Abstract
The Criminal Procedure Rules were implemented in 2016 by virtue of Legal Notice No. 55/2016 with an emphasis on the disposition of and dealing with matters ‘justly’. This ambitious objective cannot be accomplished by solely adhering to the legal framework that currently governs the criminal justice system. Restorative justice has been seen as an opportunity and an approach for victims and other stakeholders of crime to deal with the same. At the forefront of such approaches is victim–offender mediation, which can be utilized for both juvenile and adult offenders. Inclusion of such a process as part of the criminal justice system of Trinidad and Tobago would assist in realizing the objectives envisioned by the Criminal Procedure Rules.
Introduction
Crime in Trinidad and Tobago is a critical issue for many citizens. It has changed the manner in which people conduct their daily lives. The fear of being a victim is real. The 2015 Crime Victimization and Fear of Crime Survey Report revealed that 44% of the participants were afraid of being a victim of crime. 2 What was interesting is that persons who expressed no such fear indicated that they took precautions such as not being out late at night, not visiting certain areas where there is a higher probability of becoming a victim and generally exercising a greater degree of vigilance. 3 Crime, it seems, has eroded the very fabric of society.
Victims of crime look to the criminal justice system to seek redress. This may involve making reports to the police, the apprehension of the offender and having the matter heard in Court. The victim, having experienced trauma, loss, fear and other emotions, may wish to seek vindication through the Court. That expectation may not be forthcoming as matters are dismissed on technicalities or are delayed in the system. Even if the offender pleads guilty, the penalty imposed may leave the victim dissatisfied and perhaps still feeling victimized.
The offender enters into the system by being arrested and charged for the offence. For both the victim and the offender, the experience may be frightening and intimidating, and they may feel alienated from the whole process.
The Criminal Justice System of Trinidad and Tobago was inherited from the British colonial system. This system embraces formalities that seek to achieve fairness and protect the rights of the offender. However, this system has its deficiencies, particularly long delays and alienation of the victim. The Criminal Procedure Rules are a bold attempt to tackle these deficiencies. However, these do not go far enough to adequately address them as they are carved within the framework of what now exists.
Victim–offender mediation is a process with the objective of giving parties to the crime greater involvement in the outcome. There are some preconditions before such a process is triggered. It is a process that can exist within the traditional criminal justice system. It can lead to greater satisfaction with the system on the part of both the victim and the offender, thereby achieving a more just outcome as contemplated by the Criminal Procedure Rules. Furthermore, it can result in matters being dealt with more expeditiously, another objective desired by the Criminal Procedure Rules.
Current Criminal Justice System
To put the discussion into context, it is necessary to have a brief overview of those components of the criminal justice system that are relevant.
Structure
Once a victim has reported a matter to the police, and the police have arrested and charged the offender, the matter is then taken to the court. It is important to appreciate the level of the court and its jurisdiction to better analyse the challenges these parties will face in the system.
Before reaching this stage, matters must first go through a preliminary inquiry at the district court to determine whether there is sufficient evidence to go to the high court. One can readily see the long time that can elapse between a matter commencing at the preliminary inquiry stage of the district court and its disposition at the high court. Again here the parties, particularly the victim, can feel more like a bystander than a participant.
Procedure
While examining the procedure of dealing with criminal matters, one observes many challenges in the system and how those challenges can lead to the perception and belief that the system is unfair.
These challenges arise because of how crime is viewed in the criminal justice system. Crime is seen as a breach of a rule made by the state and not as a conflict between individuals. 5
This is the lens then through which the whole mechanism of dealing with criminal matters was devised.
The whole purpose then of adjudication is apportioning blame and inflicting punishment.
The court is focused, not on the victim’s story, but rather on whether the particulars that constitute the state’s law have been made out by the prosecution. The tale of the victim is but one component in achieving this. 6
The court process is embedded in centuries of rules and principles that can overshadow the victims’ distress and the need for understanding and help. Proceedings are owned by professionals representing the state and the offender in the form of the police or State Attorney prosecuting for the State and an Attorney representing the offender. Where the offender is unrepresented, he/she has to navigate procedures and principles that are unchartered and incomprehensible.
