The Voiceless Victim: A critical analysis of the impact of enhanced victim participation in the criminal justice process

Abstract

In contrast to many European jurisdictions, the victim of an alleged crime in England, Wales and Northern Ireland is denied any form of meaningful participation at the trial stage of the criminal justice process. This is by reason of the unyielding structure of the Anglo-American adversarial system, which facilitates a dispute between two parties only -the prosecution, acting on behalf of the collective public interest and the defence. In recent years, however, the victims' movement has gained momentum as advocates of victims' rights have been engaged in an impassioned campaign to enhance the participatory rights of victims in the criminal justice process. Fervent arguments have been articulated pertaining to the value of various forms of victim input. This paper cogitates some of these arguments and critically evaluates how enhanced victim participation in the criminal justice process has the potential to undercut the integrity of the Anglo-American adversarial system; a system with objective adjudication at its core.

Victim Care or Defendant Rights? Assessing Public Attitudes towards Special Measures Designed to Support Vulnerable Witnesses at Trial

“…At the core of adversarialism is the establishment of guilt and in the interests of ensuring a fair trial, defendants are granted particular rights. As complainants and crown witnesses are (indirectly) represented by the state (CPS in an English context), it has long been considered unfair to afford them the same rights or provisions as the person accused (Moynihan 2015). For some then, the adversarial trial is deemed incompatible with measures designed to protect and promote the participation of parties other than the defendant (Hoyano 2001).…”

“…Victims' changing position within criminal trial policies has however elicited debate among legal scholars and activist groups over the importance (and perceived undue prioritisation) of defendant versus victims' rights. Indeed, many critical voices appear concerned that growing victims' rights threaten the due process principles underpinning the defendants' right to a fair trial (See Moynihan 2015;Pablo and Nicholson 2021). Prosecutors in E and W are by definition required to act in the public interest, not for a third party, and it is therefore a source of debate whether they can ever be truly objective.…”

A Former Crown’s Vision for Empowering Survivors of Sexual Violence

“…Additional criticisms have been raised by Sarah Moynihan, who argues that injecting the victim's voice into the adversarial system will result in a loss of objectivity in the criminal process. 114 Moynihan disagrees with the validity of balancing the rights of the accused with the rights of the victim because the outcome of injustice is different, referring to the risk of incarceration falling only on the accused. 115 She also takes the position that a victim's lawyer representing the victim's interests would introduce a third party into the process and undermine the equality of arms principle, that is, the accused would be required to face a 'double onslaught' by both the Crown and victim's counsel.…”