Victims' Rights in Criminal Trials: Prospects for Participation

Author(s): Jonathan Doak

Source: Journal of Law and Society , Jun., 2005, Vol. 32, No. 2 (Jun., 2005), pp. 294-316
Published by: Wiley on behalf of Cardiff University

Stable URL: https://www.jstor.org/stable/3557229

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JOURNAL OF LAW AND SOCIETY
VOLUME 32, NUMBER 2, JUNE 2005
ISSN: 0263-323X, pp. 294-316

Victims' Rights in Criminal Trials: Prospects for

Participation

JONATHAN DOAK*

Victims in common law jurisdictions have traditionally been unable to

participate in criminal trials for a number of structural and normative
reasons. They are widely perceived as 'private parties' whose role
should be confined to that of witnesses, and participatory rights for
such third parties are rejected as a threat to the objective and public
nature of the criminal justice system. However, recent years have
witnessed both a major shift in attitude in relation to the role of victims
within the criminal justice system and a breakdown in the public/
private divide in criminal justice discourse. This article considers the
standing of the victim within the criminal trial against the backdrop of
such changes, and examines the arguments for a more radical course
of reform that would allow victims to participate actively in criminal
hearings as they are able to do in many European jurisdictions.

INTRODUCTION

The plight of the victim within the criminal justice system has been w
documented since the 1970s, but during the past two decades the intere
victims have come to play a more prominent role in the formulation of
in both domestic and international criminal justice systems. In the
Kingdom, successive governments have introduced a range of mea
designed to bolster the so-called 'social' or 'service' rights of the v
such as improved access to information, upgraded court facilities
entitlements to compensation. A wide range of statutory measures

* Department of Law, University of Sheffield, Crookesmoor Build

Conduit Road, Sheffield SIO 1FL, England
j.doak@sheffield.ac.uk

A previous version of this paper was presented at the SLSA Conference in Apri
the University of Glasgow. Thanks to John Jackson and Sean Doran, an
anonymous reviewers.

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Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA

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available to assist vulnerable witnesses to give evidence at court,1 and the
new Domestic Violence, Crime and Victims Act brings into effect a statutory
code of practice for criminal justice agencies and creates a new 'Victims'
Commissioner' to promote and protect the interests of victims and
witnesses.2
On the whole, such reforms have been broadly welcomed and have
proved relatively non-contentious. They can be said to emanate primarily
from the victims' emerging status as consumers of the criminal justice
services,3 and it is largely agreed that they threaten neither the public
character of the criminal justice system nor the due process rights of the
accused. Yet many proponents of victims' rights view such developments as
long overdue, and argue that the idea of victims' rights should be developed
one step further, entailing some form of procedural right of participation
within criminal proceedings. The concept of 'participation' is something of
an abstract term and lacks any concrete definition. Edwards has suggested
that it may be perceived as stemming from the broader concept of
citizenship, and may include 'being in control, having a say, being listened
to, or being treated with dignity and respect'.4 Interpreted in this way,
'participation' in criminal justice may appear both feasible and desirable, but
the debates around the extent of participation to which victims ought to be
entitled touch upon the much deeper issue of how far the interests of a third
party ought to be accommodated within the traditionally dichotomous nature
of the criminal trial between the state and the accused. If, as most theorists
state, the main function of the criminal justice system ought to be the
punishment of the guilty and the acquittal of the innocent,5 questions need to
be addressed concerning the proper place of the 'private' interests of a third
party in a system where the state is charged with protecting the public
interest and safeguarding core values such as certainty and objectivity.
In recent years, the 'public' nature of key decision-making processes has
been increasingly influenced by private interests, with victims in some
jurisdictions having acquired the right to participate in sentencing and
diversion processes. Following the establishment of several pilot schemes in
England in the late 1990s, the government introduced a nationwide Victim

1 The Youth Justice and Criminal Evidence Act 1999 introduced a range of 'special
measures' for vulnerable witnesses testifying in court. Witnesses eligible under the
Act may be entitled to use a range of measures to maximize the quality of their
evidence. The measures include the erection of physical screens; the use of live
televised links; removal of the public from the courtroom in certain sexual offences
cases; the removal of gowns and wigs; the admission of both pre-recorded
examination-in-chief and cross-examination as alternatives to live testimony; and the
use of intermediaries or 'aids to communication'.
2 See ss. 33 and 48 of the Act respectively.
3 D. Faulkner, Crime, State and Citizen (2001) 232.
4 I. Edwards, 'An Ambiguous Participant: The Crime Victim and Criminal Justice
Decision-Making' (2004) 44 Brit. J. of Crim. 967, 973.
5 A. Sanders and R. Young, Criminal Justice (2000) 9.

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Personal Statement Scheme in October 2001, which allows victims to
explain the impact of the crime upon them by way of a personal statement
made to the police.6 The specific merits and potential pitfalls of the
participation in sentencing are widely discussed elsewhere,7 but the notion of
victim 'participation' implies much more than the giving of some form of
victim impact statement. In the common law world, relatively little attention
has been given to the concept of direct participation rights for victims within
the criminal trials where the guilt of the accused remains an issue. In the pre-
conviction phase of criminal proceedings, the aims and objectives of
proceedings are different from the sentencing stage of proceedings where
guilt is no longer an issue. The concept of victim involvement here is fraught
with numerous difficulties on account of the myriad of competing aims of
criminal justice, which include the objective adjudication of guilt, the
desirability of truth-finding, the preservation of public interests, and the need
to preserve fair trial rights for the accused. It is additionally complicated by
the fact that his or her status as a 'victim' is somewhat uncertain prior to the
determination of the accused's guilt.8
Recently, however, some adversarial systems have introduced mechanisms
whereby the victim's legal representative may intervene in relation to specific
issues arising in the trial. For example, the Republic of Ireland adopted
legislation in 2001 to permit complainants to be represented by their own
counsel in a voir dire where the defence had applied to introduce previous
sexual history evidence.9 However, the provision is extremely narrow, in so far
as it will only apply in cases of rape or sexual assault, and, like many similar
United States provisions,10 it will only apply in the specific circumstance

6 The statement is appended to the case papers, but does not have the same effect as
those types of victim impact statements that are used as sentencing tools in parts of
the United States of America and Canada. It was made clear in a Practice Direction
from the Lord Chief Justice that the 'opinions of the victim or the victim's close
relatives as to what the sentence should be are therefore not relevant, unlike the
consequence of the offence on them': Practice Direction (Victim Personal
Statement) [2002] 1 Cr. App. R. (S) 482.
7 A good overview of the arguments can be found in I. Edwards, 'The place of
victims' preferences in the sentencing of "their" offenders' [2002] Crim. Law. Rev.
689.
8 The very designation of an individual as a 'victim' may give rise to an inherent
implication that the allegations made by that person ought to be accepted as the
historical truth before the tribunal of fact has arrived at its determination as to the
guilt of the accused. See, however, M. Brienen and E. Hoegen, Victims of Crime in
22 European Justice Systems (2000) who argue that the presumption of being a 'non-
victim' until the trier of fact has determined otherwise operates to prevent some of
the above-noted substantive rights and interests being protected during the pre-trial
and trial stages (p. 30).
9 s. 4A(1) of the Criminal Law (Rape) Act 1981, as inserted by s. 34, Sex Offenders
Act 2001.
10 Some American states, such as Wisconsin, West Virginia, and New Hampshire,
allow the attorneys of rape complainants to make representations when questions

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where the defence is attempting to introduce sexual history evidence. Any
broader, more general role for a victim, which might involve the right of an
advocate to intervene in cross-examination, the calling of character witnesses,
or the pursuit of reparation from the accused would potentially cause immense
structural and normative problems within any adversarial system.

