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Utilizing Foucault's genealogical method, this book traces the history and development of the victim from feudal law, arguing that the historical power of the victim to police, prosecute, and punish offenders significantly informed the development of the modern criminal law and justice system. Leading to the repositioning of the victim into the twenty-first century, this book advocates the victim as an agent of change, presenting a new perspective for the relevance of the victim in today's justice system.
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The Victim in Criminal Law and Justice
Tyrone Kirchengast
The Victim in Criminal Law and Justice
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The Victim in Criminal Law and Justice Tyrone Kirchengast University of Newcastle, Australia
© Tyrone Kirchengast 2006 All rights reserved. No reproduction, copy or transmission of this publication may be made without written permission. No paragraph of this publication may be reproduced, copied or transmitted save with written permission or in accordance with the provisions of the Copyright, Designs and Patents Act 1988, or under the terms of any licence permitting limited copying issued by the Copyright Licensing Agency, 90 Tottenham Court Road, London W1T 4LP. Any person who does any unauthorized act in relation to this publication may be liable to criminal prosecution and civil claims for damages. The author has asserted his right to be identified as the author of this work in accordance with the Copyright, Designs and Patents Act 1988. First published 2006 by PALGRAVE MACMILLAN Houndmills, Basingstoke, Hampshire RG21 6XS and 175 Fifth Avenue, New York, N.Y. 10010 Companies and representatives throughout the world PALGRAVE MACMILLAN is the global academic imprint of the Palgrave Macmillan division of St. Martin’s Press, LLC and of Palgrave Macmillan Ltd. Macmillan® is a registered trademark in the United States, United Kingdom and other countries. Palgrave is a registered trademark in the European Union and other countries. ISBN 13: 978–1–4039–8610–8 hardback ISBN 10: 1–4039–8610–X hardback This book is printed on paper suitable for recycling and made from fully managed and sustained forest sources. A catalogue record for this book is available from the British Library. Library of Congress Cataloging-in-Publication Data Kirchengast, Tyrone, 1978– The victim in criminal law and justice / Tyrone Kirchengast. p. cm. Includes bibliographical references and index. ISBN 1–4039–8610–X (cloth) 1. Victims of crimes–Legal status, laws, etc.–Great Britain. 2. Prosecution–Great Britain. 3. Criminal justice, Administration of–Great Britain. 4. Victims of crimes–Legal status, laws, etc.–England–History. 5. Prosecution–England–History. 6. Criminal justice, Administration of–England–History. I. Title. KD8470.K57 2006 345.41′05–dc22
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Printed and bound in Great Britain by Antony Rowe Ltd, Chippenham and Eastbourne
Contents 1 The Victim as Concept The victim, criminology and the state The shift from feudal property relations to the state The undisciplined society, the state and the victim The autonomous state and the victim Governmentality The milieu of the victim in history and discourse
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2 Private Prosecution Social conditions and the government of private disputes from 1066 to the thirteenth century Changing social and political conditions 1066–1200 The influence of the church The hundred courts and county courts Private prosecution and settlement 1066–1500 Types of appealable offences and modes of proof The social context of private prosecution Appeal procedure and the rise of presentment The development of prosecution under the Crown Appeals i