Government plans for us-style advocates to give the families of murder victims a voice in court have received a mixed reaction in the profession. Jon Robins weighs up the pros and cons

When Tony Blair unveiled his legislative programme for criminal justice a couple of years ago, he notably announced that his plans were ‘to rebalance the system emphatically in favour of the victims of crime’. This month, his government revealed plans that could give the scales an unsubtle shove in the direction of victims, by providing the relatives of the bereaved a voice in their murderer’s trial (see [2005] Gazette, 8 September, 5).


If anyone needs to be reminded just how far new Labour was prepared to go in favour of the victim, Mr Blair in the same speech suggested that ‘perhaps the greatest miscarriage of justice… was when the guilty man walks unpunished’. This month’s proposals have received a mixed reaction from human rights groups and defence lawyers, and were described by one commentator as ‘a short step away from vigilantism’, which should be ‘strangled at birth’.


The plan is for US-style victim advocates to enable the families of murder or manslaughter victims to make a personal statement in court.


‘When it comes to murder, the prosecuting counsel talks about the victim, so does the defence counsel, the defendant, the judge and witnesses to the crime. But the people who knew the victim best and to whom the case matters most are silent. This cannot be right,’ argues constitutional affairs minister Harriet Harman QC. ‘We are proposing a big change for the way courts work… Bereaved relatives sometimes feel they are completely excluded from the system.’


The consultation paper was introduced by Lord Chancellor Lord Falconer and picks up the prime minister’s earlier theme of ‘rebalancing the justice system’. Ministers describe the moves as ‘a better basis for the judge to account for the effect of the crime on the bereaved relatives when sentencing’. The government is looking to pilot victims’ advocates in up to five areas in England and Wales, pending the consultation which closes at the end of November.


The consultation says that ‘everyone agrees’ when it comes to sentencing that the judge ‘should take into account the effect of the crime on relatives, but they do not usually hear from them directly’. The consultation paper asks who the advocate should be – a Crown Prosecution Service lawyer, an independent solicitor or barrister, a member of the family or a lay representative chosen by the family. If it is to be a lawyer, there might be a panel.


For many lawyers, there is a point of principle at stake. Trials are an adversarial process, and unless the relatives are witnesses, they play no part. Law Society chief executive Janet Paraskeva says lawyers ‘recognise the terrible impact that serious crime has on a victim’s family. However, we question whether this proposal is appropriate or necessary, particularly as the effect of the crime on the victim’s family can already be given in a victim’s personal statement. It could unduly affect sentencing decisions where victims have no relations to speak on their behalf’.


But there are many, including some in the civil liberties camp, who are supportive of the idea – at least in theory. ‘Victims do feel excluded and they should feel more engaged than they do,’ says Roger Smith, director of the law reform group Justice. ‘We already have victim impact statements and we are not opposed to them, just as we are not opposed in principle to victim advocates. Our difficulty is what they actually add to the process.’ Mr Smith says there are a whole range of practical questions about how the proposals should be implemented, ‘not least about whether they will give victims a false notion of their power in the process’.


He adds that there are more fundamental and obvious ways of protecting the welfare of victims that have yet to be implemented, for example ensuring that there are separate waiting rooms.


Some lawyers worry that far from rebalancing the justice system, the proposals could actually make the judicial process even more harrowing for victims’ families – and could raise their expectations only to disappointment them when no account is taken by the courts of their advocate’s testimony.


The charity Victim Support has helped more than 1,000 grieving relatives through the legal process in the past 12 months. ‘Their overwhelming experience is that they feel shut out of the system and often they will sit in court and hear things that they believe are untrue about their loved ones,’ relates policy manager Joanne Perry. ‘They have no means to challenge that and give their view.’


She also flags up the role of the victim personal statement introduced by the government in October 2001. There is a practice direction stressing that courts can take such a statement into account when sentencing – but take-up, according to the government, has been ‘patchy’ so far. ‘Police forces seem to vary in their readiness to offer this service and towards updating their statements,’ it says. ‘And even when these problems do not exist, the voice of the victim is still not heard in court unless they happen to be called as a witness.’ But, as Ms Perry says, that ‘doesn’t mean that it is a bad idea, it just means it has been poorly implemented’.


Victim Support ‘welcomes the principle of giving grieving relatives a greater input into the criminal justice system’, she says. ‘Our concern is how information is communicated to the bereaved relative. That’s really important. The opportunity to make a verbal statement is before sentence and after conviction, and so they need to understand that it isn’t necessarily going to affect the sentence. If that isn’t properly communicated, they risk being very let down.’


But Ms Perry also points out that people grieve in different ways. ‘Some would welcome the opportunity to speak out, but for others it would be the last thing they want to do. They may not want to grieve in public, but if they don’t, they might fell that they are letting down their loved ones. All of these expectations need to be managed.’


Andrew Keogh, a partner at Manchester-based criminal defence firm Tuckers, gives the proposals ‘cautious support’. He takes issue with the Law Society line that any statement could distort sentencing. He says: ‘If what the proposals achieve is victims having a voice and having their five minutes in court, then I think we can rely on the judiciary not to allow emotion to cloud sentencing.’


Debates over sentencing ‘aren’t the property of lawyers and the Law Society’, he says. ‘It is important that the integrity of the sentencing process is being protected, but you can’t just assume that the sentencing process will stand still.’ Mr Keogh also points out that victim statements have largely been ineffective. ‘If you spend a day at the Crown Court, you would be hard pressed to hear one even being read out,’ he says.


How the advocate would be funded is also unclear – Ms Harman indicated when launching the consultation that it may not be another demand on the already overspent legal aid fund. Many lawyers are understandably surprised to see the Lord Chancellor so ready to reach into the coffers as he is implementing another series of legal aid cuts announced in July.


‘It’s ironic that the government is prepared to pay an advocate to argue on behalf of victims when the Lord Chancellor is saying that he is £130 million in the red,’ comments Sophie Shotton, a barrister at 15 New Bridge Street, London, who is on the Bar Council and is also its representative on the Criminal Bar Association committee. ‘How can they find the money for that, and yet they aren’t able to remunerate counsel properly?’


She does not see the need for a victim’s advocate because ‘if a prosecution is conducted properly and the police prepare the case properly’, they will take a victim statement. ‘So the judge will know the impact the crime has had, and prosecuting counsel can also tell the judge what the impact has been,’ the barrister continues. ‘I don’t see any need to employ yet another barrister to come to court to do that.’


Ged Hale, a senior partner at south Yorkshire criminal defence specialist GV Hale & Co, says the courts have managed ‘since time immemorial’ without victim advocates. ‘But if it is now seen to be politically correct, then so be it,’ he says. ‘It isn’t going to sway a judge one jot.’


He is also bemused that legal aid could be pumped into a new post at a time when the legal aid system is ‘in crisis’. He says: ‘If anyone needs a victim’s advocate at the moment, it is solicitors who have been “victims” of the government’s cuts over the years.’


Jon Robins is a freelance journalist