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Parliament needs to change the law on victim impact statements to let victims express their feelings towards criminals and the justice system, experts say.
Lawyer and former Act MP Stephen Franks and Auckland University senior law lecturer Peter Sankoff yesterday told the Herald the Victims' Rights Act was
letting victims down and needed overhauling.
Kevin McNeil, son of murdered Tokoroa teacher Lois Dear, has faced pressure to change the victim impact statement he will read to his mother's killer, Whetu Te Hiko, in the High Court at Hamilton this morning.
Mr McNeil has been told he must change the statement because it contained comments directed at Te Hiko and the justice system that would not be accepted by the judge or prosecution.
But Mr McNeil is vowing to read the statement unaltered, and says he will give it to the news media if he is blocked from doing so.
Justice Minister Mark Burton last night said a parliamentary select committee was considering the use and effectiveness of victim impact statements, but he stopped short of saying a change to the 2002 act was on the cards.
Mr Franks, who was Act's justice spokesman when he was an MP, said judges were powerless to allow victims to direct statements of retribution at criminals under the current law.
"It's very hard for judges to reverse course, because they're supposed to apply the law consistently," he said.
"It does need parliamentary change now."
His view in that regard differed from Mr Sankoff, who yesterday said in the Herald that judges had interpreted the law conservatively and now followed case law rigidly.
But both men agreed changes to the statute were the best option for lifting restrictions on what victims could say in impact statements.
Mr Franks said he would like to see the victims' right to be part of the court process clearly enshrined in law.
He said victims should be entitled to have a lawyer representing them during a trial if they wished, as was the case in France.
He also believed victims' views on an appropriate sentence should be sought and, although judges would not be obliged to follow that view, victims should be able to ask for retribution without feeling embarrassed or being criticised by the courts.
Mr Franks said victim impact statements emphasised "how much of losers" the victims were and were disempowering.
"The worst thing for someone who's been treated very badly is to emphasise how badly it's hurt them without any ability to get anything back."
Under the Sentencing Act, criminals have the right to ask for the court to hear information about their background and character, and Mr Franks believed victims should have an equal right.
The only limitations he would impose on victims' freedom of speech was allowing the courts to retain their power to prevent rants or foul language.
Mr Sankoff, a researcher on the interaction between victims and the criminal justice system, said victims had historically been excluded from the system.
Prejudice to the accused was still viewed as the main concern by judges in not allowing victims to make comments about the criminal.
But Mr Sankoff did not accept the argument that judges could be swayed by such comments and lose their ability to objectively sentence the offender.
"They hear all sorts of information that could cause prejudice and we trust in them, in their ability to sift through it. They already have to be impartial for everything they do."
He supported victims being allowed to say what they liked within the same bounds as Mr Franks, and said it was wrong that statements from "merciful victims" who wanted a criminal treated leniently were allowed by the courts.
"But if a victim says, 'I have been treated badly here and I think this offender should suffer for it', that's completely inadmissible. I think that's an inconsistency that we need to explore more carefully."
Mr Sankoff said the question of whether judges should take into account comments on penalties by victims was more difficult, but the victims should at least be allowed the liberty of expressing their view.
The system, as it stood, was "a compromised system that really satisfies nobody".
"The politicians keep saying they want to give victims a voice, but then either they water it down through their legislation or the judiciary waters it down through their legislation."
The Herald sought comment from the judiciary but was told the Chief Justice was not available.
Mr Burton said he "strongly supported the right of victims to record the impact of crime as they have experienced it".
He promised to give close attention to the justice and electoral select committee's findings on victim impact statements.