Procedural ‘Rights’ of Victims of Crime: Public or Private Ordering of the Criminal Justice Process?
| DOI | http://doi.org/10.1111/1468-2230.00083 |
| Published date | 01 May 1997 |
| Date | 01 May 1997 |
Procedural ‘Rights’ of Victims of Crime: Public or
Private Ordering of the Criminal Justice Process?
Helen Fenwick*
Recent years have seen a number of developments which give rise to the notions
that in some sense victims of crime have ‘rights’ and that provision of such rights
can improve their position within the criminal justice system. When the Victim’s
Charter was published in 1990 it declared that it was ‘a Statement of the Rights of
Victims of Crime’, and went on to state: ‘the second part sets out — for the first
time — how the victims of crime should be treated, and what they are entitled to
expect.’
1
The 1996 version of the Charter declares that it is ‘a statement of service
standards for victims of crime,’ thus implying that victims obtain corresponding
rights to the standards of service indicated. The Charter appears to provide a
response to certain international declarations on victims’ rights, including the UN
Declaration of the Basic Principles of Justice for the Victims of Crime and Abuse
of Power in 1985.
2
The notion that victims of crime have rights receives further
support in the Court’s Charter,
3
and also from the fact that a link was created in
1994 between the Victim’s Charter and the Citizen’s Charter.
4
The most well-
established victims’ group, Victim Support, has also committed itself to the view
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*University of Durham.
I would like to thank my colleague, Professor Harvey Teff, for his helpful comments on a draft of this
article. An earlier draft was given as a paper at the SPTL conference in Cardiff in September 1995.
1At2.
2 Adopted by the General Assembly of the United Nations in 1985.
3 Part of the 1991 Citizen’s Charter, it was published in 1993 (CHAN J071007RP 7/93) and revised in
July 1995, becoming the Charter for Court Users. Pages 4–6 deal with the standards of performance
to be expected from the courts; pages 10 and 11 deal specifically with victims and witnesses. The
1995 version states that: ‘This Charter . .. explains in detail the minimum standards of service and
performance you can expect to find in the courts’ (at 4). The standards applied to Crown Courts, the
High Court and the Court of Appeal from 1 September 1995.
4 The White Paper Cm 1599 (1991). The entitlements set out at 9–21 of the 1990 Victim’s Charter
(published by the Home Office Public Relations Branch J010368 RP 2/93) were linked to the Citizen’s
Charter in 1994 through the leaflet Victims of Crime (published by the Home Office J052992NJ 9/94).
When the Victim’s Charter was revised in 1996 (published by the Home Office, ISBN 185893 661 6),
it was clearly established as part of the Citizen’s Charter, and the victim entitlements were set out in a
revised and more specific form at 2–12. The Citizen’s Charter gives the impression that it sets down a
series of rights: see eg the Patient’s Charter, which claims that ‘it sets out clearly for the first time your
rights to care in the National Health Service’ (The Patient’s Charter (London: HMSO, 1991) 6). For a
discussion of ‘rights’ under the Patient’s Charter, see H. Teff, Reasonable Care: Legal Perspectives
on the Doctor–Patient Relationship (London: Sweet & Maxwell, 1994) 106–108.
that affording victims rights is an appropriate and desirable means of improving
their position; in its 1995 policy paper entitled The Rights of Victims of Crime, it
finds that the provision of victims’ rights is vital to ensure that they are treated with
dignity and respect by the criminal justice system. The sense in which it may be
said that victims have ‘rights’ is one of the issues which this article will seek to
address, but for convenience it will also use the term.
The rights of victims which may be said to be emerging fall, broadly speaking,
into two categories, which for the purposes of this article will be termed ‘service’
and ‘procedural.’
5
The former ameliorate the criminal process for the victim and
draw her into it by providing various services, but do not afford her a means of
making an impact on the process itself. The latter, on which this article will
concentrate, are clearly the more contentious and give rise to some significant
issues of principle. They afford the victim opportunities of influencing certain
decisions at various stages of the criminal process, pre- and post-trial, through
consultation or participation in them.
It will be readily apparent that affording victims procedural rights, even on an
uncertain legal basis, creates a change in their position within the criminal justice
system. Until the early part of the nineteenth century the prosecution of crime was
the victim’s responsibility, and was therefore largely a private matter between
victim and offender. After that time the prosecuting role was taken over by the
state on the basis that offenders were prosecuted in the public interest, although
private prosecution still played a residual role. Thus, except in instances in which
the state or an emanation of it is itself the ‘victim,’
6
the state intervenes between
victim and offender, and until very recently largely excluded the victim from the
process except as information provider and sometimes as a source of evidence. The
position adopted reflected the notion that the private interests of victims are
subordinate to public interests and peripheral to them. The emergence of
procedural rights for victims may be said to herald a move back towards the
position which victims originally occupied within the system. A discernible
movement towards a ‘private’ as opposed to a public ordering of the criminal
process may currently be occurring.
Thus a central theme underlying the Home Office instruments which generally
govern victims’ procedural rights is that the decision-making power of the state
should be influenced by or even give way to the private interests of victims at
certain points in the criminal process. The emphasis, which is also reflected, it is
suggested, in Home Office encouragement of individual responsibility for crime
prevention, appears to be on individual autonomy and the reduction of state
power. Therefore, affording victims procedural rights within the criminal justice
system can perhaps be seen as an aspect of the broader ‘privatisation’ of the
system, which is arguably already occurring. A number of disparate private
elements have been introduced into it in the last 10 years, such as the growth of
victim/offender mediation,
7
the use of private firms to transport prisoners, the
handing over of other minor police functions to private firms and the
5 The term ‘procedural rights’ was coined by Andrew Ashworth, ‘Victim Impact Statements and
Sentencing’ (1993) Crim LR 498, 499.
6 As in, for example, prosecutions under the Official Secrets Act 1989 and prosecutions by state
agencies such as the Department of Social Security or the Wages Inspectorate.
7 Mediation projects have been undertaken at a number of centres, including the Northamptonshire
Adult Reparation Bureau and the Leeds Mediation and Reparation Service; see M. Wright, ‘Victims,
Mediation and Criminal Justice’ (1995) Crim LR 187–199, for discussion.
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318 The Modern Law Review Limited 1997
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