The Victim in Criminal Law and Justice Tyrone Kirchengast The Victim in Criminal Law and Justice This page intentionally left blank The Victim in Criminal Law and Justice Tyrone Kirchengast University of Newcastle, Australia © Tyrone Kirchengast 2006 All rights reserved. No reproduction, copy or transmission of this publication may be made without written permission. No paragraph of this publication may be reproduced, copied or transmitted save with written permission or in accordance with the provisions of the Copyright, Designs and Patents Act 1988, or under the terms of any licence permitting limited copying issued by the Copyright Licensing Agency, 90 Tottenham Court Road, London W1T 4LP. Any person who does any unauthorized act in relation to this publication may be liable to criminal prosecution and civil claims for damages. The author has asserted his right to be identified as the author of this work in accordance with the Copyright, Designs and Patents Act 1988. First published 2006 by PALGRAVE MACMILLAN Houndmills, Basingstoke, Hampshire RG21 6XS and 175 Fifth Avenue, New York, N.Y. 10010 Companies and representatives throughout the world PALGRAVE MACMILLAN is the global academic imprint of the Palgrave Macmillan division of St. Martin’s Press, LLC and of Palgrave Macmillan Ltd. Macmillan® is a registered trademark in the United States, United Kingdom and other countries. Palgrave is a registered trademark in the European Union and other countries. ISBN 13: 978–1–4039–8610–8 hardback ISBN 10: 1–4039–8610–X hardback This book is printed on paper suitable for recycling and made from fully managed and sustained forest sources. A catalogue record for this book is available from the British Library. Library of Congress Cataloging-in-Publication Data Kirchengast, Tyrone, 1978– The victim in criminal law and justice / Tyrone Kirchengast. p. cm. Includes bibliographical references and index. ISBN 1–4039–8610–X (cloth) 1. Victims of crimes–Legal status, laws, etc.–Great Britain. 2. Prosecution–Great Britain. 3. Criminal justice, Administration of–Great Britain. 4. Victims of crimes–Legal status, laws, etc.–England–History. 5. Prosecution–England–History. 6. Criminal justice, Administration of–England–History. I. Title. KD8470.K57 2006 345.41′05–dc22 2006047486 10987654321 15 14 13 12 11 10 09 08 07 06 Printed and bound in Great Britain by Antony Rowe Ltd, Chippenham and Eastbourne Contents 1 The Victim as Concept 1 The victim, criminology and the state 8 The shift from feudal property relations to the state 10 The undisciplined society, the state and the victim 12 The autonomous state and the victim 13 Governmentality 14 The milieu of the victim in history and discourse 16 2 Private Prosecution 23 Social conditions and the government of private disputes from 1066 to the thirteenth century 24 Changing social and political conditions 1066–1200 25 The influence of the church 27 The hundred courts and county courts 28 Private prosecution and settlement 1066–1500 28 Types of appealable offences and modes of proof 31 The social context of private prosecution 33 Appeal procedure and the rise of presentment 35 The development of prosecution under the Crown 39 Appeals in gaol delivery and the curia regis 41 Prosecution by the King’s approver’s 42 The erosion of the common law power of the victim 43 The abolition of private settlement 44 The writ of trespass 46 The rise of statutory courts of criminal jurisdiction 47 The decline of the general eyre 48 Felony, misdemeanour and communal order 49 The rise of the justice of the peace and the court of quarter sessions 50 The King’s peace and the emergence of criminal law 51 The transfer of victim power to the Crown 54 3 Public Prosecution 57 Changing social conditions and the public regulation of criminal justice 58 Prosecution associations for the apprehension of felons 61 v House of Commons debates as to the Office of a Director of Public Prosecutions 62 Power of intervention: private prosecution, the Attorney- General and nolle prosequi 65 Commencement of proceedings 66 The Crown Prosecution Service and the ODPP 67 The decision to prosecute and the Crown Prosecution Service 69 Judicial review of the ODPP’s decision to stay criminal proceedings 69 Private prosecution 71 Procedural constraints on private prosecution 71 The ODPP and the interests of the victim: R v AEM Snr; R v KEM; R v MM [2002] NSWCCA 58 73 The emergence of civil remedies for want of prosecution 74 The rise of defendant rights and limitations on the discretion of the prosecutor in the law of evidence 75 Prosecutions and the