RJ in the Justice System

It is helpful to make the following distinctions in our understanding of Restorative Justice:

As a philosophy or way of thinking about crime and justice, Restorative Justice helps inform how an entire criminal justice system should operate, from the way it treats victims, offenders and other community members, to the way people within the system understand their purpose and fulfil their roles.

This must be distinguished from the idea of a process. The UN Handbook on Restorative Justice Programmes defines a restorative justice process as ‘any process in which the victim and the offender, and, where appropriate, any other individuals or community members affected by a crime, participate together actively in the resolution of matters arising from the crime, generally with the help of a facilitator’.>

These should be further distinguished from programmes for both victims and offenders that draw on elements of restorative justice but are more didactic or therapeutic in nature, rather that facilitating some form of encounter.

Restorative justice processes and programmes can be applied at a pre-charge, pre-trial, pre-sentence and post-sentence stage.

APPLICATION AT A PRE-CHARGE STAGE AND WITHIN CIVIL LAW

The focus is on resolving conflicts and disputes where no law has been breached, or in such contexts as schools, in the workplace, in civil disputes, or in family law disputes.

APPLICATION AT A PRE-TRIAL STAGE

Since the early 1990s, the practice of diversion at a pre-trial stage in SA has become well established. The Child Justice Act, 2008 and the National Prosecuting Authority (NPA) Prosecutorial Guidelines mandate a prosecutor to use discretion to divert matters away from the system to restorative processes and programmes. By their very nature, these will be largely less serious offences, committed by both children and adults, that the prosecutor believes can be appropriately resolved without engaging the formal system any further.

APPLICATION AT A PRE-SENTENCE AND SENTENCING STAGE

When diversion is not appropriate, as in the case of more serious offences or with repeat offenders, restorative justice processes and programmes can be utilised as part of developing an appropriate sentence. A matter can be referred for a victim-offender conference after the verdict. The agreement that is reached can be presented to the court as a set of recommendations that can be listed as conditions of a postponed, suspended or correctional supervision sentence. Section 297 of the Criminal Procedure Act, 1977 makes ample provision for this. These conditions would typically include referral to some restorative justice programme. The process of plea bargaining can also integrate well with this approach. In this way, restorative justice processes and programmes support non-custodial sentences.

APPLICATION POST-SENTENCE

In very serious matters, it may not be appropriate for the offenders to meet their victims, in which case this might be left until the process of pre-release from prison.

Victims also have the right to state their view to a parole board regarding the release of an offender. The Department of Correctional Services makes provision for direct encounter through its victim offender mediation and victim offender dialogue programmes.