Jonathan Doak

The Therapeutic Dimension of Transitional Justice: Emotional Repair and Victim Satisfaction in International Trials and Truth Commissions

This article examines the capacity of two major transitional justice mechanisms, international criminal trials and truth commissions, to provide a measure of emotional repair to the victims of some of humanitys most serious criminal acts. It is suggested that transitional justice processes often afford inadequate attention to the needs and rights of individual victims; but that four antecedents - account-making; truth-finding; justice and deliberative encounter may make some contribution to unlocking the therapeutic potential of these processes. While trials and truth commissions may both continue to play key roles in transitional settings, such processes should be conceived as individual elements of a more complex package of measures that should be put in place to propel peacemaking and healing at both individual and societal levels.

The Vengeful Victim? Assessing the Attitudes of Victims Participating in Restorative Youth Conferencing

The task of delineating an appropriate role for the victim in the criminal justice system has been the subject of considerable debate in academia and policy circles for some time. While victim participation is considered something of a sine qua non of the restorative paradigm, many commentators remain sceptical of victim input in conventional sentencing on the grounds that it may lead to the imposition of overly harsh or onerous obligations. Drawing on evidence from a major evaluation of youth conferencing in Northern Ireland, this article challenges the assumption that victims are essentially punitive parties, and calls for a rethink of some of the fundamental values and assumptions that have traditionally resulted in their exclusion and even alienation in the criminal justice system.

More than words : restorative justice concepts in transitional justice settings

This article considers the applicability of restorative justice literature in the transitional justice arena. The authors argue that while restorative justice is applied to a wide range of conflicts, the established literature is often of limited value within a transitional context. Insufficient attention is often paid to the inherent difficulties in importing theories, concepts and practices designed for the context of ‘settled’ societies into post-conflict environments. Significantly more consideration needs to be given to the practical operation of transitional justice mechanisms, as well as their underlying normative bases, so that they might live up to the claims of many commentators that transitional justice is ‘restorative’.

Honing the stone: refining restorative justice as a vehicle for emotional redress

Commentators have frequently claimed that restorative justice (RJ) programs hold the potential to deliver therapeutic outcomes. However, if we are serious about integrating a therapeutic agenda into criminal justice, our current understanding of the mechanics of RJ is incomplete. Having established a case for doing justice better, proponents of RJ now need to think in much more concrete terms about the ways in which the process is designed in order to reap a tangible sense of forgiveness, reconciliation, and closure for victims of crime. From the evidence to date, it is suggested that there are four ‘keys’ which may be used to unlock the therapeutic potential of RJ. These are: (1) personal narratives; (2) apology; (3) forgiveness; and (4) procedural justice within restorative programs. A major challenge for future research in the area is to attempt to measure how these aspects of RJ operate at a micro-level to transform emotions.

Restorative Justice and Youth Justice: Bringing Theory and Practice Closer Together in Europe

Restorative justice can be viewed as a victim-centred approach which conceptualises criminal behaviour in a very different manner from which it has been traditionally conceived within orthodox models of criminal justice. In recent years, it has come to exert an increasingly strong influence over juvenile justice systems as policymakers have become increasingly concerned about the capacity of the traditional criminal justice system to deliver participatory processes and fair outcomes that are capable of benefiting victims, offenders and society at large.

EU Tools for the Protection of Victims of Serious and Organized Crime

Traditionally the European Union has been somewhat reticent in proposing specific rights for crime victims. That position changed significantly with the adoption in 2001 of the Framework Decision on the Standing of Victims in Criminal Proceedings which set down legally binding rights for victims and corresponding obligations on Member States to protect victims from primary and secondary victimisation. Whilst representing an important step forward in securing protection for victims, the Framework Decision has also been seen to fall short of its objectives in various respects. This has resulted in proposals for legislative reform including the introduction of the European Protection Order and the adoption of the draft Directive establishing minimum standards on the rights, support and protection of victims of crime. This chapter outlines the key rights and obligations set down in the Framework Decision and also considers the likely impact on the protection afforded to victims of the introduction of the proposed reforms.

