Legal representation for
victims of crime – Fairer
Justice
Michael O’Connell
Commissioner for Victims’ Rights
National Victims of Crime Conference
September 2013
Victim-centred justice
• Before the British Parliament enacted law to establish the
Metropolitan Police in England …
• Victims – did own investigation, or paid someone to do it for them.
• Victims – hired their own lawyer to lay charges and to prosecute the
defendant.
• Victims made key decisions.
• Restitution was a legitimate ‘punishment’.
The rise of state-centred justice
• So-called ‘Golden Era’ was not necessarily just for all victims.
• For most victims, instituting proceedings was unaffordable, so
justice unattainable. Disenfranchised victims such as the poor
benefited from the shift to a state-centred criminal justice system.
• Legal expertise became necessary to navigate the complexities of
the ‘legal’ process.
• By mid 19th century the state-centred criminal justice system had
largely replaced the victim-driven justice system
The rise of state-centred justice
• Victims’ ‘personal’ satisfaction was substituted by an intangible
satisfaction of knowing that justice would be done for the state
(Young 2001).
• “A ‘law and order’ industry ... obsessed with human rights and
sanctions for suspects and offenders [evolved] without recognising
the human rights of, or harm to, victims” (Waller 2007, p86)
• The victim had become so “thoroughly represented that she or he
for most of the proceedings [was] pushed completely out of the
[criminal justice] arena.”
• “[The criminal justice system] served the judges, lawyers and
defendants, while ignoring, blaming and mistreating the victims”,
said Lois Herrington (1987, p141) a former Attorney-General of the
USA and the chair of the Presidential Task Force on Victims of
Crime.
Increasing focus on victims
• Since 1970s victims have expressed dissatisfaction
• Steps began to tackle the relegation of the victim to
the status of a ‘passive witness’ for the state.
• Increasing awareness that without victim cooperation, the criminal justice system would collapse
and law enforcement would become very difficult.
Rise of victims’ rights
• The absence of a precise role
for the victim, other than as a
prosecution witness, belies the
victim’s actual importance
• Elevating victims’ rights is
seen (by some) as an
appropriate way to ensure
victims are given their proper
status in the criminal justice
system
Rise of victims’ rights
Declaration of Basic Principles of Justice for Victims of Crime &
Abuse of Power (United Nations 1985)
Statement of Basic Principles of Justice for Victims of Crime
(Commonwealth Nations 2005)
National Charter on Victims’ Rights (1993)
Declarations / Charters on “victims’ rights”
UN Draft Principles and Guidelines on Access to Legal Aid in
Criminal Justice Systems (2012)
Court Fodder or at the Heart of CJS ?
• Victims’ rights instruments have
been promulgated – ‘mandatory
guidelines for action’ or empty
promises?
• Perhaps deliberately – no
declaration/charter gives victims
control of criminal justice system
• Victims have been re-introduced
into the criminal justice process
that they once dominated.
Victims desire for involvement by various stages in CJ
process (Gardner 1990)
No involvement
Informed
Consulted
Actively Involved
Deciding on
Charges
21.7
50.5
23.5
4.3
Modification of
Charges
27.4
38.3
30
4.3
42
24.6
0.2
33.2
Bail Decisions
41.3
34.8
17.6
6.2
Attend Court - Not
as Witness
38.5
21.8
0.6
39.1
Deciding on
Sentence
22.2
48.6
21.5
7.7
54.7
34.7
7.8
2.8
Attend Preliminary
Hearing
Release from
Custody
Review on Victims of Crime (JSU 2000)
• On average about 6 in 10 of victims stated that they
received assistance, service, support or counselling at
various stages in the criminal justice process.
• About 1 in 3 victims (28%) felt that the prosecutor
adequately presented information about the effects of
crime (ie victim impact statement)
What would did victims want?
• More information about preventing victimisation, victim
support, victims’ legal rights / legal position, progress
of investigation & prosecution, and ways to obtain
compensation.
How far should the role of victim extend?
Should victims have a right to legal counsel?
Legal Representation for victims
In civil / inquisitorial criminal justice systems, victims’
rights to participate variously include:
• The right to join in criminal proceedings as a party.
