Failing to Protect: Victims' Rights and Police Liability

Publication Date01 Mar 2009
AuthorMandy Burton
dishonest and without the presence of ‘aggravating features’it could not be pro-
secuted under theUK common law.While the judgment of theHigh Court con-
cerning the interpretationof the common law is preferableto that of the Houseof
Lords, the ruling of the Appellate Committee on legal certainty is sound and
should be accepted by legal scholars.The e¡ects of the judgment will be felt not
only in the US, but also in the United Kingdom. The most worrying of the
e¡ects concerns UK criminal competition lawe nforcement and the future viabi-
lity of the Cartel O¡ence. It seems very unlikely that a jury will hold that mere
price-¢xing is dishonest when according to the Law Lords it is incapable of
amounting to a disho nest practice in law prior to 20 June 2003. Although the
o⁄cial death knell of the Cartel O¡ence has not yet been rung, it may well be
time toreconsider the de¢nitionof this criminal o¡ence and to change the under-
lying law in order to avoid not only jury nulli¢cation but also the waste of
resources th at such nul li¢cation inevitably engen ders.
Failing to Protect:Victims’ Rights and Police Liability
Mandy Burton
In the light of the House of Lords decisions in Va n C o l l e and Smith this commentary considers
whether victims can truly be said to have ‘rights’without e¡ective remedies for police inaction.
It also considers the implications for ine¡ectivepolice responses to domestic violence, especially
cases culminating in domestic homicide.
Should victims of crime have a right to demand that the police take e¡ective
action to investigate theircomplaints? If so, how is that right to be given any sub-
stance?These questions underpin the Houseof Lords decision in Chief Constable of
the Hertfordshire Police vVa n C o l l e and the jointly heard appeal in Smith vChief Con-
stable of Sussex Police.
In these appeals the court faced the question of what redress,
if any, victims of crime should have against the police for failure to protect them
from criminal acts committed by third parties. The political rhetoric in recent
years has been about putting victims at the heart of the criminal justice system.
This rhetoric has been particularly powerful in relation to the government’s strat-
egy for responding to domestic violence.
The signi¢cance ofVa n C o l l e and Smith
Senior Lecturer in Law, School of Law,University of Leicester.
1 [2008] UKHL 50 (Va n C o l l e and Smith).
2 J. Jackson,‘Justice forAll: Putting Victimsat the Heart of Crimi nal Justice?’(2003) 30 JLS 309.
3HomeOce,Safety andJustice:The Governments Proposalson DomesticViolenceCm 5847 (2003).
Mandy Burton
r2009 The Author.Journal Compilation r200 9 The Modern LawReview Limited.
(2009) 72(2) 272^295

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