This unit has three main themes running through it. The first, encapsulated in the idea of the Ideal Victim,
has to do with how we think about victims. We've seen how entrenched
some assumptions about victims are, and - more importantly - how
unhelpful those assumptions can be. The second has to do with the criminal justice
system, and how difficult it is to fit victims into it: the victim
doesn't belong on either side of the confrontation between the state (the 'Crown') and
the offender, and often ends up, literally, serving as a witness to her
own victimisation. Following on from this, the third them has to do
with restorative justice, and the broader challenge of taking a victim-centred approach
to crime.
Actual victims - ordinary people who happen to become victims
of crime - want, and need, many different things: some victims are
vengeful, some are
forgiving; some are knocked flat by the after-effects of the crime, some
shrug it off; some want to take an active part in the prosecution of
the crime, some want to put it all behind them. The only thing all
victims have in common is that they want to be taken seriously, listened
to (if they want to talk), given support (if they need it) - in short,
treated with respect.
Last Friday's lecture involved all those three themes. As we saw, the
Criminal Injuries Compensation Scheme is explicitly designed to exclude
anyone who doesn't co-operate with the police and anyone with a 'bad
character' - which is to say (among other things) anyone who has served a
custodial sentence of any length within the last seven years. (Hard
luck if you go to prison for non-payment of debts and get beaten up a
year later.) Only the innocent and virtuous need apply, in effect.
The other main form of compensation is the Compensation Order, which can
be handed down by courts as part of a criminal sentence. This is a
vivid illustration of how inadequate the criminal justice system can be when it comes to
giving victims what they need. Remember the dark figure of crime: not all
crimes are reported to the police; not all of those are detected, i.e.
have an offender identified; not all of those are prosecuted, and
(inevitably) not all prosecutions lead to a guilty verdict. But it's
only a guilty verdict that can lead to the imposition of a Compensation
Order. Even when the option is available - and courts are encouraged to impose it when it is there - in practice most
sentences don't include compensation, often because the offender would
be unable to pay. Putting it all together, the criminal justice system
can only provide compensation, in the form of a Compensation Order, for a
tiny, tiny minority of victims.
Coming on to the
question of respect and victim-centrality: when compensation is awarded,
how much should it be? This is a
difficult one. Somebody who has had a leg broken in three places,
suffering permanent impairment as a result, isn't going to want to be
fobbed off with a ten pound note. But suppose a more satisfactory order
was
made - £10,000, say. (The maximum compensation payable for this injury
under the Criminal Injuries Compensation Scheme is currently set at
£4,600, incidentally.) Would accepting this level of compensation mean
that you were saying the leg was worth
£10,000 (or £4,600)? It's not a calculation anyone would want to make. I think we
have an instinctive sense of when monetary compensation is far too low,
without having a clear sense of what the right level would be. The
reason is the message that it conveys - the point of a very low amount
is that it conveys a lack of respect. Similarly, research has shown - perhaps
surprisingly - that victims don't object to compensation payments being
spread out over a long period, if there is no other way that the
offender can pay. What victims do object to is not knowing how long the
period will be or what the payments will be: in short, they object to
being kept in the dark, treated with disrespect.
But
even if the payments are scaled satisfactorily and made on time, both
the main compensation schemes are
wildly inadequate. Victims need respect, which may mean looking at
alternatives to criminal justice; and they need support, available universally and unconditionally.
Thursday 26 November 2015
Friday 20 November 2015
Week 8: Victims' rights
What are the rights of victims in the criminal justice system? To answer that question, we need to ask: what is the role
of victims in the criminal justice system? (If a victim has no other
role than providing evidence, then victims' rights are the same as
rights for witnesses.) And to answer that question...
Let's pause for a song (music optional):
Then, at some unspecified time, things changed: disputes between people were no longer sorted out by the people themselves, but had to be decided in accordance with the law. Did John Potts have the right to graze his animals by the vicarage? Were they even his in the first place - could he prove it? All of a sudden, any dispute could end up in the courts, where it would be decided according to laws backed by the authority of the government. In the process the role of the victim changed dramatically, from being at the centre of the conflict to merely being a witness to the crime.
