Towards A Presumption Of Victimhood: Possibilities For Re-Balancing The Criminal Process

• Author: Peter Charleton - Orlaith Cross
• Position: BA (Mod)(Dubl), judge of the Supreme Court, former lecturer in criminal law Trinity College Dublin and now adjunct professor of criminal law and criminology NUI Galway - BA (Oxon), judicial assistant to the Supreme Court
• Pages: 1-25

IRISH JUDICIAL STUDIES JOURNAL

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[2021] Irish Judicial Studies Journal Vol 5(2)

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TOWARDS A PRESUMPTION OF VICTIMHOOD:

POSSIBILITIES FOR RE-BALANCING THE

CRIMINAL PROCESS

Abstract: This article explores what changes might be possible to better accommodate victims within criminal

trials. While the transplantation of foreign victim-oriented procedures is often posited, this requires a wider

understanding of their intricacies. What may be possible? We here consider the advance preparation of victims

by counsel, greater control of cross-examination at trial, ticketing of advocates, closer communication with

victims, the assertion of rights to privacy, and reform to the admission of self-serving statements from the

accused. A presumption of victimhood, that all those who come into court asserting a wrong to have been done

against them should be treated as such, is explored.

Authors: Peter Charleton BA (Mod)(Dubl), judge of the Supreme Court, former lecturer in criminal law

Trinity College Dublin and now adjunct professor of criminal law and criminology NUI Galway. Orlaith

Cross BA (Oxon), judicial assistant to the Supreme Court.

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Introduction

Retiring as Director of Public Prosecutions of England and Wales in November 2013, Keir

Starmer was despondent that the victims of sexual and other violent crimes would ever be

given a fair hearing through the adversarial criminal trial system; a common law approach

fundamental also to this jurisdiction.

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Labelling new arrangements for the training of police

and prosecutors, and a general code of practice for victims of crime, as ‘bolt-ons to existing

arrangements’, he called for radical change.

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In the system of which he wrote, victim impact

statements upon conviction have been a feature of sentencing procedures over decades.

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For

Starmer, victims having a voice at sentencing was important, but that was not the only issue

since ‘the debate obscures something much more fundamental: most victims have so little

faith in our criminal justice system that they do not access it at all. And the issue that deters

them is simply the way in which they are likely to be treated if they come forward.’

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The

British Government’s recent publication of an end-to-end rape review gives further weight

to Starmer’s argument that the current system may be less than ideal.

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In the foreword, there

is the admission that ‘victims of rape are being failed’ by a system which sees only 20% of

rapes reported, where one in two rape victims withdraws from investigations, and where only

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The authors are grateful to Professor Laura Hoyano, Wadham College, Oxford, and Red Lion Chambers, for

reading this article and for very helpful suggestions made by he r; noting that what is written here is n ot to be

ascribed to her. The authors also thank the Of fice of the Director of Public Prosecutions for detailed and

helpful responses to queries raised in correspondence.

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In this article, ‘victim’ is preferred, even in sexual violence cases, to ‘complainant’ as being more consistent

with our overall approach. Keir Starmer, ‘Britain’s criminal justice system fails the vulnerable: we need a

Victims’ Law’ The Guardian (3 February 2014)

<https://www.theguardian.com/commentisfree/2014/feb/03/britain-criminal-justice-syste m-victims-law-

public-prosecutions> accessed 1 June 2021.

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Criminal Procedure Rules for England and Wales 2013, CrimPR2013.

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Originally introduced in Ireland through a decision of Budd J sitting in the Central Criminal Court, these have

since gained a statutory basis through s 5 of the Criminal Justice Act 1993, as amended by s 31 of the Criminal

Justice (Victims of Crime) Act 2017. See also McGrath, ‘Is anybody listeni ng, and why do they hear? The use

of victim impact statements in Ireland’ (2008) 30 DULJ 71.

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Keir Starmer, ‘A voice for victims of crime’ The Guardian (6 April 2014)

<https://www.theguardian.com/commentisfree/2014/apr/06/victims-law-criminal-justice -labour-plan>

accessed 1 June 2021.

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Ministry of Justice, ‘The end-to-end rape review report on findings and actions’, 18 June 2021.

IRISH JUDICIAL STUDIES JOURNAL

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[2021] Irish Judicial Studies Journal Vol 5(2)

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1.6% of reports of rape lead to someone being charged.

