A renewed regard for the needs of victims of crime, both in service and procedural senses (see Ashworth 1993; Fenwick 1997), requires but a small further step to reach the idea that these newly enfranchised victims should be given some input into the decision-making processes of the criminal justice system. In May, 2000 the then Home Secretary, Jack Straw, introduced the Victim Personal Statement Scheme (VPSS). The ambit of the scheme was somewhat unclear and its objectives, which were subject to political and media speculation, were similarly vague. In February 2001 the Home Office announced that £4.6 million has now been allocated from the CJS Reserve for the introduction of VPSS nation-wide in October 2001.

This article will examine existing and projected definitions of victim in the light of the prevailing paradigm of victimhood. It will expose the lack of fit between the reality of criminal victimisation and the likely constituency of the VPPS. It will then go on to consider the possible effects upon equality in criminal justice if an ill thought-out scheme is implemented without a careful analysis of its foundations and implications. It will suggest that the approach which advocates victim input into decision-making can lead to polarisation, and aids a construction of the criminal as ‘other’ which makes the imposition of exclusionary penalties easier. A further divisive aspect of the Scheme is that there will be a large number of crimes for which such input will be either impossible or unacceptable. It is possible that any ‘success’ of the VPSS will depend on a restricted and unrepresentative definition of victim. The potential exists for the development of a dual or two-track foundation for decision-making depending on the nature of the crime and the parties involved, disadvantaging some defendants while creating a ‘privileged’ category of victim. This could also promote an unbalanced perception of the reality of crime.

It is widely accepted as self-evident that victims have latterly been marginalised in criminal justice policy and procedure and that fairness and efficiency demands restoration of their ‘rightful position’. The formal use of victim input in decision-making was suggested by the Victims’ Charter (1996) and subsequently six pilot areas were established by the Home Office for a trial of Victim Impact Statements (VIS) in both magistrates’ and Crown Courts (see Hoyle et al 1998). Analysis of the outcome of the pilots reveals a certain degree of confusion and lack of direction in implementation: ‘There is an ambiguity concerning the intended effect on sentencing, and therefore an ambiguity concerning the objective of the scheme as a whole’ (see Morgan and Sanders, 1999, p1; Hoyle et al 1998). This did not, however, stem the flow of endorsements for victim input. These calls came from victims themselves (although Victim Support has been cautious on this issue), potential victims in the wider community, politicians and key figures in criminal justice (see Pollard 2000).

The format and scope of the VPSS will reflect the outcome of the six pilot schemes for VIS. They provided that all victims of certain offences were to be invited to participate: domestic burglary, domestic violence, assault occasioning grievous bodily harm (Offences Against the Person Act 1861 ss.18 and 20), sexual assault, robbery, criminal damage over £5,000, racially motivated offences and attempting or conspiring to commit any of these offences (see Hoyle et al 1998, p 6). The pilots also included indirect victims of the above crimes, to the extent that family members and the parents of children sometimes made statements on their behalf (see Sanders 1999, p 9). Researchers noted the degree of discretion possessed by police administrators in identifying offences as coming within the criteria; further, that some victims who fell within the criteria were not invited to participate and vice versa. For one police force ‘Examples given of inappropriate cases for invitations to be sent included “soldiers fighting”, domestic violence cases that were “likely to be settled”, or “known criminals fighting over drugs” ‘ (see Hoyle et al, 1998, p 36). It will be seen that the excluded examples do not fit the victim paradigm nor are they consistent with a simplified approach to criminal justice in which the ‘good’ and ‘bad’ are clearly delineated. When he announced the Scheme in May 2000 Straw proposed that the right to make a statement be ‘...available to any individual victim of crime, and others including relatives and partners in homicide cases, parents of children who are victims and small businesses’.

In ‘Criminal Justice: The Way Ahead ‘ (Home Office 2001) the following guidelines for the VPPS were set out:

Para 3.114 From October 2001 we will be introducing victim personal statements. Victims (including bereaved relatives in homicide cases) will be able to give a statement in their own words to the police saying how the crime has affected their lives. These statements then may be used throughout the criminal justice process. For example, they might trigger the provision of support services or be used to register whether the victim wants to be kept informed of case progress.

Para.3.115 In cases that proceed to arrest and charge, victim personal statements could be used by the CPS in bail applications; to inform decisions about the suitability of charge; to judge the strength and credibility of charge; or to be rebut false claims made by the defence in mitigation. Where a case is before the court, the statement could be used by the prosecutor at the point of sentence, for example to draw the court’s attention to its powers to order compensation. The victim personal statement will also be made available to other criminal justice agencies after conviction. Thus the Parole Board might use a statement to inform its decision on parole.

Similarly, the draft Victims’ Charter of February 2001 has its own definition of ‘victim’ which specifically excludes large companies, businesses and corporations and witnesses of serious offences. Consultation is invited on whether victims of traffic incidents should be included (paras 14-16).

Impact on sentencing was one aspect of the VIS trialled in the pilot schemes (see Hoyle et al 1998; Sanders et al 2001, p 447) The extent to which the Government envisages that VPS will be taken into account in sentencing under the new Scheme has not been specifically stated; however it is hinted at (certainly not ruled out) in the above guidelines. The Times on 5 May, 2000 reported Jack Straw’s announcement in a piece entitled ‘Victims of crime to help punish offenders.’ It read: ‘”It [the VPS] will be passed to the courts and be taken into account in sentencing,” said a Home Office source.’ The fact that the victims’ statements are to be about ‘how the crime has affected their lives...’ could be interpreted as indicating that there is no intention that the victim comment directly upon their sentencing preference; however a less direct influence is not excluded.

