Adversarial criminal justice system


In an adversarial criminal justice system, the victim of crime is almost entirely eliminated from an active role in the process of responding to the convicted offender. The victim has been defined as one who is quite “overshadowed”, the “forgotten man” or “non-person in the eyes of the professional participants”—the person who has lost property in his or her conflict and is reduced procedurally to the standing of a mere witness and informant for the prosecution. Carey explains that the participatory rights for such third parties are rejected as it “threatens to challenge our entire perspective the objective of the criminal justice process.” This principle is central to criminal law, the state prosecutes crimes in the interest of the public, and therefore the victim can become banished from the process. This does not seem logical, as McGrath aptly states “fairness dictates that the person who has borne the brunt of the offender's crime should be allowed to speak.”

The purpose of this dissertation is to explore from the victim's perspective the possibilities of another way of ‘doing justice'; one that, while preserving the rights of the offenders, seeks to introduce into our justice system the voice of those most directly harmed by the crime.

Chapter Two reviews the contemporary role of victims, for it was not until the second half of the twentieth century that victims' rights began to be asserted once more. It also discusses the reasons behind the revival of interest in victims, particularly the development of victim support groups. Chapter Three focuses on the means through which victims' perspectives are integrated into criminal proceedings: Victim Impact Statements. It examines the suitability of bereaved relatives delivering a Victim Impact Statement, through a review of three renowned Irish cases and identifies three main concerns Victim Impact Statements may pose for the criminal trial. Chapter Four deals with the issue of ‘balance' between victims' and offenders' rights focusing on the effect of provisions contained in two new legislative proposals that have been published in recognition of victims' rights.

The Evolution Of The Victim Of Crime In The Criminal Justice System

Contemporary Role Of Victims

The law has conventionally made a distinction between criminal and civil conflicts. Full participation in your own conflict presupposes elements of civil law. This course of action is not applicable in the criminal justice system, where the proceeding is converted from something between the concrete parties into a conflict between one of the parties and the state. Christie has observed that with the establishment of such a formalised criminal justice system, the victim has been “pushed completely out of the arena” and being “denied rights to full participation” in the system.

Until the nineteenth century, the victim of crime lay at the centre of the common law criminal trial. Except in State trials for treason, which were prosecuted by the Attorney General, victims were responsible for the investigation of crimes committed against them, the identification of the guilty party, and the arrest and prosecution of that party. The State intervened only, if at all, to support the victim in his efforts; no major effort was made to replace the victim's position.

An inherent problem in such a system was the imbalance of power that generated. A dominant and wealthy offender could intimidate an insolvent victim, thus evading any court hearing. At that stage of our history, had there been an awareness of the concept of victims' rights, there would probably have been a more prompt acknowledgement that the onerous task of prosecution then strained upon the victim was unfair and that more of the burden should be carried by the state. Throughout the years the imbalance in the criminal justice process, relating to disparities in wealth and social influence, began to be restored with the introduction of police services.

Investigatory powers were then given to the Gardaí. The final step in that process was the Prosecution of Offences Act 1974 which set up the independent office of the Director of Public Prosecutions (The “DPP”), who assumes the responsibility of prosecuting in the name of the state. The creation of this office, which developed first in England, by which the justices of the peace (“JPs”) became the ordinary public prosecutors in cases of serious crime, may be regarded to represent the ultimate attempt to professionalise the criminal trial and to remove the amateurism that had typified criminal trials for most of the common law's existence. Within one hundred years, private prosecutions of criminal offenders had all but disappeared in England and in Ireland, and today there exists at common law only a residual and uncommonly-used right of private prosecution.

This resulting transfer in the balance of power gave the offender the new status of being the ‘underdog', due to their new opponent, the State. In order to address this new imbalance and protect the alleged offender, a whole corpus of law has developed, to facilitate the offender in making his or her case clearly and to protect him or her from unfair prosecution and punishment. Legal advice and representation has been made available to offenders and strict legal rules have been introduced to direct the manner in which evidence can be presented. It is evident that the relationship between the offender and the state has come to dominate the process of criminal justice trial and retribution. Seldom do we think of the victim, who today has the status of “mere witnesses for the prosecution”.

Victims' Rights Movement

Since the early 1970s the victims' rights discourse began with an increasing interest in the rights of the victim, as more than a mere source of evidence. There was a vague feeling that more could be done to improve the victim's situation. A range of small awareness groups were formed to achieve reform. In 1975, in the UK, the first victim support service was established in Bristol. With the support of the police, probation and social services, similar projects were established over the following years with the eventual creation of a British national body in 1979.

