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2.1. Restorative justice appears to have emerged from the victim-offender mediation or reconciliation movement which began to develop in Canada and North America in the 1970's. Restorative jusice represents a way of dealing with victims and offenders by focusing on the settlement of conflicts arising from crime and resolving the underlying problems which caused it. It is also, more widely, a way of dealing with crime generally in a rational and problem solving way. Central to the notion of restorative justice is the recognition of the community rather than the criminal justice agencies as the prime site of crime control.
2.2 Restorative justice is therefore in the first instance, a form of criminal justice based on reparation. Actions are aimed at repairing the damage caused by the crime, either materially or at least symbolically. When someone wrongs another, he or she has an obligation to make things right. The goal of the process is to heal the wounds of every person affected by the crime. In this context reparation to the victim and community is regarded a duty or obligation on the offender.
2.4 Secondly, communities are also affected by the commission of crime. If communities believe that the criminal justice agencies can effectively prescribe solutions to the crime problem, there is a risk that they may cease to look to preventative obligations which are fundamentally in their own hands. Crime is best controlled when members of the community are the primary controllers through active participation in pursuading offenders to accept responsibility for their actions, and, having done so, through concerted efforts of participation, reintegrate the offender back into the community of law abiding citizens. Low crime communities are communities where people do not mind their own business, where tolerance and deviance has limits, where communities prefer to handle their own crime problems rather than hand them over to the professionals.
2.5 In general, the philosophy of restorative justice is based on three beliefs, namely:
2.6 These general beliefs lead to a number of elements common among restorative justice programmes, including:
2.7 Thus, the process of restorative justice seeks to redefine crime, interpreting it not so much as breaking the law, or offending against the State, but as an injury or wrong done to another person. It encourages the victim and the offender to be directly involved in resolving conflict and thereby becoming central to the criminal justice process with the State and legal professionals becoming facilitators, supporting a criminal justice system which aims at offender accountability, full participation of both the victim and the offender and making good or putting right the wrong.
2.8 As part of this process, restorative justice demands consideration of approaches such as that of offering compensation, where appropriate, to the victims and empowering victims in their search for recognition through direct participation in the criminal justice system. These two issues are discussed below.
2.9 The principles according to which victims of violent crimes are compensated are recognised in most European countries, as well as in the USA and Canada. These principles were approved by most of the countries participating in the Eleventh Congress of the International Association of Penal Law during 1974.
2.10 The important question to be answered is therefore whether the system should be introduced and not on what basis it should function. The most important arguments in relation to the introduction of such schemes also focus on the justification for its existence. The most important arguments supporting the introduction and continued existence of compensation schemes are:
2.11 For purposes of compensation schemes it is necessary to distinguish between victims of natural disasters and accidents and victims of crime. In terms of international compensation schemes only the last-mentioned category qualifies. Meiners[3] states unequivocally that only actions that are made criminal by the law and that have serious consequences for the victims, such as murder, rape, assault, robbery and arson, should receive consideration. Death or injury must therefore arise from an act which is prohibited by law and the person prejudiced by such act must be an "innocent victim". Edelhertz and Geis[4] state that compensation is aimed at the granting of public funds to persons who have been victimized by a crime of violence and to persons who survive those killed by such crime.
2.12 A State compensation fund is a fund created with State revenue for victims of serious crimes, mostly crimes against the person, to compensate partly the victim for losses suffered as a result of injuries sustained or for loss of income during the recovery period. Many State compensation funds are supplemented with a levy payable by convicted offenders. Some countries charge a uniform levy for all types of crimes while others charge different levies for different crimes.
* The administration of compensation systems
2.13 It is clear from the literature that the administration of compensation funds can be divided into three broad categories. They are:
states that courts lack investigative staff, have case backlogs, are adversarial in character and conservative in applying legislative policy. As a result very few jurisdictions utilize the judicial administrative model.
