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The victim and the criminal process: an analysis of recent trends in regional and international tribunals

Published online by Cambridge University Press:  02 January 2018

Jonathan Doak
Jonathan Doak*
Affiliation:
University of Ulster
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Abstract

This paper examines the recent trends in regional and international tribunals that relate to the position of the victim in the criminal process. Recent decisions in both the European Court of Human Rights and other international tribunals have illustrated a new and progressive attitude towards the role of the crime victim. This can be attributed, in part, to the breakdown of the public/private divide in human rights law and the mutually expanding parameters of both human rights discourse and criminal law. It is argued here that cross-fertilisation between these disciplines, which is widely evident in current policy making and judicial decision-making, has meant that the traditional failures of human rights law and the criminal law to protect victims are being addressed – at least to some extent. A line of European and international case law has developed which suggests that victims of crime have acquired a number of enforceable substantive rights, similar to those held by victims of abuse of power. While the potential for victims to be further empowered will always be inherently limited in adversarial jurisdictions, it is none the less a welcome development that a clear trend is emerging which indicates that international policy makers and tribunals are viewing criminal justice issues in a much more holistic manner.

Type
Research Article
Information
Legal Studies , Volume 23 , Issue 1 , March 2003 , pp. 1 - 32
Copyright
Copyright © Society of Legal Scholars 2003

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References

1. Since 1980, all 50 states have adopted over 1,000 pieces of legislation to protect victims of crime, and foremost amongst them are ‘bills of rights’ for victims. Thirty three states have passed amendments to their constitutions which address victims' rights in one form or another. Negotiations are currently ongoing in the US to agree the final text of an amendment to the US Constitution recognising the fundamental rights of crime victims to be treated with dignity, fairness and respect. See further http://www.nvcan.org. In the UK, the Government has to date introduced two versions of the Victims' Charter, which lay down standards which victims should be able to expect from the authorities from the moment of entering the criminal process. The Government has recently issued fresh proposals regarding a new edition of the Victims' Charter, and has also raised the possibility of the appointment of a Victims' Ombudsman, as well conferring further statutory rights on victims. See Home Office A Review of the Victims' Charter (London: HMSO. 2001).

2. Eg the need for segregated waiting areas in the courthouse, the desirability of keeping adjournments and other delays to a minimum and the need for information and clear reasons to be given to all parties at the various stages of the process.

3. Note that the term ‘human rights’ in this paper is used in a very specific sense, referring to the abuse of power/non-oppression. The author fully acknowledges that the term may encompass a number of civil, political, social and economic rights where the interests of victims are not quite so apparent.

4. See further N Christie ‘Conflicts as Property’ (1977) 23 BrJ Crim 289, where a historical process is described whereby the state ‘appropriated’ the victim/offender conflict from the hands of the individuals directly affected by the crime.

5. The academic study of the crime victim did not emerge until the 1940s, when Hans Von Hentig published The Criminal arid his Victim (New Haven. CT: Yale University Press, 1948). Here, a new direction was proposed for the criminal justice system, where the victim would play a much more active role. Few works were published in the early years, and these tended to concern themselves with victim precipitation and victim typologies. Substantial interest in the discipline did not take a foothold until the 1970s.

6. See eg Sparks, R et al Surveying Witnesses (Chichester: John Wiley, 1977)Google Scholar; M Maguire ‘Victims’ Needs and Victim Services: Indications from Research' (1985) 10 Victimology 539; Chambers, G and Millar, A M Investigating Sexual Assault (Edinburgh: HMSO, 1983)Google Scholar; Shapland, J et al Victims in the Criminal Justice System (Aldershot: Gower, 1985)Google Scholar; J Shapland and D Cohen ‘Facilities for Victims: The Role of the Police and the Courts’ [1987] CrimLR 28.

7. Note eg the work of Erin Piney, who established the first Rape Crisis Centre in the UK. The work of single-issue groups tended to focus primarily on the treatment of that particular victim or his or her family, as well as the need to punish the offender and exclude him or her from society. See A Sarat ‘Vengeance. Victims and the Identities of Law’ (1997) 6(2) Social and Legal Studies 163.

8. During the late 1970s and 1980s, child protection had dramatically re-emerged in the public consciousness. In the UK between 1973 until 1999, there were over 70 public or private inquiries into the deaths or abuse of children at the hands of parents, foster parents, residential care workers or others: see further Lyon, C ‘The Definition of and Legal and Management Responses to the Problem of Child Abuse in England and Wales’ in Freeman, M (ed) Overcoming Child Abuse: A Window on a World Problem (Aldershot: Ashgate, 2000)Google Scholar. The abuse of children was highlighted in a number of cases, most notably in Cleveland (1986), and cases in which alleged satanic child abuse were uncovered in Orkney, Rochdale and Nottingham. Further cases indicated that social service staff themselves had been involved in this abuse in a number of children's homes in North Wales and Tyneside (1996). More recently, child pornography and, particularly, the exploitation of children on the Internet has led to a massive media exposure of the problem, which has helped consolidate public attitudes and awareness on issues such as child abuse. and in relation to broader victimisation issues.

