Victim Personal Statements: Are We Restoring a Wrong Right?

By Kevin Bendesky

Beginning in the 1960s, the Victims’ Rights Movement had profound impacts on English law. One result, Victim Personal Statements (VPS), raised the important question of whether the victim should have the chance to say how the crime affected them. A VPS happens after the adjudication of guilt, but before the sentence is determined. It is not supposed to influence the sentence, yet judges often refer to the VPS in their sentences.[1] Some studies demonstrate that the statements do not harshen penalties; but still, victims report that they sometimes hope their VPS will affect the sentence.[2] Clearly, then, the VPS is still a topic of debate. The Victims’ Movement was grounded in the common desire to “restore” the rights of crime’s many victims.[3] But what was there to “restore”? A careful retracing of the victim’s role in English history complicates this effort.

In Anglo-Saxon times, criminal law was linked to the bloodfeud.[4] Eventually, crimes became emendable via payment to the victim. But the scale of payment was graduated according to the station of the victim in society.[5] It could be a horrible burden to the poor whose family member had committed a crime, ruining not only those living, but their posterity.[6] However, theoretically, this system gave the victim recourse to reimbursement, and, when compensation did not materialise, to a form of procedural rights — private war.

With William the Conqueror’s reign, the bloodfeud and wergild declined. But as the king’s jurisdiction expanded, a simultaneous system of private prosecution called ‘the appeal’ maintained the victim’s access to procedural rights.[7] A victim could also threaten to bring an appeal and demand restitution instead.[8] Thus, procedure and compensation remained options after the king’s peace expanded.

Henry II formalised the assizes and the jury midway through the twelfth century, casting doubt over the survival of victims’ rights. Juries “presented” on any crime of which they knew and render a verdict on it — even if the victim would have preferred otherwise. But, in the following centuries, the jury ceased to present its own crimes.[9] Juries became passive, as they are today, and a prosecutor became necessary.[10] This role became the victim’s.

Bringing a case essentially remained the victim’s responsibility for several centuries thereafter.[11] Indeed, victims had to apprehend and bring the offender to the magistrate, and prosecute the crime in court.[12] The victim also had to foot the bill, ensuring that the system worked largely for the wealthy who could afford to lose the money — and time — to proceed through prosecution.[13] Often, the victim decided, as was the case centuries before, to settle. Sometimes the threat was all that was necessary. The victim, therefore, certainly had procedural rights, although they were often conditioned on wealth;[14] and, the victim retained compensatory rights, again, often contingent on wealth.

Hence these powers, and the conditions on which they rested, ensured that justice was not served consistently. Moreover, the victim’s rights existed within a system otherwise controlled by social elites, who used the law selectively and randomly to their own advantage.[15] In periods of growing crime, this system began to fail in the large metropolises. But a series of legislation, beginning in 1792, issued piecemeal and by compromise, created a policing system; and, in 1856, that police force began to become involved in prosecution.[16] In 1879, with the “Prosecution of Offenses Act,” a public prosecutorial position was hesitatingly established, but private prosecution by the victim still retained power.[17] It was not until 1985 that the Prosecution of Offences Act created the Crown Prosecution Service (CPS). Pushback against reform by the wealthy who feared the power of the police stilted the development of this public system into the twentieth century, thereby, paradoxically, maintaining victims’ rights.[18]

This all raises certain important questions. For better or worse, the continued availability of a victim’s right to procedural and compensatory rights endured through to the nineteenth century in England. But one must ask, if the system of victim prosecution was heavily tilted, since ancient times, toward those with the funds for recourse to public justice, were victims’ rights in line with a modern understanding of justice? If victim prosecution failed to adequately address the growth of cities and crime, was it adequate? If the push against systemic changes came mostly from powerful elites hoping to maintain control, was this not an archaic rule of law? It is not an anachronism to judge the past through a contemporary lens when we are analysing whether or not to “restore” a past right. So, while it might not mean that VPS should be eliminated, society needs to think critically in asking: was this a past worth restoring?

[1] United Kingdom, Ministry of Justice, “Making a Victim Personal Statement: You Have a Voice in the Criminal Justice System and Have a Right to Explain how the Crime has Affected You,”  https://docplayer.net/11826838-Making-a-victim-personal-statement-you-have-a-voice-in-the-criminal-justice-system-and-have-a-right-to-explain-how-the-crime-has-affected-you.html (accessed 25 November, 2019). For evidence that they might influence judges decisions, see: Julian V. Roberts and Marie Manikis, “Victim Personal Statements: A Review of Empirical Research,” Report for the Commissioner for Victims and Witnesses in England and Wales, October 2011, https://www.justice.gov.uk/downloads/news/press-releases/victims-com/vps-research.pdf (accessed 16 January 2020); in Canada, Julian V. Roberts and Allen Edgar, “Victim Impact Statements at Sentencing: Judicial Experiences and Perceptions A Survey of Three Jurisdictions” Research Report for the Department of Justice Canada Final Report March 31, 2006.

