Introduction
The twenty-first century criminal trial is increasingly modified to benefit the needs of crime victims. Victims are increasingly participating in all phases of the criminal trial, with new substantive and procedural rights, many of which may be enforced against the state or defendant. This movement to enforceable rights has been controversial, and evidences a contested terrain between lawyers, defendants, policy-makers, and even victims themselves. By elaborating upon the various ways in which victims are appropriately placed in the modern criminal trial process, this book demonstrates how victims are significantly connected to and even constitutive of the modern adversarial criminal trial. In order to demonstrate the connectedness of the victim to the modern trial, all processes that seek to place the victim as a significantly determinative and even constitutive agent of justice will be considered. The role of the victim, and the rights and powers afforded to them, will therefore be considered in the context of pre-trial processes through to trial, sentencing, and corrections, within the primary context of the Western adversarial trial. Alternative pathways will also be considered, as will international law and procedure, in addition to extra-curial or adjunctive rights provided by international instruments, ratified declarations of rights, or executive order. The twenty-first century criminal trial is increasingly reconceived in form and substance, yet victims remain controversial and contested participants of justice, despite being increasingly connected to the criminal trial.
Not only are victim rights a matter of contestation for those stakeholders of justice normatively connected to processes of the criminal trial, defendants, the police, state prosecutors, and lawyers and the judiciary, but individual victims, victim groups and organisations, and the community, generally, are increasingly concerned with the shape and form that the criminal trial takes. Such modification is controversial given the long-standing rights of the accused to a fair trial without interference from victims, whether by individual victims, by rights groups, or by political process. The movement toward pre-emptive crime control, expanded police powers, alternatives to being put on trial, such as control orders and preventative detention, has led to the expansion of a law and order critique that holds the criminal trial as an institution that is increasingly vulnerable to rapid shifts in policy. Victims have been implicated in the general criticism expressed against changes to the criminal trial, despite always having been connected to criminal trial processes, even in the modern age of the state control and domination of criminal justice, where victims have been largely identified as residing at the periphery of criminal law and justice.
Although contentious, the expanded role of the victim in the criminal trial process is founded in law and policy that substantially underpins the functionality of the criminal trial (see Hall 2009; Doak 2008; Roach 1999a ). Victims are and always have been substantially connected to process of policing, prosecution, evidence, sentencing, and corrections and this book demonstrates this through a consideration of the proliferation of ways in which victims increasingly take an active role in the modern criminal trial process. By confronting those criticisms that seek to silence victims, and place the trial within the control of those who claim to be normatively connected to it, this book demonstrates how the rights of victims are now not only integral to, but significantly constitutive of, the modern criminal trial in adversarial systems of justice.
The integration of the victim into the modern trial requires a broader approach than the popular conceptualisation of the criminal trial before judge and jury. A full contemplation of the significant role of the modern victim requires the consideration of broader sources of law and includes policy transfer and intervention, international law and practice, and the consideration of the continental European or civil law approach. These sources must also be read in the context of an increasing realisation that the normative basis of the Western adversarial trial involves more than the contestation of evidence between the state and the accused. Both common and civil law jurisdictions have demonstrated a tendency toward innovation to afford victims greater participation in all phases of the trialāfrom new police powers that centre the victim as a vulnerable party during investigation and arrest, to bail hearings and mentions, to new forms of evidence adduced before judge and jury, as well as increased victim participation in sentencing and parole. Rights frameworks that ratify international instruments by affording victims levels of fair treatment by justice professionals, access to information and advice, and limited advocacy and enforceable rights, also increasingly position the victim as a central proponent of the justice process (see Doak 2008). The alternative milieu of restorative pathways to justice, now increasingly accepted by courts as part of the established pre-trial and sentencing process in the lower courts of summary justice and increasingly in higher courts, also demonstrate an increased connectedness between victims, decision-making, and substantive court processes (Wemmers 2009).
