Are we all victims now? crime, suffering and justice.
The first article I wrote using a title rather similar to this one was written for this journal at the invitation of Brian Williams in the aftermath of the events of 9/11. I am writing this as the events in Mumbai, November 2008, (a terrorist attack and police siege on tourist hotels in Mumbai resulting in over 150 deaths), have drawn to a close. As Jenks (2003) has commented elsewhere, events such as these transgress both our collective and our individual understanding of what it is that can be taken for granted in our everyday lives. Events like 9/11 or Mumbai pose multi-layered questions not only about the nature and purpose of 'new' terrorism (frequently distinguished from 'old' terrorism with the advent of the suicide bomber) but also about the economic, political and social conditions that make such actions an attractive option. The media coverage given to such events and others like them, are all intended to move us: to encourage us to place ourselves next to the victim, for after all, are not they just like us? The excavation of our feelings in this way in the aftermath of such events poses all kinds of questions about the contemporary role of the media in our everyday lives. However such events, in and of themselves, also pose questions about what we understand by crime, criminal victimisation, and appropriate policy responses to such experiences. The purpose of this paper is to explore the extent to which the excavation of our feelings in relation to the suffering of others referred to above has become the touchstone of recent criminal justice policy initiatives and to raise some questions concerning the appropriateness of this elision between policy and empathy.
Given the extensive media coverage of events such as those already mentioned, it is difficult to escape an appreciation of the pain and the impact that they cause: such events cause death, harm, and suffering. As McMillan (2004: 383) stated in the aftermath of 9/11, 'Suddenly the national identity of each American was reappraised as inherently dangerous, an invitation for victimisation' (see also Cole 2007; Furedi 2007) with visions of the harm done to the American body utilised by President Bush very quickly as a recourse to war. Yet as Butler (2004: 149) observes, 'There is some distance to be travelled between living in terrible conditions, suffering serious, even unbearable injuries and resolving on murderous acts'. As she goes on to observe, President Bush travelled that distance quite quickly in resolving to avenge 9/11 rendering the possibility of humility, an alternative response that suffering can generate, an impossibility. Yet for some being put in the position of the sufferer, the one to whom harm is done rather than the one who does the harm, affords an opportunity for a different response to the harm doer: an issue to which we shall return.
Of course, the impact that such events like 9/11, or Mumbai, have on a global stage, also take their toll in more local contexts from 'justifying' the war in Iraq and Afghanistan to heightened security processes at airports, and possibly heightened anxiety in relation to international travel. However collective and/or individual suffering is not only caused by global events. Suffering on the part of the victim can also be the end result of much more mundane, ordinary and everyday acts of criminal victimisation: like burglary, street theft, or common assault. For example, Dixon et. al. (2006: 21) report that in 2002-3, 850,000 people suffered loss of earnings as a result of criminal victimisation, 180,000 people moved home and 32,000 changed jobs. They go on to suggest that the total cost of criminal victimisation in England and Wales (including estimates as to the emotional and health costs) amount to 36.2 billion pound per year. So the stress, shock, and sense of invasion, (see Kearon and Leach 2000) in respect of burglary, and impact on family and other relationships (see Hodgson 2005) amounts to considerable harm done and resultant suffering of individuals as a consequence of rather more mundane acts of criminal victimisation. Of course, the experience of victimisation, whether as a result of global or local events, does not take its toll on everyone or even in the same way. As Maguire and Bennett (1982) observed some time ago in their study of burglary, that event is likely to take its greatest toll on individuals who are already experiencing or trying to cope with other events of significance in their lives like, for example, bereavement or divorce.
In my own early work for a victim support scheme in Liverpool in 1983, I interviewed an elderly lady extremely distressed by the theft of her son's watch. It transpired that her son, who lived with her, had died and her coping mechanism for managing this had been to organise her time in such a way so that she spent less time in the house on her own. The burglary and the theft of his watch, not only challenged her way of managing, also added further pain to her loss of her son through the loss of the watch. As Sennett (1998: 44) observes in relation to the changing nature of work, 'To imagine a life of momentary impulse, of short term action, devoid of sustainable routines, a life without habits, is to imagine indeed a mindless existence'. Such was the case for this elderly woman whose routines, habits, had been taken away from her by bereavement and then as a result of the burglary: she felt no longer able to continue with her coping routine. Her suffering was private. It was a mere happenstance that she shared it with me. It was certainly mundane, routine and ordinary in many ways but exacerbated by the impact of crime.
