35. Memorandum submitted by
the Restorative Justice Consortium
1. The Restorative Justice Consortium (RJC)
is the independent umbrella body for Restorative Justice (RJ)
in England and Wales. We provide information about RJ to the public,
promote the development of RJ based on the evidence available
and support our members who work in the RJ field. We are a not-for-profit
organisation and a registered charity.[133]
2. Restorative Justice processes bring victims
and offenders into communication, whether face-to-face or indirectly,
to address the harm caused by crime. RJ allows victims to tell
offenders of the impact their crime has had on them and their
families, to receive an apology and in some cases some form of
reparation. RJ gives offenders the chance to understand the impact
of their crime, to apologise and to make amends.
3. The Select Committee has asked for contributions
to the Sentencing Enquiry. Ours will focus primarily on the question
of the role Restorative Justice should play in sentencing.
What do we know about Restorative Justice?
4. The research evidence we have demonstrates
that Restorative Justice processes deliver strong benefits for
victims of crime who choose to participate. In the 1998 British
Crime Survey, 41% of victims said they would like to meet their
offenders. Evidence from studies all over the world show that
more than 75% of victims who take part in RJ processes are glad
that they did.[134]
Recent research has also shown that RJ can reduce victims' post-traumatic
stress disorder (and related costs) and their desire for violent
revenge.[135]
Our recent literature review showed that RJ increases victim participation,
satisfaction and sense of fairness.[136]
5. RJ also offers strong benefits for offenders
in terms of increased self-esteem, the opportunity to apologise
and put right harm caused and a step towards reintegration into
the community. Evidence for reductions in recidivism are more
mixed. Recent research carried out by Professor Larry Sherman,
published by the Smith Institute shows that RJ does no worse than
short sentences for youth. In studies from other countries adult
offenders diverted from prison to RJ had lower reconviction rates
than comparable peers.[137]
What we do know for sure is that Restorative Justice has no worse
a record in terms of recidivism than any other Criminal Justice
System disposal and can provide a wide range of positive consequences,
particularly for victims. RJC has drawn together research into
the impact of Restorative Justice on recidivism. This is available
on our website—details below.[138]
Some key findings highlighted in this report are:
— research into family group conferencing
showed a reduction in re-offending rates from 69% to 31.6% for
the first year sample and 7.1% in the second year;[139]
— the introduction of restorative practices
at a home for looked after children shows a reduction in offending
levels of 33%;[140]
— Retail Theft Initiative shows a drop
in re-offending from 40% to 17% using Restorative Cautioning.[141]
6. These benefits can accrue at whichever
stage in the criminal justice process RJ is used—whether
as a diversion, at point of sentence, or post sentence, when the
offender is in custody or in the community. Given this, and given
the need for RJ processes to be available to victims when they
want and are ready for them, we do not believe that the development
of RJ with adult offenders should be an either-or approach. Therefore
in addition to considering the relationship between Restorative
Justice and sentencing, this response also points to the benefits
of using Restorative Justice as a diversion from prosecution,
and post-sentence—in custody or in the community—in
appropriate cases.
RESTORATIVE JUSTICE
AT THE
POINT OF
SENTENCE
7. Around the world, many countries—New
Zealand and Canada in particular—have developed different
models for the relationship between Restorative Justice and sentencing.[142]
8. One example is a court mediation scheme
that successfully diverts defendants from prosecution is in the
State of North Carolina. It has been running has been running
for over 20 years. Judges and prosecutors encourage disputants
to attempt mediation before adjudication in district criminal
court. Both violent and non-violent misdemeanour crimes are referred
to independent, community-based organisations for mediation. The
parties do not appear before the judge and no pleas of guilty/not
guilty are taken. Typically, mediations take place the same day
parties appear for trial in conference rooms adjacent to the courtroom.
The agreement rate for district criminal court mediations averages
89% for all crimes. Reparations of up to $15,000 may be agreed
upon by the parties. If mediation produces an agreement, charges
against a defendant are dismissed. If the parties fail to maintain
their agreement, they both retain their right to have the case
adjudicated in court.
The cost of such mediations is significantly
cheaper than taking a case through the court.
9. The development of Restorative Justice
at point of sentence raises important issues, some of which were
discussed by the Lord Chancellor in 2004.[143]
He summed up:
"I have highlighted three areas for further
thinking—the balance within any one sentence, between upholding
the objectives of restorative justice and meeting other objectives
of sentencing; the tension between the principle of consistent
sentencing and personalised justice where the outcome depends
on those most intimately involved; and the requirements of the
ECHR for impartial public justice as a right for every offender.
