C. Representing Multiple Interests in Adversary Proceedings
The adversarysystem thus creates conflict between the rights of litigants and the interests of third parties. Victims’ rights proponents and other scholars have proposed ignoring inconvenient aspects of the adversary process. Although this approach is tempting, particularly in light of the consequences of criminal prosecutions, Professor Bell’s observations demonstrate that it overlooks important counterarguments. This Section demonstrates that American law has resolved the conflict between litigants and third parties differently than these scholars have proposed. Rather than undermining adversary litigation, American law has created a variety of procedural devices that confer party or quasi-party status on interested third parties or allow them to present their position to the court without litigating the case’s merits. These solutions allow third parties to litigate their interests without disrupting two key features of the adversarysystem: party autonomy and court neutrality.
If you look at the history of the development of Islam there are actually so many events that illustrate the existence of partiality and concern for Islam over children's rights. In an exemplary story of the Prophet Muhammad the Prophet Muhammad, it has been shown how the Prophet Muhammad extended his prostration when the Prophet's grandson Husain rode the shoulders of the Prophet. At that time the community thought something had happened to the Prophet. But Rasululllah SAW explained to the public that, "My son (my grandson) has made me a mount, so I do not like to disturb his pleasure until he is satisfied,". Even Rasullulah SAW will shorten his prayer recitation when he hears the cry of a child, even though the Prophet SAW intended to extend his reading. But when suddenly heard the cry of a child. Then the Prophet SAW immediately shortened the prayer recitation. This was done by Rasullulah SAW because he understood the feelings of his mother (who had become a makmum) who was certainly disturbed by the crying of his child.
It is not only domestic standards but also international standards that call for effective protection of the victims interests and rights throughout the criminal proceedings of sexual offence cases. South African is one of the countries in the world that has the highest rate of sexual offences against women and children. 167 The society as the whole has been crying for improvements in rape law and the different role players within the criminal justice system have responded. One of the responses was the implementation of the Sexual Offences Act. One of the objectives of the Act is to eradicate the high incidence of sexual offences by protecting the complainants in sexual offence cases and their families from secondary victimisation by establishing a co-operative response between all government departments involved in implementing an effective criminal justice system in relation to sexual offences and promoting the spirit of the batho pele or the people first. The Sexual Offences Act however has focused more on defining many sexual offences and has paid less attention to the effective protection for victims of these offences. Recommendations which are good were made in the reports of the Law Commission on Sexual Offences in both bills of the Criminal Law (Sexual Offences and Related Matters) Amendment Act however they remained “paper law”.
The above considerations may help to restore a person’s dignity, especially if the interview is conducted in the language of the victim. The victim will be able to express himself or herself freely and properly because he is not afraid of poor language usage. Again, the victim’s dignity will be protected, especially if a person of the same sex interviews the victim. Victims will be able to provide a good narrative of the criminal act committed against him or her if interviewed by a person of his or her sex. It is not easy for rape victims to give full and precise narrative of events if the interviewer is a person of the opposite sex. For example in rape cases, women may not feel comfortable to re-live the crime of rape perpetrated against her to a male police officer. This is because the victim will have to explain everything in the finest detail. This interview will help prevent the secondary victimisation by the police or criminal justice system.
The Justice Department’s contrary interpretation seems unlikely to prevail when challenged. The CVRA signals a paradigm shift in the way that crime victims are to be treated, at least within the federal criminal justice system. Before enactment of the law, federal investigators and prosecutors might have been able to keep victims at arm’s length, refusing to confer with them about the case and otherwise ignoring or even mistreating them during the process. But those days are over. The CVRA promises victims that they now have the right to confer with prosecutors and the right to be treated fairly while their cases are investigated. It is time for the Department of Justice to recognize and embrace that new reality.
Crime victims need to have confidence in the criminal justice process. To measure their level of confidence, the researchers asked them to assess the adequacy of criminal justice system performance at several points in the criminal justice process. Again, the findings were consistent with the hy- pothesis: victims who came from States where legal protection is strong were more likely to rate the system favor- ably. (See exhibit 4.) Still, the com- parative figures cannot conceal the fact that many victims, even in States where legal protection is strong, gave the system very negative ratings. Rating the outcome of the case. As predicted by the hypothesis, victims in weak-protection States were more likely to believe the fairness of the sentence was “completely inadequate” (the low- est rating). However, a sizeable minor- ity of victims in the strong-protection States also believed the sentence im- posed was “completely inadequate” (34 percent in weak-protection versus 25 percent in strong-protection States). Similarly, more than one in four vic- tims from weak-protection States and one in five from strong-protection States believed the fairness of the verdict or plea was completely inad- equate. More than 25 percent of vic- tims from weak-protection States and 15 percent from strong-protection States felt the speed of the process was completely inadequate. Finally, 22 percent of victims from weak-protec- tion States and 15 percent from strong- protection States said support services for victims were completely inad- equate.
