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Victimology and ‘justice as therapy’ – The Justice Gap
August 18 2022

Victimology and ‘justice as therapy’

Victimology and ‘justice as therapy’

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walking shadow, by Claudio Cesarano,  flickr, creative comms,

Walking shadow, by Claudio Cesarano, flickr, creative comms

This week, Labour’s Victims’ Taskforce published its recommendations on a victims’ law. Its authors are ex-DPP Keir Starmer QC, Doreen Lawrence and Peter Neyroud. Its special advisers are a QC practising sexual offences law, and Richard Scorer, a partner of the foreign-owned claimant law firm, Slater & Gordon, which handles the bulk of the claims against the Savile estate.

This 29-page document pays lip-service to the concept of defendants’ rights. But its bias is very evident. Thus, the word ‘victims’ features 334 times, the word ‘complainant’ twice, the word ‘witness’ 29 times and the word ‘defendant’ five times.

Starmer is well-known for his electioneering on the back of a Victims’ Law promise, and this document is a populist piece. Reading it, you would not realize that since the United Nations took up the victims’ cause, in its 1985 Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, crime rates in the West have been steadily falling.

The report makes 14 recommendations, including:

  1. A statutory framework for victims’ services;
  2. A mandatory duty to report suspected child abuse;
  3. A new Code of Practice requiring police to record victims’ allegations;
  4. ‘An annual assessment’ by the Victims’ Commissioner of steps taken to dispel myths and stereotypes about victims”;
  5. A ‘victims’’ legal right of review of decisions not to prosecute or to discontinue a prosecution;
  6. A revised Victims’ Code ‘setting out victim entitlements’;
  7. A duty on the Victims’ Commissioner to report all breaches of the Victims’ Code to Parliament;
  8. An annual evaluation by the Victims’ Commissioner of steps taken to improve the way in which victims and witnesses are treated in court;
  9. A statutory duty on judges to hold ‘ground rules’ hearings ‘to control the way vulnerable victims and witnesses are treated in court’;
  10. A statutory duty on police and the CPS to make national standards for the treatment of homicide cases, to be approved by the Victims’ Commissioner.

As is typical of issue advocacy, the report makes sweeping statements, claiming that there is something terribly wrong with the UK’s criminal justice system.

This is a grossly distorted picture. Though, as I have argued before, it is the CPS’ desire for show trials, particularly in sex cases, that results in over-long indictments and protracted hearings, often with multiple defendants. This is not the fault of the defence. But Labour wishes to transform the present system into a ‘criminal justice service’. The idea that a constitutional arm of government should be reduced to a ‘service’ suggests how skewed Labour’s constitutional vision is.

The report does not use the words ‘elderly’, ‘race’ or ‘disabled’. It mentions the crime of fraud once. It uses the ambiguous term, homicide, 11 times. By contrast, the word ‘sexual’ appears 42 times, and the word ‘abuse’ 37 times. And indeed, its predominant focus (as the names of those who ‘contributed’ to the report overwhelmingly indicate) is violence against women and girls. Thus, we are told: ‘Many victims, particularly victims of personal or sexual violence, lack the confidence to come forward to report crime.’ A few pages on, ‘many’ has turned into ‘most’: ‘Most victims of personal or sexual violence are unlikely to report their allegations to the police.’ One blogger has already pointed out the reductio ad absurdum underlying the PC assumption that more crimes of this type should be reported:

‘There are, apparently, 15,000 rapists in Britain’s prisons already – if only 5% of rapists are convicted, a figure I understand Ms Saunders goes to bed at night mumbling to herself, then we need an extra 285,000 prison places urgently. Wandsworth is our largest prison, and that only holds 1,800 prisoners, so we are talking about 150 Wandsworths being built immediately.

The Labour Government aimed to achieve an overall net capacity of just over 96,000 by 2014, mainly through two major prison building programmes. We need treble that! They estimated costs at 1.2 Billion per 7,500 prisoners. That’s, er, well, 38 Billion give or take…oh, plus the 36,000 times 285,000 prisoners cost per year to keep them there.’

