The victim in the Irish criminal process

Shane Kilcommins

• Publisher: Manchester University Press
• Year: 2018
• ISBN:
  9781526106391
• Edition: 1
• Topic: Politik & Internationale Beziehungen
• Subtopic: Vergleichende Politikwissenschaften

Concern for crime victims has been a growing political issue in improving the legitimacy and success of the criminal justice system through the rhetoric of rights. Since the 1970s there have been numerous reforms and policy documents produced to enhance victims' satisfaction in the criminal justice system. The Republic of Ireland has seen a sea-change in more recent years from a focus on services for victims to a greater emphasis on procedural rights. The purpose of this book is to chart these reforms against the backdrop of wider political and regional changes emanating from the European Union and the European Court of Human Rights, and to critically examine whether the position of crime victims has actually ameliorated. The book discusses the historical and theoretical concern for crime victims in the criminal justice system, examins the variety of forms of legal and service provision inclusion, amd concludes by analysing the various needs of victims which continue to be unmet.

1
The victim and the justice system: from key personal stakeholder to institutional outcast¹

Introduction

The purpose of this chapter is to explain the emergence of the modern assumptions, commitments and strategic priorities that have shaped the position of the victim in the justice system. In particular, it seeks to demonstrate how the paradigm of prosecuting and investigating crime moved from an intensely local, unstructured and victim-precipitated arrangement to a structured, adversarial, State-monopolised event where the accused was largely silenced and the victim was rendered invisible. This transformation provides an important backdrop against which to query the confluence of approaches that currently shape and determine State and societal relations with victims of crime (Vaughan and Kilcommins, 2010: 41–66).

Engaging in such a wide-ranging historical analysis of how the victim has been depicted and represented over time is of course fraught with dangers, not least given the tendency of such analysis to over-generalise and over-schematise changes in social life and in the criminal legal structure. Despite the dangers, we believe that the exercise can prove valuable. In particular, it can help us to identify and consider different trends, tendencies and currents of reflection that broadly comprise patterns of action vis-à-vis victims of crime at different historical points in time.

The purpose of the chapter therefore is to trace the ways in which different justice systems have accommodated victims of crime. By highlighting the broad historical changes in the assumptions and realities that governed victim relations under pre-modern exculpatory and modern inculpatory models of justice, it will help us to focus on and amplify the dynamics and principles that shape and determine our current arrangements. This chapter will seek to demonstrate how pre-modern exculpatory justice − operating in a social and political field in which order was conceived in local terms and where criminal wrongdoing was interpreted and understood as a personal altercation − gave primacy to victims as decision makers. This was gradually replaced with a new architecture of criminal and penal semiotics that reified system relations, emphasising ideals such as rationality, liberalism, uniformity, State power and depersonalisation. The rationalisation of the crime conflict is the key anchoring point of this chapter. It represents the shift from personal to institutional relations, ensuring that subjective and emotive experiences were increasingly represented as invalid, tainted knowledge. By structuring the chapter in this way, it will be possible to sketch out the ways in which the autonomy and power of victims of crime were gradually dismantled in the course of the nineteenth century as public power colonised ownership of criminal wrongdoing. The circuitry networks of this power included a growing reliance on formal and procedural legal rules, professional lawyers, centralised State agencies and ‘objective’ lay participation. The ‘public interest’ mechanism that was constructed to fill the void acted as a new and safe conduit for the expression of citizen and political concerns. The inculpatory model which emerged also embraced a State/accused logic of action which helped to ‘objectivate’ the conflict and to create a ‘zone of indifference’ between personal experiences and the institutional process.

The victim within an exculpatory model of justice

The peculiar geometry of eighteenth-century penal relations comprised a savage penal code ameliorated by a well-established machinery of concessions in the form of judge and jury discretion and executive clemency. Hegemony was thus maintained both by the use of the theatre of execution − and the exemplary display of terror inherent therein − and the flexible employment of concessions. They could be granted for a whole variety of reasons and included the following: the guilty party was relatively young or of otherwise good character; the guilty party was pregnant (known as ‘the benefit of the belly’) or could read a prescribed passage from the bible (the ‘benefit of clergy’); they acceded to the petitions of the victim or the local gentry; they propitiated the ‘winds of public opinion’; or the jury engaged in a form of ‘pious perjury’, ensuring that the accused did not hang for the offences committed (Kilcommins, 1998: 1–54; Rawlings, 1999: 39–53). Such a ‘lottery of justice’ must be understood against a backdrop of historically specific social relations and social control. The great majority of petitions for mercy in the eighteenth century were written by the gentry and landed aristocracy on behalf of those accused of crime. Concessions ensured, to some extent, that a good many offenders left the courtroom indebted to their more ‘noble’ peers and convinced of the merciful nature of justice. In this way, the criminal justice system attempted to instil compliance through examples of brute terror − but not so many as to destroy the perception of justice or rupture the bonds of paternalism − and also, in a much more subtle fashion, through examples of mercy. Balancing these dyads was particularly important in an epoch where tight social control in the form of professional policing did not exist (Hay, 1977: 17–63).

Sufficient numbers of offenders were thus enmeshed in the ‘punishment as spectacle’ rituals which bore witness to the majesty of the law and the ‘dissymmetry of power relations’ between the sovereign and his or her citizens (Foucault, 1991 repr.: 49). As Paley suggested: ‘by this expedient few actually suffer death, while the dread and danger of it hang over the crimes of many’ (Paley, 1833: 161). At the same time, enough offenders escaped the clutches of this theatre of terror through the mercy that the system of justice offered. Such elasticity in the form of mercy was, according to Blackstone, designed to ‘endear the sovereign to his subjects, and contribute more than anything to root in their hearts that filial affection, and personal loyalty, which are the sure establishment of a prince’ (as quoted in Hay, 1977: 48; Fletcher and Stevenson, 1985: 1–40).

