The Analysis of Restorative Justice - Essay Example

?Question Restorative Justice a) What is Restorative Justice? Restorative justice is “the process through which parties with a stake in a specific offence collectively resolve to deal with the aftermath of the offence and its implications for justice” (CPS, 2012). Restorative justice refers to the system whereby people who took part in an offence play a proactive role in supporting the justice system to bring back those affected by the crime to their former status. Restorative justice involves some kind of victim-offender mediation either directly or indirectly with the view of getting the two parties to connect and possibly make amends for the wrong done and find solutions. Restorative justice is less punitive than the traditional justice system which requires the offender to suffer some kind of fine or incarceration. Restorative justice focuses on the needs of the victim and the wider community. Instead of being punished alone, restorative justice focuses on getting the offender to take responsibility for his actions. In doing this, the victim might have to admit his guilt and take actions to either apologise to the victim or reinstate the victim in lieu of all the losses suffered. In other cases, the offender undergoes community service. The motive of restorative justice is to focus on the personal needs of the victim. Stated differently, the approach of sending offenders to jail and getting them to pay fines to the state does not seem to provide direct satisfaction to the victims. This is because it seems impersonal and the victim does not get any kind of restitution or reparation. However, in the case of restorative justice, the victim gets the opportunity to be given what s/he lost in an offence. If it is not possible to give back, the offender might render an apology and promise not to do so again. This fosters communal relations and promotes reformation (b) What are the aims of Restorative Justice? The Crown Prosecution Service outlines three main aims of restorative justice. The first aim is to promote victim satisfaction. In other words, there is evidence that the traditional approach of criminalising offences and imprisoning offenders does not seem to satisfy victims. Rather, it only keep the offenders away and there is no contact between them and victims. Restorative justice provides a system of reducing fear and tensions between the victim and the perpetrator. Also, in a sense, the apology of the victim and compensation [which is not a feature of traditional courts] can satisfy a victim emotionally. In another sense, the compensation or restitution paid by a victim can prove to be helpful in assisting victims to get back to their former position. The second aim of restorative justice is to foster some form of engagement between the victim and perpetrator. The idea is to provide an important platform through which the victim can tell the perpetrator what he things. Also, the perpetrator can accept his guilt, and apologise for his part in the situation. The victim becomes aware of his actions and the consequences. Through, this he voluntarily accepts the obligation to do something for the victim and community in order to make amends. This makes the whole process of punishment more personal and constructive. The third aim of restorative justice is that it creates community capital. In other words, it enables the community to get a win-win criminal justice system in which people are punished adequately and proportionately. Also, offenders are made aware of the scope of their actions and this prevents them from reoffending. In this sense, the community builds some degree of confidence in the justice system and makes them fell more secured and protected by the law. 2. (a) What are the advantages and disadvantages of Restorative Justice (taking account of the variety of ‘stakeholders’ who are, or might be, affected by it)? There are some advantages of restorative justice. First of all, restorative justice improves the outcome of court's decision because the victims get the chance to recover from the crime (Edwards, 2006). Also, there is a sense of proportionality in restorative justice because the victim is made to give off in proportion to what he has already done. Secondly, the restorative justice system improves the efficacy and responsiveness of the legal system (Von Hirsch & Ashworth, 2009). This is because without it, the legal system will be too punitive and destructive. Victims would be required to see the mess they cause to society and this will help them in their reformation processes. Also, victims will be compensated and the justice process will be more personal and humane. Thirdly, restorative justice promotes dialogue in the government context (Edwards, 2006). In other words, most cases need to be resolved through dialogue and talks between victims and offenders. This is because the courts and justice system are supposed to protect victims and deter offenders. Hence, in a situation where the crime occurs, there is a natural need for dialogue when the perpetrators are caught. Restorative justice provides the vehicle through which this dialogue can be carried out in an official manner and context. On the other hand, restorative justice has its downside. Von Hirsch and Ashworth (2009) identifies that the law must be standardised for the sake of consistency. Thus, in the situation where the victim can be made to accept the plea of every victim, the justice system will be plagued with uncertainty and differences could stand in the way of providing justice uniformly. Another disadvantage is that restorative justice causes the law to get emotional. As Aristotle defines the law, it must involve reason and exclude passion. Restorative justice seem to have an element of passion which might stand in the way of proper enforcement of rules and regulations. (b) What