Should the use of an alternative trial process preclude referral back to the criminal justice system? Consideration of one aspect of the Law Commission's proposal for trial process reform in cases of sexual offending

In its recent Issues Paper, Alternative Pre-Trial and Trial Processes: Possible Reforms, the New Zealand Law Commission proposed to make available some form of restorative justice process as a complete alternative to the criminal justice system in certain sexual offence cases. It also proposed that where an offender participates in an alternative process in good faith and fulfils all undertakings, the case cannot be referred back to the criminal justice system. This paper considers situations where alternative trial processes should be referred back to the criminal justice system and what should happen to material disclosed during the alternative process if referral occurs.  If restorative processes are to be used as a complete alternative to the criminal justice system, there must a “public safety override” which prioritises public safety over victim autonomy. This override will be applied by restorative justice providers, who will have the ability to refer cases back to the criminal justice system. If referral does occur, the content of the restorative proceedings should be privileged, and that privilege should belong to the offender. The fact of the offender’s agreement to participate should also be privileged.