The rights and needs of victims in the criminal justice process

Paper to conference on ‘Restorative justice: criminal justice for victims?’, Amsterdam, The Netherlands, 1 December 2000. 

Used by permission of the Publishers from ‘The rights and needs of victims in the criminal justice process’, in Crime, Victims and Justice eds. Hendrik Kaptein and Marijke Malsch (Farnham: Ashgate, 2004).

Copyright (c) 2004.  <http://www.ashgate.com/isbn/9780754623540&gt;

The social context of justice

Let us begin by thinking about the whole picture: not only restorative justice, but the purpose of the criminal law, which I assume to be to create a just and stable society. I will not say much about the problems of conventional justice, which we all know, or the theory of restorative justice; I will concentrate on how it could work in practice, and I hope that the theory will be reflected by the practice.

 Returning to the ideal of the just and stable society, I believe that this would be based as much as possible on consent and as little as possible on coercion. I would summarize this as a society which. aims to persuade people to stay within acceptable boundaries without the use of repression. This would be done partly by rewarding people, not only in a material way but through the approval of others, and also by enabling themto survive without behaving in unacceptable ways. Only then would we consider what to do when people went outside those boundaries; and the principle of maximum consent, minimum coercion, would apply here also.

I will begin by looking at some of the words we use, and by considering how restorative justice can be used within the context of conventional criminal justice. Then we can consider a more radical vision of how a society could respond when one person harms another. Do we need to use the criminal law at all? If so, how would it work restoratively, with especial reference to the victim’s point of view?. This includes the process itself, the administrative structure, and the way in which it is integrated into the system. I will refer to some frequently asked questions about restorative justice; and finally, returning to society as a whole, we will consider how a restorative approach could transform it.

Terms

First, some of the words. ‘Crime’ is defined in English as behaviour which is against the law and can be punished; in other languages this way of looking at things is built into the words themselves: the Dutch strafrecht, German Strafrecht, French droit pénal, for example. But this policy has been described as het repressief model, and punishment is not necessarily the response to law-breaking, as we shall see. The Norwegian criminologist Nils Christie (1982) has reminded us that punishment is the infliction of pain, and the word ‘deterrent’ has the same root as ‘terror’ (and the same is true in Dutch: avschrikkend and schrik); do we really want to live in a society ruled by repression and fear?

The simple assumption that offenders should be punished is extremely problematic: it is based on the assumptions that punishment is (a) effective and (b) ethical, both of which are, to say the least, questionable (Wright 1999). It may be more helpful to think of the action as not necessarily punishable, but ‘criminal’, from the Latin crimen, fault or accusation; it is also an action which causes ‘harm’. Even if we remove the link to punishment, it is probably useful to have a law which lists the main ways in which people harm each other, as a declaration by society that they are not acceptable. To question the usefulness of punishment does not mean that there is no response to crime, but we can use a more neutral word such as a ‘sanction’ or ‘measure’ (maatregel).

Restorative justice’ takes a problem-solving approach: an individual (or the community) has been harmed, what is the best way of resolving the event in the best interests of those who are affected by it? It is based on the premiss that this question should be resolved, if possible, by the victim and others affected by the harm, and by the person who caused it. ‘Mediation’ and ‘conferencing’ are different methods of arranging for this resolution to take place, and will be described below; so will the concept of ‘reparation’. ‘Mediator’ and ‘facilitator’ will be used interchangeably.

Restorative justice in the criminal justice system

What should we do when one person harms another? The criminal justice process has not treated victims well. They are kept waiting, without adequate information, and the procedure is not explained to them. Sometimes they must endure distressing questioning by lawyers. Although efforts are being made to improve this situation, for example through the Vaillant guidelines on the treatment of victims in 1987, the Terwee guidelines of 1993 on referral to victim assistance (Aanwijzing Slachtofferzorg), and the Victims charter of 1990 and 1996 in Britain, the process is still centred on the offender. Restorative justice takes the victim as its starting point. Its basic principle is to offer help to the person who has been harmed; dealing with the offender comes later. This is how we respond after an accident: first we help the casualties, then we look for the causes, and only then do we ask who was to blame (Wright 1977).