criteria should be used for evaluating the success of Restorative Justice schemes/projects? Currently, restorative justice is not an inherent part of the justice system. It is not officially a part of the justice system and plans are being made to include it fully in the legal system. In one of the propositions put forward by Shapland et al (2008), there is the need to keep the restorative justice as an informal part of the justice system. This means that the courts might need to make it an out-of-court situation. This way, the community and other interested parties should be allowed to sit on such cases in the tribunal format. Just like the alternative dispute resolution system, there could be separate legally recognized systems of dealing with issues through rules on restorative justice. This will culminate in a separate legal structure. Although separation might seem far fetched, it might be appropriate to maintain the system of getting some kind of dialogue between victims and perpetrators shortly before sentencing. This will allow the court to get the benefits of restorative justice and allow the victim to be restored to his former position and help the offender in the reformation process. References Crown Prosecution Service (2012) “Restorative Justice” [Online] Available at: http://www.cps.gov.uk/legal/p_to_r/restorative_justice/ [Accessed: 30th September, 2012] Doolin, K. (2007) “But What Does it Mean? Seeking Definitive Clarity in Restorative Justice” Journal of Criminal Law 71(5) pp427 – 440. Edwards, I. (2006) “Restorative Justice, Sentencing & The Court of Appeal” Criminal Law Review pp110 – 123 Margarita, Z. (2007) “Aspiration of Restorative Justice Proportion & Experiences of Participants in Family Group Conferences” British Journal of Criminology Vol 47 Issue 3 p491 Shapland, J., Atkinson, A,. Atkinson, A., Robinson, G. & Sorsby, A. (2008) “Does Restorative Justice Affect Prevention?”Ministry of Justice Research Series 10/08 June 2008 National Offender Management Scheme Von Hirsch, A. & Ashworth, A, (2009) “Principled Sentencing: Readings on Theory & Policy” Oxford University Press Question 2 Confiscation order Under the Proceeds of Crime Act 2002 The Crown Prosecution Service defines the confiscation order as a legal instrument that disposes defendants of their proceeds from criminal activities (2012). It is a confiscation order which requires people involved in crime to give back their earnings from crime to the state. Hence, the possessions made from criminal activities become a debt that the accused person owes to the Crown. Hence the CPS has the right to confiscate all such assets. The confiscation order has its root in the Misuse of Drugs Act (1971). The law made it illegal to possess, supply, offer or allow one's premises to be used for illegal drugs. The Act gave provision for fines and prison sentences. However, it did not have any laws on confiscation and was therefore lax in dealing with funds already accrued from the sale of drugs. In a landmark case involving R V Cuthberson (1981), an appeal by a person convicted for the sale of drugs was upheld. And the CPS could not seize his properties because the Misuse of Drugs Act (1971) did not allow them to do so. This exposed the limitation off the forfeiture laws. Then the Hodgson Committee sat on the issue in 1984 and came up with the Drug Trafficking Offence Act 1986. The Act was one of the first laws against Money Laundering in the UK. It made it illegal for funds accrued from illegal activities, notably drugs to be put into other forms of use like investments and properties. Hence, all such properties reverted to the state when it was discovered that they were laundered. Procedures in Confiscation In the case where a person is caught for drugs, the Crown Prosecution Service can apply to the Crown Court for a confiscation order which will effectively render assets from criminal activities a property of the state. When the application is sent by the CPS, the Crown Court will determine whether the offender benefited from the drug trafficking or related illegal activity that he is accused of. This is done by the use of evidence to tell how much [if any] that the accused person benefited from the criminal activity. Methods of Calculation The Proceeds of Crime Act, 2002 sets out methods of calculating the actual amount or worth of assets to be confiscated. In doing so, there is the need to calculate the financed benefits and the criminal lifestyle of the offender. This is done though a number of laws. Schedule 2 of the Proceeds of Crime Act (2002) indicates that “criminal lifestyle” involves committing the offence for a period of not less than six months. Once a person is deemed to have been involved in a criminal lifestyle, then a confiscation order could be issued for proceeds attained in “course of criminal conduct”. Here, the “relevant benefits” is determined. Relevant benefit involves all assets less liabilities secured in the estimation of the court. (Ulph, 2010). The total amount of assets accrued in the period of the criminal lifestyle is the 'available amount'. The available amount less other assets accrued genuinely becomes the 'recoverable amount'. When the figures are ascertained, the court will come up with a confiscation order which will secure the assets to be liquidated into the public chest. Human Rights & Confiscation The Human Rights Act of 1998 sought to guarantee some fundamental rights to individuals in the UK. Confiscation orders seem to be in violation and contradictory to some of these rights of individuals. Since human rights seem to have absolute significance in the legal system, they can be used as a defence to prevent some kinds of confiscations. Article 3 of HRA protects people from inhumane and derogatory treatments. This applies to public authorities and can be used as a defence in confiscations. Article 8 also prevents