Should victims have a say in plea negotiations?
Douglas McConnell suggests involvement could upset the delicate balancing act between the rights of the accused, the interests of the victim and the wider public good
The role of victims in the Scottish criminal justice system has been the subject of much debate, with compelling arguments suggesting that they still lack sufficient influence within the current framework. While my primary role is as a defence solicitor, I (and indeed the majority of my colleagues) care deeply about the integrity of our justice system and how it is perceived and valued by all those who engage with it, particularly victims.
One of the key issues under discussion is whether victims should have a direct role in plea negotiations between the prosecution and the defence. This would involve their participation before sentencing, in decision-making processes that have traditionally been the sole remit of the Crown, which prosecutes cases in the public interest.
Like many aspects of criminal justice, this question is a balancing act. There are clear advantages to greater victim involvement, but also significant challenges that must be carefully considered.
The primary argument for increasing victims' role is that it enhances their engagement with the justice system. When victims feel heard and involved, public confidence in legal proceedings is strengthened.
Additionally, ensuring that the impact of the crime is properly reflected in plea agreements can lead to more just outcomes. Victims may also contribute to alternative resolutions that emphasise rehabilitation, accountability, and restorative justice.
Victim involvement could also make the process feel less detached and impersonal, addressing concerns that legal negotiations sometimes seem too procedural, without adequately acknowledging the harm suffered.
However, I have also witnessed first-hand the challenges that arise when victims play a direct role in plea discussions. First and foremost, the accused has the right to a fair trial, and introducing victims into plea negotiations could complicate legal procedures. For example, evidentiary considerations – such as the admissibility of certain types of evidence – are determined by legal principles, not emotions or personal perspectives.
Another major concern is the potential for delays. The plea bargaining process exists, in significant part, to resolve cases efficiently. The involvement of an additional party, particularly one with a deeply personal stake in the case, could disrupt negotiations, slow agreements, and contribute to backlogs in the criminal justice system.
Moreover, not all victims may wish to participate. The emotional toll of engaging in legal discussions could lead to further trauma and distress rather than providing closure.
There is also the question of cost and resources. The justice system is already under significant strain, and the introduction of new procedures to facilitate victim engagement in plea discussions could require substantial investment.
From my experience, prosecutors in both the High Court and Sheriff Court increasingly do consider victims’ interests in their deliberations. There is a growing recognition that justice is not simply a matter of punishing offenders but also of acknowledging and addressing the harm caused to victims.
However, a crucial question remains: Who determines what is in the best interests of the victim?
Does this always align with the victim’s own perspective, or are there broader principles that must be upheld? Should the victim’s views be the deciding factor, or should they be one of several considerations guiding a prosecution in the public interest?
Ultimately, this is a complex issue with no easy solution. A fair and effective justice system must carefully balance the rights of the accused, the interests of victims, and the broader public good. Striking the right balance is essential.
Douglas McConnell is a Partner, Duncan & McConnell
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