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In Ireland, the Minister for Justice

and Equality has explored reform in this area and promised to ‘create a system centred

around’ victims.

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Not all agree that the system as we currently operate criminal trials is flawed. Even if

imperfect, many argue that constitutional considerations, derived from the right of an

accused to a trial ‘in due course of law’ under Article 38.1 of the Constitution, enshrine a

balance that necessarily favours those at risk of losing their liberty, rather than victims.

Others, placing themselves on the side of those who have suffered from crime, may cast

around to jurisdictions such as Belgium and see there the full representation of the victim as

a party entitled to compensation from the accused and envision some radical innovation of

that kind.

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Alternatively some may, perhaps only partly understanding other legal systems,

make the claim that, as in Norway, a police officer interviewing the victim at an early stage

constitutes a sufficient testing of her or his evidence and that examination in court is

unnecessary.

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In that context, Starmer’s initial suggestion was ‘to blend the adversarial and

inquisitorial systems’ asking, in particular, whether ‘judges should be given the task of

questioning young and vulnerable witnesses?’

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With this jurisdiction opting into the Victims

Directive,

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and with the consequent passing of the Criminal Justice (Victims of Crime) Act

2017, a contrary view also emerges: that enough has already been done.

The purpose of this article is simply to add to that debate an analysis of what may be possible.

It considers how criminal justice processes might better support victims of crime; truly

presuming them to be victims, irrespective of the outcome. Its suggestions apply to victims

generally, rather than being exclusively directed to those deemed ‘vulnerable’, although how

the law has been reformed to accommodate specific vulnerabilities, and the issues still

present within the system for doing so, remain relevant. The focus here is not solely on sexual

violence offences but, because these may involve difficult court experiences for victims, the

treatment of such charges are especially relevant to this discussion.

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The nature of rape

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ibid, see Foreword by Emily Hunt. In Ireland in 2020, the number of suspects facing prosecution for rape

rose by 35% according to reports from the Director of Public Prosecutions. But the Chief Executive of the

Dublin Rape Crisis Centre, Noeline Blackwell, believes 90% of rape victims do not report in the first place:

Ellen O’Riorda n, ‘Number of suspects facing prosecution for rape rose by 35% in 2020’ The Irish Times (3

February 2021) <https://www.irishtimes.com/news/ireland/irish-news/number-of-suspects-facing-

prosecution-for-rape-rose-by-35-in-2020-1.4475388> accessed 2 July 2021. While statistical reliability may be

at times insecure in some of these surveys, that there is a serious problem of sexual violence is clear; see Jennifer

O’Connell, ‘“He raped me. And I told no one.” Stories of sexual assault’ The Irish Times (17 July 2021)

<https://www.irishtimes.com/life-and-style/people/he-raped-me-and-i-told-no-one-stories-of-sexual-

assault-1.4621618>, accessed 18 July 2021. It should be noted that while the accura cy of statistics tend to vary

with sampling, these surveys do help to indicate trends and attitudes.

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Department of Justice and Equality, ‘Supporting a Victim’s Journey: A Plan to Help Victims and Vulnerable

Witnesses in Sexual Violence Cases’, December 2020.

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The process is described in Sabine Dardenne, I Choose to Live (London, Virago 2006).

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For more information see Trond Myklebust, ‘The Position in Norway’ in John R. Spencer and Michael E.

Lamb (eds), Children and Cross-Examination: Time to Change the Rules? (Oxford: Bloomsbury Publishing 2012), Ch

8.

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Starmer (n 5).

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Directive 2012/29/ EU of the European Parliament and of the Council of 25 October 2012 establishing

minimum standards on the rights, support and protection of victims of crime , and replacing Council

Framework Decision 2001/220/JHA.

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See, for example, Sarah Grace’s descr iption of her experience, Una Mulla lly, ‘“He strangled me to the point

where I couldn’t breathe, I couldn’t scream”’ The Irish Times (6 March 2021) <https://www.irishtimes.com/life-

and-style/people/he-strangled-me-to-the-point-where-i-couldn-t-breathe-i-could n-t-scream-1.4501041>

Accessed 2 July 2021. See also Julian Molina and Sarah Poppleton, Rape Survivors and the Criminal Justice System

(Victims Commissioner, October 2020), p 60.