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Restorative justice and due process protections

Foley, Tony
June 4, 2015

Source: (2008) paper presented at Bringing Justice and Community Together conference sponsored by Victorian Association for Restorative Justice14 May 2008, Storey Hall, RMIT University, Melbourne, Australia.

This paper reports on the approaches taken to protect procedural due process in restorative practices in a number of jurisdictions in Australia and overseas. It addresses these in terms of a number of common misconceptions.
Concern has been expressed by those involved with the practice and theory of
restorative justice that participation in such programs in the case of criminal wrongdoing may compromise the rights of offenders by ‘impoverishing the procedural guarantees’ built up in formal legal proceedings over many years which act ‘as a brake against state power and overzealous prosecution’ (Delgado 2000). It is indeed important that the relative informality of restorative practice does not mean such protections slip when an offender accepts an alternative sentencing scheme. The paper compares how some core due process protections are maintained in various jurisdictions. Three specific misconceptions are addressed about: 1)The gateway to restorative justice – the effect of the trigger of acceptance of
responsibility or pleas of guilt; 2) The working of conferences – the admissibility of disclosures; and 3) Participation in conferences – the role of lawyers. (Excerpt)


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