• The right to act as prosecutor.
• The right to serve as a ‘subsidiary prosecutor’ where the
victim can submit evidence and make comment on
material submitted in court.
In adversarial criminal justice systems, victims’ rights to
participate remain controversial, and there is strong
opposition to victims having the status of a party
(including legal representation in criminal proceedings).
Austria - Legal Representation for victims
Like ‘common law - adversarial’ English criminal justice, the victim
was ‘re-directed’ from criminal to civil procedure.
Reform, however, re-introduced the victim as a ‘participant’ in
criminal proceedings. Initially, the victim could join proceedings with
regards his / her claims for restitution AND could also appeal against
court decisions with which he/she was not content.
The victim now has the right to ‘legal’ support during criminal
proceedings (including an entitlement to appoint a representative
who supports, advises and substitutes for him/her) AND to
participate ‘actively’ in investigations and criminal proceedings.
If the prosecutor ‘drops the case’ the victim has the right to apply to
continue with the prosecution as a subsidiary prosecutor AND the
right to appeal passages in ‘court verdicts’ that refer to him/her.
Europe - Legal Representation for victims
France:
• The victim can be represented by a lawyer who may be paid by the
‘state’ if the victim does not have the means.
• The victim’s standing allows him/her to protect his/her personal
interests in the charge AND to apply for restitution
Finland:
• Has a similar ‘criminal justice system’ and like victims’ rights
Germany:
• The victim has a right of ‘accessory prosecutor’ (or co-prosecutor)
AND for this purpose is entitled to procedural support.
• If no ‘state’ funding is available the victim might obtain funding from
a non-government, philanthropic organisation
USA - Crime Victims’ Rights Act
• US Supreme Court in 1973 held that victims have no
legal standing but observed that Congress could enact
law that would create standing (see Linda RS v Richard D 410 US
614 (1973)).
• Since then, the federal Crime Victims’ Rights Act 2004
enshrines the right of victims to participate in criminal
proceedings (s3771(a) CVRA)
• Right to be reasonably heard at any public proceeding in
the district court (see US v Degenhardt 405 F.Supp. 2d 1341, 1343-45 (D.
Utah 2005); Kenna v US Dist Crt for the Central Dist of Calif F3d 1011, 1015-15 (9th
Cir 2006).
• Federal law authorises a court to appoint counsel for
victims to ensure that victims’ rights are observed (see US v
Stamper 766 F Supp 1396 (DNC 1991)).
USA - Crime Victims’ Rights Act
• The Act authorises the Director for the Office for Victims
of Crime to provide grants for “the enforcement of crime
victims’ rights”, which can include the provision of legal
counsel.
• Type of legal services envisaged:
• Providing pro bono legal representation to victims
of crime; and
• Representing victims of crime in criminal court
proceedings at the trial and appellate levels
England – Legal Representation
Victim Personal Statement:
• A pilot scheme involving lawyers who appeared for
families bereaved by homicide at the killer’s sentencing.
• The lawyer questioned the co-victim on the impact of the
death (like an oral VIS); afterwards the killer’s lawyer
(appropriately can cross-examine the co-victim).
Evaluation:
• Important support for ‘grieving’ people OR expensive
‘legal’ translation service
England – Legal Representation
Coronial Inquests:
The Human Rights Act has influenced legal aid policy, so
that legal aid should be available for representation by a
relative of the victim at an inquest
(R (Al-Skeni) v Secretary of State for the Defence [2005] 2 WLR
1401)
Charge bargaining:
Human rights law used to advance victims’ rights in other
ways, such as ‘judicial review’ of prosecution decisions.
(see R v DPP ex parte C [1995] 1 Cr App R 136; R v DPP ex parte
Manning [2000] 3 WLR 463, [2001] QB 330)
England – Triangulation of interests
• Lord Steyn (Attorney-General’s Reference (No 3 of
1999) [2001] 2 AC 91):
“The purpose of the criminal law is to permit everyone to go about
their daily lives without fear of harm to person or property. And it is
in the interests of everyone that serious crime should be effectively
investigated and prosecuted. There must be fairness to all sides. In
a criminal case this requires the court to consider a triangulation of
interests. It involves taking into account the position of the accused,
the victim and his or her family, and the public.”
