Balancing the scales in a homicide trial: a reply

• Author: Sean Gillane
• Position: B.C.L. (NUI), LL.M (NUI), B.L.
• Pages: 30-43

Judicial Studies Institute Journal [2007:1

30

BALANCING THE SCALES IN A

HOMICIDE TRIAL: A REPLY

SEAN GILLANE*

I. GETTING THE BALANCE RIGHT

At the outset, in being asked to respond to the paper

delivered on behalf of AdVIC, I should say that I do not intend to

reply by way of riposte or rejoinder; rather, I hope in the context

of this paper, to engage with the arguments raised in a manner

which I hope is frank, realistic and ultimately helpful.

The position of the victim in the context of the homicide

trial gives rise to questions of considerable complexity, against a

backdrop of the larger context of the position of the victim in the

criminal process in general. The questions raised are of

considerable antiquity and in a sense pre-figure the modern

criminal justice system. The answers are informed by a pendular

analysis of a criminal justice system which has arced from its

beginnings, as victim inspired, funded and administered, to a

point where victims feel, it is said, completely closed out of the

system. It is, perhaps, worth noting that a parallel arc can be seen

from the position of the accused; a role which has evolved from

being prevented from giving evidence to a point where now it is

almost compulsory.

It seems to me that the concept of balance, in the sense of

balancing scales or balancing rights, is misconceived in the

context of this debate.1 If you take as a starting point the premise

that a victim’s position can only be improved by a corresponding

deterioration in the position of the accused, the analysis becomes

intellectually corralled and is fated to produce a corruption of a

criminal justice system which is, by and large, worth defending. It

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* B.C.L. (NUI), LL.M (NUI), B.L. Text of an address delivered at the National

Judicial Studies Institute Conference, on November 17 2006.

1 Ten years ago in the context of the English debate on these issues Andrew

Ashworth suggested that the term ‘balance’ should be banned. See Ashworth,

“Crime, Community and Creeping Consequentialism” [1996] Criminal Law

Review 220.