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Lecture Notes - Restorative Justice

Restorative justice aims to repair harm caused by criminal acts through cooperative processes involving victims, offenders, and their communities. It focuses on restoring social relationships rather than punishing offenders. The United Nations Convention on the Rights of the Child and the International Covenant on Civil and Political Rights establish principles for restorative justice in cases involving juveniles. Restorative justice models include victim empathy programs, victim-offender mediation, restorative conferencing, and family group conferencing. Legislation in Jamaica and Barbados allows for restorative justice programs such as mediation for first-time, non-violent offenders under age 21 with victims' consent. While restorative justice has benefits like reconciliation, it

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502 views

Lecture Notes - Restorative Justice

Restorative justice aims to repair harm caused by criminal acts through cooperative processes involving victims, offenders, and their communities. It focuses on restoring social relationships rather than punishing offenders. The United Nations Convention on the Rights of the Child and the International Covenant on Civil and Political Rights establish principles for restorative justice in cases involving juveniles. Restorative justice models include victim empathy programs, victim-offender mediation, restorative conferencing, and family group conferencing. Legislation in Jamaica and Barbados allows for restorative justice programs such as mediation for first-time, non-violent offenders under age 21 with victims' consent. While restorative justice has benefits like reconciliation, it

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ALTERNATE DISPUTE RESOLUTION

LECTURE NOTES APRIL 01, 2011


RESTORATIVE JUSTICE
Restorative Justice mainly developed with respect to international human rights, particularly re child and juvenile.
The U.N. Convention on Rights of the Child, article 12 (2) provides: For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative
proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent
with the procedural rules of national law.

International Covenant on Civil and Political Rights, article 14 (4) states: In the case of juvenile persons, the procedure shall be such as will take account of their age and the desirability of
promoting their rehabilitation.

Definition:
It is described as a problem solving approach to crime which involves the parties and the community in an active
relationship with statutory agencies in which all parties resolve how to deal with the aftermath of an offence and its
implications for the future.
Principles that Restorative Justice embodies: 1. Restorative justice seeks to repair harm and ruptures of social bonds resulting from the crime.
2. It focuses on the relationship between crime, victims, offenders and society.
3. It replaces old notions that criminal justice is a matter for the state and the offender and replaces it with the
idea that the victim, the community and the offender should own the process.
4. It enables offenders to take responsibility for their actions.
5. It helps to reintegrate the offender into society and therefore assist with the rehabilitation of the offender into
the community.
Models of Restorative Justice:
It borrows heavily from mediation but the objectives result in the rehabilitation of the offender: 1. Victim Empathy Programme: These allow offenders to participate in restorative justice processes usually with
or without the victim. To guide the perpetrator in considering his/her own behaviour from the perspective of
the victim.
2. Victim Offender Mediation: This relates to a dialogue between the parties and this may either be direct or
indirect and is usually facilitated by a mediator. This approach usually aims at resolving the issues and the
questions that may be raised by the offence. Family members can be present for moral support of both
parties. The procedure is very similar to mediation and Brown & Marriott has a 10 stage process. One of the
main differences of this type is the necessity for pre-conferencing; this is so because for this to be effective,
conditions must be ripe on both sides.
3. Restorative Conferencing: This is usually a meeting between the victims, offenders and their support (family
members, agencies (battered women)
4. Restorative Cautioning: This follows the same pattern as (3) above with the exception that the victims are not
present.
5. Family Group Conferencing: This is usually between the victim and offender, along with their families. The
object is to reach agreement that would encourage reparation and promote the development of a young person
in order to prevent repeat offences.
6. The Sentencing Circles: These are strictly part of the court process and they occur after the offender has been
convicted. In this context, everyone has the opportunity to speak. In addition to the persons within the
community there is the victim and supports and support staff who are usually instrumental within the process.
Key criteria with respect to the functioning of sentencing circles: 1. Usually any criminal record is to be exhibited
2. A record is to be made of the proceedings
3. The participation in this process is to be voluntary
4. The offender can be legally represented and can also address the circle.
5. Judges should impose the sentence in accordance to the law
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In the victim/offender mediation on the other hand there is usually a procedure. In Brown & Marriott there is a ten
stage programme which follows the mediation process. The only difference is that the emphasis has to be placed on
the readiness of both parties to actually take place in the process.