Since 1983 such private suffering has increasingly come to the fore in the attention that politicians and policy makers have given to the victim of crime. Frequently referred to as the politicisation of the victim (first coined by Miers in 1978). How and why this has happened is not for discussion here but there are a number of ingredients to this process worth noting. In the first instance, the use and refinement of the criminal victimisation survey, piloted in 1977 (Sparks, Genn and Dodd, 1977) and then first deployed nationally in 1982, and now an integral feature of discussions on the nature, extent and impact of crime, has been hugely important in placing the crime victim much more squarely on the policy agenda. Also important was the increasing voice and space given to Victim Support in advising government policy in this arena (see Rock, 1990, 2004), though a voice that has been diversified by feminist organisations, those concerned with raising awareness of the impact of crime and the work of the criminal justice professionals on ethnic minority groups, and other victim oriented organisations. Moreover it is important to add to these changes the shifts in the political and policy orientation documented by Garland (2001) and captured by his notion of a 'culture of control' in which the victim of crime has become an important symbolic figure (qua Bottoms 1983) in ensuring continued support for the state. As I have observed elsewhere, 'Through increasingly subtle and not so subtle global and local processes, the state has used victimhood status to reassert its power over citizenship'. (Walklate 2005: 97). Through these processes, in the potential for all of us to be (criminal) victimised we are all simultaneously re-assured of our membership in society: our citizenship.
This symbolic use of the victim, that captures and capitalises on the suffering caused by crime, has been reflected in the New Labour policy agenda since 1997. This reflection has become particularly accented in the more recent efforts to 'rebalance the criminal justice system' (a process emanating from a government White Paper "Justice for All" published in 2002): to locate the interests of the victim at the centre of criminal justice policy concerns. Within these efforts at rebalancing it is also possible to discern what Valier (2004) has called the return of the gothic: a focus on suffering. In this paper then, I am concerned with the ways in which ordinary and mundane criminal victimisation transgresses our everyday sense of well being, and the policy responses that have been put in place to respond to this. The paper falls into three parts. In the first I shall endeavour to offer a critical evaluation of recent efforts that have been made to centre the victim in criminal justice policy. In the second part I shall trace the return to the Gothic and the importance of suffering, within these processes. In the third and concluding section, I shall consider some of the implications of these developments for questions of justice.
Rebalancing the Criminal Justice System
The rebalancing of the criminal justice system in favour of the victim, which as Miers (2007) comments is a suspect conceptual starting point, reached a particular peak in the passing of the Domestic Violence, Crime and Victims Act in 2004. This piece of legislation introduced surcharges on fines and fixed penalties for motoring offences to contribute to the funding of a new Victims Fund, it allowed the Criminal Injuries Compensation Authority to recover payments made to victims from their offenders, it widened the opportunities for victims to be given and to provide information in cases where their offender receives a prison sentence, provided for a Commissioner for Victims and Witnesses and set out a Code of Practice for Victims. The breadth of this legislation in relation to victims of crime was without precedent in England and Wales. In particular The Victims Code of Practice published in October 2005, and effective from April 2006, codified all the expectations and obligations that a victim might have of the criminal justice system and set targets for how and when the criminal justice agencies needed to have responded to and/or delivered services to victims of crime. It also laid out the procedures for complaint should these services not be delivered. Consequently for some, this piece of legislation alone marked the end of a long journey as the victim moved from being the (mere) complainant within the criminal justice system, to being an equal participant within the system as laid out in the Victims Code of Practice. This legislation, seen as a high spot for the crime victim, marks the culmination of a range of related policy developments. Elsewhere I have discussed these policy developments in more detail under four headings (see Walklate 2007 chapter 5): perpetuating welfare; tinkering with adversarialism; moving towards allocution; and restorative justice. These headings are merely a device to delineate different emphases in what is in reality a complex, interrelated policy field, and for the purposes of this paper I shall refer only to particular examples within each of these themes in turn.