Enriching trial justice for crime victims in common law systems: Lessons from transitional environments

The role of victims in the criminal trial has been subject to considerable critique in recent years. This article argues that scholarship and policy governing the treatment of victims and witnesses in ‘ordinary’ criminal trials within ‘settled’ societies may be substantially enriched by drawing lessons from the roles of, and practices affecting, victims within post-conflict societies. There is a clear need for policy-makers and law reformers to look beyond the familiar spheres of the domestic criminal process if the justice system is to become more effective, just and legitimate in the eyes of both victims and the wider public. This article draws on both theory and praxis on the role of victims within transitional justice, and contends that trial justice in common law systems may be enriched through centring processes on three key themes which are commonly emphasized in transitional justice frameworks, these being: (i) truth recovery; (ii) victim participation; and (iii) reparation.

In Memoriam: Dr Riccardo Montana (1976–2017)

We were deeply saddened to learn of Dr Riccardo Montana’s untimely death in January 2017; many readers of the journal will be aware of his work in in the field of comparative criminal procedure. Riccardo obtained his first degree in Law from the University of Pavia (Italy) in 2003, before completing an LLM at Cardiff Law School in 2005. Here he went on to pursue doctoral research under the supervision of Professors Stewart Field and David Nelken. Riccardo’s research was based on a socio-legal study exploring the working practices of the Italian prosecutor, and was based on 50 interviews with prosecutors and other legal practitioners. During the course of this project, he began to develop an abiding interest in comparing criminal justice. More specifically, he sought to use the concept of legal cultures to understand the way crime control agencies in different jurisdictions respond and adapt to legal and social forces. Riccardo defended his thesis with great verve and passion in February 2009. Having already worked as a tutor at Cardiff Law School and Homerton College, Cambridge University, he took up his first academic post as a lecturer at Kingston University. He was appointed to a lectureship at City Law School in 2011. Here he founded the Crime Justice and Society Research Group, which subsequently evolved into the Centre for Crime and Justice Research. Riccardo was also coordinator of the Research Training Programme for the School’s PhD students, and introduced a very popular module on Criminal Justice on the LLB programme. Staff at City remember a bright and discerning scholar who supported and inspired his students and was widely respected and popular among his colleagues. Promoted to Senior Lecturer in 2016, Riccardo made a profound contribution to the School during his six years of service. A gifted cultural mediator, Riccardo’s visiting lectures at the University of Macerata in Italy were highly appreciated by the students there. While his academic career was cut tragically short, his legacy as a fast-rising researcher will continue to illuminate the field for many years to come. His research in comparative criminal justice was original and ambitious, combining rigorous empirical methodology with a deep understanding of legal theory and comparative legal method. He published inter alia in the Criminal Law Forum (Montana, 2009a), the European Journal of Crime, Criminal Law and Criminal Justice (Montana, 2009b; 2012), and more recently in Evidence and Proof (Montana, 2016). At the time of his death, he was in the final stages of a book on the role of Italian prosecutors set in a comparative context, which he was sadly unable to complete. For those who worked with him, he was a supportive colleague who was very determined, serious and intellectually ambitious about what he did. Riccardo’s many friends in London, Cardiff, Italy and beyond remember a generous, thoughtful and sociable man who had a strong social conscience. He enjoyed sports (particularly football, basketball and rugby), politics, good food and good wine. Above all, he truly valued friendship and family, and lived his life with compassion and dignity. Our thoughts are with his parents, his wife Nadia, and his young daughter Sofia (born in November 2015).

