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Victims and the sentencing process: developing participatory rights?

Published online by Cambridge University Press:  02 January 2018

Jonathan Doak ,
Ralph Henham  and
Barry Mitchell
Jonathan Doak
Affiliation:
Nottingham Trent University
Ralph Henham
Affiliation:
Nottingham Trent University
Barry Mitchell
Affiliation:
Coventry University
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Abstract

Recent years have seen a number of developments pertaining to the notion that victims should be afforded a ‘voice’ in the criminal justice system. The theoretical and structural parameters of the adversarial system are not, however, conducive to exercising such a role. For many, conferring procedural rights on victims jeopardises the due process rights of the accused, as well as the public nature of the criminal justice system. In light of the recent decision to roll out the ‘Victims' Focus Scheme’ across England and Wales, this paper explores a number of issues of principle that arise – not least the deeper policy implications of an apparent re-alignment of the normative parameters of the criminal justice system to incorporate the private interests of third parties.

Type
Research Article
Information
Legal Studies , Volume 29 , Issue 4 , December 2009 , pp. 651 - 677
Copyright
Copyright © Society of Legal Scholars 2009

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References

1 On the potentially political appeal of the crime victim, see further G Geis ‘Crime victims – practices and prospects’ in A Lurigio, WG Skogan and RC Davis (eds) Victims of Crime: Problems, Policies, Programs (Newbury Park, CA: Sage, 1990); D Garland The Culture of Control: Crime and Social Order in Contemporary Society (Oxford: Oxford University Press, 2001); CA Warner and JL Rudolf ‘Mandatory compensation orders for crime victims and the rhetoric of restorative justice’ (2003) 36 Aust NZJ Criminol 60.

2 Ashworth, A Sentencing and Criminal Justice (Cambridge: Cambridge University Press, 2nd edn, 2005) p 353.CrossRefGoogle Scholar

3 National Standards National Standards for the Supervision of Offenders in the Community (London: Home Office, 2000).Google Scholar

4 Home Office Victim Personal Statement Scheme: Circular 35/2001 (London: HMSO, 2001). The VPS Scheme was introduced notwithstanding research evidence reflecting problems in the pilot projects; see C Hoyle, R Morgan and A Sanders The Victims' Charter: An Evaluation of Pilot Projects (London: Home Office, 1999). Any VPS had to be in the form of a s 9 witness statement or in an expert's report and served on the defence before sentence was passed: the sentencing court should take into account, as far as it considered appropriate, ‘the consequences to the victim’; see Practice Direction (Victim Personal Statements) [2002] Cr App R (S) 482.

5 However, since 2005, the Victims' Code of Practice ceased to require the police to inform victims of this right other than in cases of murder and manslaughter: Home Office Hearing the Relatives of Murder and Manslaughter Victims: Consultation Document (London: HMSO, 2005).

6 The pilot centres were the Central Criminal Court (the Old Bailey) and the Crown Courts at Birmingham, Cardiff, Manchester and Winchester. Effectively, the VAS has now been superseded by the Victim Focus Scheme (originally announced by the Attorney-General in October 2007), which continues to enable the families of murder and manslaughter victims to work with prosecutors on the preparation of an impact statement which is subsequently read out in court.

7 See, eg, J Shapland, J Willmore and P Duff Victims and the Criminal Justice System (Aldershot: Gower, 1985); Justice Victims in Criminal Justice, Report of the Justice Committee on the Role of Victims in Criminal Justice (London: JUSTICE, 1998); J Wemmers and K Cyr ‘Victims' perspectives on restorative justice: how much involvement are victims looking for?’ (2004) 11 IRV 259.

8 DG Kilpatrick, D Beatty and S Smith Howley The Rights of Crime Victims – Does Legal Protection Make A Difference? (Washington DC: US Dept of Justice, 1998). It may be noted, however, that data from a number of participatory initiatives, such as restorative justice schemes and victim statement schemes, do contain relatively low take-up rates by victims (see, eg, R Morgan and A Sanders The Use of Victim Statements (London: Home Office, 1999); T Newburn et.al The Introduction of Referral Orders into the Youth Justice System, Home Office Research Study 242 (London: Home Office, 2001); C Hoyle, R Young and R Hill (2002) Proceed with Caution: An Evaluation of the Thames Valley Police Initiative in Restorative Cautioning (York: Rowntree, 2002). However, this may be because of the way in which such schemes were implemented in practice. For an excellent overview of what ‘participation’ should entail, see I Edwards ‘An ambiguous participant: the crime victim and criminal justice decision-making’ (2004) 44 BJC 967.