The formation of the Criminal Injuries Compensation Board in the 1960s constituted the last brick of the welfare state (Mawby and Walklate 1994). Miers (2007) tells us that since 1964 the government has paid out 3 billion pounds in compensation to approximately 910,000 applicants. The role and nature of state compensation, however, remains a contested issue. Ashworth (1986), for example, suggested the contractual assumption embedded with the CICB was misplaced since it gave no more than an individual might expect as their part of the social good called the criminal justice system but De Greiff (2006) argues that the responsibility of the state to deliver such compensation comprises a public acknowledgement that an individual's life has been disrupted as a result of crime, crime that is a result of the failure of the criminal justice system to protect them. This is a view endorsed in some respects by the Home Office (2005) who stated that a financial award is one way of acknowledging the harm done to the victim so long as they can be shown to be 'blameless victims' (Home Office 2005). Clearly the difficulty ofdealing with what Miers (2007) calls 'the delinquent victim', rather like the difficulties ofdealing with 'scroungers' on the welfare state, remains. Other developments in the welfare approach to the harm done by crime can be located in the voluntary sector (Victim Support and other like groups, feminist inspired groups etc) all of whom, though different in ethos, share in a view that in order to make good the harm done by crime, much work needed to be done outwith the process of justice. However the initiatives that focus on tinkering with adversarialism take a different view.
Dignan (2005: 65) has argued the criminal justice system historically failed the victim of crime because, amongst other reasons, it treated the victim instrumentally. Indeed the Audit Commission (2003) reported that out of24 criminal incidents experienced, only half are reported to the police, only one third are recorded as a crime, with less than one resulting in a guilty verdict, pointing to a huge attrition rate of victims and witnesses from the system and suggesting that a better response must be possible. As a result two main strategies have been used to try to render the criminal justice system more responsive to the victim of crime: re-orienting the work of the criminal justice professionals and a more focused use of victim oriented policies in to relation to the offender. Here I comment more on the former than the latter as all branches of the criminal justice professionals have been increasingly encouraged to place the victim of crime more to the centre of their routine daily work.
Probation work was reoriented towards the victim of crime by the 1990 Victims Charter, a role that was extended in 1996 and again in 2000 by the Criminal Justice and Court Services Act 2000. Under the Domestic Violence, Crime and Victims Act (2004) local probation boards have obligations to the victim of an offender who receives a sentence of imprisonment of 12 months or longer after conviction of a sexual or violent offence and the victim of an offender convicted of a sexual or violent offence and receives a restricted (or other similar) hospital order. The probation service is now required to take reasonable steps to establish any victim representations about licence conditions or supervision requirements subject to their offender's release from prison or hospital and to ensure that those responsible for making such decisions are informed of the victims wishes. They must also provide the victims with information about their offender's release and any conditions that may be attached to it.
Other policy initiatives have introduced Joint Police and Crown Prosecution Services to victims/witnesses called Witness Care Units under the government's No Witness No Justice initiative. There were 165 such units across England and Wales by December 2005 (Home Office 2005). Their purpose is to ensure proper and effective communication of information to victims and witnesses in relation to the case in which they are involved. Further to these developments, and following on from the trialling of a Victims Advocates Scheme (see Sweeting et. al. 2008) the Crown Prosecution Service has introduced a 'Victim Focus Scheme' (June 2007) in which prosecutors meet bereaved families in all homicide cases (including those occurring as a consequence of a road traffic accident) to explain the processes and procedures of the court, and in cases of murder and manslaughter aid with the production and delivery of the Family Impact Statement to the court if requested. This move towards giving the victim a voice in the criminal justice process is discussed again shortly but for the moment suffice it to say that these efforts at tinkering with adversarialism raise alarm bells for many since as McBarnett (1988: 300) has commented:
The civil trial takes the form of victim v offender, but the criminal trial takes the form of state v offender. The offence is not just against the victimised person, the offence is against the state. The state is not just the arbiter in a trial between victim and offender; the state is the victim ... If victims feel that nobody cares about their suffering, it is in part because institutionally nobody does.
In other words the justice that must be seen to be done is that which is in the interests of the state, not the complainant (victim). So raising important questions about giving the complainant (victim) more of a say in criminal justice proceedings. This overlaps with the move towards allocution.
