Not Saussure

December 4, 2006

Victim impact statements again

Filed under: Law — notsaussure @ 1:02 am

Carol Sarler, in the Sunday Telegraph, contemplates the powerful effects of Elizabeth Davidson’s victim impact statement, on the death of her daughter Margaret at the hands of a teenager who was sentenced to four years in September for causing death by dangerous driving, and that of Adele Eastman, read out at the sentencing of the two youths who murdered her fiancé Tom ap Rhys Price.

She writes, and how right she is,

With no unkindness intended towards any bereaved families, making them feel better is not the job of a courtroom, nor should it be.

[…] The whole basis of our legal system and the social contract that underpins it is that we hand our grievances to those who will remove emotion and its consequences from the proceedings, after which they, in turn, hand back to us that which we call justice. To add emotion into the mix is, therefore, to undermine the most fundamental of principles.

She also makes the point, which I hadn’t considered but seems perfectly valid, that

Further, what is becoming worryingly clear is that the victim statement is leading quite literally to one law for the rich and another for the poor. Elizabeth Davidson and Adele Eastman are educated, articulate people; when the carefully crafted words of someone like Miss Eastman are read out in the silken tones of a barrister, they will be perfectly suited to the prominence they will assume in next mornings paper.

But what if, say, Dot Cotton’s son is killed? If the barrister writes the words for her, it will show; if she writes them herself, we know that they will not command a front page. Thus, bit by bit, the illusion grows that crime is something done unto the gentry by the riff-raff when the fact is that, overwhelmingly, most victims of crime come from the same dispossessed classes that commit it, and even to suggest otherwise is to deflect urgently needed attention from the realities of criminal violence.

I don’t think I’d frame the objection in quite those terms; rather, I know what it is to mourn the death of someone you love very much, and to lose them because of another’s violence must be inexpressibly awful.

To feel, as doubtless some people will, the obligation to put it into a written statement to be read in open court — I realise it’s optional, but I think some people will feel a moral obligation — and then to feel, as again I’m sure some people will, you’ve somehow let down your loved one because you couldn’t adequately express — not as powerfully, at least, as have others — what he meant to you and how devastating is his loss, will be yet another burden to bear.

It’s all very well to say that the victim’s family must have their day in court, but if they end up feeling they’ve somehow fluffed it…

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  1. Marcel Berlins is worth reading today:,,1963320,00.html

    As I think I’ve said before (on this blog?) what about the victim whose death had no impact on anyone? Do we abhor murder as an act, or do we abhor its effect on others? If the former,it shouldn’t matter whether the victim was a well-loved mother of 4 or an alcoholic loner living under the railway arches. But if the purpose of the victim impact statement is to ‘add value’ to the sentence, then we’re favouring the latter, which automatically brings the relative value of human lives into question.

    Comment by Terri — December 4, 2006 @ 12:43 pm

  2. “[T]hey, in turn, hand back to us that which we call justice”.

    And that surely is the nub of it. Sentencing policy is now so confusing, illogical and un-just, and so camouflaged with lies and deception (‘Life’ sentence!) that there is no justice. Rather than put right what is obviously wrong, our legislators throw a sop in the form of an ‘Oprah’ moment to the grieving relatives.

    As I have written elsewhere, when the thugs come out of their ghettos to hunt victims in middle-class areas in an attempt to follow Shakespeare’s advice, “First, let’s kill all the lawyers”, you can expect a very sharp change in sentencing policy. Until then, you’ll just get your day in Court – and don’t forget to say ‘thank you, m’Lord’ nicely to the judge!

    Comment by David Duff — December 4, 2006 @ 4:11 pm

  3. David, if you think sentencing policy for murder is in a mess, then it’s the MPs you should be killing, not the poor old judges who have to make sense of the Criminal Justice Act 2003; in this, MPs took sentencing for murder various other crimes and out of the judges’ hands and, for murder, set out the tariff themselves.
    The CJA 2003 is a pretty good example of what can happen when MPs decide to ‘do something’ about sentencing. Attempts to make sense of their efforts have kept the Court of Appeal busy ever since. In R v Lang, the Court remarked

    It would be inappropriate to conclude these proceedings without expressing our sympathy with all those sentencers whose decisions have been the subject of appeal to this Court. The fact that, in many cases, the sentencers were unsuccessful in finding their way through the provisions of this Act, which we have already described as labyrinthine, is a criticism not of them but of those who produced these astonishingly complex provisions. Whether now or in the fullness of time the public will benefit from sentencing provisions of such complexity is not for us to say. But it does seem to us that there is much to be said for a sentencing system which is intelligible to the general public as well as decipherable, with difficulty, by the judiciary.

    In another case, they remarked

    Today’s application takes this Court to a related but different area of this legislation, namely the obligations of a Youth Court when dealing with a potentially dangerous offender. Here the provisions are not merely labyrinthine, they are manifestly inconsistent with each other and we have every sympathy with lay Justices, their clerks and District Judges who are having to grapple with them. The Court is grateful to Mr Keith for the claimant and Miss De Silva for the interested party for their help in the task of navigating these choppy and uncharted waters.

    and went on to complain,

    So, yet again, the courts are faced with a sample of the deeply confusing provisions of the Criminal Justice Act 2003, and the satellite Statutory Instruments to which it is giving stuttering birth. The most inviting course for this Court to follow, would be for its members, having shaken their heads in despair to hold up their hands and say: “the Holy Grail of rational interpretation is impossible to find”. But it is not for us to desert our judicial duty, however lamentably others have legislated. But, we find little comfort or assistance in the historic canons of construction for determining the will of Parliament which were fashioned in a more leisurely age and at a time when elegance and clarity of thought and language were to be found in legislation as a matter of course rather than exception.

