The Guardian view on criminal justice: when feelings trump rigour
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Version 0 of 1. Maybe you are a wizard with back-ups and clouds, but – if not – losing your phone will induce real panic at least, and at worst something like grief. It’s a graver matter than losing, say, a Walkman a generation back, because it’s also the loss of an address book and a family photo album, and maybe the friendships and memories embedded in these. It might, then, sound like common sense for the sentencing council to specify, as it did in new guidelines this week, that the “emotional distress” that might result, for example, from pinched personal data will now be deemed an aggravating factor in punishing thieves. But this is one small part of a developing emphasis on feelings in the criminal justice system, which comes at the expense of its traditional dispassion. Elements of the “victim’s rights” agenda, such as rising expectations on the court to keep victims posted about their case, are beyond argument. Others, however, are more contentious – or, at least, they ought to be. The system has always had to reckon with the consequences of misdeeds, of course. Get caught speeding after killing a child and your treatment is, inevitably, harsher than if you had the good luck to get clocked speeding just as recklessly before you’d caused any harm. Steal a phone that turns out to contain the only snap of a lost love and you have, arguably, had the same sort of “moral misfortune” as the speeding motorist who just happened to run into a child. Feelings of loss are, however, a much more subjective matter than the solid fact of a lost life. The potentially perverse consequences of leaning too heavily on the emotions of victims was illustrated last month when the court of appeal ruled that abusers of Asian children deserved longer sentences because their victims suffered more than other children. Shame may well be a special problem in some communities, but give that too much weight and the divisive effect might be to leave other victims feeling like they warrant less protection. The scales of justice have to weigh all sorts of things – facts, culpability and the public interest. Adding feelings to the mix, in the name of “tilting the balance towards the victim”, is always tough to argue against, but won’t always make things fairer. Sometimes, as with victims’ pre-sentence statements, it has been done without the dire consequences that defence lawyers feared. But sometimes, as when a bloody-minded victim is consulted on the precise charges to be pursued, process gets arbitrarily distorted. And if the push to warn witnesses about the questions they will face in court goes too far, prosecution cases will not be tested as rigorously as they should be. The impulse to protect rape victims, especially, from aggressive interrogation is commendable, but it would be better advanced by stricter rulings from the bench. It is the state, not the victim, that prosecutes. If that is forgotten, retribution will take precedence over other aims of punishment, such as rehabilitation. The demand will always be to add new aggravating, not mitigating, factors. And in writing courtroom rules, the pressure will be to secure more convictions at the expense of the old overriding priority of ensuring the innocent go free. The 19th and 20th centuries saw ever-more protections extended to those in the dock: it was a civilising march. In the 21st century so far, all the emphasis is instead on feelings in the witness stand. That can’t go on forever without upsetting the scales. |