social 78 4 Police 79 Early modes of policing and the King’s peace 900–1830 81 Victim power and the hue and cry 81 Frankpledge and the keeping of community peace 83 The office of justice of the peace as keeper of the peace 84 The rise of the constable 85 The rise of the parish constable 85 Problems with the office of constable and the collapse of the old system of policing 86 The development of a modern police force under the Metropolitan Police Act 1829 UK 88 The history of policing and the Metropolitan Police Bill 1829 UK 89 Changes instituted by the Metropolitan Police Act 1829 UK and the continued relevance of the victim 89 The rise of metropolitan policing and the victim 91 The modern police and common law powers of arrest 92 Statutory and common law powers of police prosecution 93 Police as prosecutors: issues and tensions 95 Police, private prosecution and the ODPP 96 Private prosecution after charge by the police: R v Ealing Magistrates’ Court Ex parte Dixon (1989) 2 ALL ER 1050 97 The victim and modern policing 98 Policing: a victim power 99 vi Contents 5 Prisons, Penalty and Punishment 101 The history of punishment and the victim 102 Private settlement and victim discretion in antiquity 102 Punishment, church and state 103 Punishment and the King’s peace 104 History of the English prison 1150–2000 105 The introduction of new punishments and the decline of private settlement: 1150–1700 106 The emergence of houses of correction, prisoner reform and the state: 1700–1850 108 The genesis of the modern prison: 1850–today 111 Criminology 113 Liberal perspectives 114 Scientific positivism and the birth of the criminal individual 117 Social theory and the human sciences 118 Neo-liberal perspectives 119 Modern penology and modes of reform 121 From vengeance to the rehabilitation of the offender 122 Just deserts and retributivism 123 Shaming and reintegration 123 Victim-offender mediation 124 Governmentality, punishment and the victim 125 6 The Erosion of the Victim and the Rise of State Power from 1600 127 The victim and the development of criminal law from 1600 128 The expansion of treacherous offences 129 Statutory amendment of the common law 130 The court of Star Chamber and the growth of misdemeanour offences 133 The growth of criminal procedure 135 Growth of the substantive law of homicide 137 Growth of the substantive law of assault 140 Larceny and theft 143 Inchoate offences 145 The development of criminal proof and intent 145 The expansion of public order offences into the twentieth century 149 The decline of the jury 152 Criminal informations and private prosecution 153 The exclusion of the victim and the consolidation of criminal law 156 Contents vii 7 Emergence of the Victim Rights Movement 159 Factors influencing the rise of victim rights 161 The introduction of state controlled victim compensation programs 162 The rise of victimology 164 The rise in women’s consciousness and feminism 166 The rise in crime, new crimes, fear of crime, and the media 169 Victim power and agency at common law 171 Growth of victim agency and advocacy at the local and state level 173 The rise of a general critique of state domination 174 Victim rights groups: four examples 177 Mothers Against Drunk Driving, California, USA 178 Victims of Crime Assistance League, NSW, Australia 179 Parents for Megan’s Law, New York, USA 181 Victim Support, UK 183 Victim rights, genealogy and the state 185 8 Relocating the Victim in Common Law and Statute 186 Common law change and the relocation of the victim from 1970 188 Private prosecution 190 Victim impact statements 192 The victim and due process 194 Victim experience in provocation and drug law 196 Apprehended violence orders 197 Changes to the law of double jeopardy 198 A statutory space for victims: the rise of criminal injuries compensation and victim assistance programs 201 Victim assistance as a source of limited judicial participation 203 The need for personal retribution 203 The dominance of the state in administering compensation 204 Risk minimisation and victim protection 205 Removal of the victim from the common law 206 The victim vs the state and the consolidation of criminal law 206 Conflict as property: victim owned conflict and the genesis of criminal law and justice 210 Victim history, genealogy and the development of criminal law and justice 213 viii Contents 9 The Victim as an Agent of Criminal Law and Justice 218 The victim and the growth of criminal law and justice 219 Themes revisited: criminal law and the state 222 The governmentalisation of criminal law: the victim, the state and decentralised justice 224 The future of victim relations: consequences for legal theory and practice 228 Notes 231 References 241 Index 253 Contents ix [...]