The results of the survey suggested that the presentation was beneficial. All audience members agreed that the information on the presentation was beneficial to their organization and could potentially be shared with clients who have been victims of crime. Research showed that crime victims benefit from having advocate support who assisted them through the criminal justice system. If crime victims were well informed about their rights and services available, they would benefit emotionally and financially from the services helping them alleviate their trauma throughout the criminal justice process. Continuing to deliver the outreach presentation to local organizations will allow for this knowledge to grow among the community.
Although these guarantees create a very positive impression of the victim's position in continental system, its role and subsidiary liability in the process of prosecution of the perpetrator remains evident. Even here, the victim still has only the position of the witness but not an independent entity in the criminal process. Continental system probably provides the foundation stronger theoretical realization of the rights of the victim, however, much remains to be done in the practical implementation of these rights in order to secure a position guaranteed to persons who have suffered so much damage. This particularly concerns the countries in transition are in fact countries with continental legal systems, and as such, in their legislation foresee any provision characteristic continental associated with defending the interests of the victim (even if it lacks any provision such same without hesitation passed by the legislature in order to accelerate the process of EU integration); in reality these countries realize very few of these guaranteed rights.
Victims’ rights and services are a perennial issue before state lawmakers and often are a priority concern of their constituents. Veteran legislators, as well as those new to a state legislature, benefit from being familiar with and up-to-date on policies that affect crime victims. This audio program highlights key areas of victims’ rights and services law and how actions of state legislatures continue to improve, expand and enforce these laws. It provides members new to criminal justice or judiciary committees- and others- with the basic tenets of victims’ law. It draws from the discussions of legislators, agency heads and other criminal justice system officials at various NCSL forums, as well as from NCSL research, to describe basic victims’ measures in the states.
An effective investigation by the police, and/or another agency such as the Gangmasters and Labour Abuse Authority, 5 is needed to bring an offender to justice. Central to the success of human trafficking prosecutions is the involvement and cooperation of human trafficking victims as witnesses. Human trafficking is a covert crime which presents complex evidential issues. Victims of modern slavery and human trafficking, whether for sexual exploitation or labour, can be among the most vulnerable of witnesses, often belonging to socially excluded groups and requiring significant support. However, they are most often treated as the primary source of evidence, so that securing their cooperation plays an important role in a successful prosecution. Studies of law enforcement responses to human trafficking suggest that victim cooperation is central to the success of human trafficking prosecutions 6 and is one of the most common challenges faced by law enforcement in the identification and investigation of human trafficking cases. 7 The percentage of successful prosecutions for human trafficking offences shows that there was a rise in unsuccessful outcomes due to victim issues, from 31.1% in 2015– 16 to 43.9% in 2016–17. Subsequently, the number of human trafficking convictions fell from 192 in 2015–16 to 181 in 2016–17. 8 The UK’s Anti-Slavery Commissioner, Kevin Hyland, in his first annual report stated his concern that ‘From the limited data that is gathered on victims’ circumstances via the current NRM system through to compromised crime recording, a lack of
in which victim participation may be possible. Nuanced perspectives have since emerged regarding the victim’s right to participate in the pre‐trial phase, specifically regarding access to counsel to contest the subpoenaing of confidential counselling communications in sex offences cases (Braun 2014). However, despite the attempt to integrate victims into the phases of the trial, those phases which involve adversative contestation between state and accused still tend to exclude victim participation, The trial proper, or jury trial as commonly understood, still excludes the victim out of adherence to a system of justice that positions the testing of state evidence over the victim’s ability to present evidence, including their narrative of the criminal incident. The continental European system presents such possibilities at trial (see Braun 2014). In adversarial countries, however, victim participation is limited to the pre‐trial, sentencing and post‐sentencing phases, which do not always adhere to the strict requirements of a bifurcated process between state and accused. This is not to say that the inclusion of victim rights to justice in the pre‐trial, sentencing and post‐sentencing phases stands on a footing equal to that of the state and accused. The right of the accused to due process and procedural fairness continues to restrict victim’s access to justice even in these pre‐ and post‐trial phases. To protect the accused’s right to have key decisions made by an independent state authority, and as adjudged by an independent judiciary, victims are required to proceed by submission to the state or court. The state or court may take account of such submissions but, invariably, they will not be bound by such submissions. The literature on victims and sentencing may be instructive as to how such submissions may be made without allowing the victim to take over proceedings (see Zedner 2003).