All of this happened... in the past; some time before the nineteenth century, let's say. Dates are a bit sketchy. What we do know is that the police took over the responsibility of mounting criminal prosecutions, in Britain, some time in the first half of the nineteenth century, and that as a result a lot more prosecutions took place. We also know that, before the police got involved, prosecutions were very often dropped or settled amicably - which may not produce consistency between different offences, but does give a much bigger role to the victim.
A series of reforms, culminating in the creation of the Crown Prosecution Service in 1982, continued this process of standardisation, formalisation and centralisation, bringing consistency to criminal trials but reducing the role of the victim. However, by 1982 - the high water mark of this process - the contemporary movement for the recognition of victims' rights was already growing. Since that time, there has been a drive to bring victims back into the process, most successfully in the form of victim impact statements.
The problem with a lot of the victim-focused reforms we've seen is that governments see victims bureaucratically: a victim of crime, in this way of thinking, is someone who has accessed services designed for victims of crime (services operated by the police, the courts, the probation services...). Once the machinery of those services has been set in motion, the thinking goes, the victim should have the right to expect a certain level of service from it, e.g. the right to make a statement about the impact of the crime or the right to receive information about an offender's release from prison.
This approach is basically a good thing - it's better than not having the right to make a statement about the impact of the crime, after all. But it has its own problems. The key point is that this approach involves the criminal justice system looking at victims from the perspective of the system - not from victims' own perspective. This means that it's possible to reform the system so that it does more for victims, but only by improving or adding to what it already does.
If victims are sidelined by the system - if the system is letting victims down for structural reasons - you can't fix that by bolting on a bit of victim-centrality. If victims are to get what they want, a fresh start may be needed - which is where restorative justice shows a lot of potential.
Let's pause for a song (music optional):
Whose pigs are these?How did the criminal justice system get started? Once upon a time, there were no courts and no trials; when people had problems with one another, they sorted them out face to face. The vicar would have a word with John Potts, and they'd come to some arrangement: he'd keep his animals in his own garden, or the vicar would let him graze them by the vicarage on Mondays, or whatever. (Other livestock - and other religious institutions - are available!) The thing is, there would be no laws being broken and no general principles being decided, and nobody would end up with a criminal record.
Whose pigs are these?
They are John Potts',
I can tell them by their spots,
And I found them in the vicarage garden.
- traditional
Then, at some unspecified time, things changed: disputes between people were no longer sorted out by the people themselves, but had to be decided in accordance with the law. Did John Potts have the right to graze his animals by the vicarage? Were they even his in the first place - could he prove it? All of a sudden, any dispute could end up in the courts, where it would be decided according to laws backed by the authority of the government. In the process the role of the victim changed dramatically, from being at the centre of the conflict to merely being a witness to the crime.
All of this happened... in the past; some time before the nineteenth century, let's say. Dates are a bit sketchy. What we do know is that the police took over the responsibility of mounting criminal prosecutions, in Britain, some time in the first half of the nineteenth century, and that as a result a lot more prosecutions took place. We also know that, before the police got involved, prosecutions were very often dropped or settled amicably - which may not produce consistency between different offences, but does give a much bigger role to the victim.
A series of reforms, culminating in the creation of the Crown Prosecution Service in 1982, continued this process of standardisation, formalisation and centralisation, bringing consistency to criminal trials but reducing the role of the victim. However, by 1982 - the high water mark of this process - the contemporary movement for the recognition of victims' rights was already growing. Since that time, there has been a drive to bring victims back into the process, most successfully in the form of victim impact statements.
The problem with a lot of the victim-focused reforms we've seen is that governments see victims bureaucratically: a victim of crime, in this way of thinking, is someone who has accessed services designed for victims of crime (services operated by the police, the courts, the probation services...). Once the machinery of those services has been set in motion, the thinking goes, the victim should have the right to expect a certain level of service from it, e.g. the right to make a statement about the impact of the crime or the right to receive information about an offender's release from prison.
This approach is basically a good thing - it's better than not having the right to make a statement about the impact of the crime, after all. But it has its own problems. The key point is that this approach involves the criminal justice system looking at victims from the perspective of the system - not from victims' own perspective. This means that it's possible to reform the system so that it does more for victims, but only by improving or adding to what it already does.