9. Eg groups campaigning for the registration of sex offenders, incest survivor groups, relatives of murdered and missing children, relatives of victims of drunk driving and those concerned with combating racism, homophobia and discrimination generally.

10. The nature of such reforms varied considerably, but all were designed to improve the satisfaction levels of victims going through the criminal process. They included the establishment of victim compensation schemes; protective measures such as the use of CCTV for the evidence of vulnerable witnesses in court; restrictions on cross-examination of sexual complainants; and the piloting of restorative justice schemes.

11. For further analysis on the recent rise of global terrorism, see Kressel, N J Mass Hate: The Global Rise of Genocide and Terror (New York: Plenum, 1996)CrossRefGoogle Scholar; R Wannall ‘Signs Indicate Rise of International Terrorism’ (1996) 52(5) Human Events 12; B L Nacos ‘After The Cold War: Terrorism Looms Larger as a Weapon of Dissent and Warfare’ (1996) 39(4) Current World Leaders II.

12. See eg the works of W H Nagel ‘The Notion of Victimology and Criminology’ (1963) 3 Excerpta Criminologica 46; and Schafer, S The Victim and his Criminal (New York: Random House, 1968)Google Scholar.

13. Elias, G The Politics of Victimization (New York: Oxford University Press, 1986) p 267.Google Scholar

14. Elias, n 13 above, p 194

15. Such a shift is perhaps most evident in the recent international rise of restorative justice schemes, which seek to provide a more holistic response to crime. It primarily views the criminal conflict as a breakdown in relationships between individuals, and only secondly as a violation of law. See further Zehr, H Changing Lenses: A New Focus for Criminal Justice (Scottdale, PA: Herald Press, 1990)Google Scholar.

16. UN Doc A/40/53 (1985). The Declaration was originally prepared by the Seventh UN Congress on the Prevention of Crime and Treatment of Offenders held in Milan in 1985.

17. Eg the Declaration provides that the use of such mechanisms should ensure that the ‘outcome is at least as beneficial for the victims as would have been the case if the formal system had been used’: Para A.7.

18. UN Doc E/CN.4/SUB.2/1993/8.

19. UN Doc E/CN.4/2000/62.

20. UN Doc A/45/49 (1990); GA Res 45/111. Principle 10 states ‘With the participation and the help of the community and social institutions, and with due regard to the interests of victims, favourable conditions shall be created for the reintegration of the prisoner into society.’

21. UN Doc A/45/49 (1990); GA Res 45/110. R 8(1) states: ‘The judicial authority, having at its disposal a range of non-custodial measures, should take into consideration in making its decision the rehabilitative needs of the offender, the protection of society and the interests of the victim, who should be consulted whenever appropriate.’

22. Vienna Declaration on Crime and Justice: Meeting the Challenges of the 21st Century A/CONF. 187/4 (2000).

23. Vienna Declaration, n 22 above, para 27.

24. Further measures for crime victims came in 1998, when a Proposal for the Foundation of an International Fund for Support to Victims of Transnational Crime was put before the General Assembly. This resolution was presented by the Commission on Crime Prevention and Criminal Justice to elaborate on the Economic and Social Council Resolution 1998/11 of 28 July 1998.

25. The Rules of Procedure and Evidence of the Tribunal for the former Yugoslavia apply, mutatis mutandis, to the Rwanda Tribunal (Art 14 of the Statute of the International Tribunal for R wanda).

26. See further F Ni Aolainn ‘Radical Rules: The Effects of Evidential and Procedural Rules on the Regulation of Sexual Violence in War’ (1997) 60 Albany LR 883; C N Niarchos ‘Women, War, and Rape: Challenges Facing the International Tribunal for the Former Yugoslavia’ (1995) 17 Human Rights Q 649; Stiglmayer, A (ed) Mass Rape: The War Against Women in Bosnia-Herzegovina (Lincoln, NA: University of Nebraska Press, 1994)Google Scholar; M Pratt and L E Fletcher ‘Time for Justice: The Case for International Prosecutions of Rape and Gender-Based Violence in the Former Yugoslavia’ (1994) 9 Berkeley Women's LJ 77. The rules are not limited to cases of rape, but refer generally to crimes of sexual assault. Special provisions are made relating to the required standard of proof, and matters relating to the credibility of the witness, which may be raised by the defence (r 96). No corroboration of the victim's testimony is required in matters of sexual assault (r 91 (1)), and the victim's previous sexual conduct is irrelevant and inadmissible (r 96(iv)). Furthermore, if a defence of consent is raised, the Tribunal may take note of factors that vitiate consent, including physical violence and moral or psychological constraints (r96(ii)).