BARRIERS TO VICTIM PARTICIPATION

1. Structural barriers

One of the major obstacles to victim involvement in the criminal process

stems from the bifurcated structure of the adversarial criminal justice system.
The trial has been said to centre upon the 'sharp clash of proofs presented by
litigants in a highly structured forensic setting,'"1 where a heavy onus rests
on the parties to produce evidence to substantiate their own case, and to
perforate the arguments of their opponent. Without radical reform, existing
trial structures could not easily be adapted to accommodate the meaningful
participation of any third party. Proceedings would undoubtedly become
lengthy, awkward affairs - particularly if victim's counsel were to call their
own witnesses and spend a considerable amount of time cross-examining
others called by either the prosecution or the defence. A whole series of
further issues may also be introduced into the trial that would have minimal
relevance to the determination of guilt. Indeed, Jorda and de Hemptinne have
identified the dichotomous nature of proceedings as being one of the main
factors that is likely to obstruct the effective participation by victims at the
International Criminal Court.12
This bipartisan structure of criminal proceedings dictates that trials are
typically characterized by a highly competitive atmosphere, which renders
them fundamentally ill-equipped to address emotional trauma and private
conflicts that have arisen as a result of the offence. The entire criminal
process is designed to culminate in a confrontational showdown between the
prosecution and the accused, and such postures can serve only to deepen the
existing conflict.13 As William Pizzi has remarked, the adversarial system

governing the admissibility of sexual history evidence are being considered by the
court. One South Carolina provision is even broader in that it permits representations
from a victim's advocate in any type of case where the defendant alleges improper or
illegal conduct on the part of the victim as part of his or her defence.
11 S. Landsman, Readings on Adversarial Justice (1988) 2.
12 C. Jorda and J. de Hemptinne, 'The Status and Role of the Victim' in The Rome
Statute of the International Criminal Court, eds. A. Cassese, P. Gaeta, and J. Jones
(2002) 1388.
13 D. Frehsee, 'Restitution and the Offender-Victim Arrangement in German Criminal
Law: Development and Theoretical Implications' (1999) 2 Buffalo Crim. Law Rev.
235, 236.

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'turns witnesses into weapons to be used against the other side.'14 Their
testimony must be shaped to bring out its maximum adversarial effect,15 and
witnesses are thereby confined to answering questions within the parameters
set down by the questioner. The victim is denied the opportunity to relay his
or her own narrative to the court using his or her own words, which seems
something of an irony given that logic dictates that such an account should
have a key role to play in arriving at the truth.16 In practice, counsel in
adversarial trials seek to take control of the witness, and use questioning to
elicit only those facts which he or she feels should be included. Questions are
carefully framed to avoid the witness speaking about anything that counsel
feels should be omitted from the testimony. The goal, essentially, is to
manipulate witness testimony in such a way that victory is made more
likely.17 This form of control exercised by advocates over witnesses means
that the conflict is entirely removed from the hands of its protagonists. The
contest culture of the courtroom is not at all conducive to listening to the
accounts of individual witnesses, let alone healing conflicts.
It may also be suggested that, from a due process viewpoint, the
involvement of another party in the case could be seen to breach the
principle of equality of arms. Since the adversarial system relies so heavily
on the delicate balance of power achieved through the clear delineation of
roles for the prosecution and defence, the system could be perceived as
appearing 'out-of-balance' if another party were involved in the case that
could actively work against the interests of the defence. Thaman, for
example, has noted the risk that the defence may be significantly undermined
if victim's counsel is perceived to be aligning himself or herself closely to
the prosecution in some form of 'good cop bad cop' ploy against the
accused.'8

2. Normative barriers

Just as victims are sidelined in practice during the trial, they are also
normatively viewed as outsiders to the criminal hearing. Historically, this

14 W. Pizzi, Trials Without Truth (1999) 197.

15 id.
16 Note also that it is well documented how the structures, rules, and advocacy tactics
which prevail within the adversary system frequently results in the general obscuring
of historical facts. See, generally, R. Eggleston, 'What is wrong with the adversary
system?' (1975) 49 Aust. Law J. 428; M.E. Frankel, 'The Search for Truth: An
Umpireal View' (1975) 123 University of Pennsylvania Law Rev. 1031; Pizzi, op.
cit., n. 14; S. Steffen, 'Truth as Second Fiddle: Re-Evaluating the Place of Truth in
the Adversarial Ensemble' (1988) 4 Utah Law Rev. 799.
17 L. Ellison, The Adversarial Process and the Vulnerable Witness (2001) 53-4. See,
also, for example, M. Stone, Cross-Examination in Criminal Trials (1995) 120-6.
18 S. Thaman, 'Europe's New Jury Systems: The Cases of Spain and Russia' (1999) 62
Law & Contemporary Problems 233, 244.

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was not always the case. Victims once had an active participatory role in
criminal proceedings, and were responsible for not only initiating, but also
for prosecuting offenders without the assistance of a public prosecutor. As
Nils Christie has famously noted, these functions were 'appropriated' by the
state,19 as the focus of the criminal law shifted from the sphere of private law
into a form of public law.
Various reasons have been mooted for this shift,20 but whatever the
historical explanations may be, they do not necessarily constitute a rational
justification for the continuation of a strict dichotomy in the modem criminal
justice system between public and private interests. The structures of the
contemporary legal system clearly delineate the separate functions,
sanctions, and rationales of the criminal and the civil law. Whilst civil law
has been widely regarded as the appropriate channel for the resolution of
disputes between individuals, the criminal law and its penal sanctions are
geared towards protecting the public interest in denouncing and punishing
unacceptable behaviour, and not the private interests of individual parties.21
Ashworth sees the function of the criminal law as 'to penalise those forms of
wrongdoing which ... touch public rather than merely private interests.'22 It
is on the basis of this punishment paradigm that the structures and values of
the criminal justice system have been largely conceived.
Conceptually then, victims have no role to play in the modem criminal
justice system other than to act as 'evidentiary cannon fodder'.23 In contrast
to continental systems, discussed below, they have no 'right to be heard',24
and are denied any form of proactive participation in the trial since their
interests are deemed to fall outside the remit of the criminal trial as a forum
for the resolution of the dispute between the state and the accused. Victims
have been 'conscripted' into an operational role within the criminal justice
system, and are generally treated as its servants or agents.25 In the view of
criminal law purists, the 'rights' and the 'interests' of the victim should thus
be pursued under the civil, as opposed to the criminal law, using the law of
tort. Therefore, although many victims may feel as though they are 'owed' a

19 N. Christie, 'Conflict as Property' (1977) 17 Brit. J. of Crim. 1.

20 See generally, J.H. Langbein, 'The Origins of Public Prosecution at Common Law'
(1973) 17 Am. J. of Legal History 313; D.J. Seipp, 'The Distinction between Crime
and Tort in Early Common Law' (1996) 44 Buffalo Law Rev. 59.
21 A. Ashworth, 'What Victims of Crime Deserve', paper presented to the Fulbright
Commission on Penal Theory and Penal Practice, University of Stirling, September
1992, as cited by M. Cavadino and J. Dignan 'Towards a Framework for
Conceptualising and Evaluating Models of Criminal Justice from a Victim's
Perspective' (1996) 4(3) Inernational Rev. of Victimology 153.
22 id.
23 Cavadino and Dignan, op. cit., n. 21, p. 155.
24 J. Spencer, 'Improving the Position of the Victim in English Criminal Procedure'
(1997) 31 Israel Law Rev. 286, 292.
25 Faulkner, op. cit., n. 3, p. 226.

