In the criminal justice system victims play a crucial role. This is because victims are usually the primary witnesses to incidents. Consequently their testimony within trials is very important. An individuals or a group of people who suffers physical or psychological harm or economic loss due to other individual or individuals' actions are classified as victims. In cases where a criminal offence is committed against a minor, e.g. someone who is under the age of majority, then the minor's parents or legal guardians are also classified as victims. When the issue of victims giving evidence about the incident they were involved in is in question people within the criminal justice system should be aware that this is not an easy experience for the victim. This is because while the victim is giving evidence in court they are most likely to re-live the incident, and this is very damaging psychologically as this means that they will be re-living the pain they have suffered during the incident was taking place. Therefore staff of the criminal justice system should have at the back of their mind that dealing with victims who are going to give evidence in court is a very sensitive issue. Consequently the victims should be treated accordingly so they do not suffer in anyway while or after they are giving evidence. To make sure that victims are well after giving evidence, a system can be put in place to debrief them while the trail is in process and even after the trail ends.
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Nevertheless there is still evidence which indicates that victims are not treated sensitively and appropriately during the court proceedings. This view was supported by Shapland in his research which he had conducted in 1985. In his research Shapland pointed out that victims were often taken for granted during the trail process and that their needs were often being ignored by the criminal justice system. This issue was also considered by other researchers, and the research within this field supports Shapland. As findings of researches states that vulnerable victims such as victims of sexual offences, children and the mentally disordered felt re-victimised and traumatised by giving evidence under cross examination. Victims stated that the reason for this was that the atmosphere of cross examinations was unfriendly and adversarial attitudes of solicitors and barristers were hostile. Due to these reasons victims stated that they were less willing to give evidence in court.
Another reason why victims are reluctant to give evidence in trials is because they are made to sit at the public gallery during trials. Due to being seated in the public gallery victims face hostility from the defendants family and friends, and this causes further distress to the victims. There are also statistics available regarding this issue. A study which was conducted by Shapland and Bell (1998) indicated that that 76% of the victims who goes to the Crown Courts to give evidence face abuse and intimidation from the defendant's family and friends. On the other hand this figure is 53% when trials in the magistrates courts are considered. According to a more recent study which was conducted by Whitehead in 2000, 9% of victims were kept awaiting quiet long hours just to give their evidence in court. Also 40% of victims were not asked to give evidence despite being in court while their case trial was in process. All these statistics and research findings indicate that victims are treated unethically within the criminal justice system, as they are put through a lot of distress while they are waiting to give evidence and during the trial process. This situation was also recognised by the government, and legislation was passed to improve the witness service. This legislation attempted to take victims needs into account before and during the trial. This witness service was first introduced within the Crown court proceeding and then it was extended to cover the magistrates court proceedings in 2002.
After the legislation regarding the witness service, government also passed further legislations with the aim of improving the protection of vulnerable victims. The Youth Justice and Criminal Evidence Act 1999 is one of those legislations which was passed to achieve this aim. This act introduced further measures for protecting vulnerable victims and witnesses when they were required give evidence in court. An example of a measure that was introduced in the Youth Justice and Criminal Evidence Act 1999 is that vulnerable victims/witnesses are now given the opportunity to give evidence through video recorders. This means that rather than the victim being present in the court room to give evidence their testimony is recorded in a video tape and played in the court room. Consequently the victim does not have to appear in court as a witness, and therefore does not have to face the defendant who has caused harm to them. This way it was thought that the victim will suffer less distress as they do not have to face the defendant again.
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However the Youth Justice and Criminal Evidence Act 1999 is highly criticised by researchers. For example in 2005 Goodey argued that the measures that are identified in the Youth Justice and Criminal Evidence Act 1999 do nothing to address the fundamental issue of the traumatic experience of cross examination for victims. As victims are still have to be cross examined by the defendant's solicitors or barristers while the video tape is being recorded. On the other hand a researcher named Birch also found that the measures for vulnerable victims/witnesses had not been fully implemented nationwide and that the police and the Crown Prosecution Service had great difficulties in identifying who was and was not vulnerable and therefore eligible for the special measures under the 1999 Act. Consequently during the process of identifying vulnerable victims many victims who really were vulnerable remained unidentified and therefore unprotected. This shows that the measures introduced by the Youth Justice and Criminal Evidence Act 1999 are not operating sufficiently enough to protect all the vulnerable victims, as it fails to identify and protect many vulnerable victims.
