Criminal Justice System

Title How can a Restorative Justice approach work in our current Criminal Justice System? Restorative Justice Introduction Before the Restorative Justice Act was enacted by the Maltese Parliament in 2010 and subsequently coming into force in 2012 with the publication of Legal Notice 43, criminal justice was first and foremost a punishing system as a means of vengeance on behalf of society. Yet, in reality Restorative Justice is not a recent belief that has developed during these last few years. It has been with us for ages and although we do not normally recognize this, it was and still is a ‘way of life’ and used by the general public as a substitute to the punitive system with the aim of punishing offenders. “In some parts of the world, modern government structures have taken away from communities the power to resolve disputes and wrongdoing. Yet, in many places, traditional structures are still working effectively. In the tribal arrangements of some areas, for example, major crimes are settled by community elders and family problems are effectively resolved by family elders, male and female.” (Howard Zehr with Ali Gohar 2003). Nevertheless, even though restorative justice is not a recent innovation it still is rather new, given that, universally, criminal justice was initially a punitive approach in providing justice. As a matter of fact, restorative justice came about as a result to the failure of the punitive approach in reducing recidivism. In the study ‘Devils and Angels’ it is stated that “the punitive system failed due to the traditional penal sanctions that included the collapse of the welfare ideal and of the rehabilitative ideal” (Fionda, J. 2005). In actual fact, the punitive system was only intended as a deterrent and also as retributive for rejecting the offender from society. In addition, it ignored the rights of the victim from having a say.

The role of the victim was only to be called as a witness for the prosecution and then forgotten. Thus the purpose as a witness was just for the Court to establish if the accused is at fault or otherwise. On the other hand, restorative justice is different from the punitive approach. The aim is not only to rehabilitate the offender but more importantly to include the victim as part of the restorative model. Ethics in Victim-Offender Mediation Ethics in mediation process is the crucial aspect to achieve an unbiased solution that would result in a win-win situation for both parties in conflict. The whole mediation process is based on ethics between both the mediator and the parties and the parties themselves. Apart from the parole system, the most important aspect in the Restorative Justice Act of Malta is the victim-offender mediation.

There are many critics that have doubts as to whether mediation between an offender and the victim can achieve the desirable result and what type of agreement can be reached. Some of these critical issues include “Is mediation possible with persons suffering from a personality disorder? Can you mediate with psychopaths? Are there limitations when crime is too severe, and should we protect the victims against secondary victimization? (Delvigne, A. 2005). Restorative Justice in Malta Victim-offender mediation encourages reconciliation and resolution.

Yet, not all victims or offenders are eligible to attend victim-offender mediation. First of all, the offender must admit that he had committed the offence in question and must also be willing to enter into mediation. The offender must voluntarily agree to take part in the victim-offender mediation. The victim, just like the offender, must also voluntarily agree to take part and be willing to enter into such mediation. Whether victim-offender mediation takes place or not will be specifically determined by the nature of the offence, including the level of harm caused by the aggressor or the violence involved in its commission according to the legal regulations.

Not all victims and offenders are eligible to victim-offender mediation and account will be taken of the victims’ motivations in meeting up with the offender and vice-versa. The personal characteristics of both the offender and the victim will be considered as well as the impact of the offence as seen by both the offender and the victim. The possibility of psychological repercussions on the victim is also taken into account as well as the offender’s remorse for his/her actions. What is interesting is that victim-offender mediation takes place without the presence of any legal counsel. There are three instances where mediation should be terminated. It should come to an end when an agreement is reached; when an agreement cannot be reached; or when either of the parties does not wish to carry on with the mediation. The agreement reached can include compensation for damages, non-pecuniary compensation, community service or even rehabilitation programs and formal apologies. The essential aspect remains that the victim and the offender should reach a consensus following a negotiation process of a reparation agreement. An effective Restorative Justice approach Restorative justice, unlike the punitive system, advocates forgiveness, healing, reintegration, reconciliation and is specifically aimed at offenders and victims. It also offers support to offenders along with a final resolution to victims and also strengthening the relationships in communities. Several countries have reported that during these last years there was an increase in the number of victims of crime who have gave their consent in meeting in-person with the offender who had caused them harm. (OVC, 2000). The main reason for crime victims to meet their offenders is essentially to let them know how the crime has affected their live; to ask the question ‘why’ they were victimized and other distressing questions which every victim has a right for an answer. Furthermore, these meetings will cause influence so that offenders will be held accountable for the crime they have caused. A study carried out by Dussich and Schellenberg (2010) revealed that organisations in various countries, directly involved in the criminal justice system including the police, law courts, and probation officers have all praised and supported the use of victim-offender mediation as a realistic alternative to the traditional retribution that every State on behalf of society demand against offenders. In view of this growing need, the time has come for the Maltese legislature and judiciary to acknowledge and promote the significance of victim-offender mediation by primarily giving it the value and priority it deserves towards victims and subsequently to look at the needs of the offenders. Victim-offender mediation should not be classified or linked as part of the civil, commercial, or family mediation.

