Criminal justice systems are under constant strain. Rising case loads, crowded court dockets, growing prison populations and high recidivism rates have resulted in growing frustration with systems which have been criticized as being expensive, out of date, complex, unfair, slow and lacking regard to victims of crime and to the public generally (Law Reform Commission, Western Australia 1999:para 1.1). One consequence of these criticisms has been a search for different and innovative methods of dealing with crime and associated social problems (Freiberg 2001; Wexler 2004:86; Daicoff 2006).
In a number of common law countries, theories and practices of restorative justice and therapeutic jurisprudence have developed, creating more inclusive, optimistic and positive frameworks for justice systems and transforming the ways in which public and private dispute resolution systems are conceived of and operate. In these jurisdictions, the growth of interest in different modes of dispute resolution reflects a deep disenchantment with the traditional, confrontational techniques that are inherent in the common law adversarial system. Though therapeutic jurisprudence and restorative justice are the best-known of such theories, they are not the only ones to have been developed, articulated and practiced. Others, including appropriate dispute resolution, comprehensive law, creative problem solving, holistic law, problemsolving courts, managerial justice and multi-door courthouse theory have been influential in shaping public policy and legal education (Daicoff 2006: 1-2).
...The purpose of this paper is to build upon this developing body of work which suggests, in essence, that necessary changes or improvements to the adversarial system are not to be effected by adopting elements of the inquisitorial system through some form of convergence, but rather by adopting and developing some or all of the philosophical and practical innovations that have emerged in the common law world. It argues that many of these innovations could be considered by the inquisitorial system, albeit with due regard to the historical, political and cultural differencesbetween the systems (McKillop 2002:49). Because this paper does not suggest the hybridization of adversarial and inquisitorial justice systems but their transformation, these new paradigms might be termed ‘post-adversarial’ and ‘post-inquisitorial’
... Elements of a non-adversarial justice system
What is ‘non-adversarial justice’? Briefly described, non-adversarial justice is an approach to justice, both civil and criminal, that focuses on non-court dispute resolution but includes processes used by courts that may not involve judicial determination and court processes that involve judicial officers both pre- and post-determination of guilt or sentence in exercising more control over process. Its basic premises are prevention rather than post-conflict solutions, cooperation rather than conflict, and problem solving rather than dispute resolution. The aim is truth-finding, rather than dispute determination, and it adopts a multidisciplinary rather than a legally focused approach.
Daicoff (2006) has suggested that non-adversarial approaches to the law have emerged for a number of reasons: a change from Enlightenment values of certainty, autonomy, individualism and personal rights to post-modern values of uncertainty, connectedness and group values, as well as the development of various jurisprudential theories (legal realism, feminism and critical legal studies). Personal and professional
disillusionment with the conflict-based theories and practices of law has also led to the search for more effective, productive and satisfying means of resolving disputes and solving legal problems.
In Non-Adversarial Justice we identify a number of elements of a non-adversarial justice system, some of which are more applicable to the inquisitorial system than others (King et al 2009: Chapter 1). They are (1) the relationship between public and private interests; (2) the relationship between the court system and the broader justice system; (3) the difference between problem-solving and dispute resolution; (4) theimportance of process as well as outcome; (5) the importance of partnership; (6) the role of judges; (7) the importance of inter-disciplinarity and (8) the need for a comprehensive approach.
...Non-adversarial justice sees the justice system as more than the operation of courts. Though courts are an important forum for the resolution of disputes, they are not the only mechanism for so doing. It has been shown that many, if not most, disputes are settled prior to a formal court hearing. The growth of non-adversarialism can be discerned in both the formal and informal justice systems.
...Non-adversarial justice attempts to move beyond the presenting legal issue to focus upon other dimensions of the problem that may have engendered a legal dispute. The development of problem-solving court courts in the United States, Canada, the UK, Australia, and elsewhere is evidence of the failure of social services and traditional court systems to cope with major social problems.
...Neither adversarial nor inquisitorial systems lack in specialized courts be they juvenile courts, administrative courts, financial courts, commercial courts and others. However, specialized courts, which deal with relatively narrow classes of legal dispute, are not the same as problem-solving courts, which require, but are not limited to, specialization.
...Over recent years there has been an increased emphasis on the importance of process in compliance and recognition of the importance of the expressive functions of law and the role of trust in criminal justice. Procedural (or natural) justice refers to the ways in which decisions are made and their fairness. Procedural justice is regarded as important not only as a means of ensuring that decisions are accurate, but also byattempting to ensure that participants feel that the dispute process has been fair and open (Lind and Tyler 1998); engendering more confidence in the operation of the justice system. Therapeutic jurisprudence regards the principles of procedural fairness in the work of all agencies involved in the criminal justice system as important, not only the courts. Perceptions of unfair or unequal treatment are a major contributor to dissatisfaction with the operation of a legal system (Burke and Leben 2007:3).
...Restorative and therapeutic forms of justice have much in common, in particular their approaches to victims and offenders (Braithwaite 2002). It is in the area of restorative justice that there has been the most convergence between adversarial and inquisitorial systems and where European developments are most similar to those in the United States, Australia, the UK and elsewhere.
...There are various forms of restorative justice, including group conferences, sentencing circles, healing circles, victim-offender reconciliation and mediation programs and others. There are a number of important non-adversarial elements to restorative justice processes. First, there is the element of party control, but in a noncourt setting. The stress is on community, not courts. Second, there is the focus on addressing some of the factors that may have produced the conflict. Third, there is theemphasis on narrative and dialogue in a generally supportive setting. Fourth, there is the focus on the victim as victim, not the state as the surrogate victim of crime: restorative justice recognizes the emotional effect of crime on victims, offenders and community and seeks healing rather than attempting to channel emotions through some abstract entity such as the state (Daems 2010). Finally, dispositional outcomes, whether they are restitution, compensation, apology, community work or other sanctions, are the product of a consensus decision, not the unilateral decision of a paternalistic, impartial arbiter.
...What are the advantages to a legal system of adopting some of these approaches? From the evidence that has emerged to date, it is likely that court systems will be more humanized and have lower workloads, victims and witnesses will be treated more sympathetically and have more confidence in the legal system, some of the underlying crimogenic factors will be addressed, offenders be empowered to change their lives, judges and legal professionals will have more job satisfaction and the role of other professions in responding to crime will be recognized.
On the other hand, it is necessary to recognize that these innovations and transformations should not result in a larger number of more coercive interventions, unnecessary net-widening and thinning, a diminution of individual autonomy and,particularly in Europe, an ‘over-judicialisation’ of minor offences that may previously not have come within the purview of the legal system (Aubert 2009).