IntroductionThe purpose of this literature review is to explore the impact of victim statements in the contemporary criminal justice system and observe how it can create tension and conflict in the courtroom between the victim, and the courts process itself. There are two pieces of literature used as the focal point of this review, they are; Tracey Booth’s journal article from the Australian & New Zealand Journal of Criminology entitled ‘Cooling out’ (2012), and the third chapter from James Dignam’s published University text entitled ‘Victims and the Criminal Justice System’.
The focus of Booths articles is on managing the victim’s participation in the sentencing process in order to reduce tension and conflict from within the courtroom as she currently believes it presents itself as a contentious aspect of the criminal process. Whereas, Dignam believes victim participation is a necessary part of the criminal justice system and a needed aspect in order to provide victims with substance for closure and to allow victims to believe and have trust in the justice system which ensures criminal activity is brought forward to the criminal justice system. The main components of each article’s particular view on the subject will be summarised and critiqued in this literature review in order to distinguish the differences in both substance of content, credibility of information and relevance to the issue.Summary of Booth’s literatureAccording to Booth (2012) oral victim impact statements or VISs are a contentious part of the criminal justice system that creates both tension and conflict when they are not regulated by sufficient cooling out procedures.
The reason behind this association is demonstrated by Booth in the example of Borthwick case in 2010 which occurred in Victoria. Family members VISs were amended the day they were to be given, removing much of the content they had wanted to express, they were then not explained to by the court exactly why this had occurred. This resulted in dramatic events occurring in both the courtroom as well as outside when the media expressed the views of the family members outrage towards the court.This where Booth’s article displays its focal point, the cooling out process. A cooling out process is when the family members are fully explained the circumstances of why their VISs can not be used in conjunction with the law as well as their timely delivery of such information before they are needed to provide such VISs to ensure they are not delivered into stressful situations which result in anger and outbursts from the family during the court process. Booth then goes on to demonstrate through case studies that when these cooling out process are employed they greatly reduce the potential outbursts that create tension and conflict generated from rejected VISs and place the court into disrepute.
This has resulted in reduced support for the movement to remove the process of VISs entirely.Summary of Dignam’s literatureIn Dignam’s piece of literature from 2004 has focused on how the representation of the victim in the criminal justice system has been revised and shifted over recent times, moving from the disenfranchisement of the victim to incorporating the victim into the criminal justice process. This is of great importance and a much needed step as Dignam demonstrates that victims need to feel comfortable and correctly represented or otherwise a large amount of victims may never bring crimes to the justice system as they otherwise would feel as if they are neglected and treated insensitively by the courts.With the changing process of the criminal justice system, victims are receiving a greater opportunity to contribute to what they believe are their ‘own’ cases in the decision making process and are more likely to be awarded compensation for loss or injury. However, Dignam also highlights that information is still often arriving late to the victims and also incomplete in nature, often leaving victims without full explanations of why criminal processes have occurred and resulted the way they have. Which when combined with victims risk of secondary victimisation through intimidation of edited VISs and only the allowance to obtain redress with the offender through a confrontational role in the criminal justice system has led to the environment in which tension and conflict can occur.
CritiqueIn regards to the question posed that victim participation creates tension and conflict in the contemporary criminal justice system Booth’s piece of literature complements it rather well by demonstrating exactly how tension and conflict can arise due to on the spot amendments to VISs amongst other court actions. Booth has then explained how these incidents can be reduced through cooling off processes. However, it can be stated the evidence lacks the scope of the overall process in Australia, as these explanations have been sourced from 18 sentencing hearings observed in the NSW supreme court, which usually only focuses on the most serious criminal matters, where as the local courts of NSW attend to 98% of cases. This presents an issue in credibility to cases that are seen outside of the supreme court.At first it appears Booth displays personal prejudice of victim input as she labels it a ‘contentious’ part of the criminal justice system, which is language associated with personal opinions on the matter.
Although throughout the article she does recognise that with the correct cooling off procedures it can play a positive part of the criminal justice process by reducing the amount of emotional and distracting content that had VISs in the UK removed from court. As to Dignam, one of the strongest aspects presented in his literature has been a strong and wide ranging base of sources, with 68 noted references.With this, the arguments and explanations of data made by Dignam can be asserted as quite reliable and representative of the criminal justice system of the time as he elaborates on all his points with the correct and consistent amounts of citations. This piece however was produced in 2004, when as noted in the summary of this text, was a time in the justice system that the environment was changing, allowing more incorporation of the victim but most importantly, lacking in implemented cooling off processes. These changes in the criminal justice system acknowledged by Dignam of the unbalanced improvement of victim participation were the catalyst for the types of conflict that occurred in the Borthwick case of 2010, which was chronicled by Booth’s journal article, which has the benefit of hindsight as it was published recently in 2012.When placed together these two pieces of literature are quite useful as Booths piece demonstrates what occurred in the environment that had been achieved at the time of Dignam’s writing in 2004, which led to the need of the cooling off processes that are the focus of Booth’s piece.
As a whole these pieces could be seen as misleading when viewed separately but together when observed in conjunction with each other they can give a reliable and accurate representation of the conflict and tension presented by victim participation in the criminal justice system.ConclusionBoth pieces of literature have allowed a greater understanding of how victims can create conflict and tension within the criminal justice system, the text by booth has been informative in that it has illustrated how the cooling off processes are integrated and how effective they have been when employed at the supreme court, along with what led to these processes being established. Dignam’s text however demonstrated how the role of the victim has evolved from the disfranchisement it once had with the criminal justice system into its new role at the time of writing which was 2004. For the purpose of the question, the literature composed by Booth appears to be more fitting and useful when explaining the reason tension and conflict arises in today’s court along with how the introduction of cooling off processes have reduced the amount of incidents.