... way criminal justice came to focus on the criminal exclusively, leading to the demise of the significance of the victim From here, criminal law and justice began to represent the criminal, the state and the common law as removed from the victim (Hay, 1975: 38–42; Thompson, 1975: 270–7) Representing the private interests of the landed classes, criminal law began to represent the values of the King, the. .. This, in turn, challenges the assumption that criminal law is consolidated around the interests of the state, to the exclusion of the power of the victim Rather, the victim has been integral to the shaping of the law as evidenced by the active role they have played in the organisation of criminal law and justice since 1066 With the transfer of victim power, the Crown and state came to subsume the centrality... Criminological theory discussing the modern victim generally tends to provide little detail of the genealogy of the victim as an agent of power Instead, the state and its institutions are identified as constituting criminal justice, to the 8 The Victim in Criminal Law and Justice disempowerment of victims generally By establishing a genealogy of the victim in the emergence of key developments in criminal justice. .. and the criminal The victim has always played a fundamental role in the formation of criminal law and justice on both a procedural and substantive level The interaction of the victim with various institutions of the early counties, the community, the King, and the institutions of modern government, show how the victim is indeed a powerful discursive agent in the formation of criminal law and justice This... victim, this resulted in the states unquestioned monopolisation of criminal prosecution and punishment This has led to the state being identified as the inherent source of criminal law and justice over the victim 10 The Victim in Criminal Law and Justice The shift from feudal property relations to the state The changing legal practices of secular and church authorities in the twelfth and thirteenth centuries... protection and rehabilitation of the criminal, social control, and state sovereignty, in controlling criminal justice Literature critiquing the role of the victim in the modern justice system generally views the victim as lacking certain powers and rights at law A key argument supported by victimologists generally is that the modern victim is silenced by the dominant role the state plays in regulating the. .. of criminal actions These programs seek to empower the 20 The Victim in Criminal Law and Justice victim through the provision of compensation for pain and suffering, restitution, property damage and referral for counselling Combined with developments in the common law, the rise of victim compensation and assistance suggests that the victim is being brought back into the criminal justice system However,... History of English Law, institutions of criminal justice established around the victim and then later, the sovereign Just as the orthodox victim was deprived of their common law power by provincial, sovereign, and then social interests, the modern victim is capable of being empowered by re-invoking those discourses that place the victim within close proximity to the criminal justice process The development... by victim groups Changes to the common law and the rise of victim assistance are identified by victim groups as competing with the sovereignty of the state, because the victim is being compensated for the failure of the state to secure public order The reinclusion of the victim is thus neither complete nor plenary The competing interests of contemporary criminal justice stop the victim from gaining increased... to the shaping of criminal law and justice from the first instance Drawing on the preceding chapters, Chapter 8 concludes that the re-inclusion of the victim is limited and regulated in accordance with the victim s prior transfer of power to the state This chapter suggests that the victim can be empowered by invoking discourses that place the victim within The Victim as Concept 21 close proximity to the . The Victim in Criminal Law and Justice Tyrone Kirchengast The Victim in Criminal Law and Justice This page intentionally left blank The Victim in Criminal Law. growth of criminal law and justice 219 Themes revisited: criminal law and the state 222 The governmentalisation of criminal law: the victim, the state and decentralised