9 See, eg, H Kury and M Kaiser ‘The victim's position within the criminal proceedings – an empirical study’ in G Kaiser, H Kury and H-J Albrecht (eds) Victims and Criminal Justice: Legal Protection, Restitution and Support (Freiburg: Max Planck Institute, 1991); E Erez and E Bienkowska ‘Victim participation in proceedings and satisfaction with justice in the continental systems: the case of Poland’ (1993) 21 JCJ 47; Shapland et.al, above n 7; E Erez, L Roeger and F Morgan ‘Victim harm, impact statements and victim satisfaction with justice: an Australian experience’ (1997) 5 IRV 37. A study of victims in the Dutch criminal justice system has also suggested that many victims feel that procedures which even allow passive participation in the criminal trial carry a certain symbolic importance for many victims which, in turn, can reduce feelings of exclusion and unfairness: J Wemmers Victims in the Criminal Justice System (Amsterdam: Kugler, 1996) p 338.

10 See, eg, N Walker and M Telford Designing Criminal Justice: The System in Comparative Perspective, Report 14, Review of the Criminal Justice System in Northern Ireland (Belfast: HMSO, 2000); C Brennan ‘The Victim Personal Statement: who is the victim?’ (2001) 4 Web JCLI.

11 A Cretney and G Davis Punishing Violence (London: Routledge, 1996) p 178; M Cavadino and J Dignan ‘Reparation, retribution and rights’ (1997) 4 IRV 233.

12 S Hillenbrand and B Smith Victim Rights Legislation: An Assessment of its Impact on Criminal Justice Practitioners and Victims (Chicago: American Bar Association, 1989); J Chalmers, P Duff, and F Leverick ‘Victim impact statements: can work, do work (for those who bother to make them)’ [2007] Crim LR 360.

13 N Christie, ‘Conflicts as property’ (1977) 17 BJ Crim 1. For a critique of this argument, see J Gardner ‘Crime: in proportion and in perspective’ in A Ashworth and M Wasik (eds) Fundamentals of Sentencing Theory (Oxford: Clarendon Press, 1998).

14 Faulkner, D Crime, State and Citizen (Winchester: Waterside Press, 2001) p 226.Google Scholar

15 Duff, A Restoration and retribution’ in Von Hirsch, A et al (eds) Restorative Justice and Criminal Justice: Competing or Reconcilable Paradigms? (Oxford: Hart Publishing, 2003).Google Scholar

16 Dignan, J Understanding Victims and Restorative Justice (Maidenhead: Open University Press, 2005).Google Scholar

17 See further JH Langbein The Origins of the Adversary Criminal Trial (Oxford: Oxford University Press, 2003).

18 See R v Banks [1916] 2 KB 621, where the court held, citing R v Puddick (1865) 4 F & F 497, that ‘prosecuting counsel should regard themselves as ministers of justice assisting in its administration rather than advocates’ (at 499). See further J Doak Victims' Rights, Human Rights and Criminal Justice: Reconceiving the Role of Third Parties (Oxford: Hart, 2008) at 118.

19 A Sweeting et.al Evaluation of the Victims' Advocate Scheme Pilots, Ministry of Justice Research Series 17/08 (London: Ministry of Justice, 2008). See also P Rock ‘Hearing victims of crime’: the delivery of impact statements as ritual behaviour in London trials for murder and manslaughter' in AE Bottoms and J Roberts (eds) Victims in the Criminal Justice System (Cullompton: Willan, 2009).

20 Sweeting et.al, ibid, p 17. This may be particularly problematic where the information concerns the victim's previous convictions or involvement with gangs.

21 Zehr, H Changing Lenses: A New Focus for Crime and Justice (Waterloo, ON: Herald Press, 3rd edn, 2005).Google Scholar

22 See, eg, A Abramovsky ‘Victim impact statements: Adversely impacting upon judicial fairness’ (1992) 8 St John's Journal of Legal Commentary 21; A Ashworth ‘Victims' rights, defendants' rights and criminal procedure’ in A Crawford and J Goodey (eds) Integrating a Victim Perspective within Criminal Justice (Aldershot: Ashgate, 2000).