How does restorative justice work, from the victim’s point of view? Every case is different, but I will describe one which shows some of the possibilities. This one took place within the framework of the existing law: the offender was convicted and sentenced before restorative justice was used.

Tom, aged 18, with no driving licence, was driving a stolen car and knocked down a six-year-old girl, Sally. She was in intensive care and for a short time her life was in danger, but she recovered; however, she suffered from nightmares and a phobia about being in the bath, because it made her think of being underneath the car.

Tom, who came from a difficult background, was sentenced to four months in a young offenders institution, and a mediation worker visited him there. He was willing to apologize, though not enthusiastic. The worker then visited Sally and her parents, who at first were distressed and did not want to listen, but became interested, and although the mother did not want to meet Tom, the father and Sally agreed to do so. There had been a suggestion that he might offer her a teddy bear as a present, and the parents agreed that this would be appropriate.

Tom was terrified before the meeting, but made his apology (in very few words) and offered the teddy bear. Sally left her father, walked across to take it, and gave Tom a hug. He was very moved by this, and so were the mediators. The father asked to speak to him alone; the mediators said that they must be present. He described his feelings when he was called from his work to the hospital, and how he was so angry that he might have killed Tom if he had met him then. But he recognized that Tom had been brave in coming to the meeting, and said that it had helped him to get over his anger. Sally had no more nightmares, and was able to bathe without being afraid. 

Tom felt pleased at having taken part. But he was later arrested for stealing another car.

This story illustrates several points relating to victim/offender mediation. It is important to prepare people to take part so that they know what mediation would be like, and do not have unrealistic expectations; and they need time to make up their minds. Most workers feel that it is best to contact the offender first, so that the victim does not have the stress of making a decision when there is a possibility that the offender will refuse to take part, or that a meeting will be considered inappropriate. If this is done, it can help the victims to let go of their anger, which is helpful to them as well as to the offender.

Also, its success can be measured by its effect on the victim, not only by whether it prevents the offender from re-offending. In this case, it is worth noting that the young offenders institution also did not prevent re-offending; such institutions can be terrible places, and it is even possible that if the mediation had taken place instead of the custodial sentence, he might not have committed a further offence. There are also questions to be asked about whether, after the mediation, Tom received the help he needed to cope with the problems in his own life. In theory mediation results in a kind of contract between the victim and the offender, but in reality the community is also a party to it, so that if all does not go well, we should ask whether individuals and agencies, relatives, employers and social services, have given all necessary support. Perhaps they, as well as the offender, have not kept their contract.

Some of what I shall describe is already happening; it will be concerned with practical details, but I shall try to give it a conceptual framework, and in some cases a different emphasis; for example, I will suggest that the process of mediation can be more important to victims thant receiving some money as compensation. As you know, these forms of conflict resolution are already being introduced in the Netherlands. As I understand it, the only one which is used everywhere is settlement of claims by the public prosecution department (schaderegeling door de parketten), but in some places there is also community mediation (buurtbemiddeling in six municipalities1 and Justitie in de Buurt2), settlement of disputes in the public prosecution department (conflictregeling door de parketten3), and reparative mediation (herstelbemiddeling4) to assist after sentence in coming to terms with the pain on the part of the victim and the guilt on the part of the perpetrator in serious criminal cases, including some where death ensued (Ministerie van Justitie 2000). In Austria, Belgium, France, Germany, Poland, the United Kingdom and other European countries there is a variety of initiatives, and a European Forum for Victim/Offender Mediation and Restorative Justice has been formed to promote an exchange of ideas, experience and good practice. All thesre are encouraging signs, but there is an important warning: restorative justice must be done well if it is to benefit victims, offenders and the community, and win public and political support. Well planned projects with adequate resources and evaluation will show how the idea can work, as a basis for extending it through the country; otherwise it will not be given a fair trial and the opportunity will be lost.

