An eye for an eye and a tooth for a tooth. That phrase was for millennia a guiding light for primitive forms of justice for many ethnic, tribal or national entities. From the Frankenstein image of mobs with their flambeau besieging the gothic tower of a blazing castle to the horrific images of mutilation or execution by the sword in the current era in middle eastern or African autocracies victimhood has been a basis for a form of justice.
In a country of 3.4 million Muslims of whom it is estimated 20%-25% would welcome or activate for Sharia law to be imposed it`s not unlikely that would include incorporating some aspects of the Quran's teachings which are themselves disputed by scholars. In the case of rape for example a victim's account of being forced can, in practice, become collapsed into an admission of the underlying sexual act, shifting the practical burden onto her to prove coercion. The nature of the victim and influence on sentence take a unique path. Broadly speaking in classical Islam rape of a free woman is involving two separate violations: one against "God's right" (haqq Allah), triggering the hadd punishment on the perpetrator and one against her personal, interpersonal right (haqq ādamī), requiring monetary compensation to her directly. These two are treated as separate and cumulative much like a thief who both loses a hand under hadd and must still return the stolen property. If a case collapses for lack of proof and gets recharacterized as a failed zina/qadhf accusation the victim isn't just denied compensation; she can end up prosecuted herself. However as per my opening words above, the practice is not just a metaphorical carryover: it's still applied as physical retaliation in a handful of countries today although real cases are rarer than the historical framework suggests because most resolve through compensation or pardon instead. It is not unlikely although little is heard publicly that Muslim voices will become increasingly vociferous when and if a particular case or event provides a trigger.
The current furore on the early release of prisoners including those convicted of manslaughter has brought a whole new actor into the victimhood drama. Under the Criminal Justice Act 2003 a Victim Personal Statement (VPS) system lets victims describe the crime's impact; physical, financial and psychological which judges are required to consider when assessing harm. Since its implementation this outlet for victims has grown in intensity. The current situation is that the victim(s) can make a VPS prior to the sentence being pronounced.
Following the tragic case of PC Harper there was a little reported event last week at Liverpool Crown Court which re-opened the whole debate on the role and effect of a VPS. Police constable Simon Ward was left severely injured after being dragged down the street by Candace De Silva`s Range Rover. PC Simon Ward made a VPS describing how the injuries left him needing a crutch and knee brace, suffering PTSD, unable to work for 19 months and now in a desk-based role. He said it was "hard to accept I'm now a victim of a crime". Her prison sentence was suspended.
The point in this post is whether or to what degree does a VPS influence sentencing and whether or not the current situation is providing equitable justice for offender and victim. Is the sentencing structure in England and Wales becoming too victim orientated? As in some Muslim countries can a sentence be mitigated by recompense to the victim? This is known as Diyyah (Arabic: دية), commonly translated as "blood money" or victim compensation. In some countries and situations it allows the maximum capital punishment or physical retaliation to be completely averted. In the De Silva case her barrister told the court that she was the sole earner for her family. He stated that her partner did not work and if she were sent to prison the family would immediately lose their home because the partner could not fund the rent. He added that his client suffered from diagnosed PTSD) and long-term mental health issues.
In the case above PC Ward made a clearly impassioned statement of the harm he was caused and with the previously mentioned case of PC Harper in his and the public mind the judge chose to suspend a prison sentence on the offender; a sentence which is not unlikely to be appealed. This facility has been available under The Unduly Lenient Sentence scheme created by the Criminal Justice Act 1988, specifically sections 35 and 36, which came into force that same year and allows the Attorney General the power to refer a crown court sentence for indictable only offences to the Court of Appeal if it's considered "unduly lenient"; not just wrong, but outside the range a reasonable judge could have imposed.
It is of fundamental importance to recognise that current practice of VPS is supposed to have absolutely no influence on a judge`s sentence. It is presented as a route for the victim to express in public the effect and degree of harm caused by the offender but is this approach sustainable? Reference again to the tragic death of PC Harper, without the public outcry co-ordinated or not, it is unlikely to have had new legislation in his name. Is this an example of vengeance for that flambeau carrying mob in the age of social media where those aspiring to further a cause can jump on a bandwagon and tailor make it for some nefarious purpose. The murder of George Floyd, an American criminal, resulted in Premier League football players and a former prime minister publicly to "take the knee"; an invidious kowtowing to virtual mob violence which disturbed many people as to the underlying insidious motivations of its proponents.
The essence of modern western legal systems including that in the UK is built on the principle that crimes are committed against the state, not just the individual. When or if a "victims' charter" begins to dictate outcomes justice risks shifting from proportional punishment to popular retribution. In simple terms for a wide audience mob violence morphs into a form ready made to be exploited by those skilled in the craft and use of social media. A prime example of this inversion was seen October 7th 2023 and was demonstrated when barely 24 hours later on October 8th with hundreds of Israelis still lying dead in southern Israel mobs were formed in western cities screaming genocide against the State of Israel. The criminal perpetrators were the heroes and the murdered victims were the aggressors.
Lady Justice has always been seen as the state being above any tendency to be leaning one way or the other; justice is applied without fear or favour. If the justice system appears to lean towards the mitigating factors of an offender to levels that the public considers overriding the interests of the victim there will be erosion of public trust in institutional justice. In cases posted here on the position of those supporting Palestine Action the offenders have laid the claim to victimhood in Alice Through the Looking Glass contorted logic.
If the public feels the state is failing to protect them or punish offenders adequately the demand for decentralized, retributive "justice" will increase from a limited number of political activists to many of those happy to align with a political party supporting their views at the level of inclusion in a manifesto. The wide trend to reconsidering the benefits of our democratic system would be further tested.
In the case above of Candace DeSilva the public petition circulating on Change.org cannot force the judge to change his mind. However, because it has gained significant traction, it serves as a powerful mechanism to catch the attention of the Attorney General. If he decides that Judge Byrne placed too much weight on DeSilva's childcare situation and completely ignored the permanent, life-altering nerve damage inflicted on PC Ward, the case will be referred to the Court of Appeal where her suspended sentence could be replaced with immediate prison time.
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