3. Alternative criminal justice models

Introduction

  1. 3.1 The common law adversarial criminal trial process is only one model of criminal justice. This chapter outlines four alternative approaches:
  • inquisitorial criminal trial processes of civil law jurisdictions
  • hybrid trial processes of the International Criminal Court
  • restorative justice
  • theoretical models of criminal justice systems designed specifically to incorporate victims.
  1. 3.2 This chapter focuses on the general structure and underlying principles of each of these models.

Inquisitorial criminal trial processes

  1. 3.3 Civil law jurisdictions (countries that have a civil law legal system) are based on Roman law. In civil law jurisdictions, legal codes are the fundamental source of law and judicial decisions have much less influence.1
  2. 3.4 Civil law jurisdictions typically have inquisitorial criminal trial processes, which are fundamentally different in nature and procedure to the common law adversarial trial process.2

Underlying principles

  1. 3.5 Criminal trials in civil law jurisdictions are official investigations carried out by judicial officers in order to determine the truth.
  2. 3.6 The prosecution and the accused exert much less control over the proceedings than do their common law counterparts. Judges play an active decision-making role and victims have more opportunities to participate in inquisitorial trial processes, including as a party.3

Features of the criminal trial process in inquisitorial criminal justice systems

  1. 3.7 Inquisitorial criminal trial procedures vary across countries with civil law systems.4 Nevertheless, the archetypal inquisitorial criminal trial process has the following characteristics:
  • There is a high degree of judicial control over the criminal trial process, rather than it being driven by the prosecutor and the accused.5 A judicial officer6 oversees the conduct of the investigation from the outset.7
  • It is dominated by the preliminary investigation phase, during which witnesses are called and evidence is gathered.8 This phase is not a public hearing.9 It is directed by a judicial officer.
  • Information gathered during the preliminary phase, including information about the offender relevant to sentencing, is compiled into a dossier, or case file, which is relied on through the criminal trial process.10
  • At the trial, the evidence is often presented by the judge. The hearing often commences with an examination of the accused.
  • Less emphasis is placed on oral evidence from victims and witnesses, with greater reliance on information contained in the case file.11
  • There is limited or no cross-examination of victims or witnesses in the manner of an adversarial trial.12
  • There are far fewer rules governing the exclusion of evidence than in common law jurisdictions. Rather, all evidence that is logically relevant is admitted.13
  • A determination of guilt is made only after a complete investigation, which generally includes a hearing.14 As a result, pleas of guilty and plea bargaining are often described as incompatible with inquisitorial systems ‘because the truth cannot be negotiated or compromised’.15
  • Guilt is determined by a tribunal comprising one or more professional judges and, in some jurisdictions, lay people.
  • Proof of guilt must be established beyond reasonable doubt.16
  • Defence lawyers play a smaller role in inquisitorial trials compared to adversarial trials. Instead, judges are often expected to protect the position of the accused throughout the criminal trial process.17
  1. 3.8 Arguably, some inquisitorial criminal justice systems place less emphasis on the accused’s fair trial rights, even though fair trial guarantees are contained in the European Convention on Human Rights.18

The role of the victim

  1. 3.9 Inquisitorial criminal trial processes are often described by academic commentators as more favourable to victims than adversarial criminal trial processes.19 This is attributed to the absence of cross-examination, less restrictive rules of evidence and greater judicial control over the proceedings.20
  2. 3.10 The investigative nature of proceedings in inquisitorial systems also lends itself to victims playing a more active role in trial proceedings.21 This involvement can take a number of forms. The three most commonly used modes of victim involvement across civil law countries are: civil party, auxiliary prosecutor or legally represented victim-witness.

Victims as ‘civil parties’

  1. 3.11 All countries with inquisitorial criminal trial processes permit victims a role as ‘civil party’ (called partie civile in France and Belgium, and the ‘adhesion procedure’ in Germany).22
  2. 3.12 The role of the civil party is to facilitate victims seeking civil compensation orders against the offender.23 While participation may occur at various stages of the proceedings, the scope of participation is generally limited to establishing the civil compensation claim (rather than facilitating conviction of the accused).24
  3. 3.13 In order to be a civil party, a victim must:
  • Be eligible to become a civil claimant.
  • Notify the court and the prosecution of their intention to make a claim for compensation.25 In some jurisdictions, including France, Germany and the Netherlands, victims are permitted to provide such notification at any point up until closing arguments are presented.26
  • Appear in court and substantiate their claim by providing evidence to the court of the damage caused as a result of the offence. This can be done either orally or in writing, but in all cases must be supported by adequate documentary evidence.27

Victims as auxiliary prosecutors

  1. 3.14 Victims are incorporated into inquisitorial criminal proceedings as auxiliary prosecutors in a number of European countries, including Germany, Sweden, Norway and Austria.28
  2. 3.15 Generally, as auxiliary prosecutors, victims can play an active role in the lead-up to and during the trial.29 Victims may be permitted to ‘submit evidence, comment on representations made by the prosecution and defence, and express their opinions on key decisions taken’.30 As auxiliary prosecutors, victims are often also permitted legal representation throughout the criminal trial process.