Another argument which underpins these reforms comes from a researcher named Birch. He states that the Youth Justice and Criminal Evidence Act 1999 is based around the view that conditions can only be made better for victims by making them worse for the defendants. If this is believed to be true then this means by putting the victims in a more favourable position defendants are put in a less advantageous position. Victims are made to give evidence outside the court room therefore it can be said that this can damage the fair trail process for the defendant by excluding some evidence which could otherwise have been used to disprove charges against them. Hence it can be stated that although the reforms introduced by the Youth Justice and Criminal Evidence Act 1999 and the Criminal Justice Act 2003 to some extent promoted the theory that the criminal justice process has the prevention of social harm as one of its aims. However it is not right to do this through reforms which increase victims' right mainly by taking rights away from defendants. Further to this argument these reforms have not improved conditions for all vulnerable victims in court and have failed to address the fundamental issue of victims having to give evidence and be cross examined in court orally. Overall they have removed further due process from the courts in terms of through proof of the defendants' mens rea and criminal responsibility while not improving the social justice of the court process for all of those who need it the most.
The process of whether to prosecute an individual or not will starts with allegations made against an individual by the claimed victim. When the victim makes their complaint to the police, the police will then investigate to find out whether the allegations made against the accused person are likely to be true. Then the case gets passed onto the Crown Prosecution Service and it is this department which decides whether to prosecute the accused person or not. The victim should be notified about their case and police must ensure that victims have access to information about victim support and other local support agencies in their area. When there is no action needed to be taken against the suspect in the criminal justice process, the police must inform the victim of the stage of the progress the case is at until the investigation is closed. Police must inform victims of the reasons for not charging the suspected person. So when we looked at the system in its simplistic demonstration it is seen that victims are supposed to be informed about their case thoroughly and efficiently during every stage of the case. This is good because if victims are left without being informed about what is going on about their case after they make their complaint, they may then think nothing is being done about their claim. This will make victims of crime less willing to report crimes as they will think nothing will be done about it. Consequently this will affect the Criminal Justice Process in a bigger scale, as criminal will reoffend and still go round free due to the reluctance of victims reporting the crime.
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However a recent survey showed that the theoretical system stated above greatly differs in practice. In this survey victims stated that they feel they are treated as a piece of evidence by the police. Victims had also stated that they were only helpful at certain stages, for example when the victim helps to prove prosecution cases and also when they corporate with police to catch the bad guys. The survey also showed that victim often feel disrespected and ignored and that as if their interests and concerns was irrelevant. Too often the Criminal Justice System fails to inform victim about proceedings that involves bails and pleas and sentencing. Also often victims are not getting information about their trials either and victims also state that their financial losses are ignored. All these deficiencies within the Criminal Justice Process is leading to a lack of confidence in the Criminal Justice System and victims of criminal offences are feeling that they are being re-victimized for a second time due to improper practice provided by the Criminal Justice System.
Barristers will enter the court room with the want and thought of putting their client off the stake. For example if we consider a case where the victim who is going to give evidence in the court room is a seventeen year old individual with learning difficulties it will be easier to understand how sensitive the issue is. The victim will already be feeling anxious and intimidated due to all the formality within the court room and besides that being examined by a barrister in front of other people that their not familiar with will make the victim feel even more nervous. When the victim is in this state of mind an experienced barrister will know how to take advantage of the victim. Barristers can do and does do so for example by asking leading questions. Previous psychological research had shown that leading questions do affect witnesses' answer in great deal. Study in the field of asking leading questions to witnesses was done by Loftus and Palmer in 1974. The findings of this study clearly demonstrated that through the use of leading questions it is possible to distort a person's memory of an event. Further to asking leading questions barristers can ask short and long questions right after each other and confuse the victim in that way which will also escort the victim to give insufficient information. Consequently it can be stated that in order to win the case the defence lawyers commonly employ to upset ,unsettle, confuse, confound and intimidate witnesses in order to negate or discredit their testimony. Therefore through legislation clear boundaries should be set on the system of cross examination to stop barristers from manipulating vulnerable victims in such ways in the court room.
