Victim impact statements - Do they have anything to do with justice?

THE final moments of the closing act in a long, detailed and tense trial, especially a murder trial, are usually charged with great tension and emotion.

One individual — the defendant — may or may not be jailed. Another individual, or group of individuals, may be very disappointed and believe that justice has not been done. That their relative — the dead victim — has been dealt another terrible, unjust blow.

Whether a courtroom, at that most volatile moment, is the right environment for an unfettered victim impact statement is highly questionable. Some victims, or the close family of murder victims, feel it is right that they should make a statement to the court describing the impact the crime has had on their lives.

On the face of it this seems an entirely plausible and fair request but it has the dangerous potential to add another layer to our justice system, a layer which is neither controllable nor balanced.

As has already been seen, those making victim impact statements are not obliged to confine themselves to an agreed script but can include claims that were earlier, during the trial, ruled inadmissible as evidence.

Justice Minister Brian Lenihan has already expressed opposition to a suggestion that a person could be sanctioned for straying beyond an agreed impact statement.

“I think proposals that involve sanctioning of victims are not on. The idea that a victim could be penalised because of a comment... is unthinkable,” he said.

The minister is conceding that a person making a victim impact statement can say more or less what they will and there is very little that can be done about it. He is also conceding that such statements could publicise allegations permanently damaging to a defendant.

The process of questioning witnesses by the prosecution and defence teams should be more than enough to establish all the facts pertinent to the innocence or otherwise of a defendant. After all, the primary function of our courts is to establish if a person charged with a crime is guilty or not.

Mr Justice Barry White’s decision not to allow the McLaughlin family to read out a victim impact statement in court on Wednesday, after Brian Kearney was found guilty of the murder of his wife Siobhán McLaughlin, once again highlights an ambiguity.

Sometimes statements are permitted, sometimes they are not and this inconsistency — just like inconsistencies in sentencing — is unsatisfactory. It should not be up to a judge to decide if a statement may be made or not. The option should be permissible or not; that they are not automatically accepted indicates an underlying concern. That they can introduce powerful emotions to a process that must remain rational and rigidly, coldly objective is certain. That the presiding judge is left to decide is another unacceptable Irish solution to an Irish problem.

Certainly, some heartbroken families have been comforted by being able to make victim impact statements but whether the final moments of the last act of that long, detailed and tense trial is the right place for unburdening such reasonable grief is questionable.

These statements serve emotional and psychological needs but do they have anything to do with justice?