23 See, eg, DJ Hall‘Victims' voices in criminal court: the need for restraint’ (1991) 28 Am Crim L Rev 233; Y Buruma ‘Doubts on the upsurge of the victim's role in criminal law’ in H Kaptein and M Malsch (eds) Crime, Victims, and Justice, Essays on Principles and Practice (Aldershot: Ashgate, 2004).

24 See further Gardner, above n 13.

25 Erez et.al, above n 9.

26 E Erez and P Tontodonato ‘The effect of victim participation in sentencing on sentence outcome’ (1990) 28 Criminology 451; M Hough and A Park ‘How malleable are attitudes to crime and punishment? Findings from a British deliberative poll’ in J Roberts and M Hough (eds) Changing Attitudes to Punishment (Cullompton: Willan, 2002); J Mattinson and C Mirrlees-Black Attitudes to Crime and Criminal Justice: Findings from the 1998 British crime Survey (London: Home Office, 2000).

27 C Hoyle et.al Evaluation of the One Stop Shop and Victim Pilot Statement Projects (London: Home Office, 1998) at 28.

28 Chalmers et.al, above n 12, at 374.

29 See, eg, C Hoyle, R Young and R Hill Proceed with Caution: An Evaluation of the Thames Valley Police Initiative in Restorative Cautioning (York: Rowntree, 2002); J Shapland et.al Restorative Justice in Practice – Findings from the Second Phase of the Evaluation of Three Schemes Home Office Research Findings 274 (London: Home Office, 2006); C Campbell et.al Evaluation of the Northern Ireland Youth Conference Service NIO Research and Statistics Series: Report No 12 (Belfast: Northern Ireland Office, 2006).

30 See A Ashworth What Victims of Crime Deserve Paper presented to the Fulbright Commission on Penal Theory and Penal Practice, University of Stirling, September 1992; ‘Some doubts about restorative justice’ (1993) 4 Criminal Law Forum 277; D Garland Punishment and Modern Society (Chicago: University of Chicago Press, 1990) p 252; Gardner, above n 13; Buruma, above n 23; R Coen ‘The rise of the victim – a path to punitiveness?’ (2006) 16 ICLJ 10.

31 R v Nunn [1996] 2 Cr App R (S) 136.

32 Ibid, at 140.

33 H Fenwick ‘Procedural rights of victims of crime: public or private ordering of the criminal justice process?’ (1997) 60 MLR 317.

34 [2001] 1 Cr App R (S) 19.

35 Ibid, at [H6], citing Lord Bingham CJ in R v Roche [1999] 2 Cr App R (S) 105. Here, the offender pleaded guilty to causing the death of his cousin by careless driving while under the influence of drink or drugs. The Court of Appeal accepted a court might, as an act of mercy, reduce a sentence if the relatives of the victim indicated that the punishment imposed on the offender was aggravating their distress.

36 Ibid, at [15]. These principles were later incorporated in Consolidated Practice Direction [2002] 1 WLR 2870.

37 However, as Edwards has pointed out, there was no attempt to discern the nature of the relationship between the ‘public interest’ and the interests of the victim: I Edwards ‘The place of victims' preferences in the sentencing of “their” offenders’ [2002] Crim LR 689.

38 Criminal Justice Act 2003, Sch 21, paras 4–5.

39 Sentencing Guidelines Council Assault and Other Offences against the Person: Definitive Guideline (2008) cl 5. Other relevant statements in the Guideline include: ‘The use of a weapon... or part of the body (such as the head or other body part which may be equipped to inflict harm or greater harm... ) will usually increase the seriousness... ’ (cl 22; emphasis added).

40 [2009] EWCA Crim 1, [2009] 2 All ER 1138.

41 Ibid, at [20].

42 Application No 20433/92 (unreported) 2 December 1992. Note, however, that the court did highlight the fact that victims' opinions should be taken note of in the United Kingdom when the Parole Board decides on whether to grant early release.

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

44 (1999) 30 EHRR 121.