This is not an outright indictment of these rules and procedures because their presence is necessary for there to be consistency and protection of the rights of the offender and to give a degree of integrity to the whole process. However, there must be some system in place that gives the parties the opportunity to bypass this formality and still achieve a just outcome.
Sentencing
Since what constitutes a crime is prescribed by the state, it is the state which prescribes the sentence. Judges have developed guidelines as to the purpose of sentencing. In Trinidad and Tobago, the case that has explored the concept of the purpose of sentencing and is still used today as a guide is Benjamin v R. (1974) 7 W.I.R. 459. On page 460, Sir Hugh Wooding, the then Chief Justice, espoused the goals of sentencing as follows:
the retributive or denunciatory, which is the same as the punitive; the deterrent vis-a-vis potential offenders; the deterrent vis-a-vis the particular offender then being sentenced; the preventive, which aims at preventing the particular offender from again offending by incarcerating him for a long period; and the rehabilitative, which contemplates the rehabilitation of the particular offender so that he might resume his place as a law-abiding member of society.
The first four principles have more to do with making the offender pay than making him/her own up to causing the conflict. Rehabilitation attempts to address the needs of the offender. The offender may be willing to make a change and the state willing to invest in that commitment. However, without knowing the depth of pain and loss that was caused and acknowledging the same, it begs the question as to how effective rehabilitation can be.
The Children’s Court was established as a Division of the Supreme Court in 2014. Emphasis here is placed on rehabilitation. To achieve this it has adopted a number of measures including the restorative justice practice of peer resolution. In the case of minor offences, once a child admits to breaking the law and takes responsibility for the harm done they are referred to a peer resolution programme where youth volunteers, ages 13–17, will determine the sanction. Here it is seen that there is an attempt to focus on the harm and not just the infringement of the law. However, this does not go far enough in making the child understand the full impact of the harm caused. Harm here may not just be in the province of the victim only, but the involvement of the victim may make the child realize that he/she was harmed in ways that were not readily manifested. Then and only then would the child be on the path to meaningful rehabilitation.
The Criminal Procedure Rules
The implementation of the procedure was an attempt to improve the criminal justice system by stipulating measures that will lead to the faster disposition of matters, as well as trying to strike a balance between the interests and rights of the victim and the offender. The Criminal Procedure Rules 2023 (Legal Notices 377/2023) superseded the 2016 rules.
Rule 3.1 of the rules prescribes: ‘The overriding objective is to deal with criminal matters justly.’
The rule further identifies what factors would amount to dealing with a matter justly.
3.3 Dealing with a criminal case justly includes—
dealing with the prosecution and the defence fairly; ensuring the protection of all the rights of an accused person; considering the interests of the accused, witnesses, victims and jurors and keeping them informed of the progress of the case, as necessary; dealing with the case efficiently and expeditiously; ensuring that appropriate information is available to the court particularly when bail or sentence is under consideration; and dealing with the matter in ways that take into account—
the gravity of the offence; the complexity of what is in issue;— the consequences for an accused and others who may be affected; the needs of other matters; and allotting the matter an appropriate share of the court’s resources, while taking into account the need to allot resources to other matters.
From an analysis of the rule, it can be seen that the court is obligated to have regard to all parties involved in the case. This will indeed include the victim and specifically ‘the consequences for an accused and others who may be affected’. This is a shift away from the dominance of focusing on attributing blame and inflicting punishment.