By focusing on the stages of the trial, prosecutorial decision-making process, victim rights frameworks, enforceable declarations of rights, and alternative pathways to justice, this book provides detailed analysis of the main innovations that integrate the victim into the criminal trial process in the twenty-first century. Cross-jurisdictional references between adversarial and inquisitorial systems demonstrate how traditional boundaries that separate victims from the trial process are being eroded and dismantled to grant victims of crime access to substantive, decision-making processes, increasingly grounding victim participation in a framework of enforceable rights and privileges. While these changes are substantial, the existing system of state offender party relations is preserved (see Hall 2009).
Understanding the emergence of enforceable victim rights in common and civil law jurisdictions against a background of international law and practice, increasingly aware of the rights of victims, is central to an understanding of the modern criminal trial. The modern criminal trial in Western systems of adversarial justice is now constituted in an internationalised context (Hall 2010). This internationalised context allows for the increased sharing of ideas and approaches to justice once excluded and incompatible with common law, adversarial systems. Increasingly, this rigidity and jurisdictional isolation is eroded by international rights frameworks that innovate the trial process, albeit controversially. This includes the movement toward victim participation in police investigation; duties owed to specific groups, such as domestic violence and sex offences victims; enforceable charters of rights; changes to bail; pre-trial discovery; prosecutorial decision-making processes, including the duty to consult, plea-deals, and bargaining; the new law of evidence, including testifying out-of-court and the protection of the vulnerable witness; the provision of private counsel in common law and civil jurisdictions; increased victim participation in parole and corrections; changes to compensation and support to better meet the immediate needs of victims and support for victims of serious violence following an offence; and restorative justice and intervention as a complement to the criminal trial.
The integration of the victim into adversarial systems of justice has tended to occur at the periphery of criminal law and procedure. Most common law jurisdictions began the process of reintegration in the 1960s and 1970s, insofar as broad-based compensation was made available for injuries consequent upon a range of criminal offences. Support services followed, providing victims with a range of welfare-based options that were largely supported by government, or rights based on not-for-profit movements, or later as combined in agency agreement. Access to counselling, medical treatment, and workplace support tended to be provided by the not-for-profits while court and witness support tended to be provided by the state (see Sebba 1982). The dynamic of who provided these services changed in the 1980s and 1990s as governments were keen to utilise not-for-profits to provide services otherwise funded by the state. The United Nations (UN) Declaration on Basic Principles of Justice for Victims of Crime and Abuse of Power by the General Assembly (PJVC), on 29 November 1985, also provided for the restaging of crime victims, which influenced the emergence of declarations or charters of victim rights at the local level. While these tended to be declaratory and not enforceable, such charters did lead to the reconsideration of the plight of the victim and placed victims in a firmer public policy context. Indeed, by the advent of the twenty-first century, governments were addressing victims as the priority group (Hall 2009).
The repositioning of the victim in adversarial systems of justice emerged in three key ways. First, victims emerged as prominent protagonists in public policy debate in the 1960s and 1970s. This was facilitated by increased mobilisation of victims into grassroots movements. This resulted in greater service for victims provided by government and accompanied the rise of rights-based movements that offered complementary services. The right to compensation and criminal injuries schemes provided extra-curial rights in administrative law, although most schemes originally provided for compensation during the sentencing phase of the criminal trial.
The second development focussed on human rights and basic access to justice. These rights sought better levels of respect and treatment for victims, emphasising the need to raise service levels within justice systems as provided by the 1985 PJVC. These rights aimed to crystallise those powers and privileges that victims ought to enjoy as universal rights and as participants in the criminal justice system. Rights as provided under the 1985 PJVC were later ratified as unenforceable rights by some jurisdictions, albeit unevenly and inconsistently, throughout the 1990s. Some jurisdictions have yet to articulate a charter or declaration, while others are transforming theirs into enforceable rights, as below.
