Not Saussure

October 28, 2006

Giving the victim’s family a say

Filed under: Law — notsaussure @ 5:27 pm

One of this government’s big ideas for wrecking with ill-considered populist measures modernising the justice system is, when a trial really is unavoidable — you can’t hand out on the spot fines for murder, after all — to give the victims and their family ‘a greater say’ in the sentencing process. This has had a less than enthusiastic reception from many people involved in the administration of justice, but Lord Falconer is keen, nevertheless. Back in June,

Lord Falconer told the North of England Victims’ Association those who lost loved ones to crime were in effect handed life sentences.

He said a pilot scheme to let relatives make court statements before killers are sentenced must show “just” results.

I just hope they don’t come across any grieving relatives like Zarvari Bibi, the mother of the taxi driver Jamshed Khan, who was allegedly murdered in Pakistan by Mirza Tahir Hussain   Mr Hussain is from Leeds and  is to be hanged on New Year’s Eve, despite grave concerns about both the quality of the evidence and the legality of his conviction in Pakistan. His execution was supposed to be on November 1st but was postponed because it might spoil Charles’ and Camilla’s visit, with which it would have coincided. We’ll all have our minds on other matters come New Year’s Eve, obviously, and politicians will be taking a well-deserved break so they won’t be making a fuss, either.Anyway, here’s the victim’s mother:

Zarvari Bibi, the dead man’s mother, said last night: “I visit the graveyard every day and spend the whole day sitting near [my son’s] grave and return in the evening.
“God has done justice and it should be pursued and they should also provide justice. I demand it from them.
“They should do what is right and what is the will of God. The case has been decided by all sides and that decision should be implemented.”

She said that if Mr Hussain is not hanged, she will take her own life by setting herself on fire.

Mrs Bibi’s family could have had the death sentence commuted, had they been willing to accept a financial payment from Mr Hussain’s relatives in return.

While obviously Zarvari Bibi should have everyone’s deepest sympathy for her terrible loss, it’s difficult to see what assistance she — or someone who, understandably enough, felt as does she — could be to any British court in determining an appropriate sentence; she’d demand a full term life sentence  and would be dissatisfied when the judge had to tell her, as he would, that her son’s murder didn’t attract one. And it wouldn’t bring her son back, of course.

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  1. “it’s difficult to see what assistance she — or someone who, understandably enough, felt as does she — could be to any British court in determining an appropriate sentence;”

    To hear the sad story of the offender is however?

    Time and again mitigation is offered (after pleading not guilty for the duration might I add) which has nothing to do with the offence yet you are all happy to let this be read in an open court, which directly affects sentancing.

    No wonder people believe the judiciary is one-sided.

    Comment by PC Midlands — October 29, 2006 @ 3:44 pm

  2. Can you give an example of the sort of personal mitigation you’re thinking of? The fact that the behaviour’s out of character may well be relevant to sentencing — particularly if the court’s required to consider dangerousness — and it’s often relevant if the defence is trying to argue for a DTTO rather than custody.

    But — at least in the courts with which I’m familiar — explanations of the hardship that’ll be caused by imprisoning the offender don’t get very far (the phrase ‘I’m sorry, but he should have thought beforehand of the hardship this is going to cause his family’ is not infrequently heard) and don’t even think about mentioning the famous pregnant girlfriend.

    How frequently do you hear, in a judge’s sentencing remarks, a reference to the fact personal mitigation has played an important part in reducing the sentence, unless it’s in a case (e.g. driving disqualification) where it’s a statutory consideration? And how often do you think, based on the sentencing guidelines, that it’s particularly swayed a judge?

    Comment by notsaussure — October 29, 2006 @ 3:59 pm

  3. Mitigation comes in all forms, from having a child to stating they are trying to get their life “back on track”. None of this should have a bearing on the case or sentance.

    Regardless of whether they affect sentancing (and I believe they do) then surely both or neither side should be heard.

    As it stands the victim is cast to the side whilst mitigation, PSR and other meaningless rubbish is read out to a court in order to reduce the conviction.

