浏览： 日期：2020-06-10
The recent years in the UK and throughout the world has seen the importance and influence of human rights growing. This has had an effect on the law as a whole, but instead of the good of society being protected by statute and common law the individual has come to the forefront, i.e. an individual's rights cannot be derogated unless a set criterion is followed. Therefore this focus on the individual has not only given stricter rules for the courts and police to follow in respect to suspected and convicted criminals, it has also laid an emphasis on the individual victim and the resources, after-care and support, as well the effect on sentencing in respect to criminal cases and restitution or compensation in respect to civil cases.
The recent rise of the role of victims in the Criminal Justice system is highly important, which will be identified in the discussion of restorative justice. The role model for incorporating the victim providing restitution and their needs can be seen in Australia within Victorian Criminal Justice System. Therefore this case study is not going to explore not the medical help that victims need and which have been procured, but their search for justice and restitution and compare it to the UK's approach to the victim in the Criminal Justice System.
It is here that the victim's rights groups are calling for justice, as seen in the recent Home Office Survey of Victim's Rights Groups wishes, i.e. a true role for the victim in the Justice system, especially Criminal Justice:
To genuinely reflect the needs of victims, the social rights referred to in the paper "The social rights of victims of crime" should be included in the new Charter, clearly identifying the agencies responsible for delivering them.
Restorative Justice:
This is the most modern reasoning for sentencing and balances the various elements of the sentencing, such as the victim's needs, the rehabilitation of the offender, interests of protecting society. It could be adapted to include public opinion, but in the interests of justice it would need to be informed public opinion because the theory is Rawlsian in nature, which results in a theory from the standpoint of justice. Rawl's in his thesis for engendering equality states that justice is the prime basis of all government and to ensure justice, the access to justice for all is the obvious means and end to ensure justice is fulfilled; therefore in the Criminal Justice system this would include the access to justice for the offender, the victim, and the rights for the public to voice their opinion on sentencing of a convicted criminal. Rawl's theory is based on a few key ideas, which are the rights and duties of government/institution of society and the burdens and benefits of citizens co-operating. Rawls bases his theory on distributive justice, where inequalities are restrained by the greatest benefit of least advantaged and each person has the condition of fair equality of opportunity.
Therefore Rawls would allow for restorative justice but retribution would be unjust, rather aims to rehabilitate and return the perpetrator to society would be appropriate, i.e. in order for the perpetrator to compensate society because if the perpetrator is rehabilitated and educated then society will be benefited. Rawls would argue that there is a role for the victim in the sentencing procedure and for public opinion as long as the perpetrator is not subject to hatred, prejudice and vengeance that would be the fear if public opinion was allowed to take over the proceedings. Rather Rawls would argue there needs to be a balance between the rights of the perpetrator, the public's opinion and its protection and the victim's access to justice. There still needs to be the rule of law and objectivity but within the realms of these new considerations. It is possible that the perfect model the Victorian Sentencing Advisory Council has met these obstacles and created a system that allows an appropriate mixture of these elements.
Victorian Sentencing - The Victim Role in the Criminal Justice System:
The VSAC was set up to ensure that there was just sentencing as well as allowing for the victim to have a sufficient statutory role in the sentencing procedure. This follows ensuring that the victim plays a proper role in respect to the criminal justice system. Yet in order for there not to be retributive and vengeance sentencing and in order to stop tainting of the trial before the judgment the role of the victim is closely monitored. Section 5 of the Sentencing Act 1991 ensures:
Therefore this limits the role of the victim and ensures that the defendant's rights and the victim's rights and community views are balanced. It also allows for informed public opinion to be taken into account in the sentencing procedure. This sentencing procedure takes the views of victims and the public in to account through a thoroughly monitored manner, rather than allowing the press to have a field day and public outcry. The Victorian sentencing procedure allows for the victim's views to be taken in the form of an impact statement and this only occurs if the defendant is found guilty, i.e. this system does not allow such views to taint the defendant's right to a fair hearing. In addition sentencing is gauged against informed public opinion rather than the outcry of the uneducated or the enraged so that there is a rounder understanding on the effects of the crime on the society and the individual.
The British Approach to Victims:
The government has always been on the side of the victim - it takes on his or her case and seeks to punish the perpetrator - but it has no always done so with enough rigour or sensitivity of their needs.