A radical vision

Harm: a civilized response

Do we need a criminal law at all? Radbruch said that we should only try to create a better criminal law until we can find something better than criminal law. The Dutch criminal lawyer Louk Hulsman has pointed out that often the same action can be treated as criminal or as a civil wrong (a ‘tort’ in the English legal language which we imported from France nine hundred years ago). Like his Norwegian colleague Nils Christie (1982), he sees punishment as a barbaric way for a state to treat its citizens; according to him the three greatest historical causes of human suffering have been famine and pestilence, war, and criminal justice. Most crimes are also civil wrongs, and in some countries the criminal process is accompanied by a civil one. This can also be enforced, but in a different way, by civil injunctions and officers of the court. So why, Hulsman asks, cannot the whole process be ‘civilized’, in both senses of the word?

This is already happening where victims and offenders know each other. The ideal, of course, is to use mediation at an early stage to prevent conflict from getting worse, but if that has not been done, some disputes between neighbours or workmates lead to an act of violence which can be classified as a crime. Possibly some private accusation offences (klachtdelicten) such as insults would fall into this category. It may be more helpful to resolve the dispute than to treat it as a crime. Consider this case:

Mr Williams was annoyed at the way his neighbour Mr Johnson parked his car. Mr Johnson answered him rudely, and complained about the noise Mr Williams’s children made. The relationship got worse, and Mr Williams attacked Mr Johnson. Quite serious crimes can have such trivial origins. Mr Johnson could accuse Mr Williams of assault. But who is the victim and who is the offender? If Mr Williams pleaded self-defence or provocation, and the court dismissed the case because it considered that both were in the wrong, the court’s time would have been wasted and the two people’s relationship would not get better. More important, if Mr Williams was found guilty, so that Mr Johnson’s action resulted in Mr Williams receiving a criminal conviction, the intervention of the criminal justice system would have made the relationship worse than before. In fact Mr Johnson did go to the police; they suggested that it would make more sense not to treat the incident as a crime at all, and that he should go instead to the community mediation service. A mediation was arranged, with trained volunteer mediators, and they were both able to tell each other details of their lives which the other person had not known (and which would not have been regarded as relevant in a court of law); this helped them to agree how they will behave towards each other in future.

This is also an example of another feature of restorative justice: to involve ordinary members of the community as much as possible, as facilitators.

Crime: a restorative response

Supposing however that the incident is classified as a crime, how can it be dealt with in a restorative way? We can consider three main situations: where someone has become a victim but the offender is not known; where victim and offender are known and are willing to take part in a restorative process; and where, for various reasons, mediation is not possible.

Crimes committed by a stranger who is not detected

These are some of the commonest reported crimes. This is where assistance to victims fits in to the restorative process, and it is already well developed in the Netherlands, the United Kingdom and elsewhere. In countries where victim assistance is provided by volunteers, this is another example of participation by the community, and helps to implement the principle: As much State as necessary, but as little State as possible. Some victims, if they cannot meet ‘their’ offender, welcome the chance to meet groups of other offenders and victims who have been involved in the same type of crime.

If victims need more than a friendly listener, for example a counsellor or therapist, volunteers are trained to refer them to professional services, provided by the community through its formal structures, local and national government. For physical injuries, either they should be cared for by the national health service, in countries which have one, or they should receive the money to pay for medical attention; in the United Kingdom many victims also receive compensation for their pain and suffering. The maximum award, for the most serious brain damage, is £250,000, with the possibility of additional compensation for loss of earnings or special expenses. In New Zealand compensation by the state for victims of crime is ‘civilized’: it is included with the system for accident compensation, of which it is only a very small fraction, compared with the other injuries and traumas which people may suffer, and this is another point made by Louk Hulsman.

Victim assistance and state compensation are restorative, because they help to repair the consequences of the crime; but they are not fully restorative, because they do not involve the offender..

Crimes committed by a stranger, where a suspect is found.

As before, the victim’s needs, and injuries if any, should be attended to first. Since the offender is known, it is only right that he or she should be held responsible – but how? This is one of the ideas at the centre of restorative justice. It aims to address some of the major weaknesses of conventional criminal justice, for example that the victim is allowed no proper role in the process; that offenders, although nominally at the centre of the process, also have no active part in it because they have lawyers to speak for them; and that because the system is mainly based on punishment, offenders naturally wish to avoid it, and their lawyers try to deny, minimize or even justify the harm which the offender did to the victim. Prosecutors also take part in this, in Anglo-Saxon countries at least: in the process known as plea-bargaining, they drop a more serious charge if the offender will admit a less serious one. This saves the court’s time. For example, the offender may have committed a robbery, which is theft with violence; but if the offender admits the theft, the prosecutor may forget the violence. But the victim does not forget it.