Sweden
• The Swedish criminal justice system blends an adversarial approach
with an inquisitorial approach.
• Victims can have legal counsel to assist them in dealings with the
prosecution until a charge decision is made and proceedings
happen in court.
Japanese Reform - Convergence
• The Japanese criminal justice system operates on adversarial
principles but without juries as ‘tribunals of fact’.
• In 2009 adapted the German law regarding the victim as co-accuser
(subsidiary prosecutor).
• As well, the Japanese state funds the victim’s lawyer if he/she
cannot afford the legal fees.
• The reform was inspired by, among other factors, a ‘defence lawyer’
who, after his wife was murdered, encountered a system with little
regard for the victim and his or her rights.
International Criminal Court
– Convergence
• Where the ICC thinks appropriate victims (in-person or
through legal representation) can actively participate at
all stages of the proceedings as determined to be
appropriate by the ICC and in a manner which is not
prejudicial to or inconsistent with the rights of the
accused and a fair and impartial trial.
• Note – Rome Statute provides for the protection and consideration
of the victim; Rules & Procedures expand on the Statute to provide
for participation in person or via legal counsel.
Extraordinary Chambers in the Courts of
Cambodia
The purpose of the victim participation (via legal counsel) at the
ECCC is:
• To support the prosecution during the criminal proceedings, and
• To seek collective and moral reparations.
• Proceedings shall “be fair and adversarial and preserve a balance
between the rights of the parties.” (Internal Rule 21(1)(a)).
• “The participation of the victims at the ECCC serves an important
function, both in terms of assisting in unearthing the truth …” (Khan
& Rudy 2010)
Does giving the victim legal counsel / legal
representation improve the administration
of criminal justice?
Austrian Study – Legal Representation
• A recent empirical study, which included an examination of 5000
pre-trial files and 85 interviews with police officers, prosecutors,
judges and lawyers shows that by strengthening victims’ access to
legal representation the division of power to influence proceedings
shifts from the accused to the victim without jeopardising the rights
of the accused. (Birklbauer, Soyer & Weber 2012)
France – Legal Representation
• The civil party system is not perfect. “Many victims do not become
aware of their rights or do not choose to go through the process.”
Irish Study – Legal Representation
• Reported “a highly significant relationship … between having a
lawyer, and overall satisfaction with the trial process. The presence
of a victim’s lawyer also had a highly significant effect on victims’
level of confidence when giving evidence, and meant that the
hostility rating for the defence lawyer was much lower” (Backik, I,
Maunsell, C & Gogan S (1998) The Legal Process and Victims of Rape, Rape Crisis
Centre, Dublin, & School of Law, Trinity College, Dublin, pp17-18)
Canada – Legal Representation
• Canadian Crown Counsel is quoted as saying “[in regard to
disclosure of medical records for victims of sexual assault] everyone
takes it more seriously [when there is independent counsel for the
victim” (Mohr, R (2002) Words are not enough: Sexual assault – legislation,
education and information, Department of Justice, Canada, pp16-17).
ICC – Legal Representation
• “One of the great innovations of the Statute of the International
Criminal Court and its Rules and Procedures is the series of rights
granted to victims … [The drafters] recognised the importance of
involving victims of the most serious crimes directly and integrally in
the Court’s procedures, not only as witnesses for the prosecution
but as actors with a number of roles and rights within the process.”
• Victims frequently expect the prosecutor to be their lawyer.
Sometimes the prosecutor does present him/her-self as the
defender of victims. The probably happens when the victims and
the prosecution have shared interests, but that is not always the
case. In the ICC the prosecutor represents the international
community, not necessarily the victims.
• Victims with voice through legal representation in the ICC has
changed the discourse before the judges as well as the balance of
power in the Court (Wemmers 2010).
UNODC – Legal Representation
“Victims are often deterred from participating in legal
proceedings because simple, accessible and time legal
advice is not available to them, when they seek
assistance and support. Legal advice should be made
available as part of the integrated support offered
[victims of human trafficking]”
“There is a clear relationship between the victims’
access to legal representation and successful
prosecution outcomes.”