There is usually judicial oversight and judges have to ensure that the outcomes are acceptable.
Heavy reliance on the voluntary nature of the process itself.
Criticism if the processes are incorporated into the criminal justice system that negates the voluntary nature.
Arguments have been made that offenders, despite having good defence could accept Restorative Justice to
avoid the challenges of the trial process. Ms. Phillips that such argument is invalid because RJ does not
remove criminal responsibility and sanction.
The role of the lawyers is usually restricted to before and after the RJ process, which raises the issue of
informed decisioning.
Community supports carefully chosen are responsible members of society, e.g. school teachers, Justices of the
Peace etc.

Strengths of Restorative Justice:


o The informality of the process creates dialogue between the parties allowing for reconciliation, forgiveness
and genuine apology.
o It also allows for creative problem solving.
Weaknesses:
o It is harder to manage some emotions such as anger, resentment and hostility;
o Addressing power imbalances is critical; some victims may feel used in order to reform the offender.
In order to overcome some of these weaknesses, some authors argue that it will be necessary that: o There is adequate preparation between both victims and offenders;
o There is adequate conferencing preparation to the extent that some victims may feel intimidated to meet in the
same room as the offender. Have a pre-conference meeting previously to meeting with both parties in order to
assess the readiness of the victim and the offender to take part in the process.
Legislation:
In Jamaica Criminal Reform Rules and Resident Magistrate Court Rules.
In Barbados The Penal System Reform Act Cap. 139.
Penal System Reform Act of Barbados states: 21. A person who is charged for the first time with a scheduled offence is eligible for mediation if
(a) that person is 21 years of age or under and has not before been charged with, or convicted of, any
offence; and
(b) the charge is one that has been laid by or on behalf of a complainant as defined in section 20(1).
20. (1) In this Part "complainant" means a person who, acting otherwise than in the course of official duty,
lays an information, or causes an information to be laid, alleging the commission by the defendant of a
scheduled offence;
Note sections 22-25 as follows: 22. A court which is about to try a scheduled offence alleged to have been committed by a defendant who is
eligible for mediation shall, before the trial commences, invite the defendant to apply for mediation.
23. (1) Where a defendant in response to an invitation under section 22 indicates to the court that the
defendant wishes to apply for mediation, the court shall adjourn the trial of the offence to such a day as will
allow the defendant sufficient time to make the application.
(2) Where
(a) a defendant fails to make the application before the day appointed under subsection (1), or before such
later day as the court may in its discretion appoint; or
(b) the application is rejected by the court, the court shall proceed to trial of the offence.
(3) An inference of guilt shall not be drawn from the fact that a defendant applied, or indicated the defendant's
wish to apply, for mediation.
24. (1) An application for mediation shall be made in duplicate in a form acceptable to the court.
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(2) On receiving the application, the clerk of the court


(a) shall mark on the copy
(i) the court's acknowledgment of receipt of the application; and
(ii) the date on which the defendant is required to appear before the court for the resumption of the
proceedings; and
(b) shall return the copy so marked to the defendant.
25. (1) A court shall not approve an application for mediation unless
(a) after considering a report in writing by a probation officer on the defendant and the defendant's
circumstances and, if the court thinks it necessary, after hearing a probation officer, the court is satisfied that
the charge is one that may appropriately be dealt with by mediation;
(b) the complainant has agreed that the charge should be so dealt with; and
(c) the defendant and the complainant have agreed on an approved mediator who has agreed to act.
(2) The Director of Public Prosecutions is entitled to be heard by the court before the court determines to
make any mediation order.

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