Victim Support was established in Ireland in 1985. Through this centre and the hundreds of volunteers across Ireland, victims were finally recognised. This support centre offered the victim much-needed information and support, which had otherwise been unavailable. Thanks to its founder, Derek Nally, Victim Support provides a vital service, which reduces the suffering of victims. Relying heavily on government support the organisation has grown and evolved since 1985. In identifying additional ‘support' afforded to victims, all the substantive rights protected by the Irish Constitution and the European Convention on Human Rights must be addressed.

Treatment Of Victims In Ireland

Article 40.3.1º of the Irish Constitution provides that the State “ its laws [should] defend and vindicate the personal rights of the citizen”. Likewise, Article 1 of the European Convention on Human Rights (hereinafter the “ECHR”) requires all member states (of which Ireland is one) to “secure to everyone within their jurisdiction the rights and freedoms defined in the [ECHR] and its substantive protocols”. These criteria place the State under a mandate to actively defend the human and constitutional rights of all persons in Ireland, and this mandate applies to victims of crime as much as to others. Criminal actions against individuals will usually constitute an invasion of their protected rights, and the State must ensure that its laws provide a means of remedy for such invasions. Neither the Constitution nor the ECHR, however, articulate the rights enjoyed specifically by victims, and in the field of criminal law the main focus of human rights advocates has been the recognition and protection of the defendants' rights. At legislative and executive levels, however, there has been much activity – so much so, in fact, that many of the rights articulated in the U.N. Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power , already form part of Irish law. No attempt has yet been made in Ireland to systematically set out the rights of victims – the closest we have come is the publication in 1999 of the Charter of Victims' Rights which by its own terms does not attempt to set out any rights. The Charter does, however, provide information on what victims can anticipate from the criminal justice system and it sets out a complaints' procedure for breach of those expectations.

Many of these measures, especially those concerned with sexual offences, were endorsed without any recognition that the public process of the criminal justice system depends upon a private decision by a victim for its instigation. Unless a victim decides to make a formal complaint to An Garda Síochána, the professionalised system for the prosecution of crime will remain dormant.

The failure to articulate the rights of the victim is at least partly the consequence of the change to the criminal trial process: the welfare of the victim has been largely included in the welfare of society as a whole, as represented by the DPP.

The Purposes Of Victim Participation: Substantive Rights And Procedural Rights

The rights of victims which may be said to be emerging fall, broadly speaking, into two categories, which are termed ‘substantive' and ‘procedural' rights. The former ameliorate the criminal process for the victim and draw her into it by providing various services, but do not afford her a means of making an impact on the process itself. The latter are clearly the more contentious and give rise to some significant issues of principle. They afford the victim opportunities of influencing certain decisions at various stages of the criminal process, pre- and post-trial, through consultation or participation in them.

In the main, little attention has been paid to the provision of procedural rights for victims of crime. Ashworth argues that substantive rights are as effective as procedural rights in satisfying victims, but without the disadvantages of procedural rights, which Fenwick contends that affording victims [procedural] rights is an appropriate and desirable means of improving their position. Coffey outlines the arguments for excluding victim participation in the criminal justice process. In particular, the criminal justice system is founded on the notion of impartiality; however, the judiciary and the jury may be unbiased in the adjudication process if erroneously influenced by the victim of crime.

The emergence of procedural rights for victims may be said to herald a move back towards the position which victims originally occupied within the system. A discernible movement towards a 'private' as opposed to a public ordering of the criminal process may currently be occurring since the introduction of legislation in 1993 allowing for Victim Impact Statements (sometimes referred to as “VIS”) to be used in sentencing.

The Victim Impact Statement is a relatively new criminal justice initiative that was introduced to individualise the consequences of crime, to show how the offence affected a victim in all his particularity and human specificity. In doing so it was generally anticipated that the victim's overall frustration with, and alienation from, the legal process would be palpably reduced by increasing his sense of involvement and fair treatment in court, culminating in a restoration of his dignity.

Victim Impact Statements

The Emergence Of Victim Impact Statements

Section 5(1) of the Criminal Justice Act 1993 (“the 1993 Act”) provides that:

“In determining the sentence to be imposed on a person for an offence... a court shall take into account, and may, where necessary, receive evidence or submissions concerning, any effect (whether long-term or otherwise) of the offence on the person in respect of whom the offence was committed.” (emphasis added)

The submission of Victim Impact Statements is not mandatory given that section 5(3) of the 1993 Act, states that:

“Where a court is determining the sentence to be imposed on a person for an offence...the court shall, upon application by the person in respect of whom such offence was committed, hear the evidence of the person in respect of whom the offence was committed as to the effect of the offence on such person upon being requested to do so.” (emphasis added).

The Purpose And Value Of Victim Impact Statements

The function of Victim Impact Statements is to address the adverse effect of the defendant's crimes, in terms of the “victim's perceptions and expressions of the emotional, physical or economic harm” sustained by him or her in cases involving violence or sexual offences.