The Rules also seek to get the voice of the victim to be involved in the proceedings. This is at the stage of sentencing. By virtue of Rule 17.9(3):
The prosecution must–
provide information relevant to sentence, including any statement of the effect of the offence on the victim, the victim’s family or persons connected to the victim or the offence;
The inclusion of this provision is an acknowledgement that the victim’s voice is important. The provision goes even further in recognizing the harm that may have also been done to secondary victims. Again, this is a positive departure from what existed where secondary victims were rarely acknowledged. This is, however, only utilized at the end of the proceedings with the aim of determining the sentence and not addressing the harm done by the offender. Including the victim’s voice here, although a step in the right direction, does not aid faster distribution of matters nor fully addresses the victim’s needs. Dealing with matters justly must include some measure of victim satisfaction, offender accountability and addressing the issue of reparation. Reparation here is not restricted to compensation but embraces making amends. The 2015 National Crime and Victimization Survey Report revealed that courts, which referred to judges and magistrates, received a 41.8% approval rating. 7 Although dispensing justice is not a popularity contest, no system is perfect. Justice ought not to be static and, therefore, continuous efforts should be made to improve the experience of all participants, particularly victims and offenders in the criminal justice system.
Restorative Justice and Victim–Offender Mediation
The Restorative Justice Lens
Restorative justice represents a change in the perspective of how crime is viewed and consequently how it should be dealt with. Restorative justice views crime as a breach in the interpersonal relationships of people. This breach, rather than creating the opportunity to primarily apportion blame and inflict punishment, creates obligations. The main obligation is to put things right.
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Liebmann
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referenced the definition of restorative justice used by the Canadian Justice Consortium 2006. The process is defined as follows:
Restorative Justice works to resolve conflict and repair harm. It encourages those who have caused harm to acknowledge the impact of what they have done and gives them an opportunity to make reparation. It offers those who have suffered harm the opportunity to have their harm or loss acknowledged and amends made.
Central to this whole concept is giving victims their rightful place, that is, having their stories heard with as few encumbrances as possible. Concomitantly, the offender must be held accountable to put those harms right. In other words, the offender has an onus to address the nature and impact of the wrong done to the victim. This can include making an apology, monetary compensation or otherwise. This approach is absent in the current criminal justice system.
This process was sanctioned by the courts in the Canadian case of R v. Proulx [2000] 1 S.C.R. 61. The Supreme Court applied a restorative justice approach in its adjudication of a case of causing death by dangerous driving and in paragraph 18 defined restorative justice as an attempt:
to remedy the adverse effects of crime in a manner that addresses the needs of all parties involved. This is accomplished in part through rehabilitation of the offender, reparations to the victim and to the Community and the promotion of a sense of responsibility in the offender and acknowledgement of the harm done to victims and the Community.
What Victims Say They Want 10
A less formal forum where their views are duly considered: Victims may be willing to participate in a process where they are not bound by strict rules and ceremony once their safety and security can be assured and where their views are of paramount importance. They need to ask questions as to why they were chosen to be victimized and being able to express their views and emotions freely will help them to get over the feeling that they were at fault and this brings its own healing.
More involvement in their case: Victims need to feel that they have a say in the preparation and outcome of the matter. This gives them a sense of regaining control of their lives and addressing the imbalance that takes place when they are victimized where the offender gains ascendancy over their emotional and psychological well-being.
In a decided case in the district court in Trinidad and Tobago, S was a child of 16 years charged with stealing a substantial quantity of jewellery from his neighbour. The child pleaded guilty to the offence at the earliest opportunity. The court involved the victim in as many aspects of the case as possible. The victim was allowed to tell the child face to face how the crime impacted her and her family and affected the relationship between her and his family. She was able to inform the court what she wanted in terms of compensation and she and the child’s mother were left to work out a compromise which they did. Important to the victim was an apology from the child. This was forthcoming. When the court was about to dispense with the matter, the victim had become emboldened enough to inform the court that the young man was still engaging in delinquent behaviour. When asked, the mother confirmed that this was true. This new information from the victim led the court to seek further assistance from the probation department. Although not a victim–offender mediation process, the case is an example of the positive effect allowing the victim to fully participate in the outcome can have on the emotional state of the victim and identifying the needs of the offender.