I have outlined four safeguards which we will need to examine
to ensure the rights of everyone involved—the principle
of voluntarism, meaning that every offender has the right to return
to the `backstop' of a traditional CJS process; a quality assurance
process in place; the right to legal advice; and court oversight
of restorative processes that play a role in sentencing."
With this ground-breaking speech, the Lord Chancellor
said he wished to open up a debate about the role of Restorative
Justice and sentencing; the debate has yet to take place.
10. There are at least three ways in which
Restorative Justice can take place alongside or as part of the
sentencing process. Given the limited research development which
has taken place in this country into integrating RJ at point of
sentence, we would argue for a research pilot trailing all three
approaches and comparing the relative cost-benefits of all three.
What has already been tested and what we have learned is outlined
below.
PRE-SENTENCE
RESTORATIVE JUSTICE
11. Under the Home Office Crime Reduction
Programme, the Home Office funded Justice Research Consortium
RJ pilots in the London Crown Courts took place post-conviction
but pre-sentence. Under these pilots, judges postponed sentencing
for three weeks in order for a Restorative Justice process to
take place. At point of sentence they were only informed as to
whether RJ had taken place; they were not given detailed information
about the RJ process so that the details of what took place did
not impact on the offender's sentence.
12. These pilots demonstrated that building
RJ processes in at this point in the sentencing process can work
well. Judges expressed their support for and interest in pre-sentence
RJ.[144]
In one case, the RJ process was filmed and the judge watched the
process in it's entirety on film prior to sentencing. The Home
Office will publish full research results from these pilots, including
reconviction data, in an independent evaluation by Sheffield University
later this year.
13. These pilots in the Crown Courts also
led to two pieces of new case law setting out the relationship
between Restorative Justice and sentencing. As reported by Kate
Akester and Shari Tickell
"[The Lord Chief Justice, Lord Woolf] has
presided over a Court of Appeal that agreed to reduce the sentence
by two years because of the productivity of a victim offender
dialogue that had taken place. The meeting was attended by family
members of both parties. The Court observed that this was `by
no means a soft option' and went on to conclude that Restorative
Justice `which was designed to ensure effective sentencing for
the better protection of the public, appeared to be going at least
some way to achieving it's purpose and should be encouraged.'"[145]
14. There is still discussion as to whether
RJ that takes place pre-sentence should impact on sentence or
not, in terms of the impact this would have on offender motivation
to participate. However, this case law makes clear that—particularly
where the judge has full information about what took place during
the RJ process—participation in RJ does influence judicial
decision-making when sentencing. If the offender participates
fully in the RJ process and if they fulfil the actions they've
agreed to do with the victim, we believe it makes sense that the
offender could spend less time in prison. This is probably a good
thing in terms of prison population and the overall "success"
of imprisonment with regard to returning reformed individuals
to the community.
15. The Criminal Justice Act 2003 made provision
for deferred sentencing. Using this provision, the experience
of the London Crown Court trials could be developed by allowing
judges not only to evaluate the offenders participation in RJ
but also whether they undertook the actions they had committed
to in the outcome agreement. As Lord Falconer commented in 2003:
"Another element of the Criminal Justice
Bill is the power to defer sentencing for up to six months. This
gives sentencers the power to defer sentence in order to take
the offender's subsequent conduct into account in consideration
on passing sentence. Progress against any promises given, any
undertakings set, which might include reparation activities, can
act as a mitigating factor in sentence. We make clear in the restorative
justice strategy document that one thing a sentencer might wish
to consider at the end of this period is an offender's participation
in the restorative justice project—not just whether they
have said sorry, but whether, through keeping their promises made
as an outcome agreement with the victim, they have shown that
they really are sorry, and have mended their ways."[146]
However, the Government has yet to formally
trial the use of RJ with the CJS Act 2003 provisions for deferred
sentence.
SENTENCING CIRCLES
AND OTHER
MODELS
16. RJ can itself form the sentencing process.
This is the most radical model of RJ in relation to sentencing
and has never been tried in the UK. It is however common practice
and embedded in the Criminal Justice process in other countries.