A cautionary tale for proponents of victim involvement in decision-making comes from the United States, where policy and legal orientation to the demands of the victim movement is well established. All 50 states have legislation dealing with victims’ rights, a number going so far as to allow the victim input (often presented orally in person) at the sentencing stage, commenting directly on the sentence. A particularly emotive use of this right to allocution comes during capital trials, where the jury may hear from the survivors of a homicide, not only about the effect the crime has had on them, but on the attributes of the deceased (often contrasted with those of the defendant). The appropriateness of bringing such emotional elements into the legal arena has been extensively questioned on both sides of the Atlantic (see Ashworth 1993, 2000; Bandes 1996).

In describing the narrative nature of victim statements, Bartlett reports: ‘The questions, as always, are: who gets to tell the story and what agenda will the telling serve.’ (see Bartlett 1987, p 762). This article will first consider ‘who gets to tell the story...’. In doing so, it will demonstrate the difficulty of ascertaining a constituency for victim impact upon decision-making which is workable, avoids unfair prejudice against the defendant and does not exacerbate social divisions implicated in the causes of crime. Answers to the first question are inextricably linked to a second issue: what agenda is to be served? Because the second should determine the first, the lack of a clear answer to this means that at this stage we are living with a constituency of story-tellers which is both inchoate and problematic. The empowerment of victims is a social, political and legal trend which may be not only difficult to implement and rationalise in our present legal context but is also a force whose full implications have not been appreciated. Focus on the issue of definition will make this potential more evident.

A paradigmatic conception of the victim has evolved, inevitably influencing more formal definitions which have been articulated in various policy and institutional statements, including the VPS. Characteristics with which the paradigm bestows the victim are innocence, passivity, vulnerability, individuality, integrity and articulacy. These characteristics contrive to attain sympathy for the victim, making his voice deserving of attention, trustworthy, relevant to decision-making and a counter to any case being put forward by or on behalf of an offender. Nils Christie described the ‘ideal victim’ as ‘ ... a person or a category of individuals who – when hit by crime – most readily are given the complete and legitimate status of being a victim’ (see Christie 1986, p 18).

‘“Victim” suggests a non-provoking individual hit with the violence of “street crime” by a stranger... The image created is that of an elderly person robbed of her life savings, an “innocent bystander” injured or killed during a hold-up or a brutally ravaged rape victim’ (see Henderson 1985, p 951). The victim must be seen as innocent so that there is no moral confusion about his role in the crime or about that of the perpetrator. Young recounts a restorative cautioning case, in no way unique, in which the ‘complex background to an offence called the very labels “victim” and “offender” into question’ (see Young 2000, p 244). A clearly blameless position may not be available to someone who can in any way be construed as having provoked a wrong, for example a rape victim dressing suggestively or a young man starting a fight outside a pub. Someone with criminal or other deviant proclivities, perhaps a prostitute or a drug user, will not easily be identified with or seen as deserving of recognition by the ‘law-abiding’ public. The ‘ideal’ crime is envisaged as sudden and without earlier interaction between the parties which could muddy the waters of blame. Similarly, Shapland cites passivity as forming part of the ideal victim identity (see Shapland et al 1985).

Vulnerability is a concomitant of innocence, which can often be linked to individuality. The cliche of the ‘old lady’ personifies extreme vulnerability - as a victim she embodies our worst fears, despite the fact that age and gender are often unrealistically perceived in stereotypes of victimisation: ‘ideal victims do not necessarily have much to do with the prevalence of real victims’ (see Christie 1986, p 27). The corporation is a collective which, unlike us, cannot suffer pain and, more importantly, is seen to be strong, well able to cover its losses, and may even be a focus for public envy or resentment. ‘A computer corporation whose trade secrets are stolen or a discount store which suffers from petty pilfering is not encompassed by the “ideal” conception of victim’ (see Henderson 1985, p 951). The policy of personalising and individualising the effects of crime can be seen in the fact that large companies or businesses will be specifically excluded from the new scheme.

The paradigm presupposes that the victim’s story has a degree of integrity. Similarly, the VPPS must be predicated upon the veracity of the statements. In the English pilot projects, Sanders concluded: ‘All respondents [practitioners: prosecutors, magistrates, judges and solicitors] thought that most victims were honest, although around half...conceded that some victims probably exaggerated.’ (see Sanders 1999, p11). There will be certain expectations of how the victim’s message is imparted. The victim should be strong enough to be listened to or dare to speak up but at the same time be weak enough not to become a threat to other important interests, thereby threatening the sympathy which the victim must elicit (see Weed 1995).

The paradigm perpetuates a simplification and individualisation of the phenomenon of crime. Young observes, ‘...the rise of concern for victims has...generated a simplistic image of crime as something committed against an individual identifiable victim’ (see Young 2000, p 229). He further asserts that this view is intrinsic to the idea of restorative justice. The flesh and blood individual has his own account of suffering. But as Young so vividly states: this picture ‘...fails rather miserably to capture the murky morality of many offender-victim interactions’ (see Young 2000, p 233). Sebba links what he sees as the individualisation of the victim to a victim-rehabilitation model of criminal justice – its rise mirroring the decline of offender individualisation (see Sebba 2000, pp 58-61). A by-product of individualisation is de-politicisation (see Crawford 2000, p 22). When only the microcosm of crime is considered, as an isolated event between two individuals, the structural causes with wide-ranging implications for policy and resources are excluded from view. This is, of course, convenient when there is no political will to take on these complex and, to some, threatening issues.

