Summary SJD1501 STUDY NOTES.

SJD1501 STUDY NOTES. Social Dimensions Of Justice. What do we mean when we refer to restorative justice? Unlike retributive justice, that sees the offence committed as an act against the State, restorative justice is based on a concept of justice that regards crime and wrongdoing as an offence against the individual and the community, with less emphasis on the involvement of the State. Restorative justice is an approach to justice that focuses on the needs of both offenders, victims, and the community that is affected directly by the crime. You will see that the focus of retributive justice and restorative justice is therefore different. Can you see the difference? You may recall that in learning unit 3, we explained that it is the State that prosecutes those who commit crimes and these acts are seen as acts against the State. In restorative justice the State steps back to allow the community, the victim and the offender to collectively deal with the matter and avoid State sanctioned punishment. How would this be practically applied in the criminal justice system? One example of the restorative approach includes mediation between a victim and the offender as a requirement of the rehabilitation of an offender. This approach attempts to restore the imbalance and harm to society as a result of the crime. It also aknowledges that both the offender and the victim are harmed by the crime. 4.3 A crime is reported… and the system responds By now, you will realise that the criminal justice system is a combination of interrelated, interdependent and interacting components of a very complex system. When a crime is committed a series of actions are triggered, from the moment that either the crime is discovered or reported. This is where one by one each component of the criminal justice system is activated. In other words, the criminal justice system prepares itself to deal with the crime that has taken place. When this happens, the cogs of justice are set into motion. Some of the functionaries or role players which we referred to in Unit 3, now come into the picture. The functionaries that are responsible for these actions are 2 •members of the South Africa Police Service •the prosecution, in other words representatives of the National Prosecution Authority •the courts, including the presiding officer (judges or magistrates); and those people who have to present the case to the presiding officer such as the public prosecutor, and those legal representatives defending the offenders such as lawyers and advocates; and •members of Correctional Services. When these cogs are set in motion this activates the criminal justice process. If we look at these processes, we see that each group of functionaries has very specific role and responsibilities linked to the componant of the criminal justice system in which they work...in other words each group performs a spesific function within the system. The result is that each component is dependent on the previous one. For example, if the police do not respond promptly and prepare a strong case against the accused, the prosecutor cannot successfully prosecute the offender, and if the magistrate ultimately makes an error in judgement, an innocent person may be convicted or a guilty person let off without punishment. If the prosecutor does not make a strong case against the accused the magistrate may be unable to find the accused guilty. If the magistrate does not find the individual guilty, he cannot hand down a sentence or punish the accused. We will explore these complex interactions in more depth in the rest of unit 4 and 5. 4.4 The phases of the Criminal Justice System When the cogs of justice are activated three successive phases come into play: •the pre-trial phase, •the trial phase, and •post-trial phase. In the following diagram the different phases in the criminal justice process are shown. In this learning unit (unit 4) we look at the pre-trial phase of the criminal justice system (CJS). The trial phase and the post-trial phase are dealt with in following learning unit (unit 5). We will start by looking at those role players who set the wheels of justice in place. These functionaries ie the Police (SAPS) are responsible for the enforcement of the laws that we discussed in unit one and for the protection of society. The following role players are the prosecution or our National Prosecuting Authority (NPA). They all function on a pretrial level. This means that they do all the work necessary to bring a matter to court. After this we talk about the trial phase. 4.5 The role of the South African Police Service (SAPS) We are going to use a story to show the process that is put in motion once a crime is committed. The story is based on a crime that takes place in one of our suburbs, a very common occurrence in our society. Keep the following questions, to which we will return again in this unit, in mind when watching the story: •Who are the role players in the story? •What role do they play in the criminal event? •In the case of official role players, who or what gives them their mandate to do their work? •What happens if they do not fulfil their roles properly? 