Introduction
The traditional model of criminal justice in England and Wales has long been understood as a bipartite process between the state and the defendant. The victim, for many years, was relegated to the role of a mere witness, their personal experiences and interests considered secondary to the public interest in prosecuting crime (Sanders et al., 2018). However, over the past few decades, a significant shift has occurred, marked by the rise of a ‘victims’ rights’ movement. This has led to a series of reforms aimed at placing victims at the heart of the criminal justice system (CJS), with the stated objective of improving their experience and, consequently, their confidence in its operation.
This essay will assess whether these reforms have achieved their goal of improving victim confidence in the CJS. It will also examine the central tension this creates: whether the drive to empower victims has come at the cost of eroding the defendant’s fundamental right to a fair trial, as guaranteed by Article 6 of the European Convention on Human Rights (ECHR). This essay will argue that while the intention behind victims’ rights reforms is commendable and necessary, their success in improving confidence is limited and inconsistent. Furthermore, it will contend that certain reforms, particularly concerning victim statements and witness procedures, do pose a tangible challenge to the principles of a fair trial, creating a difficult balancing act for the courts that is not always successfully managed.
The Aims of Victims' Rights Reforms: Improving Confidence
The impetus for victims’ rights reforms stems from widespread recognition that the CJS was failing victims. Research consistently highlighted high levels of dissatisfaction, with many feeling marginalised, poorly informed, and re-traumatised by the very process that was supposed to deliver justice (Ashworth, 2000). Low public confidence can lead to reduced cooperation with the police and a reluctance to report crime, thereby undermining the effectiveness of the entire system. In response, successive governments have introduced measures designed to formalise the victim’s role and guarantee them a minimum standard of service.
A key milestone was the enactment of the Domestic Violence, Crime and Victims Act 2004, which for the first time gave statutory footing to a Code of Practice for Victims of Crime (the ‘Victims’ Code’). The latest version of the Code (Ministry of Justice, 2021) outlines twelve core rights for victims, including the right to be provided with information about their case, the right to be referred to support services, and the right to make a Victim Personal Statement (VPS). The overarching goal is to ensure victims are “treated with respect, dignity and sensitivity” and to increase their sense of procedural justice—the feeling that the process itself has been fair, regardless of the outcome (Tyler, 2003).
The creation of the office of the Victims’ Commissioner for England and Wales was another significant step, intended to act as an independent voice for victims and scrutinise the performance of justice agencies in delivering their entitlements under the Code. The ongoing legislative process for a new Victims and Prisoners Bill further demonstrates the political commitment to this agenda, promising to strengthen the duties owed to victims. The explicit aim of these reforms is to bolster confidence by making the CJS more responsive and respectful to those it is meant to protect. By giving victims a voice and keeping them informed, it is hoped they will feel more valued and, in turn, have greater faith in the justice process.
The Challenge to Defendants’ Fair Trial Rights
While the objectives of these reforms are largely supported, their implementation raises fundamental questions about the impact on the rights of the accused. The adversarial nature of the CJS in England and Wales is built upon the principle of ‘equality of arms’ and the presumption of innocence, both central tenants of the right to a fair trial under Article 6 ECHR. Critics argue that elevating the status of the victim risks tilting this carefully calibrated balance, potentially prejudicing the defendant. This tension is most evident in three key areas: Victim Personal Statements, special measures for witnesses, and disclosure rules.
Victim Personal Statements (VPS)
The right to make a VPS allows a victim to explain in their own words how a crime has affected them physically, emotionally, financially, or in any other way. The statement can be read out in court during sentencing if the defendant is found guilty or pleads guilty. The purpose, as stated in the Criminal Practice Directions, is to help the court understand the impact of the offence on the victim, not to influence the verdict or determine the sentence (Courts and Tribunals Judiciary, 2023).
However, there is a significant risk that a VPS can prejudice the sentencing process. An emotive or inflammatory statement could unduly influence a sentencer, leading to a harsher penalty than might otherwise be imposed, thereby undermining the principle of objective and proportionate sentencing. The Court of Appeal has repeatedly stressed that the VPS is not a chance for the victim to demand a specific sentence and that sentencers must not be swayed by such opinions (see R v Perks [2001] 2 Cr App R (S) 19). Despite these judicial warnings, the potential for prejudice remains. The very act of a victim expressing their suffering in open court can create an emotionally charged atmosphere that is difficult for any decision-maker, including professional judges, to ignore completely. This raises a concern about whether the defendant is being sentenced solely on the facts of the offence or partly on the perceived character and articulacy of the victim.
Special Measures for Vulnerable Witnesses
The Youth Justice and Criminal Evidence Act 1999 (YJCEA 1999) introduced a range of ‘special measures’ to help vulnerable or intimidated witnesses, including many victims of serious crime, to give their best evidence. These measures include the use of screens to shield the witness from the defendant, giving evidence via a live video link, or having the evidence pre-recorded.
The rationale is clear: a distressed witness is unlikely to be a reliable or effective one. These measures are designed to reduce the trauma of giving evidence, thereby improving the quality and completeness of their testimony. However, they directly challenge the defendant’s long-established common law right to confront their accuser in person. The physical presence of the defendant during testimony is seen as an important tool for the defence and a component of a fair trial, allowing the jury to observe thedemeanourof both the accuser and the accused. As Lord Bingham noted in the case of R v Davis [2008] UKHL 36, which concerned anonymous witnesses, the right to confront one's accusers is a fundamental aspect of a fair trial. While special measures do not grant anonymity, the use of screens or video links can create a perception in the minds of the jury that the defendant is dangerous and, by implication, guilty. The trial judge must give the jury a direction to avoid this prejudice, but as with the VPS, there is a question over how effective such warnings truly are in erasing a powerful visual impression. The pursuit of making the process better for the victim risks subtly undermining the presumption of innocence.
