The Evidential Quality of Victim Personal Statements and Family Impact Statements
| DOI | 10.1350/ijep.2009.13.4.330 |
| Date | 01 November 2009 |
| Published date | 01 November 2009 |
| Subject Matter | Article |
The evidential quality of
victim personal
statements and family
impact statements
By Ian Edwards*
University of East Anglia
Abstract Victim personal statements (VPS) were introduced by the UK
government in 2001 and family impact statements (FIS) in 2007. This article
explores the evidential quality that VPS/FIS have at sentencing. First, the article
considers the notion of procedural fairness for offenders and the relationship
between it and the rationales for VPS/FIS. Secondly, as a case study, it explores
the introduction of victim impact statements (VIS) in South Australia where the
evidential quality of VIS was a central issue during parliamentary debate on the
introduction of victims’ rights to present orally their VIS. Thirdly, it evaluates
the current law relating to the admissibility and evidential quality of VPS/FIS in
English law. It is argued that incorporating victims’ information in sentencing
has the potential to undermine key principles of procedural fairness, but
VPS/FIS pose little threat to the fair treatment of offenders in light of judicial
guidance.
Keywords Victims; Sentencing; Victims’ advocates; Evidence; Statements
here are two formal schemes under which crime victims can submit
statements explaining how they have been affected by the crime. First,
T thereistheVictimPersonalStatementScheme(VPSScheme).Underthe
1996 Victim’s Charter victims could ‘expect the chance to explain how the crime
has affected [them], and [their] interests to be taken into account’.1 To implement
*
Email: i.edwards@uea.ac.uk. Thanks to Rosemary Pattenden for her comments on an earlier draft.
Any opinions expressed are mine.
1
Home Office, The Victim’s Charter: A Statement of Service Standards for Victims of Crime (HMSO: London,
1996). The Charter was replaced with a Code of Practice for Victims of Crime, in force from April 2006
(although the Code contains no mention of VPS/FIS), available at
doi:10.1350/ijep.2009.13.4.330
THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF (2009) 13 E&P 293–320
293
THE EVIDENTIAL QUALITY OF VPS/FIS
this Charter commitment the Home Office evaluated a Victim Statements pilot
project,2 then introduced the VPS Scheme nationwide in October 2001. Victim
personal statements (VPS) allow crime victims to make a written statement
explaining, in their own words, how the offence has affected them.3 In Home
Office guidance victims are told, ‘A [VPS] adds to the information you have already
given to the police in your statement about the crime. The [VPS] gives you the
chance to tell us about any support you might need, and how the crime has
affected you …’.4 In the VPS Scheme this is typically effected by police officers
writing victims’ VPS at the end of their MG11 witness statement, although victims
can complete a second VPS closer to the date of trial to update the first VPS.
The second scheme is the Crown Prosecution Service’s Victim Focus Scheme,
rolled out nationwide in October 2007.5 Family members of homicide victims can
read a family impact statement (FIS) aloud to the court before sentencing.6 In 2005
the government published proposals7 for giving some victims the opportunity to
do this, which led to a pilot Victims’ Advocate Scheme in May 2006. This pilot
scheme enabled relatives of some homicide victims8 in five court areas to present
an FIS to the court after conviction and before sentencing, explaining the impact
of the offence on them in either a written statement, or an oral statement read by
the family member, a CPS prosecutor, independent advocate with higher court
rights of audience or lay friend.9 The difference between the pilot Victims’
Advocate Scheme and the nationwide Victim Focus Scheme is that the former
included only families of murder or manslaughter victims, whereas the latter also
includes families of victims of offences under ss. 1 and 3A of the Road Traffic Act
3
C. Hoyle, E. Cape, R. Morgan and A. Sanders, Evaluation of the ‘One Stop Shop’ and Victim Statement Pilot
Projects (a report for the Home Office Research Development and Statistics Directorate),
Department of Law, University of Bristol, 1998; R. Morgan and A. Sanders, The Uses of Victim
Statements (a report for the Home Office Research Development and Statistics Directorate),
Department of Law, University of Bristol, 1999.