27. UN Doc A/48/49 (1993).

28. UN DocA/Conf. 177/20(1995).

29. UN Doc A/Conf. 183/10 (2002).

30. Recommendation (85)11 on the Position of the Victim in the Framework of Criminal Law and Procedure (1985). This followed on the heels of the European Convention on the Compensation of Victims of Violent Crime, which had been opened for signature in 1983, and provided that crime victims (or their dependants, if the victim has died) who suffered serious injury or impairment of health directly attributable to an intentional crime of violence should be entitled to state compensation.

31. See eg para A, which provides that police officers should be trained to deal with victims in a sympathetic, constructive and reassuring manner; the police should inform the victim about the possibilities of obtaining assistance, practical and legal advice, compensation from the offender and state compensation; the victim should be able to obtain information on the outcome of the police investigation; and the police should make clear in any report to the prosecuting authorities the full extent of the injuries and losses suffered by the victim.

32. Recommendation No (97) 13 on the Intimidation of Witnesses and Rights of the Defence.

33. In relation to face-to-face confrontation between the accused and the victim, and the rights issues arising thereof, see J Doak ‘Confrontation in the Courtroom: Shielding Vulnerable Witnesses from the Adversarial Showdown’ (2000) 16(3) J Civ Lib 216.

34. See below.

35. OJ L 82/1 22.03.01. The document was an initiative of the Portuguese, during their presidency of the EU in 2000. It followed a request from European Council which, at its meeting in Tampere in 1999, called for the drawing up of minimum standards on the protection of crime victims in the EU.

36. COM (1999) 359.

37. See further B Williams ‘The Victim's Charter: Citizens as Consumers of Criminal Justice Services’ (1999) 38 Howard J 384; Zaubermen, R ‘Victims as Consumers of the Criminal Justice System?’ in Crawford, A and Goodey, J (eds) Integrating a Victim Perspective within Criminal Justice (Aldershot: Ashgate, 2000) pp 37–54.Google Scholar

38. In relation to the Rules of Evidence and Procedure for the ICTFY, see n 26 above.

39. See F Ni Aolain The Politics of Force (Belfast: Blackstaff, 2002) p 187.

40. Except in circumstances outlined in Art 2(2). The proviso does not, however, define instances where the state is permitted intentionally to kill an individual, but, rather, describes the situations in which it is permitted to use force, which incidentally may involve the taking of life. See eg Ergi v Turkey , Decision of the Court, 28 July 1998 (App No 23818/94).

41. X v Ireland (1970) 13 Y European Convention on Human Rights 792.

42. Osman v United Kingdom (1998) 29 EHRR 245.

43. See (1998) 29 EHRR 245 at paras 90–92. It was, however, found that the blanket immunity in UK law which restricted an individual to bring a claim in negligence against the police was unjustifiable, and this was held to constitute a breach of the right of access to a court under Art 6.

44. See eg Kilic v Turkey. Decision of the Court. 28 March 2000 (App No 22492/93). Here, a journalist who had received death threats sought protection from the local Governor before his murder. The Court upheld a complaint that the Turkish authorities had failed to take reasonable measures available to them to prevent a real and immediate risk to life (para 77).

45. A v United Kingdom (1999) 27 EHRR 611.

46. McCunn v United Kingdom , Decision of the Court, 5 September 1995 (App No 18984/91).

47. McCann v United Kingdom , Decision of the Court, 5 September 1995 (App No 18984/91) at para 161. Likewise, in Cukici v Turkey. Decision of the Court, 8 July 1999 (App No 23657/94), the obligations under Art 2 were held to extend to situations where it was unclear that agents of the state were responsible for the death of the victim, an alleged member of the PKK, who was killed in suspicious circumstances in 1995.

48. Mahmut Kaya v Turkey , Decision of the Court, 28 March 2000 (App No 22535/93).

49. Mahmut Kaya v Turkey , Decision of the Court, 28 March 2000 (App No 22535/93) at para 98.

50. Mahmut Kaya v Turkey , Decision of the Court. 28 March 2000 (App No 22535/93) at para 85.

51. Aydin v Turkey (1998) 25 EHRR 251.

52. Aydin v Turkey (1998) 25 EHRR 251 at para 98.

53. Kelly v United Kingdom , Decision of the Court, 4 May 2001 (App No 30054/96). The case concerned an SAS ambush on the IRA at Loughgall, County Armagh in 1987, when eight members of an IRA unit were killed on active service.