The process of construction of the paradigmatic victim at the same time serves to construct the other half of the dyad: the criminal. ‘Ideal victims need – and create - ideal offenders. They are interdependent’ (see Christie 1986, p 25). In his phenomenology of survival, Rock observes the process of simplification of crime by survivors of homicide. In portraying the victim and killer, they construct binary opposites through positive and negative archetypes: us and them; good and bad. To make sense of his loss the survivor must ‘trace a firm line between the victim and the offender’ (see Rock 1998, p 195). In what is often referred to in the United States as the ‘glimpse of a life’ which was extinguished, the perfection of the victim must be matched by the total imperfection of the perpetrator. ‘Victims cannot and must not be muddled with the offender, their very antithesis’ (see Rock 1998, p 196).

In a practical way survivors match victims’ entitlements with what they perceive the offender receiving in terms of attention, rights, resources and care. The debate over services is conducted in what Rock portrays as an awkward dialogue between professional (rational, cool) and survivor (impassioned, hot) as contrasts are repeatedly drawn between outcomes for the offender and victim. Such a reductive analysis may have a real therapeutic function for the survivor but any institutional recognition of this perspective must be questioned both in terms of accuracy and objectives. In the American debates, the effects on the sentencing process have been observed. ‘When the victim is introduced into the process, the emphasis can shift from defendant to victim. The sentencer is then implicitly encouraged to weigh the relative blameworthiness of the offender and the victim’ (see Hellerstein 1982, p 398). Points of contact and commonality between victim, idealised in death, and offender are overlooked or, according to Bandes, excluded. There is no reason to believe that similar patterns are not repeated with less serious crimes than homicide. This process which, according to Garland, contributes to the construction of the ‘criminology of the other’, will be further elaborated below (see Garland 1996). It is a key aspect of the divisive potential of the VPPS.

Constructing the victim and the criminal also constructs an understanding of crime itself. ‘The meanings of crime and criminals’ have long been recognised by sociologists as ‘emergent, contingent and synthetic...How people suffer, perceive and respond to crime shapes its trajectory and its political and practical environments’ (see Rock 1998, p 186). Miers describes crime as the by-product of stereotyping social ‘conventions’ (see Miers 2000, p 79). Christie has reflected on the way the changing status of women impacted upon perceptions of the seriousness of victims of domestic violence – eventually leading to the criminalisation of marital rape (see Christie 1998). A new category of victims has been acknowledged and therefore created. A widening of the remit of the VPPS to the killings of terrorists or corporate wrongs could raise awareness of the subtle ‘decriminalisation’ process such events may have previously undergone.

Adherence to the simplified and inaccurate paradigm can be seen in some of the early institutional responses to victimisation. The Criminal Injuries Compensation Scheme bases eligibility for compensation upon having sustained personal injury (including mental trauma) directly attributable to a crime of violence or the apprehension of an offender or the prevention of an offence (CIC Act 1995, para 8). Its concept of the ‘deserving victim’ for the purposes of this type of service provision prescribes reductions or exclusions based on conduct of the claimant (such as striking the first blow in a fight) or character of the claimant. An excluded claimant might be a terrorist or gang member or just ‘not the sort of person deserving of compensation’ (see Cane 1993, p 264). The implications of the same individual making a VPS while being excluded from the Criminal Injuries Compensation Scheme may not yet have been considered.

Victim Support has traditionally offered its services to victims of personal and household crime (see Miers 1992). It began in Bristol in 1973 with victims of burglary (see Mawby and Walklate 1994) and even by 1986 still only 8% of its clients were victims of violent crime. Victim Support has now shifted its emphasis to domestic violence, homicide, rape, stalking and racial harassment. It has been suggested that an organisation with a high political profile, and endorsing the belief that ‘...victims and witnesses should be treated with respect and consideration’ (see Reeves 2000, p 125), would not want to be ‘tainted by association with “undeserving” victims (offenders) or involved in areas which were inimical to law and order policies’ (see Koffman 1996, p 27).

So the ‘ideal victim’ is vulnerable, passive, sympathetic, individual, different from offender, honest and convincing. While estimations of the practical ambit of the VPSS can only be speculative, it can be assumed that it is at least partly premised on the idea that some objectives of the criminal justice system, however unarticulated, will be furthered by hearing the victims’ stories. It is most likely that the paradigm described above will prevail in the implementation of the VPPS. However it will be seen that often crime does not involve an identifiable victim and, even when it does, his or her story may not be one which policy makers actually want to hear, nor of any assistance in making decisions. Below, the types of crime and victim which are outside the paradigm and therefore unlikely to be covered by the Scheme will be highlighted.

A large number of victims fall outside the paradigm and possess characteristics which make them extremely unlikely candidates for inclusion in the VPPS. Information gleaned from the pilots suggests that discretion in inviting victims to make a VPS would be exercised so as to exclude many of those in the categories considered below.

The paradigm does not easily accord victim status to those who are not perceived as vulnerable, passive or worthy of sympathy and belief. They may be seen to have culpably contributed to their misfortune or, as in the case of large corporations, may be thought well able to shoulder their losses. In this category would fall those understood by the public to have questionable character⁽¹⁾ or criminal backgrounds including prisoners, victims of police maltreatment, or ‘deviants’ such as drug addicts, prostitutes and paedophiles. Potentially encompassed would be groups such as the homeless and activists representing unpopular causes. The family and friends of an offender, whose suffering due to a criminal conviction could be extensive, might be similarly tainted (see Young 2000). Fighting amongst young men, particularly drink-induced or football-connected, would be unlikely to inspire an effort to discover victim impact. The victims of crime described above are unable to be placed in diametric opposition to the offender. Many are seen to be indistinguishable from, or in some cases, than the offender.

