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Judge’s Remark Sparks Uproar over Victim Personal Statements

About The Author

Chris Sykes (Writer)

Chris holds a BA in History from the University of Oxford, and subsequently completed the GDL in 2012. Chris is an Inner Temple Princess Royal Scholar, and will commence the BPTC in September 2014. Chris is a passionate opponent of capital punishment and a strong supporter of legal aid.

I feel so very sorry for these families. They make these statements thinking they are going to make a difference, but they make no difference at all. Someone should tell them.

HHJ Graham White

This remark was made on 5 August 2014 in reference to the Victim Personal Statement (VPS) of the parents of Colin McGinty, murdered in 2001. They had given their VPS by video link at a hearing to decide whether one of Colin’s murderers could move to an open prison. A failure to turn off the video link allowed the parents to overhear what was meant to be a private remark, leaving them understandably distressed and triggering a media storm. The media have focused upon the renewed grief of the parents, but this article will focus upon the concept of VPSs and the validity of Judge White’s criticism.

VPSs were introduced to the English justice system in 2001 to allow victims, their families, or carers (henceforth, the term ‘victims’ covers ‘families’ and ‘carers’) to describe the emotional, financial, or physical impact of an offender’s crime upon them. There is no obligation to make a VPS but victims who do so can have it read aloud in court at any time before sentencing (unless the defendant is found not guilty, in which case the VPS is not heard). In a separate process, VPSs may also be heard at parole hearings. VPSs are not witness statements, cannot make unsubstantiated allegations, and cannot dictate the offender’s sentence. Nevertheless, the MOJ stresses their importance for ‘telling the criminal justice system about the crime you have suffered and [its] impact’. The court will consider the VPS ‘as far as it considers appropriate, when deciding the appropriate sentence for the offender’ (for a full description of VPSs, please consult gov.uk).

The cultural backdrop against which VPSs were introduced is the ‘victim movement’ that began in the late 20th Century. The movement campaigned for reforms that would empower and better support victims so that they ceased to be the ‘forgotten persons’ of the justice system. In England, it manifested itself in various ways from the foundation of charities like Victim Support in 1974 to the Government’s appointment of a ‘Victim’s Champion’ in 2009. VPSs are a recent manifestation of the movement, which has come to be described in terms of putting victims ‘at the heart of the criminal justice system’. This victim-centric principle now enjoys cross-party support with Chris Grayling, the Justice Secretary, stating that justice ‘should favour victims’ and Sadiq Khan, his Labour shadow counterpart, insisting that victims should feel they are at the ‘heart of the justice system’.

So do VPSs put victims at the heart of the justice system? The VPS scheme certainly attempts to let victims participate within a system that otherwise grants more of a platform to the State and defendant. In doing so, it responds to the desire of victims to ‘have a voice heard in court’ (a desire described as important by 93% of victims surveyed by Victim Support in 2011). VPSs also appear to give victims some sense of satisfaction; a 2011 report for the Victim's Commissioner by criminologists at the University of Oxford concluded that ‘[a]lthough only a minority of victims submit a statement, of those who do, most… appear to benefit from the experience’. Indeed, supporters of VPSs lament that not more victims submit one. A report by Victim Support insisted that ‘[e]very victim should be helped and encouraged to make a VPS’ and that ‘[i]t should be made as much a police and/or CPS priority as gathering evidence for the trial’.

Judge White’s remark was controversial because it clashed with the positive perception of the VPS scheme as held by its supporters. Nevertheless, there is evidence that the scheme is indeed flawed in a way that substantiates his remark. The most basic problem is the confusion over its purpose. A VPS is not a witness statement, must not influence sentencing, and need only be ‘considered’ by the judge. In effect, it has no guaranteed impact upon any of the most substantive parts of the trial. Even the otherwise favourable 2011 report noted that the conceptual confusion surrounding VPSs can leave victims and courts unsure of their purpose. Victim Support would respond by stating that although ‘VPSs do not and should not dictate sentences, [they] should allow more intelligent sentencing decisions.’ Much like other virtuous-sounding buzzwords (see ‘hardworking families’) no one could object to ‘intelligent sentencing decisions’, but it is difficult to define what an ‘intelligent sentencing decision’ actually is. It is also difficult to see how VPSs can inject any such intelligence when they are forbidden from influencing sentencing in the first place.

