Why would you say that the victims were the last people we could rely on?
I dont know where "rely" comes into the equation, but if you mean that the damage caused to the relatives shouldnt be considered then you will find that its quite normal for legal systems to take this into account.
In general in this country criminal trials are adversarial, and the parties are the accused and the state. The law aims at impartiality. A trial is held in which the accused is innocent until proved guilty beyond reasonable doubt; or the case is deemed not proven. The conduct of the trial is regulated by legally enforceable procedure, and, except in special circumstances it is open to the public. The evidence against the accused is led by a professional prosecutor employed by the state: and the defence may be conducted by the accused or by his or her representative. The verdict is delivered by a judge or by a jury (depending on the type of court and the severity of the crime, measured by the risk to the accused). The sentence is determined by the judge, who is constrained by sentencing limits and sometimes (recently) by a mandatory element.
The purpose of this system is to maintain the objectivity of the court. For this reason victim input to the trial has been limited to their status as witness. This superseded an older system whereby the victim had a strong input into sentencing: versions of that system are still in force in some parts of the world, notably in islamic cultures, and there is some suggestion that the english common law derived from islamic law in the first instance: though it also has roots in german and probably scandinavian law as well.
In some countries (eg, Saudi Arabia) the family of a person who has been killed can demand the death penalty or they can agree to accept compensation (diyat). So their role in sentencing is very strong indeed. I do not know how far that extends in Saudi jurisprudence, nor how common it is in the islamic world but it is certainly part of that tradition.
The law in the uk (including Scotland) moved away from that system at least so far as the criminal law is concerned. There are probably many reasons for that, but one important aspect is the need for the law to treat all people as equal. Due process is one important part of that: open justice is another: and impartial sentencing is necessary as well.
Here we are concerned with sentencing. There is no suggestion that everyone convicted of the same crime should get the same sentence, because no two situations are identical. But it is important that the factors to be taken into account and the weight to give them should be judged by someone who is not emotionally involved. And so we have professional judges. They are expected not to sit if they have a personal interest in a case. And that is as it should be.
Recently there has been a discernible shift away from this important principle: it seems to be more advanced in the USA, but it is definitely in play in this country too: and it is strongly supported by the media and had gained considerable influence. It appears to be driven by a sense that victims are not sufficiently included and we hear things like "what about victims rights" and phrases of that kind.
In terms of process I think there is some truth in that. Victims of crime have a legitimate interest in information of various kinds: for example the victim of an assault should be informed if their alleged assailant is to be released on bail, because they may wish to take steps to protect themselves.
But I am vehemently opposed to victims making "impact statements" and things of that kind. They tend to be justified on the grounds that judges are not capable of understanding the horror of the crime: and again there maybe some truth in that. I suppose judges get hardened like anyone else; or some do. But it is fundamentally inequitable, imo. So much so that I think it is dangerous to the whole system
We know that the presentation of a witness can affect the outcome of a trial and we know that none of us are as good at judging character as we think we are. We know that clothing, demeanour and many other irrelevant things influence our decision making. These are problems we cannot remove. Those same factors will be important in victim statements too: we can mitigate them by having any such statement read by a third party: but we cannot equalise the writing skills of victims. And I cannot see any way to avoid this becoming a professional task in itself: lawyers or other writers will "polish" those statements with the direct aim of influencing sentencing. And in the end judges may get hardened to that too. But what of those who are neither eloquent nor rich? Will we pay someone to write their statement? Or will that just be their donald and they will get less of what they perceive to be justice. I think we build in another layer of unfairness: though in fact this is not my main concern: the principle is flawed IMO
I say this because we know that for many victims they get a sense of comfort from knowing that someone has been convicted. When someone has been imprisoned and later the sentence is overturned as unsafe there is often a press report of the reaction of the victim or their family: many times they are devastated and because they are human it is hard for them to believe an error has been made. For some my impression is that it is too hard: they would honestly rather not have justice if that means no one is in jail. That is not the majority, perhaps: and for those whose first reaction is like that it may fade - we seldom see follow-up interviews, so I do not know
But that kind of wish for closure is very, very strong. It is not a good basis for decision making.
Again for each victim the crime is uniquely serious and uniquely painful. We see wonderful examples of people who are not vengeful: one of the people who lost someone in the lockerbie atrocity we are discussing was just such a person, as is reported in one of the links in this thread. But there are at least as many who are very vengeful indeed. Who can blame them? Not me. Nevertheless that very emotion renders them unfit to make objective decisions. Unlike the judge, who can draw on his experience of other similar crimes and weigh the circumstance with no personal investment: unlike those of us who are not directly affected and can try to consider the whole situation; the victim is almost by definition debarred from objectivity. We cannot expect it of them: and we should not allow our criminal justice system to be driven by that.
It is particularly difficult to argue this case because we can all see where they are coming from. For myself I am well aware that I could not trust myself in that situation and therefore I am not willing to trust anyone else. I admire those who can be trusted: I would like to think I would be one of them. But I cannot be sure. Which of us can?