    The Law Commission has very recently published its proposals for a comprehensive review of the law on murder and manslaughter, which may bring some clarity to the proceedings, but don’t hold out too many hopes once MPs and the tabloids get their teeth into it.

    Terri, I completely agree with you. Victim Impact Statements for bereaved relatives have no place in the courts, as far as I’m concerned. Quite simply, aggravating circumstances for the crime don’t, and shouldn’t, include how upset (or not) the relatives are. Murder is murder; it’s aggravated by the accompanying circumstances, not by people’s reaction to it.

    Comment by notsaussure — December 4, 2006 @ 7:14 pm

  4. The words don’t have to be crafted. They just have to be truthful.’ I loved my sister, and I will miss her always’ is enough.

    Victim Impact statements can be given by other crime victims as well as the families of the murdered: I gave one to the judge before I saw my attacker sentenced. He made reference to it in the sentencing. I don’t think he lengthened the sentence because of it though.

    There is an element of restorative justice in the victim’s words being read out in the presence of the criminal and the court, a sense of engagement in the process, of being heard. It humanises an often inhuman process. Justice, after all, does not only have to be done, it has to be seen to be done, and I would add, felt to be done. The statement shouldn’t impact on sentencing – but when the defendant is allowed to dress smartly and bring up their elderly mother and their pregnant girlfriend as mitigating circs and plead for leniency – why should the victim not also have the chance to put their case?

    Don’t forget that in murder trials it is entirely possible for the unfortunate family and friends of the victim to have to sit there whilst the defence introduces endless witnesses to show the alleged good character of the defendant, and often tries to slur the victim in the process – I am minded of a case where a man killed his wife and the defence tried to make out she was a frigid nag who had driven him to it. The dead woman’s family said they did not recognise the untruthful picture painted of a woman who could not speak in her defence, because she had been killed. The posthumous character assasination ( eg: in newsreports
    ‘ The court heard how Mrs X had slept in a seperate room and had often belittled her husband in front of friends’ …etc) was one of the hardest things to bear.

    Comment by Rachel — December 5, 2006 @ 3:27 pm

  5. ‘Let’s kill all the lawyers, or all the MPs’. Dammit, Sir, you make it hard for a chap!

    More seriously, I would suggest, tentatively because I am no expert, that what lawyers want, lawyers get. MPs, on the other hand, would cock up the Lord’s Prayer if you printed it in a 20+ font. The fact that the current legislation is “labyrinthine” and, presumably, came as a result of (yet another) Law Commission review, coupled with the other fact that the more “labyrintine” the law, the greater the legal earnings; leads me to believe that Shakespeare’s advice was best.

    Now, where’s my gun and what are the chances of getting a taxi to the Inner Temple?

    Comment by David Duff — December 5, 2006 @ 8:15 pm

  6. David, you are, I fear, mistaken; what lawyers want, at least all the criminal lawyers I know, is for the Home Office to stop churning out Criminal Justice Bills every couple of years. The CJA 2003 was very much a Home Office initiative, with David Blunkett’s grubby fingerprints all over it, particularly the bits that deal with sentencing. It’s made what used to be quite simple sentencing exercises monstrously complicated with judges not infrequently having to spend 30 minutes or three quarters of an hour sentencing a burglary or robbery case that would only have taken ten or so minutes before. Legal aid for mitigating is paid at a flat rate, by the way, so there’s no financial benefit to the bar.
    Rachel, I was specifically talking about victim impact statements as they apply in murder cases. I know the benefits when there’s a victim from whom the statement can be taken, but when the victim’s dead then, to my mind, it’s a very different situation. It’s those that worry me.
    I just foresee all manner of circumstances that are going inevitably to arise that’ll leave grieving families feeling even more aggrieved. For example, unless the whole basis of sentencing is changed, no matter what they say and heartfelt their grief, the parents of a young woman murdered in course of an argument by her drunken bully of a husband are almost certainly going to see him given a considerably lower tarrif than is the crack dealer who murders a rival crack dealer by shooting him in the course of a turf dispute. They’ll pretty likely feel either that they somehow failed to get their point across or, which he’s duty bound to, the judge ignored them. It’ll give the press something about which to be indignant, of course, and eventually precipitate yet another ham-fisted parliamentary excursion into showing judges how to do their jobs properly.
    As to the case you mention, where the man was trying to claim his wife drove him to it (running a defence of manslaughter on the grounds of provocation, I take it), presumably since the jury didn’t believe him, the prosecution introduced evidence to rebut his assertions. And by running provocation and putting his good character in evidence then he left it open to the prosecution to have a go at his character warts and all.
    I can see how distressing a provocation defence is to the family of the victim, but I’m not sure what you do about it. The question isn’t — though I realise it can’t seem that way at the time to the family — ‘did the victim deserve it?’ Obviously not; it’s to do with the defendant’s sudden and temporary loss of control. It can’t be much fun for the family to sit through an account which they don’t recognise — and which may be completely self-serving — of how their beloved brother or son was a violent bully towards his long-suffering wife, who displayed the patience of a saint but eventually snapped, but I don’t see that she can be criticised for running it as a defence.

    Comment by notsaussure — December 6, 2006 @ 1:57 am

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