This legislation was by no means a radical step, similar provisions having been introduced in the United States, Canada and South Australia in the 1980s.

Nevertheless, the use of Victim Impact Statements has arguably transformed the previously passive role of the victim to that of a party who can play an active role in the trial. Victim support workers have suggested that victims wish to be involved in the criminal justice process because they want to participate in some way in what they perceive to be ‘their day' in court. It is the opinion of victim support workers that the vast majority of victims who attend court merely want to be acknowledged and are unconcerned with the outcome, other than a guilty verdict. They merely seek vindication that what they are saying is true. Those working in victim support also maintain that the purpose of Victim Impact Statement is not to influence sentencing but to give a much-needed voice to the victim. Ashworth does point out, however, that this is not necessarily the case, since victims are invariably asked for their opinions. (all from the same source?)

Who Is The Victim?

Who should be permitted to prepare and present such statements: who, in fact, constitutes the victim? The aforementioned provision in the 1993 Act thus assumes a narrow definition of the “victim,” excluding, as it seems, such indirect victims as the bereaved relatives of homicide victims. Spungen acknowledges that this may require a broader definition, or perhaps interpretation by the courts, of the term “victim” for the purposes of including co-victims in homicide cases to exercise this provision of the 1993 Act. When referring to a homicide, too many people still operate under the concept that the “victim is dead”, without acknowledging the co-victims of the homicide who are experiencing secondary victimisation.

It is quite commonplace for the relatives of a murder victim to give evidence at trial in the United States, and in the UK (England and Wales) provision is being made for bereaved families to have the ability to speak at the sentencing stage. In Ireland, this provision has been included in the Justice for Victims Initiative but a precedent has developed over the last number of years that the surviving relatives of a homicide victim may be given a platform, in court, to present a Victim Impact Statement.

Case Study One

One of the most prominent statements delivered by a co-victim was that by Mary Murphy in 2004. As the mother of Brian Murphy, who was killed outside Club Anabel at the Burlington Hotel, Dublin, in August 2000, Mrs. Murphy spoke of what she had expected from the trial and her criticisms of the justice system.

No part of the trial was awarded as much public attention as the Victim Impact Statement of Brian Murphy's family. The media attention encouraged a general contemplation in society both of the plight of families of murder victims and of the appropriateness of using a Victim Impact Statement in cases where the victim is dead.

Mary Murphy, the mother of the deceased began by outlining her reasons for giving the statement – the primary ones being the deep love she had for her son and having had to keep silent for so long. She went on to note that during the entire trial she felt “under attack,” and that her Victim Impact Statement alone represented the voice of Brian and her family, while the media and the accused had a voice throughout. Her aim, during her Victim Impact Statement, was to introduce to the listener the “dehumanised, by the trial process, Brian Murphy.” Recalling the effect his death had on her and her family, she described in detail the degree of pain they had to endure. Is the courtroom the place for displays of emotion? Can we put enough faith in our judges to listen to a moving Victim Impact Statement and yet not allow it to have too much effect on the sentence they pass?

Mrs Murphy then went on to discuss what exactly she had expected from the trial and her criticisms of the justice system. “I feel brutalised by this trial process” were her words, as she noted that “[T]ruth is lost here. Brian is lost here. I am lost here”. She concluded her statement with a plea to the media not to quote her out of context, and her parting words were a plea to all of those that she had felt had slipped through the justice net by their lies: “The truth will set you free”.

This statement was followed by testimonies from her husband and her daughter. In all, the Murphy family were given one hour. In a trial that took thirty four days in total, not even the resolute critic of Victim Impact Statement could say that the time given to the Murphy family was excessive. While it may not have been purposefully designed to engender sympathy for the victim and concurrently create antipathy towards the defendant, there is no doubt that that may very easily have been the result.

Case Study Two

Another influential Victim Impact Statement was delivered in the case of The People (D.P.P.) v Wayne O'Donoghue for the killing of Robert Holohan. O'Donoghue had pleaded guilty to the manslaughter of his 11-year-old neighbour Robert Holohan and after a jury trial was acquitted of murder. At the sentencing stage of the trial, Majella Holohan, Robert's mother, made a VIS which she used to discuss certain evidence which had not been presented at trial.

While a copy of her Victim Impact Statement had been furnished to the judge and to counsel, Mrs Holohan departed from this script to refer to extraneous forensic evidence. She mentioned that semen had been found on her son's body and questioned why an emergency call had been made from her son's phone, why there were no fingerprints on his phone and why was he wearing no runners on his feet when he was supposed to have met O'Donoghue while out cycling on the road. O'Kelly justifiably supported Mrs Holohan remarking that if our justice system does not allow evidence to be presented in full unless the prosecution is absolutely certain that it will stand up, then the justice system is pre-judging the issue. And to pre-judge is no justice at all.