What does restorative justice offer instead? It offers the victim and the offender the opportunity to speak for themselves under the guidance of a mediator (or ‘facilitator’), and, if they wish, to speak to each other in less formal surroundings than a court room. (If either of them does not want to meet the other, they can communicate indirectly.) This is more than a negotiation about compensation. Although they did not know each other before, the crime has created a kind of conflict between them, and this process enables them to resolve it. The victim can tell the offender how much the crime has affected him or her; often the offender had not thought about this, or had ‘neutralized’ it by telling himself that the victim could afford the loss, or was covered by insurance.

For this reason the method is most suitable for cases where the crime has had a serious effect on the victim; but there has been a tendency to use it only for minor cases. What do victims want from the process? First of all, they often find the process itself helpful. They want to understand why this person harmed them, whether there was a reason why they were chosen as the target, and whether they are likely to be victimized again. Research has suggested that telling the offender about the effects, and asking questions which only the offender can answer, is more important for many victims than obtaining money as compensation (Umbreit and Williams 1996, Tables E-1 to E-4: of the victims who participated in mediation, the percentages who stressed the importance of telling the offender the impact of the crime (90 per cent), of receiving answers (80 per cent) and of receiving an apology (73 per cent) were greater than the percentage who attached importance to restitution (65 per cent)).

At the beginning victims are sometimes still angry and want compensation from the offender, for example the full value of the things that were stolen; but after getting to know the offender and his background, the money often seems less important. They do however want the offender to do something to show that he or she is sorry; one woman wanted the young man who had robbed her to do some work for people less fortunate than himself. It was arranged that he should work on a project teaching disabled children to ride. Another common reaction is to want the offender to do something to make it less likely that he will offend again; for example to attend school, undertake training, go to live with relatives, tackle abuse of alcohol or drugs. These are things which have previously been labelled as ‘rehabilitation’, and it sometimes seemed that more was being done for the offender than for the victim; but in restorative justice the offender is doing it, not having it done to him, and he is doing it for the sake of the victim as well as himself. So in this context all these activities can be counted as ‘reparation’.

What does this offer to the offender? Many offenders are sorry for what they have done, and welcome the chance to say so, and to offer some explanation of their behaviour. Some show no remorse immediately, but change their attitude after they have met their victim.

This is how restorative justice can work; but it cannot be fully applied in all circumstances.

Where mediation cannot take place, or is unsuccessful

If the victim or the offender does not want to take part in victim/offender mediation, the case will have to go to court. It is important that the victim should not feel burdened, or even threatened, by having the responsibility of making this decision. It should therefore be possible for conferencing to proceed without the victim, and for victim/offender mediation to be replaced by a ‘victim awareness’ session or a ‘positive experience’ (positieve ervaring) as in the Herstelbemiddeling project in The Hague. If the offender is willing but the mediation or conference cannot proceed because there is no identifiable victim or for some other reason, it would not be fair if he or she would receive a more severe punishment In this case the offender should have the possibility of showing that he was sorry by ‘giving something back’ in the form of service to the community.

There will also be some cases where the facilitator does not consider that both parties would benefit, or where mediation was unsuccessful; and there is a minority of accused persons who deny the act with which they are charged. Such cases will also have to be dealt with by a court. It would be expected, however, that any sanctions imposed by courts would be restorative ones, such as compensation (if the victim wishes to receive it), or community service, or reparation in the sense described above.

Models, structures, and integration into the system

There are three policy decisions which a country will have to make when it introduces restorative justice: what model(s) of mediation or conferencing to use; who will provide the service; and what will be its relationship with the criminal justice system.