Remembering that the ‘ideal’ victim must be honest and trust-worthy, there are those whose account of the impact of crime might be suspect. This could be for reasons of character, as outlined above. Also included are those seen to have their own interest to serve in their account of events. In this category would be those with a history of prior involvement with the offender: victims of domestic violence and some sexual offences, and participants in consensual but criminal activities such as employees and passengers in driving offences. Others could be thought to have their own criminal agenda as in a case concerning organised crime. These victims might be suspected of telling a biased story motivated by seeking self-publicity, vengeance or even mitigation for the defendant. They would not easily be accorded victim status.

Some victims, even when they do partially fit the paradigm, will be unable to have a constructive input into the sentencing process due to incapacity or unwillingness to communicate. We have seen that the paradigm assumes articulacy. A significant victim constituency which is unlikely to be heard directly is composed of children,⁽²⁾ those suffering mental illness or handicap and those who are severely injured. Language and other communication limitations such as illiteracy will cause difficulties which can probably be overcome. Unwillingness to communicate or contribute to the process, however, will be a significant factor. Obviously those unable or unwilling to identify themselves as victims will not be heard from by the criminal justice system. It must be remembered that the status of victim is not one which is universally sought and embraced (see Miers 2000). Both the bestowing and accepting of the identity brings with it connotations and implications. ‘...to be a victim means to suffer in a way that particularly conforms to a social definition of a victimising event’: ‘the determination of victim status is a social process which may conform or conflict with self-identification’(see Ziegenhagen 1978, p 17). Of the factors which will skew ‘who gets to tell the story’, the subjectivity of who is asked is matched by who takes up the offer. The latter are a self-selecting minority. In the pilots, 30% of eligible victims opted to make a statement (see Hoyle et al 1998). The reasons behind these decisions are outside the scope of this article but research indicates that there will be an atypical or biased nature to the proportionately small number of statements which are received by the courts (see Finn-DeLuca 1994, p 423).

There are crimes which produce either a large number of victims or effects which are difficult to describe or quantify. Even legal definitions of crimes do not conform to the individualistic leanings of the paradigm. Young points out that the legal definition of many crimes is unhelpful in ascertaining who is intended as the beneficiary of the prohibition; he gives the example of burglary. In some cases, a crime such as driving with excess alcohol is conceived of in ‘preventive’ terms rather than as the violation of the interests of an individual. The protection of potential or future victims is envisaged by crimes which are defined in terms of attempt, incitement and conspiracy (see Young 2000, pp.230-32).

Large scale corporate crimes, such as the BCCI or Maxwell pensions frauds, are situations in which the taking of individual victim statements would be impractical because it would be excessively time-consuming. Their prolific numbers take these victims outside the paradigm, although it is hard to distinguish the effects suffered from those of more mundane theft. Psychological impact such as shock, betrayal and even fear can be imagined in addition to financial loss. Other victims likely to be members of a large class are those harmed by criminal negligence (as in the Hillsborough disaster), voters or citizens who are the indirect victims of political corruption, and those who suffer as a result of consumer and environmental offences. Having reached this point, it is not difficult to conceive of the environment itself as a victim, raising the (not insurmountable) question: who could speak on behalf of the environment in making a victim statement?

One obvious manifestation of ‘macro’ damage is in crimes which impact generally on certain communities: incivilities, criminal damage, harassment (particularly racial), drug dealing and gang warfare. These create a lack of confidence and security about daily life with considerable implications beyond the individual. More widely still, society may be said to be the victim of certain types of crime. Those who breach driving and regulatory offences, as well as jeopardising communal safety, may contribute to pressures on public services such as the NHS, where the taxpayer is indirectly subsidising the care of those injured thereby and resources will be further stretched for all patients.⁽³⁾ Accidents caused by driving offences can lead to generally higher insurance premiums. Society is similarly affected by ‘victimless’ activities such as use of prohibited drugs. Benefit fraud may affect entitlements of all claimants. Inchoate moral harm to society is envisaged by obscenity laws.

There is, then a large range of activities which will produce victims who, for different reasons, cannot be accommodated by the paradigm. How might these be dealt with?

There has been a growing awareness that the impact of crime extends beyond the paradigm. But even assuming that the constituencies can be accurately ascertained, significant difficulties will be encountered in obtaining meaningful victim impact information on behalf of communities and society.

The acknowledgement of the wider repercussions of crime was an important stage in the evolution of victim-centred policy making. Morgan and Zedner wrote in the early 1990s about the indirect effects of domestic violence and burglary on children of the family (see Morgan and Zedner 1992). Families and friends of a homicide victim are also a group who attained early recognition (see Rock 1998). Those close to victims of serious crimes such as rape would come into this category. More remotely, any individual can be affected as an onlooker or witness to the commission of a crime, possibly suffering not only shock but also guilt resulting from a failure to intervene (see Zedner 1997, p 593)⁽⁴⁾. It must be noted at this stage that it is difficult to discern in the literature any consistency in the usage of terms such as ‘indirect’, ‘collateral’, ‘secondary’, and ‘second-order’ as applied to those who are not a primary victim of a crime.