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right to exercise a voice in decision-making processes, such as prosecution,
reparation, and sentencing, the criminal justice system places such rights or
interests in a firmly subservient position to the collective interests of society
in prosecuting the crime and imposing a denunciatory punishment.26

3. The purist view

The supremacy afforded to these collective interests is justified primarily on

the basis that crime is harmful to society, and that the penal measures
imposed by the court are thereby conceived of as an official denunciation of
the offender's wrongdoing. It is also considered vital to sideline the
subjective desires of individual victims in order to maintain objectivity,
consistency, and hence the overall legitimacy of the criminal justice system.
It is thus unsurprising that many purists like Ashworth perceive a real risk in
compromising the key values and objectives of the criminal justice system in
order to recognize the validity of furthering private interests.27 According to
Weisstub, their central fear is that 'squatters and anarchists' would 'run wild'
in the criminal justice system, and that 'ad hoc populism' could 'replace the
impersonal rigour of codified and judicially made law'.28
The problem for the purist viewpoint, however, lies in the fact that,
whatever the historical explanations for the de facto distinctions between
public and private realms of law, the distinction has been artificial since its
inception during the Middle Ages. Indeed, a closer look at the actual nature
of individual crimes and torts suggests that it is not so easy to separate neatly
the public from the private interests. As Smith and Hogan note, crimes, as
opposed to torts, can be defined as wrongs which Parliament or the courts
have deemed to be 'sufficiently injurious to the public to warrant the
application of criminal procedure to deal with them', but the real issue, as
Frehsee contends, is whether such separations of doctrine can 'ultimately be
found in the measure of whether our stated aims and purposes have been
achieved in practice.'30 Civil and criminal liability are each based on
overlapping concepts of fault, recklessness, and strict liability,31 and many

26 M. Cavadino and J. Dignan, 'Reparation, Retribution and Rights' (1997) 4(4)

International Rev. of Victimology 233, 237.
27 See A. Ashworth, 'Punishment and Compensation: Victims, Offenders and the
State' (1986) 6 Ox. J. of Legal Studies 86; A. Ashworth, The Criminal Process: An
Evaluative Study (1998) 32. See, also, A. Von Hirsch, Censure and Sanctions
(1993) 6.
28 D. Weisstub, 'Victims of Crime in the Criminal Justice System' in From Crime
Policy to Victim Policy, ed. E. Fattah (1986) 205.
29 J.C. Smith and B. Hogan, Criminal Law (2002) 17.
30 Frehsee, op. cit., n. 13, p. 243.
31 A. Goldstein, 'Defining the Role of the Victim in Criminal Prosecution' (1982) 52
Mississippi Law J. 515, 530.

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crimes have their equivalent in the law of tort.32 As Weisstub has argued,
public and private wrongs may be conceived as variations along the same
continuum of fault,33 a theoretical blurring already reflected in a number of
ways on both the domestic and international platforms.

4. The merging of public and private interests

Over the course of the past three decades, the concept of victim/offender
restitution has made significant inroads into the criminal law. In their
examination of the Race Relations (Amendment) Act 2000, Field and
Roberts argue that a 'subtle but important shift' has taken place, whereby the
criminal justice system is becoming increasingly geared 'toward a more
interactive relationship between the individual rights of victims and their
families on the one hand, and collective interests on the other.'34 Since 1972,
criminal courts have been empowered to order an offender to pay a victim
compensation for 'any personal injury, loss or damage resulting from the
offence',35 and criminal courts are now obliged to consider whether it would
be desirable to make a compensation order and must give reasons for
refusing to do so.36 So too, the explosion in restorative justice initiatives has
presented victims with much greater opportunities to seek reparation directly
from the offender. In the last decade, such projects have become widespread
and have been placed on some form of a statutory footing in many
jurisdictions.37
This apparent breakdown in the public/private divide has not been
confined to the domestic arena. Advances in human rights and criminal
justice discourses on the international platform have guaranteed victims of
'non-state' crime similar human rights safeguards as the more 'conventional'
victims of abuse of state power. A key theme to have evolved in international

32 L. Sebba, 'Will the 'victim revolution' trigger a reorientation of the criminal justice
system?' (1997) 1 Israel Law Rev. 379, 399.
33 Weisstub, op. cit., n. 28, p. 206.
34 S. Field and P. Roberts, 'Racism and Police Investigations: Individual Redress,
Public Interests and Collective Change after the Race Relations (Amendment) Act
2000' (2002) 22 Legal Studies 493, 495. The Act provides for remedies for victims
of racial discrimination in criminal investigations.
35 The court may make a compensation order, instead of, or in addition to, any other
penal sanction. Where the offender has insufficient means to pay both, the court
shall give preference to the compensation order (s. 130(12) Powers of Criminal
Courts (Sentencing) Act 2000). The powers were originally set out in Criminal
Justice Act 1972.
36 s. 130, Powers of Criminal Courts (Sentencing) Act 2000: s. 130(4) of the Act states
that compensation 'shall be of such amount as the court considers appropriate,
having regard to any evidence and to any representations that are made by or on
behalf of the accused or the prosecutor, the Court.'
37 For an international overview, see D. Roche, Accountability in Restorative Justice
(2003) ch. 1.

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human rights discourse in recent years is that the state has a duty to enforce
domestic criminal sanctions against offenders, thus severely curtailing the
level of prosecutorial discretion in determining which crimes to prosecute.38
In many international criminal justice systems and human rights fora,
'victims' rights' are therefore increasingly being construed as a form of
human rights, worthy of legal protection within domestic systems.39 Perhaps
even more significant in the context of this article is that these norms grant
victims certain participatory rights in criminal proceedings, overreaching the
purist delineation of the functions of criminal and civil law. For example, the
United Nations Declaration of Basic Principles of Justice for Victims of
Crime states that judicial and administrative processes should allow 'the
views and concerns of victims to be presented and considered at appropriate
stages of the proceedings where their personal interests are affected.'40
Given that the accused has a right to counsel in many international human
rights instruments,41 it could be argued that the principle of 'equality of
arms' requires that complainants should be afforded similar protection
before the courts. This theme was highlighted by a recent United Nations
working paper that stated:
Looking at the rights of victims as a whole, the right to counsel seems the
logical complement of the defendant's right to counsel. There is no zero-sum
game between those two rights. The victim's right to be treated with respect
seems to have little if any negative implications for the offender.42

The provisions of the Rome Statute permit victims at the International

Criminal Court to choose their legal representatives, who have a right to
present their views and make submissions when their interests are likely to
be affected.43 Such views and submissions may be made at all stages of the
court proceedings with only the limitation that it would not be prejudicial or
inconsistent with the rights of the accused.44 In an era where globalization
and harmonization of criminal procedure seem set to continue indefinitely, it
is inevitable that domestic processes and policymakers and criminal justice
agencies will be increasingly influenced by such international developments.