54. Jordan v United Kingdom , Decision of the Court, 4 May 2001 (App No 24746/94). Hugh Jordan was the father of Pease Jordan, an alleged IRA member who was shot in Belfast in 1992 by the RUC.

55. Shanaghan v United Kingdom , Decision of the Court, 4 May 2001 (App No 37715/97). The case concerned allegations of collusion between the security forces and loyalist paramilitaries. Patrick Shanaghan, who the police believed to be a member of the IRA, was shot dead by a loyalist gunman in August 1991, following an incident that allegedly involved his police file falling out of an army vehicle.

56. McKerr v United Kingdom , Decision of the Court, 4 May 2001 (App No 28883/95). Gervaise McKerr was killed in his car along with two other men in 1982 in an alleged shoot-to-kill incident involving RUC officers. Allegedly, some 109 rounds were fired into the car.

57. See McKerr v United Kingdom , Decision of the Court, 4 May 2001 (App No 28883/95) at para 128, where the Court noted the hierarchical link between those officers being investigated and those who were carrying out the investigation. See also Jordan v United Kingdom , Decision of the Court. 4 May 2001 (App No 24746/94) at para 120; Kelly v United Kingdom , Decision of the Court, 4 May 2001 (App No 30054/96) at para 114.

58. See Jordan v United Kingdom , Decision of the Court, 4 May 2001 (App No 24746/94) at para 134; Kelly v United Kingdom , Decision of the Court. 4 May 2001 (App No 30054/96) at para 115, McKerr v United Kingdom. Decision of the Court, 4 May 2001 (App No 28883/95) at para 147; Note the Court statement in Shunaghan v United Kingdom , Decision of the Court, 4May 2001 (App No 37715/97) at para 105: ‘As regards the lack of public scrutiny of the police investigations, the Court considers that disclosure or publication of police reports and investigative materials may involve sensitive issues …and, therefore, cannot be regarded as an automatic requirement under Art 2. The requisite access of the public or the victim's relatives may be provided for in other stages of the available procedures.’

59. Jordan v United Kingdom , Decision of the Court. 4 May 2001 (App No 24746/94) at para 127; McKerr v United Kingdom , Decision of the Court, 4 May 2001 (App No 28883/95) at para 144; Kelly v United Kingdom , Decision of the Court, 4 May 2001 (App No 30054/96) at para 121.

60. See Jordan v United Kingdom , Decision of the Court, 4 May 2001 (App No 24746/94) at paras 137–138; McKerr v United Kingdom , Decision of the Court, 4 May 2001 (App No 28883/95) at para 146.

61. See Jordan v United Kingdom , Decision of the Court. 4 May 2001 (App No 24746/94) at para 120; McKerr v United Kingdom , Decision of the Court, 4 May 2001 (App No 28883/95) at para 148; Kelly v United Kingdom , Decision of the Court. 4 May 2001 (App No 30054/96) at paras 128 and 130.

62. See Shanaghan v United Kingdom , Decision of the Court, 4 May 2001 (App No 37715/97) at para 91.

63. The Court stated in Shanaghan v United Kingdom , Decision of the Court, 4 May 2001 (App No 37715/97) at para 107: ‘… Where no reasons are given in a controversial incident involving a killing, this may in itself not be conducive to public confidence. It also denies the family of the victim access to information about a matter of crucial importance to them and prevents any legal challenge of the decision.’

64. Aydin v Turkey (1998) 25 EHRR 251.

65. The issue may have particular relevance to recent developments in Northern Ireland concerning the Omagh bombing. The relatives of the 29 people killed in the attack in August 1998 have expressed considerable frustration over the lack of progress in the police investigation and have commenced civil actions against a number of individuals for wrongful death: Irish Times , 31 January 2002. It would appear that one of the main reasons for the fact that no successful prosecutions have been brought in Northern Ireland to date is that the police are anxious to protect the anonymity of informers. This highlights the delicate balance which the Court has to strike between upholding the rights to an effective investigation and charging suspects on the one hand, whilst bearing in mind that this may risk endangering the Art 2 rights of others. See further the case of Rowe and Davis v United Kingdom (2000) 30 EHRR 1.

66. Mahmut Kaya v Turkey , Decision of the Court, 28 March 2000 (App No 22535/93).

67. Eg in Jordan v United Kingdom , Decision of the Court, 4 May 2001 (App No 24746/94), while the dicta of the Court relating to the DPP's failure to give public reasons for his decisions and the limited access to the inquest for the relatives of the deceased would apply to both ‘types’ of victim; other dicta are specific to inquests relating to state killings, eg the hierarchical link between the investigating officers and those who were actually being investigated. It is worth noting that a number of questions none the less remain unanswered after Jordan , these being questions of degree - eg there is no definition of what exactly constitutes a hierarchical relationship, the question of how independent ought such an investigation actually ought to be remains, as does a question over the degree of prima facie evidence required to substantiate evidence of collusion.