If victims are sidelined by the system - if the system is letting victims down for structural reasons - you can't fix that by bolting on a bit of victim-centrality. If victims are to get what they want, a fresh start may be needed - which is where restorative justice shows a lot of potential.
Friday 13 November 2015
Week 7: Victims, law and politics
Over the next few weeks we're going to be looking at how the criminal justice system lets victims down, and what has been done to stop it happening.
Essentially there are three ways that victims are failed by the system, one of which doesn't really qualify:
Institutional bias is a way of describing what happens when people systematically do their jobs badly. Certain kinds of victim consistently don't get adequate protection from the police, or adequate attention in the courts; certain kinds of crime consistently aren't taken seriously enough, or aren't even seen as being crimes. For obvious reasons, institutional bias often follows the same pattern as existing biases in society - sexism, racism etc - but there's more to it than that. Few people would say that society is generally prejudiced against children or old people, for instance - but being too old or too young can make it very difficult to be taken seriously as a victim of crime.
Structural flaws, finally, are what is at issue when the system works badly even when it’s working well: in other words, when the system is being asked to do something it can't really do. Where victims of crime are concerned, this is an open question: perhaps the criminal justice can give victims everything they want. Or perhaps not - which is what we're looking at over these next few weeks.
This week we went through a whole series of victim-oriented laws, most of them passed under the New Labour government of 1979-90, which aimed to give victims what they wanted, and to 'rebalance the system' in the favour of victims. There was some genuine progress in addressing institutional biases (particularly with regard to young people and victims of sexual assault) as well as some constructive efforts to address structural flaws (especially in the area of compensation). But overall the balance sheet is disappointing: the Labour government seemed more concerned with using the plight of victims to justify its own crime policies. The Coalition government was a lot less hyperactive on the legislative front, but no better in terms of a consistent focus on victims: once again victims of crime became a political football, this time used in the government's battle against human rights. Another law for victims of crime is promised shortly.
If we can't fix the shortcomings of the criminal justice system by passing a law in favour of victims, will it be any more useful to give victims rights, which can be asserted within the system? More on that next week.
Essentially there are three ways that victims are failed by the system, one of which doesn't really qualify:
- individual shortcomings
- institutional biases
- structural flaws
Institutional bias is a way of describing what happens when people systematically do their jobs badly. Certain kinds of victim consistently don't get adequate protection from the police, or adequate attention in the courts; certain kinds of crime consistently aren't taken seriously enough, or aren't even seen as being crimes. For obvious reasons, institutional bias often follows the same pattern as existing biases in society - sexism, racism etc - but there's more to it than that. Few people would say that society is generally prejudiced against children or old people, for instance - but being too old or too young can make it very difficult to be taken seriously as a victim of crime.
Structural flaws, finally, are what is at issue when the system works badly even when it’s working well: in other words, when the system is being asked to do something it can't really do. Where victims of crime are concerned, this is an open question: perhaps the criminal justice can give victims everything they want. Or perhaps not - which is what we're looking at over these next few weeks.
This week we went through a whole series of victim-oriented laws, most of them passed under the New Labour government of 1979-90, which aimed to give victims what they wanted, and to 'rebalance the system' in the favour of victims. There was some genuine progress in addressing institutional biases (particularly with regard to young people and victims of sexual assault) as well as some constructive efforts to address structural flaws (especially in the area of compensation). But overall the balance sheet is disappointing: the Labour government seemed more concerned with using the plight of victims to justify its own crime policies. The Coalition government was a lot less hyperactive on the legislative front, but no better in terms of a consistent focus on victims: once again victims of crime became a political football, this time used in the government's battle against human rights. Another law for victims of crime is promised shortly.
If we can't fix the shortcomings of the criminal justice system by passing a law in favour of victims, will it be any more useful to give victims rights, which can be asserted within the system? More on that next week.
Friday 6 November 2015
Week 5: Victims in the criminal justice system
How does the criminal justice system - police, courts, probation, prisons - let victims down?
We can answer this question in two ways. In principle, firstly, there are three ways that criminal justice system agencies can fail victims:
So far, so abstract. The second way of answering the question is by asking another one: what role do victims have in the criminal justice system?