Helena Kennedy focuses on the problem with the Criminal Justice System in the UK in respect to the lack of acknowledgment for the victim. In many ways the system is cold to the victim; it forgets there is more than retributive justice. The England and Wales Sentencing Advisory Council is made up of judges and academics, there is no real voice for the victim as in Australia. The only impact statements by the victim are those taken by the police and prosecution, when the victim is in a highly stressful situation. It pervading culture of the UK's system is that a conviction will satisfy the needs of the victim; this is not the case as the VSAC has seen. In many cases the victim needs to know why the crime happened and have the ability to talk the perpetrator.
Also this is a method that can help the perpetrator acknowledge the harm done and hopefully rehabilitate the offender, especially in the youth justice system. The UK system has recognized this and in has instituted this as an alternative to imprisonment in the Youth Justice and Criminal Evidence Act 1999. The key is the use of restorative justice, the approach taken in Australia, which is understanding and balancing the needs of the perpetrator and the victim. The problem in the UK is that on some levels it recognizes the need for this balance, but on others especially in the recent wakes of the terrorist attacks to forget about justice and civil liberties in order to have to power to punish anyone who may be a threat. It has followed the media frenzy of the US and forgotten about justice. The victim no longer figures in such approaches but the needs of the state. In order to satisfy the victims' needs there needs to be an inclusive role, such as answers, apologies, informing the offender of the impact of their crimes on innocent people, crime prevention and restitution.
This is harder in respect to serious crimes, but sometimes the reasons for the actions of the perpetrator not only help the victim to reconcile their experiences but it also ensures that the government understands the reasoning for certain crimes and make the perpetrator understand the impact of their crimes. Therefore the role of the victim in the Criminal Justice System is more than just attending a court room but can play a role in understanding and preventing crime. The VSAC has understood this problem and has introduced impact statements, as well as more diverse advisory panel and the influence of informed public opinion; rather than the pick 'n' mix that the UK's government is taking whenever it suits the needs of the state. This approach was verbalized by John Major during his leadership as condemn more and understand less but as Helena Kennedy argues the victims of crime, their desire is often to understand why a criminal acted as they did.
Conclusion:
The objective approach that the VSAC makes it very hard for the press to create witch hunts and put pressure on the court to impose an unjust sentence in favour of perceived public opinion; rather the specific victims of the crime are taken into account. This objective approach halts and the fears that the courts will become a place for the media based witch hunts are stopped and justice for the victim is considered at the same time as balancing the justice for the defendant. This creates a unique approach to criminal justice and possibly a way forward for ensuring that victims do gain a voice, without the witch hunts that have been seen recently in the US, especially those held in Guatanamo Bay.
Also the UK system which is on the brink of following the US should heed the fears of those in the UK justice system against the media/witch hunt approach and follow the approach the VSAC and subsequent jurisdictions in Australia have taken, which is to balance the criminal justice between the public opinion, the victim and the defendent in an objective manner as Justice Badgery-Parker states:
[T]he need which the criminal justice system exists to fulfil is the need to interpose between the victim and the criminal an objective instrumentality which, while recognising the seriousness of the crime from the victim's point of view and, in the case of murder, the magnitude of the loss which the victim's family and friends have sustained, attempts to serve a range of community interests which include but go beyond notions merely of retribution.
In order to do this there needs to be easy access to forums and practioners from the Criminal Justice system in order to stress the different reasoning behind sentencing procedures, as well as Victims AND Offender's rights groups in the UK.
Bibliography:
R G Fox, 1995, Victorian Criminal Procedure: State and Federal Monash Law Book Co-operative
Freiberg, 2001,Sentencing Options, Sentencing Review 2001Discussion Paper
Freiberg, 2002, Pathways to Justice Sentencing Review 2002 Discussion Paper
Graycar & Morgan, 2005, Law Reform - What's in it for Women, Windsor Yearbook on Access to Justice Volume 23
Home Office, 2001, Review of the Victim's Charter: Summary of Responses can be found at: http://www.homeoffice.gov.uk/docs/vcreviewvictims.html
Helena Kennedy, 2004, Just Law, Vintage Books
John Rawls, The Theory of Justice (Oxford University Press, Oxford, 1971)
Rawls J., Justice as Fairness: a restatement, (E. Kelly Ed) (2001, Cambridge Mass, Harvard University press)
Ridge, M. 2003 'Giving the dead their due' Ethics 114: 38-59.
Sentencing Advisory Council, About Sentencing - Principles and Purposes, can be found at: http://www.sentencingcouncil.vic.gov.au/CA256F82000D281D/page/About+Sentencing?OpenDocument&1=20-About+Sentencing~&2=~&3=~
