LAWS0137 Criminal Process - Victims’ Rights

Victims’ rights and participation in the criminal justice system

Introduction

A legal reform or a law reform can be described as the process of analyzing and examining the present laws and advocating as well as implementing the modifications in a legal system. The main aim of a law reform is to enhance the efficiency and justice of a judiciary system. The report will contain a law reform proposal which can be presented or prepared in the court to bring a change in the common law. It will also serve as an empirical basis for the other law reform activities.

The topic for which the report will propose a reform is “Victims’ rights and participation in the criminal justice system”. In the adversarial judicial systems, in a criminal trial, there is a conflict between two parties including the defendant and the state and the truth according to both the parties is presented before an unbiased judge. The second half of the previous century, witnessed the dissatisfaction of the victims, all across the world, regarding these trials as well as the procedures of criminal justice systems. The victims complained that the human rights instruments did not hold any reference to the rights possessed by the victims . Till the end of 1970s, the victims of the crime were considered to be the “forgotten Persons” who were completely neglected by the judicial system. All the difficulties faced by the crime victims gave rise to the campaigns held by the victims’ rights groups which were aimed at bringing a change in the criminal judicial system. the report will support the claim that the victims of crime must be provided with the right to review, right to be heard, right to legal aid and such others which are already provided to the victims of crime in other nations, apart from Australia .

As a result of the criminal justice campaigns, the participatory rights of the victims started being recognized as the important components of the proceedings of criminal justice. Victim participation in judicial system allows the victims to participate in the proceedings and their participation no longer creates problems in the smooth performance of the criminal justice system. However, these rights are in total opposition with the conventional patterns which are followed during criminal prosecution and hence, face resistance in their execution. But after the declaration that the victims will be allowed to participate in the criminal justice as legitimate party, it has become a commonly acceptable practice and has been constantly injecting the restorative justice elements in the adversarial justice system.

Background

For overcoming the issues related to the criminal justice, the internationally community (UN General Assembly) adopted the “Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power” in 1985. This declaration contained the non-binding minimum standards for treatments of victims of crime within the boundary of the legislations of the local judicial systems of the countries. The Australian domestic law incorporated the guidelines and principles of declaration in its victims’ rights policies, legislations and charters in its each territory and state. In the first section of the victim’s rights document, a comparison has been made between the victim’s rights prevalent under the Victorian policy and legislation and those found in other jurisdictions, including Austr4alia and other nations. The second chapter of this policy and legislation, includes the procedures and guidelines for the investigation of the breaches and the enforcement of the victim’s rights. In May 2015, the Australian Commission issued an Information paper four titles “The Role of Victims of Crime in the Criminal Trial Process Information Paper 4: Victims’ Rights and Human Rights: the International and Domestic Landscape”, which can be seen as a companion publication to the victims’ right document .

The rights of the victims under the Australian jurisdiction are comparable to the Victim’s Charter Act 2006, which contains a wide range of principles and guidelines for the prosecuting agencies, Victorian investigating agencies with the victims’ of crime. A few victim’s rights which are included under the charter are-

• Right to Information and support
• Right to protection
• Participation through consultation
• Right to compensation and restitution

However, there are a number of other rights which must be included in the Australian legislation related to victim’s rights such as “Right to provide evidence and to be heard, Right to legal aid , Right to protection from secondary intimidation and victimisation and most significantly, the Right to Judicial Review”.

Literature review

According to Tyrone Kirchengast (2016), “The Criminal Division of the Court of Appeal for England and Wales” in 2011 gave a decision which set out the rights of crime victim to ask for review against the decision of the Crown Prosecution Service (CPS) for not prosecuting the victims. The Division concluded that the crime victims must be provided with the right to seek review and all the legal procedures and guidelines must make this right clearly mentioned in the documents. The right to review provides the crime victims with the rights and access to the private prosecution and extra-curial and adjunctive rights from charters and declarations of the victim’s rights .

However, in Australia, this law has not been implemented in a full-fledged manner. According to Michael O‘Connell (2018), Australia has a judge-made law which allows for the review of the administrative decisions along with the decisions made by the public prosecutors. The judicial review is used by the courts in Australia to interfere with the decisions of the prosecutors for proceeding with the criminal charges and it is known as ‘stay of proceedings‘. But apart from this, there is no valid system for judicial review and no proper attention has been paid to the rights of the victims with regard to consultation. Therefore, the law for the rights of victim’s rights can be reformed by integrating the Right to Judicial Review for strengthening the victims’ rights to consultation.

According to Stuart Ross (2015), the Australian Government has been in continuous efforts to address the issue of ‘secondary victimization’ faced by the victims of crime while getting involved in the criminal justice processes. For addressing these issues, the Australian Government has introduced a number of changes including the provisions of support services and specialised liaison at the time of reporting, assistance to improve the future safety, improve the witness and evidentiary procedures, and provide better information to the victims of crime about the justice processes and the outcomes. However the government has tried to introduce a number of changes to improve the jurisdiction procedures for the victims of crime but the practical implementation of all these rights has been very limited. The authorities do not want to restrict the powers to the victims of crime in the procedures of justice. The victim pollicises are getting constantly politicised, but there are definitely a few evident changes in the victim policies.