[2] Edna Erez, Leigh Roeger, “The Effect of Victim Impact Statements on Sentencing Patterns and Outcomes: The Australian Experience,” Journal of Criminal Justice, Volume 23, Issue 4, 1995; Julian V. Roberts and Marie Manikis, Victim Person Statements: A Review of Empirical Research, Report for the Commissioner of Victims and Witnesses in England and Wales (2011), 3.

[3] This word was and is used by scholars and politicians alike. See the abstract of a, if not the, foundational text, Nils Christie, “Conflict as Property,” The British Journal of Criminology, Vol. 17, Issue 1, January 1977. Richard Bender Abell, “Restitution: Restoring The Victim’s Historic Role,” speech given to United States/Japan Bilateral Victims’ Rights Conference, in “Newsletter” National Organization for Victim Assistance, Vol. 12, Issue 11, 1988; William Barr, ““Attorney General’s’ Keynote: Bringing Criminals to Justice; Bringing Justice to the Victim,” in  “Newsletter” National Organization for Victim Assistance, Vol. 15, Issue 11, 1992.

[4] Frederick Pollock and Frederic William Maitland, The History of English Law: Before the Time of Edward I. Vol I. 2nd ed. (Cambridge: Cambridge University Press, 1898), 31

[5] Ibid, 47.

[6] Frederick Pollock and Frederic William Maitland, The History of English Law: Before the Time of Edward I. Vol II. 2nd ed. (Cambridge: Cambridge University Press, 1898), 460-1.

[7] William Blackstone, Commentaries on the Laws of England, Vol. IV, (Oxford: Oxford University Press, 1770) 312

[8] Daniel Klerman, “Settlement and the Decline of Private Prosecution in Thirteenth-Century England,” Law and History Review 19, no. 1 (2001), 38.

[9] Douglas Hay, “Controlling the English Prosecutor,” Osgoode Hall Law Journal, Vol 21. Issue 2, 171’; Langbein, “The Lawyer-Free Criminal Trial,” in The Origins of Adversary Criminal Trial, Chapter 1. (Oxford: Oxford University Press, 2005), 64.

[10] F.W. Maitland, The Constitutional History of England, (Cambridge: Cambridge University Press, 1961), 210-11.

[11] Langbein, “The Origins of Public Prosecution at Common Law,” American Journal of Legal History 313 (1973), 314.

[12] J.M. Beattie, Crime and the Courts in England, 1660-1800. (Princeton: Clarendon Press; Princeton University Press, 1986), 37.

[13] Ibid, 40.

[14] Hay, “Controlling the English Prosecutor,” 68-9.

[15] David Philips, “‘A New Engine of Power and Authority:’ The Institutionalization of Law-Enforcement in England, 1780-1830,” in Crime and the Law: The Social History of Crime in Europe Since 1500, ed. V.A.C. Gatrell, Bruce Lenman, and Geoffrey Parker (London: Europa, 1980), 159.

[16] David Philips, ‘A New Engine of Power and Authority: The Institutionalization of Law-Enforcement in England 1780–1830’,168-174; G. Williams, “The Power to Prosecute,” Criminal Law Review (1955), 569, 601. It was “certainly not envisaged that [police] should come to control the prosecutorial process”: Hay, “Controlling the English Prosecutor,” 173.

[17] Philip B. Kurland, D. W. M. Waters, “Public Prosecutions in England, 1854-79: An Essay in English Legislative History,” Duke Law Journal 1959, no. 4 (Fall 1959): 558-560. Prosecution could be brought by anyone at this time – “Only in 1908 did it become possible for the Director of Public Prosecutions to assume a private prosecution and then drop it, with no recourse for the private prosecutor”, and only after World War II did the government issue its wave of “consent” laws that required private prosecution to receive the consent of public officials: Hay, The English Prosecutor, 174-5 and 179. Hay “Controlling the English Prosecutor,” 180.

[18] Ibid, 174.

Image: Assize Courts, from ‘Our own country. Descriptive, historical, pictorial,’ British Library.