Wednesday, 10 July 2019

Victim Personal Statements - The ins and outs

Marie Rimmer MP is in the news following criticism by her of edits made to a victim personal statement during the sentencing of a man sentenced to imprisonment for causing the death of a 4 year old girl by dangerous driving: The victim personal statement has not been published, as far as I am aware, nor those parts that were excluded from the sentencing process.

Speaking in a debate in Westminster Hall Ms Rimmer criticised the fact that what she referred to as the victim impact statement was not read out in full apparently following application by the defendant's barrister that certain passages would be 'too upsetting' for the defendant. As always when commenting on a case without knowledge of the full facts a degree of circumspection must be applied in venturing opinions. The debate was triggered following a petition by the parents of Violet-Grace Youens. Ms Rimmer spoke in the debate which was held in response to the petition calling for mandatory life sentences with a tariff of 15 years in death by dangerous driving cases with consecutive sentences where more than one life was lost.

While one can wholly understand what motivates a campaign like this namely a hope that the severest sentence will cause drivers to think twice before taking risks that might result in death there are a number of reasons why mandatory life sentences are not appropriate for these offences. The chief reason is that the intentional causing of death (murder) does carry an automatic life sentence. If death or really serious injury was intended by the defendant then that would be the appropriate charge.

Driving offences focus on the quality of the driving. Sometimes defendants deliberately (as seems to be the case here) drive extremely dangerously where the risk of causing death is extremely high. Plainly a very severe sentence in those circumstances would be justified and it seems likely in the near future that the maximum (although not mandatory) sentence for death by dangerous driving will be increased to life imprisonment. However death can also be caused by momentary lapses of attention of the sort that every driver every day might be guilty of. Automatic life imprisonment for someone who has driven blamelessly for years, who might have the highest possible character in terms of public service and who is wracked by remorse does not, to me, seem to accord with some basic principles underpinning society's approach to sentencing.

My main topic of interest here though is the issue of Victim Personal Statements (VPS). In reporting of this case and colloquially these are often referred to as victim impact statements but there is a subtle but potentially important distinction in the official nomenclature:

Victims of crime can choose whether to read these statements themselves at sentencing or have the prosecution barrister do so on their behalf. They are not produced in every case. They are often written before the trial has even happened. Sometimes a statement is made very early in the police investigation and an updated statement is made months later following a conviction. Occasionally the views of the victim can change markedly between those two statements.

In my opinion VPSs are important in a criminal justice system where victims can feel that they have very little voice. Judges should know, as should the public by reporting, what real life impacts are caused by serious cases. It is easy to make assumptions about how a particular crime may have affected a victim or bereaved person. There should be no room for assumptions in an evidence based criminal justice system.

However it is important that victims and society at large understand that judges when sentencing have to following statutory and common law authority. If a VPS calls for an offender to be locked up with the key thrown away the judge is not obliged to act upon that demand. Similarly, as sometimes happens, if a VPS calls upon a judge to show a defendant exceptional mercy and avoid imprisonment that should not be and is not determinative of the sentencing outcome.

Victims are entitled to write whatever they like in a VPS. That does not mean they are entitled to have anything and everything written in the statement read out in court. By way of extreme example if the VPS contains abusive or threatening language it would be absurd if the criminal justice system required judges to allow what may amount to a criminal offence to be committed in court in front of them.

Edits are regularly made to VPSs, what is important is that should only happen for proper reasons. Sparing the defendant's blushes or feelings is, in my opinion, very unlikely to be a proper reason. Inflaming what is in some cases a very highly charged sentencing hearing on the other hand might be. Reasons should be given and, insofar as it is possible, reasons should be understood.

Flexibility and discretion not rigidity and circumscription are what best serve justice and  best ensure that justice serves us.

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