REVIEWS
| DOI | http://doi.org/10.1111/j.1468-2230.1961.tb00673.x |
| Date | 01 November 1961 |
| Published date | 01 November 1961 |
REVIEWS
RESTITUTION
TO
VICTIMS
OF
CRIME.
By
STEPHEN SCHAFER.
[London:
Stevens
8r
Sons,
Ltd.
1960.
ix
and
130
pp.
25s.
net.]
THIS
is
the second volume of the new
Library
of
Criminology
which is being
publishcd by Stevens
&
Sons.
Its
scope is rather more limited than the
title implies, for
it
is in actuality
a
rneniorandum prepared for the Home
Office on the legislation of
a
number of foreign countries dealing with the
subject of what is gencrally called “restitution”
to
the victims of crime.
This survey
is
preceded by
a
short, indeed slight, historical introduction,
which, however, does serve the useful purpose of reminding the reader that in
primitive systcms of criminal law restitution, or compensation, has played
a
basic part, the object of the legislator being
to
induce the victim to stay his
hand against
the
offender by providing that the latter shall provide material
redress for the victim or his family.
It
is well known that in the earliest
Anglo-Saxon laws such
a
policy figures proniinently.
As
the state becomes
stronger it becomes unnecessary to rely upon this incentive and we find that
the restitution principle drops out of the maturing systems of criminal
law,
the awarding of compensation being left to the civil courts;
a
point which
is underlined in the Report of the Working Party on Compensation for \’ictiri:s
of Crinics of Violence.’
This is no doubt
a
satisfactory theorctical solution of the problem, but
practically it has
a
very limited value, since on the whole criminals are not
worth the “powder and shot” which has
to
be expcnded in attacking them in
civil courts, and even when criminal courts arc empowered to make orders
against than for compensation these are scldom worth asking for. This
must have been realised by the victims at an early period after the conditions
of criminal administration had changed, but their grievance appcars for long
to have attracted singularly little comment. Indeed, it is not till the coming
of modern criininology in the nineteenth century that voices bcgin to be
lifted demanding reparation for the victims of crime.2 Since then there has
been
a
fairly constant, if nut very effective, prcssure from criminologists
to
this end: and thcrc can be little doubt thnt it was hrgely due to the
efforts of Miss Margery
Fry
in this country that the Home Secretary set up
his Working Party to report on the whole problem of compensation in these
eases.
Although in commissioning this report from
Dr.
Schafer the Home Office
must have had in mind that it would be useful to their Working Party, or
nt
any rate the report must have been available to them, since the preface to
this book is dated July
1960,
and the report did not appear until December
of that year, the foreign experience set out and exaniined by Dr. Schafcr is not
*
Cmnd.
1406
(1961).
2
According to Dr. Schafer the first
of
these is Bonneville de Marsangy in
1847
whose
proposals
are referred to in Edwin
A.
Sutherland’s
Principles
of
Criminology.
3
The ironic comment
o!,
M.
Prins at the Paris Prison Conference of
1895
is
worthy
of
quotation: The guilty man lodged, fed, clothed, warmed, lighted,
entertained, at the exptse
of
the state in a model cell, issued
from
it with
a
siim
of
money lawfnlly
earned,
has paid his debt to society; he can set his
victims at defiance; but the victim has his compensation: he can think that
by
taxes
he
ha8 paid to the Treasury he has contributed towards the paternal care
which has guarded the criminal during his stay in prison.”
See the note on lhis Report at p.
744.
803
804
THE MODERN
LAW
REVIEW
VOL.
24
made use of by them. This may be because their terms of reference were
limited to the consideration of Miss Fry's proposals, but even within that
rather narrow field some of the foreign legislation is very relevant, and the
complete ignoring of it in the report is, to say the least, peculiar.
Dr.
Schafer is a Hungarian lawyer with
a
special interest in criminology4
who took refuge in this country in
1956.
He was obviously given an inade-
quate amount of time for his unusually wide survey which required him to
enlist the help of many foreign embassies, and of criminal lawyers and crimino-
logists living abroad
:
moreover,
he
was writing in
a
language with which he
was clearly not altogether familiar. His work is, accordingly, defectide both
in respect of contents and presentation
:
nevertheless, Considering the handi-
caps under which he laboured, the report is a useful and helpful piece of
work which brings out the difficulties of the problem, and shows that no
country has
so
far succeeded in tackling them successfully.
After his survey of the historical background Dr. Schafer introduces us
to the substance of his work in
a
short chapter on aims and methods. The
main points to which he directed his attention were: how far legal rights to
restitution exist, and whether they extend beyond actual material injury;
what courts have jurisdiction and what are the essential points of procedure
in them, particularly, can the criminal courts themselves take cognisance of
these matters? how far is an award of damages a punitive element in the
sentence? against what assets can the victims enforce their claims?-this
from
a
practical point of view is the very core of the matter, and involves
a
number of important subsidiary points, particularly that of remuneration
for
work in prison; and finally,
a
general survey of how restitution works in
practice. These are the points in respect of which the legislation of the
various countries covered by the survey is examined.
The survey was world-wide, extending to no less than thirteen areas of
the world, in most of which the legislation of
at
least two states is sum-
marised. In Northern Europe, which is generally considered to be in the lead
as
regards the solution of penal problems,
Dr.
Schafer discusses all the four
countries situated there, but actually nothing very revolutionary emerges.
Indeed, it may be said in general that in spite of the importance which
criminologists have attached to the subject few states have made genuine
and substantial efforts to deal with the problem. Many have been content
to adopt the so-called adhesion procedures, first apparently worked
out
in
Germany, under which the tribunal which adjudicates upon
a
criminal charge
is given jurisdiction to award civil compensation, thus obviating the need for
a dual process. An obvious element in such
a
procedure is
a
provision
under which the adjudicating criminal court may order the stolen goods
or
other
corpus
delicti
to be returned to the victim, and such provision is found
in the legislation of
a
number of countries which do not adopt the adhesion
process, notably the United Kingdom and some of the other states of the
British Commonwealth as New Zealand and some Australian states.
The effectiveness of awards made under the adhesion process,
or,
indeed,
under any jurisdiction, depends on the assets of the criminal, which are
usually
so
small that the victim makes
Iitffe
effort to enforce his judgment.
Here and there prisoners are enabled to earn substantial wages during
imprisonment, and
a
proportion of these may be made available for com-
pensating their victims. France is one of the few countries where within
rather narrow limits such
a
policy has been adopted: although the victim
comes at the end of
a
long queue of claimants who have priorjty over
him,
such
as
the state which
has
to
be satisfied in respect of its legal costs and the
prisoner's maintenance, and when certain personal purchases and payments
to his family have been made, the balance may be made available to com-
pensate
a
victim who has established "his claim to this fraction of the
4
See
his
I'
Some Basic Principles
of
Hungarian Criminal Law,"
22
M.L.R..
164.
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