45 P Rock Constructing Victims' Rights: The Home Office, New Labour and Victims (Oxford: Clarendon Press, 2004), 254.

46 See further F Leverick ‘What has the ECHR done for victims?’ (2004) 11 IRV 177 at 193.

47 J Jackson, ‘The effect of human rights on criminal evidentiary processes: towards convergence, divergence or realignment?’ (2005) 68 MLR 737.

48 B Emmerson and A Ashworth Human Rights and Criminal Justice (London: Sweet & Maxwell, 2001) pp 18–78. Indeed, they further suggest that any such statement could infringe the accused's right to an impartial hearing under Art 6.

49 [2001] OJ L82/1.

50 Case C-105/03 (unreported) 16 June 2005.

51 Ibid, para 61.

52 The scheme is only available to certain victims in homicide cases – see discussion below.

53 The discussion here is restricted to the sentencing practices of the UN International Tribunals for the Former Yugoslavia and Rwanda (ICTY and ICTR, respectively), and the International Criminal Court (ICC). However, it should be borne in mind that their respective foundation instruments reflect distinct compromises between the procedural traditions of adversarial and inquisitorial trial. Some commentators argue that there has been considerable procedural ‘drift’ away from adversarialism towards the more blended normative paradigm of the ICC; see R Vogler A World View of Criminal Justice (Aldershot: Ashgate, 2005) ch 14.

54 See, eg, S Zappalà Human Rights in International Criminal Proceedings (Oxford: Oxford University Press, 2003); G Mekjian and M Varughese ‘Hearing the victim's voice: analysis of victims' advocate participation in the trial proceeding of the International Criminal Court’ (2005) 17 Pace Intl L Rev 1; J Doak ‘Victims in the criminal process: An analysis of recent trends in regional and international tribunals’ (2003) 23 LS 1.

55 Article 15(3) of the ICC Statute permits victims to make representations to the Pre-Trial Chamber with respect to any request made by the prosecutor to proceed with an investigation. Article 19(3) provides that victims may submit observations to the court with regard to proceedings relating to jurisdiction and admissibility. Further, by virtue of Art 53(1)(c), the prosecutor may conclude, despite having taken the gravity of the crime and the interests of victims into account, that an investigation would not serve the interests of justice. In such circumstances, the prosecutor must inform the Pre-Trial Chamber and the state making a referral or the Security Council (as appropriate) of his or her conclusion and the reasons for it; Art 54(2). See generally ICC Rules of Procedure and Evidence, s III, Victims and Witnesses.

56 See Prosecutor v Tadic (Case No IT-94-I-T), Decision on the Prosecutor's Motion for Protective Measures for Victims and Witnesses, 10 August 1995, paras 62–66; Prosecutor v Blaskic (Case No IT-95-14), Decision on the Application of the Prosecutor dated 17 October 1996 requesting Protective Measures for Victims and Witnesses, 5 November 1996, para 41. For criticism, see the debate between Christine Chinkin and Monroe Leigh in vols 90/91 of the American Journal of International Law.

57 ICTR Statute, Art 19(1).

58 Ibid, Art 21.

59 These include problems relating to the lack of any definition of witness and when such a person might qualify for protection from the unit, and the fact that contact is primarily with the Registry, whereas the relationship of victims and witnesses with the tribunal prior to trial is mainly through the prosecution.

60 ICC Statute, Art 43(6). The position of victims is also strengthened by the creation of a trust fund to be administered according to criteria to be determined by the Assembly of State Parties. The fund is established for the benefit of victims of crimes within the court's jurisdiction and their families. Property collected through fines and forfeiture may be transferred to the fund by order of the court; ibid, Art 79.

61 ICC Rules of Procedure and Evidence (RPE), r 86 contains a general injunction to the Trial Chamber and other court organs when performing their functions under the Statute or Rules to take into account the needs of all victims and witnesses as directed by Art 68, especially children, elderly persons, persons with disabilities and victims of sexual or gender violence.