For Cavadino and Dignan (1996), the victim allocution model of criminal justice is concerned with victim empowerment in which victims' wishes are considered paramount in prosecution and sentencing decisions. The exemplar of a policy that might achieve this aim is the victim impact statement. (For a detailed discussion of these in the U.K. context see Sanders and Jones 2007 and in the international context see Booth and Carrington 2007). Briefly, victim impact statements accept that there is space for the victim of crime to have what might be called 'procedural rights' within the criminal justice process. An interesting variation to the victim impact statement was introduced to the criminal justice process in England and Wales in November 2000. This was the 'victim personal statement' scheme and followed the spirit, if not the actual practice, of victim impact statements. The purpose of a victim personal statement is to offer the optional opportunity to the victim of crime to relate to all the agencies of the criminal justice system how a crime has affected them, and to provide the criminal justices agencies with more information about the impact of a crime. These statements provide an opportunity for the victim to raise any concerns that they may have about aspects of the crime and the offender not dealt with elsewhere by the criminal justice process (like bail proceedings, for example) and provide all agencies within the criminal justice process with more information. However this only happens in those cases where the victim chooses to make such statements and in which the police pursue such statements. Tapley (2005: 32) reports that 'Victim Personal Statements were not being offered to victims on a consistent and regular basis' and Graham et. al.'s (2004) qualitative evaluation of this scheme points to similar problems in relation to victims' understanding of the scheme and the kind of information they had been given. However their report is suggestive that those who did participate felt that it had been a positive process. 'It was seen as 'fair' that the extent, severity, and dominance of those impacts could be considered in sentencing an offender.. ' (ibid: 49). Giving the victim a voice in relation to making statements to the court was extended in the form of a Victims Advocates Scheme introduced in April 2006. This scheme, piloted in several crown courts, offered the families of those bereaved in cases of murder and manslaughter an opportunity to present a statement to the court as to the impact that that event had had on them (a Family Impact Statement) once a conviction had been secured for the crime and before sentencing had been pronounced. The evaluation report of this scheme is suggestive that its role will be both continued and extended (Sweeting et. al. 2008). Giving a voice to the victim of crime and an extended role in the work of the criminal justice process is furthered by restorative justice initiatives.
As Goodey (2005) has observed, restorative justice is more often than not represented as victim-centred justice. Miers (2004: 24) says 'Restorative justice purports to take this relationship and these changes a step further--to one of victim participation in the system' and 'has at its core the bringing together of victims and offenders' (Hudson, 2003: 178). Goodey (2005: 229) suggests that for most people in the U.K. their experience of crime is home grown, conventional and local. In other words, the experience that people are likely to have of criminal victimisation is more often than not the result of some petty act of vandalism or more serious burglary that has been committed by someone in their locality. If we take this kind of experience of criminal victimisation as given, then it is not surprising that restorative justice initiatives are directed towards these kinds of offences, reflecting a desire to restore the harm done to the victim and simultaneously reintegrating the behaviour of the offender (qua Braithwaite 1989). However, as Williams (2003: 5) stated:
Although reparation orders were designed to be restorative, in many cases the pressure of work and practitioner cynicism have combined to create a production-line of mechanistic and unreflecting drudge-work which is of no benefit to victims and of little significance to offenders.
So this suggests that neither the needs of victims nor those of offenders may be being met. Neither, one might add, is that of the public interest in the money and time being invested in this work. Yet restorative justice initiatives have proved to be increasingly popular within contemporary criminal justice policy, despite their effective prostituting of the victim (Ashworth 2000) and their inability to overcome the theoretical and practical question posed by Tavuchi's (1991) analysis of the role of third parties in apology and reconciliation processes (see also Shapland et. al. 2006). As Green (2007: 186) observes 'the recent success of restorative justice in becoming more central within penal policy may have unwittingly led it away from victim interests'.
To summarize: on the surface it is possible to see that much has been put in place in an effort to centre the victim of crime both within criminal justice policy and within the criminal justice process. However at a deeper level it is also possible to see a number of other processes in play. It is possible to discern the continued politicisation of the victim (accompanied by political embarrassment in the aftermath of 7/7, see Miers 2007) with the extent to which victims are actually in receipt of more support, better support etc. still subject to considerable empirical debate. It is also possible to discern the continued adaptation and denial of the criminal justice system that Garland (2001) suggests as constituting part of the 'culture of control'. In addition there are links between the policy developments that have been traced here and wider cultural processes. Furedi (1997: 11) comments 'Our uncertain society has increasingly adapted to the standards of its most "fragile" members....[resulting in] a culture of victimhood.' So centring victims (as opposed to complainants) is embraced without a problem. These processes, he has gone on to argue, have produced an 'invitation to terror' (Furedi 2007): a ready made mindset of victimhood that feeds of our fears. In this way he establishes one link for us between local and global suffering sustained through the continuing power of a culture of fear (Furedi 1997). The importance of understanding feelings, of which fear is one, is a further process in play in the policy developments traced here, and can be observed not only in the centring of victimhood but also in the increasing public expression of such suffering.