38 See, generally, A. Mowbray, The Development of Positive Obligations under the

European Convention on Human Rights by the European Court of Human Rights
(2004).
39 J. Doak, 'Victims' Rights and the Criminal Process: an analysis of recent trends in
regional and international tribunals' (2003) 23 Legal Studies 1; F. Klug, 'Human
Rights and Victims' in Reconcilable Rights? Analysing the Tension between Victims
and Defendants, ed. E. Cape (2004).
40 UN Doc A/40/53 (1985). GA Res 40/43, para 6(b).
41 See, for example, Art. 6(3)(c) ECHR; Art. 14(3)(d) ICCPR; Basic Principles on the
Role of Lawyers, Principle 8.
42 United Nations, Offenders and Victims: Accountability and Fairness in the Criminal
Justice Process, UN Doc A/ CONF.187/8 (1999), para. 21.
43 See Art. 68, Rome Statute.
44 Art. 68(1). Many commentators are, however, sceptical of the potential effectiveness
of these mechanisms. See, further, Jorda and de Hemptinne, op. cit., n. 12, p. 1401.

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 STRANGE BEDFELLOWS: VICTIMS AND PUBLIC PROSECUTORS

Whilst it is clear that the rise of the victim agenda has af

formulation of policy and the direction of criminal justice discourse
the domestic and international contexts, its impact has been limited
common law systems. In the adversarial system of England and
victim's interests in criminal trials have traditionally been subsu
broader 'public' interest which is, in theory, safeguarded by the pro
However, there are clear signs that the conceptual collapse of t
private divide has encouraged both the Crown Prosecution Serv
General Council of the Bar to undertake a number of initiatives aimed at
forging a much closer relationship between prosecutors and victims. Such
initiatives would appear to be founded on the assumption that, if prosecutors
were to assist the victims in their preparation for testifying, this could
alleviate some of the stress associated with testifying and in turn lead to
better evidence.45 However, in addition to heightening the potential for
conflicts of interest, the path of reform has been uncertain and its ultimate
destination is still undetermined.
Traditionally, Crown prosecutors have not been obliged to represent the
interests of the victim. Instead, they have been expected to exercise a broad
discretion, strongly rooted in the public interest, in determining the extent to
which the wishes of the victim should influence both the charging decision
and the conduct of the case at court. The victim/prosecutor relationship has
nonetheless undergone a significant change over the course of the past
decade. In 1993 the Crown Prosecution Service (CPS) published its State-
ment on the Treatment of Witnesses and Victims and declared its intent to
make 'provision for the proper care and treatment of victims and witnesses
... an essential part of CPS initiatives'. Prosecutors were obliged, among
other things, to take into account the interests of victims and witnesses in any
decision to prosecute; inform the court where the victim has made a claim
for compensation; try to help victims and witnesses at court by giving
'appropriate and useful information'; introduce themselves to witnesses;
look after the interests of the witnesses as the trial progresses; and to explain
the results of cases, whenever possible, to victims at court. Following
recommendations made by Sir Iain Glidewell in his review of the service in
1998,46 and similar recommendations contained in Sir William
Macpherson's report into the death of Stephen Lawrence,47 the CPS has
assumed responsibility for communicating and explaining decisions to drop
or alter charges directly to victims rather than via the police.

45 Home Office, Achieving the Best Evidence in Criminal Proceedings: Guidance for
Vulnerable and Intimidated Witnesses, Including Children (2001).
46 Sir I. Glidewell, Review of the Crown Prosecution Service (1998; Cmnd. 3960).
47 Sir W. MacPherson, The Stephen Lawrence Inquiry: Report of an Inquiry by Sir
William MacPherson of Cluny (1999; Cmnd. 4262).

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 One of the most notable areas of reform relates to the degree of contact
victims ought to have with prosecutors prior to the trial. Although the Code
of Conduct of the Bar of England and Wales prohibits barristers from
discussing the evidence in the case with witnesses,48 it was altered in 1995 to
permit barristers to introduce themselves to witnesses prior to the trial.49
More recently, the role of the prosecution has also expanded so that pre-trial
meetings can now be accommodated in cases involving vulnerable witnesses
in order to 'to establish a link between the CPS and the witness and provide
witnesses with reassurance that their needs will be taken into account.'50
Where prosecutors believe that the witness may be eligible for special
measures under the Youth Justice and Criminal Evidence Act 1999, meetings
are now arranged prior to the trial in order to determine which measure(s)
should be the subject of an application to the court. However, the parameters
of such meetings are stringently set: their purpose is solely to determine
whether the quality of a witness's evidence might be improved by a Special
Measures Direction under the Act. It is still clear from the Home Office/CPS
guidance that any substantive issues relating to the evidence must not be
discussed:

It is imperative that there is no discussion whatsoever with the witness as to

the evidence in the case. It is quite possible that the witness will wish to
mention or discuss a matter relating to evidence but both the Bar Code of
Conduct and the Guide to the Professional Conduct of Solicitors make it clear
that there must be no discussion of evidence with the witness. Any such
discussion would be likely to lead to an allegation of rehearsing or coaching of
the witness ... If the witness does wish to discuss an evidential matter, the
prosecutor must explain that the witness must discuss his or her evidence with
the police officer, not the prosecutor, and that arrangements for this to happen
can be made.51

The rules regulating pre-trial contact are now set to be unravelled still
further. Following the report by the Director of Public Prosecutions into
issues arising out of the Damilola Taylor murder trial,52 the Attorney

48 See para. 6.3.1 of the Code of Conduct. Lay client, character, and expert witness are
exempt.
49 The change followed a recommendation from the Royal Commission of Criminal
Justice that the rule whereby prosecution barristers were prohibited from having any
contact whatsoever with witnesses to the fact should be relaxed (Royal Commission
on Criminal Justice, Report (1993; Cmnd. 2263) para. 50).
50 Home Office, Early Special Measures Meetings between Crown Prosecutors and
Vulnerable or Intimidated Witnesses (2001).
51 id., paras. 23-4.
52 The full findings of the CPS inquiry were never published, although a summary was
given through a press release. One of these issues concerned the extent to which the
CPS should have been able to conduct interviews with a 12-year-old girl, known as
Bromley, in preparation for her evidence. The DPP's inquiry expressed regret that
the prosecution was very limited in its ability to investigate the witness's story in
advance of the trial, and the inquiry concluded that the possibility of changing the
rules to allow for such meetings should be given careful consideration.

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General issued a consultation paper considering whether or not prosecutors
should be permitted to interview prosecution witnesses before trial.53 A
response to the consultation was issued in December 2004,54 and confirmed
radical reform to the rules governing pre-trial contact was indeed on the
horizon.
The Attorney General concluded that professional rules should be altered
to enable prosecutors to conduct pre-trial interviews where they consider
them necessary to confirm the reliability of a witness's evidence, or to clarify
the evidence which the witness can give. It was envisaged that the major
benefits of such interviews would include 'enabling prosecutors to form
better prosecution decisions, to clarify issues and to make witnesses more
comfortable with the trial process.'55 Although the Attorney-General
acknowledged concerns expressed by a number of bodies over the risks of
coaching and of potential blurring of the investigative and prosecutorial
elements of the criminal process,56 he considered that training for
prosecutors, coupled with 'detailed guidance' contained in the Code of
Practice, would be sufficient to safeguard against such concerns.57
The long-standing practice of not discussing evidence with witnesses in
England and Wales will thus be discontinued, and as such, the Bar's Code of
Conduct will have to be amended in the near future.58 It remains to be seen
how widely prosecutors will make use of the new discretion to interview
witnesses, although it can probably be assumed that such meetings will be
the exception, rather than the norm, and as such are unlikely to alter
dramatically the perception held by many victims that they are 'outsiders' to
the legal process.

