Response by Dr Martin Wright to European Commission consultation document: Taking action on rights, support and protection of victims of crime and violence
Oct 01, 2010
The key to this reply is in the last answer: that in principle restorative justice practices should be available to all victims, subject only to the safeguards mentioned in the reply to Question 17. Restorative processes are in the interests not only of victims, but also of offenders and the community.
Victim-offender dialogue is valuable as an end in itself as well as a means to an end. For many victims, action to make the offender less likely to re-offend is at least as high on their list of priorities as monetary compensation or reparation through work. When the victim and offender agree on one of these methods of reparation, it is incumbent on the community to provide the resources to enable offenders to carry them out.
I. GENERAL QUESTIONS:
1. What are the main obstacles and problems faced by victims of crime or violence in relation to the five categories of needs (Recognition, Protection, Support, Access to Justice, Compensation and Restoration)?
a) Recognition: Criminal justice personnel should be aware of the needs of victims, and the criminal justice processes should also take them into account.
b) Protection: One danger facing victims is repeat victimisation. For example burglars sometimes return to the victim’s house, but are less likely to do so when they have met the victim in a restorative meeting; or when the crime has resulted from a violent conflict, both sides will be safer if it is possible to resolve the conflict itself through mediation..
c) Support: Support should be available to victims at all stages of the process, including during a restorative meeting, if they require it.
d) Access to Justice: This should include access to restorative justice at any stage of the criminal justice process, as laid down in
Council of Europe Recommendation R(99)19 of the Committee of Ministers Mediation in penal matters;
European Commission for the Efficiency of Justice (CEPEJ) Draft guidelines for a better implementation of the existing recommendation concerning mediation in penal matters (2007); and
United Nations Basic principles on the use of restorative justice programmes in criminal matters (2002).
e) Compensation and Restoration: It has been found that offenders are more likely to complete payment of compensation, or to fulfil reparative actions, if these have been agreed in a restorative process, rather than imposed by a court.
...ACCESS TO JUSTICE
14. How should we ensure that victims fully understand their rights and the information they are given (e.g. Translation and interpretation available to all victims who don't understand, legal assistance, simplification of forms and documents, information provided through different media)?
Any of the above. Victim support workers and mediators from ethnic minorities with knowledge of other languages should be actively recruited. Organizations which work for the rights and welfare of ethnic minorities, such as Asian, Turkish or Roma people, should be made aware of services for victims, including restorative justice.
Legislation should ensure that victims (and offenders) have access to a complaints procedure, which they can use if they consider that the restorative process has not been fairly carried out. It is therefore necessary that the restorative process has been properly explained to them, so that they know how it ought to be done.
15. Should victims have a right to provide information before key decisions are made, such as decisions to stop an investigation or prosecution, and to seek the review of such decisions afterwards (e.g. though a senior official, ombudsman, court).
In cases where the accused does not deny involvement in the offence, victims should be entitled to request that the case be diverted into a restorative process rather than prosecuted. Safeguards would be necessary to avoid pressure being placed upon them to do so.
COMPENSATION AND RESTORATION
16. How do you think victims should be assisted when making compensation claims and when seeking to enforce compensation orders (e.g. State assistance in recovery, State payment in advance, simplification of forms)?
This answer refers only to compensation by offenders, not by the state. As stated above (1 e)), offenders are more likely to pay when they have taken part in reaching agreement on the amount to be paid. If they fail to pay, the restorative process should be reconvened, to discover whether there are external circumstances which led to the failure to maintain payments or complete tasks; only then should enforcement action be taken, such as imprisonment, which makes it impossible to pay.
17. Should restorative justice practices such as mediation be available to all victims? Should minimum standards be applied to organisations providing such services?
Yes, a restorative justice process should be the norm, as in New Zealand and Northern Ireland (but for all ages, not only for victims of juvenile offenders as in those countries). Exceptions should only be made in specific circumstances, for example where there is a danger of physical or psychological harm, or of course where one party refuses to take part. Each government should support a national NGO whose governing body would include practitioners. It would draw up standards for mediators and mediation services, in consultation with them. It would then make arrangements for these standards to be applied through a system of accreditation, including a programme of continuing professional development.
Read Martin's full response.
Read the original consultation document.