Mrs Holohan's “unscripted addendum to the victim impact statement” did not affect the sentencing of Wayne O'Donoghue. Counsel for the defendant vehemently objected to Carney J. about said allegations, particularly since they were not included in the VIS shown to the legal teams before the hearing. Carney J. warned that any victim of crime who wilfully abused the victim impact procedure would be dealt with firmly by the courts, which would also face down any venom directed at them by the tabloid press. He further advised Mrs Holohan that she would be upset by the sentence he was going to impose for he could only deal with what he heard in evidence, and he sentenced O'Donoghue to four years' imprisonment. Media reports the following day expressed outrage at such a short sentence.

The media, which had been very attentive in this case, displayed a remarkable change in attitude following the VIS of Majella Holohan. Where previously O'Donoghue had been the subject of much pity, with much of the media reporting describing the death of Robert Holohan – as did Carney J. – in terms of horseplay, there was now a general outcry, with calls for the DPP to explain why some of the evidence had not been brought into the trial. Carney J. made it quite clear in his judgment that he was sentencing O'Donoghue on behalf of the State, and that the trial was not a contest between the family of the deceased and the accused, but between the State and the accused. In so doing, he emphasised that although the family of the victim may present a Victim Impact Statement, it will never be used so that the court engage in retaliatory sentencing.

Case Study Three

In the recent trial of Ronald McManus, most commonly known as Ronnie Dunbar, for the killing of Melissa Mahon, another high-profile Victim Impact Statement was delivered. McManus was found not guilty of murder but guilty of the manslaughter of the 14-year-old schoolgirl.

At the sentencing hearing, White J. asked lawyers for the prosecution to remind the court of the attitude of the Mahon family when Melissa went missing in 2006. The court heard that they were uncooperative with Gardaí and initially declined to make a statement that she was missing because her mother said she was in the care of the HSE at the time. In the brief Victim Impact Statement, which was read by counsel for the prosecution, the victim's mother Mary Mahon said she and her daughter Leanna, who were closest to Melissa, had attempted suicide. She said “Melissa was her baby and her whole life had been torn apart by her death”. She said it had an emotional effect on all the family. White J. said the Victim Impact Statement was therefore “disingenuous in the extreme” in his view. Both McManus' daughters also gave video link evidence at the trial and said that their father had strangled Melissa in his bedroom and forced them to help him dump her body in the River Bonnet in Sligo.

The Mahon family's VIS did not affect the sentencing of McManus. White J. relied on other factors to grant a sentence of life in prison for the manslaughter of the teenager. A life sentence was handed down only in exceptional circumstances, White J. said, but McManus's crime was of such gravity that it warranted the sentence. Unlike Wayne O'Donoghue who remained remorseful throughout his trial, McManus came across to White J. as being “disdainful, scornful, if not bordering on contemptuous of [his] surroundings . . . There [were] no mitigating factors in [his] favour in this case.” The judge concluded sentencing by saying it would be “wholly wrong for me to don blinkers” and not take into account McManus's attitude and demeanour, his lack of remorse and his previous bad character, in sentencing.

If it can be ensured that the Victim Impact Statement in every case will be treated objectively, as in the three aforementioned case studies, then there can be no objection to the presentation of them, either by a victim or by a victim's family. However, if the Victim Impact Statement is to affect sentencing, a problem may arise.

The Problems Of Victim Impact Statements

Brief references may now be made to three particular problems of introducing Victim Impact Statements – sentencing disparity, inconsistency of the Victim Impact Statement procedure, and the possibility of legitimising a victim's expression of a vengeance.

Sentencing Disparity

According to Ashworth, Guiry recognised that certain Victim Impact Statements have placed too much emphasis on the effect of crime on the victim's family, have disregarded the aims of the sentencing hearing and introduced information unrelated to the blameworthiness of that particular defendant.

The applicant, in the case of The People ( D.P.P.) v Cooney , was charged with murder but entered a plea of guilty to manslaughter which was accepted by the DPP. He was sentenced to 14 years imprisonment by the trial judge at the Court of Criminal Appeal and he appealed against the severity of this sentence.

Having found that the sentence of 14 years was too severe, the Court, in assessing the appropriate sentence, referred to the following factors as being of relevance: the applicant's remorse, his admission of guilt from the outset, the absence of evidence of previous use of violence, that he did not have a drug problem, that there was no suggestion that he habitually carried a knife around with him and that, in the opinion of the psychiatrist, he was not a violent type of person in normal circumstances and also that there was a reasonable hope of his rehabilitation. In imposing the period of 8 years, it would seem that the Court was somewhat influenced by the desire to leave some light at the end of the tunnel for the applicant in the particular circumstances of the case. It was also determined to avoid a situation where the main influencing factor with respect to the sentence was the impact of the crime on the victim or, as in this case, the victim's family.