From a cynical point of view, it has been observed, ‘almost anyone can be a “victim” of anything, the term being used more as a persuasive device for soliciting aid than as a descriptive’ (see Bayley 1991, p 53). Deborah Spungen, a prominent American victims’ activist, has proposed a wide and undifferentiated scope for secondary or indirect victimisation following homicide:

Family members- mothers, fathers, spouses, siblings, children and friends – become victims at the time that their loved ones are murdered. The designation co-victim responds to the need for a term to specify this category of victims. This societal recognition via the term co-victims confirms that a crime has taken place and that the people affected are indeed victims. When referring to a homicide, too many people still operate under the concept that the “victim is dead”, without acknowledging all the victims of a homicide. The term co-victim may be expanded to any group or community that is touched by the murder – a classroom, a dormitory, a school, an office, a neighbourhood. Most of the individuals who make up these communities are wounded emotionally, spiritually and psychologically by a murder, some more deeply than others. To deny the ripple effect (emphasis added) of a murder is to deny the human capacity for empathy. (see Spungen 1998, p 9).

Her observations about the ‘ripple effect’ of a murder are persuasive enough to lead us full circle to the conclusion that the extent and diversity of its effects is such that one entity, the State, should represent the needs of all so affected in the search for justice. Specific victim contribution, however defined, would be irrelevant or redundant.

In the development of the imperfectly defined concept of ‘victim’ for the purposes of the VPPS, it could be argued that a more inclusive definition might give a more realistic and accurate picture of the effects of crime than the individualistic one currently under consideration. It will be seen, however, that it would bring with it other problems.

It has been described above that the community can be perceived to be victimised by certain types of activity. The collective nature of the community means that it does not fulfil the individualistic aspect of the victim paradigm. In the British context, the concept of ‘community’ occupies a key position in arguments not only for victims’ rights but in the restorative justice movement as a whole . Young has described the way in which the incorporation of a ‘multi-victim perspective’ could enhance the efficacy of the restorative conference, despite his questioning the usefulness in that context of the term ‘victim’ (see Young 2000, p 246). It has not been suggested that this perspective should be incorporated into the VPPS but the American experience suggests it could be a logical extension of the Scheme proposed. One manifestation would be representations regarding the impact of crime made on behalf of the community for the purposes of sentencing.

Cohen has described the ideology of community which ‘...has come to dominate Western crime-control in the last few decades’ (see Cohen 1985, p 116). The increasing influence of the use the concept of community across a range of criminal justice areas in Britain has been commented upon extensively. Some of the questions which have been considered are: What is the community? Where is it? Do we like what it’s doing ? Who is in the community? Who is outside? What if the ethos of the community is negative, eg. patriarchal or racist? (see Garland 1996; Crawford 1997, 2000; Walgrave 2000). Lacey and Zedner have acknowledged the potent attractions of the informalism of community, acknowledging problems of access and effectiveness in existing systems. It encourages ‘recognition of a collective, rather than purely individualistic, dimension to both the genesis of crime and the dynamics of penality’ and the possibility that it ‘may empower formerly disempowered groups’ and create new sites for political action and diffusion of responsibility (see Lacey and Zedner 1995, p 304; Walgrave 2000). However, it lacks substance. ‘The all-too-easy reference to “the community” sometimes seems to be based on a kind of fata morgana, a mirage of what may exist somewhere deep in our memories, but which we cannot really make concrete’ (see Walgrave 2000, p 276). On similar lines, Lacey and Zedner observe: ‘The [“imagined community’s”] attractiveness lies partly in its emptiness – to be whatever anyone wants it to be’ (see Lacey and Zedner, 1995, p 317). In its use as a rhetorical device, ‘community’ like ‘victim’ avoids definition and may thereby gain power.

Crawford recognises that ‘community’ has a contestable nature and he considers in detail a number of its conceptualisations in criminal justice discourse and policy, some of which overlap. It may serve as a resource for the prioritisation of moral order. This conceptualisation enables the construction of a paradigm: the community in impacting on sentencing is conceived of as homogenous, beneficent, and capable of a constructive contribution. As with the individual paradigmatic victim, arguments are made that the community is worthy of being heard. An idealised community, like an idealised victim, should be a positive and accessible force in the restoration of a moral order. ‘Community, in this context, is cleansed of any negative or crimogenic connotations and endowed with a simplistic and naïve purity and virtue’ (see Crawford 1995, p 153).

But, again, a parallel can be drawn with victims generally when reality brings a divergence from the paradigm. There is not only a normative aspect to the concept of community but also a ‘slippage’ between what is and what ought to be. (See Bell and Newby 1971, p 21; Crawford 1995). The negative side of ‘community’ regeneration and empowerment lies in the possibility of stimulating collective forces whose effect could be seen as counter-productive of equality or due process. A collective has the potential to be exclusionary, irrational, vengeful and uncontrolled, as public involvement in the anti-paedophile campaign illustrates. The thought of accessing and acting upon ‘community sentiment’ on how to treat offenders emanating from the Paulsgrove Estate in Portsmouth⁽⁵⁾ would be one which could make liberal proponents of ‘collective’ criminal justice pause for thought.

Appeals to community raise the question: is community the problem or the solution? There is a contradiction in the idea of the community as victim when, through its deficiencies, it can be seen to be facilitating or perpetrating crime. Lacey and Zedner analysed the ways in which ‘discourses of community’ have been used in criminal justice rhetoric and policy (see Lacey and Zedner 1995). Their purpose was to compare and justify the apparent frequent use and power of the concept with its known deficits of precision and substance: ‘...what explains the apparent power of the idea of community to render policies attractive given that it is the very breakdown of community to which many crime problems are attributed?’ (see Lacey and Zedner 1995, p 302). The answer may lie in a phenomenon observed by Abel in which ‘crime, especially violence, is the most emotionally compelling symbol of lost community’ (see Abel 1995, p118). If rising crime rates can be blamed on the absence of community, then the regeneration of community may be a solution. Simply put, the regeneration of community could at best quell the causes of crime, or at least be protective of its effects by displacing it. The crime which does occur could be addressed by ‘neighbourhood justice’, the immediacy and informality of which could be seen as more effective than the existing traditional court structures.