62 See ibid, r 87 for details of their procedural implementation.

63 ICTR Statute, Art 21.

64 Section III, subs 3, Participation of victims in the proceedings, rr 89–93.

65 This is a necessary discretion to maintain balance between the competing rights of the parties.

66 Further elaboration of the appropriate parameters for victim participation was recently provided by the ICC Appeals Chamber which confirmed that the harm suffered by victims within the scope of r 85 must be personal, although it does not necessarily have to be direct. Significantly, the prosecutor resisted the idea put forward by victims' representatives that they had a personal interest in the establishment of the charges on the basis that this served to confuse the victims' role with that of the prosecutor. The Appeals Chamber also determined that the harm and personal interests of victims in relation to their participation in the trial under Art 68(3) of the ICC Statute must be linked to the charges against the accused. Consequently, once recognised as a victim under r 85, pursuant to Art 68(3), victims will first need to establish their personal interest in the trial before they are permitted to express their views and concerns (subject to the court's discretion), although this must not prejudice or be inconsistent with the rights of the accused and a fair and impartial trial. Finally, the Appeals Chamber decided that victims may lead evidence pertaining to the guilt or innocence of the accused and to challenge the admissibility of evidence insofar as this fulfils the purposes of the trial, subject to a number of procedural safeguards. However, this must take place within the parameters set by the charges in the indictment, since these establish the issues to be determined and thereby limit the Trial Chamber's authority; Judgment on the appeals of the Prosecutor and the Defence against Trial Chamber I's Decision on Victim Participation of 18 January 2008; Situation in the Democratic Republic of Congo Prosecutor v Thomas Lubanga Dylio (Case No ICC-01/04-01/06 OA 9 A 10) 11 July 2008.

67 Principle 2 of the UN Victims Declaration makes clear that a person may be considered a victim, regardless of whether the perpetrator is identified, apprehended, prosecuted or convicted and regardless of the familial relationship between the perpetrator and the victim. This principle further clarifies that the concept of victim ‘also includes, where appropriate, the immediate family or dependants of the direct victim and persons who have suffered harm in intervening to assist victims in distress or to prevent victimization’. Unfortunately, such clarification was not included by the drafters of the ICC provisions. See further commentary by Amnesty International, The International Criminal Court: Ensuring an Effective Role for Victims (AI Index: IOR 40/10/99). The fact that there are multiple victims may be taken into account as an aggravating factor in the determination of sentence; r 145(2)(b)(iv) of the ICC RPE.

68 In this sense, therefore, it may be argued that the rights provided for are what Ashworth might describe as ‘service rights’ rather than ‘procedural rights’: A Ashworth ‘Some doubts about restorative justice’ (1993) 4 Crim LF 277. A distinction may be drawn in the characterisation of so-called ‘procedural rights’ between those rights that allow for the possibility of some form of participation by victims, and those rights that mandate that possibility.

69 Zappalà, above n 54. Zappalà does acknowledge certain practical drawbacks pertaining to the greater procedural participation possible for victims under the ICC regime (at p 232).

70 For a summary, see R Henham ‘Some issues for sentencing in the International Criminal Court’ (2003) 52 ICLQ 81.

71 The issue of compensation for victims in relation to the ICTY was the subject of a working group; see further Eighth ICTY Annual Report (UN doc A/56/352, 17 September 2001).

72 S Retzinger and T Scheff ‘Strategy for community conferences: emotions and social bonds’ in B Galaway and J Hudson (eds) Restorative Justice: International Perspectives (Monsey, NY: Criminal Justice Press, 1996) at 315.

73 In restorative terms, material reparation suggests a specified settlement between the parties, something not contemplated by Art 75, despite the fact that, according to Art 75(3), the court has a discretion to invite representations from ‘the convicted person, victims, other interested persons or interested States which it is obliged to take account of before making any order’.

74 As Zedner suggests, in practice, such a dichotomy may be exaggerated. Mediation, for example, may lead to practical actions making good damage done and, therefore, its impact is also material: L Zedner ‘Reparation and retribution: are they reconcilable?’ (1994) 57 MLR 226.

75 Johnstone, G Restorative justice: ideas, values, debates (Cullompton: Willan Publishing, 2002) p 117.Google Scholar

76 Clearly, the nature and scope of such ‘interests’ and the purpose of victim participation need to be very carefully defined. One of the most important issues to be resolved is how these purposes might be linked to other sentencing aims and their achievement in concrete cases.

77 In this the state should assume a greater responsibility for ensuring that the trial fulfils the legitimate expectations of its citizens for ‘justice’.

78 DB Wexler and BJ Winick Law in a Therapeutic Key: Developments in Therapeutic Jurisprudence (Durham, NC: Carolina Academic Press, 1996).