It may happen, of course, that an offender will be given an unduly lenient sentence which fails to reflect the seriousness of his offence. Since the implementation of the 1993 Act, the DPP can apply to the Court of Criminal Appeal to have the sentence reviewed. The Court can vary the sentence to a level compatible with the ruling of The People (D.P.P.) v Tiernan in the case of rape. In this case, Finlay C.J. said that “the crime of rape must always be viewed as one of the most serious offences contained in our criminal law”, thus, serious sexual offences attract such sentences which, on average, are heavier than those imposed for manslaughter. In the case of other sexual and violent offences, a level compatible with other guideline judgments will hopefully be delivered.

However, the Tiernan ruling was not applied subsequently in the case of The People (D.P.P.) v McLaughlin , where the accused was convicted of rape and offered compensation to the victim who accepted it. The accused then received a non-custodial sentence. The applicant applied to have the sentence reviewed on the grounds that it was unduly lenient. The Court of Criminal Appeal, in imposing a custodial sentence said each case should be treated on its own facts and circumstances and that only “special circumstances” justified the sentencing judge not imposing a custodial sentence for rape. Counsel for the applicant submitted that a payment of money could not “trump” the principles laid down in Tiernan .

In The People (D.P.P.) v C , Murray J. declared that there is no jurisprudence which renders the payment of compensation to a rape victim inconsistent with the imposition of a custodial sentence. Indeed, he added, it conflicts with, and contradicts, the express wording of section 6 of the 1993 Act which states that the direction to pay compensation may be “instead of or in addition to dealing with him in any other way”. Thereafter it is entirely a discretionary matter for the court to determine the appropriate sentence to be granted.

Inconsistency Of Victim Impact Statements

As previously stated, section 5(3) of the 1993 Act provides that the presentation of Victim Impact Statements is not mandatory. White J.'s decision not to allow the McLaughlin family to read out a VIS in court, after Brian Kearney was found guilty of the murder of his wife Siobhan McLaughlin Kearney, highlights an enormous ambiguity when you look at the facts of this case. The accused, Kearney, had took a hoover flex, looped it around the victim's neck and then tied it to the handle of the bathroom door in an attempt to make her death look like suicide; subsequently he abandoned their only child, a 3-year old son, in order that he could leave for work. On the mere facts of this case, it could be argued that the victim's family should have been given the right to present a Victim Impact Statement in court. On the contrary, the Law Reform Commission noted that those who advocate a mandatory Victim Impact Statement “do not trust judges properly to exercise their discretion in such evidence.” Nevertheless, sometimes statements are permitted, sometimes they are not and this inconsistency – just like inconsistencies in sentencing – is unsatisfactory, for victims and their families alike. Likewise, expressing concern about Victim Impact Statements, the Director of Public Prosecutions has called for the implementation of legislation to govern Victim Impact Statements because “some judges take one view and others take a different view of the practice.”

Victim Impact Statements: Repair Or Revenge?

The third problem of the Victim Impact Statement is that it potentially authorises a victim's expression of vengeance, illustrated particularly in situations where the person making the statement departs from the content of the statement as submitted which involves unfounded allegations against the accused. One question worth asking is whether the defendant could have an opportunity to challenge the Victim Impact Statement, e.g. to cross-examine the victim or produce independent reports that might contradict the victim's statements about the extent to which he or she has recovered from the crime. Affording the defendant such an opportunity could, however, make the victim an independent participant in the criminal trial, a procedure which could be constitutionally questionable. It was suggested in US v McVeigh that it would be advisable to concentrate on the facts rather than the emotional aspect and because there are no guidelines as to where the line between appropriate victim impact evidence ends and an expression of emotive reactions of revenge, rage and empathy begins.

The Relationship Between The Rights Of The Victims And Defendants

Balancing Victims' And Defendants' Rights

Since establishing that the interests of the victim have been largely subsumed into the public's interest as represented by the DPP, the balance of interests in criminal trials has therefore been between community and accused, and the principal focus of human rights instruments has been to ensure a fair trial for the accused.

Both Article 38 of the Constitution and Article 6 of the European Convention on Human Rights (the “ECHR”) have been interpreted or drafted explicitly in a defendant-centred manner. Article 38 requires that all trials be conducted in due course of law, a requirement that “every criminal trial shall be conducted in accordance with concepts of justice, that the procedures applied shall be fair, and that the person accused will be afforded every opportunity to defend himself.” Every provision of Article 6 of the ECHR sets out the rights of a person facing a criminal trial, including the right to be presumed innocent until proven guilty, the right to representation and aid, the right to cross-examine prosecution witnesses and the right to access to an interpreter if necessary.