Eighteenth-century justice also emphasised at every turn the important role of communal participation. Crime was not generally perceived in terms of a transgression of nationally accepted law. The machinery of justice was by and large constructed around informal, communal networks that could not conceive of criminal behaviour in an abstract way. With no sense of abstract crime or harm, there could be little possibility of a system to prosecute such offences. In a social world which was localised in character, responsibility for order, in keeping with the consensus justice paradigm, was in large part entrusted upon ordinary citizens (Herrup, 1989; Willis, 2008: 413). Such a system, as Philips has pointed out, ‘did not rest on the modern idea of catching and prosecuting all offenders, but rather on the idea of catching, prosecuting and punishing exemplarily, a sufficient number of offenders to deter others’ (Philips, 1983: 160–1). Few, moreover, wished law enforcement to be more formalised, for fear of the centralised despotism which might result. With such sporadic and unpredictable enforcement, there emerged what Foucault called ‘tolerated illegality’: ‘the non-application of the rule, the non-observance of the innumerable edicts or ordinances were a condition of the political functioning of society … [I]llegality was so deeply rooted and so necessary to the life of each social stratum, that it had in a sense its own coherence and economy’ (Foucault, 1991 repr.: 82). These spaces of discretion and freedom were essential to the maintenance of the system of social control as it operated in pre-industrial times (Shoemaker, 1987: 294).

The machinery of justice was thus by and large constructed around informal networks. It relied heavily, for example, on the provision of private and statutory rewards for information leading to the conviction of offenders (Langbein, 1983). It utilised professional ‘thieftakers’ who, through intelligence networks, secured evidence of guilt against those accused of crime in return for the rewards available from the courts, as well as from victims who paid to have their stolen property returned (Paley, 1989: 301–30). It also witnessed the emergence of private associations for the prosecution of felons which organised at common expense posses to pursue offenders, patrols to supervise localities and the prosecution in court of offences committed against members (Philips, 1989: 117–51; Shubert, 1981: 25–41). The justice system also created a hierarchy of pardons and immunity from prosecution for those who could be induced to turn against the criminal fraternity from which they operated. Pardons as an absolute right could be claimed by accomplices in return for evidence that would convict those who had committed one of a number of specified offences. Pardons could also be claimed under royal proclamation made by the government in respect of specific offences (Radzinowicz, 1956: 40–2). Accomplices also retained the hope that they might not be prosecuted, or at least might receive a lighter sentence, if they made a full and fair confession and their evidence was used to convict other offenders. In such circumstances, accomplices were not entitled as of legal right to any better treatment. They gave their evidence ‘in vinculis’ [in chains] and it depended on their behaviour whether or not they were entitled to an equitable claim (R v Rudd 1775 1 Leach 115 at 119).

In keeping with the local orientation of justice, the ‘paradigm of prosecution’ in the eighteenth century rested on victims of crime (Hay, 1983: 167). They were the principal investigators of crime and the key decision makers in the prosecution process (King, 1984: 27). As Bentham (1830: 427) disapprovingly noted: ‘The law gives to the party injured, or rather to every prosecutor, a partial power of pardon … in giving him the choice of the kind of action he will commence … The lot of the offender depends not on the gravity of his offence but on … the injured party … The judge is a puppet in the hands of any prosecutor.’ Victims could elect not to invoke the law and to let the criminal act go unpunished; they could engage in a personal settlement or private retribution; or they could prosecute but shape the severity of any criminal charge (capital or non-capital) through their interpretation of the facts. It is, as Philips suggests, a very modern idea ‘to think that every discovered offence should be followed automatically by prosecution; for centuries, the English system had worked on the principle that indictment before a court was the last resort to be tried; there were all sorts of alternative informal means which the potential prosecutor might try to use short of formal prosecution’ (Philips, 1983: 158). Conflicts remained the property of the parties personally affected and this often involved recourse to informal dispute settlement (Christie, 1977: 1–15; Edelstein, 1998: 364): ‘formal prosecution was the exception; negotiation and informal sanction the norm. The major courts had no monopoly over punitive sanctions in the eighteenth century. Indeed, they usually had to content themselves with processing a few scraps and particularly tough morsels which those involved in informal sanctioning processes threw their way or spat out as indigestible, and as therefore requiring the tougher teeth of the criminal law’ (King, 2000: 22–3). If victims did proceed with a prosecution, it was their energy, for the most part, that carried the case through the various prosecution stages. Victims engaged in the fact finding, gathered witnesses, prepared cases, presented evidence in court as examiners-in-chief and bore the costs involved (Beattie, 1986: 35).

Moreover, local and personal knowledge about the character of the accused was not confined to that narrow space between conviction and the imposition of sentence. Rather, it occupied a more central role in the determination of the accused's guilt or innocence (Green, 1988: 281; Lacey, 2001: 361–2). In addition to playing a key role at trial, character witnesses were also very influential in support of an accused's plea for mercy post-conviction. Jurors too were chosen from the locality and had a ‘keen knowledge of the good and rotten apples in their barrel’ (Friedman, 1993: 27). As Sir Robert Peel admitted: ‘[I]t might be hard to say to a man, that his life should be valued at a particular rate, depending upon local or temporary ...