Crimes, Victims and Justice: Essays on Principles and Practice

Edited by Hendrik Kaptein and Marijke Malsch
Burlington, VT: Ashgate Publishing Ltd, 2004

Criminologists and criminal justice practitioners may well be somewhat (or, no doubt in the case of some, greatly) concerned that the ongoing rush to publish in the field of restorative justice is symptomatic of a general malaise in the profession. Indeed, one fears that this emerging area represents a form of magical talisman that must succeed in overcoming the various criticisms levelled at contemporary criminology and must prove to be a wondrous development capable of engendering a dramatic breakthrough in attaining perfect justice, whereas so many other promising hopes have failed to achieve the success that was held out as being close to hand. Notwithstanding the merits of many of the general critiques of our profession that have been put forth of late,¹ and the general concern that the chief protagonists of restorative justice “doth promise too much”,² it is nevertheless true that restorative justice is an emerging paradigm that represents a realistic opportunity to change our praxis,³ and Crimes, Victims and Justice Essays on Principles and Practice is a recent contribution of signal value.

The editors have assembled eight essays that are both enlightening and insightful not least for the diversity of opinions that they advance, and the contributors include scholars whose work is often published in languages other than English or French and their inclusion is thus even more felicitous. In particular, this book draws attention to the possible benefits for both victims and offenders were restorative justice initiatives to gain ascendancy in the world of criminal justice while pointing to real concerns touching upon grave offences, an area at times neglected in the mainstream literature.

The first chapter, “Doubts on the Upsurge of the Victim’s Role in Criminal Law”, was penned by Professor Ybo Buruma of Nijmegen University, The Netherlands, and presents a well reasoned and fully supported cautionary statement as to the promises held out by restorative justice scholars and theorists. The major contribution is the discussion surrounding the differences between restorative justice and victim-oriented criminal law, notably the punitive elements associated with the latter. In effect, the author is concerned with the question whether a society may not be guilty of forgiving too much (see especially pp. 5-6). In this vein, no doubt the author will now refer to the discussion advanced by Professor Julian V. Roberts as to the wisdom of a community-based sanction for an offence of manslaughter in his subsequently released text, The Virtual Prison, and to the fascinating photograph on page 138 depicting an offender smiling joyously after her sentence hearing.⁴ In sum, we are made to understand fully that the infliction of pain in the case of grave crimes is incompatible with the philosophy that undergirds restorative justice.

Of interest, the editors have chosen to follow this essay with a striking and optimistic plea by Dr. Ezzat Fattah for a paradigmatic shift away from retributive justice. At bottom, justice is thought to have failed the victim for far too long and the author has crafted a cogent, and to my mind, compelling argument that the infliction of penal harm does little to assist the victim. My professional experience as a defence counsel, prosecutor and criminal court judge is such that I cannot but agree that the emphasis placed in Canadian penology on just deserts, no matter how disguised by the use of euphemisms, fails most victims of domestic violence and that the ten overlooked benefits of restorative justice described by the learned author on pages 19-28 may not redress this unfortunate situation wholly, but it will certainly not render it worse.

Professor Ian Freckelton of Melbourne University wrote the next essay, “Compensation for Victims of Crime” and it offers a comprehensive account of the attempts by various state agents and governments in Australia chiefly, and elsewhere to a notable extent, to assist victims of crimes by means of monetary compensation. The author succeeds in making plain that the degree of willingness of politicians to provide material assistance is a bellwether to the general degree of “shelter” that victims may expect in their travels through the often-rough storms that mark much of the adversarial trial system. In other words, the existence or not of a backlash against so-called victims rights is made plain on the statute books. Moreover, if the governments are motivated by the search for a ‘blameless victim”, it stands to reason that the court may well follow suit, to a lesser or greater degree.