To some extend boundaries are set within the Youth Justice and Criminal Evidence Act 1999. For example sections 16 and 17 of this act state that this act allows the use of special measures to assist vulnerable and intimidated witnesses to give evidence in court. To be more specific section 16 also identifies that a witness is eligible for such assistance if she/he is under the age of seventeen at the time of the hearing. Under section 16 it is also stated that if the court decides that the evidence provided by the victim is likely to be reduced because of the victim's mental disorder, impairment of intelligence and social functioning or a physical disability or disorder then that victim is also eligible to be protected under this act. However as identified before police fails to identify vulnerable victims and therefore fails to protect them. It will be fair to say that such by stating in legislation that vulnerable victims are to be protected is not a sufficient measure. It should be made sure that these measures are applied within the Criminal Justice System adequately. Also the legislation around this area should be clear of ambiguities for it to be applied effectively. For example in the present legislation it should defined clearly what are special measure to assist vulnerable witnesses.
In cases where sensitive issues such as rape is in question the cross examination of victim as a witness should be treated with more consideration than in a normal case. However research shows that this is not the case, as in rape cases number of criticisms is raised regarding the cross examination process. Most of these criticisms are mainly based on the way the complainants are treated during the cross examination process. Studies demonstrate that in most rape cases the plaintiff is questioned about their past sexual history with persons other than the defendant. Although this was prohibited under the Sexual Offences Act 1976 in practice defence barristers still ask such questions to the victim during the cross examination process. Often these types of questions are asked by the defence barrister without any application been made. Relating to this act a researcher named Adley found that this type of questions were still being asked in 75% of the rape cases.
Feminist groups also criticised the treatment victims' face in rape cases. They have stated that they saw the cross examination process as the worst aspect of giving evidence in rape trails. Research conducted in this area by the victim support found that many victims see their treatment in court trials in term of further abuse. Further in the study that has been conducted by victim support it is stated that women characterized the process of the cross examination as patronising, humiliating and worse than the rape. Victims of rape stated that they felt this way because of the accused defence barrister questions of their private lives. Further on they added that they found those questions asked by the defence barrister about their private lives intrusive and inappropriate. A further survey has been conducted by Lees, also came up with the result that 73% of women who participated in cross examining that they had been asked unfair and irrelevant quiz during cross examination. In this survey it was also found that 82% of women reported saying that they were only on trial as a witness/victim but they felt that they have been treated as if they were the accused person in legal system.
Victims of rape who were giving evidence in court were asked all sorts of in appropriate questions by the defence barristers, these in appropriate questions are in most cases chosen by the defendant's barrister with the aim of causing distress to the victim who is giving evidence. The sort of questions asked to victims of rape by barristers in the past included questions regarding the victims drinking habits and whether they have consumed any alcohol on the day of the offence. Further examples of distressing questions asked to the victims were regarding the victims' emotional and psychological stability as well as the victims' clothing on the day of the offence. After asking there kinds of inappropriate questions during the cross examination process in one trial the defence suggested that the victim's hormonal balance had been affected by an abortion she had undergone on the day of the incident happened. The defence concluded their submission by stating that the emotional factors had directed her to make false allegation against her ex-boyfriend. This submission by the defence most probably had caused the victim to feel anxious and intimidated, as it can be argued that the defendants barrister had no right to bring the abortion the victim had gone through in front of many people whom she was not familiar with.
Certain degrees of limits are established by the code of conduct of the bar of England and Wales. As they have put down the guidelines for the conduct of cross-examination. Under this policy barrister cannot make statements or ask a question which are only scandalously or intended or annoy either a witnesses or some other person. However it is apparent from the evidence provided above that barristers carry on practicing distressful questions within the cross examination process regardless of legislations that have been passed.
In conclusion it is apparent that there are several deficiencies within the way victims are treated during the trial process within the Criminal Justice System. Victims are put into further distress during the cross examination process and in sensitive issues are embarrassed in front of people who they are unfamiliar of by having to answer questions about their private lives. Certainly it will be true to say that this unethical and descends confidence for the Criminal Justice System. Although there are procedures and legislations in place to make sure vulnerable victims are to be protected from further distress, these procedures are meaningless unless they are applied during the trials. Further on it should not be forgotten that it is the Criminal Justice System's duty to protect the society by deterring offenders from causing further disturbance within the society. Consequently treating vulnerable victims in an inappropriate way during trials will not promote this duty.