A government move to underpin the rights of victims of crime echoes a UN declaration 20 years ago. Yet Roger Smith fears such proposals do not address inconsistencies in sentencing

Many might not be aware of it, but the 20th anniversary of the UN Declaration on Basic Principles of Justice for Victims of Crime and the Abuse of Power is upon us.


This type of international document tends to get disparaged by both lawyers and politicians in Britain’s highly pragmatic culture. However, the UN declaration encouraged and reflected developments that are moving fast both at the European Court of Human Rights and domestically.


The declaration was distinctive in its approach because it covered both rights for the victims of crime and of abuses of human rights. It defines the latter as acts or omissions that ‘do not yet constitute violations of national criminal laws but of internationally recognised norms relating to human rights’. The UK provides a good recent example of the domestic criminalisation of behaviour that previously would have been seen as an international human rights abuse. In July, Faryadi Sarwar Zardad became the first person to be convicted in the UK for torture and hostage-taking in another country. He was successfully prosecuted for remarkably nasty behaviour high in the mountains of Afghanistan.


There is a chain of cases from the European Court of Human Rights that develop a human rights jurisdiction relevant to victims of crime. A recent case went so far as to say that states had a general proactive duty ‘to put in place a legislative and administrative framework designed to provide effective deterrence against threats to the right to life’.


This decision involved the abject failure of Turkish authorities to prevent deaths by explosion and landslip on a rubbish tip. An important British case on the state’s duty to individuals has facts that resemble all too well the form of an exam question. The perpetrator of a murder and wounding actually demanded on arrest: ‘Why didn’t you stop me before I did it? I gave you all the warning signs.’ The court decided that the state has a duty to prevent the commission of a murder if its authorities knew, or ought to have known, of a ‘real and immediate risk’ to someone’s life and they failed to take reasonable measures of protection. Indeed, Salman Rushdie received protection when so threatened.


The UN’s declaration asserted, as a primary demand, that ‘victims should be treated with compassion and respect for their dignity’. Ministers here have repeatedly argued that victims are at the heart of the criminal justice system. Thus, from next April, we are to get a Victims and Witnesses Commissioner, and the government has just published a code of practice for victims of crime, which will come into force at the same time.


The code extends the Victims Charters of 1990 and 1996. In the modern style, it sets a series of standards by which agencies within the criminal justice system must act and will be judged in relation to their treatment of witnesses and victims. At one level, this is pretty basic and unexciting stuff. But, information to victims of ‘the scope, timing and progress of proceedings and the disposition of their cases’ was a principle listed in the UN declaration. The government is right to move forward on this.


The UN declaration also called for means by which the ‘views and concerns’ of victims could be presented to the court. Thus, we now have victim-impact statements. These have been, more or less, absorbed within the system. However, a more difficult issue is whether victims in serious crimes should actually be represented at sentencing hearings. The government announced last month, in a paper entitled Hearing the Relatives of Murder and Manslaughter Victims, that it intends to begin piloting such representation.


The UN document was rather cautious about actual representation in proceedings and called for any changes to be ‘without prejudice to the accused and consistent with the relevant national criminal justice system’. However, the Lord Chancellor, Lord Falconer, expresses no doubts: ‘We want victims to be heard properly and fully in court.’


Frankly, the proposals are a little short of half-baked. Legal aid will be diverted from defendants; the document has no answer to what should happen when a judge is asked to give an advance indication of sentence; and, while there is a clear benefit in victims feeling that the court has heard what they want to say, it is difficult to see exactly what weight this will have. The document does not address the inconsistency in sentencing that is likely to be the result.


Thus, there is a growing recognition – in which the UN declaration played a key role – that victims do have rights. And that they are entitled to much more than they usually get. To this concern, the European court and the government have responded. Unfortunately, Lord Falconer’s gung-ho proposal makes us address the limits of those rights.


It is such a pity that he seems to have missed the balance so carefully acknowledged in the UN declaration.


Roger Smith is director of the human rights campaigning group Justice