2.14 Clearly, the most important purpose of compensation systems is to compensate victims for monetary loss. Since it is almost impossible to compensate victims for all physical injuries, all compensation schemes attempt to compensate for injuries that can be determined in financial terms. Although the schemes differ as to the approach to the extent of monetary loss, most schemes provide for the compensation for the payment of medical expenses.
2.15 As a general rule compensation schemes award compensation for loss of income. In most American States loss of income is compensated directly, while three States, namely Alaska, Hawaii and New Jersey compensate for loss of earning power. In California, Illinois and Tennessee loss of future earnings is included in the scheme. In Britain, the Board is guided by the procedure which has to be followed in a civil action in respect of loss of income by a victim.
2.16 Loss of maintenance for a dependant of the victim is generally accepted in compensation schemes although the term dependant is not uniformly interpreted by the different schemes. In the Canadian Province Alberta the term is defined as a spouse, child or other relative of a deceased victim who was in full or in part dependent upon the income of the victim at the time of his or her death and includes a child of the victim born after his or her death. In the United States the dependants of a deceased victim can receive compensation for financial loss in Alaska, Hawaii, Indiana, Kansas, New Jersey, North Dakota, Ohio and Tennessee. In certain jurisdictions funeral costs are specifically defined as financial loss. All American States where compensation schemes exist make provision for funeral costs.
2.17 A number of factors influence compensation awards. The most important factor is the minimum and maximum amounts fixed for compensation and which is included in almost all jurisdictions. In determining these fixed minimum and maximum amounts the most important consideration is to keep the scheme as cost-effective as possible. In determining the minimum amount, applications that do not meet the necessary minimum requirements are not to be considered and according to Burns[6] it represents a device to filter out trivial applications.
2.18 All compensation schemes reduce the compensation award if the victim receives compensation from a collateral source. Similarly, the amount is reduced in the case of a social security benefit, for example in Britain. In some schemes a private insurance benefit is excluded as a collateral source, for example, Nebraska in the USA. In all schemes the conduct of the victim at the time of the commission of the crime is an important factor.
2.19 Whereas all schemes attempt to compensate victims for pecuniary loss, the same cannot be said with regard to non-pecuniary loss. Non-pecuniary loss includes pain and suffering, loss of life's pleasures and amenities and life expectations. Non-pecuniary loss is excluded in most schemes since the determination of the award is very difficult. In Tennessee (USA) compensation for pain and suffering is excluded. No compensation should be awarded for any personal injury or loss alleged to have been incurred as a result of pain and suffering. In Hawaii (USA) compensation for pain and suffering is allowed. In Britain compensation for non-pecuniary loss is allowed because compensation is to be assessed on the basis of common law damages. The British Board is clear on the issue that compensation for pain and suffering is payable since "The Board will consider applications for compensation arising out of rape and sexual assaults, both in respect of pain, suffering and shock and in respect of loss of earnings and in respect of the expenses of child birth".
2.20 As a general rule compensation for the loss of property is excluded by most schemes. The motivation is that it will render compensation schemes very expensive. Only Hawaii in the USA provides for compensation in this regard and only in the case of the so-called good Samaritan. The British compensation scheme allows for the loss of or damage to clothing as a result of injuries. According to Burns[7], most jurisdictions in Canada also accepts this principle. The compensation scheme in Northern Ireland provides for restitution of loss of property in very narrow circumstances, usually related to conduct by illegal organisations.[8] In Europe this kind of compensation is also provided for in the Netherlands, but the compensation award is limited to a maximum amount.
2.21 Each of the compensation schemes that has been studied defines victim in terms of its own viewpoints. Furthermore, in most jurisdictions victims are divided into two categories, namely:
2.22 Failure to report the crime within a reasonable time to the police is a ground for refusal of compensation in all the systems. The motivation therefor is that it serves as an educational technique aimed at providing an incentive to victims to report the commission of crimes in future. Most schemes provide for a direct limitation within which the crime has to be reported to the police. In order to be considered for compensation it is expected of the victim to assist in the investigation of the crime.