3 4.5.2 The reactive functions of the South African Police Service You were asked to explore the web site of the SAPS. After browsing this website, you may have a clearer picture of the role and functions of the SAPS. The web site shows some of the proactive functions of the SAPS as: The website shows SAPS proactive functions such as: •the prevention of crime •the dissemination of information with regards to crime •the implementation of safety measures in society. Thus we see that the proactive function includes all those duties of the police which attempt to prevent crimes from taking place. On the other hand, the reactive function of the police involves all those activities that take place after a crime has occurred. Because in our story the crime has already taken place we will only focus on the processes that will still take place. In the next section we will explore how the SAPS reacts to crime. Let us return to our question on who or what the SAPS is: You may have noted from the proactive functions of the SAPS that it serves the entire nation and every member of society. The SAPS is a government agency and is organised into different divisions. The popular image of the policeman patrolling an area is only one small part of the functions of the SAPS, namely that function that relates to visible policing. The SAPS consists of many divisions, which include, amongst others: •crime intelligence •detective services •criminal record and forensic science services, and •a national inspectorate. The head of the SAPS is called the National Commissioner. This is the most senior rank in the SAPS. Dealing with crime The focus of our discussion on the reactive functions of the police looks at the following themes: •How should the police deal with evidence in a professional and ethical way, and why? •How should the police deal with victims, and why is it so important to engage with victims in a humane way? •How the interdependent relationship between the police and the community works? •What other role players are involved in the prevention of crime? Why do we need them in our society? •Which guidelines regulate what the police does? In our story we have shown you a very simplistic snapshot of the immediate reaction of the police to a crime scene. We have asked you to reconstruct the events by making notes considering certain questions. It will be a good idea to add to your notes as you work through the next sections. Although we generally refer to the police as if they are a homogeneous group, you may have noticed the many roles and responsibilities that they have from the previous discussion. We see that the wide range of functions that the SAPS fulfils, includes and necesitates the involvement of many different disciplines and specialities. This is also clear from the crime scene in our story. The SAPS employs many specialised people, each fulfiling a unique function and have a spesific role to play, such as investigating officers, forensic experts, profilers, and psychologists, to mention a few. 4 Some interesting reading Two interesting biographies have been published of South Africans who have been involved in the police. The one is a book about the professional career of David Klatzow, a forensic scientist. The other is based on the story of Piet Byleveld, according to the publisher, one of the best detectives in the history of the South African Police Service. These two books may introduce you to alternative views of the world of our police service. Another interesting and informative book about the role of the police in our criminal justice system is Thin Blue – The unwritten rules of Policing South Africa, written by Jonny Steinberg. When we said in our introduction to our crime story above that it shows a very simplistic depiction of the police in action, we meant that the real position is far more dynamic and complex than one can imagine. This becomes clear from the three non-fiction books by Klatzow, Retief and Steinberg. The importance of evidence Now back to our story. As soon as the police arrive at a crime scene, they secure the scene. By this we mean that: •they ensure the safety of the scene for all involved; and •preserve evidence or potential evidence at the scene, ensuring that it is not tampered with, damaged or destroyed. These are all pro-active measures aimed at ensuring that the evidence can be used to prove guilt, or establish the truth or falsehood of claims, if necessary later in the trial process Objective and subjective evidence •Objective evidence: is hard evidence that is easily substantiated by forensic testing. Thus objective evidence is factbased such as blood that can be matched by DNA testing and fingerprints on the firearm that can be matched to the accused persons. •Subjective evidence is based on personal observations, opinions and feelings and is therefore open to interpretation. Thus the reliabilty of witness testimony should always be considered carefully. For example, what the witness hears someone saying may influence their recall of the incident. It may even be subject to human error and therefore, a twisted view of what has really happened may influence important decisions. Criminal cases may stand or fall on the grounds of evidence and manner in which evidence is gathered during the pretrial phase. An example of a poorly investigated case The murder case of the top Stellenbosch student, Inge Lotz, who was found murdered in her apartment in 2005, attracted a lot of media attention, as the accused in this case was the boyfriend of Inge Lotz, Fred van den Vyver. The particular manner in which evidence was handled in this case, both during the pre-trial and trial stages, was severely criticised. Let us look at images of some of the evidence in this case. The cause of death was found to be that of blunt force trauma. The search of the crime scene revealed very interesting evidence as you will see in the images below. 