The centrality of victims’ rights is the focus of the next essay, by Tilberg University Professor Marc Groenhuijsen. Entitled “Victims’ Rights and Restorative Justice: Piecemeal Reform of the Criminal Justice System or a Change of Paradigm”,⁵ it provides guidance on the evolution of reforms over the last decades with respect to the rights of victims and on the troubling questions surrounding their implementation. Further, this essay seeks to address the issue of the new theoretical nature of the reform efforts on behalf of crime victims. As we read on page 64, “Are the recently introduced victims’ rights mere refinements of the currently existing criminal justice systems, or should they be considered as expressions of a new way of thinking which is incompatible with the basic structure of the traditional model of administering criminal justice?” Professor Groenhuijsen succeeds in demonstrating the extent to which both problems are interconnected and how effective implementation cannot be achieved without the establishment of a well thought out theory upon which to rest the reforms in this area. Of particular interest, the author argues that the capacity of the criminal justice system to be responsive to new demands and changing circumstances is far greater than is thought of generally and that the “goals and methods of restorative justice can to a large extent be pursued by gradually adapting the traditional system of administering criminal justice” (refer to p. 68). In other words, ought we to spend as much effort as is expended at this time in attempting to devise theoretical schemes with the objective of establishing a completely new legal paradigm? As the author concludes on page 79, “Victims’ rights are about improving a system, not about abolishing a system and then starting from scratch.” Recent initiatives in Ontario, Canada, touching upon the transformation of the perspective of offenders guilty of domestic violence by means of a “Men’s for Change program” appear to have shown the wisdom of this author’s remarks, if anecdotal evidence is to be credited.⁶

The first named editor wrote Chapter 5, “Against the Pain of Punishment: Retribution as Reparation Through Penal Servitude”. A professor in the Faculty of Law at the University of Amsterdam, Hendrik Kaptein offers a penetrating look at the objective of providing full compensation for victims by means of the enterprise of offenders. Stated otherwise, the objective is to “… achieve complete integration of forfeiture, punishment and compensation, on the basis of a conception of compensation for harm transcending criminal law. Criminal law and punishment attempting to offer humanly acceptable answers to crime cannot be but based on conceptions of acceptable answers to harm in general.” In explaining how the apparent infliction of still more suffering might result in undoing the pain of crime, the author teaches us to seek new answers for time-honoured questions and to avoid rote replies to seemingly orthodox propositions, beginning with the notion of retribution itself. If it is redefined to embrace penal servitude as a means of integrating forfeiture, compensation and punishment, it is not difficult to envisage some startling developments.

I commend in particular the next essay, “Victims on View: Are Victims Served by the Principle of Pen Justice”, written by Professor Marijke Malsch, the co-editor of this valuable volume and a member of the Netherlands Institute for the Study of Crime and Law Enforcement. It serves as a useful reminder to us all of the vulnerability of victims to be further victimised as a result of their role in being information providers.⁷ The author’s explorations of the openness principle and the use of a number of true-life examples of secondary victimization is a valuable pedagogical tool in demonstrating the potential for harm being visited routinely upon victims in their participation in the criminal process. Indeed, the principle of open justice cannot help but collide with the needs of victims of crimes, especially victims of violence, and this issue and others are explored with rigour and insight. Although not all of the examples of concerns are germane to our domestic courts,⁸ the theoretical aspects of “shared space” by both victims and offenders is of central importance if we are to achieve justice in a fundamental sense.

“Victims and the International Criminal Tribunal for Former Yugoslavia”, written by Åsa Rydberg, a member of the International Criminal Tribunal for the Former Yugoslavia, is the title of the penultimate chapter, perhaps the most thought provoking of the essays selected by the editors for inclusion in this text. After all, much of what takes place in the traditional domestic courtroom is well known, if unsatisfactory and in need of reform, but far less understood are the myriad of obstacles confronting the emergence of justice for victims of war crimes and crimes against humanity. The author’s contributions are therefore quite welcome and the discussion of issues surrounding the security of the witness is most felicitous. Apposite as well are the views expressed as to the potential for injustice in those cases of so-called “small fish” that might not be prosecuted. What justice has the victim received in such cases is the question posed (refer in particular to pp. 130-132). Notable as well is the discussion touching upon the role of the witness-victim at the sentencing stage, and the reasons advanced to justify the limited participation of victims in the proceedings of this specialized organ of justice. When reading this thoughtful essay and the author’s superb grasp of the subject matter and of the controversies to be addressed, one is struck with the real possibility that the work of the Tribunal will also bring about the type of “sad story of unintended consequences”, in this case for victims, that another Ashgate publication has discussed quite ably,⁹ but one must remain hopeful nonetheless…

