Book Review

HANS HENRIK BRYDENSHOLT*

RESTORATIVE JUSTICE AND CRIMINAL JUSTICE

Reviewing:

Andrew von Hirsch, Julian Roberts, Anthony Bottoms, KentRoach and Mara Schiff, eds., Restorative Justice and CriminalJustice, Oxford: Hart Publishing, 2003, 364 pp.

Years ago, when I was head of the Danish Prison and ProbationService, we started an experimental change of the Youth Pension,‘Skejby’, a half way house placed in Aarhus, the second largest city inDenmark. The Youth Pension had originally held 24 conditionallyreleased prisoners or youths sanctioned with conditional prison sen-tences. During the daytime, the youths were either to work or toparticipate in an educational activity. The institution had a staff of sixsocial workers, including the leader who, together with his family,also lived in the house.

Prior to the start of the experiment Skejby’s results were not good.At one point in time I was informed by the local Police Inspector thatthe police had found stolen goods at the institution, and that it waswell known that drugs were used at the place.

As part of the experiment, half of the places in the institution wereoffered to ordinary non-criminal youths (non clients). Half of theformer inhabitants were then placed in local families who wherewilling to host them under supervision from the staff of the institu-tion. The remaining 12 ex-criminals (clients) continued to live at theinstitution, together with the non clients.

On their own initiative, the clients and the non-clients createdthree groups, each consisting of four of the two categories. Also on

* Judge, International Criminal Tribunal for the former Yugoslavia.

Criminal Law Forum (2006) 17:113–119 � Springer 2006DOI 10.1007/s10609-006-9002-9

their own initiative it became common that the various groups, whenthey became tired of living in the institution, moved together to aplace where they could continue to live in a sort of collective, stillwith close connection to Skejby.

The experiment was followed by a university research team, and Iwill at this place only mention that Skejby is one of the very fewinstitutions that I know of that actually has been able to diminish theexpected rate of recidivism.

I was interested in this experiment and visited the institutionwhenever I had an opportunity.

On one occasion I visited one evening when the weekly meetingscalled ‘good and bad’ were held in the three groups. I went fromgroup to group to listen to the discussions. One of the groups dis-cussed the work it had started on renovating an old sailing ship,which one of the staff members had inherited, and had then offered tothe group. All the members except one were eager to participate inthe discussion about what to do. The one person who showed nointerest not only kept outside the discussion but became more andmore disruptive. He claimed that the project would never succeed,and if against all odds it should succeed, it would end up being anasset of the institution. The persons who had done the renovationwould never get any personal gain.

This person, Soren, was a big guy, who had recently been condi-tionally released from a closed prison. He wore black scooter bootsand as he became more and more isolated in the group he also be-came more and more unpleasant in attitude. At a certain point, as aprovocation, he placed his boots on a low table just in front of whereI was sitting.

When the discussion was about to finish I left the groups and wentupstairs to the apartment where the leader lived together with hisfamily. I used to have a cup of tea together with them before I left.

But suddenly, before the leader had arrived, a bell rang. The lea-der’s wife told me that when that bell rang it was a sign that everybodypresent in the house should immediately go to the meeting room. Sheleft, but I stayed behind. I thought that it would only disturb whatevershould be dealt with, if the Director General showed up. Nevertheless,later I went down to observe from a distance what was happening.

I understood that Soren, after I had left the group, had been evenmore aggressive towards the staff member with the ship-project, andthat the quarrel had ended in a situation where Soren had knockedthe staff member to the ground.

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Nothing else had happened, and nobody had been injured. Butthis was nevertheless violence directed against a staff member, andthat was serious. Yet I saw to my surprise that the discussion was notone sided against Soren. Other members of the group criticised thestaff member, asking why he hadn’t been more sensitive to Soren.Why hadn’t he taken note of the situation in which Soren, in front ofme, had been more and more isolated and ignored in the group? Itshould have been the staff member’s duty not only to continue thediscussion on the development of the ship-project, but to have drawnSoren into this discussion. The group members felt that the staffmember in a selfish manner had been too occupied presenting hisproject in front of the Director General.

So, I witnessed that the person who had been knocked down, hadto defend himself against accusations of having been blind and deafregarding Soren’s more and more isolated position.

On the other hand under no circumstances did the institutiontolerate violence. So some reaction would be necessary. But if theincident were reported, as it should be according to the rules, Soren’sconditional release from prison would be revoked, and he would haveto complete a lengthy prison time. Such a reaction was not whatanybody wanted. What then?