79 DB Wexler ‘Therapeutic jurisprudence forum: practicing therapeutic jurisprudence: psycholegal soft spots and strategies’ (1998) 67 Rev Jur UPR 317.

80 See, eg, C Slobogin ‘Therapeutic jurisprudence: five dilemmas to ponder’ (1995) 1 Psychol Pub Pol'y & L 193, who contends that TJ has not provided a satisfactory means of balancing therapeutic values with other goals in the legal process.

81 L Sherman ‘Reason for emotion: reinventing justice with theories, innovations, and research – The American Society of Criminology 2002 Presidential Address’ (2003) 41 Crim 1.

82 See, eg, T Orbuch et.al ‘Account-making and confiding as acts of meaning in response to sexual assault’ (1994) 9 J Fam Violence 249; L Mills ‘Killing her softly: intimate abuse and the violence of state intervention’ (1999) 113 Harvard L Rev 550.

83 J Kellas and V Manusov ‘What's in a story? The relationship between narrative completeness and adjustment to relationship dissolution’ (2003) 20 J Soc Pers Relat 285.

84 RD Enright and RP Fitzgibbons Helping Clients Forgive: An Empirical Guide for Resolving Anger and Restoring Hope (Washington, DC: APA Books, 2000).

85 CJ Petrucci ‘Apology in the Criminal Justice Setting; Evidence for Including Apology as Additional Component in the Legal System’ (2002) 4 Behavioral Science and the Law 337.

86 See, respectively, D Rottman and P Casey ‘Therapeutic jurisprudence and the emergence of problem-solving courts’ (2000) July, National Institute of Justice Journal 12; RF Schopp ‘Integrating restorative justice and therapeutic jurisprudence’ (1999) 67 Rev Jur UPR 665.

87 See, however, the comments of Sully J in the New South Wales Court of Criminal Appeal in R v FD; R v FD; R v JD (2006) 160 A Crim R 392, where the function of victim impact statements to provide an ‘emotional catharsis’ for victims was explicitly recognised. See further T Kirchengast ‘Sentencing law and the ‘emotional catharsis’ of victim's rights in NSW homicide cases’ (2008) 30 Syd L Rev 615.

88 See, eg, E Erez ‘Victim voice, impact statements and sentencing: integrating restorative justice and therapeutic jurisprudence principles in adversarial proceedings’ (2004) 40 Crim LB 483.

89 J Shapland and M Hall ‘What do we know about the effect of crime on victims?’ (2007) 14 IRV 175.

90 For an excellent summary of relevant empirical studies, see ibid. See also L Zedner and C Hoyle ‘Victims, victimization, and the criminal process’ in M Maguire, R Morgan and R Reiner (eds) The Oxford Handbook of Criminology (Oxford: Oxford University Press, 3rd edn, 2007).

91 See, eg, JW Pennebaker Opening Up: The Healing Power of Confiding in Others (New York: W Morrow, 1990); M White and D Epston Narrative Means to Therapeutic Ends (London: WW Norton & Company, 1990); T Orbuch ‘People's accounts count: the sociology of accounts’ (1997) 23 Annual Review of Sociology 455. On overcoming particular problems facing homicide victims, see J Kenney ‘Gender roles and grief cycles: observations of models of grief and coping in homicide survivors’ (2003) 10 IRV 19.

92 MJ Horowitz Stress Response Syndromes (New York: Jason Aronson, 2nd edn, 1986). See generally K Harber and J Pennebaker ‘Overcoming traumatic memories’ in S Christianson (ed), The Handbook of Emotion and Memory: Research and Theory (London: Lawrence Erlbaum Associates, 1992).

93 See further WL Bennet and M Feldman Reconstructing Reality in the Courtroom (Brunswick: Rutgers University Press, 1981); N Pennington and R Hastie ‘The story model for juror decision making’ in R Hastie (ed) Inside the Juror: The Psychology of Juror Decision Making (Cambridge: Cambridge University Press, 1993).

94 Bennet and Feldman, ibid, p 67.

95 J Braithwaite ‘Building legitimacy through restorative justice’ in T Tyler (ed) Legitimacy and Criminal Justice: International Perspectives (New York: Russell Sage Foundation, 2007).