Ironically, the most profound effect of any crime is felt by the victim, yet traditionally the criminal justice system has been concentrated on the criminal. However, the focus of national and international human rights instruments on the rights of the defendant is not without justification. It is the defendant, after all, who is facing trial and, if convicted, faces severe punishment. Despite their fundamental rights being equally protected by the Constitution and the ECHR, it appears that the rights of crime victims have become less important than the rights of the offender.

Victims of crime have neither the right to have their allegation investigated nor to dictate the manner in which the Garda investigation is carried out. Similarly, victims have no right to have a prosecution initiated by the DPP. While the DPP clearly has a role in the vindication of the rights of individual victims, the courts have indicated that the victim's interest is part of the public interest and this gives primacy to the State's interest in controlling the response to crime. Thus the DPP is under no obligation to initiate a prosecution in any case at the demand of the victim; the decision rests fully with him. Furthermore, the DPP's decision will be largely unreviewable by the courts unless there is evidence that his decision was erroneous or based upon improper motives. Nor is there any legal compulsion upon the DPP to explain to any victim the reasons for his decision.

Research shows that when victims are notified of the developments in their case, they are more likely to feel that the process has been fair then when they are not notified. Research on victim participation in the German inquisitorial system of justice, specifically the Nebenklager or auxiliary prosecutor, found that victims were much more satisfied with their overall treatment in the legal process. Through the practice of the Nebenklager, victims have many formal rights, including a right to be represented by an attorney; the right to access the prosecutor's investigatory files, the right to be heard at and present throughout trial, the right to file evidentiary motions, the right to bring challenging motions against judges or experts, the right to ask questions and make objections and statements, including closing statements and the right to appeal an acquittal. Hence, the Nebenklager gives victims an active role in the criminal justice process. By providing victims with the recognition that they seek and giving them, through legal counsel, a clear understanding of how the criminal justice system works, victim participation in the criminal justice process can help empower victims and combat the sense of powerlessness that many victims feel during criminal proceedings.

For too long, in the Irish context, there has been an unspoken assumption that the interests of the victim mirror those of the prosecution. Instead, they should be viewed as two sets of tracks that often run in parallel but which occasionally diverge from each other. It is at these points of divergence that the rights of victims are needed most critically. The first step is to disentangle the interests of the victim from those of the prosecution and to formally recognise that victims have distinct interests. Therefore, instead of a two-way balance between the rights of the community and those of the defendant, there should be a three-way balance involving also the rights of the victim when appropriate.

Recent Proposed Legislative Reforms

After years of marginalisation, crime victims have finally become recognised as victims of the criminal process and a radical course of reform has been proposed. In January 2008, Fine Gael published a new Bill, Victims' Rights Bill 2008, which will, for the first time ever, enshrine in law specific rights for victims of crime and make provision to have their interests defined and protected.

In June 2008, the Minister for Justice Equality and Law Reform, Mr. Dermot Ahern T.D. announced the Justice for Victims Initiative which he has described as “the most far-reaching and radical set of proposals for victims of crime since the foundation of the State”. This package of measures contains legislative and administrative proposals presumably aimed at improving matters for the victims of crime. This resulted in the publication of the General Scheme of the Criminal Procedure Bill 2009.

Victims' Rights Bill 2008

The purpose of the Bill is to make provision for the treatment of and rights of victims of criminal offences. It provides more extensive provisions for victims and details the principles applicable to their treatment. It reflects the standards prescribed by the EU Council Framework Decision on the Standing of Victims in Criminal Proceedings (2001/220 JHA), which the European Commission in its 2004 Evaluation Report criticised Ireland's record in applying standards laid down in the European Framework Decision. (REF)

This Bill would give to the victims of crime, for the first time, comprehensive statutory rights in Irish law and make statutory provision for a Victims' Rights Charter.

Under the Bill, the State and State agencies will be required to inform victims of crime of the appropriate and necessary services available to them and of the legal remedies they can utilise to obtain personal protection when necessary and it imposes specific new obligations on the Garda Síochána, Court Services Board, Department of Health and Children, Department of Justice, Equality and Law Reform, Health Service Executive. Following conviction of a sexual offender, the Bill prohibits the courts from preserving the anonymity of the offender where his or her victim informs the court that he/she wishes the offender's identity to be publicly disclosed.

Victims will be kept informed of progress made in the investigation of a crime reported by them; of the progress before the courts of any prosecution initiated; and of the outcome of any court proceedings relating to an alleged or convicted offender. With regard to physical or sexual violence, child trafficking and the sexual exploitation of children, various new rights are afforded to victims. These include the right of the victim to furnish to the court his or her view of a bail application made by the alleged offender; to be informed of a release on bail of alleged offenders; and to be given reasonable notice of a convicted offender's escape or of early release and a proposal of the Minister for Justice, Equality and Law Reform to grant early release or to make a deportation order in respect of an offender.