"In circle sentencing, all the participants, including the
judge, defence lawyer, prosecutor, police officer, victim and
their family, offender and their family and community residents
sit facing one another in a circle. Discussions between those
in the circle are designed to reach a consensus about the best
way to dispose of the case taking into account both the needs
of the community and the rehabilitation of the offender."[147]
SENTENCED TO
RESTORATIVE JUSTICE
17. RJ can also form part of the sentence.
This takes place in the Youth Justice System in the form of Referral
Orders, introduced by the Youth Justice Criminal Evidence Act
1999. The courts now refer all young offenders (aged 10-17) pleading
guilty and convicted for the first time, to a Youth Offender Panel,
providing they are not given custody, an absolute discharge or
a hospital order. The panel, comprising YOT staff, a volunteer
Panel Chair, and sometimes the victim, and other family and community
members, agrees a contract with the young person. The Court is
only involved again in the process if the young person is unable
or unwilling to comply with the contract. Given high levels of
satisfaction from both offenders and victims when they attend
panel meetings,[148]
the RJC would recommend development of a similar model with adult
offenders, with greater emphasis on victim participation.
18. The Criminal Justice Act 2003 made provision
for Restorative Justice to form an activity requirement of the
new generic community sentence. Again in 2003 Lord Falconer commented
"One of the ways we are doing this is through
the new Criminal Justice Bill. As you know, the Bill brings in
a new generic community sentence. It sets out that one of the
things that sentencers may wish to include in a community sentence
is an activity aimed at reparation. And it makes clear that this
may include contact between the offender and a person or persons
affected by the offence—in other words, restorative justice.
I would be interested to hear your thoughts about
the type of cases for which you think this element of the Bill
might be most appropriate. I would suggest that three key things
need to be in place for this to be an appropriate element in the
community sentence. First, there will need to a trained facilitator
available (perhaps a probation officer, a police officer, or local
community mediator). This should only be done with people who
know what they are doing. Second, the offender would need to pass
a risk assessment as to whether contact with the victim would
be safe, particularly face to face contact—again victims
have got to be able to feel comfortable when this is done. Third:
is there a victim who has been personally harmed by the crime,
who wants some kind of restorative contact with the offender.
Restorative justice should always be about meeting victims' needs,
however good it might be at reducing re-offending."[149]
19. The Government's RJ strategy in 2003
made a commitment to pilot this provision in the Criminal Justice
Act of 2003; but this pilot has never taken place; although in
Thames Valley the Probation Service, working closely with the
Courts, has been able to show that both using RJ with deferred
sentencing under the 2003 Act, and as an activity requirement
of a generic community sentence, can work.
20. Given the evidence and experience available
from existing projects in the UK and abroad, the Restorative Justice
Consortium would recommend that Government should test out RJ
in all three ways relating to sentencing—post-conviction
and pre-sentence, as part of the sentencing process and as part
of the sentence in order to decide on which model would best suit
our criminal justice process, and best meet the needs of victims,
offenders and communities in our country. In the 2003 strategy
document the Government said that RJ would be piloted in the new
Community Justice Centre in Liverpool. This has not yet taken
place; and we would argue that the new Community Courts would
be the ideal locus to test out the different models of Restorative
Justice at point of sentence.
RESTORATIVE JUSTICE
AS A
DIVERSIONARY MEASURE
21. Restorative Justice can form part of
diversionary measures away from prosecution. As such it is already
widely used as part of final warnings within the Youth Justice
System. With the introduction of Conditional Cautioning for Adults,
Restorative Justice processes can be used (as per the Home Office
guidance)[150]
either as a condition of an offender's caution, or as the means
by which conditions would be decided.
22. In Restorative Justice; the Government's
Strategy (HMSO 2003) a commitment was made to develop conditional
cautions as a key delivery mechanism for Restorative Justice as
a diversionary measure in the adult criminal justice system. The
potential for freeing up CJS resources for more serious offences
down the line was recognised, if RJ could be used as part of conditional
cautioning to divert offenders from prosecution. However in practice
very few conditional cautions have been delivered using Restorative
Justice.
23. This may be due to a number of issues:
the use of RJ with conditional cautions is optional, it requires
additional resources to deliver conditional cautions using RJ
and there may be a lack of confidence/knowledge and training among
police forces about using RJ with adult offences. RJC believes
that these issues can be overcome if the commitment to the use
of RJ with Conditional Cautions is followed through.
24. Given what we know about the very strong
victim benefits and potential for reductions in recidivism following
Restorative Justice the Restorative Justice Consortium would argue
that Code of Practice governing the use of Conditional Cautions
should be revised to make clear that in all conditional cautions
where there is an individual, personal victim of a crime willing
to participate in RJ, the conditional caution should involve an
RJ process.
