Enriching trial justice for crime victims in common law systems
| Published date | 01 May 2015 |
| Author | Jonathan Doak |
| Date | 01 May 2015 |
| DOI | 10.1177/0269758015571469 |
| Subject Matter | Articles |
Article
Enriching trial justice for
crime victims in common
law systems: Lessons from
transitional environments
Jonathan Doak
Durham University, UK
Abstract
The role of victims in the criminal trial has been subject to considerable critique in recent years.
This article argues that scholarship and policy governing the treatment of victims and witnesses in
‘ordinary’ criminal trials within ‘settled’ societies may be substantially enriched by drawing lessons
from the roles of, and practices affecting, victims within post-conflict societies. There is a clear
need for policy-makers and law reformers to look beyond the familiar spheres of the domestic
criminal process if the justice system is to become more effective, just and legitimate in the eyes of
both victims and the wider public. This article draws on both theory and praxis on the role of
victims within transitional justice, and contends that trial justice in common law systems may be
enriched through centring processes on three key themes which are commonly emphasized in
transitional justice frameworks, these being: (i) truth recovery; (ii) victim participation; and (iii)
reparation.
Keywords
Participation, reparation, transitional justice, trials, victims
Introduction
In contrast to continental Europe, most Anglo-American criminal trial systems are adversarial in
nature and have been succinctly characterized as a ‘sharp clash of proofs presented by litigants in a
highly structured forensic setting’ (Landsman, 1984: 2). There is no shortage of literature docu-
menting the plight of victims in their capacities as witnesses (Bala et al., 2010; Commissioner for
Victims and Witnesses in England and Wales, 2011; Ellison 2001; Spencer and Lamb, 2012;
Corresponding author:
Jonathan Doak, Durham Law School, Durham University, Palatine Centre, Stockton Road, Durham DH1 3LE, UK.
Email: jonathan.doak@durham.ac.uk
International Review of Victimology
2015, Vol. 21(2) 139–160
ªThe Author(s) 2015
Reprints and permission:
sagepub.co.uk/journalsPermissions.nav
DOI: 10.1177/0269758015571469
irv.sagepub.com
Tinsley and McDonald, 2011); their exclusion from proceedings (Fielding, 2006; Rock, 1993;
Shapland et al., 1985); their inability to participate in any meaningful way (Roberts and Erez,
2010; Shapland and Hall, 2010; Wemmers, 2009) and the lack of opportunity to seek either sym-
bolic or material redress (Davis, 1992; Doak, 2008; Williams, 2005). Despite the expansion of pro-
tective measures for vulnerable witnesses and various schemes enabling victims to exercise a voice
in criminal sentencing, adversarialism and bipartisanship remain firmly ingrained in the mechanics
of the common law criminal trial.
In a seminal article published just over three decades ago, Doreen McBarnet was critical of
efforts to ease the plight of the victim in adversarial courtrooms. All too often, she argued, analysis
of the problems facing victims focused on visible issues, as opposed to questioning ‘the deeper
structures that help create them’ (McBarnet, 1983: 303). Her observation proved apposite; whilst
many policy and law reforms have since been promoted in the name of victims, their underlying
rationale is often attributed to the lucrative political appeal of the crime victim (Garland,
2001; Geis, 1990), rather than any desire to grapple with such problems in a principled and
systemic manner.
Yet the prospects of more far-reaching, structural reforms that McBarnet envisaged have see-
mingly been boosted in recent years, as policy-makers, victim groups and academic criminologists
have illustrated an increasing readiness to look beyond the familiar to practices that appear to be
working well in other jurisdictions. There can be little doubt that, if engineered carefully, compara-
tive criminal justice can reap benefits in the form of fresh insights and novel solutions for areas of
both theory and practice that have become parched and stagnant over time (Brants, 2011). While
we have become increasingly adept at drawing lessons from elsewhere, there remains a marked
reluctance to look beyond the disciplinary parameters of criminal justice and criminology, to
explore how other fields of study might enrich criminal justice policy-making. Notwithstanding
a recent surge in the criminology of state crime (see, for example, Cohen, 1995; Green and Ward,
2000), there has been relatively little engagement among criminologists with the potential lessons
that might be extrapolated for ‘ordinary’ criminal justice from post-conflict environments. In
many (though by no means all) such settings victims have featured prominently in the language
of transition, with those facilitating such processes being acutely aware of the need to acknowl-
edge and provide redress for those who have borne the brunt of suffering in settings which are
frequently marked by the abuse or absence of the rule of law, human rights and internation al
humanitarian law.
This article contends that scholarship and policy governing the treatment of victims and wit-
nesses of ‘ordinary’ crime within ‘settled’ societies may be substantially enriched by drawing les-
sons from the roles of, and practices affecting, victims within transitional justice processes. It is not
claimed that such processes are perfect, or that they offer a particular model of practice that might
be readily transplanted into domestic systems. However, it is suggested that the rise of transitional
justice has heralded a creative space for a number of diverse and innovative practices – as well as
different ways of conceptualizing harm and victimhood – which might act as a catalyst for chal-
lenging entrenched normative conceptions of the role of victims, as well as their practical treat-
ment, within common law trial frameworks.
The article begins by clarifying a number of key concepts and explores the feasibility of draw-
ing lessons from transitional justice frameworks to inform the practices of domestic criminal jus-
tice. The second part of the article explores how ‘ordinary’ criminal justice might be enriched
through reconfiguring criminal trials around three key values which are commonly emphasized
in transitional justice discourse, these being (i) truth recovery, (ii) victim participation and (iii)
140 International Review of Victimology 21(2)
To continue reading
Request your trial