For the first time, victims of crime will be entitled to make submissions to the parole board on a convicted offender's applications for parole and release. The board will be required to have regard to both such submission and any Victim Impact Statement furnished to the court following conviction and it will be required to factor in the resulting information available to it in determining whether the specific offender should be granted the parole sought.

In an adversarial system of justice, the victims of crime can be too easily forgotten. For the first time in Irish law, all victims of crime will be given a voice and the recognition they deserve. They will also, for the first time, be entitled to have any violation of their rights investigated and reported upon, and as a consequence, there will be greater transparency and accountability in our criminal justice system.

Part 4 of the Bill provides for the establishment of the Commission for the Support of Victims of Crime on a statutory basis and for the publication of a Victims' Rights Charter. The Commission, which was established by the Minister for Justice, Equality and Law Reform on a non-statutory basis in March 2005 for a period of three years, had its life extended by a recent ministerial announcement. The Bill extends its functions and renders it statutorily independent.

Criminal Procedure Bill 2009

The Criminal Procedure Bill 2009 reforms the law on Victim Impact Statements but also deals with the issue of double jeopardy.

One of the key elements in the new Bill is the possibility that, in future, a person who has been acquitted may be tried again. The law on double jeopardy has been premised on two procedural issues: that a retrial should be permitted where new and compelling evidence of the defendant's guilt is discovered by means of contemporary forensic techniques; or where there has been a tainted acquittal, that is, and administration of justice offence. A retrial in any particular case must be in the interests of justice. It could be assumed that this matter was brought to the fore since the infamous O'Donoughue case. Four years since the sentencing of Wayne O'Donoghue and two years since his release, RTÉ recently produced a documentary regarding the unanswered questions Mrs Holohan raised in her VIS about her son's death. The law on double jeopardy may assist victims of this type to have their questions resolved.

Turning to Victim Impact Statements, Part 2 of the Bill – Impact of Crime on Victim - aims to accede to calls from many organisations representing victims of crime to have the present system updated. These reforms are directed in particular at improving the position of the families of victims. At present only living victims have an entitlement to make a statement. Many Judges permit family members to make a statement in cases where the victim is not able to do so. This Bill entitles these families themselves to be regarded as victims and to have an entitlement to make an oral statement in the same way as another victim.

Provision is also made to allow parents or guardians to speak on behalf of a child who was a victim or a person who suffers from a mental disorder. This Bill will also enable vulnerable victims to deliver their statement by television link. Where the person is to be questioned on their Victim Impact Statement, the court may appoint an intermediary.

It is being made clear that in the event of no statement being made, no inference is to be drawn that would suggest there was little or no impact on the victim. This will relieve the pressure to make a statement where it would be difficult or traumatic to do so.

Part 2 also provides for the court, in the interests of justice, to prohibit the broadcast or publication of either all or part of the Victim Impact Statement.

Balance In The Criminal Law Review Group 2007

In Ireland, the Balance in the Criminal Law Review Group was established in November 2006 under the Chairmanship of Dr Gerard Hogan S.C. (the “Hogan Report”) to examine whether the balance struck in the criminal law between the interests of the community and the victim on the one hand and the accused on the other is appropriate. A number of the recommendations in the Report have already been implemented by means of the Criminal Justice Act 2007, in particular the recommendations concerning the right to silence and further recommendations concerning Victim Impact Statements may be introduced if the aforementioned legislative proposals are put in place. 

Advocates for restorative justice argue that a criminal justice system can meet victims' needs without making things worse for suspects and offenders. They believe that criminal justice need not be a zero-sum game, in which gains for victims mean losses for offenders. According to Duffy, the conclusions drawn in the report rid the debate of the notion of ‘balance' and demonstrate that such a concept ought to play no part in framing a criminal justice system. If it is allowed to do so, this would obscure the real needs of victims and would feed a misconceived perception that defendants have “too many rights” and victims have “too few rights”. Rather full legal protection should be provided for the fundamental rights of victims and defendants alike.

How To Get The ‘Balance' Right: For Victims?

Edwards asserts that the disclosure of a Victim Impact Statement gives victims input into the criminal process, and explicitly requires victims' interests to be taken into account by decision-makers. It signals a shift towards giving victims procedural rights: rights to have input into and influence over key decisions in criminal justice. Read another way, these statements merely provide a service to victims – a grievance procedure – and they also serve as evidence. Nonetheless, it appears to give victims a desirable participatory role which raises questions for the criminal justice system. Do Victim Impact Statements meet victims' needs?

Recent reforms have seen victims being encouraged, permitted and entitled to have input into the criminal justice decision-making procedure. These legislative moves have been proposed to include crime victims' opinions regarding an offender's application for parole or release. These rights could be in danger, like the Victim Impact Statement, of raising expectations of victims who perceive that they are being given an extensive decision-making role, when their role may actually be limited to that of expresser.