Models

The details of the victim/offender mediation process vary; I will emphasize the victim’s point of view, because some projects which use the term ‘restorative justice’ have treated it more as a way of dealing with offenders, thinking of reparation mainly in terms of an amount of money or a number of hours’ work. It is important also to look at the process, step by step, to make sure that it is ‘victim-friendly’.

Some people talk of different models of mediation; I suggest that it may be more helpful to think of them as points on a spectrum. At first the victim and offender are visited. If they decide to go ahead, they may exchange messages or letters, and nothing more. (This stage is referred to either as visiting, or as indirect victim/ offender mediation.) Or they may then agree to meet one-to-one, perhaps with parents or other supporters present (direct mediation). This can be taken a stage further by inviting the offender’s extended family and other significant people, and the victim can bring their family or other supporters as well (conference). (Notice how the words ‘mediation’ and ‘conference’ emphasize the process, rather than the outcome.)

There are also different styles for running conferences. In a ‘community conference’, the discussion is mainly about the way in which the victim and the offender resolve the situation, and everyone is present all the time; but where there are problems within the young person’s family, which do not concern the victim, a ‘family group conference’ may be more suitable, in which at one stage of the process the offender and his or her family have ‘private time’ with no one else present; then everyone comes together again and the offender and family explain their ‘action plan’. This can be discussed further if the victim does not agree.

Structures

The way a victim/offender mediation service looks after the needs of victims, and the way in which it is perceived, depend not only on its processes, which we have just been looking at, but on its administrative structure. The model which encourages the greatest community involvement is a non-governmental organization, whose management includes representatives of the statutory agencies (police, prosecutors, probation service, and others), supported by legislation to ensure that it is recognized as an essential part of the system. If one of these agencies alone runs the service, it is likely not to be perceived as independent – and is vulnerable to changes of policy, as the service in West Yorkshire, England, has found: a new chief probation officer has greatly reduced mediation work in order to transfer resources to other activities. But it can also be provided by a single state agency created for the purpose (such as the Youth Justice Conferencing Directorate in New South Wales), or a multi-agency group. Whichever is used, it is important that the management structure includes a representative of a victim assistance organization.

Another question is Who should be the mediators? Here again there is an opportunity for involvement of the community, as some projects in the Netherlands have found: with professional supervision and support, volunteers can be good mediators. In some places they are paid a small fee for each session, but they are still members of the general community. In other countries a new profession of mediator is growing up; this has advantages, but it limits the number of mediations that can be undertaken, because the state is never likely to employ as many as are needed. Members of existing agencies can be trained as mediators, although there is a risk that they may not be perceived as neutral. Whichever method is used, it is essential that they have specific training in mediation, paying especial attention to the importance of considering the needs of both victims and offenders. The training of social workers, police and probation officers is not the same as the training of mediators; although it has some similarities, in other ways it has a very different approach. Other staff need to be trained to organize reparation, by finding opportunities for community service (including arrangements for safety and insurance) and liaising with rehabilitative agencies.

Integration into the system

It will be convenient to make a division of offences into four broad categories, least serious, less serious, more serious and most serious – and in a restorative system these distinctions would take account of the effect on the victim, not only of an arbitrary legal category. The actual border lines between them will of course vary at different times and in different countries.

The least serious offences would be diverted out of the system either informally (by the police officer who says ‘Go home and don’t do it again’) or formally (where an official caution or warning is given by the police, prosecutor or court), and no further action is taken. This warning would be given in a ‘restorative’ way, that is, by emphasizing the harm caused to others rather than by threatening punishment if the offence is repeated.

 

Less serious offences would be those where the accused admits the act (though not necessarily guilt in the legal sense) and where there has been enough of an impact on the victim to make it worth asking if they would be willing to take part in mediation or a conference, but the intervention of a court is not necessary. There should be a minimum below which mediation is not normally used.

More serious offences require the supervision of the court to confirm that the accused has committed the act charged; but then the court can refer the case to a conference to decide on an ‘action plan’ for the offender. This is brought back to the court, which in most cases confirms it, but may add to it or reduce it. If it does make a change, however, the court should explain to the victim and the offender why it was felt necessary to alter their agreement.