The limitations of the victim/prosecutor relationship

While the increased recognition of the difficulties facing victims and

witnesses by the CPS is to be welcomed, there are clear limits as to how far
the rapport can be stretched. It has been a traditional maxim of common law
systems that the duty of prosecuting counsel is not to obtain a conviction at

53 Crown Prosecution Service, Pre-trial Witness Interviews by Prosecutors: A

Consultation Paper (2003).
54 Lord Goldsmith QC, Pre-Trial Witness Interview by Prosecutors: Report (2004).
55 id., p. 13.
56 See, for example, Criminal Bar Association, Response to 'Pre-Trial Witness
Interviews by Prosecutors, A Consultation Paper' (2003); Liberty's Response to the
CPS Consultation on Pre-Trial Interviews (2003). For a closer examination of the
issue surrounding 'coaching' of witnesses, see J. Grohovsky, 'Giving Voice to
Victims: Why the Criminal Justice System in England and Wales Should Allow
Victims to Speak Up for Themselves' J. of Crim. Law 416.
57 Goldsmith, op. cit., n. 54, p. 20.
58 At the time of writing, a working group is currently being established to consider
how best to pilot the proposals. Discussions are also to be held with the professional
bodies to consider how best to implement changes to their codes of conduct.

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all costs but to act instead as a 'minister of justice'.59 As Louise Ellison has
argued, there is an inherent tension in the idea of an objective 'minister of
justice' presenting evidence to the court dispassionately as part of the overall
public interest in pursuing a conviction, whilst at the same time performing
any sort of support or protective function in relation to the victim.60 Indeed,
empirical evidence would seem to reflect the view that prosecutors are
fundamentally unable to take into account effectively the private interests of
the victim whilst pursuing the public interest in the prosecution. Research
suggests that practice is still variable on the extent to which barristers
introduce themselves to complainants before trial and many victims continue
to feel as though prosecutors are uninterested in their cases and that their
interests are poorly represented in the court proceedings.61 Prosecutors are
also perceived as being less vigorous or energetic in the manner in which the
case was presented, but it is worth noting that even those who do strive to
secure a conviction are clearly limited in their ability to conduct their case
with the same degree of zeal as that of the defence.62
It is, however, the stress of giving testimony that is one of the most
significant factors in secondary victimization. It is well documented that
witnesses frequently report feeling harassed and badgered under cross-
examination, particularly in cases of rape or sexual assault.63 The character
of such victims is frequently called into question, and cross-examiners will
deploy a range of linguistic tricks in an attempt to 'trip up' the witness.64 It is
at this point in proceedings that the inadequacy of the victim/prosecutor
relationship manifests itself most clearly. In their survey of Scottish sexual

59 See, for example, R v. Banks [1916] 2 K.B. 621, where the court held, citing R v.
Puddick (1865) 4 F. & F. 497, 499, that 'prosecuting counsel should regard them-
selves as ministers of justice assisting in its administration rather than advocates'.
60 L.E. Ellison, 'A Comparative Study of Rape Trials in Adversarial and Inquisitorial
Criminal Justice Systems' (1997) 281-4 (unpublished PhD thesis, University of
Leeds).
61 See J. Temkin, 'Prosecuting and Defending Rape: Perspectives from the Bar' (2000)
27 J. of Law and Society 219; H.M. Crown Prosecution Service Inspectorate, A
Report on the Joint Inspection into the Investigation and Prosecution of Cases
Involving Allegations of Rape (2002) para. 11.34; Goldsmith, op. cit., n. 54; J.
Shapland, J. Willmore, and P. Duff, Victims in the Criminal Justice System (1985);
G. Chambers and A. Millar, Prosecuting Sexual Assault (1986); Victim Support,
Women, Rape and the Criminal Justice System (1996); Audit Commission, Victims
and Witnesses Providing Better Support (2003); Northern Ireland Statistics and
Research Agency, Victims' and Witnesses' Views on their Treatment in the Criminal
Justice System (2004).
62 Ellison, op. cit., n. 60. There are evidential rules that impede the scope of the
prosecutor's cross-examination of the accused. Admission of evidence regarding
previous convictions or bad character of the accused will only be permitted in very
particular circumstances under section 101 of the new Criminal Justice Act 2003.
63 See S. Lees, Carnal Knowledge: Rape on Trial (1996); I. Bacik, C. Maunsell and S.
Grogan, The Legal Process and Victims of Rape (1998).
64 See Ellison, op. cit., n. 17, pp. 94-8.

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offence trials, Brown et al. found that prosecutors will avoid frequent
objections to shield the witness from such character attacks, since too many
interventions are not regarded as tactically astute.65 It is broadly acknow-
ledged amongst practitioners that too many objections make a jury
suspicious and they may want to know what counsel is trying to hide.66
Besides, a physically distressed witness suffering at the hands of an overly
zealous cross-examiner for the defence could play into the hands of the
prosecution by winning the jury's sympathy for the victim. In particular,
there is evidence to suggest that some prosecutors believe that the
appearance of a visibly distressed child witness may make a jury more
likely to convict.67 Thus, in most cases, it would seem that the prosecutor
will only object to such questioning if it is expedient to do so.
Few would dispute the idea that prosecutors ought to exercise courtesy
and respect whilst dealing with victims, but it is not clear whether the
adversarial structures of the criminal hearing, or indeed the public interest
which underpins criminal prosecutions could accommodate any expansion in
the role of the Crown Prosecution Service. Ultimately, it would seem that the
imposition of additional duties and responsibilities on Crown prosecutors is
unlikely to be an effective means of safeguarding the interests and rights of
victims. The parameters of the trial dictate that the victim has no right to
ensure that his or her voice is heard. Even where victims do testify, their
words are limited in that he or she must only respond to the questions posed
by counsel, and has no right to respond directly where his or her character is
attacked by the defence. From the victim's perspective, he or she is largely
denied the opportunity of explaining consequences of an offence directly to
the court.68 This raises serious issues not only in respect of the extent to
which the system can be responsive towards protecting the rights and
interests of victims, but also in relation to the truth-finding potential of the
adversarial mode of trial. It might therefore be asked whether the victims or
their legal representatives ought to be able to exercise a right of allocution
within the criminal trial. This would save the prosecutor from having to
juggle two roles which are ultimately incompatible. The inquisitorial
systems of continental Europe may provide a useful insight into how such a
mechanism could work.

65 B. Brown, M. Burman, and L. Jamieson, Sexual History and Sexual Character

Evidence in Scottish Sexual Offence Trials (1992) 188, as cited by Ellison, op. cit., n.
60, p. 282.
66 See, generally, J. Glissan and S. Tilmouth, Advocacy in Practice: Being the Third
Edition of Cross Examination: Practice and Procedure (1998) 169.
67 Australian Law Reform Commission, Children's Evidence: Closed Circuit
Television, Report 63 (1992) para. 14.105.
68 Note that Victim Personal Statements, referred to above, are not released to the jury
and may only be used for the purposes of sentencing.