The final contribution is that of Professor Martin Wright of the University of Sussex, “The Rights and Needs of Victims in the Criminal Justice Process”. Professor Wright seeks to instruct us on the imperative need for consent as the touchstone for the achievement of justice as opposed to the contemporary insistence on coercion. In a few words, let us strive for “Maximum consent, minimum coercion” (refer to p. 141). Having set out his objective, the author then succeeds in demonstrating the common elements of a successful campaign to achieving this goal, notably in the case in which the offender(s) avoids detection.

In the final analysis, Crime, Victims and Justice Essays on Principles and Practice is a valuable and thought provoking collection and the editors are to be applauded for their efforts at exploring how close we are to transforming the provision of justice for victims in many aspects of criminal justice and of sustaining recent initiatives in the field of restorative justice but not without advancing sober second thoughts as to the need for greater deliberation prior to abandoning the need for traditional responses to quite serious offences.

^1. I refer in particular to the trenchant analyses penned by cultural criminologists as evidenced by the path-breaking work of the contributors to Cultural Criminology Unleashed, edited by J. Ferrell, K. Hayward, W. Morrison and M. Presdee, [GlassHouse Press: London, 2004] and to the penetrating views put forward by Dr. Keith J. Hayward in City Limits Crime, Consumer Culture and the Urban Experience [London: Glasshouse Press, 2004].

^2. In one text, we read “The aims of restorative justice … tend to be characterized by extraordinary ambition.” See Criminal Justice by Professor Lucia Zedner, [Oxford University Press: Oxford, 2004], at p. 104.

^3. In particular, I commend Professor Annalise Acorn’s sublime book Compulsory Compassion: A Critique of Restorative Justice [UBC Press: Vancouver, 2004] and the no less superb review penned by Professor Bruce Archibald in (February 2005), Vol. 42(3) Alta L. Rev. 941-950.

^4. [Cambridge University Press: Cambridge, 2004]. Refer to my book review in (June 2005), 50(3) Criminal Law Quarterly 349-356.

^5. Refer to Restorative Justice & Criminal Justice Competing or Reconcilable Paradigms, edited by Andrew von Hirsh, Julian Roberts, Anthony E. Bottoms and Kent Roach and Mara Schiff [Hart Publishing: Oxford, 2003], reviewed by the author in Vol. 46(3), April 2004, Canadian Journal of Criminology and Criminal Justice, p. 391. In addition, refer to the valuable synthesis offered by Professor Lucia Zedner concerning victims and restorative justice at pp. 102-106 of Criminal Justice [Oxford University Press: Oxford, 2004].

^6. A recent publication, Human Remains Episodes in Human Dissection by Dr. Helen MacDonald [Melbourne University Press: Carlton, Victoria, 2005] illustrates with rare acuity the secondary pain visited upon murderers whose bodies were ordered forfeited to the State and then offered to the medical profession in order that a form of “punitive cutting” (p. 27) might be performed. Note that page 161 records how the murderer William Burke was not only dissected but pieces of him were presented to friends of the medical personnel.

^7. In addition to the references offered, may I add Professor Jenny McEwan’s text, Evidence and the Adversarial Process (The Modern Law) [Blackwell: Oxford, 1992], particularly pp. 112-131 and the text, Criminal Evidence, by A. Zuckerman and P. Roberts [Oxford University Press: Oxford, 2004], at pp. 212-213.

^8. A quite valuable review of the development of a juvenile court system which was sensitive (for the period) to the needs of child and adolescent victims is provided at Chapter three of Gateway to Justice The Juvenile Court and Progressive Child Welfare in a Southern City, by Dr. Jennifer Trost [The University of Georgia Press: Athens, Ga., 2005].

^9. Refer to Hard Lessons Reflections on Governance and Crime Control in Late Modernity, edited by Richard Hil and Gordon Tait [Ashgate: Burlington, Vt., 2004], on page 2 in particular.