Forgive my cynicism but after 35 years of defending in criminal cases and watching the endless chipping away at the rights of defendants I smell a rat and feel a thin end of a wedge coming on when the government talk about giving the victims of crime say in choosing the punishment. OK, so far we seem to be talking low level crime and community punishments but I fear it will not remain that way for long.
We already have victim impact statements being read out in court before sentencing in murder cases. These are a fraud. The very fact it is read out before sentence gives the impression it will be taken into account by the judge. Why else would it be read out during the very part of the case when the judge is hearing about aggravating and mitigating features of the case?
The judge listens, says it’s very moving and then ignores it for the purposes of sentence. He has to. If he didn’t ignore it, if he did say he had increased the sentence on account of it there would be grounds for an appeal. So what’s the point? It’s nothing short of the court trying to look all politically correct saying ‘here we are showing we care for victims of crime’.
What’s wrong with the old system whereby a member of the family or more usually a police officer read out a statement on the steps of the court? It let the family have their say. It happened after the sentence had been passed and no one thought it had any effect because it clearly didn’t. How many families now understand that the reading of the victim impact statement won’t have any effect on the sentence?
It also gives a very unfair advantage to the articulate. Imagine on the one hand the case of professional parents of a young murder victim, who has just got a good degree and is on the verge of a bright future. Those parents will be able to write a brilliant moving statement about their daughter and their own terrible loss. Contrast that with another young woman whose parents split up years ago and who fell into drug addiction and prostitution. The single parent perhaps themselves poorly educated and unable to articulate their similar feelings of grief and despair. Both lives equally valuable, both parents equally distraught but very different victim impact statements. It shows what a sham they are. And I thought we were supposed to have more transparency in sentencing these days.
At the risk of over simplifying things the whole point of prosecutions by the state was introduced into English law possibly as long as a thousand years ago in order to replace the previous chaotic system of blood-feuds whereby the relatives of a murdered person were entitled to seek bloody revenge on the perpetrators and blood-feuds might continue through several generations.
I think most of us would agree we have improved things a bit since then. I am happy to acknowledge that if anyone murdered any of my children my rage would be so great that I would want to kill the person responsible, preferably by digging their heart out with a spoon!
That may seem a little over the top but I am sure I am not alone in that view. I cannot imagine the grief and pain caused by an act or murder. But that is precisely why the victim’s of such an offence are not the first people to be asked about sentence but the very last. How can the victims of so horrible an offence possibly be in the correct frame of mind to decide on a punishment since no punishment can be as bad as what the perpetrator has already done to them and none can bring the victim back to life?
Law of the lynch mob
That is why we have submitted to allowing the state, as a neutral arbiter to deal with criminal cases of all grades of seriousness and we leave it to the state, through our elected representatives to decide the appropriate range of sentences and then leave it to the judgment of (mostly) professional judges to decide the actual punishment appropriate.
And long may that continue because once punishment in particular cases is opened up to general debate we will be back to the rule not of law but of the mob. You can imagine newspapers like the Sun or Daily Mail running a ‘choose the sentence’ campaign.
All said to be very democratic I am sure but in truth just the law of the lynch-mob. We may be a long way from this at the moment, although I am reminded it is there in the wings every time I hear a murder victim’s family saying that life should mean life. Once you start on such a process of inviting the victims of crime to decide the appropriate sentence, even in relatively low level crimes it is but a short path to extending that right to say driving offences, and then assaults and before you know it all manner of sentences will be decided by the victims.
Author: Mark George QC
Mark George QC is a highly experienced defence trial advocate of more than 30 years’ experience. Mark works from Garden Court North chambers