Criminal Justice in Europe: A Comparative Study

By Phil Fennell; Christopher Harding et al. | Go to book overview

CONCLUSION

Despite the development of victim provision, there have been a number of criticisms. Victimologists generally feel that not enough has been done to help victims of crime in the legal process while criminal lawyers express a number of reservations about the impact on defence rights.

In both countries the officials making decisions at each stage are now instructed that the views and interests of the victim are important and must be taken into account. Victimologists argue that more needs to be done63 in both the service provision for victims and in the victims' relationship with the criminal justice system.64 Nils Christie has asserted that the state has stolen the conflict between the two parties, offender and victim, and that the victim is effectively excluded.65 Some therefore assert that the victim should be accorded a place in decision-making at the pre-trial, trial, and sentencing stages of the system; that the victim should have separate legal representation in criminal proceedings, and that compensation and reparation should form the basis of sentencing.66 Shapland, while not going this far, sees little problem in introducing more 'civil' functions into criminal courts, and advocates more victim participation--at least in the sense of consultation--throughout the process of arrest, trial, and prosecution.67 All these developments would need major changes in the legal relationship between the state and the citizen.

The most commonly mooted suggestions are for increased rights to: decide whether to prosecute and for what charge; decide whether to release on bail; appear at trial and have the opportunity to challenge the defence; put a victim impact statement before the court at the sentencing stage; be permitted to indicate which sentence the victim considers most appropriate; and appeal lenient sentences. To allow real and effective enjoyment of many of these rights it would be necessary to permit the victim legal representation and the right to legal aid. Furthermore, it might be necessary to permit the victim to appeal any decisions taken and have the issues debated in open court. All of this involves considerable alteration to the very nature of the criminal justice system. It moves the focus away from the moral wrong done to society (and the state) and society's

____________________
63
E. Fattah, "'Victims and Victimology: The Facts and Rhetoric'" ( 1989) 1 International Review of Victimology, 57.
64
John Pointing and Mike Maguire, "'Introduction: The Discovery of the Crime Victim'" ( 1988), in Maguire and Pointing (eds.), Victims of Crime, at 12-13.
65
N. Christie, "'Conflicts as Property'" ( 1977) 17 British Journal of Criminology, 1-11.
66
R. C. Davis, F. Kumeuther and E. Connick, "'Expanding the Victim's Role in the Criminal Court Dispositional Process'" [ 1984] Journal of Criminal Law and Criminology, 2; P. S. Hudson, "'The Crime Victim and the Criminal Justice System'" ( 1984) 11 Pepperdine Law Review.
67
Joanna Shapland, "'Fiefs and Peasants: Accomplishing Change for Victims in the Criminal Justice System'", in Maguire and Pointing (eds.), Victims of Crime, 193-4.

-314-

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