Young’s ‘multi-victim’ perspective, when applied to sentencing, brings with it a number of problems. These are illuminated by Katie Long’s account of the history and current state of the movement to promote community input at sentencing in the United States. Community involvement in sentencing was the inevitable outcome of the burgeoning victims’ movement with its belief that victims were being ignored in a worsening crime-wave and the growth of community involvement in law enforcement, the interaction of which resulted in co-operation between prosecutors and local community groups in pursuing certain types of crime, for instance those which are drugs related. These trends were rooted in the need to take action in the face of a perception that traditional responses to crime prevention and punishment are inadequate. It is asserted that, like individual victims, the community has a right to influence the criminal justice process. As indirect victims members of the community have been put in a position where they must respond through fear and avoidance to the general level of crime in their locality. As with individual direct victims, there is a need to tell stories and have them heard using the criminal justice system as a vehicle. There may be an understandable fear of ‘putting one’s head above the parapet’ and a collective voice may provide necessary anonymity.

A feature of the American trend has been ‘methodical’ grassroots campaigns, with judges being contacted directly with impact information, the attendance at trials of representatives of community groups or victim groups such as MADD (Mothers Against Drunk Driving) who are sometimes permitted to address the court orally on the subject of sentencing as well as more generally about community impact. In Long’s view, aspects of Supreme Court jurisprudence such as the case of Payne v Tennessee (111 S.Ct. 2597 (1991)) endorsed this process. Justice O’Connor wrote, ‘The Eighth Amendment does not prohibit a State from choosing to admit evidence concerning a murder victim’s personal characteristics or the impact of the crime on the victim’s family and community.’⁽⁶⁾ Recent state decisions and statutes have specifically included members of the affected community in the category of victims whose opinions can be heard at sentencing, with pre-sentence reports frequently containing community impact information. Such information may include neighbourhood characteristics, and social and cultural context, as well as the more ethically questionable ‘insider information’ about the offender. Of course, such information can be directed at mitigation as well as aggravation.

Long describes the different practical problems in community representations on sentencing. Among these are information overload, unreliable information, the cumulative effect of community information, diversion from the character of the defendant, lack of consensus within a community or inequality between communities and potential conflict between the views of direct victim and his community. She also makes the point that there is already a tradition of community input into the criminal justice system through the electoral process in the election of prosecutors and judges, choice of personnel within the system, and jury service. It could be argued that there is an unnecessary duplication with any additional community input. As with the concept of community information, for Long the concept of societal information fails on the grounds of overlap: she observes that it is rarely going to have any crime-specific content because it consists of effects of crime upon taxation and quality of life which is already broadly taken into account in statutory definitions and penalties. ⁽⁷⁾

Expansion of the concept of victim to include secondary and collective victims does not avoid the paradigm and brings with it a number of new inaccuracies and contradictions. It is necessary now to consider the compatibility of the above constituencies with the context and objectives of the VPPS.

It has already been stated that the issue of what purpose is to be served by victim input in decision-making is crucial when considering the question of victim definition. For example, a predominantly therapeutic objective would render input from large corporations irrelevant. On the other hand, for the purposes of informing the court of the extent of loss such evidence could be invaluable. We can speculate, at this point, on the basis of international comparators, about what objective or objectives might predominate in the implementation of the VPPS.

The consideration that making a statement might have a therapeutic function for the victim in helping recovery is well-established (see Erez 1990) although not uncontested (Sanders et al 2001). Such a purpose could favour a paradigmatic definition of victim, supported by the implication that perhaps only some are ‘deserving’ or capable of benefiting from this therapy. More radically, victim statements could be perceived as legitimating individual expressions of vengeance (see Sarat 1997). In that case, those who might be seen as benefiting could well include secondary victims although the individual aspect of the paradigm would continue to prevail.

There is also the possibility that a victim’s input could be a component of the restorative justice process and thereby contribute to that aspect directed to rehabilitation of the offender. Charles Pollard, a senior police officer, portrays the confrontation of the offender by his victim as contributing to acknowledgement of the wrong that has been done and enabling ‘emotional reparation by the former’ (see Pollard 2000, p 9). This raises the possibility that at an extreme, victims could be seen as ‘agents of offender rehabilitation’ (see Ashworth 2000, p 199). If a victim statement were to be used in pursuit of this objective, only a paradigmatic victim of paradigmatic crime would be appropriate.

The agenda for community victim input would reflect the characteristics of community harm. On a collective scale, the process of giving voice to the effects of and opinions about crime is often thought to be little more than a vehicle for the venting of public outrage (see Nussbaum 1993, pp 89-90). A therapeutic role in dealing with the consequences of crime has been suggested (see Lacey and Zedner 1995; Walgrave 2000). Pollard is one who argues for the collective healing effect of community dialogue: ‘...there is now a strong case for justice to include a form of community dialogue – one where victims and communities regain their voice, and repairing the damage to social values and relationships becomes a cornerstone of the official response to crime’ (Pollard 2000, p9).