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 THE VICTIM AS A TRIAL PARTICIPANT:
THE INQUISITORIAL EXPERIENCE

Although there is no such thing as a 'prototype' inquisitorial system, most

European criminal justice systems are regarded as non-adversarial as they
place little emphasis on party control. Many make some sort of formal
provision for the participation of the victim within, and indeed beyond, the
trial process. Questions concerning the punitive aspects of the criminal
process are not divorced from the reparative elements of the civil process.
The same set of facts thus gives rise to a unitary process, which seeks to
uphold the rights and interests of the state, the victim, and the accused. Many
continental jurisdictions permit victims to join the criminal action instituted
by the state as 'subsidiary prosecutors' or, through using a partie civile or
'adhesion' procedure.69

1. Subsidiary prosecution

For example, in Germany, victims of certain serious offences or the relatives

of a murder victim may act as subsidiary prosecutors (Nebenkliiger).70 A
lawyer is often appointed for this purpose, although the cost will be borne by
the complainant unless the accused in convicted.7" The victim is entitled to
certain active participatory rights, including the right to be present at all
stages of the process; to put additional questions to witnesses; to provide
additional evidence/make a statement; or to present a claim for
compensation. The procedure thereby recognizes the special status of the
complainant as the alleged victim of the criminal offence, whilst ack-
nowledging at the same time the normative role of the state in prosecuting
crime. Thus the public prosecutor retains the burden of preparing and
presenting the prosecution, and there is no official relationship with the
auxiliary counsel.
Although some form of subsidiary prosecution has been an avenue open to
victims in Germany since 1924, it had fallen into virtual disuse until the rise of
the victim on the policy agenda in the 1980s.72 A survey by Kaiser et al.
conducted in 1989/90 found that subsidiary prosecutors participated in 14.3 per

69 It is ironic however, that unlike the English common law systems, continental
systems do not generally permit victims to pursue their own private prosecutions.
Some, including France and Belgium, do permit the victim to set the prosecution
process in motion where the ministere publique has declined to do so, through
issuing a summons for the accused to appear in court. Once this occurs, however, the
public prosecutor must take over (Brienen and Hoegen, op. cit., n. 8, pp. 1066-7).
70 id., p. 364.
71 R. Juy-Birmann, 'The German System' in European Criminal Procedures, eds. M.
Delmas-Marty and J. Spencer (2002) 302.
72 A. Sanders, Taking Account of Victims in the Criminal Justice System: A Review of
the Literature (1999) 12.

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cent of cases,73 and tended to play a predominantly passive role, only inter-
vening occasionally to request that additional evidence be taken or to appeal
against procedural decisions.74 However, where victims did make use of the
facility, most felt it had a positive effect upon their position within the system.75
Erez and Bienkowska evaluated the operation of a similar subsidiary
prosecution scheme in Poland, where the researchers found that over a third
of victims (36 per cent) whose cases went to trial acted as subsidiary prose-
cutors.76 However, the survey also found that the main reason mentioned by
victims for not exercising this privilege was that no one had informed them
of this right (49 per cent)77 As with those victims who had prosecuted
offences privately, higher satisfaction rates were recorded for those victims
who acted as subsidiary prosecutors than for those who did not.78
Although the procedure has the potential to help ease the plight of victims
testifying in criminal proceedings, it is clearly underdeveloped in both
Germany and Poland. Kury and Kaiser reported that 28.6 per cent of victims
stated that they would have liked to have participated in the trial had they been
made aware of their right to do so, and it would seem that, in general, victims in
Germany are ill-informed of their rights to participate as subsidiary
prosecutors.79 In one survey, a quarter of prosecutors stated that they 'never'
informed victims of their rights, and only one in ten stated that they 'always'
made such information available, as they are required to do under the law.80
Most prosecutors stated that their duty to give such advice was 'quite simply
forgotten' or that 'there was no suitable opportunity' to do so.81 The
researchers concluded that the majority of judges and lawyers retained a
negative attitude towards the procedure which they were unwilling to change.82
A more optimistic picture of the subsidiary prosecution procedure in
Germany was presented by Bacik et al. The authors found that the procedure
was used widely where the complainant is a victim of rape or sexual assault;

73 M. Kaiser, 'The Status of the Victim in the Criminal Justice System According to the
Victim Protection Act' in Victims and Criminal Justice: Legal Protection,
Restitution and Support, eds. G. Kaiser, H. Kury, and H.-J. Albrecht (1991) 604.
74 id., p. 605.
75 id., p. 602.
76 E. Erez and E. Bienkowska, 'Victim Participation in Proceedings and Satisfaction
with Justice in the Continental Systems: The Case of Poland' (1993) 21 J. of Crim.
Justice 47, 50. Note, however, that Andrew Sanders has suggested that this figure is
'misleadingly high' since there was a relatively low response rate to the survey
(Sanders, op. cit., n. 72, p. 13).
77 id., p. 50.
78 id., p. 51.
79 H. Kury and M. Kaiser, 'The Victim's Position within the Criminal Proceedings -
An Empirical Study' in Kaiser, Kury, and Albrecht, op. cit., n. 73.
80 H. Kury, M. Kaiser, and J.R. Teske, 'The Position of the Victim in Criminal
Procedure - Results of a German Study' (1994) 3 International Rev. of Victimology
69, 75.
81 id.
82 id., p. 76.

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it was estimated that up to 50 per cent of these complainants may make use
of it.83 However, while all those interviewed agreed that it could be
psychologically helpful for the victim to have his or her own lawyer present
during the trial, the researchers did express some concerns that, in many
cases, the victim's lawyer merely duplicated the role of the prosecution.84
The empirical research from continental jurisdictions would seem to
suggest that, while many victims would like to play such a role in the trial,
they are regularly prevented from doing so by the reluctance of the legal
profession to advise victims of their rights and push forward the interests of
the victim proactively. The main reason for this is that '[j]udges and prose-
cutors still regard the victim predominantly in his or her role as a witness,
whereas the victim wants to be regarded as a party to the proceedings.'85
Unlike the bipartisan nature of the adversarial trial, the structural framework
of the inquisitorial system would facilitate a proactive role for the victim
without much difficulty. The problem with the procedure is thus essentially
an attitudinal one: victims are still perceived as outsiders to the criminal
hearing. Bacik et al. suggest that the victim is often conceived as some sort
of 'assistant' to the prosecutor,86 which could prove extremely problematic
where the interests of the victim and the prosecution diverge.

2. The adhesion/partie civile procedure

One possible way of sidestepping the particular difficulty highlighted by

Bacik et al. may be to accommodate the victim's counsel as an individual
party to the proceedings, distinct from the prosecution, and capable of
exercising a protective role within the trial whilst at the same time pursuing a
reparative claim. An alternative model which allows for this is commonly
referred to as the 'adhesion' or 'partie civile' procedure.
Participation of the victim as an independent civil party bears some
similarity to the subsidiary prosecution model, although it has a distinct
advantage in that it acknowledges the victim's status as a separate party to
the trial. The procedure is relatively commonplace in France and Belgium,
where the victim must formally demonstrate his or her intention of
becoming a party to the proceedings by initiating an independent action
before the juge d'instruction (constitution de partie civile) at any stage in
the proceedings.87 The procedure confers three important rights upon
victims of crime. First, they can use the procedure to initiate a prosecution;
secondly, they have the right to participate and be heard as a party in any

83 Bacik et al., op. cit., n. 63, p. 68.

84 id.
85 Kury and Kaiser, op. cit., n. 76, p. 606.
86 Bacik et al., op. cit., n. 63, p. 68.
87 Sebba (op. cit., n. 32, p. 406) cites a 1991 survey which found that it was regularly
used by a third of victims.

