights, the criminal justice system is now expected to provide a ‘Victims’ Charter’ that sets out how victims might expect to be treated by the criminal justice system, certain vulnerable victims may be supported by the Victims Support network, and victims of sexual crimes may expect to be advised in advance of the offender being released. Within the terms of the criminal justice system itself these concessions are minimal when correlated with the cost in terms of anguish already experienced by the victims of crime.

However, in the wider community even fewer safeguards actually exist to prevent innocent individuals from becoming unwilling victims of an increasingly degenerate society, with those innocent citizens unfairly penalised by the very organisation they would expect to provide them with support in the event of their retaliating and attempting to defend themselves, clearly evidenced in the recent reports in the media, i.e.

“The justice system must be forced to protect the innocent including those pushed through desperation to act extremely” (The Times, 2005, May 5).

One of the most topical stories in the media is the evolving ‘happy slapping’ craze with both the victims and the wider community now more vulnerable than they ever have been. When it comes to the death of an elderly pensioner innocently walking home and attacked by teenagers, and a plank of wood hurled at a funeral procession it is more than apparent that David Blunkett needs to provide a more effective means of delivering real justice for victims and the wider community, not just re-balancing the system, but completely re-evaluating the whole ethos of a citizen’s right to defend themselves without the additional fear of retribution from a criminal justice system that has more empathy with the offender than it does for the victim of crime.

Total Word Count (excluding bibliography) 2,000 words

BIBLIOGRAPHY

BOOKS:

Blakemore, Ken (1998): Social Policy: an Introduction: Buckingham, UK: Open University Press, Page 5

Cotterrell, Roger (1989): The Politics of Jurisprudence: a Critical Introduction to Legal Philosophy: London, UK: Butterworths

Devlin cited in Elliott, C & Quinn, F (1998): English Legal System (2nd edition): Essex, UK, Addison Wesley Longman Ltd: 449

Leigh, A; Read, T; and Tilley, N (1996): Home Office Problem-orientated Policing: Published in Brit POP [Foreword]. In Police Research Group Paper [75]. London: HMSO

Newburn, Tim and Crawford, Adam (2003) Youth Offending and Restorative Justice: implementing reform in Youth Justice. Cullompton: Willan Publishers

Pampel, Fred (2000): Sociological Lives and Ideas: Basinstoke, UK: Macmillan Roche, Declan (2004): Accountability in Restorative Justice. Oxford: Oxford University Press

Thompson, E.P. (1975). Whigs and Hunters. NY Pantheon

ARTICLES:

Henham, Ralph (1998): Human Rights, due process and sentencing. In British Journal of Criminology, Issue 38, Page 592

Daily Mail Newspaper, 2005, May 19: Thugs attack a funeral car 

Daily Mail Newspaper, 2005, May 20: Green, Deputy Chief Constable, Greater Manchester, Page 8

Daily Mail Newspaper, 2005, May 20: Beaten up on Video Phone, Front Page

Daily Mail Newspaper, 2005, May 20: Hoody ban eases shoppers’ fear, Page 8

Daily Mail Newspaper, 2005, May 21: Beaten to death on his doorstep, Front Page

The Times, 2005, May 5: The justice system must be forced to protect the innocent including those pushed through desperation to act extremely 

ONLINE RESOURCES

(All Sites visited 24/05/05. Hyperlinks functioning)

Blunkett, David (2002, June, 19): Balance of rights essential to effective justice. Speaking at the Metropolitan Police Modernising Criminal Justice Conference http://www.cjsonline.org.uk/news/2002/june/balance_of_rights.html

Blunkett, David (2002, July 17): Justice for All – Radical reform of the Criminal Justice System unveiled. Criminal justice reforms unveiled. Announcement from Home Secretary to the Police Superintendents’ Association of England and Wales http://www.policesupers.com/police-supers-news.asp?news_id=139

Blunkett, David (2002, November, 14): http://www.publications.parliament.uk/pa/cm/cmvote/21114v01.htm 

Blunkett, David, introducing the publication of the new White Paper, ‘Justice for all’, 2002, November 14: speaking at 3.30pm at the Youth Justice Board Annual 

Cape, Ed (2004): Reconcilable Rights: analysing the tension between victims and defendants. Legal Action Group, 2004. http://64.233.183.104/search?q=cache:FHPdMNH7Xw0J:www.rethinking.org.uk/informed/lagbriefing.pdf+current+debate+regarding+victims%27+rights&hl=en

Cape, Ed (2004): Reconcilable Rights: analysing the tension between victims and defendants, Legal Action Group, 2004. In Victims’ and defendants’ rights: can they be reconciled?. Rethinking Crime & Punishment, 2005, April, http://www.rethinking.org.uk/informed/lagbriefing.pdf

Convention at the Queen Elizabeth II conference centre, Westminster. http://www.youth-justice-board.gov.uk/NR/exeres/73CB0429-624C-4CB5-98E2-EBBC8EF6E88C.htm

Chief Secretary, Alan Milburn: (1999, June, 10): £30 MILLION INVESTMENT TO STREAMLINE THE JUSTICE SYSTEM. HM Treasury Press Release, Available at: http://www.hm-reasury.gov.uk/newsroom_and_speeches/press/1999/press_93_99.cfm

Criminal Justice Conference, (2002, June, 19): Balance of Rights Essential to Effective Justice. London: HMSO http://www.cjsonline.org.uk/news/2002/june/balance_of_rights.html

HMSO, (1990): Crime, Justice and Protecting the Public. Cm 965. London: HMSO. http://64.233.183.104/search?q=cache:n-zy-8yFCIEJ:webjcli.ncl.ac.uk/1996/issue3/rtf/henham3.rtf+HMSO%2BCrime,+Justice+and+Protecting+the+Public&hl=en

Home Secretary Rt Hon. Jack Straw, 1999, March, 25: http://news.bbc.co.uk/1/hi/uk/303474.stm

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Lord Chancellor, Lord Irvine (2002, July 17): Justice for All – Radical reform of the Criminal Justice System unveiled. Criminal justice reforms unveiled. Announcement from Home Secretary to the Police Superintendents’ Association of England and Wales http://www.policesupers.com/police-supers-news.asp?news_id=139).

Lord Falconer of Thoroton, 2003, December 3, DCA: Justice, Rights and Democracy http://www.dca.gov.uk/speeches/2003/lc031203.htm

Right Honourable Lord Justice Auld (2001, September): A Review of the Criminal Courts of England and Wales. http://www.criminal-courts-review.org.uk/

Secretary of State for Constitutional Affairs and Lord Chancellor, Lord Falconer of Thoroton (2003, December 3): DCA: Justice, Rights and Democracy. Speech to the Institute for Public Policy Research, http://www.dca.gov.uk/speeches/2003/lc031203.htm

Worrall, Anne (1995): Real Punishment for Real Criminals? Community Sentences and the Gendering of Punishment. http://www.britsoccrim.org/bccsp/vol01/VOL01_10.HTM