The most serious offences will have to dealt with by courts, and until restorative justice is better known and accepted, sentences will continue to be decided on a retributive basis; but the aim is that these sentences should also be based on reparation. In addition courts would impose restriction of liberty when necessary, such as suspension of a driving licence, restrictions on movement, or disqualification from following a certain occupation or profession, but deprivation of liberty (imprisonment) would be kept to the minimum required for the protection of the public; it would be protective custody and not punitive custody, and prisoners should also have the opportunity to make reparation in the sense outlined above.

Distinctions of this kind are already made in ‘out-of-court offence settlement’ (aussergerichtlicher Tatausgleich, ATA) in juvenile law in Austria, where only offences punishable with more than five years’ imprisonment are in the ‘more or most serious’ categories, and in New Zealand, where only homicide and some very grave rapes and assaults are heard in the High Court, and pre-sentence FGCs are used even then (McElrea 1996, Akester 2000).

Some frequently asked questions

Of course there are problems and questions that need answering. legitimate points have been raised about safeguarding human rights, especially of offenders. Some of these, however, come from lawyers who take the conventional theory of criminal law as a basis, and try to fit restorative justice into it. I have nothing against lawyers – some of my best friends are lawyers! – but I would suggest, with the greatest respect, that it would be better to ask the question in a different way, namely, to accept that restorative justice starts from a different philosophical base, and ask how it can be implemented in a way which respects the needs, and the human rights, of the victim, the offender, and other members of the community who are affected. These are questions which the advocates of restorative justice need to ask: There are serious issues about, for example, whether the process enables the accused to obtain advice from a lawyer. Many of them have been taken into account in the Youth Justice Conferencing Scheme in New South Wales, Australia (Trimboli 2000). Where lawyers are involved, they should be familiar with the principles of restorative justice. These objections are not a reason for dismissing restorative justice; the movement is addressing them, and will welcome help from lawyers and other practitioners in finding restorative solutions.

Lawyers also ask whether restorative justice can deal with ‘victimless’ crimes and attempts, regulatory offences, and so on. These have not yet been fully addressed, but can be approached in a similar ‘restorative’ way. As an Australian social theorist David Moore says, ‘When we ask not “Who did it and what is to be done to them?” but “What happened, how have people been affected, and what do we need to do now?” we get a very different sort of justice. We get a justice process that involves the acknowledgement of conflict, then the transformation of conflict into co-operation’ (Moore 2000: 330). For misleading descriptions of goods offered for sale, for example, instead of a fine, the offender might be required to discuss the effects of inaccurate labels and to contribute to the cost of enforcing the regulations: offenders might have to pay the same as if they had been fined, but the message given to them would be different.

A common question is, Will restorative justice deter crime, or is it a ‘soft option’? There are several answers to this. One is that meeting a victim can be a stressful experience, as it was for Tom, the young man described above; another is that deterrence is not very effective, as he also showed. In a restorative system the reduction of crime would be based, logically, on crime reduction strategies. Even if it is less punitive than the alternative, why should it not be? If offenders receive a reduced sentence for confessing the crime, or for co-operating with the police, why not also for taking part in a process which requires them to do something constructive, instead of passively enduring punishment, and which in addition offers advantages to the victim?

The Truth and Reconciliation Commission in South Africa has shown us forcefully that severity of punishment has to be weighed against the probability of discovering the truth. In that country far more wrongdoing was uncovered in a far shorter time by offering an amnesty in exchange for full disclosure than could ever have been achieved by attempting to detect, prosecute and punish the offenders – although those who did not confess could still be prosecuted. Archbishop Desmond Tutu, who chaired the Commission, maintains that this process ‘encourages accountability rather than the opposite. It supports the new culture of human rights and acknowledgment of responsibility…’. Retributive justice, he says, is not the only form of justice. In restorative justice, the central concern is reintegration, the redressing of imbalances, the restoration of broken relationships, in the spirit of what is called in some South African languages ubuntu, the quality of being ‘generous, hospitable, friendly, caring and compassionate’ (Tutu 1999: 51, 34): Although South Africa still has serious problems, with intolerable levels of unemployment and crime, it is generally believed that any other policy would have produced far worse results, and the South African Law Commission has proposed a new Child Justice Bill based on restorative principles (SALC 2000)5.

