Week 4: Victims, prosecution and the courts

Whose pigs are these?
Whose pigs are these?
They are John Potts',
I can tell them by their spots,
And I found them in the vicarage garden.
- traditional

We did a bit of history this week, starting with something that may be more myth than history.

In the beginning (this is the 'myth' part) there were no courts and no trials; when people had problems with one another, they sorted them out face to face. The vicar would have a word with John Potts, and they'd come to some arrangement: he'd keep his animals in his own garden, or the vicar would let him graze them by the vicarage on Mondays and Wednesdays, or whatever. There would be no laws being broken and no general principles being decided, and nobody would end up with a criminal record.

Then, at some unspecified time, things changed: disputes between people were no longer sorted out by the people themselves, but had to be decided in accordance with the law. Did John Potts have the right to graze his animals by the vicarage? Were they even his in the first place - could he prove it? All of a sudden, any dispute could end up in the courts, where it would be decided according to laws backed by the authority of the government. In the process the role of the victim changed dramatically, from being at the centre of the conflict to merely being a witness to the crime.

So far, so mythical - although it's quite a plausible myth. Coming forward into historical time, we know that the police took over the responsibility of mounting criminal prosecutions, in Britain, some time in the first half of the nineteenth century, and that as a result a lot more prosecutions took place. We also know that, before the police got involved, prosecutions were very often dropped or settled amicably - which may not produce consistency between different offences, but does give a much bigger role to the victim. The obvious conclusion is that a lot of the increase in prosecutions which took place after the police took over consisted of disputes which would previously not have gone to court.

A series of reforms, culminating in the creation of the Crown Prosecution Service in 1982, continued this process of standardisation, formalisation and centralisation, bringing consistency to criminal trials but reducing the role of the victim. However, by 1982 - the high water mark of this process - the contemporary movement for the recognition of victims' rights was already growing. Since that time, there has been a drive to bring victims back into the process, most successfully in the form of victim impact statements (which we discussed in the seminar).

Having said all of that, there are still issues with victim involvement in the criminal process - which is, fundamentally, all about a confrontation between the offender and the state (or the Crown). Many people argue that victims' needs can never be met by tweaks to the criminal process, and that an alternative process is needed: something more like restorative justice. Of which, more anon (but please read Nils Christie's paper "Conflicts as property" if you're interested.)