25. In the same strategy document, the Government
made a commitment to pilot Restorative Justice as a diversion
from prosecution. This pilot began in London in 2004 but was stopped
after just a few months due to the case-flow being insufficient
to deliver statistically significant results within the 12-month
timescale for which the pilot had funding.
26. We would also strongly argue that the
RJ diversion pilot should be looked at again and re-started, with
a clearer legal basis for prosecutors on which to divert cases,
and new legislation if necessary. The pilot should either be set
up as an action-research pilot—much as has been the model
for the current Victim Care Unit pilots—something designed
from the start with the expectation of roll-out; or if it is to
be a "pure research" pilot, with sufficient funding
to last longer than twelve months. The Community Justice Panel
in Chard, part funded by the Home Office, has also shown very
promising results, which could be replicated with a wider trial.
The potential of Restorative Justice as a diversion should not
be left unexplored and unexploited.
RESTORATIVE JUSTICE
POST-SENTENCE
27. Restorative Justice processes can also
be used post-sentence, as part of release planning with offenders
leaving custody or built into the victim contact work of the probation
service with victims of offenders sentenced to more than 12 months
in custody. For more serious crimes, such as murder and manslaughter,
this is probably how RJ should be built in, in order to allow
both victims and offenders sufficient time to be ready for RJ,
and time to consider whether or not they want it.
CONCLUSION
28. There is no simple answer to the question
what is the role of Restorative Justice in relation to sentencing.
As this response has made clear, we need to bear in mind the potential
of RJ processes as a diversionary measure and both pre- and post-sentence,
particularly for the most serious crimes.
29. In relation to sentencing itself there
are at least three stages at which RJ can take place:
(a) pre-sentence (and inform the sentence);
(b) as the sentencing process (as in Canadian
sentencing circles); or
(c) as a requirement of the sentence.
The jury is still very much out on which of
these models is best. Government should take a proactive approach
to testing and comparing all three options before legislating
to mainstream RJ in this country.
8 March 2007
133 Further information about Restorative Justice,
and about the work of the RJC can be found on our website at www.restorativejustice.org.uk Back
134
Restorative Justice; the Government's Strategy (HMSO, 2003). Back
135
Restorative Justice: the evidence, Sherman and Strang,
2007, p 64. Back
136
The full report is available at: http://www.restorativejustice.org.uk/Resources/pdf/RJ_Victims_Outcomes_Aug2006.pdf Back
137
Restorative Justice: the evidence, Sherman and Strang,
2007, p 8. Back
138
Full information on Restorative Processes and Re-offending
is available at http://www.restorativejustice.org.uk/Resources/pdf/RJ%20and%20the%20Reduction%20of%20Reoffending_update03042006.pdf Back
139
Judge, 2002 quoted in RJC document The positive effect of Restorative
Processes on Re-offending, p 3. Back
140
Mirsky, 2005 quoted in RJC document The positive effect of Restorative
Processes on Re-offending, p 6. Back
141
Willcock, 1999 quoted in RJC document The positive effect of
Restorative Processes on Re-offending, p 7. Back
142
Further information about the wide range of models developed
internationally covering RJ and sentencing can be found at www.restorativejustice.org;
and on our website for New Zealand at http://www.restorativejustice.org.uk/?International_RJ:New_Zealand Back
143
The full text of this speech can be found at http://www.dca.gov.uk/speeches/2004/lc240604.htm Back
144
See for example, the Lord Chief Justice Lord Woolf's
letter at http://www.sas.upenn.edu/jerrylee/jrc/lwsresponse.pdf Back
145
Akester, K and Tickell, S, Restorative Justice-the way ahead,
2004, p 30. Back
146
http://www.dca.gov.uk/speeches/2003/falc250703.htm Back
147
See Griffiths, quoted in Miers, David An international
review of Restorative Justice, 2001 (HMSO) p 67-for more information
see http://www.iirp.org/library/mn02/mn02_lilles.html and http://www.ojp.usdoj.gov/nij/rest-just/CH5/3_sntcir.htm Back
148
The Introduction of Referral Orders into the Youth Justice System:
Final report, Home Office Research, Development and Statistics
Directorate, March 2002 available at http://www.homeoffice.gov.uk/rds/pdfs2/hors242.pdf Back
149
http://www.dca.gov.uk/speeches/2003/falc250703.htm Back
150
The Code of Practice governing the use of Conditional Cautions
can be found at http://www.homeoffice.gov.uk/documents/cond-caution-cop?view=Binary Back
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