The conceptual confusion underlying the VPS scheme creates the risk that it will give victims merely a confused or illusory sense of participation in the justice process, and one that is destroyed all too easily. This was apparent in the objection of Colin McGinty’s parents to having undergone such ‘pain and heartbreak’ to make a VPS but ‘for no apparent reason’. Their sense of disappointment is not uncommon; an MOJ survey of 2009/10 found that less than half of victims surveyed felt their VPS had been fully taken into account. Many victims evidently feel let down by the failure of their VPS to have the influence they expected. This was remarked upon by Professor Andrew Sanders, Head of Birmingham Law School, who shared Judge White’s perception that VPSs ‘rais[e] expectations very unfairly’ by leading victims to believe that ‘they’ll make a difference when in fact they don’t’.

If VPSs do actually make a difference then the implications are even more problematic. The VPS is invariably made out in personal and emotive terms; for example, the VPS of Colin McGinty’s parents stated that the sight of him dying ‘will haunt us forever’. Therefore, any impact the VPS might have is dependent upon the author’s capacity to describe their loss and suffering. This format makes it likely that victims with certain attributes (for example, articulacy or charisma) will produce a more powerful VPS than those without them. It also creates the risk that the influence of the VPS might depend upon whether it meets the court’s expectations of how an ‘ideal victim’ should react to crime. It is not right that one victim can influence the court more than another purely because of their personality or ability to express themselves. But if VPSs do indeed have any meaningful influence (and that is questionable) then this is precisely the basis on which they must operate.

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Finally, VPSs are problematic on a theoretical level. Firstly, they could be interpreted as incompatible with the principle that criminal justice is about meeting the concerns of the State over those of individual victims. Inverting this hierarchy risks causing our justice system to undergo a ‘reversion to the retributive, repressive and vengeful punishment of an earlier age’. Secondly, VPSs could create the impression of unfairness. For instance, the judge might rightly forbid the VPS from influencing his sentencing decision but this could be lost on the lay observer. That observer could instead perceive a causal connection between the reading of an emotive VPS and the subsequent (possibly heavy) sentence passed down to the defendant. This would undermine the court’s authority by giving the mere appearance of having been inappropriately swayed by the VPS. Finally, to admit VPSs into court is to admit the value of subjective and emotional information in what is supposed to be an objective and rational process.

These various issues with the VPS scheme suggest that there may be substance to Judge White’s remark. But criticism of the scheme in its present state should not be interpreted as an argument for totally rejecting the scheme per se. Indeed, reforming the scheme, or altering its application, could grant it a clearer role that is more supportive of both victims and the courts. For example, the VPS could be read to offenders after their conviction as part of a process of restorative justice. Its emotional style could be well-suited to explaining the consequences of the crime in terms that are immediately understandable and affecting to the offender. Reading the VPS to the offender would also grant victims a voice in the justice system. Another idea might be for the VPS to be excluded from court but retained for the reference of any police officer, lawyer, or judge involved in the victim’s case. The VPS could explain how those professionals should operate in order to avoid inflicting further distress upon the victim. This would give the victim a sense of influence over their treatment by the justice system.

Therefore, there is a need for thoughtful discussion regarding how the VPS scheme could be reengineered into a more effective format. This makes the response to Judge White’s remark all the more disheartening. Politicians, charities, and assorted worthies have rushed to castigate him or insist upon the virtue of VPSs in their present state. For example, Jean Taylor of the charity group ‘Families Fighting for Justice’ descended into hyperbole when she condemned the ‘diabolical treatment’ of the McGinty family by Judge White. Baroness Newlove, the Victims’ Commissioner, lamented that ‘victims pour their hearts into these statements…they should never be dismissed like this.’ Victim Support responded to the judge’s remark by publishing a defence of the VPS scheme without giving any hint that there might be room for improvement. Predictably, some exploited the controversy for political gain. Sadiq Khan blamed the affair on the Tories before vaguely promising a new ‘Victim’s Law’ that would of course prevent anything like this from ever happening on Labour’s watch.

Judge White (who has since apologised to the McGinty family) committed a gaffe, but his remark correctly pointed to the flaws undermining the VPS scheme. His loudest critics are united by a failure to acknowledge these flaws and ask how they might be amended. Those same critics have not asked why an experienced and evidently compassionate judge concluded that VPSs make no difference. They have not asked why Mr McGinty was actually pleased to hear the remark of Judge White (whom he described as ‘an honourable man and…very, very honest’) while reserving his justified anger for a system that he felt had been ‘untruthful’ about the limits of his VPS. They have, however, succeeded in simplifying this affair into a story about a callous judge ignoring the emotions of a victimised family. Their success does not bring the justice system one step closer towards improving the VPS scheme or giving victims like the McGinty family a meaningful voice. Someone should tell them.

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Tagged: Courts, Criminal Law, Justice

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