These categories of mediation are totally distinct from each other and should be regarded and dealt with as such. In Malta, mediation in family dispute situations such as marriage separation or child custody affairs is mandatory and in time it has become accepted as a viable alternative to court litigation. Nevertheless, mediation in civil, commercial, and social disputes including victim-offender mediation is currently applied only in theory and non-existent in reality. The distinction between the various civil forms of mediation against that of VOM is that in civil related issues the participants are referred to as disputants and the objective for mediation is that of reaching a mutual resolution by compromise that will assist both parties equally. Therefore both disputants are considered as evenly balanced and are expected to contribute on the same level to resolve their conflict. In essence, the aim of these settlements focuses on the conflict with little weight given on the participants emotional aspects or how the resolution is going to affect their lives. On the contrary, in mediation, the participants should not be considered as disputants.

The power of imbalance between the victim and offender already exists and the offender is already regarded as guilty for having committed a criminal offence. On the other hand, the other party is considered and labelled as the victim of the crime. This means that mediation will not focus on the guilt or the level of compromise to be reached. Victims of crime should not concentrate on negotiating the type of restitution to be granted, but VOM is primarily to be regarded as a dialogue between the victim and the offender, where the interests and needs of the victim should be given precedence, followed by the needs of the offender and the type of restitution or financial compensation to be reached as part of the agreement. Nevertheless it should be maintained that the agreement is only to be regarded as a secondary issue whilst the objective of initiating a VOM meeting should remain as a restorative justice dialogue between the victim and the offender. Empathy towards the offender is also vital as the dialogue should be guided in order to prevent future criminal conduct by the offender.

According to Unmbreit (2001), VOM “provides interested victims the opportunity to meet with the juvenile or adult offender, in a safe and structured setting, with the goal of holding the offender directly accountable for their behaviour while providing important assistance and compensation to the victim.” The Way Forward As I have already explained, the purpose of victim-offender mediation is to offer a conflict resolution procedure in restoring the emotional and physical harm caused by the crime. Although in our legislation victim-offender mediation is listed as Part VI of the Legal Act under the heading of ‘Establishment of the Victim Support Unit’, it is not clear whether Restorative Justice in specifically intended towards society, the victim, or the offender.

Our legislative representatives appear to be more inclined towards taking the direction of society-centred approach. Of course, one of the aims for restorative justice is intended to eliminate or at least control recidivism, however in order to arrive at this phase, the main priority should be focused towards a victim-centred approach. This is supported by research that suggests that mediation should be person-centred rather than position-centred communication. (Motchnig R., 2014). The safety and wellbeing of the victim is to be placed high in the dialogue agenda. It is the appointed mediator’s role who is responsible for the security, protection and welfare of the victim. The victim should feel out of harm’s way during the entire process and therefore the location for the meeting with the offender should be conducted in a place where the victim deems secure. Individual pre-mediation meetings are of vital importance, so that the mediator would be able to carry out a screening process on both the victim and the offender with the objective to evaluate whether they are suitable of representing themselves and competent to communicate their needs.

Furthermore the mediator would also be in a reasonable position to explain to each party in a private manner the rules and guidelines to be followed. The mediator should first approach the offender to verify that s/he is giving his or her consent to meet with the victim. It would be a case re-victimisation, if the mediator first discusses this issue with the victim and after agreeing to meet the offender, finds out that the offender has turned down the request for VOM. Active listening, empowerment and empathy should be an on-going process throughout the mediation sessions in order to encourage the victims to express their needs, to participate effectively, and to assist the offender to listen to what the victim has to say. Author Kenneth A. Wells (2008) quotes that “A good listener tries to understand what the other person is saying. In the end he may disagree sharply, but because he disagrees, he wants to know exactly what it is he is disagreeing with.” Apart from the location site, the waiting area and the seating setting is also part of the logistics that the mediator needs to prepare ahead of the meeting. The victim should be advised to be seated close to the exit door and preferably the offender and victim are to be seated at the opposite ends of the table with the mediator seated to the side of each party. Whatever the seating arrangement is, the outcome should be that the victim feels safe and secure. The victim should also be given the opportunity to choose whether he/she wants to speak first or to let the offender initiate the dialogue by going through the sequence of events that led to the crime.

