Balancing the scales in a homicide trial: a reply

AuthorSean Gillane
PositionB.C.L. (NUI), LL.M (NUI), B.L.
Judicial Studies Institute Journal [2007:1
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
* 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.

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