4
For an overview of VIS issues, see I. Edwards, ‘Victim Participation in Sentencing: The Problems of
Incoherence’ (2001) 40(1) Howard Journal of Criminal Justice 39.
4
Home Office, Making a Victim Personal Statement (2001), available at
5
CPS, Victim Focus Scheme: Service for Bereaved Families (CPS: October 2007), available at
6
See , accessed 13 July 2009.
7
DCA, Making a Difference: Taking Forward Our Priorities (2005), available at
available at
July 2009.
8
Limited
to
relatives
of
victims
of
murder
and
manslaughter:
see
9
See
2009.
294
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THE EVIDENTIAL QUALITY OF VPS/FIS
1988 (causing death by dangerous driving and causing death by careless driving
while unfit through drink or drugs).
This article considers the evidential quality of VPS/FIS. First, I examine the impact
of the different rationales for VPS/FIS on the statements’ evidential quality and the
impact of the need to ensure procedural fairness for offenders. Secondly, as a case
study, I analyse the introduction in South Australia in 1998 of victims’ right not
just to complete a written VIS, but also to present orally their VIS to the court at
sentencing: the evidential quality of VIS was the main issue during parliamentary
debate. Finally, I examine particular situations in which the evidential quality of
VPS/FIS may be problematic and analyse the extent to which English law adopts a
clear and principled approach. I will argue that, contrary to the concerns of some
commentators that VPS/FIS will impact detrimentally on the fairness of
sentencing processes, they are in their present form largely benign, any threat of
them compromising procedural fairness having been neutralised by the Court of
Appeal, the Lord Chief Justice’s Practice Direction on VPS and a Protocol on FIS
issued by the President of the Queen’s Bench Division.
1. Victim statements, evidential quality and procedural fairness
The evidential quality of victim statements depends in part on the particular
rationale underpinning VPS/FIS. The purposes of VPS/FIS have never been particu-
larly clear and I have argued elsewhere that each rationale raises distinct issues
about the nature and aims of criminal processes and victims’ places within
them.10 Appreciating these rationales helps to understand the impact sought by
proponents of VPS/FIS, and therefore the possible impacts of such statements on
the procedural fairness of sentencing. There are three main categories of rationale
for inclusion: improving sentencing outcomes rationales, service quality rationales and
victim-benefits rationales. These are outlined below.
Under improving sentencing outcomes rationales victims’ information promotes
accurate and effective sentencing, and it should therefore have evidential weight.
Victims’ information can facilitate the determination of appropriate compen-
sation orders, and details of the victims’ harm may be needed to indicate, in part,
the seriousness of the offence. English law is placing increasing emphasis on the
harm experienced by victims. Section 143(1) of the Criminal Justice Act 2003
provides, ‘In considering the seriousness of any offence, the court must consider
the offender’s culpability in committing the offence and any harm which the
offence caused, was intended to cause or might foreseeably have caused’. The
10 See Edwards, above n. 3.
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Sentencing Guideline Council’s definitive guideline Overarching Principles:
Seriousness states that harm is not determinative of seriousness: ‘Harm must
always be judged in the light of culpability’.11 The guideline also states, ‘The
nature of harm will depend on personal characteristics and circumstances of the
victim and the court’s assessment of harm will be an effective and important way
of taking into consideration the impact of a particular crime on the victim’.12 The
Lord Chief Justice’s Practice Direction on VPS states that, ‘The [VPS] and any
evidence in support should be considered and taken into account by the court
prior to passing sentence’.13 It also states that the court must pass what it
considers to be ‘the appropriate sentence having regard to the circumstances of
the offence and of the offender taking into account, so far as the court considers it
appropriate, the consequences to the victim’.14 In some of the SGC’s guidelines, the
actual harm suffered by the victim is listed as a relevant factor. For example, in its
guideline on theft the SGC states that culpability is the initial factor in deter-
mining offence seriousness, but in assessing the level of harm caused the starting
point should be the:
loss suffered by the victim. In general, the greater the loss, the more
serious the offence. However, the monetary value of
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