This could be binding or reintegrative for communities. Crawford concludes that the ‘‘virtuous’ cycle of community is a means to an end, as our moral voices are nourished by communities and our moral values are attainable because of the social pressure such as ‘reintegrative shaming’ which communities bring to bear on their members’ (Crawford 2000, p 290). Not only is the offender restored but also the community is revalidated. ⁽⁸⁾ Long’s experience may raise doubts that such reintegration is attainable through victim input. The main outcome may only be to shift one level of responsibility away from normal sentencing agencies. At the same time, victim statements from the ‘insiders’ in the paradigmatic community are likely to contribute directly or indirectly to the exclusion of criminals/outsiders.

There are a number of different theoretical objectives of punishment which could be enhanced by the kind of additional information that a VPS might provide. Some aspects of the restorative process have been discussed above in terms of therapeutic effects. Here, however, we are looking at what the court or decision-maker could gain by access to the content of victim statements. General goodwill and co-operation from the empowered victims and witnesses could be encouraged. The additional information they provide about impact could further define the crime for the purposes of ascertaining an appropriate response for either restorative or retributive purposes (see Wasik 1999), though significant questions about relevance could be raised. Statements made on behalf of ‘the community’ would also provide information but this could be inaccurate or exacerbate discriminatory behaviour.

For desert based punishment, the vulnerability of a victim, determined at least in part by the extent to which he suffered, will help to place the crime at an appropriate level of seriousness (see Wasik 1998). To a limited degree, additional information could be claimed to facilitate estimations of likely re-offending for the purposes of either rehabilitation or incapacitation. The widest possible scope for VPS would be sought: if some information is considered good, more would be even better. In her consideration of death penalty decisions, Bandes doubts this thinking: too much information can be distracting and import ‘irrelevancies’ such as emotional factors. Excess material could ‘clutter up’ sentencing procedures and reduce efficiency (Henderson, 1985, p 1005). It should be noted at this point that some judges in the pilot study expressed reservations about difficulties in verifying some victim information. Furthermore, analysis revealed that information derived from victim statements which was seen to have affected sentencing was often already available elsewhere in the prosecution file (see Morgan and Sanders 1999, p10). General public awareness about the effects of crime will be mobilised –a by-product could be improved resources and services for victims. This could also bring with it a deterrent effect. Obviously, the sympathy-inducing paradigm would be most conducive to this agenda.

The most convincing rationale for extending the voice being given to victims in sentencing is that it will serve a function for the state, namely legitimation. Victim involvement is necessitated by the state’s relative failure to control the rising crime rate and can be seen as an admission of defeat. According to Garland, ‘In the course of the last 30 years, high crime rates have become a normal social fact in Britain’. In their impotence, government and agencies have responded with an adaptation: ‘attention is being shifted to dealing with the effects of crime-costs and victims and fearful citizens – rather than its causes’ (see Garland 1996, pp 446-7). One aspect of this adaptation is addressing the fallout experienced by the public. Pollard feels, ‘The criminal justice state’s success in maintaining its public credibility is arguably dependent on, among other factors, how successfully it “manages” the justifiable indignation and frustration of victims and communities’ (see Pollard 2000, p7). The state’s inability to provide security might be ignored or forgotten if victims were diverted by being given a more active role in prosecution and sentencing. Straw’s professing ‘I want victims to feel they are at the heart of the Criminal Justice System...’ in launching the VPPS provides some support for Garland’s thesis.

However, for Garland, victim involvement is more than a ‘customer relations’ exercise or diversionary tactic. He describes a process of ‘responsibilization’ whereby state functions which have become unattainable are ceded to new sites of accountability. Indirect action against crime can be accomplished through self-help by individuals, by activities of private agencies and by empowered communities. What he sees as the ‘reconfiguration of the criminal justice state’ is evidenced in part by ‘the new role accorded to victim in the criminal and sentencing process’ (see Garland 1996, p454). ‘These less than heroic policy objectives have replaced the idea of winning the war against crime’ (see Garland 1996, p 448). A slight shift in onus and a sharing of the burden may reduce perceptions of state short-comings, whether or not the reality of crime changes at all.

What we can presently surmise about the VPPS is that its objectives as well as its ambit are as yet unarticulated. It is therefore a good point at which to consider the possible effects of the different models of the Scheme which may be adopted. It appears likely that victim statements will be accepted from individual victims, relating to crimes of a certain level of severity, from a victim who can fit some paradigm which makes his version palatable, who the voter or citizen will identify with (not big business) not confusing for the purposes of attributing blame, not multiple (dissonant or difficult to prioritise views) and possibly translatable into emotional terms.

If only paradigmatic victims are to be offered the opportunity to make a VPS, it is obvious that only a tiny proportion of actual crimes will be encompassed. This will have two main effects. Firstly, there will be inconsistency in sentencing. In a significant minority of cases, judges will have access to information which will be unavailable in all other sorts of cases. The fact that making a VPS is optional will increase this bias. Sentencing profiles and tariffs will therefore be skewed. The research on the pilot scheme for VIS indicated that this is a concern for judges, some of whom believed that victim input should be available for all cases or none. Secondly, and connected, is the fact that some defendants will be either prejudiced or favoured if their case features a VPS. Defendants at whose trial a VPS describes a worse than average victim reaction to the crime would have good reason to feel disadvantaged by the Scheme.⁽⁹⁾ There is a converse distinction which can be made between the defendant whose crime is the subject of a mitigating statement and one who inflicts the sort of damage which is already accounted for in sentencing tariffs, with or without victim input.

