Abstract
The twenty-first century criminal trial is increasingly modified to benefit the needs of crime victims. Victims are increasingly participating in all phases of the criminal trial, with new substantive and procedural rights, many of which may be enforced against the state or defendant. This movement to enforceable rights has been controversial, and evidences a contested terrain between lawyers, defendants, policy-makers, and even victims themselves. By elaborating upon the various ways in which victims are appropriately placed in the modern criminal trial process, this book demonstrates how victims are significantly connected to and even constitutive of the modern adversarial criminal trial. In order to demonstrate the connectedness of the victim to the modern trial, all processes that seek to place the victim as a significantly determinative and even constitutive agent of justice will be considered. The role of the victim, and the rights and powers afforded to them, will therefore be considered in the context of pre-trial processes through to trial, sentencing, and corrections, within the primary context of the Western adversarial trial. Alternative pathways will also be considered, as will international law and procedure, in addition to extra-curial or adjunctive rights provided by international instruments, ratified declarations of rights, or executive order. The twenty-first century criminal trial is increasingly reconceived in form and substance, yet victims remain controversial and contested participants of justice, despite being increasingly connected to the criminal trial.
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Notes
- 1.
In certain jurisdictions, modification of the trial process and the law of evidence concerning sex offences began in the late 1970s. However, it was not until the late 1990s and early 2000s that such rights and protections became comprehensive for sex offences victims, and then universalised as an entitlement to all vulnerable victims and witnesses.
- 2.
Section 32 of the Domestic Violence, Crime and Victims Act 2004 (UK) creates the Code of Practice for Victims of Crime. The section prescribes who may be included in the Victims’ Code and who is absolved of liability or duty accordingly: ‘(1) The Secretary of State must issue a code of practice as to the services to be provided to a victim of criminal conduct by persons appearing to him to have functions relating to: (a) victims of criminal conduct, or (b) any aspect of the criminal justice system. (2) The code may restrict the application of its provisions to: (a) specified descriptions of victims; (b) victims of specified offences or descriptions of conduct; (c) specified persons or descriptions of persons appearing to the Secretary of State to have functions of the kind mentioned in subsection (1). (3) The code may include provision requiring or permitting the services which are to be provided to a victim to be provided to one or more others: (a) instead of the victim (e.g., where the victim has died); (b) as well as the victim. (4) The code may make different provision for different purposes, including different provision for: (a) different descriptions of victims; (b) persons who have different functions or descriptions of functions; (c) different areas. (5) The code may not require anything to be done by: (a) a person acting in a judicial capacity; (b) a person acting in the discharge of a function of a member of the Crown Prosecution Service which involves the exercise of a discretion. (6) In determining whether a person is a victim of criminal conduct for the purposes of this section, it is immaterial that no person has been charged with or convicted of an offence in respect of the conduct. (7) In this section: ‘criminal conduct’ means conduct constituting an offence; ‘specified’ means specified in the code.’
- 3.
See Chap. 8 for a discussion of extra-curial rights and powers for victims of crime.
- 4.
Enforceable rights are discussed throughout this book but consultative rights in pre-trial processes are principally discussed in Chap. 2.
- 5.
Also see Perez v France (2004) ECHR 47287/99, at par [68].
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Kirchengast, T. (2016). Victims and the Criminal Trial Process. In: Victims and the Criminal Trial. Palgrave Studies in Victims and Victimology. Palgrave Macmillan, London. https://doi.org/10.1057/978-1-137-51000-6_1
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