 

  1. 3.16 Auxiliary prosecutors are sometimes characterised as separate parties to the criminal proceeding;31 they stand beside the prosecutor.32 If a victim adopts the role of auxiliary prosecutor, they are independent of and subsidiary to the prosecutor.33
Legal representatives for victims
  1. 3.17 In many civil law jurisdictions, victims of serious offences, and in particular sexual offences, are permitted to have lawyers throughout the trial. This is separate from whether or not they are permitted to appear as auxiliary prosecutors. The precise functions of victims’ lawyers vary between jurisdictions, although they generally involve protecting the interests of victims and providing support throughout the criminal trial process.

Comparative analysis

  1. 3.18 The terms of reference ask the Commission to undertake ‘a comparative analysis of the criminal trial process, particularly in civil law jurisdictions’.34 This is done throughout Part Two of this paper by identifying and comparing the different roles and procedures in place for victims in civil law inquisitorial trial processes relative to each stage of the common law adversarial trial.

The International Criminal Court

  1. 3.19 In May 2015, the Commission published an information paper discussing the role of victims in proceedings before the International Criminal Court (ICC).35 The Commission encourages readers to review the Commission’s information paper as a companion to this consultation paper.
  2. 3.20 The ICC was established by the Rome Statute on 1 July 2002.36 The Pre-Trial, Trial and Appeals Chambers comprise the judicial branch of the ICC.
  3. 3.21 The ICC has jurisdiction over war crimes, crimes against humanity, and genocide.37 This focus on crimes involving mass victimisation restricts to some degree a direct comparison with domestic criminal justice systems. Nonetheless, the Court’s largely adversarial trial procedures and adherence to fair trial principles38 mean that it shares some core features with the criminal trial process in Australia.
  4. 3.22 The ICC’s trial processes might be described as a hybrid of procedures from the two dominant legal traditions, common law and civil law. While victim participation is drawn from inquisitorial civil traditions, most other trial procedures are drawn from adversarial common law traditions.39
  5. 3.23 Victims are incorporated into the ICC in two main ways: victims’ participation in the criminal trial process, and the ICC’s regime for redress and reparations.
  6. 3.24 The ICC’s scheme for victim participation permits victims to express their views and concerns where their personal interests are affected.40 In practice, victim participation has been interpreted as allowing victims to be legally represented, make submissions on points of law, question witnesses, submit evidence and make opening and closing statements. Nonetheless, victims do not have party status in ICC proceedings.41
  7. 3.25 The ICC’s regime for victim redress and reparations can be divided into two parts: reparations, which flow from the court’s power to order offenders to pay reparations to victims of crimes within its jurisdiction; and the Trust Fund for Victims, which provides assistance to victims outside court-ordered reparations.42 Victims can access the Trust Fund irrespective of a finding of guilt.43
  8. 3.26 Proponents of victim participation and redress and reparations argue that it benefits victims because:
  • It provides an acknowledgement of and focus on the interests, needs and suffering of victims.44
  • It offers an opportunity to serve victims’ justice needs, such as being heard,45 having their interests taken into account46 and being able to contribute to ‘fact-finding and truth telling’.47
  • It recognises victims’ agency and helps restore their dignity.48
  1. 3.27 Victim participation has also been described as benefiting the ICC’s proceedings by ensuring the Court receives a nuanced and complete version of events surrounding the alleged crimes,49 and that proceedings are sensitive to the needs of victims.50
  2. 3.28 It has been said that the scheme for victims’ participation and reparations at the ICC represents a shift in international criminal prosecutions from retributive justice51 to a more restorative approach.52 However, whether this dual focus is possible or preferable is far from settled.
  3. 3.29 As only a small number of cases have reached trial or reparations proceedings, the implications of the ICC’s victims’ participation and reparations schemes remain to be seen. Challenges associated with allowing victims to participate in ICC proceedings are discussed in more detail throughout Part Two of the consultation paper.

