THE PLACE OF FORGIVENESS IN CRIMINAL JUSTICE:
A BRITISH PERSPECTIVE
Paper submitted for the XIth International Symposium on Victimology
13-18 July 2003, Stellenbosch, South Africa
DR IAN EDWARDS
NORWICH LAW SCHOOL, UNIVERSITY OF EAST ANGLIA, NORWICH, UK
INTRODUCTION
3 years ago I was fortunate enough to attend the 10th Symposium of the World Society of
Victimology in Montreal. As those of you who were there will recall, there was a moving
speech on the final day by Phan Thi Kim Phuc (whose image became famous around the
world during the Vietnam War as a naked child fleeing from her village which had been
napalm-bombed by the American air force). In Montreal she described how the process of
forgiveness can be so important in securing one’s own psychological well-being, and also in
improving relationships between individuals and between groups.
There is extensive literature on the value of forgiveness for victims and offenders in
psychological terms. Some argue that the capacity and willingness to forgive enables the
victim to overcome feelings of hatred, resentment and vindictiveness which may be harmful
to mental health and personal well-being.1 For me, particularly moving and persuasive was
Desmond Tutu’s account of the Truth and Reconciliation Commission (TRC) process in his
book No Future Without Forgiveness.
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XIth International Symposium on Victimology
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But the undeniable quality and value of forgiveness as a human emotion sits much less
comfortably within legal processes. In particular, taking account of a person’s forgiveness in
the criminal justice system raise very difficult questions about the appropriate place of
victims within the process as a whole, in particular at sentencing, and more generally about
the place of emotion in the process.
The specific question upon which I will focus is, “What place should forgiveness have in
sentencing?” In this paper I consider briefly the broad issues raised by giving weight to
expressions of forgiveness in sentencing. First, I consider the nature of the problem: why is
forgiveness controversial in the context of the criminal process?
Second, I outline the
approach of English law, drawing attention to a series of recent Court of Appeal decisions in
England and Wales that give some guidance on the weight to be given to forgiveness in the
sentencing decision. Finally, I argue that while forgiveness is to be welcomed as a moral
quality with social benefits, we need to think very carefully before giving it any weight in the
outcomes of sentencing processes.
1
J. Arnold The Lost Art of Forgiveness: Stories of Healing from the Cancer of Bitterness (1998;
Plough, Robertsbridge); J. Sells & T. Hargrave "Forgiveness: a Review of the Theoretical and
Empirical Literature" (1998) 20(1) Journal of Family Therapy 21 (Special Edition)
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DEFINING THE PROBLEM: THE CASE AGAINST GIVING WEIGHT
TO FORGIVENESS IN CRIMINAL JUSTICE DECISION-MAKING
What is forgiveness? The Oxford English dictionary is unhelpful. It tells us that forgiveness
is “the act of forgiving” and “the state of being forgiven”. To forgive is to “cease to feel
angry or resentful towards; pardon (an offender or offence)…Remit or let off (a debt or
debtor).” The dictionary definition seems to lead to three different aspects. First, it involves
a cessation of particular feelings towards someone or something. Second, to pardon suggests
a remission from legal consequences of a crime, a release from the consequences of a crime,
excuse or make allowances for someone or something. Third, to remit suggests releasing
someone from the ordinary or expected consequences of an obligation.
Above all, forgiveness is an expression of feeling on the part of one harmed or adversely
effected towards the person or thing causing the harm or adverse effect. So how can we
define forgiveness? Perhaps a working definition can be adopted: “the feeling on the part of
a person harmed towards the cause of the harm (whether a person or a group) that he / she no
longer resents or feels hatred towards him or them.”
Calls for victims to have more involvement in criminal justice generally, and in sentencing
specifically, force us to face a series of fundamental questions about the purposes of
sentencing and the nature of legal processes.
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Giving any sort of weight to victims’ preferences at sentencing is considered by many to be a
real threat to fundamental principles of justice which must guide any legal process. Those
who are sceptical about giving any weight to victims preferences have focused on the dangers
of vengeful victims demanding ever more severe punishments. However, I would argue that
a more difficult question for criminal justice is how to deal with expressions of forgiveness.