96 W Pizzi Trials Without Truth (New York: New York University Press, 1999) p 197. An interesting paradox, however, can be found in the case of professional expert witnesses. Concerns have been expressed that their testimony is incapable of being effectively challenged by the advocates who are not themselves familiar with the methodological basis for the expertise. To this end, the rules on the examination of experts were subject to a fundamental overhaul in Pt 35 of the Criminal Procedure Rules 2005, SI 2005/384, which stipulates that the expert's duty to the court now ‘overrides’ any duty to the instructing party (CPR r 35.3(2)). See further B Thompson ‘Watch this space’ (2005) 155 NLJ 773; D Ormerod, ‘Expert evidence: where now? What next?’ (2006) 5 Arch News 5.

97 Pizzi, ibid.

98 M Hall Victims of Crime: Policy and Practice in Criminal Justice (Cullompton: Willan, 2009), see esp ch 6.

99 See further J Doak ‘Victims' rights in criminal trials: prospects for participation’ (2005) 32 JLS 294.

100 Some commentators, however, have argued that, in time, restorative practices may come to percolate social relationships and wider society. See, eg, D Sullivan and L Tifft Restorative Justice: Healing the Foundations of our Everyday Lives (Monsey, NY: Willow Tree Press, 2005).

101 See, eg, J Roberts and E Erez ‘Communication in sentencing: exploring the expressive function of victim impact statements’ (2003) 10 IRV 223, proposing a ‘communicative’ model rather than an ‘impact’ model for the incorporation of victim statements at sentencing.

102 See further K McEvoy ‘Beyond legalism: towards a thicker understanding of transitional justice’ (2007) 34 JLS 411.

103 See further A Ashworth ‘Punishment and compensation: victims, offenders and the state’ (1986) 6 OJLS 86.

104 A Goldstein ‘Defining the role of the victim in criminal prosecution’ (1982) 52 Miss LJ 515 at 530.

105 D Weisstub ‘Victims of crime in the criminal justice system’ in E Fattah (ed) From Crime Policy to Victim Policy (London: Macmillan, 1986) p 206.

106 The court may make a compensation order, instead of, or in addition to, any other penal sanction. Where the offender has insufficient means to pay both, the court shall give preference to the compensation order (s 130(12) of the Powers of Criminal Courts (Sentencing) Act 2000). The powers were originally set out in the Criminal Justice Act 1972.

107 Powers of Criminal Courts (Sentencing) Act 2000, s 130. Section 130(4) of the Act states that compensation ‘shall be of such amount as the court considers appropriate, having regard to any evidence and to any representations that are made by or on behalf of the accused or the prosecutor, the Court’.

108 S Field and P Roberts ‘Racism and police investigations: individual redress, public interests and collective change after the Race Relations (Amendment) Act 2000’ (2002) 22 LS 493 at 495. See also Fenwick, above n 33.

109 For an overview, see J Dignan Understanding Victims and Restorative Justice (Maidenhead: McGraw-Hill/Open University Press, 2005) ch 4. See also D Roche Accountability in Restorative Justice (Oxford: Oxford University Press, 2003) ch 1.

110 S Walther ‘Reparation and criminal justice: can they be integrated?’ (1996) 30 Israel Law Review 316 at 320.

111 See further Doak, above n 18, ch 6.

112 Cavadino and Dignan, above n 11, at 237.

113 Weisstub, above n 105, p 207.

114 Furthermore, the fragmentation of the process through the introduction of discrete structures for dealing with particular forms of offender or offending behaviour understandably does little to advance the cause of integration, either in theory or practice. As the Italian experience suggests, changes in structure and form without a corresponding re-evaluation in the overall purposes of prosecution, trial and sentence beyond a basic need to remedy procedural deficiency produce penal structures whose philosophical justifications are impossible to reconcile within the existing stated aims of punishment and the legislative model which embodies them: R Henham and G Mannozzi ‘Victim participation and sentencing in England and Italy: a legal and policy analysis’ (2003) 11 Eur J Crime Cr L Cr J 278.

115 Department of Constitutional Affairs Hearing the Relatives of Murder and Manslaughter Victims (London: Department of Constitutional Affairs, 2005) p 4.

