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It works. So, why don’t people use it?

26 July 2013

Restorative justice has been tried and tested, argues Martin Wright, but it needs to be applied


Incarceration - or an alternative? An aerial view of HM Prison Wormwood Scrubs

Incarceration - or an alternative? An aerial view of HM Prison Wormwood Scrubs

A government minister, Jeremy Wright, recently raised hopes of a new approach to criminal justice for England and Wales based on restorative justice.

Disappointingly, it is being introduced half-heartedly. The Opposition is attacking it for the wrong reasons; the voluntary sector seems to have no clear strategy for making it happen; and it could fall into the lap of profit-oriented companies. But faith-based groups could fill the gap, and help to transform the system.

Restorative justice is based not on "returning evil for evil" but on healing the harm, and, where possible, enabling the victim to tell the offender the effects of the crime on him or her, and to ask questions. This can be an eye-opener to the offender. Unlike the adversarial nature of a criminal trial, this process encourages empathy on both sides, although, of course, it doesn't guarantee it.

Restorative justice works better in more serious cases, including violence, where there are more emotions needing a response; but the Government's 15 experimental neighbourhood-justice panels, which have no central funding, are focused on relatively minor anti-social behaviour, some of which may not even be criminal.

Opportunities are being missed. The Crime and Courts Act 2013 allows prosecution to be deferred to allow for compensation, donation to a charity, or disgorging profits from the offence. But it applies only to corporate offenders such as firms, not to individuals; and there is no opportunity for victims to meet the directors in person (rather than underlings or lawyers), to tell them, face to face, the human effects of their mis-selling of insurance or pharmaceuticals, or their pollution of the environment.

The Act also allows sentencing to be deferred to give an opportunity for restorative justice. But prosecutors, probation officers, and courts cannot refer cases to restorative justice if no service is available locally to provide it. 

WHERE restorative justice has been introduced, for example in the Thames Valley, it is working well. So it is disappointing to see it criticised for the wrong reasons. In April, Yvette Cooper, the Shadow Home Secretary, complained about the number of cases being dealt with by community resolution.

It is odd to see saving police time and paperwork presented as somehow dubious. Police used to have to choose between charging someone (possibly leading to a "crime cleared up", but saddling the person with a conviction), or recording an unsolved crime (bad for statistics), or taking no further action. Now "restorative disposals" can count as positive outcomes, which are good for community cohesion, besides saving police and court time on minor cases.

Prosecution is not necessarily the best response to wrongdoing. Even crimes labelled "violent" do not all cause serious injury. They often involve former friends, neighbours, or colleagues, and mediation can help get them back on speaking terms. Indeed, applied at an earlier stage, it might have prevented the violent outburst.

After crimes by a stranger, victims commonly want to know "Why me?' Hate crimes (attacking people merely because they are black, gay, disabled, foreign, or otherwise different) arise from ignorance and stereotyping, and a restorative process is better suited to overcoming these than conviction and punishment.

Criticism is often based on misconceptions, such as a Daily Telegraph headline: "Violent offenders avoid courts with soft on the street justice" (30 April).

Restorative justice is not concerned only with offenders but also with victims, who consistently give it high satisfaction ratings. It doesn't aim at controlling crime by fear of judicially ordered pain, but by the pain of recognising the harm caused to another person.

If an offender agrees to make reparation, for example by community work, the community will have to provide suitable and properly supervised tasks - not degrading ones, but activities by which he or she can gain self-esteem and the approval of the community.

One victim of street robbery asked that her attacker do something to make him realise that others were less fortunate than him; a placement was found at a project where disabled children learnt to ride.

Other offenders cleared junk from a river in south London; although the work was hard and cold, it was not chosen for that reason, but because they could feel a sense of achievement.

What many victims want most is that offenders should not "do it again"; many offenders need skills (including literacy), anger management, addiction therapy, and so on, and these have to be available to them, together with the basics such as accommodation and work.

USING restorative justice for domestic violence is more complex; it certainly needs handling with caution. But the UK is lagging behind several Continental countries that use it widely, notably Austria, where a study in 2010 by Dr Christa Pelikan found that 83 per cent of the women who responded lived free of violence after the mediation experience.

Of these, 80 per cent said that restorative justice had contributed to this result, mostly by making them feel stronger and more assured about their rights; and 40 per cent stated that their partner had changed as a result of going through mediation.

In a typical case, where the man had abused his partner verbally and physically, the restorative process made her feel empowered to take control of the situation. He agreed to attend a behaviour-change programme, and found that he was pleased with his new lifestyle.

In another instance, the meeting strengthened the woman's determination to leave her abusive partner; but they were able to agree on separation, and on custody of the children. Dr Pelikan states that it is simplistic to claim a "success" rate of 83 per cent; restorative justice is not a cure-all, but needs the support of other measures.

THE big question is who will make it happen? The probation service, now being severely cut, is unlikely to have the time. Freelance facilitators cannot guarantee continuity, and have no structure for support and supervision. The commercial sector operates to values that have little in common with restorative ones.

In the age of the Big Society, conflict resolution and restorative justice could be provided by local mediation services in each locality, overseen by a national NGO. Many cases can be handled by trained lay mediators (as in Norway, Finland, and the Netherlands, and in some places in the UK), others by staff. If the Government is serious about restorative justice, there should be a mechanism for funding it from the resulting savings in other parts of the system (a new adaptation of payment by results).

We need a strategy to spread better understanding of restorative justice, and the impetus to put it into effect. About 30 years ago, many local groups were formed to spread victim support. With guidance from a national body, such as the Restorative Justice Council, could local faith groups and others do the same thing, taking up the challenge by helping to set up mediation services nationwide?

Martin Wright was formerly director of the Howard League for Penal Reform, and is a founder member of the Restorative Justice Council.

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