Disclosure of Evidence
A third area of tension concerns the disclosure of evidence. The defendant has a right to see material held by the prosecution that might undermine the prosecution’s case or assist the defence case (R v Stinchcombe [1991] 1 WLR 1395). In recent years, this has led to controversy over the disclosure of victims' personal data, such as the contents of their mobile phones, social media history, or counselling records, particularly in sexual offence cases.
From a defence perspective, such information can be vital to test the credibility of a complainant and ensure a fair trial. However, victims and their advocates argue that these requests can amount to intrusive ‘fishing expeditions’ that violate their right to privacy (Article 8 ECHR) and deter them from reporting crimes. This has created a direct conflict between the victim's right to privacy and the defendant’s right to a fair trial. In response, the Attorney General has issued guidelines attempting to ensure that requests for third-party material are "strictly necessary and proportionate" (Attorney General's Office, 2022). While this provides a framework, it places a heavy burden on police and prosecutors to balance these competing rights correctly. An error in either direction can have severe consequences: failing to disclose relevant material could lead to a miscarriage of justice, while overly broad disclosure can cause immense distress to the victim and damage their confidence in the system.
An Evaluation of the Reforms' Success
Given these tensions, a final assessment must return to the two parts of the essay question. Firstly, have the reforms actually improved victim confidence? The evidence here is ambiguous. The Victims’ Commissioner’s annual reports often highlight a significant ‘implementation gap’ between the rights promised in the Victims’ Code and the reality of victims’ experiences. For example, a 2022 report found that just 45% of victims with a reported outcome were offered the chance to make a Victim Personal Statement, a flagship right (Victims' Commissioner, 2022). Such failures mean that for many, the CJS remains a bewildering and alienating process. While some victims undoubtedly benefit from the reforms, the lack of consistent delivery means that any overall gain in confidence is likely modest at best. The reforms appear to have raised expectations more than they have delivered consistent improvements.
Secondly, have these reforms weakened fair trial rights? The answer is not straightforward. The judiciary has been careful to erect safeguards to manage the impact of victim-focused measures. Practice directions on the use of VPS and jury warnings regarding special measures are designed to mitigate prejudice. However, it can be argued that the cumulative effect of these reforms contributes to a cultural shift in the CJS that subtly moves away from a strict focus on the defendant's procedural rights towards a more inquisitorial, victim-centred approach. The risk is that the presumption of innocence is not formally removed but is simply diluted by a process that increasingly appears to presume the credibility of the ‘victim’ before a verdict has been reached. While the courts remain a bastion of defendants' rights, the procedural changes at the pre-trial and trial stages create a persistent risk that this protection is weakened in practice, even if not in legal theory.
Conclusion
In conclusion, victims' rights reforms have been introduced to address a genuine and serious failing in the criminal justice system. The goal of improving victims' confidence by treating them with dignity and giving them a voice is both important and necessary for the legitimacy of the CJS. However, the success of these reforms in achieving this aim has been partial and inconsistent, often hampered by poor implementation on the ground.
Simultaneously, these reforms have undeniably created new tensions with the defendant’s right to a fair trial under Article 6 ECHR. The introduction of Victim Personal Statements, the routine use of special measures, and ongoing debates around disclosure all show that enhancing the role of the victim is not a legally neutral act. It has the potential to introduce emotive prejudice and disrupt the 'equality of arms' that underpins the adversarial system. While the courts have attempted to police this boundary, it is questionable whether judicial warnings and practice directions are fully effective in neutralising the risk of an unfair trial. Therefore, it cannot be said that the reforms have been implemented without weakening defendants’ fair trial rights. The balance is a precarious one, and the evidence suggests that in the effort to improve the experience for victims, the fundamental rights of the accused have, at the very least, been made more vulnerable.
References
Ashworth, A. (2000) ‘Victims' Rights, Defendants' Rights and Criminal Procedure’, in A. Crawford and J. Goodey (eds.) Integrating a Victim Perspective within Criminal Justice. Dartmouth Publishing.
Attorney General's Office. (2022) Attorney General’s Guidelines on Disclosure for investigators, prosecutors and defence practitioners.
Courts and Tribunals Judiciary. (2023) Criminal Practice Directions 2023.
Ministry of Justice. (2021) Code of Practice for Victims of Crime in England and Wales.
R v Davis [2008] UKHL 36.
R v Perks [2001] 2 Cr App R (S) 19.
R v Stinchcombe [1991] 1 WLR 1395.
Sanders, A., Hoyle, C. and Morgan, R. (2018) 'Victims,' in The Oxford Handbook of Criminology. 6th ed. Oxford University Press.
Tyler, T. R. (2003) ‘Procedural Justice, Legitimacy, and the Effective Rule of Law’, Crime and Justice, 30, pp. 283–357.
Victims' Commissioner for England and Wales. (2022) Victim Surcharge consultation response.
Youth Justice and Criminal Evidence Act 1999.
Domestic Violence, Crime and Victims Act 2004.