The discriminatory potential applies equally between victims. ‘If there are loved, law-abiding, gentle and undeserving victims, then there must be unloved, lawbreaking, violent, deserving victims as well’ (see Bandes1996, p 407). The question of whether a wrong inflicted upon an ‘unworthy’or particularly resilient recipient should be somehow less deserving of punishment is one which pervades the discussions of the acceptability of victim input in the United States. A particular focus of the American Supreme Court jurisprudence on the subject has been the arbitrariness of imposing the death penalty according to the extent to which the survivors of a homicide victim are able to convince a sentencing jury of the value or unique characteristics of the deceased.⁽¹⁰⁾ The absence of the death penalty in Britain does not make these concerns redundant.

Victim statements on both individual and collective levels can be said to support an exclusionary social agenda. A comparison stressing the dichotomy between victim and offender may reinforce the idea of the criminal as alien. Bandes feels that this orientation is already inherent in the criminal justice system because judges and jurors will instinctively identify with those who are like them – racially, socio-economically, politically: ‘We do not need elaborate structures to assist us in feeling fear, pain and grief for those like us who have suffered violence at the hands of the other. This is already the dominant narrative of the criminal trial. The difficult challenge lies in making possible the decision maker’s identification with the “other”‘ (see Bandes 1996, pp 409-10). Having already convicted the defendant for a heinous act, the ‘feeling of identity with the victim of a crime often comes naturally...for the jury to empathetically connect with the defendant during the sentencing phase of a capital trial is an extremely difficult task’ (see Bandes 1996, p 400). Victim input can only serve to reinforce this tendency, rather than in any way allowing the voice of the ‘outsider’ to challenge the ‘dominant legal narrative’. If, as appears likely in the VPPS, only the paradigmatic victim is heard, this effect will be more marked. ‘The ideal offender is a distant being. The more foreign, the better...[b]y being that extremely bad, other acts, not quite that bad, can escape attention as well as evaluation. By having an oversimplified picture of the ideal offender, business for the rest of us can go on as usual’ (see Christie 1986, pp 28-29).

Casting the net more widely would create a divergence from the victim paradigm and a more representative picture of the extent and effects of victimisation would be achieved. This would create, however, a proliferation of available stories. As secondary or indirect victims are heard, the ‘ripple’ effect would create more information about a crime. Some, like Bandes, would describe this as leading to excess. She believes that ‘more is not necessarily better’ when the information is given on behalf of the prosecution. Furthermore victim information, especially when emotive, can diminish decision-makers’ abilities to process other types of information, such as that given in mitigation (see Bandes 1996, p 401).

If VPS were to be made on a collective basis, evidence suggests that the divisive potential would expand. The very creation of community necessitates the labelling of ‘outsiders’ by ‘insiders’. ‘Whilst the figure of community sounds cosy and inclusive, obvious questions arise both about the power relations between different communities and the process of exclusion from communities’ (see Lacey and Zedner 1995, p 308). Community crime-prevention initiatives like Neighbourhood Watch have been said to represent the furtherance of private self interest carried out in the name of community – righteous law-abiding citizens uniting to defend against ‘outsiders invading’ (see Lacey and Zedner, 1995, p. 310). Communities themselves may display ‘moral authoritarianism’ whereby one dominant group or interest seeks to impose its values on others and does so with little regard for individual rights (see Crawford 1998, p 159). A ‘community view’ about the impact of the behaviour of disruptive youth is unlikely to incorporate the perspective of the teenagers and their families.

We have seen consideration of the appropriateness of the multi-victim perspective in terms of restorative justice – whether a different construction of ‘victim’ can be accommodated into the existing criminal justice framework (see Young 2000; Wasik 1999). Crawford makes the point that ‘a’ victim perspective required a set of shared characteristics and objectives (see Crawford 2000). The rationale behind the VPPS emphasises connections between victims and between victims and law-abiding citizens ‘...concomitantly it seeks to atomise and isolate each defendant in a fault-based world of his own making’ (see Bandes 1996, p 405). At the same time, however, the recent awareness and policy recognition that to each victim his experience is unique has raised doubts about the ability of the system to make more general assumptions. If each victim wants to tell his own story, which is implicitly recognised by the VPPS and Victims’ Charter, there will be uncertainties about ambit and thereby definition, which must be addressed if the VPPS is to anything more than mere window dressing. Before ‘who gets to tell story?’ is answered we must be clear about the purpose of the narrative and seriously question whether the divisive possibilities of victim impact on decision-making are worth risking.

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⁽¹⁾ We have already seen something of this under the Criminal Injuries Compensation Scheme.

⁽²⁾ Under the pilot schemes, parents were able to speak on behalf of child victims.

⁽³⁾ Young, 2000 p.232 has distinguished ‘public ward’ harms from those of the ‘private ward.’

⁽⁴⁾ Remoteness problem, akin to tort – see Young

⁽⁵⁾ The scene of virulent anti-paedophile hysteria in August 2000.

⁽⁶⁾ 111 S.Ct 2597 (1991) p. 2612, emphasis added.

⁽⁷⁾ This is an argument which is frequently made when questioning the need for any type of VS. – the law already takes into account presumed impact in prescribing sentences. (Noted by Morgan and Sanders, 1999, p.17)

⁽⁸⁾ Ashworth (2000, p. 193) observes the difficulties inherent in assessing the ‘wider community interest’ for restorative purposes.

⁽⁹⁾ Sanders et al 2001 p.451 observe that the pilots raised serious doubts about the victim statements ever leading to less severe sentences.

⁽¹⁰⁾ Payne v Tennessee 111 S.Ct. 2597 (1991) confirms that victim impact statements do not violate the Eighth or Fourteenth Amendments to the Constitution.