Victims’ false expectations
Victims’ false expectations
Prosecution inspectorate recommends reform of homicide law
Victims of crime and their families have been led to believe that their role in the criminal justice system is greater than it is in reality, the chief inspector of the Crown Prosecution Service (CPS) said yesterday.
Anthony Rogers told me that the “narrative of putting victims at the heart of the criminal justice system is leading to false expectations”.
Families had been told they would be “consulted” when in reality they would merely be “informed”.
“Victims have the right to be listened to, informed and heard, but they don’t have the right to be consulting with the CPS to try to get what they think they should have the right to have,” he said.
Rogers was responding to reporters’ questions about his report on the case of Valdo Calocane, who killed two students and a caretaker in Nottingham last year and then drove a stolen van at pedestrians, seriously injuring three others.
He received a hospital order under section 37 of the Mental Health Act 1983 combined with a restriction order under section 41 — which means he will not be released until either the justice secretary or the first-tier tribunal concludes that he no longer poses a risk to the public.
The attorney general has asked the Court of Appeal to consider whether that sentence is unduly lenient but no date has been set for a hearing.
As expected, the inspectorate found that the CPS had been right to charge Calocane with three counts of murder. In the light of the psychiatric evidence, prosecutors had also been right to accept the defendant’s pleas of not guilty to murder but guilty to manslaughter by reason of diminished responsibility.
Also as expected, the inspectorate found that the CPS could have improved its engagement with the victims’ families.
Consultation
Yesterday’s inspection report noted the families’ concerns that they had not been consulted by the CPS before it decided to accept Calocane’s guilty pleas. It continued:
The word “consult” was used in the prosecution’s opening address to the judge at the sentencing hearing, with there being reference to the prosecution having considered the psychiatric conclusions and having “consulted with the families of the deceased” and that “[the prosecution] considered carefully the representations that were made in the course of those consultations”.
We also found that the word “consult” was used in a communication between the CPS and the police when the CPS confirmed that they would delay the decision to accept pleas and notify the court that they needed further time to consult with the bereaved families.
In fact, there is no obligation for prosecutors to take the views of victims or their families into account in cases where a charge is dropped because of insufficient evidence. Instead, said the inspectorate, the CPS “should ‘inform’ and ‘explain’ where required”.
The CPS was instructed to review its guidance on victims’ engagement to make sure knew when it was appropriate to use terms such as “consult”.
Murder
The victims’ families had wanted to see Calocane tried for murder. That would have been possible if successive governments had not rejected proposals from their law reform advisers.
In 2006, the Law Commission recommended that the existing offences of murder and manslaughter should be replaced with three tiers of homicide.
First-degree murder would have been confined to:
unlawful killings committed with an intention to kill.
unlawful killings committed with an intent to cause serious injury where the killer was aware that his or her conduct involved a serious risk of causing death.
Second-degree murder would have encompassed:
unlawful killings committed with an intent to cause serious harm.
unlawful killings intended to cause injury or fear or risk of injury where the killer was aware that his or her conduct involved a serious risk of causing death.
cases which would constitute first degree murder but for the fact that the accused successfully pleads provocation, diminished responsibility or that he or she had killed pursuant to a suicide pact.
Manslaughter would have consisted of:
unlawful killings caused by acts of gross negligence
unlawful killings caused by a criminal act that was intended to cause injury or by a criminal act foreseen as involving a serious risk of causing some injury.
“The term manslaughter has the perception to underplay the gravity of what has taken place,” the inspectorate observed yesterday. It was understandable that the bereaved families had found the CPS decision difficult to accept. Their loved ones had been violently killed by an offender who knew that he was doing was wrong and who intended to kill them.
Recommendations
In the chief inspector’s view, ministers should now consider:
Whether homicide should be categorised in three tiers, as recommended by the Law Commission in 2006.
Whether the culpability of the person who commits murder should be reduced to manslaughter by reason of diminished responsibility.
If homicide is not to be categorised in three tiers as recommended by the Law Commission in 2006 and diminished responsibility is not to be a partial defence to murder, whether the mandatory life sentence should remain for all cases of murder.
Whether the support provided by the existing victims’ code and bereaved family scheme should be reconsidered; and whether and to what extent victims should be consulted or informed about decisions.
The victims’ commissioner, Baroness Newlove, said that the chief inspector had highlighted “a critical gap” relating to manslaughter on grounds of diminished responsibility. “I hope ministers will reflect on this and explore whether the law should be changed so that the description of the offence better reflects its gravity,” she added.
Today’s edition of Law in Action will be the last to be broadcast by the BBC; the series, which began in 1984, has not been recommissioned by Radio 4.
In our farewell programme, which you can hear at 4pm today and then on BBC Sounds, I’ll be asking my distinguished guests — and a new generation of young citizens — what has changed in the past 40 years and what they would like to see in the future. There may be some surprises.
I very much agree with your esteemed earlier contributors, Joshua.
As to unlawful homicides I have long believed and maintained, sometimes to the outrage of friends and wider groupings, that sentences for ALL such offences should be AT LARGE, by way quite likely of the Law Commission’s detailed recommendations, with our finally, finally waving “goodbye” to the SO OFTEN largely artificial distinctions drawn between murder and manslaughter according to the perceived inappropriateness of a mandatory life sentence in all the extenuating circumstances . There would surely then be a way clear to afford clear and measured scope to assisted suicide cases, where there has - surely?- existed the temptation to stretch a point and arrive tenuously at a diminished responsibility part- defence when common mercy and justice had demanded it.
As to the Chief Inspector’s claim that there has been - on the most charitable interpretation- careless overuse of the word “consultation” I am with him. I do strongly believe that building up victims’ (illegitimate and exaggerated) expectations of their role has been too often a political - and indeed a party political - calculation by those who ought to have known better. Give - or allow- victims to assume that they are entitled to a conclusive “say” on sentence and they and their family and supporters will all the more complain of the system concentrating upon fairness for the offender at the expense of the victim. The US model is deeply disturbing and we must all surely resist its siren voice.
I am shocked, Joshua, that the BBC as still professedly THE public service broadcaster should have failed to recommission Law in Action. Its inherent public interest value remains when one hears and reads of Parliamentarians’ genuine misunderstandings of even the most basic concepts and purpose of our justice system. Little wonder with also the so often malign and illiberal media coverage that the public showered with so many misconceptions become yet worse informed or even more misinformed. From very early days I firmly contend that a factual and well grounded knowledge of it should feature in our education system. In all immodesty, I have been trying better to inform my own constituency MP who in fairness was and remains receptive. Joshua over that programme, over “A lawyer writes” and in so many respects these many years we owe you a great deal. I am sure that will continue to be the case for a long time yet. Thank you!
Far from Law in Action being jettisoned by the BBC, they would be well advised to seek a wider audience for its content by finding a suitable format for it to be televised. With all the fake news permeating modern life, there has surely never been a greater need for factual programmes that explore and explain how our institutions work, or sometimes fail to work, for our society and its citizens. My thanks, Joshua, to you and your colleagues on the programme for all you have done down the years to shed light on the workings of the justice system.