Over-promised and under-delivered

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From October 2013, with the new code of practice introduced by the Ministry of Justice, victims became entitled to read a statement prior to sentencing explaining the impact of the crime upon them.

The change itself is a small one, but forms part of a broader trend: victims are increasingly viewed as legitimate actors in criminal proceedings, blurring the traditional demarcations of the adversarial system. A counter-trend seems to be at play in the international criminal law arena: in September 2013, the drafters of a blueprint statute for a prospective Syrian tribunal rejected outright the enhanced role for victims that has, since the Rome Statute, been an accepted feature of international criminal proceedings. The problems of victim participation in the essentially adversarial international criminal courts should sound a note of caution for law-makers in England and Wales.

 


The changing face of victimhood in England and Wales

Until the office of the Director of Public Prosecutions was established in 1879, victims were usually responsible for both initiating and conducting prosecutions, without the assistance of a public prosecutor. As the principle that public rather than private interests should govern prosecutions gained pre-eminence, the situation changed and the state appropriated responsibility for prosecutions. In the bipartite adversarial system that developed subsequently, victims were traditionally consumers of, rather than actors in, criminal proceedings.

The purist notion of the victim as a bystander to proceedings has been progressively challenged in recent decades. Successive governments have introduced measures designed to enhance the criminal justice system from a victim perspective, including improving access to information, assistance to vulnerable witnesses at court and stronger compensatory measures. Victim considerations have also been considered at sentencing, with the case of R v Milberry (2002) acknowledging that the sentencing discount to be expected by defendants who plead guilty before trial in rape cases is partially based on the fact that victims are spared the experience of giving evidence.

The Victim Personal Statement (VPS) Scheme, introduced in October 2001, provided that a VPS could be used by a judge during bail and sentencing proceedings, as well as by a prosecutor in deciding whether to prosecute.

Before 2013, however, measures were largely protective, and did not strike at the fundamental notion of the victim as an outsider to criminal proceedings. The 2013 Code makes one key change in this sense. Tendering a VPS is removed from the discretion of the prosecutor; victims are entitled to read their VPS aloud at sentencing, subject to the court’s discretion.

Pressure for further substantive reform is also growing. Dan Jarvis, a shadow justice minister, criticised the new “weak” code on the day it was published, saying that a future Labour government will establish a “victims’ law … to create a system that is properly focused on the victim.” The former DPP, Keir Starmer, who is advising Labour, said in a recent press release that “[f]rom a victim’s point of view, our justice system is hardly fit for purpose,” and called for a “fundamental rethink, leading to a specific and legally enforceable Victims’ Law.”

"Victim reform may promise things the system is unable to deliver. Victims are urged to come forward and tell their stories: but courts are not truth-telling forums, and will not become so"

The rise (and fall?) of victim participation in international criminal trials

The international community came to the notion of a strong victim-actor early, with the 1985 United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (UN Declaration). The UN Declaration primarily concerned states’ obligations to provide remedies and reparation to victims, but also established as a basic principle that victim participation in judicial proceedings was desirable as a means of ensuring responsiveness to victim needs.

These principles were not immediately put into practice in the international criminal courts. The first post-Nuremberg war crimes tribunals were created in the early 1990s to prosecute international crimes in the former Yugoslavia and Rwanda (the ad hoc tribunals), and treated victims along the traditional common law model—as providers of testimony, not parties to the proceedings. However, by the time the Rome Statute—the founding document of the permanent International Criminal Court (ICC)—was drafted, only five years after the ad hoc tribunals were established, the perceived inadequacies of the international criminal system from a victim perspective prompted calls for change. The ICC established a regime of victim participation, with the Khmer Rouge tribunal (ECCC) following suit in 2006, and the Special Tribunal for Lebanon (STL) in 2009.