The need to be treated fairly and with respect: Victims need to be empowered. Again in the criminal justice system, this may not always occur. Rigorous cross-examination may rob a victim of that feeling. Victim–offender mediation focuses on giving due respect to victims and their feelings.
The victim has an ardent interest in knowing what is happening with the matter: Knowing what progress is being made in the matter is of importance to the victim. This is limited in the current criminal justice system, although provided for under Rule 3.3(c) of the Criminal Procedure Rules. Keeping victims abreast of what is happening is also a form of healing. There is a greater possibility for this in victim–offender mediation as the mediator must obtain the views of the victim as to aspects of the encounter. The victim then is always aware of what the next steps are towards resolving the issue.
Victims often call for material restoration: Repairing the harm speaks to putting the victim back in the position they were before the crime had taken place. In many instances, this is all they require. In another decided case in the district court, Trinidad and Tobago, C was a 16-year-old student attending a well-respected college. During a school fight, he threw a chair at some students. The chair actually hit the windscreen of a teacher’s car. C was charged with malicious damage. He pleaded guilty at the earliest opportunity. The victim came to court and was only interested in getting the money to pay for the repairs to her windscreen. She indicated to the court that the child was a good student, and this was the only incident he was ever involved in since attending that school. The child’s father agreed to pay for the damage and the child was subsequently placed on a bond. This meant that there will be no evidence of a criminal record against the child. Again, although not a victim–offender mediation that approach was engaged by the court to resolve the issue.
Many victims are disappointed when after going through the rigours of a trial compensation is not forthcoming as this is not the main objective of the criminal justice system. Rather the offender is sentenced and the victim still has to expend all of his money to replace what was lost or pay medical expenses.
Many victims want what is referred to as symbolic reparation: This is in the form of either an apology or expressing remorse. 11 This can be more easily achieved in a face-to-face encounter in an informal setting than in a formal courtroom.
The Needs of the Offender
Restorative justice did not start with an offender focus. It was a philosophy that evolved to help victims voice their feelings and concerns about their victimization and put them on the path to healing. It was realized that this could not occur without placing some emphasis on the offender’s views and needs. 12
Offenders need to have their story told as when: This may take many forms. Offenders can tell their story without the restrictions of the rules of evidence that operate in the court. They can give their perspective as to why they did what they did. They are able to answer questions from the victim and this in turn may assist all parties in getting to the root of the issue. Hearing themselves can bring them to the realization as to how much harm they caused, be a catalyst for the apology and bring them to the point of being willing to make amends.
Offenders want to be treated with respect and dignity: The criminal justice system can dehumanize the offender, casting him in the role of villain just good enough to send him to jail and throw away the key. Victim–offender mediation can recast the offender into the role of a human. This can lead the offender to the path of rehabilitation and contribute to the healing process for victims. 13
Like the victim, the offender needs to know what is happening with the matter: This too is catered for in Rule 3 of the Criminal Procedure Rules. However, this is not the reality currently in the criminal justice system. Victim–offender mediation will give more meaning to this obligation. The offender needs to have an input in the process. The offender is also made aware of the potential consequences for non-compliance with agreements very early in the process. The offender can then make an informed decision on whether to proceed. This can lead to the offender being more committed to the process.
Victim–Offender Mediation: The Practice
Victim–offender mediation need not be applied to every type of offence. There is considerable debate as to whether it should be applicable to domestic violence, sexual offences, gang offences and serious offences such as murder, manslaughter and wounding with intent. 14 The important factor is that it is considered as an alternative to court procedure. A starting point can be having the process available for minor offences.
It can be incorporated within the existing criminal justice system. This is the case with many victim–offender mediation programmes around the world. 15
The process can be initiated at any stage with the consent of the parties:
Pre-charge. This is where the police has the discretion to divert the matter. Post charge: At the initial hearing. After the offender has pleaded guilty. Where there is a trial post-conviction/pre-sentencing. At the sentencing hearing. Post-conviction.