The Return of the Gothic
The return of the Gothic, commented on by Valier (2004), is also alluded to in Godfrey and Kearon's (2007) analysis of the historical changing role of the victim of crime. In tracing that history they point not only to the symbolic use of the crime victim for political and policy purposes but also to a symbolic process that has served to capture and capitalise on suffering. This process has real consequences. As Karstedt (2002: 302) notes:
Judges in the United States were the first to remake the courts and the criminal justice system as a public space of emotions. Offenders were ordered by courts to wear T-shirts in public that identified them as thieves. Young offenders had to apologise on their knees to their victims with members of the community present. Sexual offenders has to erect signs on their front lawn warning the public about the inhabitant; another court order sent the victims of a burglary to the house of the offender to take from it what they liked.
In the U.K. we have seen the emergence of 'named and shamed' offenders whose pictures appear on leaflets distributed to households in their neighbourhood reminiscent of the stocks of an earlier historical moment. In this re-emergence of the Gothic there has been a policy slippage from a concern with the moral culpability of the offence to a concern with the moral culpability of the offender. In other words the focus of attention has become much more centred on the rightness or wrongness of the offender rather than the rightness or wrongness of the offence. Moreover, as the policies discussed above illustrate, in that slippage space has been given to the victim to give voice to their views on that wrongness. This is commensurate with the 'culture of control' thesis developed by Garland (2001) reflecting the rise of penal populism: the return to punishment as a vote winning strategy. However when combined with other processes, like the transgressive nature of terrorist attacks and the ever-present visual culture of what Valier (2004) calls 'teletechnologies', the conditions are set for a deeper excavation of our feelings.
For example, it is now commonplace for the chief investigating officer at the conclusion of a trial in particularly gruesome or problematic case to speak to waiting reporters about the evil of the offender and the road to recovery for the victim and/or victim's family, quite often drawing on a wide-ranging emotional repertoire. The baying crowd venting its feelings on the van taking the convicted to prison is another frequently presented image. Media images of hostages, videotapes of beheadings, at the scene broadcasts of terrorist acts (qua September 11th 2001) are all intended to move us, to encourage us to place ourselves next to the victim: as are Family Impact Statements, restorative justice conferences etc., discussed above. Moreover, as Valier (2004) points out, this visual culture travels rapidly and can be viewed in locations and circumstances a long way from their point of production. The case of the cartoon of the prophet Mohammed, produced in Denmark in 2006 that resulted in demonstrations against its publication by Muslims
in a number of different countries around the world, aptly illustrates this.
The excavation of feelings in newspaper headlines, television programmes, internet websites and so on, has been one important component of the rise of penal populism in which the symbolic call on the victim and the centring of the victim in policy has been a significant driver. Anger, guilt, shame, fear, and as Young (2003) would say, vindictiveness, are some of the key feelings that have been given expression to in a wide range of different contexts in recent years. Much of which has had a wider impact as a result of the growth in visual reporting than perhaps was once the case. These comments, however, are not intended to imply that criminal events do not take their toll on people's emotions. They do, from post-traumatic stress syndrome to anger in the aftermath of criminal victimisation and a whole range of emotional bus stops in between (See inter alia Maguire and Bennett, 1982; Ditton et. al, 1999; Kearon and Leach, 2000; Spalek, 2006 chapter five; Tulloch, 2006). Moreover a focus on the harm done by crime has consequences both in the routine, mundane, everyday work of the criminal justice system (as for example, in what a police officer is expected to do when dealing with a person who has been a victim of a burglary) as well as in relation to the bigger questions of terrorism and a 'culture of fear'. What is important about appreciating the anger, guilt, shame and vindictiveness referred to here, and other feelings that have been tapped in this process (Hodgson 2005), is the way that they are being harnessed both politically and in the criminal justice system as justification for victim oriented policies. The harnessing of suffering in the interests of politics and policy on the one hand and the expressive role given to suffering within some of the recent policy interventions within the criminal justice system on the other, raise important questions about justice. As Karstedt (2002: 304) observes:
In Britain, public demands for representation of the emotions of victims in the criminal justice system have been widely supported. Their sorrow, rage, and anger, feelings of vengeance need to be voiced, and 'healed' by the sanction imposed on the offender. This imbalance in the collective emotional mood thus easily intrudes into the criminal justice system, where decisions disadvantage actual offenders.