 Restorative justice

  1. 3.30 The traditional criminal justice system is regularly criticised for failing to deliver emotional reparation to victims for the non-material effects of crime and for failing to meet victims’ procedural justice needs.
  2. 3.31 Proponents of restorative justice principles and practices argue that incorporating restorative justice into traditional criminal trial processes has the potential to considerably improve outcomes for victims.53 Restorative justice has been described as ‘both a way of thinking about crime and a process for responding to crime’.54
  3. 3.32 The Victorian Parliamentary Law Reform Committee suggested that restorative justice:

focuses on repairing the harm caused by the offence, on encouraging offenders to take responsibility for their actions and on increasing victim and community involvement in the criminal justice system.55

  1. 3.33 Together, the principles and practices of restorative justice amount to ‘a process to involve, to the extent possible, those who have a stake in a specific offence and to collectively identify and address harms, needs and obligations, in order to heal and put things as right as possible’.56
  2. 3.34 Restorative justice practices have common principles:
  • respect for the dignity of the individual
  • victim empowerment through participation
  • offender responsibility through participation
  • a holistic perspective on reparation.
  1. 3.35 Restorative justice has traditionally been understood as referring to processes such as victim–offender mediation and family group conferencing, where a fundamental element is the offender participating and taking responsibility for their actions.57
  2. 3.36 However, restorative justice principles are capable of being applied beyond victim–offender mediations and family group conferencing. For example, the victim participation scheme at the ICC is said to be based on restorative justice principles of victim empowerment and respect for victims’ dignity.58
  3. 3.37 The New Zealand Ministry of Justice has suggested that ‘there is no one way that restorative processes should be delivered’,59 adopting instead the argument that:

… the essence of restorative justice is not the adoption of one form rather than another; it is the adoption of any form which reflects restorative values and which aims to achieve restorative processes, outcomes and objectives.60

 

  1. 3.38 There will be times prosecutions are not commenced, for reasons which might relate to the strength of the evidence, or, particularly for sexual offences, the reluctance of the victim to be subjected to the trial process.61 It has been suggested that at the pre-charge stage, restorative justice pathways may provide an avenue for victims to obtain a justice outcome that would not otherwise be available.62 A live question is whether designing alternative pathways is an appropriate response to the flawed nature of the current system, or whether it is the current system itself which should be reformed.
  2. 3.39 While research suggests that restorative practices can benefit victims from diverse backgrounds, at different points in the criminal process and across the range of criminal offences, it is also recognised that restorative justice practices may not be suitable in all circumstances.63 In particular, they may not be appropriate for more serious crimes. Restorative justice practices which involve victim–offender mediation or conferencing may not provide emotional reparation for some victims, may risk further emotional harm, and may not align with an individual victim’s justice needs and interests.64 Restorative justice practices may be incapable of fulfilling a range of sentencing purposes, especially general deterrence and denunciation. The appropriateness of implementing restorative justice practices at various stages of the criminal trial process is considered in more detail throughout Part Two.

Theoretical models of victim-centred criminal justice

  1. 3.40 Academics have advanced a number of models of criminal justice which re-design the criminal justice system’s fundamental framework, and the trial process, so as to incorporate victims’ justice needs.
  2. 3.41 The following are six models or approaches taken from a much broader field of academic research. These provide examples of ways in which wholesale reform might be imagined.

The neighbourhood court model

  1. 3.42 In 1977, Nils Christie argued that in modern criminal justice systems, the state has taken over the victim’s conflict with the offender, to the detriment of both parties to the conflict and society generally.65
  2. 3.43 Christie argued that when the state prosecutes offences, this denies victims the opportunity to be involved in something of great importance to them—the prosecution of the crime committed against them.66 The victim has also lost the opportunity ‘to come to know the offender’, leaving the offender as an inhuman, stereotyped criminal, of whom the victim remains frightened.67 When the state prosecutes, the offender is more readily able to distance himself or herself from the victim’s blame, and avoid responding to a personal confrontation with the victim.68 Finally, society loses ‘opportunities for norm-clarification’, that is, the opportunity to discuss the appropriateness of certain conduct and what conduct should or should not be criminalised.69

 

  1. 3.44 Christie proposed a new model of criminal justice based on a ‘victim-oriented, neighbourhood court’.70 In Christie’s model the criminal process has four stages:
  • the determination of guilt
  • a consideration of the impact on the victim, in particular how the offender can assist the victim, and what the victim then needs from the community and the state
  • punishment of the offender, which should only be what is necessary to impose in addition to the restitution the offender pays to the victim
  • measures to rehabilitate the offender.71