Some victims tend to wait before they speak up with the aim to overcome any power of imbalance that might exist. According to Ken Braun (n.d.) “No conversation is too difficult to have but sometimes people need help having that conversation.” I believe that the duration of the entire mediation should last not more than three sessions. If after these sessions, the mediator feels that there are no developments or that a resolution is still far from being reached, than it would be futile to continue pursuing for an agreement and it would be better to stop mediation. As for restitution, it is essential that the agreement plan must be negotiated between the victim and the offender. It could be monetary or non-pecuniary compensation and some victims might be satisfied that the offender follow a rehabilitation programme or perform community work. For others a simple letter of apology would be all that they require or ask for. No matter what the mode of restitution is, the bottom line is that such an agreement should be legally binding either by the court of law or signed by the parties themselves and approved by the victim-offender mediation committee. In order to achieve this, parliament is to rectify and amend the Restorative Justice act so that justice with victims would be prevailed. As the law stands today, an agreement reached by the parties is not binding and this could be one of the reasons why VOM is not acknowledged or recognised by victims or professionals working in the field of the criminal justice system. Another approach for restorative justice to be effective is for the mediator to keep in contact with both the victim and the offender after the end of mediation, at least for a period of time. A short term follow-up is sometimes all that is required for victims to feel secure and to continue leading a normal life. The victim-offender mediation committee should include as part of its responsibility the role of an advisory board where mediators can have a point of reference to consult and discuss difficulties that they may encounter with their supervisors.

This requires competent and qualified appointed committee members who are knowledgeable in legal aspects, mediation, and psychological assistance. Conclusion Personally, I feel that the past and present appointed VOM committee have so far failed in their mission to incorporate the Restorative Justice act as an integral part of our criminal justice system. In order to resolve this limitation, the committee is required to seriously promote VOM. After all, article 27(1)(g) of Chapter 516 of the Laws of Malta clearly states that one of the functions of the victim support unit is the promotion of victim-offender mediation as a means of reparation for both the victim and the offender at any stage of the criminal justice process. This can be achieved by coordinating and setting-up conferences and seminars to all stakeholders within the criminal justice system, and also to promote this practice throughout the media for the information of the general public. In conclusion, if victim-offender mediation is not given the opportunity by the Magistrates and Judges in referring eligible cases to the committee for evaluation, it will remain difficult to analyse the benefits that this system claims to provide and most of all whether it would be constructive in enhancing our criminal justice system. If on the other hand the situation remains status-quo with the same approach as currently exists, than VOM will most definitely remain missing and non-existent in our legal system. References Braun, K. (n.d.). “Victim Offender Reconciliation Program”. Community Mediation Services of Polk County. Oregon: Dallas. Delvigne, A. (2005), 7th International Conference on Conferencing, Circles and Other Restorative Practices: Manchester, England. Dussich, J. P., Schellenberg, J. (2010). “The Promise of Restorative Justice: New Approaches for Criminal Justice and Beyond”. pp. 121-123. Lynne Rienner Publishers. Fionda, J. (2005). “Devils and Angels”. Hart Publishing, p. 175. Howard, Z., Gohar, A. (2003). “The Little Book of Restorative Justice”. Good Books Publication, USA. Motschnig, R., Nykl, L. (2014). “Person-Centred Communication: Theory, Skills and Practice”. pp. 55-56. Berkshire: England. Open University Press. Office of Victims of Crime (2000). “Guidelines for Victim-Sensitive / Victim-Offender Mediation: Restorative Justice through Dialogue”. Retrieved from https://www.ncjrs.gov/ovc_archives/reports/96517-gdlines_victims-sens/guide7.html. Restorative Justice Act (2010). Chapter 516 of the Laws of Malta. Umbreit, M. (2001). “The handbook of victim offender mediation”. San Francisco: Jossey-Bass.

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