Justice as a concept can be differently defined as it can be differently practiced. As Cook (2006: 1) observes, 'Justice is a concept that many of us take for granted: its meaning and existence are assumed to be the foundation of the "British way of life" and integral to the society in which we live'. So whilst much criminological and legal research, along with people's experience of the criminal justice system clearly indicates that not all people are equal before the law, one of the principles of justice in the liberal democratic tradition is that the law should apply equally to everyone. And it is this principle that the recourse to the centring of the suffering victim challenges. In other words, it is in all our interests, as victims, witnesses, or as offenders, that the criminal justice system operates with our collective interests in mind. Indeed, as Karstedt (2002) intimates, in this recourse to the harm done to the victim the shape of such collective claims has changed. Moreover it is this changing shape that is increasingly compromising the justice system; in its ability not only to ensure justice for the defendant, as illustrated above, but also in its ability to ensure justice for all of us.
Conclusion: Are We All Victims Now?
This paper has been concerned to map two parallel narratives: the increasing focus offered to the victim of crime in the criminal justice process alongside the growing willingness to give public expression to feelings of harm and suffering in relation to crime. In mapping these parallel stories it is possible to see linkages between them. Karstedt (2002) has commented the one begets the other or at least offers the space for giving voice to the other. In this context that is the voice of the victim of crime. My purpose in mapping these stories is not to deny the harm done by crime in whatever shape or form that it is experienced but to ask fundamental questions about what these stories articulate and where they may lead.
Some time ago C. Wright Mills (1959) made the following observation, 'Know that many personal troubles cannot be solved merely as troubles, but must be understood in terms of public issues--and in terms of the problems of history-making. Know that the human meaning of public issues must be revealed by relating them to personal troubles- and to the problems of the individual life'. This relationship between personal troubles and public issues is an intriguing one in relation to this discussion. If I go back to where I began both in this paper and in my long-standing interest in victimisation, my elderly lady certainly had personal troubles. Troubles that were partly a result of the problems of her individual life but were also partly a result of the more public issue of crime. For her, to resolve some of the distress that she was experiencing was relatively straightforward: she wanted the return of her son's watch. She knew that other elements of her distress were for her to resolve. She needed to find a way of re-establishing her habits and routines so that her existence was no longer mindless (qua Sennett 1998). However in the intervening years since I spent time with her, it would seem that the capability of individuals to resolve their own personal troubles that belong to them has been increasingly eroded. In this sense I agree with Furedi's (1997) comment that we are all victims now. Some of this erosion is documented in the policy developments discussed here. Unfortunately this has been accompanied by other 'threats', like for example, 'new terrorism', that equally transgress our routines, habits, what it is that we can collectively take for granted. One element of which is our concept of justice (qua Cook 2006 quoted above). As Mills also said (quoted by Furedi 2007: 98), 'When people cherish some set of values and do not feel any threat to them, they experience well-being'. If we take Cook's point that justice is integral to our way of like, and that this core value is being compromised (threatened?) by centring the voice of the victim, then the feelings that this generates may add to not only the private troubles of victims who feel dissatisfied or let down by the criminal justice system but also adds to the public issue that criminal victimisation in all its forms produces. Thereby adding further to the suffering caused.
(1.) An earlier version of this paper was present at a day conference held in the memory of Professor Brian Williams held at De Montfort University in June 2008. I am grateful to the organisers of that conference for inviting me to speak at it and for inviting me to submit my presentation for publication to this journal that Brian was involved in establishing.
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Sandra Walklate1, Liverpool University
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|Publication:||British Journal of Community Justice|
|Date:||Jun 22, 2009|
|Next Article:||Practitioner report: from rhetoric to reality? the probation service contribution to empowering victims.|