Now these are admittedly and understandably much less freqent than expressions of hatred,
vengeance and anger. However, the rarity of such expressions does not mean that the issues
raised are insignificant. In fact it is somewhat easier for the criminal process to deal with
anger and hostility than it is to deal with expressions of forgiveness and mercy.
But why is forgiveness problematic in the context of criminal justice? The expression of
forgiveness by victims poses particularly acute problems for sentencing. Giving any sort of
weight to forgiveness threatens to undermine three fundamental principles of justice.
First, giving weight to forgiveness may undermine the principle of proportionality (the
principles that the sentence imposed should correspond to the seriousness of the offence). If
account is taken of forgiveness in the sentencing of an offender it may lead to the sentence
received being disproportionate to the offence committed. If the victim of a serious offence
forgives, and this is given weight it would seem to lead to a lack of proportionate punishment.
Second, forgiveness introduces into legal processes an unpredictable and arbitrary factor
which may undermine consistency within a system: there could be a situation in which two
offences, committed by two offenders, with one forgiving and one vengeful victim results in
different outcomes, with a consequent lack of consistency in the treatment of each offender.
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Third, orthodox objections to including forgiveness in the legal process stem from a belief
that giving weight to expressions of forgiveness will lead to individuals escaping liability for
their actions. That it will provide a way out of a crime, "letting someone off" for what he has
done, and mean that he avoids legal responsibility for his offence. Such a course of action it
would seem will lead to a failure to impose suitable and deserved punishment. This I
understand was a prominent criticism of the TRC.
There is then a strong case for forgiveness as a moral quality with psychological benefits, but
a formidable case against forgiveness being given any weight as it may compromise key
principles of sentencing: proportionality, consistency and responsibility.
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THE PLACE OF FORGIVENESS IN ENGLAND AND WALES AT
SENTENCING2
How does English law deal with expressions of forgiveness by victims? The Court of Appeal
in England and Wales has given some guidance on the appropriate place in sentencing of
forgiveness. In broad terms, courts are extremely reticent to allow expressions of forgiveness
to influence sentencing outcomes, but this is a position which has been confused and
undermined by a recent Court of Appeal decision.3
2
For a more detailed account see I. Edwards "The Place of Victims' Preferences in the Sentencing of "Their"
Offenders" [2002] Criminal Law Review (November)
3 There are several cases in which the Court of Appeal has shown itself willing to give weight to expressions
of forgiveness without dealing with the fundamental issues involved. In Dredge [1998] 1 Cr App R (S)
285 a rape victim expressed forgiveness towards her attacker, her partner. She indicated that she
wished the relationship to continue. Steel J said "The views of the victim are of course always a
factor to be taken into account by a sentencing judge… That also has to be balanced…against the
public interest that a sentence which is appropriate to the seriousness of the crimes committed
should be passed."; H [1999] 1 Cr App R (S) 470 (a case of rape involving the use of a firearm.
The victim had "gone a long way to forgiving defendant": 10 years imprisonment reduced to 7);
McDonagh [1998] 2 Cr App R (S) 195 (machete attack, almost severing the victim’s hands, victim
expressed forgiveness: 6 years reduced to 5); Collyer [1996] 2 Cr App R (S) 238; AttorneyGeneral's Reference (No. 36 of 1995) [1996] 2 Cr App R (S) 50. However, in Attorney-General's
Reference (No. 75 of 1995) [1997] 1 Cr App R (S) 198 a 10 year old sexual abuse victim
expressed forgiveness towards the offender, her mother's partner. Lord Bingham CJ said:
"It was, in our view, an error to treat the child's attitude as almost a decisive matter in
the question of sentence. A 10-year-old child is in no position to make a reliable
judgment on the seriousness of offences committed against her, least of all to
appreciate the significance of the aggravating factors which, in our judgment, existed
in this case. Furthermore, to give the weight which the judge did to the attitude of the
child is to give insufficient weight to the importance of indicating to the public at
large, and to anyone minded to commit an offence of this kind, the total
unacceptability of such conduct towards a child." (at 201)
In Darvill (1987) Lord Lane C.J. stated that "There is no doubt that forgiveness can in many cases have
an effect, albeit an indirect effect, on the task of the sentencing judge. It may reduce the possibility of
reoffending, it may reduce the danger of public outrage which sometimes arises when a defendant has
been released into the community unexpectedly early, and it may enhance the evidence of provocation
by the victim and render such provocation more readily credible by the Court. It may…in the end of
course have an effect upon the Parole Board: it may make the task of the Parole Board easier." (1987)
9 Cr App R (S) 225. See also Attorney-General's Reference (No 18 of 1993) (1994) 15 Cr
App Rep (S) 800 in which the Court of Appeal refused to alter a sentence of a probation order
in a case of serious assault because of "very exceptional circumstances" illustrated by letters
from the victim who stated that D had been punished enough by being remanded in custody.