2.23 The exclusion of the family and members of the household for purposes of compensation is a general rule. The initial British system adhered strictly to this principle but it was amended during 1979. The present British system is quite clear on this where it states that compensation will be refused where the victim who suffered injuries and the offender who inflicted them were living together at the time as members of the same family. In the USA only the schemes in California, Delaware and Oklahoma do not limit compensation to family members.
2.24 A number of American jurisdictions exclude persons serving imprisonment from being considered for any compensation, for example Kentucky, Montana, North Dakota and the State of Washington. The reason is quite clear since the victims acted in contravention of the law and were themselves responsible for the creation of the unique and different environment. The British scheme explains that a person who has made his living by flouting the laws of society cannot expect to utilize those laws for his own ends.
2.25 In foreign jurisdictions legislation has been introduced to co-ordinate victim support services, for example in New South Wales international norms are reflected in a Charter of Victims' Rights which establishes administrative guidelines designed to secure minimum standards for the fair treatment of victims by Government agencies involved with justice, health and community service. In addition, the Director of Public Prosecutions has implemented procedures and policies designed to give effect to those standards which, inter alia, include the establishment of a Witness Assistance Service to provide support and assistance for witnesses during the prosecution process; the production of information pamphlets for victims and witnesses and ongoing officer training and community education on issues relating to victims and witnesses[9].
2.26 During 1991 a Victims Advisory Council was established comprising of representatives from government agencies (Attorney-General, Health, Community Services, Police and Women) and community representatives. The terms of reference of the Council are to assess all services provided to victims by government agencies and community organisations, co-ordinate services to ensure they are complementary, disseminate information about the services available for victims, identify inadequacies in victim assistance and advise on the establishment and funding of a community based victims agency.
2.27 The prosecutor's duty is to see to it that justice is done and to ensure that the community's interests are taken into account when a crime has been committed. This power is derived from the community's permission to entrust the administration of justice and the right to act against offenders on behalf of the community, to prosecutors. Public prosecutors can therefor play an important role in the prevention of secondary victimisation by promoting the interests of victims.
2.28 In most cases victims are unaware of the functioning of the administration of justice. They don't understand the complex procedures and feel intimidated by the legal procedures. Prior to the commencement of the trial, the public prosecutor is in the perfect position to inform the victim of what is expected from him and to refer him/her to the available victim support services. Examples of provisions for crime victims within the criminal justice system in foreign jurisdictions are: considerate reception by the police, referral to support agencies, provision of advice on preventive measures, the right to be notified of the outcome of the investigation or of ensuing criminal proceedings, the right to inform the court about restitution from the offender.
2.29 Dr H F Snyman, former member of the project committee discusses the victim impact statement in the following terms[10]:
2.30 The Victim Impact Statement is a statement made by the victim and addressed to the presiding officer to be considered in the sentencing decisions. The Victim Impact Statement consists of a description of the harm, in terms of the physical, psychological, social and economical effect that the crime had, and will have in future, on the victim[11].
Sometimes this statement may include the victim's statement of opinion on his feelings about the crime, the offender and the sentence that he feels is appropriate.
2.31 The victim impact statement usually takes the form of a written statement that is presented to the court as part of the presentence report. It can however also take the form of an oral statement by the victim when decisions are made by the court on sentencing. This last format of the Victim Impact Statement is only used in some states of the United States of America[12].
2.32 The form, content and means of implementation vary greatly. In the United States for example, some jurisdictions require a written Victim Impact Statement, attached either to the presentence report or as an affidavit which becomes part of the court file. Responsibility for the preparation of the Victim Impact Statement can rest with criminal justice personnel, like the prosecutor, police or probation officer, or with an independent outside organisation like victim service specialists. Victims may also, or in some cases only, provide oral information in court prior to sentencing[13]. The Victim Impact Statement can include objective information or both objective as well as subjective evaluations of injury, including psychological harm suffered by the victims[14].
Victim-offender mediation[15]
2.33 Schemes involving mediation between victims and offenders ensure wider victim participation in the justice system by allowing victims to take part in the resolution of the case. Mediation may be organised without face to face contact between the parties and one of its main aims is to address the concerns of the victim.