the interference into people's private lives. Article 7 provides for a fair trial for all persons. Thus, if a confiscation order exceeds the amount of money that a person deems to have earned from a crime, it would be wrong to take more than what is due. Also, in a case where a person is required to disclose his assets, there are some potential conflicts with privacy. And this would affect the way in which a person might have to disclose information. Some of these matters in landmark cases are discussed below. In R V McIntosh and Arthur (2011), it was discovered that the realisable value of all of the defendant's assets was less than the benefits that he gained from the sale of drugs. It was therefore apparent that the defendant had not told the full truth. In effect, the court had to seek other evidence in order to identify the true worth of the defendant's assets. From the ruling, it can be said that a person is obliged to declare all his assets truthfully. However, where there is evidence that the benefits realisable was more than the total worth of all assets, the court can go into the private life of the defendant to acquire more evidence. In effect, the defendant's right to privacy might be limited when the recoverable amount is found to be insufficient. In another case of R V Rezvi [2002], it was held that the Criminal Justice Act 1988 and Drug Trafficking Act 1994 was compatible with the Human Rights Act. This is because the government can make laws to protect the public. And in cases where the government believes that a person must be disposed of his properties as a show of punishment, the country can do so. In such a situation, the human rights of an offender can be limited if the public authorities need to act. In Philips V UK, it was shown that the UK CPS could make enquiries into the lives of suspects and this will not be against their human rights. This is because the defendant made a declaration which seemed to be below what he had gotten from the crime. The CPS made further enquiries and discovered that he owned a flat with proceeds from the said act and was entitled to claim rent from the flat. However, he refused to declare it. The CPS did more in-depth investigations and discovered that he had hidden that property from his list of properties. The defendant sued for abuse of privacy. The European court held that in cases where a person is suspected of committing a crime, he could be investigated and his privacy could be limited. In Grayson V Barnham V UK [2008] the applicant's alleged assets were overstated by the CPS. It was indicated that in such a situation, the onus is on the defendant to prove that they either did not benefit from so much or they did not have too many assets. Conclusion The confiscation order became necessary in order to deal effectively with money laundering. This is because criminals could easily launder funds to make them appear to be legal when they were not. The confiscation laws have some conflicts with the human rights laws. However, from landmark rulings, it is clear that the CPS has a stronger power to override some rights of people who are accused of drug trafficking and money laundering. This makes it impossible for them to challenge some steps to confiscate their assets on accusation. References Crown Prosecution Service (2012 “Proceed of Crime Act 2002 – Enforcement2 [Online] Available at: http://www.cps.gov.uk/legal/p_to_r/proceeds_of_crime_act_guidance/ [Accessed: 30th September, 2012] Ulph, J. (2010) “Confiscation Orders, Human Rights & Penal Measure” Law Quarterly Review pp251 – 278 Cases Grayson V Barnham V UK [2008] EUHR 877 R V Cuthberson [1981] AC 470 Statutes Confiscation order Under the Proceeds of Crime Act 2002 Drug Trafficking Offences Act 1986 Misuse of Drugs Act 1971 Question 3 Gender, Equality and the Legal System Gender and equality are important portions in the UK legal system. This difference makes it imperative for some changes and adjustments to be made to the legal system to reflect the realities on the ground. Section 149 of the Equality Act 2010 requires public authorities which include many services in the legal system to eliminate discrimination and harassment and also encourage equality of opportunity. Is there evidence of discrimination against (or indeed for) women in the criminal justice system? According to the Ministry of Justice Report of 2010, there is evidence that there are some difference in the legal system which can be accredited to the differences in gender matters. An interesting observation made from the Ministry of Justice report indicated that women are more likely to suffer from theft and immediate violence. This shows that the criminal justice system is not doing much to protect women by handing down sentences that are deterrent enough. Another observation of the report indicated that 66% of the Crown Prosecution Service staff members are women. However, only 37% of the CPS' senior civil servants are women. This shows that women are disproportionately represented in the lower levels of the CPS when compared to men. Men are more in the top position. Hence, there might be the need to encourage women to become more senior staff members in the CPS. In the police service, similar disparities also exist. 