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The Court of Appeal has given guidance as to the weight that should be accorded to the
opinions and preferences of victims at sentencing. In Perks (2000)4 the husband of a robbery
victim had addressed a document to the Crown Prosecution Service in which he wrote of,
amongst other things, his anger towards the offender. In the document the husband asked the
court to imprison him and “let [his punishment] fit the punishment that the victim has to bear.
JAIL HIM! AND MAKE AN EXAMPLE OF HIM TO OTHERS…” The document was
included in the case papers. Counsel for the appellant expressed concern that such sentiments
had influenced the sentencing judge. After reviewing the authorities, the Court of Appeal set
out a number of principles for the use of “victim impact statements”, one of which
established the appropriate place of forgiveness. Garland J said that
“The opinions of the victim and the victim’s close relatives on the appropriate level of sentence should not be
taken into account. The court must pass what it judges to be the appropriate sentence having regard to the
circumstances of the offence and of the offender subject to two exceptions:- i) Where the sentence passed on the
offender is aggravating the victim’s distress, the sentence may be moderated to some degree. ii) Where the
victim’s forgiveness or unwillingness to press charges provide evidence that his or her psychological or mental
suffering must be very much less than would normally be the case.” 5
The Court thus stressed that opinions are strictly irrelevant to sentencing, although
expressions of forgiveness can in some circumstances be accorded weight. 6 The second
qualification under Perks, that opinions can be considered where "the victim’s forgiveness or
unwillingness to press charges provide evidence that his or her psychological or mental
suffering must be very much less than would normally be the case" is interesting and is
evident in several previous Appeal Court decisions. In Hutchinson (1993)7 the appellant had
been convicted of the rape of his former partner, and sentenced to six years imprisonment.
4 The Times 5th May 2000; [2000] Criminal Law Review 606
5 at 607
6 In the particular case the sentence was reduced from four years imprisonment to three (taking into
account other mitigating factors).
7 (1993) 15 Cr App Rep (S) 134
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The victim had indicated at the committal proceedings that she wished to withdraw the
complaint, and when giving evidence indicated that she still loved the appellant and had
forgiven him. At sentencing Owen J stressed the public nature of the offence, saying that it
“was one not only committed against her, but against the whole peace of the country. It is not
possible for somebody who has suffered in this way to withdraw the complaint.”8 But he
then went on to give weight to the victim’s expressions of forgiveness:
“[I]t seems to us that [the victim] is one of those remarkable women who is prepared to
forgive, and has forgiven, that which was done to her by somebody whom she loved and
probably still does love. What effect does that have? It seems that the fact of forgiveness
must mean that the psychological and mental suffering must be very much less in those
circumstances than would be the case in respect of a woman who very understandably could
not forgive such an offence…Accordingly, some mitigation must be seen in that one factor.”9
This approach (reiterated in Perks), equating the expression of forgiveness with evidence of
limited suffering, was seen again in Mills (1998)10 (although the Court of Appeal did not cite
Hutchinson). In Mills (a case of attempted rape by a former partner of the victim) the court
had evidence of a continuing and improving relationship between them, to the extent that
they intended to marry. Judge LJ said:
“We have considered the evidence of the victim with great care. We have reflected on all the
circumstances of this somewhat unusual case. As a matter of principle, the victim of a crime
cannot tell the court that because he or she has forgiven the perpetrator the court should treat
the crime, in effect, as if it had not happened. This was a serious offence. Attempted rape is
always a matter of general public concern, in addition to its more immediate concern to the
victim. It is clear that the victim in this case has chosen to forgive the perpetrator of the
crime, and has said so in terms, perfectly genuinely. That cannot decide the appropriate level
of sentence, but we take her evidence into account as indicating the current extent of the
impact of this particular crime on the victim. Having considered the matter in the light of the
information before us, we have come to the conclusion that the sentence…was too long.”11