2.34 Mediation is considered appropriate when the offender and the victim wish to come to an agreement about the offender's future contact with the victim or where the parties desire some form of compensation or reconciliation. The process has the potential to address the needs of the victim and it may promote the restoration of victim losses. Restitution can take the form of monetary compensation or community service at the agency chosen by the victim. Through person to person communication, tension can be alleviated and conflict taken a humanitarian form. It may furthermore contribute to a more satisfactory experience of the application of the law.
2.35 Victim-offender mediation is recognised in foreign jurisdictions in the following forms:[16]
(i) Family group conferences
2.36 A family group conference is a meeting of the offender, the victim (if he agrees), the supporters of each and a mediator where a plan for dealing with the offender is formulated. It is mostly used to deal with juvenile offenders and it may operate instead of a prosecution or prior to sentence. It is a means to establish a greater degree of community control. Family group conferences aim at reparation rather than retribution.
(ii) Community Youth Conferences (CYC)
2.37 Community Youth Conferences was introduced as a pilot scheme in six areas of New South Wales following a white paper on juvenile justice in August 1994. A government appointed Council issues guidelines and monitors the scheme. Matters may be referred to the CYC by the police or the Children's Court and victims may participate and outcomes can involve apology, reparation to the victim or to the community in the form of community work.
(iii) Community Aid Panels (CAP)
2.38 Community Aid Panels is an example of a mediation programme for adult offenders although it is not limited to adult offenders. It currently operates in New South Wales and it was first introduced in the Wyong Local Court in 1987. The Panels are used after a plea of guilty has been entered but before sentencing and the court adjourns for a period to allow the offence and related matters to be discussed by the panel.
2.39 A panel consists of a police officer, lawyer and two members of the community who will discuss with the offender (and his family if he is a juvenile) the circumstances of the offence and any related problems. The panel is required to recommend a course of action which may involve voluntary community work, skills training or counselling. The matter is returned to court for final determination. Victims are not required to participate, the outcomes can have a restorative orientation and offenders may agree to compensate the victim or to perform community service.
(iv) Circle sentencing
2.40 The judges of the Territorial Court of Yukon in Canada devised a community conference scheme which operates as a pre-sentence option for more serious adult offenders. It was first conducted in 1992. Conferences are conducted with all participants arranged in a circle and such sessions are conducted within the context of the court proceedings and have no independent legislative base.
2.41 Matters are referred to a sentencing circle at the request of the offender or his/her legal representative. Eligibility was initially decided by Judges but such decisions are increasingly made by Community Justice Committees which consist mostly of lay members of the community.
2.42 Sentencing circles are open to the public and steps are taken to involve persons affected by the crime as well as those who can contribute resources to resolving the issues involved. Support groups for both victims and offenders, usually consisting of a number of relatives, neighbours and friends, are encouraged from an early stage. A sentencing plan is devised and the offender's support group becomes responsible for the monitoring, implementation and review of the plan.
[3] 1978 and 1990.
[4] 1974
[5] 1992.
[6] 1992.
[7] 1992.
[8] Burn 1992.
[9] New South Wales Law Reform Commission Discussion Paper 33 Sentencing 1996 415.
[10] Quotation from a paper submitted by her to the Commission.
[11] Hinton, M "Valuing the victim. The use of victim impact statements in sentencing." Unpublished paper read at the 8th International Symposium on Victimology 22 - 26 August 1994 Adelaide Australia.
[12] Erez, E "Victim impact statements" In: Trends and issues in crime and criminal justice. Editor P Grabosky No. 33 1991 Australian Institute of Criminology at 2.
[13] McLeod M Victim participation in sentencing. 1986 Criminal Law Bulletin 22 501 and 517 at 503.
[14] Douglas R & Klaster K Systematising police summaries in the motion court: victim impact statements through the back-door. Unpublished paper read at the 8th International Symposium on Victimology 22 - 26 August 1994 Adelaide Australia.
[15] See New South Wales Law Reform Commission Discussion Paper 33 Sentencing 1996 at 358-369.
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