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prosecution; and thirdly, they have a right to pursue a claim for civil
damages in the criminal action.88
However, while there is evidence to suggest that parties do exercise the
right to be heard and pursue civil claims, it appears that victim-initiated
prosecutions in France are rarely invoked and depend heavily on the
discretion of the examining magistrate.89 From the outset of proceedings, the
victim can insist that the examining magistrate investigates and documents in
the dossier any civil claim for damages. Participation within the trial tends to
be limited to the pursuit of the civil claim, although the partie civile (or their
legal representative) has the power to examine witnesses and make sub-
missions relevant to the defendant's guilt. He or she also has a right to give a
closing argument, although no intervention is possible while the victim is
undergoing questioning.90 Various appeal mechanisms are also open to
victims where the judgment has negatively affected their civil interests.91
Similarly, the German 'adhesion' procedure, distinct from the subsidiary
prosecution described above, confers similar participatory rights to the victim
and also makes it possible for civil damages to be claimed within the criminal
action.92 A civil claim may be made through notifying the clerk of the court: it
is not necessary for victims to attend the trial or be legally represented.93

3. Potential benefits ofparticipation

This sort of participation should, in theory, reap benefits both for victims and
for the criminal justice system more generally. The ability to pursue civil
damages in the criminal trial should, in theory, improve speed, cost, and time
involved given that both civil and criminal issues are resolved in the same
forum. In addition to improved efficiency of both the criminal and civil
justice systems, there are a number of advantages that would be specific to
the complainant. Under a unitary system, the civil party can have a 'free
ride' on the evidence at the criminal trial,94 which should guarantee victims
some tangible or symbolic compensation.95 The victim would not, therefore,

88 R.S. Frase, 'Comparative criminal justice as a guide to American law reform: how
do the French do it, how can we find out and why should we care?' (1990) 78
California Law Rev. 538.
89 id., p. 615.
90 Bacik et al., op. cit., n. 63, p. 59.
91 Jorda and de Hemptinne, op. cit., n. 12, p. 1401.
92 ss. 403-406, Stafprozeordnung (Criminal Code).
93 M. Kaiser and M. Kilchling, 'Germany' in Compensating Crime Victims, ed. D.
Greer (1996) 265.
94 R. Lerner, 'The Intersection of Two Systems: An American on Trial for an American
Murder in the French Cour d'Assises' (2001) University ofIllinois Law Rev. 791, 815.
95 Providing, of course, that the accused is found guilty. Furthermore, the actual
amount of compensation seems to be a secondary concern of many victims, who
seem more concerned about whether the offender has made a personal contribution
to the compensation. See Shapland et al., op. cit., n. 61, p. 67.

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have to testify again under stressful adversarial conditions in order to obtain
full compensation in the civil courts.96 Bacik et al. noted a number of key
advantages for complainants in the rape cases they observed. The researchers
found that participants with some form of legal representation experienced
fewer difficulties in obtaining information about case developments; had a
clearer understanding in relation to their role at trial; reported higher levels
of confidence and articulateness when testifying; experienced less hostility
from the accused's lawyer; and were much more satisfied with their overall
treatment within the legal process.97 It would therefore appear that offering
victims some form of acknowledged and formal role at the trial should
enhance their sense of satisfaction with the criminal justice system, and serve
to combat the sense of powerlessness that many have reported during
criminal proceedings.98 In turn, more victims might be encouraged to report
crimes and cooperate with the police and prosecution authorities.
Aside from these specific benefits to victims, there are conceivable
advantages for the criminal justice system as a whole. Victim involvement in
the trial could provide an important contribution to the wider values of
criminal justice, in promoting truth-finding in criminal proceedings. It is
ironic that the person whose complaint was instrumental in bringing the case
to court is denied the right to participate as a separate player in proceedings,
but must instead play an extremely limited role in so far as they may only
testify if called by the prosecution, and may only relay information to the
factfinder within the questioning parameters laid down by counsel. As the
alleged victim of the offence, it would seem logical that the complainant is
best placed to give an account of the circumstances of the offence in his or
her own words, notwithstanding more general problems of witness testimony
such as vagaries of memory and the fact that not all complainants may tell
the truth.99 The injection of the victim's perspective could lend additional
transparency to the outcome of the case, and, as Telford and Walker point

96 Even if a victim does pursue compensation through the civil courts, the vast majority
of offenders will have very limited resources and so would be unable to pay out
damages which victims may seek, particularly for serious offences against the
person. Greer has noted that one of the main reasons for the establishment of state
compensation schemes was the inability of victims to obtain compensation directly
from offenders. He argues that, overall, the 'amount of compensation ... obtained by
victims of crimes of violence through the criminal process in one form or another
appears to be comparatively modest.' (D. Greer, Compensation for Criminal Injury
(1990) 221.)
97 Bacik et al., op. cit., n. 63.
98 See, also, Kury and Kaiser, op. cit., n. 76; Erez and Bienkowska, op. cit., n. 73, pp.
39-40. A study of victims in the Dutch criminal justice system has also suggested
that many victims feel that procedures which even allow passive participation in the
criminal trial carry a certain symbolic importance for many victims which, in turn,
can reduce feelings of exclusion and unfairness. (J. Webbers, 'Victims in the Dutch
Criminal Justice System' (1995) 3 International Rev. of Victimology 323, 339.)
99 Jorda and de Hemptinne, op. cit., n. 12, p. 1400.

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out, the broad notion of participation as a basic value of the criminal justice
system could serve to enhance its overall legitimacy:
Participation is clearly an important concept in criminal justice as an
instrument for assisting in the achievement of other ultimate objectives. For
example, without the involvement of the public in reporting crime the criminal
justice system would be fatally handicapped in its pursuit of the security
objective. Similarly, participation in the criminal process also serves to
legitimise the system by engaging interested, and often aggrieved parties in
resolving a dispute, or as a form of external audit to help ensure equitable
procedures ... [T]he concept of participation, in the sense of involvement in
the public life of the community and polity with the sense of dignity and
personal respect which this brings, is also a good in itself. Furthermore, insofar
as there is a non-state or informal sector in criminal justice, participation is a
key good in this context also, again both as a means of securing other key
objectives and in its own dignitarian terms.100

Similarly, Weisstub has argued that the civil justice system could also
benefit from 'infusing itself with the symbolism of criminal sanctions,
thereby showing itself to be 'consonant with public morality and
conscience."'1 There are also various economic arguments that could be
used in support of this view: reparative sentences significantly lessen the
financial burden on the taxpayer and a corresponding reduction in separate
civil claims could reduce litigation in the courts.102
In spite of the apparent advantages that a participatory model of criminal
justice may bring, it seems that practitioners in at least some inquisitorial
countries are reluctant to grapple with the inevitable complexities that arise
from a procedure that attempts to resolve both civil and criminal issues in a
unitary action. Kaiser and Kilchling have reported that the adhesion pro-
cedure is 'very unusual', and suggest while it is widely recognized, it attracts
insufficient legal fees for attorneys and a majority of jurists regarded it as an
'alien body' within criminal procedure.103 Similarly, Frehsee has noted:
Lawyers who specialise in criminal law do not like to deal with civil law
matters; they do not like to be misused as civil executory officers ... [T]he
procedure is not routine; its management and control are rather awkward and
ineffective.104

The lack of a contest-based structure in inquisitorial trials should mean that,

in theory, there should be few difficulties in accommodating direct input
from victims in the trial as compared with the severe logistical difficulties
that would be encountered in attempting to integrate the procedure into a

100 N. Walker and M. Telford, Designing Criminal Justice: The System in Comparative
Perspective, Report 14, Review of the Criminal Justice System in Northern Ireland
(2000) 10.
101 Weisstub, op. cit., n. 28, p. 207.
102 L. Zedner, 'Reparation and Retribution: Are they Reconcilable?' [1994] Modern
Law Rev. 228, 233.
103 id., 561.
104 Frehsee, op. cit., n. 13, p. 242.

