Government last week Thursday, tabled the Restorative Justice Bill in the National Assembly with the aim of “repairing the harm caused by an offence” and introducing alternative means of addressing criminal offences while strengthening the justice system and reducing the prison population.
Restorative justice, according to the bill, involves the provision of an opportunity for the offender and victim to seek a resolution that repairs the harm caused by the unlawful conduct. It also requires the offender to obtain treatment or counselling to address underlying mental health conditions, addictions, and other behavioural issues.
The bill was tabled by Attorney General and Minister of Legal Affairs Anil Nandlall.
The bill has six parts and speaks to how restorative justice may be applied. Its explanatory memorandum highlights that restorative justice is to address and repair harm in which participation is voluntary.
Part II of the bill sets out that restorative justice may be utilised before or after a person is charged with any offence and even before the bill becomes law. Additionally, it sets out the persons who are eligible for restorative justice.
Clause 10 (1) of the bill states “An offender is eligible for restorative justice if the offender (a) accepts responsibility for the commission of the offence; (b) was at least fourteen years old when the offence was committed or was allegedly committed, and (c) is capable of agreeing to take part in restorative justice.”
Clause 10 (2) adds “An offender who accepts responsibility for the commission of an offence and decides to take part in restorative justice is not prevented from pleading not guilty to that offence.”
The bill also outlines that the court is not required to reduce the severity of any sentence despite the offender accepting responsibility and agreeing to take part in restorative justice. It further states that where the offender is a juvenile as defined by the Juvenile Justice Act, the principles and measures relating to the juvenile justice system and diversion shall apply.
Part III of the bill speaks to the appointment of a Director of Restorative Justice. The Director shall be responsible for the management and organisation of restorative justice programmes. They are also mandated to supervise the participants of the programmes.
The bill states that the court or the Director of Public Prosecutions (DPP) may refer an offender to the Director of Restorative Justice for participation. The DPP may refer an offender before recommending that charges be instituted against them. On the other hand, the court may make an order referring an offender to restorative justice before commencing the trial or after the trial has commenced.
“Where the court or DPP refers an offender for restorative justice, the consent of the victim and offender must be given… the Director shall give the referring entity a written report on the outcome of the restorative justice process,” the explanatory memorandum outlines
Additionally, before referring a participant to restorative justice, the referring entity must consider certain factors including whether a restorative justice programme exists, the possible benefits of participation in the programme, and the risk that the offender may pose to the community.
Further, this Part IV of the bill provides that where the victim or offender is unable to give consent because of age, physical, intellectual or mental impairment or the victim or offender is deceased, consent may be given by the victim or offender’s parents or guardian.
Advisory council
Part V establishes the Advisory Council on Restorative Justice which shall consist of ten members. The Minister shall be the Chairperson of the Council. The Council shall comprise the Minister, who shall be the Chairperson, Director of Restorative Justice, DPP, Commissioner of Police, Director of the Childcare and Protection Agency, Chief Probation Officer, a representative of the Judiciary, appointed by the Chancellor, Director of Juvenile Justice, and two other persons appointed by the Minister who have experience in the practice and delivery of restorative justice and in providing social services or delivering counselling or treatment programmes.
The role of the Council is to monitor the effectiveness of restorative justice programmes and provide advice and recommendations to the Minister on the design and content of restorative justice programmes, implementation and delivery of restorative justice programmes, and policies regarding restorative justice.
Part VI of the bill speaks to the criteria for deciding whether restorative justice is suitable for an offence. It stipulates that in deciding whether restorative justice is suitable for a particular offence, the referring entity shall consider any governmental, criminal justice system or administrative policy relating to the treatment of offences of the relevant kind, the nature of the offence, including the level of harm caused by or violence involved in its commission or alleged commission, and the physical and psychological safety of anyone who is to take part in restorative justice for the offence.
As it relates to the victim, the referring entity shall consider inter alia, the impact of the offence as perceived by the victim. With respect to the suitability of the parent of a child victim, the referring entity shall consider the relationship between the parent and the child and the parent and child victim’s reasons for taking part in restorative justice.
In May of this year, Nandlall said that restorative justice will bring about significant changes in communities.
“Restorative justice essentially carries two main planks. One is to go and find the root cause of the crime… restorative justice deals with that. Pull the problem from the root, so the possibility of a recurrence becomes more and more remote and hopefully disappears altogether.
“Restorative justice also deals with bringing the victim, and the perpetrator together, bringing them together… and working with them, talking out the issues, see if they can forgive each other, see if they can interact, they can continue to engage, get an apology, get remorse. That extinguishes the hate, the anger, the ill-feeling, it dissipates it,” he was quoted as saying by the Department of Public Information.
