[Go here for the first part of this extended post ]
Gittos claims that, as it turned out, this new approach helped pave the way
for a justice system which has spent 16 years completely reorientating itself away from objectivity and dispassionate assessment of evidence and towards elevating the rights of the victim at the expense of due process.
It’s a good point. Nowadays a complainant can give evidence from behind a screen or by video link. His or her witness statement will have been taped, and it will often form the bulk of that persons evidence at any trial. Meanwhile, the defendant sits in a dock, most often behind a thick glass screen, wearing headphones so that s/he can hear. S/he is semi-detached from what’s going on in court.
The complainant will often be asked whether s/he needs a rest break, and will often be allowed to sit to give evidence. None of this solicitousness is likely be afforded to the defendant [1]. It could easily look (although this is surely not the intention) as if the whole process is on the side of the complainant, and by implication against the defendant.
In any event, as Gittos points out, the screen/ video link provision:
removed an ancient legal principle – that a defendant should stand face to face with their accusers – in order to make the experience of engaging in the process easier for victims.
And then there was a further development, one which again appeared at the time to be beneficial.
[I]n 2007, Harriet Harman introduced the Victim Impact Statement. This allowed for victims to read prepared statements to the court, detailing how a crime had affected them emotionally, prior to the judge making a decision on sentence. Judges were quite open in stating that such statements could materially affect the sentence passed.
Gittos is arguably right to say:
[T]he sentencing process, which had been traditionally undertaken in the name of preventing further harm to society at large, became about repaying, through a deprivation of the defendant’s liberty, the emotional harm done to the victim.
On the face of it, there is much that was positive about these initiatives. Who wouldn’t want to make a demanding and difficult process easier for complainants? And why not involve them more in sentencing outcome? But the point is this.
Add together the provisions designed to support complainants and facilitate the difficult process of making a complaint and giving evidence. That is: taped complaint interview(s); the screen or video link; judicially expressed concern for the complainant’s comfort and wellbeing; and court orders conferring lifelong anonymity on complainants, while the defendant’s identity and personal story is often explored in excruciating detail for all to hear [2]. Compounded together, with others, these provisions can have an effect on the dynamic of any trial.
They can and often do detract from balance and objectivity.
They tend to confer an aura of dignity and truth-telling on a complainant. (S/he may or may not be telling the truth, but that’s not the point.)
They tend to elicit sympathy, whereas this process should be about fact, not emotionality. It’s a real trial, with real outcomes, not Boston Legal.
Taken together, they can easily communicate a sort of diffuse impression on a jury that the defendant is more likely to be guilty. S/he may be, of course, although, equally, she may not. But that determination, as to guilt or innocence, must only be about the quality of hard evidence, not about sympathy or about how courts and trials are set up to run.
As, again, Gittos puts it:
These reforms represented a clear move away from a criminal-justice system that prioritised objectivity to one which prioritised the stories and feelings of the victim. The victim went from being the invisible third party in disputes between the state and the citizen to being the central focus.
Criminal trials, and especially those for extremely serious offences, are meant to be about an analysis and a determination. Analysis of the evidence. Determination of the truth: innocent or guilty. Anything that gets in the way of these ends brings about unfairness and damage, not only to human lives but also to the system of justice. Arguably, a strongly victim-centered criminal justice system is, in the end, damaging to justice, to fairness, and to the rule of law.