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common law environment. The fact that inquisitorial proceedings are judge-
led, as opposed to party-led, indicates that the participation of a third party
would be much less problematic, and would be much less likely to be seen as
a factor that could potentially endanger the equality of arms.
Unfortunately, the theoretical potential of the inquisitorial system to
accommodate the victim as a party to proceedings is partly impeded by the
way in which systems of participation operate in practice. There appears to
be an institutional reluctance to use and develop such procedures so as to
bring tangible benefits to victims. Victims are still viewed as outsiders to the
criminal process in many inquisitorial jurisdictions; as Brienen and Hoegen
report, their interests are as still widely viewed as 'strongly subordinate' to
the determination of the offender's guilt.105 In both the adversarial and
inquisitorial systems, practitioners and policymakers appear reluctant to
alter, develop or resource procedures that are capable of giving the victim a
greater role at the trial. The orthodox conception of the criminal trial as a
public forum dominated by the state prevails in both systems, and this
representation has severely constrained the potential for victim participation.

CONCLUSIONS

There is much that can be learnt from continental systems conce

type of structures that would need to be put in place before the vict
participate effectively within a criminal hearing. There is, how
obvious disparity between legal rules and actual practices in the c
systems where participation mechanisms already exist. Thus, ev
structures and processes of the criminal justice system were to conti
current drift into uncharted inquisitorial waters, the attitudes of cr
purists and the working culture of the Bar could still act as sig
barriers to meaningful participation by victims in criminal trials.
It may be the case that, through the much-vaunted process o
ization, the growing international interest in restorative and div
processes will eventually exert much greater influence on the dev
of both inquisitorial and adversarial systems. There has been in
evidence of an emergence of something approaching an internati
sensus on best trial practice over the past decade in terms of th
structures, and procedures that underpin the criminal process.106

105 Brienen and Hoegen, op. cit., n. 8, p. 1069. Brienen and Hoegen mad
findings in relation to Austria, Turkey, and Greece.
106 See, generally, N. Jorg, S. Field, and C. Brants, 'Are Inquisitorial and A
Systems Converging?' in Criminal Justice in Europe, eds. C. Harding, P. F
J6rg, and B. Swart (1996); D. Amann, 'Harmonic Convergence? Const
Criminal Procedure in an International Context' (2000) 75 Indiana Law J
an overview of convergence in penal policy generally see T. Jones and T.

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national human rights and criminal justice discourse increasingly converge,
the stark delineation of civil and criminal law, as well as 'public' and
'private' interests as discrete entities, is becoming less marked. Traditional
power structures and the organization of society are undergoing a sea-
change, against the backdrop of increased emphases being placed upon
individual rights, public service values, and the concept of a proactive, civil
society.107 As suggested above, the very concept of victim participation
would appear to be a direct corollary of a modem, liberal criminal justice
system that purports to follow emergent trends in best practice.
In specific relation to victims' rights discourse, there appears to be a
consensus that the effective resolution of criminal disputes requires that crime
is not only viewed as an offence against society, but also as a dispute between
the victim and the offender.108 Restitution and reconciliation are increasingly
being mainstreamed as values that ought to be safeguarded by the criminal
process. Punishment, it seems, is being increasingly sidelined in favour of
restorative-based models which emphasize reparation and participation,109
signalling a shift in criminal justice discourse away from the neat dichotomy
which has traditionally separated public and private interests.
Of course, such challenges to the traditional punitive paradigm are riddled
with priority-based conflicts, concerning, for example, whether compensa-
tion ought to take priority over any punitive sanction, or whether (and in
what precise circumstances) the victim's interest can prevail over the
collective interest. It was noted above, for instance, that the victim's interests
in how the criminal trial is conducted may well conflict with those of the
prosecution, in which case they will automatically be laid to one side for the
public good. In advancing the idea of victim participation in the trial, the
need for certainty dictates that such questions are thoroughly addressed, but
it does not necessarily assert that entirely separate legal structures are
necessary to safeguard public and private interests effectively. As Van Ness
has argued, the key question relating to victim participation is not how to
avoid conflicts between competing interests, but how to manage them
effectively, so that as many of the competing interests as possible are
accommodated in a principled manner.110

'Policy Convergence and crime control in the USA and the UK: Streams of
Influence and Levels of Impact' (2002) 2 Crim. Justice 173.
107 Faulkner, op. cit., n. 3, p. 344. See, more generally, M. Ryan, Penal Policy and
Political Culture in England and Wales (2003), especially 75-107; N. Bardouille,
'The Transformation of Governance Paradigms and Modalities: Insights into the
Marketization of the Public Service in Response to Globalisation' (2001) 6
Georgetown Public Policy Rev. 155.
108 Doak, op. cit., n. 39, p. 31.
109 See S. Walther, 'Reparation and Criminal Justice: Can they be integrated?' (1996)
30 Israel Law Rev. 316, 320-2.
110 D. Van Ness, 'A Reply to Andrew Ashworth' (1993) 4 Crim. Law Forum 301, 304.

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 One of the major challenges for criminal justice in the next decade will be
the task of redefining the developing relationships between the victim, the
accused, and the state in such a way that takes on board current trends in
human rights and criminal justice discourse towards a more inclusive model
of criminal justice. While the determination of guilt should always be the
focus of criminal trials, since the risks of injustice are not the same for the
victim and the defendant, the accused must always be at the centre of
proceedings."1' However, this does not mean the criminal justice system
should not take account of other interests or other objectives. Spencer argues
that a key subsidiary aim of proceedings should be to inflict 'as little pain as
possible ... to everyone concerned'.'112 While the interests of certainty and
public policy require that decision-making is always exercised by a non-
partisan adjudicator, it does not necessarily follow that any input of the
victim should be incapable of being considered as one of many factors in this
process. Giving victims of crime the opportunity to tell their story in their
own words in a secure and relaxed atmosphere is not only necessary to
protect the interests of individual victims, but it also has the potential to act
as an indispensable aid to truth-finding. In doing so, this should serve not
only the interests of victims, but also the integrity of the criminal justice
system as a whole.

111 J. Jackson, 'Putting Victims at the Heart of Criminal Justice? The Gap Between
Rhetoric and Reality' in Cape, op. cit., n. 39, p. 70.
112 J. Spencer, 'Criminal Procedure: The Rights of the Victim versus the Rights of the
Defendant' in id., p. 37.

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