The Privatisation of Criminal Law


In Albania blood feuds can last generations. Their causes may be obscure, even trivial, but honour must be satisfied. When a man has been murdered, honour demands that all the men in the murderer’s family must be killed in revenge. The conduct of feuds is regulated in a centuries-old code called the Kanun. Having lain dormant in the communist era, feuding reappeared in the lawless times which followed its demise. State institutions disappeared or failed to command any respect. Primordial forms of private vengeance took over. Justice was privatised.

While Albania revisited the middle ages, the UK discovered the victim as media celebrity, and in a paradox that is typical of our times, there was born a double helix of public grieving tied to an ever more privatised criminal process, with victims centre stage. The grieving parents of murdered children were pushed in front of cameras, and their raw grief amplified by the media became a potent political force. First came Denise Fergus in 1993, the mother of 3 year old Jamie Bulger, kidnapped and brutally killed by two very disturbed boys themselves aged only 10. CCTV pictures showed them leading the trustful Jamie by the hand out of the shopping mall where he was wandering on his own. Tony Blair saw the potential of the story to give him a hard-edged law-and-order profile and rowed himself into the centre of public consciousness, and from then on the victims of crime were accorded a special place in the criminal justice system, which was said to have got out of balance.

Sara Payne, Doreen Lawrence, and many others have trodden the same path as Denise Fergus. Ms Payne was the making (and now perhaps the unmaking) of Rebekah Brooks; the use that was made of her certainly sold plenty of copies of the News of the World to readers avid for the authenticity of her grief – an authenticity that conventional glamour celebs and footballers so plainly lacked, except when they became their own victims through drink, drugs, betrayal, and madness. Mrs Lawrence showed rare dignity and composure in circumstances of unbearable pain and merciless public scrutiny.

Private faces in public places may be wiser and nicer than public faces in private places: until the cynical public faces exploit the private faces to give credibility to some very nasty ideas.  This is what happened in 2000 when the NoW published photographs and addresses of convicted sex offenders, after the then unsolved murder of Sarah Payne. Ms Brooks said she wanted the law changed so parents could obtain criminal records of their neighbours in case any paedophiles lived nearby. What she got was mob violence, including an attack on a paediatrician damned by the first four letters of her occupation. It was an ugly, brutal moment. Ms Brooks says this campaign was her proudest achievement.

Many people, including the police who had to clear up the mess, thought the campaign went too far; but policy makers noticed its popularity. Bashing criminals, never out of fashion, became a totemic symbol of political virility as never before. ‘Rebalancing the criminal justice system’ was the rubric under which hard-won rights of defendants began to be salami-sliced, and then after 9/11, chainsawed away. The grief of the victims began to be measured against those rights, as if they were in conflict. Of course they are not: making sure that only the guilty are convicted does not exclude – it positively requires – respectful treatment of victims. Since the Criminal Justice Act 2003, all attacks on the character of witnesses require the permission of the Judge according to strict rules of relevance and admissibility. The business of criminal law is not to satisfy the wishes of victims – it is to mark society’s repugnance for forms of conduct designated as crimes.

As the NoW campaign showed, the lynch mob is never far away and can be summoned at a moment’s notice. The mob tried to get its hands on the children who killed poor Jamie Bulger. Criminal law, for all its imperfections, is a big improvement on the mob. The privileging of victims within the criminal process risks upsetting the balance between the state’s impartial roles as investigator and prosecutor on the one hand, and invigilator of contest between prosecution and defence at trial. Part of the trouble is that while all the victims mentioned here really are victims, whose children have been murdered, not every one who claims to be a victim of crime really is. The neutral term ‘complainant’ is rightly used until the case is proved, when the complainant can properly be called a victim. Using the V word across the board blurs this important distinction – and privileges the maker of the unproven allegation. The privilege sits uneasily with the presumption that the accused is innocent until proven guilty and is capable of devaluing it. The accused cannot now make no comment to police questions without the prospect that it will harm his defence case; if he has previous convictions, the chances are that the jury will hear about them and may give the dog a bad name and hang him; but if he wants to attack the credibility of witnesses giving evidence against him by telling the jury about their bad character, he finds major legal obstacles in his way.

It goes without saying that victims of crime should be shown respect and consideration at all times. But they should be given no privileged position in how the process is managed. The high point came in the Milly Dowler trial – when once again the raw emotions of the parents in their grief was used to blacken the entirely proper conduct of the vile Bellfield’s trial – as if the process had to bow to the imperatives of their grief. No politician of any standing dared speak up to correct the elementary error.

We aren’t in Albania: the rule of law still operates and commands respect (and would command more if everyone read the late Lord Bingham’s brilliant 2010 book The Rule of Law). But the rule of criminal law only commands respect when the state and the institutions of law stand neutral, and do not serve the victims of crime at the expense of the community as a whole.

NEXT: Privatisation & Privacy