8 at 136
9 at 137
10 [1998] 2 Cr App R (S) 252
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This approach poses several problems. The link between forgiveness and lack of harm does
not stand up to scrutiny. It seems to imply that those who find themselves able to feel and
express forgiveness must necessarily be suffering less than those who do not. It implies that
those who do not express forgiveness must be suffering more. This reasoning fails to address
deeper complexities. By equating forgiveness with a lack of harm the Court of Appeal has
tried to accommodate the difficult issue of forgiveness within a sentencing framework guided
by proportionality. This reasoning provides no guidance to courts on how to deal with
situations in which the victim feels able to forgive, but has suffered, and continues to suffer,
physical and psychological injuries as a result.12
What the Court seems to be doing is trying to fit forgiveness into a sentencing framework
guided by the principle of proportionality, a key principle in sentencing law since the
Criminal Justice Act 1991. The guidance in Perks seems to suggest that forgiveness can only
be taken into account when it indicates limited suffering. It is apparently relevent because it
is evidence of less than typical harm. Because less harm has been caused, a lesser sentence is
deserved. On this reasoning if there is evidence of 'normal' or 'aggravated' harm, forgiveness
should be ignored. Herein lies the problem: it is possible that a victim will have suffered, and
be continuing to suffer, extensive harm, but nevertheless feels able to express forgiveness.
The Court of Appeal in England and Wales is yet to address this situation directly. By failing
to tackle the issue, the Court of Appeal has overlooked more fundamental questions raised by
forgiveness. If forgiveness is to have a place in sentencing then a proper penological basis
needs to be found for it.
11 at 254 (my emphasis). Six years imprisonment reduced to three years.
12 See J. Arnold The Lost Art of Forgiveness: Stories of Healing from the Cancer of Bitterness (1998:
Plough, Robertsbridge) for stories of individuals who have suffered terrible physical and
emotional injuries, but found it within themselves to express forgiveness.
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XIth International Symposium on Victimology
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A WAY FORWARD: FORGIVENESS IN THE PROCESS BUT NOT IN
THE OUTCOME?
As calls for victims to have rights and to participate directly in sentencing grow louder
around the world, states will sooner or later have to confront the problem of forgiveness. So
what place should forgiveness have in sentencing? It is easy to criticise the courts (after all
it's what academic lawyers get paid for). I'm tempted to say, let's just remove the exceptions
and revert to the orthodox position in which victims' preferences have no place. Forgiveness
is a moral quality and a social good, but such moral qualities do not sit at all easily with
principles which must be central in any rational justice system: consistency, proportionality,
fairness and justice.
This view, I would suggest, fails to take account of the advances made by restorative justice
processes in finding constructive ways of responding to crime. Certainly restorative justice
has the potential to include expressions of forgiveness, but the theory of restorative justice
has yet to deal adequately with the issues raised by it. In particular I would argue that a
debate is urgently needed on the extent to which forgiveness can and should affect the
outcome of restorative justice processes.
Above all, I think one way forward is to pause and ask "what is sentencing"? In this respect
we need to make a sharp distinction between processes and outcomes.
As a process,
sentencing has the capacity to facilitate victim expression (with attendant psychological and
cathartic benefits) and to facilitate reconciliation (especially when forgiveness is combined
with genuine expressions of remorse). The process of sentencing is a process of responding
constructively to an offence and its aftermath.
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But sentencing is also about outcomes. Just as a rational criminal justice system must not
give weight to expressions of anger and vengeance on the part of victims, nor should
expressions of mercy and forgiveness be allowed to influence decisions and compromise key
principles of fairness to which a justice system must adhere: proportionality, consistency and
justice for all parties involved.
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XIth International Symposium on Victimology
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