The parties can be referred to the process by
The police prior to there being a charge The court at any stage of the process The correction facilities
It is seen, therefore, that the court can be involved in the process at any stage of the proceedings before it. This is the approach adopted in Jamaica which has now established 19 Restorative Justice Centres throughout the country. 16 Victims and offenders at every stage can choose to divert from the court. The priority is on allowing the parties the opportunity to arrive at solutions devised by them. The process of the court is not compromised. Like any other factor, the court can take the result of the victim–offender mediation into consideration in determining a sentence. If an offender has pleaded guilty or found guilty, the court can still impose a custodial sentence even if there was an outcome at the victim–offender mediation. This is something that is made clear to the offender at the commencement of the process.
The process of a victim–offender mediation is not conducted ad hoc. A trained facilitator organizes the encounter. Although this facilitator can be a volunteer, increasingly they are professionals in the employ of a state or organization. 17 In Trinidad and Tobago, there is well-established mediation board that trains and oversees the certification of mediators. There is a community mediation department that offers mediation in non-criminal matters. The infrastructure then is already in place to start this process with well-trained professionals.
There are standard steps to follow to ensure as far as is practicable that there is fairness. Initially, meetings are held with the offender and the victim separately to obtain their views as to whether they are comfortable with the process, if they have any safety concerns, where they wish the meeting to be held, and any other issues they may wish to raise.
The meeting should be on neutral ground in secure surroundings unless the parties are comfortable going to the home of the victim or offender. This will depend on the nature of the offence and the relationship between the parties. That option should only be resorted to in exceptional circumstances. In Trinidad and Tobago, offices designated for that purpose at police stations and Ministry of Sports and Community Development can be used as a start.
The facilitator is not to dictate but to guide the proceedings giving the parties ample space and opportunities to voice their feelings and arrive at the point of understanding each other’s perspectives.
One of the main objectives of the encounter is to get the offender to realize the nature of the harm he caused to the victim and express his remorse either through a genuine apology or otherwise.
Following up on this is for the offender to make amends. Both parties come up with what this should entail and if necessary a timeline for accomplishment.
These encounters can last for a few hours or more than one depending on the circumstances. The important factor is that the parties reach solutions agreeable to both. In the absence of such, the matter reverts to the court. It is not designed to be a prolonged process. At no point in time should pressure be placed on the parties to reach an agreement, make an apology or accept an apology. If after a reasonable time has elapsed, there is no progress towards the amends stage, the encounter can be terminated and sent back to the court.
This is a process that can be used to resolve offences involving both children and adults.
Evaluations of this process continue to be positive
Victims express more satisfaction with restorative justice approaches than with the court process.
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It helps in healing the trauma victims experience.
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Of special importance to the criminal justice system is that it reduces recidivism in both child and adult offenders. It can be inferred from this that meaningful rehabilitation took place.
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The offender can be accepted back into society because the breach that occurred was repaired to the satisfaction of both the victim and offender. It can lead to an increased disposition of matters as the process is not intended to be prolonged. Once both parties are committed to reaching a resolution, it may be sufficient to have one encounter. This is especially the case with minor offences.
Conclusion
Restorative justice and by extension victim–offender mediation is not an answer to all the challenges in the criminal justice system. It is an option, though, that can be utilized within the system to give victims and offenders more options to address the crime that was perpetrated and the repercussions that resulted from the same.
It is also not a guarantee to get out-of-jail card. Once it is allowed to operate within the ambit of the criminal justice system custodial sentences can be applied in conjunction with a restorative justice approach.
Inspiring confidence in the criminal justice system plays a major part in maintaining democratic stability. Victims and offenders must feel assured that their needs are met. Incorporating victim–offender mediation into the system will go a long with in achieving this.
Footnotes
Declaration of Conflicting Interests
The author declared no potential conflicts of interest with respect to the research, authorship and/or publication of this article.
Funding
The author received no financial support for the research, authorship and/or publication of this article.