Proposal

This proposal has been developed in consideration with the problems faced by the victim of crime during prosecution. The proposal tends to offer solutions to the problems mentioned above and would suggest the idea of modifying the Victims’ Charter Act 2006 in a way that it gives proper rights to the victims of crime for their prosecution.

Compulsory integration of Right to Review and other rights in the present Victim’s right charter

The issue of dissatisfaction of the victims of crime can be resolved using the Right to Review. The right will allow the victims to seek review and challenge the decision of a prosecutor for not proceeding with a charge. This initiative will open the scope for a fair trial of the accused and will, ensure that the integration of the interests of the victim occurs in a consistent way and the rights of the accused are not compromised. For increasing the rights of the victim to the pre-trial review process, complementary procedures of public prosecution can also be considered as the supporting documents. The main rights which need to be included under the Right to review are the right to counsel and the right to private prosecution for the pre-trial discovery .

Apart from this, the Right to protection from secondary intimidation and victimisation can also be included. This right provides the provision of advice and safe interim accommodation for prevention of the victims under certain risks. This right safeguards the victims against the threats during the entire justice procedure. This right also includes the provisions for the timely assessment of the protection needs of the victims and making alternatives arrangements for providing evidence during the criminal proceedings. The right to legal aid can also be provided to the victims of crime to ensure that the legal aid is available to all the victims during the entire course of legal proceedings .

There must also be the rights which ensure that the victims of crime must be properly heard and given evidence during the course of the criminal proceeding. The victims must have the right to convey their opinions about the decisions made by the authorities in the judicial system .

The integration of these laws in the Victim’s right charter followed in Australia will allow the victims to keep their opinions in front of the prosecutors and allow them to review the decisions. These victim’s rights are already being given to the victims in the overseas jurisdiction and hence, they can also be provided to the victims of Australia to ensure their satisfaction [14].

Role of police

The police play crucial role in maintaining the coordination between the implementation of the reformed law. The police needs to enhance its monitoring activity and strengthen its control for managing any disputes which may arise due to this decision. Also, they need to promote strengthened enforcement of this law. The police activities also need to be discreted for ensuring proper exercise of the modified law.

Recommendation and conclusion

Since, the law has been proved to be extremely valid for sustaining the rights of the victims of crime, the reform must be brought into action as early as possible. The agenda of this law must be made clear to the judicial authorities as well as the common public. The reform must be redesigned and developed in a way that is supports the interests of all the parties associated with it . The traditional courts must come out of the traditional values and implement the reform in the process as early as possible as it is safeguarding the interest of the victims, who are not listened to. They must be allowed to ask for a review is they are not satisfied with the decisions. Also, they must hold all the rights which ensure the safety and protection during the entire tenure of the judicial proceedings.

References

Ashworth, A., "Responsibilities, Rights And Restorative Justice" (2002) 42(3) British Journal of Criminology

Davis, Robert C, Arthur J Lurigio and Susan Herman, Victims Of Crime (SAGE Publications, 2013)

Doak, Jonathan, "Victims' Rights In Criminal Trials: Prospects For Participation" (2005) 32(2) Journal of Law and Society

Erez, Edna, "Victim Participation In Sentencing: And The Debate Goes On …" (1994) 3(1-2) International Review of Victimology

Erez, Edna and Leigh Roeger, "The Effect Of Victim Impact Statements On Sentencing Patterns And Outcomes: The Australian Experience" (1995) 23(4) Journal of Criminal Justice

Kirchengast, Tyrone, "Victims’ Rights And The Right To Review: A Corollary Of The Victim’S Pre-Trial Rights To Justice" (2016) 5(4) International Journal for Crime, Justice and Social Democracy

National Children’s and Youth Law Centre, "New Voices New Laws" (National Children’s and Youth Law Centre, 2012)

Nelson, Derek R., "With Liberty And Some Justice For A Few: Thinking Theologically About Criminal Justice" (2013) 52(2) Dialog

Powell, Anastasia, Nicola Henry and Asher Flynn, Rape Justice (Springer, 2015)

Van Ness, Daniel W and Karen Heetderks Strong, Restoring Justice (Anderson Publishing is an imprint of Elsevier, 2015)

Wilson, Dean and Stuart Ross, Crime, Victims And Policy (Springer, 2015)

O‘Connell, Michael, Victims’ Rights: Integrating Victims In Criminal Proceedings (2018) Voc.sa.gov.au <https://voc.sa.gov.au/sites/default/files/OConnell_Integrating%20Victims.pdf>

Victim Participation In The Criminal Justice System (Forensic Psychology) - Iresearchnet (2018) Criminal Justice <https://criminal-justice.iresearchnet.com/forensic-psychology/victim-participation/>

Victims’ Rights In The Criminal Trial Process | Victorian Law Reform Commission(2018) Lawreform.vic.gov.au <https://www.lawreform.vic.gov.au/content/12-victims%E2%80%99-rights-criminal-trial-process>