 Once granted victim-participation status, victim participants at these courts have many of the same rights as the parties. At the ICC and ECCC, victims may participate from the investigative stage; at the STL, participation is allowed only after an indictment is confirmed. Generally, a representative of the victim may have the right (at the discretion of the court) to make opening and closing statements, call witnesses and tender evidence, examine or cross-examine witnesses, pose questions to the accused and file motions and briefs. Following judgment, victims at the ICC may be entitled to compensation from a victim fund, whilst, at the STL and ECCC, victims must have recourse to national courts to seek compensation.

 A mere fifteen years after Kofi Annan declared victim participation to be the “overriding interest” for the drafters of the Rome Statute, the initiative seems to have failed to live up to expectations. Each of the courts expressly provides that victim participation must only be permitted to the extent that it is reconcilable with the accused’s fair trial rights. However, in September 2013, the panel of former international prosecutors, judges and other leading experts discussing the format of a prospective Syrian tribunal rejected the inclusion of victim participation outright, citing unacceptable compromises to the fairness of proceedings. Victim participation, the panel concluded, unacceptably lengthens the trials by “presenting repetitious questioning of witnesses and additional filings”, and threatens equality of arms, because “when victims have the ability to lead evidence, allocation of the burden of proof becomes murky” (see the Chautauqua Blueprint for a blueprint statute for a prospective Syrian tribunal).

Albeit not directly referenced by the Syrian tribunal drafters, there is another reason why confidence has been lost in victim participation. The putative benefits of the initiative, usually identified as the ‘right’ to reparation for the individual victim, and a contribution to more effective fact-finding by the court, have not been forthcoming through the restricted participation possible within an adversarial system. The initiative has over-promised, and under-delivered.

 Lessons for the UK

The international criminal system is not directly analogous to the legal system in England and Wales. International criminal law is an unashamed amalgamation of two systems: the victim participation regime adopted by the ICC, ECCC and STL, directly borrowed from the civil law system, is far broader than the initiatives contemplated by even the most expansion-minded back at home. Nevertheless, important lessons can be drawn from the international experience.

 The first is that victim involvement may unacceptably compromise the fairness of proceedings. Adversarial systems are fundamentally reliant on the balance achieved by one party prosecuting, and another defending: criminal justice should not be geared towards “supporting innocent victims of crime in bringing those guilty to book” (a stated aim of Labour’s proposed victims’ law in a 27 December 2013 press release), but in fairly and impartially determining criminal responsibility, and in so doing, protecting the innocent. Expediency may also be an issue: whilst there is less risk of mass victim actions than in the international arena, with the English criminal justice system already “slow and cumbersome” (see, for example, the July 2012 White Paper titled “Swift and Sure Justice”), greater victim involvement may further clog the system.

The second lesson is that victim reform may promise things the system is unable to deliver. Victims are urged to come forward and tell their stories: but courts are not truth-telling forums, and will not become so. Victims are promised “rights” to see the guilty prosecuted: but the notion of victim rights—implying legally justiciable entitlements to a clear outcome, akin to the accused’s right to a fair trial—may be unrealistic.

Conclusion

The regime in the UK will never—could never—go as far as the fully-fledged victim participation in the international criminal courts. However, the experiences of the international criminal arena should offer pause for thought. Establishing a stronger victim-actor may pose an unacceptable threat to the fairness of proceedings, whilst not achieving the benefits promised for the victims themselves. There are indisputably ways in which the criminal justice system can better protect the interests of victims as witnesses, but greater participatory involvement is not the answer.

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Michael Herz

Michael has worked in international criminal law since 2009. He currently practises as an associate appeals counsel for the prosecution at the International Criminal Tribunal for Rwanda, and has previously spent three years on the defence team of former Liberian president, Charles Taylor, at the Special Court for Sierra Leone. Michael was called to the Bar at Gray’s Inn in 2010.

Emma Pountney

Emma is a UK qualified solicitor, who has spent over four years working in the international criminal courts, firstly in the Appeals Chamber at the International Criminal Tribunal for the former Yugoslavia, and subsequently at the Extraordinary Chambers in the Courts of Cambodia. She is also completing a doctoral thesis in international criminal law.