The report is typically New Labour in its assumption that more bureaucracy is the cure to social ills. Insist on endless statutory reporting mechanisms: a jobsworth’s paradise. Demand that more public money be spent on telling people what their ‘entitlements’ are. Encourage satellite litigation and complaints by those aggrieved by decisions of prosecuting authorities, never mind if their case was weak, who will then demand compensation from a Victims’ Ombudsman’s Service for breach of their ‘entitlements’.

The report then goes off-piste, to demand mandatory reporting. Institutionalise a blame culture by prosecuting those who fail to report a ‘suspicion’ of abuse, as recommended by Slater & Gordon – an interesting example of a law firm offering advice that dovetails with one of its own campaigning objectives. The result, I fear, will be a chronic inability to see wood for trees, and a surge in false allegations.

Starmer is famous for his claim that it is ‘more sophisticated’ to start with the assumption that a complainant is telling the truth. ‘Believe the victim’ is the new cool. So it comes as no surprise to read the report’s authors’ complaint about the police:

‘There is a persistent culture in many forces in favour of a pre-investigation to see whether a crime has been committed rather than acceptance [!] of the victim’s report.’

What this signals is a desire to shift away from a justice system in which the state acts on behalf of the public, to one where agencies such as the police and the CPS act as advocates for complainants.

This is dangerous because it reverses the presumption of innocence. And it eclipses the fact that a criminal trial is a battle over the accused’s right to liberty: it is his freedom (not that of the complainant) that is at stake. This is particularly important in the vengeful, lynch-mob atmosphere that typically accompanies allegations of sex abuse nowadays.

Predictably, the authors wheel out the stock complaint that ‘victims’ are subject to ‘myths and stereotypes’ (they only mean one type of victim). By the time we get to this part of the report, it is clear that Starmer et al are doing penance, yet again, for the scandals of Rochdale, Rotherham, etc. But as law lecturer Helen Reece has pointed out, all this does is to substitute a set of politically correct ‘myths about myths‘, which avoids having to grapple with the messy business of human behaviour in a down to earth way.

No more level playing field
Two examples of how much the report’s authors seek to privilege one class of ‘victim’ will suffice. It says that victims of personal and sexual violence should not have to attend a police station to report offences, unlike the hoi polloi. Instead, they should attend a independent reporting centre (as yet unspecified). But far more disturbing than this is the proposal to limit the rights of the defence to challenge the prosecution’s case, in any case where a witness is deemed vulnerable. Thus, it is proposed that judges should have power to dictate the form of questions; to impose ‘restrictions on advocates putting their case’, and to restrict comment on evidential inconsistencies!

As Wendy Kaminer explained in a prophetic article written in 2001, the problem with giving complainants (pre-victims) a constitutional role in criminal matters is that it fundamentally unbalances the justice system, by pre-empting the findings of a competent court: ‘When we identify and legally empower a victim before conviction, we assume that a crime has been committed… .’

As Kaminer points out:

‘Defendants occupy the center of attention in criminal trials because they’re the ones being prosecuted. The rights conferred upon criminal suspects are limitations on the power of the state to .. imprison its citizens. … power is easily abused.’

Victims’ rights advocates view justice as a form of therapy. This is to misunderstand what justice is designed to achieve, which is to search for the truth, as Kaminer explains:

‘The victim’s credibility must be tested; inaccuracies or inconsistencies in her story must be revealed. Taking a cue from the therapeutic culture, victims’ rights advocates tend to impute virtue to victimhood, but, of course, it is sometimes misplaced. Taking the presumption of innocence seriously means that we can never take an accusation at face value.’

The real problem with Labour’s approach is its disregard of constitutional fundamentals, and its refusal to acknowledge the real problems that beset the criminal justice system: delays, inefficiencies, insufficient rooting out of weak cases early on, the collapse of criminal legal aid, and so on. The problems in the criminal justice system lie elsewhere. Reports like this are an exercise in looking down the wrong end of the telescope.

Barbara Hewson is a barrister in Gray’s Inn. Her views are personal