Opinion | Crime and punishment: Keeping faith with victims while promoting criminal justice

By Grenville Cross

The objectives of criminal justice include upholding the law of the land and bringing offenders to account. This cannot be achieved by the police alone, and the cooperation of the victims of crime is also necessary. After all, if they do not report crimes, or refuse to provide assistance, or decline to testify at trial, offenders may well escape their just deserts, and remain a threat to others.

Everything, therefore, should be done to get victims on side. They need to be convinced not only that it is worth their while to cooperate, but also that their interests will be appropriately protected by the legal system.

Victims must, from the outset of cases to their conclusion, receive the full support of the police, the prosecutors and the courts. Although their role in criminal proceedings was often regarded as secondary, the "Victim of Crime Charter", which was first published by the Department of Justice in 1996 and is periodically updated, now requires the agencies which process criminal cases to prioritize the rights of victims in various areas. Apart from being treated with respect, victims are also entitled to information on the progress of their cases, to personal protection, to privacy and confidentiality, and to the right to be heard.

Thus, the Charter indicates that prosecutors "shall bring to the attention of the court the circumstances and views of the victim, whenever appropriate". Although this is reassuring, particularly insofar as it concerns such things as personal welfare, future prospects and compensation, it will have little relevance where punishment is involved. There are established constraints on the courts when it comes to acting on a victim's opinion in the determination of sentence.

In most cases, the courts treat the victim's views on punishment as being of little relevance. This is so irrespective of whether the victim wants severe punishment for the offender, which is common, or is prepared to forgive, which is rarer. Sentences cannot be adjusted upwards or downwards to reflect the victim's views, and the function of the courts is to achieve an overall consistency of approach when sentencing for particular offences.

In policy terms, wide fluctuations in sentence are undesirable for offenders who are guilty of the same or similar criminal conduct, and they certainly cannot be justified by reference to the attitude of particular victims. Indeed, the former high court judge, Conrad Seagroatt, once explained that, "in the normal course of events, the victim's views are not to influence the court's discretion on sentence".

After all, when a judge passes a sentence, he or she has to take a broad view of the offence and the offender, and decide what punishment is most appropriate in both the public interest and the offender's interest. If the offence is grave, perhaps involving violence, a deterrent sentence may be necessary to send out a message that society will not tolerate such conduct, even if the victim wants a lesser penalty. If, however, there are powerful mitigating factors, which justify the passing of a lenient sentence on an offender for a serious crime, the judge must impose a sentence which is just, even if it upsets the victim.

When, for example, there is domestic violence, it is not uncommon for the victim to forgive the offender. A wife who was harmed by her husband may have forgiven him, and want him home. But forgiveness cannot, save in wholly exceptional cases, absolve an offender from the consequences of the offence. As the former English judge, Lord (Nigel) Bridge once explained, even if a victim of domestic violence has forgiven her assailant, "the courts cannot regrettably be deflected from their duty of imposing sentences appropriate to the gravity of the offence".

Victims, of course, sometimes want retribution, of the eye-for-an-eye variety, which may be understandable, as where real harm has resulted from the offence, but, even then, the courts still have to impose a sentence which is objectively justified. They will, of course, give full weight to the impact of the offence on the victim, but they cannot enhance the sentence because the victim wants revenge. Although serious offences will usually attract severe punishment, the punishment, as England's former chief justice, Lord (Igor) Judge, once noted, "cannot be made longer by the court than would otherwise be appropriate".

This approach, however, is by no means universal, and, in some places, the victim's views can have a profound impact on sentence. In the Chinese mainland, for example, under the "Guiding Opinion on Sentencing of Common Crimes", which the Supreme People's Court issued in 2014, the victim can, in some circumstances, influence the offender's sentence. It stipulates that, if the victim's "economic damages are actively compensated and their forgiveness obtained, the base sentence may be reduced by up to 40 per cent on comprehensive consideration of the nature of the crime". The attitude of the victim, therefore, is crucial in the assessment of sentence, and must be ascertained before sentence is imposed.

Under Islamic law, moreover, retributive justice is enforced by the courts on the offender, and the victim's views help to determine his or her fate. If the victim decides to forgive or to accept compensation for the crime, the policy of 'qisas,' or strict retribution, is not enforced. In a homicide case, for example, the victim's heirs can seek the death penalty for the killer, or else forgive him and request "blood money", or compensation, in which event the court may then sentence him to up to 10 years' imprisonment. In one recent Iranian case, the victim, who was blinded by the offender after she refused his offer of marriage, forgave him, and the sentence of the court, that he also be blinded, was commuted.

This, however, is not how common law jurisdictions, like Hong Kong, approach things. But, even then, the courts must still ensure that their sentences are of a type which will maintain public confidence in the ability of the legal system to deliver justice to the victims. If they are not, the victims, and their relatives and friends, may lose faith and resort to vigilante justice, which must be avoided at all costs.

The sentences imposed on offenders must always be such as to acknowledge the gravity of the offence. If lenient penalties are to be imposed, which may cause anguish to victims and their relatives and friends, very clear reasons need to be given by the courts. The demoralizing effects of crime on victims should always be borne in mind by judges, and the sentences passed must be proportionate to the harm done. Where possible, sentences are required which will assuage the feelings of those affected by crime, and, if there is undue leniency, a severe backlash may well result.

Indeed, as the Court of Appeal's former Vice President, Sir Alan Huggins, once explained, society has "transferred to the courts the duty of ensuring that punishments are not so lenient that the victims or relatives will be tempted to take the law into their own hands".

Grenville Cross, a Senior Counsel, is Sentencing Editor of 'Hong Kong Cases' and Co-author of 'Sentencing in Hong Kong', and was previously the Director of Public Prosecutions of the Hong Kong SAR

The views do not necessarily reflect those of DotDotNews.