    Comment by PC Midlands — October 29, 2006 @ 9:46 pm

  4. By and large, though, the personal mitigations that I’ve heard have been stuff that can validly affect sentencing (e.g. suitability for a community penalty if the offence is hovering around the custody threshold). When irrelevant appeals for sympathy are introduced they don’t get much attention paid to them; I heard one on Friday, when the judge interrupted the barrister and said,

    ‘I was only saying the other day that you don’t hear one so much, and now I’ve heard it twice today. And his girlfriend’s expecting twins, is she? That’s original at least. Has he just been offered the chance of a job as well?’

    before sending his client down. The reason, I think, they get introduced sometimes is that the defendant’s instructed his barrister (who often can’t think of much else to say on behalf of the chap) to say it, and the barrister would rather let the judge ignore than get into a huge argument about refusing instructions.

    I don’t think the ‘equal time’ argument works, I’m afraid. The point of mitigation is to help the court in sentencing; how’s hearing how upset the victim or his family are (or aren’t) going to assist the court.

    Zarvari Bibi comes into an English court, explains how she visits her son’s grave every day and tells the judge she’ll set fire to herself if he doesn’t give the defendant a whole life sentence. The judge expresses his sympathy for her loss and explains that the law won’t let him do that. How does that help anyone?

    Comment by notsaussure — October 29, 2006 @ 11:17 pm

  5. “To hear the sad story of the offender is however?”

    In this case, the ‘sad story’ is that Mr Khan apparently pointed a gun at Mr Hussain, attacked him (not with the gun), there was a struggle and the gun went off, killing Mr Khan. Mr Hussain’s initial conviction was overturned by a civil court due to ‘inconsistencies of evidence’ that are much in the traditions of the pre-PACE British police force.

    The fact that Mr Khan’s widow can’t accept that her husband was a thug who died accidentally, by someone defending himself due to being in fear of his life (BTW, I thought most coppers were in favour of this – use of lethal force against burglars etc.) should have sweet FA to do with it.

    Comment by goodjudge — October 30, 2006 @ 9:42 pm

  6. The victim already has someone speaking for him/her: the prosecution. It’s to do with living in a civilised society, where we forgo a desire for revenge in the interests of social order. An effective prosecutor will in fact make the results of a defendant’s alleged actions perfectly clear.

    A particularly repugnant aspect of inviting ‘anti-mitigation’ is the relative value it places on human lives. Does it really matter less if a victim was a lonely old geezer whose death or injury affected nobody? And what if a family aren’t particularly articulate or persuasive – if they ‘fail’, will they feel that they have devalued the victim?

    Comment by Terri — October 31, 2006 @ 6:39 pm

  7. notsaussure: I cant see what your arugement is for one but not the other. By your own admission they are in the main useless, in which case they shouldnt be heard in court.

    “hearing how upset the victim or his family are (or aren’t) going to assist the court. ”

    Again it shouldnt but neither should the above!!

    “The fact that Mr Khan’s widow can’t accept that her husband was a thug who died accidentally, by someone defending himself due to being in fear of his life should have sweet FA to do with it. ”

    I quite agree, which is why their should not be one story for the criminal and another for the victim.

    “BTW, I thought most coppers were in favour of this – use of lethal force against burglars etc.) ”

    The law already allows this, however sun readers have difficulties in understanding this element of common law.

    Terri: The arguments are the same with the offender. Why should his baby on the way or his chance of a new job affect sentancing?

    The victims feel cheated and rightly so.

    Comment by PC Midlands — October 31, 2006 @ 10:04 pm

  8. Elizabeth Warren, liberal darling who was famously quoted as saying that Rich people wouldn’t have gotten there without the largess of Government, is a total fraud. Interestingly, this seems to have gotten little coverage outside of a couple of Boston Herald articles, and sadly I’m sure this won’t be the last we hear from this woman. The real question is how she now performs in the upcoming election. If she does win, despite this absurdly fraudulent behavior, then the state of MA, and quite possibly, the rest of the nation, is totally screwed.

    Comment by IRS Lawyer — May 22, 2012 @ 6:43 am

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