The third wave leading to the repositioning of victims has its roots in the changes inspired by a greater focus on rights in the 1990s but has more firmly come to bear in the twenty-first century. This wave sees the emergence of substantive and enforceable rights that provide victims a means of actual court participation with a view to impacting the outcomes of substantive decision-making processes. The first of these powers emerged in the form of victim impact statements (VIS), although not all VIS were initially tendered with the view that they would impact on the sentence of the offender, and grave concerns were raised by lawyers as to the efficacy of VIS pursuant to the requirements of fair justice to the accused. Tests for offence seriousness were also introduced that required the court to consider the harm done to the victim. The next major development came by way of modifications to the law of evidence, principally with regard to protections offered to sex offences victims in the trial process.1 These protections include alternative ways of testifying where victims are identified as a vulnerable witness, because of cognitive impairment or by reasons of immaturity, or otherwise due to intimidation by the accused or mode of examination in court. Protections were expanded from sexual offences initially, to all offences should cause be established.
The other and possibly most significant movement toward substantive victim rights occurred with the transition away from non-enforceable rights as provided under charters or declarations. This transition included the initially fragmented emergence of enforceable powers that either emerged through the repeal and re-enactment of non-enforceable charters as enforceable, or through the inclusion of enforceable rights under discrete legislative instruments. The emergence of Commissioners of Victim Rights in certain jurisdictions helped consolidate this movement toward enforceable rights by providing a statutory office that has the capacity to enforce aspects of the charter, by directing that documents be produced and by holding enquiries where certain rights may be infringed, usually by public officials such as the police, prosecutors, or corrections and parole. Where jurisdictions lack a Commissioner, victims may turn to private counsel to help enforce rights against the state or the accused, where permitted. The third wave also saw greater synergies between restorative and normative trial processes. Rather than be identified as an adjunct to the criminal trial, restorative processes, especially at the Magistratesā or Local Court level, are increasingly utilised as a means to determine liability or offence seriousness, and found with Forum or Circle sentencing, where victims meet offenders in a conference that determines sentence. Finally, the movement toward human rights under the European Convention on Human Rights, the jurisprudence of the Strasburg Court, the European Court of Human Rights (ECtHR), and Directives of the European Union (EU) as ratified by member states, demonstrates another significant movement toward enforceable rights, particularly in terms of procedural or evidential standards affecting victim participation in court, and the victimsā right to review prosecution decisions not to proceed with a matter (cf. Groenhuijsen 2014).
While this book draws from the first two waves of victim rights as background, it focuses on the third wave of the development of victim rights in greater detail. It does this by assessing separately the impact of the modern iteration of victim rights as they have transitioned into enforceable rights. One characteristic of the emergence of enforceable rights in the twenty-first century is that they are fragmented, incomplete, and at times inconsistent against existing powers and processes. While this seems disparaging, this is arguably the result of the discrete and individual inclusion of victims into the criminal justice process to address micro instances of public policy concern. As such, rather than emerge as a universal, coherent response to the growing concern over victim rights and interests, the twenty-first century movement toward substantive and enforceable rights utilises discrete amendment of criminal trial processes, usually by way of ratification of human rights instruments, statutory amendment of crimes legislation, or court judgments interpreting specific powers or rules that reposition the victim. This means that it is not possible to articulate the movement toward enforceable victim rights, either within a jurisdiction or even more so internationally, as unified under one coherent instrument or approach. Indeed, one must embrace the fragmented nature of such rights as they seek to modify, often controversially, different aspects of established criminal trial processes. What results, however, is the recognition that the victim is now connected to and constitutive of the modern criminal trial in adversarial systems of justice in diverse ways. Furthermore, an understanding of the fragmented ways in which victims maintain this connection, from local policy transfer to the ratification of international instruments, is paramount to an understanding of the twenty-first century criminal trial as it operates as a modern institution of justice.
This book will draw from those jurisdictions with a strong record of incorporating the victim into the criminal trial. The common law counties of Australia, the USA, England and Wales, Ireland, Scotland, Canada, and New Zealand will be referred to, as will the civil law countries of Italy and France, with reference to Sweden, the Netherlands, and Germany. International law will also be utilised, mainly from the Internati...