116 See Hoyle et.al, above n 27; Chalmers et.al, above n 12.

117 See The Victim's Advocate Protocol issued by the President of the Queen's Bench Division Setting Out the Procedure to be Followed in the Victims' Advocate Pilot Areas (2006), appended in Sweeting et.al, above n 19.

118 See, eg, Hoyle et.al, above n 27; Chalmers et.al, above n 12.

119 Rock, above n 19, pp 9–10.

120 Sweeting et.al, above n 19, p 17.

121 E Erez ‘Integrating a victim perspective in criminal justice through victim impact statements’ in A Crawford and J Goodey (eds) Integrating a Victim Perspective Within Criminal Justice (Aldershot: Ashgate, 2000).

122 See further C Brennan, above n 10. Indeed, the task of constructing ‘victims’ generally can be fraught with difficulty, and there is no authoritative definition that can be applied across the legal order. See further Doak, above n 18, ch 1.

123 Crown Prosecution Service Victim Focus Scheme Guidance on Enhanced CPS Service for Bereaved Families para 27, available: http://www.cps.gov.uk/legal/v_to_z/victim_focus_scheme/.

124 Faulkner, above n 14.

125 See further J Jackson ‘Justice for all: putting victims at the heart of criminal justice?’ (2005) 30 JLS 309 at 313; Doak, above n 18, ch 1; Hall, above n 98, pp 80–83.

126 A Bottoms ‘The philosophy and politics of punishment and sentencing’ in C Clarkson and R Morgan (eds) The Politics of Sentencing Reform (Oxford: Clarendon Press, 1995).

127 Ibid, p 12.

128 Rock, above n 19.

129 Roberts and Erez, above n 101.

130 Sweeting et.al, above n 19, p 35. This tends to be a feature of victim statement schemes generally – see Edwards, above n 8.

131 Ibid, p 21.

132 Above n 55.

133 And whilst acknowledging the clear differences of rationale and process for international criminal trials.

134 In the domestic context, this would challenge the adverse consequences of the adversarial distinction between verdict and sentence on establishing the factual basis for sentence.

135 In the sense that their evidence is less likely to be perceived as tainted by an economic motive than in the pursuit of establishing the ‘truth’ of the events which constitute the facts alleged in the indictment.

136 See further K Ambos ‘International criminal procedure: “adversarial”, “inquisitorial” or mixed?’ (2003) 3 Int CLR 1.

137 Sherman, above n 81.

138 Ibid, citing D Massey ‘Presidential address. A brief history of human society: the origin and role of emotion in social life’ (2002) 67 ASR 1.

139 B Hudson ‘Doing justice to difference’ in Ashworth and Wasik, above n 13.

140 See J Wemmers and K Cyr ‘Can mediation be therapeutic for crime victims? An evaluation of victims’ experiences in mediation with young offenders’ (2005) 47 Can J Criminol Crim Justice 527; EA Lind and K Van den Bos ‘When fairness works: toward a general theory of uncertainty management’ (2003) 24 Res Organ Behav 181; R MacCoun ‘Voice, control and belonging’ (2005) 1 Ann Rev Law & Soc Sci 171.

141 Sherman, above n 81,

142 This paper has focused on the desirability of victim participation within criminal justice, but many commentators have also recognised the need for effective community engagement. See, eg, A Crawford ‘The spirit of community: rights, responsibilities and the communitarian agenda’ (1996) 23 JLS 247; The Local Governance of Crime: Appeals to Community and Partnerships (Oxford: Clarendon, 1997); D O'Mahony and J Doak ‘The enigma of community and the exigency of engagement: restorative youth conferencing in Northern Ireland’ (2006) 4 BJCJ 9; G Pavlich ‘The force of community’ in H Strang and J Braithwaite (eds) Restorative Justice and Civil Society (Cambridge: Cambridge University Press, 2001).

143 See, eg, M Cavadino and J Dignan ‘Towards a framework for conceptualising and evaluating models of criminal justice from a victim's perspective’ (1996) 4 IRV 153; Pizzi, above n 96; L Walgrave ‘Restorative justice and the law: socio-ethical and juridical foundations for a systemic approach’ in L Walgrave (ed) Restorative Justice and the Law (Cullompton: Willan Publishing, 2002); J Jackson ‘The effect of human rights on criminal evidentiary processes: towards convergence, divergence or realignment?’ (2005) 68 MLR 737; Doak, above n 18.