The purpose of criminal justice system is to protect the rights of individuals and state against the intentional wrongdoing of criminals who violate the basic norms of society. Courts have from time to time directed the state authorities to provide all necessary facilities and ensure that human rights of criminals are not violated but the human rights of the victims go unseen by the state authorities. The guilty m an is lodged, fed and clothed and entertained in the model cell at the expense of the state and the victim instead is not looked after. It is the weakness of our jurisprudence that victims of crime and the distress of the dependents of the victim do not attract the attention of law. At one point of time reparation to the victims of crime or wrong occupied a religious space in most of legal systems but the scenario where victims had to be emphasized is getting deteriorated and the criminals instead are being given more emphasis.
I owe a considerable debt of gratitude to several people for their encouragement, support and assistance, without which the thesis would not have been completed. First and foremost, I would like to express my wholehearted gratitude to Allah, the Almighty, without Whose love, generosity, guidance and empowerment I would have been unable to write this thesis. “Doth not man see that it is We Who created him from sperm? Yet behold! He (stands forth) as an open adversary! And he makes comparisons for Us, and forgets his own (origin and) Creation: He says, ‘Who can give life to (dry) bones and decomposed ones (at that)?’ Say, ‘He will give them life Who created them for the first time! For He is Well-versed in every kind of creation!’ ‘The same Who produces for you fire out of the green tree, when behold! ye kindle therewith (your own fires)!’ ‘Is not He Who created the heavens and the earth able to create the like thereof?’ Yea, indeed! for He is the Creator Supreme, of skill and knowledge (infinite)! Verily, when He intends a thing, His Command is, ‘be’, and it is! So glory to Him in Whose hands is the dominion of all things: and to Him will ye be all brought back” (Holy Qur’an 36: 77-83, Yusuf Ali translation).
2. The political discourse of “victims’ rights” appears even more prominently in the 2003 update to the 1988 “Canadian Statement of Basic Principles of Justice for Victims of Crime” (Canada, 2003) stating that “the rights of victims and offenders need to be balanced” (Canada, 2003, p. 1). Additionally, the 2001 Solicitor General’s report titled National Consultation with Victims of Crime: Highlights and Key Messages attributes the increasing significance of victims’ rights claims in Canadian criminal justice to crime victims and their advocates. According to the report, crime victims consistently “express frustration with the rights they perceive offenders to have compared to their own entitlements” (Canada, 2001, p. 4). The 2001 document served as a fol- low-up report on several provisions to assist victims contained within the 1992 Corrections and Conditional Release Act (CCRA), such as the formal federal recognition of crime victims in the governance of decisions on corrections and conditional releases; a broad definition of victim that included victims’ family members, spouses, and care-givers; and victims’ access to personal information about offenders, including a judgment that victims’ right to know other information such as whether an offender was in custody outweighed the offender’s right to privacy. On the advice of the Standing Committee on Justice and Human Rights, and in consultation with crime victims and victim advocates, the Solicitor General’s report states that victims’ primary concern within the criminal justice system is that of an imbalance between the rights of victims and offenders. Such policy discourse and the passage of victims’ rights reforms reflect how “victims’ rights” is being defined and mobilized in Canada by the visible advocacy of murder victims’ fam- ilies and their legislative and movement-based representatives (e.g., Victims of Violence). In both the U.S. and Canada, murder-victims’ families claim victim status for themselves in order to argue that the criminal justice system must “balance” the rights of victims with those of offend- ers. In victims’ rights, crime is defined as a conflict between victims and offenders that hinges on the state’s rights protections of each.