68. Valasquez Rodriguez v Honduras , Series C, No 4, Judgment of 29 July 1988 (1989) 28 ILM 291.

69. Valasquez Rodriguez v Honduras , Series C, No 4, Judgment of 29 July 1988 (1989) 28 ILM 291 at paras 174–175.

70. Valasquez Rodriguez v Honduras , Series C, No 4. Judgment of 29 July 1988 (1989) 28 ILM 291 at paras 176–177.

71. HLR v France (1997) 26 EHRR 29.

72. HLR v France (1997) 26 EHRR 29 at para 40.

73. See Z v United Kingdom , Decision of the Court, 10 May 2001 (App No 29392/95).

74. See eg the English case of Re Socialist Worker Printers and Publishers Lid, ex p A-G [1975] QB 637; the New Zealand case of R v Hughes [1986] NZLR 129: and the South African case of S v Leepile (1985) 4 SA 187.

75. Scon v Scon [1913] AC 417. In the US, the ‘right to confrontation’ is regarded as sacrosanct and is enshrined as the Sixth Amendment of the Constitution. See eg California v Green 399 US 149 at 157(1970), where the court held that the ‘literal right to “confront” the witness at the time of trial’ formed ‘the core of the values furthered by the Confrontation Clause’.

76. See eg Canadian Criminal Code, s 442(3); Evidence (Witness Anonymity) Act (Queensland) 2000; and, in relation to the UK, see Youth Justice and Criminal Evidence Act 1999, ss 44–47 and note the guidelines given by the Court of Appeal on the ‘rare and exceptional circumstances’ where the identity of the accuser could be withheld from the accused in R v Taylor [1994] TLR 484.

77. See Witness Protection Act, s 264. For further details on the position of the victim in the Dutch criminal process, see Ellison, L The Adversarial Process and the Vulnerable Witness (Oxford: Oxford University Press, 2001) ch 7.Google Scholar

78. See eg R Costigan and P Thomas ‘Anonymous Witnesses’ (2000) 51(2) NILQ 326; Amnesty International ‘Fairness to Defendants at the International Criminal Court: Proposals to Strengthen the Draft Statute and its Protection of Defendant's Rights’ (1996) 1 International Criminal Court Briefing Series 2; 46 Inter-American Commission on Human Rights, Second Report on the Situation of Human Rights in Colombia, OEAISer.LNfiI.84, Doc 39 rev, 14 October 1993, p 98.

79. See eg Unterpringer v Austria (1986) 13 EHRR 175 at para 31; Kostovski v Netherlands (1989) 12 EHRR 434 at para 41.

80. Kostovski v Netherlands (1989) 12 EHRR 434.

81. Baegen v Netherlands , Decision of the Court, 27 October 1995 (App No 16696/90).

82. Doorson v Netherlands (1996) 22 EHRR 330.

83. It is also worth noting that the need for such steps is not limited to protect the identities of ‘victim-witnesses’, but it would seem that similar protections would have to be put in place for other witnesses in criminal proceedings, including the alleged perpetrator(s). See the decision in R v Lord Saville of Newdigate, ex p A [1999] 4 All ER 860, which highlights the particular difficulties courts and tribunals can face where witness anonymity is raised as an issue for state witnesses in the context of public inquiries. Here, the Court of Appeal held that the Bloody Sunday Tribunal had acted unlawfully in refusing anonymity requests from soldier-witnesses at the Bloody Sunday Tribunal. The Court required cogent justification for the interference with a fundamental right such as the right to life, and was further willing to take into account the weight given to specific factors. The decision, however, was widely condemned by the families of the victims of Bloody Sunday and their representatives on the basis that the court reached its conclusions not on the basis of objective scrutiny, but rather on the basis of reports prepared by the military. See further Costigan and Thomas, n 78 above.

84. See Van Mechelen v The Netherlands (1997) 25 EHRR 647, a drug-related case concerning the evidence of anonymous police officers. Their testimonies had been recorded by a judge who knew their identities, and who had made a written report concerning their credibility and reliability. At trial, the defence was given full access to cross-examine the officers, although they were seated in a separate room connected by a sound link to the court. The European Court held that the accused had not had a fair trial, since they were unaware of the identity of the witnesses, were deprived of the opportunity of observing their demeanour, and the judge's report as to their credibility was not sufficient to overcome the problems of not being able to observe their demeanour themselves. It was also highlighted by the court that efforts should have been made to ascertain whether there had been an actual threat made, and further emphasised that while police officers were also entitled to Art 2 protections, their professional duties mean that their position is different from that of a disinterested witness since they owe a general duty of obedience to the state's executive, and usually have links with the prosecution.