The police, firstly, have a huge range of functions, but two of the main ones are detecting crime and preventing crime. To detect crime they are utterly dependent on victims of crime: most 'incidents' are reported to them by victims. Historically the police have taken a very selective approach to recording crime, although over the last decade this has changed: the police are now supposed to record a crime every time a victim reports one, unless they have evidence that no crime has taken place. Controversy still surrounds police recorded crime figures, with recent allegations that up to 25% of reported sexual assaults were left unrecorded. The police can be seen as a 'gatekeeper' to the criminal justice system - and by failing to record particular crimes, they effectively keep the victims of those crimes out of the system.
As for preventing crime, it's impossible to prevent crime completely - and, when a crime is committed, there's always room for debate as to whether it was the police's responsibility to stop it. But, when a potential victim calls the police and has no response, or when a serious offender is free to reoffend undetected under another name or in another place, we can say that the victim has been failed.
As for the courts, it can be argued that they fail victims of crime all the time. The police took over the responsibility of mounting criminal prosecutions, in Britain, some time in the first half of the nineteenth century, and as a result a lot more prosecutions took place. Before that time, prosecutions were very often dropped or settled amicably - which, clearly, gives a much bigger role to the victim. A series of reforms, culminating in the creation of the Crown Prosecution Service in 1982, continued this process, standardising criminal trials but reducing the role of the victim.
So there's a real argument that victims are failed by the courts every time a crime goes to court - although, as I said at the outset, it's not always easy to identify actual examples of this happening. And, if the court system is structurally unfriendly to victims in general, it's also possible that it's more unfriendly to some victims than others: women, in particular, often suffer institutional bias within the court.
How to address these problems - by passing laws to make sure that the system gives victims what they want? By giving victims more rights, guaranteeing a certain level of service? Or by stepping outside the entire criminal justice framework and thinking 'restorative'?
We can answer this question in two ways. In principle, firstly, there are three ways that criminal justice system agencies can fail victims:
- individual failings: people doing their jobs badly (one corrupt police officer, one judge falling asleep in court)
- institutional bias: agencies working badly in ways that systematically affect particular groups or victims of particular crimes (Black youth being harassed by the police, rape defendants being acquitted disproportionately often)
- structural failings: people suffering as a result of the system working normally, without any individual failings or institutional bias (traumatised victims being left unsupported, rape victims suffering 'secondary victimisation' in court)
So far, so abstract. The second way of answering the question is by asking another one: what role do victims have in the criminal justice system?
The police, firstly, have a huge range of functions, but two of the main ones are detecting crime and preventing crime. To detect crime they are utterly dependent on victims of crime: most 'incidents' are reported to them by victims. Historically the police have taken a very selective approach to recording crime, although over the last decade this has changed: the police are now supposed to record a crime every time a victim reports one, unless they have evidence that no crime has taken place. Controversy still surrounds police recorded crime figures, with recent allegations that up to 25% of reported sexual assaults were left unrecorded. The police can be seen as a 'gatekeeper' to the criminal justice system - and by failing to record particular crimes, they effectively keep the victims of those crimes out of the system.
As for preventing crime, it's impossible to prevent crime completely - and, when a crime is committed, there's always room for debate as to whether it was the police's responsibility to stop it. But, when a potential victim calls the police and has no response, or when a serious offender is free to reoffend undetected under another name or in another place, we can say that the victim has been failed.
As for the courts, it can be argued that they fail victims of crime all the time. The police took over the responsibility of mounting criminal prosecutions, in Britain, some time in the first half of the nineteenth century, and as a result a lot more prosecutions took place. Before that time, prosecutions were very often dropped or settled amicably - which, clearly, gives a much bigger role to the victim. A series of reforms, culminating in the creation of the Crown Prosecution Service in 1982, continued this process, standardising criminal trials but reducing the role of the victim.
So there's a real argument that victims are failed by the courts every time a crime goes to court - although, as I said at the outset, it's not always easy to identify actual examples of this happening. And, if the court system is structurally unfriendly to victims in general, it's also possible that it's more unfriendly to some victims than others: women, in particular, often suffer institutional bias within the court.
How to address these problems - by passing laws to make sure that the system gives victims what they want? By giving victims more rights, guaranteeing a certain level of service? Or by stepping outside the entire criminal justice framework and thinking 'restorative'?
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