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Improving the Position of the Victim in English Criminal Procedure

Published online by Cambridge University Press:  04 July 2014

John R. Spencer
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Extract

In this paper I shall try to do two things: first, for those who do not have a detailed knowledge of criminal procedure in England, I shall give a bird's-eye view of what the victim's legal position is today. Secondly, I shall examine the difficulties, theoretical and practical, which make it hard to give the victim the deal which many of those who claim to speak for victims believe they ought to have.

In the last twenty years the victim, for long the “forgotten man” in the criminal justice system, has been rediscovered. Politicians of all parties have learnt that victims, and those who identify with them, have votes, and therefore need to be placated. Up to now, however, this has mainly been done by words rather than deeds.

An example is the document rather grandly entitled “The Victim's Charter”, which the Government issued in 1990 (with a revised version in 1996). Contrary to what the title “Charter” might lead one to suppose, this document confers no rights or privileges, but merely lists the ways in which the various parts of the machinery of criminal justice ‘ought’ to be sensitive to the position of the victim.

Type
Research Article
Information
Israel Law Review , Volume 31 , Issue 1-3 , Winter-Summer 1997 , pp. 286 - 299
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1997

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Footnotes

*

Selwyn College, University of Cambridge.

References

1 Within the United Kingdom, England, Scotland and Northern Ireland have separate legal systems. This paper deals only with the position in England, although various references to Scottish law are made.

2 ISBN 1 85893 661 6; available from the Home Office, Room 153, 50 Queen Anne's Gate, London SW1H 9AT.

3 Cm 2263 (1993). They exhort prosecutors and police to consult victims about decisions; by a majority, they recommend that prosecuting barristers be permitted to meet witnesses before trial; they propose that where the defendant defames the victim in the course of a speech in mitigation, the judge should have the power to ban the press from publishing his remarks; and — alarmingly, in my view — they recommend greater use of sections 23 and 24 of the Criminal Justice Act 1988, which allow the witness's written statement to the police to be used in substitution for the witness's live evidence in various cases, including where the witness is in a state of fear.

4 Home Office Circular 18/1994.

5 Issued under s. 10 of the Prosecution of Offences Act 1985. The Code is printed as Appendix 5 in Blackstone's Criminal Practice.

6 The Home Office guide to the legislation by which the Crown Prosecution Service was created says: “It is not envisaged that the new service will have direct or personal contact with witnesses and it will be under no duty to make contact with victims, witnesses or others after disposal of the case”. The 1996 Victim's Charter, however, does now say that “The Crown Prosecution Service, on request, will meet the family of someone killed as a result of a crime, to explain their decision on prosecution” (p. 3).

7 R. v. George Maxwell Developments Ltd (1980) 71 Cr. App. R. 83. In R. v. Southwark CC, ex pte Tawfick [1995] Crim. L.R. 658, however, the Divisional Court said that section 27(2)(c) of the Courts and Legal Services Act 1990 had given the Crown Court the discretion to allow a private prosecutor to appear in person.

8 R. v D.P.P. ex pte Hallos (1988) 87 Cr. App. R. 340.

9 Raymond v. A.G. [1982] Q.B. 839.

10 R. v. Tower Bridge Stipendiary Magistrate, ex pte Chaudhry [1994] Q.B. 340.

11 As in the much-publicised cases when a mother prosecuted the man who had supplied her son with drugs, and secured his conviction for manslaughter — The Times, 21 February 1986.

12 R. v. D.P.P. ex pte C [1995] 1 Cr. App. R. 136.

13 For a celebrated example, see The Independent, 14 March 1989; and see R. v. Thompson (1977) 64 Cr. App. R. 96.

14 Their grievances were publicised in Shapland and others, Victims in the Criminal Justice System (Gower, Aldershot, 1985)Google Scholar.

15 Supra n. 3.

16 Sexual Offences (Amendment) Act 1976, s. 4.

17 Saward, Jill, Rape: My Story (London, Bloomsbury, 1986)Google Scholar.

18 When a peer tried to achieve this by moving an amendment to what later became the Criminal Justice Act 1988 the Government resisted it.

19 Contempt of Court Act, s. 11.

20 Taylor [1995] Crim. L.R. 253 Google Scholar.

21 H.M. Advocate v. McKenzie 1990 S.C.C.R. 28.

22 An extreme example was the recent case at the Old Bailey where a rape victim was cross-examined for six days by her attacker, who insisted on conducting his own defence: The Times, 23 August 1996.

23 R. v. X, Y and Z (1989) 91 Cr. App. R. 36.

24 See Davies, G. and Noon, E., An Evaluation of the Live Link for Child Witnesses (Home Office, 1991)Google Scholar.

25 Sexual Offences (Amendment) Act 1976, s. 2.

26 In England, the Children and Young Persons Act 1933, s. 37, enables the court to be cleared when a child is giving evidence in a sex case, but not otherwise. In Scotland the law is wider, because it is possible to clear the court when an adult is giving evidence in a sex case: Criminal Procedure (Scotland) Act 1996, s. 92(3) — a provision which dates from 1693.

27 Among the jurisdictions which permit this are France, Germany and Holland.

28 Hargreaves v. Bretherton [1959] 1 Q.B. 45: no damages for the crime of perjury; Chapman v. Honig [1963] 2 Q.B. 502: no tortious claim arises from the crime of contempt of court.

29 Powers of Criminal Courts Act 1973, s. 35 (4A) (as amended by the Criminal Justice Acts 1982 and 1988).

30 Code de Procédure Pénale, art. 706 -14.

31 Criminal Justice Act 1988, Part VII.

32 R. v. Secretary of State for the Home Office, ex pte Fire Brigades Union [1995] 2 A.C. 513.

33 The resulting case-law is reviewed in a number of articles. See Elliott, [1984] Crim. L.R. 4 Google Scholar; Adler, [1985] Crim. L.R. 769 Google Scholar; Temkin, [1993] Crim. L.R. 3 Google Scholar.