Whether judges should take account of victims' preferences is contingent on fundamental questions about the criminal process as a legal and social institution, forcing us to address the purposes of sentencing, and the appropriate participatory role of victims in criminal justice decision-making. At first glimpse, the approach of English law appears to be strict, according with that favoured by leading academic commentators such as Ashworth: “victims' opinions should carry no weight.” In Ireland, however, the situation appears somewhat different. Initiatives contained in the Hogan Report, with many reiterated in the Victims' Rights Bill 2008 and the Criminal Procedure Bill 2009, propose to offer a procedural place to victims of crime in criminal proceedings, thus, ostensibly giving weight to their preferences and opinions. On the condition that these provisions are implemented, victims' rights and needs could certainly be satisfied.

Conclusion And Recommendations

The role of the victim in court proceedings has long been a controversial topic. According to Doak the development of this role has been impeded by a number of barriers. He blames the structure of the court system describing it as “bifurcated”. This two sided system makes it more difficult to encompass the role of the victim in proceedings. Giving a larger role to victims, he believes, would lead to trials becoming more lengthy and convoluted.

However, victim involvement in the trial could provide an important contribution to the wider values of criminal justice, in promoting truth-finding in criminal proceedings. It is ironic that the person whose complaint was instrumental in bringing the case to court is denied the right to participate as a separate player in proceedings, unlike inquisitorial criminal justice systems, but must instead play an extremely limited role in so far as they may only participate if called by the judge to deliver a Victim Impact Statement, and may only relay information regarding the impact of the crime on them - the content of which is approved by both the legal representatives of the prosecution and defence in advance of the reading.

Although it could be argued that Victim Impact Statements are better than nothing, they do not provide victims with the best opportunity to have their say with many victims feeling that their voices are not been heard by key decision makers. Victim Impact Statements provide victims with no chance of asking the questions they want answered. The fact that the Victim Impact Statement is not mandatory is seen as a cause for some concern, yet it is fair to say that trust can be placed in our judiciary to call for a Victim Impact Statement in the appropriate circumstances and to not allow it influence the sentence imposed by the trial judge.

In recent times, government criminal justice policy has become dominated by concerns about victims of crime, evidenced by the recent publication of the Victims' Rights Bill 2008 and the Criminal Procedure Bill 2009. Increased victim participation in the criminal process has been widely advocated in these legislative proposals - in the words of Nils Christie, to assert victims' “ownership of the conflict” which they felt was misappropriated from them in the name of the State.

Central to the debate on victim participation in the criminal justice system is the distinction between control and influence. Neither the Victim Impact Statement, a victim's view on whether or not the alleged offender should receive bail nor the auxiliary prosecutor gives victims decision control. Ultimately, it remains up to the judge and no one else to decide what he or she does with the victim's input. Hence, the on-going debate regarding the role of the victim in the criminal justice system is not about giving victims decision control but about permitting victims to speak and to be heard. It is about allowing criminal justice professionals to consult with victims and to take victim input into consideration when making decisions. We must reject our criminal justice system that is traditionally constructed on the basis of conflict between offender and the State with the victim ousted from the process, but instead embrace the provisions laid out in the aforementioned legislative proposals. Initiatives to satisfy victims' needs, such as the right to be kept fully informed of progress made in the investigation of their reported crime or the entitlement to make representation on ‘their' convicted offender's application for parole or release, need to be interpreted for what they bring to criminal proceedings, in particular, improving the standing of crime victims. It is not useful to view such initiatives as primarily a threat to defendants' rights and the traditions of the court room.

Alternatively, a working partnership between due process in law (the essence of which is to protect the rights of defendants') and victim-oriented justice (the essence of which is to promote the rights of existing and potential victims) would be highly recommended. This entails the adoption of the restorative justice approach. A shift to restorative justice involves more than a shift from punishment to reparation. It also entails a shift in the process by which sentencing is carried out. A ‘private' meeting should be held between victim, offender and those directly affected by the offence, presided over by a mediator. Sentencing powers are given to these ordinary citizens to allow them come to an agreement as to what the offender should do to help repair the damage he or she has caused. Advocates of restorative justice argue that criminal justice need not be a zero-sum game, but instead can result in a better deal of reparation, reintegration and reconciliation for both victims and offenders alike. In order for this campaign of restorative justice to be successful or for the aforementioned legislative proposals to be implemented correctly, attitudinal change is needed. So many in society see the victim as the least important party in the process, and it is not until victims are seen as equally important as other parties that true changes can be brought about. Giving victims the chance to have their voice does not mean unbalancing of the scales of justice, but merely is a display of respect for the victim. Can such a change to the traditional system be successful, or will the reactionary forces of those who look backwards and not forwards win the day?



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