The adversary–retribution and defence–welfare models

  1. 3.45 In 1982 Leslie Sebba advanced two alternative theoretical approaches to the role of the victim as part of a ‘truly victim-oriented examination of the criminal process’.72
  2. 3.46 The ‘adversary–retribution’ model maintains the basic features of a common law trial but with greater emphasis on the victim. The trial tends more towards a confrontation between the accused and the victim, and the sentencing process aims to deliver a punishment which would ‘fit the crime’, based primarily on the victim’s injuries.73 The state plays the role of facilitator, ‘acting primarily on behalf of the victim’.74
  3. 3.47 The ‘social defence–welfare’ model seeks to avoid the victim-offender confrontation. Instead, the state stands ‘in the shoes of the victim in prosecuting the offender’, while also ensuring rehabilitation of the offender and adequate compensation of the victim.75
  4. 3.48 Ultimately, Sebba argued that for all crimes except those involving severe violence, the state should provide the machinery for victims themselves to achieve their desired objectives, through the adversary–retribution model.76 For the most serious crimes, the state should prosecute on behalf of the victim and provide compensation for harm suffered, reflecting the social defence–welfare model.77

The punitive and non-punitive victims’ rights models

  1. 3.49 In 1999, Kent Roach developed two models of victims’ rights—’punitive’ and ‘non-punitive’. These are based on the idea that victims’ needs and interests are important considerations that should be incorporated into the values of the criminal justice system.78
  2. 3.50 Under the punitive victims’ rights model, the interests and rights of victims are as important as the rights of the accused.79 Related to this is an emphasis on establishing the accused’s factual guilt, rather than ensuring that he or she has a fair trial.80 This model relies on punishment as the primary response to crime.81
  3. 3.51 The non-punitive victims’ rights model emphasises crime prevention. When a crime has occurred, ‘the focus is on reducing the harm it causes through healing, compensation, and restorative justice’.82
  4. 3.52 Roach argued that the non-punitive victims’ rights model, particularly, its restorative justice elements, provides options which are likely to give greater effect to victims’ needs and interests and provide victims, offenders and their respective families with the opportunity to respond constructively to crime.83

A proposal for structural reform

  1. 3.53 In 2008, Jonathan Doak suggested that the needs and interests of victims cannot be properly accommodated ‘without wholesale reform at a structural level, nor without a re-evaluation of the theoretical assumptions that underpin existing structures and institutions’.84
  2. 3.54 For Doak, such wholesale reform could come in the shape of:
  • the increased use of restorative justice processes, which ‘allow victims to participate and give their own account in an informal setting, to seek reparation from the offender and to pursue the truth’.85
  • adopting an inquisitorial method for the adjudication of guilt,86 which would give victims status during the trial, allow victims togive their account in a more narrative fashion, and emphasise the value of finding the truth.87
  1. 3.55 Doak concluded that any reforms should not remove ultimate decision-making power from the state, and conceded that the above proposals require further development, particularly with respect to whether they should exist inside or outside the formal criminal justice system.88

Incorporating restorative justice principles

  1. 3.56 In 2009, Jo-Anne Wemmers examined whether restorative justice processes belong inside or outside the formal criminal justice system.89
  2. 3.57 Wemmers rejected abolishing the criminal justice system in favour of restorative justice processes in all cases. Such a fundamental reform would place all responsibility for the resolution of disputes involving crime onto victims and offenders.90 She argued this approach is unlikely to satisfy the interests of the community in punishing crime, or satisfy victims’ interests. She also rejected simply adding restorative justice processes onto the traditional criminal justice system, as this only gives victims a place outside of the trial process.91
  3. 3.58 Instead, Wemmers argued in favour of incorporating restorative justice values into the criminal justice system, by giving victims formal status, although not necessarily making them an equal party. She proposed the procedural structure of the ICC as an example of such an approach.92

 Putting victims at the heart of the criminal justice system

  1. 3.59 In 2009, Matthew Hall examined the United Kingdom government’s commitment to ‘put victims at the heart of the criminal justice system’.93 His analysis distinguished between ‘non-fundamental’ and ‘fundamental’ reforms. Fundamental reforms are those that change the decision-making structure of the criminal justice system by allowing victims to influence or determine matters, such as whether to pursue a prosecution or what an offender’s sentence should be.94
  2. 3.60 For Hall, proper victim-oriented reform requires accommodating victims’ therapeutic needs and administering criminal justice in a way that genuinely revolves around victims.95 Hall advanced a series of reforms that he argued are non-fundamental but which place victims at the centre of the criminal justice system through changes in practice, culture and evidence taking.
  3. 3.61 Victims’ rights feature in Hall’s account. He considered that effective measures for the prompt enforcement of victims’ rights were the only way to change practices and culture in the legal system that have sidelined victims. According to Hall, permitting legal representation for victims for this purpose is a non-fundamental reform, because it leaves the positions of the system’s existing parties (the accused and the state) unchanged.96

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