5 One of these pictures shows a bloody shoe impression left on the bathroom floor. As mentioned, Fred van den Vyver was charged with Lotz’s murder. It was alleged that he killed Lotz with an ornamental hammer that the Lotz family had given to him as a gift. A police examiner testified that the shoe impression left in the bathroom was that of Van den Vyver’s athletic shoe. Van den Vyver was later acquitted of the charge of murder. Despite a defence account of more than 10 million Rand, the Lotz case, described as a “forensic fiasco” by the author of “Steeped in blood”, Klatzkow (see above), was said to have failed justice to both parties. Many accusations were made of the unethical conduct during the criminal investigation process. For example, it was claimed that police officers deliberately lied about certain facts, which, if known, would have meant that Van den Vyver would not have been prosecuted. The following link provides some detail in this regard: Admissible and inadmissible evidence At this point it is also important to note that the above kinds of evidence are not the only types of evidence that are relevant in the criminal justice process. Although this unit focuses on the pre-trial process, we would like to point out that when a court actually considers the evidence in a criminal case, a distinction is made between admissible (allowed) and inadmissible (not allowed or irrelevant) evidence. One example of inadmissible evidence is hearsay evidence. As witnesses may testify only about facts that they themselves experienced, hearsay evidence which is information that others have told them, will as a rule not be admissible in criminal cases. For example: A rumour that Mr A has bought a new BMW from the proceeds of illegal activity will not be admitted as evidence in court, but may be relevant during the pre-trial phase as part of an investigation into Mr A’s, as a suspect’s, alleged criminal activity. When Mr A is formally charged of a crime, he will in addition to being a suspect, now be refered to as the accused. The term “accused” is new and we need to explain this to you. The term “accused” is a formal legal term that refers to a person who is charged with a crime in formal criminal proceedings (the criminal trial). In order to be an accused, the person so charged must be formally charged and accused of committing a crime. A crime, as you will recall from unit 3, is conduct which is punished by the State on behalf of the community and which is regarded as a transgression of legal rules which bind an entire community Activity 4.1 – online ACTIVITY 4.2: Early reflections on the effectiveness of the police Compile a document of between 800 and 1 200 words in which you reflect on the issues below. 1.Make a few notes of your impression of the Lotz case and the manner in which the evidence was handled. Do you think that the case may have had a different outcome if the evidence was handled and presented differently? Provide reasons for your answer. 2.After reading the discussion on the Lotz case, briefly write about your view on the way in which the police fulfilled their obligations to society in this case. Remember to keep your notes because your impressions will influence your contribution to the discussion forum and your final assignment at the end of this module. 6 4.6 Victims of crime Earlier we asked you to identify the possible victims in our story. When ordinary community members come into contact with the criminal justice system for the first time, the experience may be daunting and the processes difficult to understand. This contact may be as •a victim •a person suspected of a crime (suspect) •an accused of a crime (term explained above), or •a witness to a crime. The experience may even be that of an offender, the person who perpetrated the crime. Primary victims In our story, the guard, Thomas, who is killed, is an example of a primary victim. His death is the direct result of the punishable conduct (crime of murder) of the offenders. A primary victim is hence the relevant person who suffers directly as a result of the commission of the crime. Secondary victims All those who witnessed the crime in our story, namely Peter, Sue, George, Thandi and Moitsadi, community members who were all busy with their early morning workout at the time of the crime, are secondary victims. They may all experience possible trauma in their own unique way. Some more sensitive persons may be terribly traumatised while others may have experienced previous trauma and may desensitised. The trauma may be compounded if they have to testify in the criminal case that may follow in our story. They may be retraumatised by having to relive the crime that they experienced through their testimony. Let us look at some examples of secondary victimisation in the criminal justice process. Secondary victimisation often starts long before the court process starts, for example already when the victim first reports the crime to the police. •Victims, especially women and children who are victims of sexual assault (among other crimes), may face the disbelief of the police to whom they report the crime. •Victims may be blamed for the crime such as woman walking alone late at night or wearing revealing clothing. •Both police officials or friends and family may discourage secondary victims from reporting the crime. •The victims may be further traumatised if officials fail to provide them with private waiting or report-taking facilities. •If victims are not informed of court procedures and are left uninformed about court procedures and evidence, this may further cause stress, not to mention the stress of being confronted with the presence of the offender in court. Acknowledging the victims of crime The trauma resulting from a crime may affect victims in such a manner that they struggle to cope with and recover from the experience, in other words, crime often disempowers victims of crime. The effects of trauma will differ from individual to individual, depending on the type of crime, life experience and resilience of the victim, as well as coping mechanisms within the victim. Victims are also often further disempowered by the cold and clinical nature of the justice system and its processes.