The solution came froma visitor fromone of the old groups that hadmoved out, and whose members were now living in an old farmhouse.This house was heated with firewood. The collective had just bought afull load of timber. The timber was lying in the courtyard, but some-body had to saw and chop it. It was a heavy task that would take astrong man a week to do, but Soren was willing. An agreement wasmade. If hewould stay in the collective, and saw and chop thewood in aweek’s time, then he would be welcome back in Skejby.

I was impressed by the whole process even if I had no illusion thatSoren really would have sufficient self discipline to work himselfthrough the timber. But he did. Exactly 1 week later at 11 pm in theevening, when the period in which he was barred from the institutionexpired, he stood at Skejby and was invited inside. And as one of thesocial workers later told me; ‘We were all happy because in realitySoren is such a kind person.’ I had some difficulty in understandingthat the person she characterized as a kind person was the sameSoren, I had met with his boots on the table in front of me.

When I read the book Restorative Justice and Criminal Justice Irecalled the episode in Skejby. What kind of justice was that? Cer-tainly not formal justice in a traditional way. The penalty was not

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measured out in order to inflict a pain just deserved. And it was not aform of compensation to the victim. The staff member who was theperson who had been knocked down got nothing for himself. It wasnot a form of community service either. The sanction was not ben-eficial for the local community as such. It was beneficial for thecollective living in the farmhouse who had suffered nothing. Even so,I would call it an impressive example of restorative justice, as I willattempt to explain in this review.

Restorative Justice and Criminal Justice has the subtitle ‘Com-peting or Reconcilable Paradigms’. The book contains 16 chapters,original presented as papers by 21 criminologists and other legalscholars at seminars held in Cambridge and Toronto. The book isedited by Andrew von Hirsch, Julian Roberts, Anthony Bottoms,Kent Roach and Mara Schiff. Whereas most of the contributors areknown as having a positive attitude toward restorative justice, it isinteresting to notice that Andrew von Hirsch, who is known as aspokesperson for new classism or just deserved philosophy in sen-tencing theory, is among the editors and contributors as well.

As one of the authors, Joanne Shepland, writes, restorative justiceis clearly now a movement. It is emerging as a potent challenge totraditional models of criminal justice. But, as stated in the book, theunderlying aims, values and limits of this new paradigm remainssomewhat uncertain and those advocating restorative justice haverarely engaged in systematic debate with those defending more tra-ditional conceptions of criminal justice. To create the forum for sucha debate, and thereby explore what the term restorative justice shouldcover, and its potential advantages and disadvantages, is the aim forthis book.

A starting point for the discussion is the Norwegian criminologistNils Christie’s article, ‘The theft of conflicts’, from 1978. HereChristie argues that the formal criminal justice system has stolen theconflicts from the owners, notably the victim, the offender and thelocal community, who should be given back the possibility to resolvetheir own conflicts.

I remember very well when Christie’s rather short article waspublished, and it is amazing to see how well known it now has becomeall over the world. And how it still is able to provoke discussion.

How restoration justice has become a movement is illustrated byDaniel W. Van Ness in a chapter that lists and comments on thevarious declarations, guidelines and recommendations on the use ofrestorative justice originating from a number of non-governmental

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organisations, but also from the Council of Europe (Recommenda-tions, 1999) and from the United Nations (Basic Principles on the useof Restoration Justice Programmes in Criminal Justice, 2002).

The restorative justice concept covers quite a number of differentprogrammes. I personally first came across the concept back in 1980,when I visited the VictimOffenderReconciliation Programme (VORP)in Valparaiso, Indiana. Since then ‘Conferences’ in New Zealand andAustralia, ‘Sentencing Circles’ in Canada, and a programme known as‘HART’ in the Netherlands have described the concept. In Norwayand other Nordic countries, ‘Conflict Boards’ are used.

But if you look for places where restorative justice is the basic wayto handle conflicts of what we in the western world would call acriminal nature, you have to go to the developing world. When, in thefirst part of the 1990s, I started to work in Uganda as advisor to aprogramme on strengthening of the judiciary, the idea of the Ugandanjudges was to abolish what is called Local Council Courts (LC courts).These courts, composed of local elected councillors, in reality functionmore as mediation bodies than as bodies making legally-bindingjudgments. If an agreement between the parties is not found, the LCcourt is empowered to make a judgment, but there is no local mech-anism available to enforce such a judgment. If need be, it is necessaryto involve the district police. But as a general rule, social pressure toabide by the decision is strong enough to ensure fulfillment.

The LC courts only have jurisdiction in civil cases. In theory,criminal cases should be handled by the police and magistrates’courts. But in reality, criminal offences are also dealt with by the localLC courts. Acts that we would define as criminal are acknowledgedas civil law transgressions. The law establishing the LC courts’ civiljurisdiction refers, for example, to ‘assault and/or battery’, ‘damageto property’ and impregnation of a girl under 18 years of age. Theremedies the LC courts are given in the law include reconciliation,declaration, apology and compensation. An important matter nor-mally handled by LC courts is land disputes, which, in rural areas, ifunresolved can create very serious conflicts.