85. Doorson v Netherlands (1996) 22 EHRR 330.

86. Visser v Netherlands , Decision of the Court, 14 February 2002 (App No 26668/95).

87. Prosecutor v Tadic (1996) 35 ILM 32.

88. A Chamber may thus hold a voir dire hearing in order to determine which measures may be necessary in this regard. Examples may include expunging names and identifying information from the Chamber's public records; non-disclosure of certain information to the public; use of image/voice altering devices or CCTV: and the assignment of a pseudonym. See M Shaw ‘The International Criminal Court - Some Procedural and Evidential Issues’ (1998) 3(1) J Armed Conflict L 65 at 88.

89. Depositions may be taken by means of video-conference if appropriate (r 71).

90. Prosecutor v Tadic (1996) 35 ILM 32 at 54–55.

91. Prosecutor v Blaštic , 5 November 1996, IT-95–14-T.

92. In this case, the Chamber found such ‘exceptional circumstances’ because the accused had been a senior officer in the HVO army, and had been charged with culpability for serious war crimes committed by personnel under his command. Furthermore, the Chamber highlighted the fact that the prosecutor was encountering many difficulties since the majority of the witnesses lived in, or were required to move through, territory under the control of the HVO. The Chamber underlined the fact that special protective measures would not, at pre-trial stage, prejudice the rights of the accused so long as they were granted for a definite period of time. While the prosecution was therefore permitted temporarily to withhold from the defence the names and other information relating to witnesses and victims, the Chamber ordered that this information be disclosed to the defence in sufficient time before the trial proper.

93. See the debate between Christine Chinkin and Monroe Leigh in AJIL, vols 90/91. Whereas Chinkin supported the majority ruling on the basis that ‘the requirements of a fair trial cannot be made in the abstract’, and on the basis that the rights contained in Art 21 were subject to those contained in Art 22, Leigh rejects this analysis and argues that the minimum standards for the accused are not textually qualified by Art 22. He also submits that ‘international law has not yet accepted the position that the accused's right to a fair trial is subject to discount and “balancing” in order to provide anonymity to victims and witnesses’. See also Robertson, G Crimes Against Humanity (London: Penguin, 1999) pp 290–92Google Scholar.

94. M Momeni ‘Balancing the Procedural Rights of the Accused Against a Mandate to Protect Victims and Witnesses: An examination of the anonymity rules of the International Criminal Tribunal for the Former Yugoslavia’ (1997)41 How LJ 155 at 157–58.

95. See further J Becker et al ‘The Effects of Sexual Assault on Rape and Attempted Rape Victims’ (1982) 7 Victimology 106; P A Resnick ‘The Psychological Impact of Rape’ (1993) 8 J Interpersonal Violence 223; A W Burgess and L L Holmstrom ‘Rape Trauma Syndrome’, (1974) 131 AmJ Psychiatry 981.

96. See Amicus Curiae Brief on Protective Measures for Victims and Witnesses, submitted to the Tribunal by Professor Christine Chinkin. This is reproduced in (1996) (7)(1) Crim L Forum at 179–212.

97. Temkin, J Rape and the Legal Process (London: Sweet & Maxwell, 1987).Google Scholar

98. For an overview of the aims and objectives behind such tribunals and their possible role in deterring future violations of international humanitarian law, see C Campbell ‘Peace and the laws of war: the role of international humanitarian law in the post-conflict environment’ (2000) 839 I R Red Cross 627.

99. It should be noted, however, that the Tribunal did not consider itself to be bound by international human rights jurisprudence: Prosecutor v Tadic (1996) 35 ILM 32 at para 28.

100. J Spencer ‘Orality and the Evidence of Absent Witnesses’ [1994] CrimLR 628 at 636. On the law on the admissibility of anonymous evidence in the UK, see the English Court of Appeal decision in R v Taylor [1994] TLR 484. Emphasising that the accused's right to see and know the identity of his accusen should only be denied in ‘rare and exceptional cases’, the court accepted that the right was not absolute. Evans LJ outlined five considerations which may justify such an order: real grounds for fearing the consequences of naming a witness; the evidence is so important that it would be unfair to deprive the prosecution of it; the prosecution has fully investigated the witness's credibility; no undue prejudice would be caused by the order; and the court can balance the need for anonymity against any unfairness caused to the defendant.

101. Barbera, Messegue and Jabardo v Spain (1988) 11 EHRR 360.

102. A number of studies have highlighted the undignified nature of such cross examinations: see eg Adler, Z Rape on Trial (London: Routledge & Kegan Paul, 1982)Google Scholar; Lees, S Carnal Knowledge: Rape on Trial (Harmondsworth: Penguin, 1996)Google Scholar; Support, Victim Women, Rape and the Criminal Justice System (London: Victim Support, 1996)Google Scholar.

