Victim participation during sentencing in the English criminal justice system

A blog post by Dr. Juan-Pablo Perez-Leon-Acevedo

Victims have been granted some procedural standing during the sentencing stage in certain common law jurisdictions,^[1] including England and Wales. Such participation often materialises through victim impact statements, submitted after the accused pleads or is found guilty, and they reflect the physical and emotional harm inflicted on victims plus property damages/losses resulting from the crime.^[2] These statements are heard for sentencing, plea bargaining, and parole.

This blog post briefly examines victim participation during sentencing in the English criminal justice system.   

In England and Wales, the victim personal statement (VPS) scheme was introduced nationwide in October 2001.^[3] It followed the 1996 Victim’s Charter and pilot VPS schemes in the late 1990s.[4] The VPS only aims at giving sentencers a better understanding of harm inflicted on the victims resulting from crimes.^[5] Thus, victims cannot indicate the nature of the sentence to be imposed, as the Lord Chief Justice noted in a Practice Direction: ‘opinions of the victim or the victim’s close relatives as to what the sentence should be are therefore not relevant, unlike the consequences of the offence on them’.^[6] 

Such a limitation has seemingly caused victims’ lower satisfaction plus erratic take-up rates among victims, namely, the VPS has been regarded as purely expressivist.^[7] The VPS may be cathartic because it enables victims to communicate their feelings regarding crime impact on them.^[8] Nevertheless, victims cannot read out the statements themselves in open court. Thus, victims are only permitted to submit their VPS in writing, but they cannot appear personally to read out their statements before the sentencer: they lack an allocution right.^[9] 

Yet, a pilot victim’s advocate scheme had incorporated more comprehensive victim participation during sentencing because of a victim’s allocution right led by an advocate; however, like the VPS, such mechanism only sought to provide the sentencer with a more accurate picture of crime impact and some potential catharsis for victims: penal demands were prohibited.^[10] Nonetheless, under the Crown Prosecution Service’s Victim Focus Scheme (2007), homicide victims’ family members are allowed to read a family impact statement aloud in court prior to sentencing .^[11]

The VPS scheme may improve sentence proportionality: it arguably helps judges establish the nature and extent of the inflicted harm.[12] Accordingly, a more accurately calibrated gravity of the crime should result in more proportional sentencing.[13] Nonetheless, the VPS scheme has not seemingly reached its full ‘potential to assist victims and inform courts at sentencing’.[14] It has been suggested that the current scheme needs to be comprehensively reviewed to improve ‘this key element of effective sentencing’.[15]    

Lord Woolf C.J.’s Practice Statement recommended written representations from both detainees’ lawyers and the Director of Public Prosecutions, the latter potentially including ‘representations on behalf of victims’ families’.^[16] Although this maintains the English system principles of rejecting direct submissions of victim statements and requesting submission of these statements through the prosecution, it recognises the significance of submissions by victims’ families.^[17]

Concerning a national case that reached the European Court of Human Rights (T and V v. United Kingdom),[18] the Lord Chief Justice ‘invited, and received, representations from [Mr. Bulger] and his family as to the impact of his son’s death on them but had not invited them to give their views on what they thought was an appropriate [sentence] tariff’.^[19] This resembles the Court of Appeal’s approach, namely, victims’ or family members’ opinions ‘about the appropriate level of sentence do not provide any sound basis for reassessing a sentence’.^[20] Otherwise, cases with identical or very similar features would result in different sentences depending on whether victims are vengeful or merciful.

The VPS enables victims to provide representations about crime effects on victims but does not allow requests/opinions on a specific sentence, as the Practice Direction (Criminal Proceedings: Consolidation) reflects.^[21] Representations on sentence length or type may be problematic with trial impartiality or may mislead victims and their families regarding the importance of their statements.^[22] All in all, victims’ interests are only a sentencing criterion although private interests ought not to be perceived as alien to or in conflict with public proceedings.^[23]   

Some authors regard victim participation during sentencing as institutionalised private ‘revenge’ in criminal proceedings, potentially resulting in sentence disparity.^[24] Since ‘sentencing whose primary aim is not restorative [...] there must be grave doubts about allowing a victim to voice an opinion as to sentence’.^[25]

Therefore, victim participation during sentencing through the VPS scheme is, overall, highly advisable and even necessary in the English criminal justice system. Yet, any expansion of the VPS scheme should be implemented carefully under the previous considerations.

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References

[1] M.E.I. Brienen and E.H. Hoegen, Victims of Crime in 22 European Criminal Justice Systems (2000) 481; Juan-Pablo Perez-Leon-Acevedo, Victims’ Status at International and Hybrid Criminal Courts (2014) 61-62, 498-502.

[2] Brianne McGonigle, Procedural Justice? Victim Participation in International Criminal Proceedings (2011) 84.

[3] Jonathan Doak, Victims’ Rights, Human Rights and Criminal Justice (2008) 150. 

[4] See Home Office, ‘The Victim’s Charter: A Statement of Service Standards for Victims of Crime’ (1996).

[5] Doak (n 3) 150.

[6] Practice Direction (Victim Personal Statements) [2002] 1 Cr App R (S) 482.  

[7] See Doak (n 3) 152.  

[8] Ibid., 151.

[9] Ibid.

[10] Ibid.

[11] Ian Edwards, ‘The Evidential Quality of Victim Personal Statements and Family Impact Statements’ (2009) 13 International Journal of Evidence and Proof 293, 293.

[12] Freya Rock, ‘Victim Personal Statements’ (2024) 2.

[13] Ibid.

[14] Ibid., 16.

[15] Ibid.

[16] Practice Statement (Life Sentences for Murder) [2000] 2 Cr App R 457.

[17] Ben Emmerson et al., Human Rights and Criminal Justice (2012) 830.

[18] T and V. v. United Kingdom, Judgment, 16 December 1999, para. 4.

[19] Per Rose L.J.. in R. v Secretary of State for the Home Department Ex parte Bulger, Times, 7 March 2001.

[20] Nunn [1996] 2 Cr App R (S) 136 at p. 140. See also Perks [2001] 1 Cr App R (S) 19.

[21] Practice Direction (Criminal Proceedings: Consolidation) [2002] 1 W.L.R. 2870.

[22] Emmerson et al. (n 17) 832.

[23] Doak (n 3) 155.

[24] Andrew Ashworth, ‘Some Doubts about Restorative Justice’ (1993) 4 Criminal Law Forum 277, 298.   

[25] Andrew Ashworth, Sentencing and Criminal Justice (2005) 356. 

 

Dr Juan-Pablo Perez-Leon-Acevedo

Dr Perez-Leon-Acevedo is currently pursuing a second doctoral degree: the DPhil in Law at the University of Oxford, United Kingdom. He is also a tutor in international law and tort law plus a moot court coach at the University of Oxford. Additionally, he is a tutor in the Stanford in Oxford programme. He holds a PhD from Åbo Akademi University (Finland), an LLM from (Columbia University, USA), and an LLB from the Pontifical Catholic University of Peru. He has also served in different capacities at, among others, the International Criminal Court, the International Criminal Tribunal for the Former Yugoslavia, the United Nations, the University of Oslo