In developing countries, where restorative justice has in realityremained the basic justice system, it is important not to destroy suchsystems. Rather, they should be recognised, with the necessary linksto the professional judiciary established, yet without making thetraditional system unnecessarily legalistic.

There are other countries, like Albania, where there has been anold tradition for mediation of conflicts, but where the system was

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destroyed during the communist regime. Here it is important torevitalize a mediation system as an alternative to a weak and dis-trusted professional Judiciary. The Albanian Foundation for ConflictResolution and Reconciliation of Disputes (AFCR) has been estab-lished with support from among others Denmark, Norway and theCouncil of Europe. I participated as consultant when this programmewas created. The institution works with a combination of profes-sionals and volunteers as mediators. The most important criteria inthe selection of a person as mediator is that he be held in high regardas an outstanding personality by local people. The selected personhas often been a teacher, but it could also be the local physician. Yes,even a local journalist has been so chosen.

As restorative justice gains momentum, it is important that legalscholars analysis the phenomenon and that criminologists study theoutcome.

As such, Restorative Justice and Criminal Justice is a welcomepublication. But it is not a comprehensive book on restorative justice.It is a sample of papers from scholars who have participated inseminars to discuss this alternative way to perceive what justice is.Can an apology and compensation be painful enough for the crimi-nal? One of the authors, Antony Duff, says no. He maintains that theexpression ‘the guilty deserve to suffer’ expresses an important moraltruth and that it is the state’s proper task to seek to ensure that theguilty suffer as they deserves.

If this is true, then it becomes important to define in which cases itis not allowed to use mediation and restorative justice due to theseriousness of the case. But it should be noted that even in dealingwith blood feuds in Albania, the AFCR has had remarkable suc-cesses, and it is difficult to think of more serious cases than bloodfeud murders.

I should also mention an experience I once had in a town inUganda, when I visited the State Attorney’s office. I wondered why somany cases brought before the Magistrates’ Court had been with-drawn by the prosecution. This had even happened in a murder case.I suspected some sort of corruption but the filings showed anotherstory. The incident had happened on one of the small islands in LakeVictoria, where local fishing communities struggle to survive. Themurder was committed by a brother of the victim in a drama ofjealousy. The police had little doubt about what had happened. But itwas impossible to get anybody to give evidence. As the Attorney said:

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‘The family has lost one son, we all know they can’t afford to lose onemore to see him in prison.’

But it is one thing to deal with crime in a fishing village on anisland in Lake Victoria, or a vendetta in a mountainous area innorthern Albania. It is quite another thing to deal with crime in amajor metropolis, where people are foreign to each other. In such acontext it is obvious that most criminal cases will start with the po-lice, and that alternative conflict solving bodies will in general bedependant on decisions made by police and prosecution to divertcases from the ordinary court system to the alternative system.

What should the rules be for such decisions? And what kind oflegal safeguards should be in place to ensure that those extremelyimportant decisions are made in accordance with the rules? There willbe a need for legal norms to guide such decisions. Some minimumstandards for a fair process will be required. And this raises thequestion of the presence of lawyers.

These kind of questions are among those dealt with in this book. IfI should highlight just one of the chapters, it would be JoannaSharpland’s ‘Restorative Justice and Criminal Justice: Just Responsesto Crime?’ It is an article rich with examples of functioning restor-ative justice Programmes. But at the same time, it provides a solidreminder of the many difficulties, which remain unresolved and needto be resolved if restorative justice is to be part of a mainstreamresponse to crime in a developed, modern society.

I mentioned in the introduction the incident I witnessed in theyouth institution Skejby. I was then and still am doubtful whether thesanction agreed upon that evening was legal. Forced hard labour wascertainly not a sanction prescribed in the rules of the Prison andProbation Service. But as it was a result all directly interested partiescould support it somehow struck me as a right and legitimate out-come. It would have been most unfortunate if anybody beset with alegal mind would have raised questions regarding public law, andwhether the decision would be defendable if a complaint was sent tothe Ombudsman. If you accept the philosophy of restorative justiceyou will also have to accept that those directly involved must havewide discretion to make their own rules as long as they can agree.

How this can be organized in an orderly manner is the challenge.And even if Restorative Justice and Criminal Justice doesn’t providedefinitive answers to many questions, it gives a good deal to thinkabout. Which is necessary for all us working in the legal sector when anew movement in justice has occurred.

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