Commissioner for Victims’ Rights
Functions cont.
• 32A—Victim may exercise rights through an appropriate
representative
(1) Rights granted to a victim under this, or any other, Act may be
exercised on behalf of the victim by an appropriate
representative chosen by the victim for that purpose.
(2) This section does not apply to rights, or rights of a kind,
prescribed by the regulations.
(3) In this section— appropriate representative, in relation to a
victim, means any of the following:
–(a) an officer of the court;
–(b) the Commissioner for Victims' Rights or a person acting on behalf of the Commissioner
for Victims' Rights;
–(c) an officer or employee of an organisation whose functions consist of, or include, the provision
of support or services to victims of crime;
–(d) a relative of the victim;
–(e) another person who, in the opinion of the Commissioner for Victims' Rights, would be
suitable to act as an appropriate representative.
Commissioner’s Functions
• To assist victims in their dealings with prosecution
authorities and other government agencies.
• For example, provide ‘limited’ legal assistance to a
victim when the prosecutor & defense had agreed
a variation to a restraining order without first
consulting the victim
• Pre-trial sessions with ‘private’ lawyers for court
preparation & discussion of implications of
agreeing to ‘statements of fact’
Commissioner’s Functions
• To consult the DPP in the interests of the victims in
general and in particular cases about matters including
victim impact statements and charge bargains.
• Assisting victims to exercise their right to ask the DPP to
review a court decision for the purpose of determining if
an appeal might happen.
Commissioner’s Functions
• If another Act authorises or requires the Commissioner
to make submissions in any proceedings – to make such
submissions (either personally or through counsel).
• Before the Supreme Court hearing a ‘dangerous offender’ application.
• Before the Court of Criminal Appeal on guideline sentences.
• To make victim impact statements; especially
neighbourhood & social impact statements
• Implicit authority – Advocacy
– Access to therapeutic communications
– Suppression order
– s269P mental impairment hearings regarding revocation /
variation of licence conditions (Steele’s case)
– Coroner’s Court
Victims’ Rights – Parallel Rights
"a voice, not a veto”
(see Kyl, J, Twist, SJ, & Higgins,
S, (2005) ‘On the Wings of Their
Angels: The Scott Campbell,
Stephanie Roper, Wendy Preston,
Louarna Gillis, Nila Lynn Crime
Victims' Rights Act’ 9 Lewis &
Clark L. REV. 581)
Striking a Balance
66.9% Australians surveyed were confident that the
criminal courts will have regard for defendants’ rights
than victims’ rights.
51.5% Australians surveyed felt the criminal courts deal
with matters fairly.
Arguments in favour of victim participation are
‘compelling’.
Victim participation does not necessarily prejudice ‘due
process’ for the accused.
Fair and just participation requires, if the victim chooses,
that he/she have access to legal counsel.
Victims’ Rights – Parallel Rights
• Tasks of ‘victims’ legal counsel:
• Inform victims about their rights
• Inform & advise victims on their responsibilities and role in
the criminal justice section
• Assist victims in expressing their views
• Assist victims to enforce their ‘procedural’ rights
• Some, albeit inclusive evidence, that by enhancing
victims’ experience of the criminal justice system (see,
for instance, literature on restorative justice, therapeutic
jurisprudence & transitional justice), their participation
may be increased and more willing to assume their role
and responsibilities in the administration of a just justice
system.
Dare To Dream
V-D
Dare To Dream
V-D
Dare To Dream
V
S-D
Dare To Dream
S
D
V
“There’s an east wind coming, Watson.”
“I think not, Holmes. It is very warm.”
“Good old Watson! You are the one
fixed point in a changing age. There’s an
east wind coming all the same, such a
wind as never blew on England yet. It
will be cold and bitter, Watson, and a
good many of us may wither before its
blast. But in God’s own wind none the
less, and a cleaner, better, stronger land
will lie in the sunshine when the storm is
cleared.
Start her up, Watson, for its time that we
were on our way …”