Victims' Rights in Criminal Trials: Prospects for Participation
| Author | Jonathan Doak |
| Published date | 01 June 2005 |
| Date | 01 June 2005 |
| DOI | http://doi.org/10.1111/j.1467-6478.2005.00325.x |
JOURNAL OF LAW AND SOCIETY
VOLUME 32, NUMBER 2, JUNE 2005
ISSN: 0263-323X, pp. 294±316
Victims' Rights in Criminal Trials: Prospects for
Participation
Jonathan Doak*
Victims in common law jurisdictions have traditionally been unable to
participate in criminal trials for a number of structural and normative
reasons. They are widely perceived as `private parties' whose role
should be confined to that of witnesses, and participatory rights for
such third parties are rejected as a threat to the objective and public
nature of the criminal justice system. However, recent years have
witnessed both a major shift in attitude in relation to the role of victims
within the criminal justice system and a breakdown in the public/
private divide in criminal justice discourse. This article considers the
standing of the victim within the criminal trial against the backdrop of
such changes, and examines the arguments for a more radical course
of reform that would allow victims to participate actively in criminal
hearings as they are able to do in many European jurisdictions.
INTRODUCTION
The plight of the victim within the criminal justice system has been widely
documented since the 1970s, but during the past two decades the interests of
victims have come to play a more prominent role in the formulation of policy
in both domestic and international criminal justice systems. In the United
Kingdom, successive governments have introduced a range of measures
designed to bolster the so-called `social' or `service' rights of the victim,
such as improved access to information, upgraded court facilities, and
entitlements to compensation. A wide range of statutory measures is now
294
ßCardiff University Law School 2005, Blackwell Publishing Ltd, 9600 Garsington Road,
Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
*Department of Law, University of Sheffield, Crookesmoor Building,
Conduit Road, Sheffield S10 1FL, England
j.doak@sheffield.ac.uk
Aprevious version of this paper was presented at the SLSA Conference in April 2004 at
the University of Glasgow. Thanks to John Jackson and Sean Doran, and to the
anonymous reviewers.
available to assist vulnerable witnesses to give evidence at court,
1
and the
new Domestic Violence, Crime and Victims Act brings into effect a statutory
code of practice for criminal justice agencies and creates a new `Victims'
Commissioner' to pr omote and protect the i nterests of victims a nd
witnesses.
2
On the whole, such reforms have been broadly welcomed and have
proved relatively non-contentious. They can be said to emanate primarily
from the victims' emerging status as consumers of the criminal justice
services,
3
and it is largely agreed that they threaten neither the public
character of the criminal justice system nor the due process rights of the
accused. Yet many proponents of victims' rights view such developments as
long overdue, and argue that the idea of victims' rights should be developed
one step further, entailing some form of procedural right of participation
within criminal proceedings. The concept of `participation' is something of
an abstract term and lacks any concrete definition. Edwards has suggested
that it may be perceived as stemming from the broader concept of
citizenship, and may include `being in control, having a say, being listened
to, or being treated with dignity and respect'.
4
Interpreted in this way,
`participation' in criminal justice may appear both feasible and desirable, but
the debates around the extent of participation to which victims ought to be
entitled touch upon the much deeper issue of how far the interests of a third
party ought to be accommodated within the traditionally dichotomous nature
of the criminal trial between the state and the accused. If, as most theorists
state, the main function of the criminal justice system ought to be the
punishment of the guilty and the acquittal of the innocent,
5
questions need to
be addressed concerning the proper place of the `private' interests of a third
party in a system where the state is charged with protecting the public
interest and safeguarding core values such as certainty and objectivity.
In recent years, the `public' nature of key decision-making processes has
been increasingly influenced by private interests, with victims in some
jurisdictions having acquired the right to participate in sentencing and
diversion processes. Following the establishment of several pilot schemes in
England in the late 1990s, the government introduced a nationwide Victim
295
1 The Youth Justice and Criminal Evidence Act 1999 introduced a range of `special
measures' for vulnerable witnesses testifying in court. Witnesses eligible under the
Act may be entitled to use a range of measures to maximize the quality of their
evidence. The measures include the erection of physical screens; the use of live
televised links; removal of the public from the courtroom in certain sexual offences
cases; the removal of gowns and wigs; the admission of both pre-recorded
examination-in-chief and cross-examination as alternatives to live testimony; and the
use of intermediaries or `aids to communication'.
2 See ss. 33 and 48 of the Act respectively.
3D.Faulkner, Crime, State and Citizen (2001) 232.
4 I. Edwards, `An Ambiguous Participant: The Crime Victim and Criminal Justice
Decision-Making' (2004) 44 Brit. J. of Crim. 967, 973.
5A.Sanders and R. Young, Criminal Justice (2000) 9.
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