 

Towards transformation of society?

It was suggested at the beginning that restorative justice could offer an alternative to criminal justice. It can be used even more widely, beginning in schools: children are being encouraged to use mediation to resolve playground disputes and disputes between the child and the school. This can reduce the amount of bullying and the number of children excluded from school for bad behaviour.

Neighbourhood mediation can deal with conflicts between neighbours, some of which would otherwise take up time in the civil courts or lead to a violent act and a criminal court. We see mediation (alternative dispute resolution) being used in disputes in the workplace, business disputes, environmental disputes, disputes concerning the care of elderly people, in reaching agreement on the conditions for separation and divorce, and many more besides.

As regards criminal offences, several countries are using mediation or conferencing in the juvenile justice system, and some of them are extending it to adults. There is every reason to hope that this in turn could reduce the prison population. For those who do still have to be sent to prison for the protection of the public, there are several possibilities. Offenders can make indirect reparation by work for people less fortunate than themselves, for example by repairing wheelchairs for use in Africa or transcribing books into Braille for blind readers. Mediation can be used to resolve disputes between prisoners, or between prisoners and staff – and this does not only resolve disputes, it shows them how to do so.

No one need fear that the proposal is a step towards abolishing courts. They will have two roles. Firstly, since the mediation process requires the consent of the victim and the offender, and cannot be used in all cases, they will be needed to hear the cases where for any reason mediation or conferencing does not take place or does not succeed; and secondly, they will oversee the justice process, as they do in New Zealand, to make sure that it is genuinely restorative and respects the rights of all concerned.

These principles can be applied in other parts of society, and above all in schools, where the foundations can be laid for a society based on respect for all individuals and constructive ways of resolving conflicts. Restorative, problem-solving methods, unlike those based on punishment, bring us closer to the ideal of a stable society, in which people would respect each other’s individuality and acknowledge our responsibilities to each other within the community.

REFERENCES

Akester, Kate (2000) Restoring youth justice: new directions in domestic and international law and practice. Justice, 59 Carter Lane, London EC4V 5AQ.

Christie, Nils (1982) Limits to pain. Oxford: Martin, Williamson.

Czarnecka-Dzialuk, Beata, and Dobrochna Wójcik, eds. (1999) Juvenile offender-victim mediation. Warsaw: Oficyna Naukowa.

McElrea, Frederick W M (1996) ‘The New Zealand youth court: a model for use with adults.’ In: Burt Galaway and Joe Hudson, eds. Restorative justice: international perspectives. Amsterdam: Kugler.

Moore, David B (2000) ‘Community conferencing: a supply side contribution to prison abolition.’ In: W Gordon West and Ruth Morris, eds. The case for penal abolition. Toronto: Canadian Scholars’ Press.

South African Law Commission (2000) Report on juvenile justice. (Project 106.) www.law.wits.ac.za/salc/report/project106.html

Trimboli, Lily (2000) An evaluation of the NSW Youth Justice Conferencing Scheme. Sydney: NSW Bureau of Crime Statistics and Research. www.lawlink.nsw.gov.au/bocsar

Tutu, Desmond (2000) No future without forgiveness. London: Rider.

Umbreit, M, and A W Roberts (1966) Mediation of criminal conflict in England: an assessment of services in Coventry and Leeds. Centre for Restorative Justice and Mediation, School of Social Work, University of Minnesota, 386 McNeal Hall, 1985 Buford Avenue, St Paul MN 55108, USA

Wright, Martin (1977) ‘Nobody came: criminal justice and the needs of victims.’ Howard Journal, 16(1), 22-31.

Wright, Martin (1999) Restoring respect for justice: a symposium. Winchester: Waterside Press.

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1 Rotterdam, Zwolle, Gouda and district, Almere, Amsterdam and Amersfoort.

2 Amsterdam (several), Arnhem, Enschede, Groningen, Haarlem, Maastricht and Rotterdam (several).

3 Almelo

4 The Hague

5 Other questions relating to voluntary participation, standards, rights, and other matters, are considered in Czarnecka-Dzialuk and Wójcik (1999: 125-132).