103. Unless, that is, the judge chooses to intervene, which would appear to offer little hope to a rape victim undergoing cross-examination in the UK courts: see L Ellison ‘Cross-examination of rape complainants’ [1998] CrimLR 606.

104. In Ireland v United Kingdom (1978) 2 EHRR 25, the Court found that the techniques used in Northern Ireland detention centres in the 1970s, such as deprivation of food, water and sleep which were designed to impose severe mental and physical stress on the body in order to obtain information. The Court thus acknowledged that psychological injury brought about by physical acts may amount to torture, even if those physical acts by themselves did not pass the threshold.

105. See Cyprus v Turkey (1976) 4 EHRR 482, where the Commission found Turkey to be in breach of Art 3 for rapes committed by its soldiers. It held that Turkey had not done enough to prevent such attacks and that the disciplinary measures which followed after the attacks were insufficient.

106. See eg Soering v United Kingdom (1989) 11 EHRR 439, where the Court considered that the extradition of the applicant to the US to face trial for murder and possibly the death penalty could amount to a violation of Art.3, and D v United Kingdom (1997) 24 EHRR 423, where the Court considered the deportation of the applicant who had AIDS to a country who did not have facilities to treat his condition a breach of Art 3 requirements.

107. Eg in the UK there was a widespread media outcry following the horrific ordeals of two rape victims who were subjected to prolonged and intimate cross-examinations by their respective alleged attackers, Milton Brown and Ralston Edwards. See eg ‘Judges told to end trial ordeal of rape victims’The Times , 7 May 1998; ‘Law change after “horrifying” cases’The Times , 5 April 2000; ‘Power to put a stop to “torture” on the stand’Daily Mail , 9 June 2000.

108. Eg this was one of the many reforms introduced to improve the lot of vulnerable witnesses in England and Wales under the Youth Justice and Criminal Evidence Act 1999, ss 34–37.

109. See Philis v Greence (1991) 13 EHRR 741; and Croissant v Germany (1992) 16 EHRR 135. There would seem to be no absolute right for an accused to access a lawyer of his own choosing.

110. X and Y v Netherlands (1985) 8 EHRR 235.

111. X and Y v Netherlunds (1985) 8 EHRR 235 at para 23.

112. Z v Finland (1997) 25 EHRR 371.

113. Doorson v Netherlands (1996) 22 EHRR 330 at para 70.

114. Van Mechelen v Netherlands (1998) 25 EHRR 657.

115. Van Mechelen v Netherlands (1998) 25 EHRR 657 at para 59

116. X v United Kingdom (1981) 4 EHRR 188.

117. See also R v Lord Saville of Newdigate, ex p A [1999] 4 All ER 860, discussed at n 83 above.

118. Art 68(2). In making its decision, the court must have ‘regard to all the circumstances. particularly the views of the victim or witness’.

119. See eg Art 8 of the Universal Declaration of Human Rights; Art 2(3)(a) of the ICCPR; the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power: and the Revised Draft Basic Principles and Guidelines on the Right to Reparation for Victims of Gross Violations of Human Rights and Humanitarian Law. The UN Commission on Human Rights reaffirmed in Resolution 1997/29, adopted on 11 April 1997, that ‘pursuant to internationally proclaimed human rights and humanitarian law principles, victims of grave violations of human rights should receive, in appropriate cases, restitution, compensation and rehabilitation’.

120. Rules of Procedure and Evidence, UN Doc IT/32/Rev.7 (1996), r 106.

121. Para1.

122. Note that such a right is also provided for in Art 2 of the European Convention on the Compensation of Violent Crimes and Art 9 of the Framework Decision.

123. J Wadham and J Arkinstall ‘The Human Rights Act and the Rights of victims of crime’ (2000) 150(6944) NLJ 1023 at 1083. Another option highlighted by these authors was the possibility for the victim to rely on Art 6(1) in their own right and claim they have been precluded from access to a court of law. However, since a civil remedy for damages would normally be available in domestic law, they acknowledge that this would be unlikely to constitute a valid avenue.

124. See also Rolf Gustafson v Sweden , Decision of the Court, 1 July 1997 (App No 23196/94) at para 37, where it was noted that a criminal injuries compensation scheme had created a ‘civil right’ for the purposes of Art 6.

125. Art 3.

126. Art 6.

127. A Victim Impact Statement is a statement read by, or on behalf of, crime victims at the sentencing stage of criminal proceedings.