Mastering evidence and proof: a tribute to Mike Redmayne

This Special Issue of the International Journal of Evidence and Proof pays tribute to the scholarship of Mike Redmayne, who died last year at the age of only 47 (Roberts, 2015; Modern Law Review, 2015). During the past two decades, when we were privileged to call Mike our colleague, collaborator, coauthor and friend, he produced a formidable corpus of scholarship spanning a great variety of topics in evidence, proof and criminal procedure. The contributors to this Special Issue celebrate Redmayne’s scholarly legacy in a way that will ensure its continuing influence, and which—incidentally—would have been wholeheartedly endorsed by the man himself; that is, by engaging critically with Redmayne’s arguments, following up his tentative suggestions for further exploration and developing the ideas and debates which Redmayne’s extensive publications did so much to stimulate, enliven and enlighten. Whilst necessarily selective in their topical focus and not afraid to express criticisms and contrary opinions, the following seven essays and reviews are united in illuminating the breadth, originality and perspicuity of Redmayne’s evidentiary scholarship. In the opening article, Hamish Stewart revisits the perplexing topic of the privilege against selfincrimination. Despite its venerable common law heritage and recent reinvigoration as an integral part of the right to a fair trial in international human rights law, identifying a convincing normative rationale for the privilege is no simple task (see further, Roberts and Zuckerman, 2010: chapter 13). In one of his most imaginative contributions, Redmayne proposed a novel rationale for the privilege against self-incrimination rooted in the (liberal) value of dissociating oneself from state prosecutions (Redmayne, 2007a). Stewart questions whether the argument can succeed without a more structured approach to balancing competing values, which Redmayne’s account cannot avoid without sacrificing its institutional plausibility. Whilst praising Redmayne’s argument for its humanity, creativity and practicality, Stewart suggests that a richer account of criminal procedure linking the privilege against self-incrimination with the presumption of innocence may achieve a superior reconciliation between criminal adjudication and its underlying moral and political rationales. The right to confrontation is another potent witches’ brew of common law tradition, human rights law and deeper normative obscurity that attracted Redmayne’s critical attentions (Redmayne, 2012a, 2012b), and is the subject of Liz Heffernan’s contribution to this Special Issue. Redmayne intervened in the debate shortly after the Grand Chamber of the European Court of Human Rights issued its eagerlyanticipated judgment in Al-Khawaja. Heffernan reviews the ‘Al-Khawaja saga’ and brings it up to date with the Horncastle applicants’ recent, unsuccessful, visit to Strasbourg. Tensions between orthodox common law thinking about admissible hearsay and the notion of a procedural right to confront (whether articulated on the pattern of the US Sixth Amendment, or in the more equivocal language of ECHR Art 6(3)(d)) are central to this discussion. Heffernan praises Redmayne’s interpretation of the confrontation right for its pragmatism and elegance, but also notes its vulnerability to attack for being too narrow in

Review: The Trial on Trial (Volume 1): Truth and Due Process, Litigation II: Evidence & Criminal ProcessDuffAntony, FarmerLindsay, MarshallSandra and TadrosVictor (eds) THE TRIAL ON TRIAL (VOLUME 1): TRUTH AND DUE PROCESSHart Publishing (Oxford, 2004), 202 pp, hb £45HunterJill, CameronCamille and HenningTereseLITIGATION II: EVIDENCE & CRIMINAL PROCESS, 7th editionLexisNexis Butterworths (Chatsworth, NSW, 2005), lxxxiv + 1209 pp, pb AUS

The Introduction sets out the justifications and context for the current study together with its principal aim, which is not to locate a theory of the trial within one or other procedural tradition, but ‘to develop a normative theory that is appropriate to the context in which it is formed and will be applied—the context of a 21st century state that purports to be democratic, and to respect the set of roughly liberal values that, whatever the controversies about their precise meaning and application, are the common currency of contemporary legal and political debate’ (p. 18). The chapters that follow are concerned with ‘truth’ and ‘due process’, the second volume dealing with ‘judgment’ and ‘calling to account’. In this way, the volume introduces a series of procedural, practical and theoretical questions (some, but not all of which, are tentatively answered) not to provide definitive responses, but to pave the way for the project’s eventual conclusion—the final volume.