13% of senior police officers are women. This shows that women are woefully under-represented in the law enforcement unit. In the Ministry of Justice in general, just 42% of the senior civil servants are women. This shows that they are not given the necessary encouragement to build a career in the ministry. On the contrary, about 68% of the Ministry of Justice staff are women. This shows that for some reason, women are more likely to occupy lower positions in the justice sector whilst men often occupy higher positions. The logical explanation for the progression of men into higher positions is that men are traditionally seen as bread winners. Hence, they have less obligations in domestic life. Due to this, they can concentrate on their career and progress steadily. On the other hand, women marry, run homes and raise children. This means that they dedicate less time to their career, and hence, are limited in their progression. The main source of compensation would be the use of positive discrimination techniques like maternity needs and other pecks which will encourage women in the justice system to remain more committed. This will give them a good reason to become more focused to build a career and also balance their social lives appropriately. In relation to the police service in particular, the Fawcett Society argues that the service's standards are too masculine (2009). This is because the police service has traditionally been a male dominated field and the exposition to danger and strife makes it maintain a masculine culture. Due to this, most women do not even get places in the service. And if they do, they are required to adjust significantly. In order to avoid this, female quality standards need to be integrated into the police service. Is there evidence of discrimination against (or indeed for) women in the sentencing system? The 2010 Ministry of Justice report shows that 77% of female offenders received fines whilst 63% of men were given fines. This means that more women were likely to avoid custodial sentencing than men. However, a lower proportion of women received community sentencing than men. It was 10% and 16% respectively. This means that women were not likely to be made to do community service. Relatively, more women had their cases heard in the magistrate courts rather than the crown courts. This shows that women often had lesser crimes which required the services of a lower court rather than higher courts. Statistically, there is evidence that for every crime, women are treated more leniently than men (Hedderman and Gelsthorpe, 1997). However, it seems they have an equal chance of going to jail like men if the crime involves violence. But for most, they have a less chance of going to jail than men. Also, the Hedderman and Gelsthorpe report indicated that women are less frequent in court. And although women's dressings and demeanour in court is said to have been commented on by most judges, the general view of judges was that the dressing did not affect judgements (Hedderman and Gelsthorpe, 1997). Although women are seen to have lenient sentencing and indeed, some degree of compassion from judges in most cases, some feminists insist that women are treated unfairly and harshly. Some of the pointers they raise is that women are not generally inclined to commit crimes. Hence, they should be judged according to a separate set of standards. Also, the position of women in homes and communities makes it important for them to be judged more leniently. On this basis, these thinkers judge the status quo to be too harsh for women and hence, must be made more lenient. Should women be dealt with on the same basis as men, or should different sentencing principles be applied to women. Corston (2007) argues that there must be different approach to dealing with women in the legal and sentencing system. This is because women commit far less crimes than men. Hence, they ought to be given a different treatment. One of the things she suggests is that women should be educated adequately so that they do not fall into the trap of committing more offences from time to time. The Fawcett Society produces significant evidence which indicates that women and girls should be treated separately in the criminal justice system. First of all, they argue that sexism in the sentencing principles are generally acknowledged alongside racism and other things. However, there is no effort to change things. Secondly, in sentencing, most courts do not give cognisance to family issues. However, the position that women hold in society as the pillar of the support of families is undeniable. Hence, women should be sentenced differently and where possible, the law must be changed to give the appropriate leniency. To buttress their point, Fawcett Society states that each year, 17,700 children part company with their mothers who serve various jail sentences. Additionally, these children are often denied visits to their mothers because female jails are located in distant places in the UK. Balancing this with the fact that women seldom commit crimes and reoffend, it is necessary for women to be given a different sentencing rules. Conclusion The Criminal Justice system operates according to rules of equality and standardisation. However, there is significant evidence that there must be different approaches to dealing with cases involving women. This is because women are less likely to commit crimes but if they do, they are might need some education and not just a conviction. Evidence also show that women are less likely to get convicted for their offences. However, due to the nature of their connection to society, the laxity is not only ideal, it is also desirable to enable them to discharge their obligations as mothers amongst other things. Enquiries also show that women are under represented in the top strata of the criminal justice system. This is mainly because they suffer in their progression due to their obligation to family. Hence, they cannot progress appropriately. Also, women are required to operate according to standards set predominantly by men. This makes it difficult for them to progress. References Corston, J. (2007) The Corston Report London: Home Office. Fawcett Society (2009) Engendering Justice: From Policy to Practice London: Fawcett Society. Hedderman, C. & Gelsthorpe, C. (1997) Understanding the Sentencing of Women – Home Office Research Study London: Home Office. Ministry of Justice (2010) Statistics of Women and Criminal Justice Ministry of Justice. Read More