Victims often suffer significantly from delays in the criminal justice system. 76 For example, victims of violent crime frequently suffer from post-traumatic stress disorder (PTSD). 77 A connection between initial victimization and later depression, substance abuse, panic disorder, agoraphobia, social phobia, obsessive-compulsive disorder, and even suicide has also been reported in the academic literature. 78 Delays in the criminal process then exacerbate these initial injuries. Indeed, a “common problem in the prosecution of crimes against victims is that the trial is typically delayed through scheduling conflicts, continuances, and other unexpected delays throughout the course of the trial.” 79 It thus is not surprising that multiple studies suggest “the negative effect on a victim’s healing process when there is a prolonged trial of the alleged attacker because the actual judicial process is a burden on the victim.” 80 And “[t]he long delay between reporting a crime to the police and the beginning of the trial represents [a] source of psychological stress for crime victims.” 81
Though victims under sec. 190 of Cr.P.C. have the right to approach the Magistrate directly with his complaint thereby avoiding the redress by visiting the police station, the process of investigation is entirely in the hands of the police. The victims have their role only when the police feel so. Only in certain states the police are instructed to provide the victims with the information regarding the investigation process when they ask for it. The plight of the victims is pitiable until and otherwise the police file the charge sheet under sec.173 of Cr.P.C. The Magistrate after taking cognizance of the charge sheet decides as to whether the proceedings can be dropped and if so, he issues notice to the informant to hear his grievances as required of him. But the dropping of the proceedings would not provide the victim with an opportunity to be heard. Under sec.250 of Cr.P.C. the informants are required to pay compensations to those accused of offence without just cause/reason under the direction of the Magistrate. It is recognized under sec.357A of Cr.P.C. that conviction of the offender is not required to provide victims with financial reliefs. Also, the compensation can be availed through the Code of Criminal Procedure, 1973.
While victims are sensitive to the public interest in crime, in their view crime is an offence against society as well as offence against the individual victim (Wemmers, Cyr, 2004). They do not understand why the state does not recognize them in any role other than as witnesses. The fundamental difference between a tort and a crime is not that crimes do not affect individual victims but rather that a tort is private and does not include the state while a crime affects society as well. As Doak points out, “What constitutes a ‘crime’ as opposed to a ‘tort’ is purely dependent upon how crime is defined within any given society” (2008: 27). It is a subjective judgement by the victim who defines the act as a crime and reports it to the police. Hence, when the criminal justice system views the victim as a witness to a crime against the state this is fundamentally opposed to victims’ perspective and, inevitably, they will be disappointed.
and out of court statements in certain circumstances. Under section 16(1) of the
Criminal Evidence Act 1992, for example, it provides that a videorecording of any evidence given by a person under 18 years of age or a person with a mental handicap through a live television link at the preliminary examination of a sexual offence or an offence involving violence shall be admissible at trial. It also renders admissible at trial a videorecording of any statement made by a person under 14 years of age or a person with a mental handicap (being a person in respect of whom such a sexual offence or an offence involving violence is alleged to have been committed) during an interview with a member of the Garda Síochána or any other person who is competent for the purpose, provided the witness is available at trial for cross examination. This provision is, as Delahunt notes, ‘undoubtedly a practical step towards making the testimony of child witnesses and witnesses with an intellectual disability more easily heard within the criminal justice system’. (Delahunt 2011, 6). Section 4(b) of the Criminal Law (Human Trafficking) (Amendment) Act 2013 amended section 16(1)(b) and extended this provision to persons under the age of 18 (other than the accused) in relation to offences related to human trafficking, 3 child trafficking and pornography 4 . In these cases the videorecording shall not be admitted in evidence if the court is of opinion that it is not in the interests of justice to do so. In The People (DPP) v XY, for example, the accused was charged with section 4 of the Criminal Law (Rape) (Amendment) Act 1990 after it was alleged that he forced a woman with an intellectual disability into performing the act of oral sex with him. In the case, the trial judge admitted as evidence a DVD recording of an interview with the complainant. This pre-trial recording was admitted as examination-in- chief testimony. (LRC 2011, pp. 191-192; Delahunt 2010)
At virtually every step through the tangled processes of the criminal justice system, victims and witnesses remain a side-show compared to the ‘interests of justice’ – which largely means the processing of offenders through the system. They are the ‘poor relation’ when it comes to where the money is spent, where services are focused and how fairness and justice is being pursued. Sentencing policy has become so complicated that few victims or members of the public can understand it. There is no set of basic victims’ rights, no right of review, or proper accountable complaints system. There is too much inconsistency in the delivery of help for victims and witnesses. And the changes that have been made in order to improve the situation do not add up to the sum of their parts.