128. See further D P Kelly ‘Victims’ (1987) 34 Wayne LR 69; E Erez ‘Victim participation in sentencing: rhetoric and reality’ (1990) 18 J Crim Justice 19; D J Hall ‘Victim voices in the criminal court: the need for restraint’ (1991) 28 Am CrimLR 233; A Paige Dugger ‘Victim Impact Evidence in Capital Sentencing’ (1996) 23 Am J Crim L 375: M Stevens ‘Victim Impact Statements considered in Sentencing: Constitutional Concerns’ 2 Calif Crim LR 3.

129. See eg ‘Victims will have a say on jail terms’Daily Mail , 3 April 2001; ‘Straw plans extra aid for victims of crime’The Times 17 February 2001; ‘Courts to consider impact on victims’The Times , 19 June 2000; ‘Victim statements: one step away from a slippery slope’The Times , 13 June 2000; ‘Victim statement scheme expanded’Guardian , 27 May 2000; Agence France Presse , 4 June 1998; ‘Judge orders victim impact reports before sentencing’Irish Times , 31 January 1998. Among the best academic commentaries are I Edwards ‘Victim participation in sentencing’ (2001) 40(1) How LJ 39; A Ashworth ‘Victim Impact Statements and Sentencing’ [1993] CrimLR 498; and A Sanders ‘Victim Impact statements: don't work, can't work’ [2001] CrimLR 447.

130. R v Perks [2000] CrimLR 606. This could apply ‘where the sentence passed on the offender is aggravating the victim's distress the sentence may be moderated’ or ‘where the forgiveness or unwillingness to press charges provide clear evidence that his or her psychological or mental suffering must be very much less than would normally be the case’: at 609.

131. For further details, see I Edwards ‘The place of victims’ preferences in the sentencing of “their” offenders' [2002] CrimLR 689. It was made clear, however, in Practice Direction (Victim Personal Statement) (2002) 1 Cr App R (S) 482 that ‘the opinions of the victim or the victim's close relatives as to what the sentence should be are therefore not relevant, unlike the consequence of the offence on them’: at para C.

132. McCourt v United Kingdom , Decision of the European Commission, 2 December 1992 (Application No 20433/92). Note, however, that the Commission did highlight the fact that victims' opinions were taken note of in the UK when the parole board decides on whether to grant early release.

133. The Commission also rejected her complaint that denial of bereavement damages by the state also contravened Art 8.

134. T and V v United Kingdom [2000] CrimLR 187.

135. B Emmerson and A Ashworth Human Rights and Criminal Justice (London: Sweet & Maxwell, 2001) paras 18–75–18–78.

136. See eg Jordan v United Kingdom , Decision of the Court, 4 May 2001 (App No 24746/94), where the Court drew on a number of international standards outside of the Convention. See also a conference paper by the Australian judge, The Hon Justice Michael Kirby. ‘The Impact of International Human Rights Norms - A Law Undergoing Evolution’, available at http://www.lawfoundation.net.au/resources/kirby/papers/19950311_tempo.html.

137. For more critical appraisals on the growth of victims' rights and the possible tensions which could come about within criminal justice as a result, see E Yaroshefsky ‘Balancing Victims’ Rights and Vigorous Advocacy for the Defendant' [1989] Annual Survey of Am L 135; L Hoyano ‘Striking a Balance between the Rights of Defendants and Vulnerable Witnesses: Will Special Measures Directions Contravene Guarantees of a Fair Trial’ [2001] CrimLR 948; M Groenhuijsen ‘Conflicts of Victims’ Interests and Offenders ‘Rights in the Criminal Justice System - A European Perspective’, paper presented at the 8th International Symposium on Victimology, Adelaide, 21–26 August 1994, available at http://www.aic.gov.au/publications/proceedings/27/groenhuijsen.

138. See further Ellison, n 77 above, who argues that the potential for the full recognition of victims' rights in the context of the UK criminal trial is undermined by the fundamental tenets of the adversary system. The expansion of restorative processes may carry some hope for better outcomes for victims and offenders alike, as police forces throughout the common law world arc increasingly recognising the benefits of alternative schemes in disposing of minor criminal cases, particularly for juveniles. In relation to its recent expansion in the UK, see further TF Marshall ‘Criminal Mediation in Great Britain 1980–1996’ (1996) 4(4) E J Crim Policy and Research 21; and C Pollard ‘Victims and the Criminal Justice System: A New Vision’ [2000] CrimLR 5. A more fundamental shift in the formal criminal process towards a European-style inquisitorial process seems unlikely in the short or medium term.

139. R v DJX, SCY and GCZ (1990) 91 Cr App R 36.

140. (1990)91 Cr App R 36 at 40, as cited by C Chink in ‘Amicus Curiae Brief on Protective Measures for Victims and Witnesses’ (1996) 7(1) Crim L Forum 179 at 192.