Restorative justice keeps people out of prison and saves money, but has struggled to become established in the face of a widespread misconception that it is a ‘soft option’.

Last month the prison population of England and Wales reached an all-time high of over 82,000 and this number is likely to approach 100,000 by 2014. Houses of correction have never been so popular.

Their ‘popularity’ is, of course, a misnomer – the government, advocacy groups and think-tanks are searching for ways to reduce incarceration and find new methods to address criminal behaviour. One such approach is restorative justice.

Last year marked the tenth anniversary of the founding of the Restorative Justice Consortium, the umbrella organisation for restorative justice’s many adherents. The year after its creation Jack Straw, then home secretary, introduced the Crime and Disorder Act, which is seen as one of the first pieces of English legislation to contain elements of restorative justice.

Ten years on, it is hard to find many practitioners and stakeholders who oppose it, and the last few months have seen articles on the subject across the mainstream press. Yet restorative justice is not an integral part of the criminal justice system and few criminal lawyers would think to mention it to their clients.

Restorative justice, as opposed to punitive or retributive justice, is a broad term encompassing any framework whereby the victim and perpetrator of a crime meet (either directly or indirectly) and the offender in some way makes reparation, ‘restoring’ a balance between them. Methods include victim-offender mediations and face-to-face conferences, with offenders undertaking specific tasks such as letters of apology or repairing property damage.

Peter Woolf’s story provides a vivid example of how it works. Woolf was a drug addict (hooked on heroin by the age of 14) who had spent almost a third of his life in jail, acquainting himself with more than 30 different prisons.

After being confined for a spate of burglaries in 2002, he attended a ‘restorative justice conference’, invited there by a policeman whose force was taking part in an experimental programme. There, Woolf met his most recent victims face-to-face: they were a Londoner called Will Riley and a doctor whose laptop Peter had run off with (he later resold it for £20).

At the conference Peter had intended to give them the ‘same old spiel’ as he calls it – the same story he had told to courts, social services, and the Probation Service as a means of explaining away his criminal activity. Instead, however, both victims were able to confront Peter and ask him to show remorse for his actions. Both told him how his crime had damaged their lives. The doctor, in tears, explained that the laptop contained his life’s work; all his research and patient notes.

By the end of the conference, Peter, in his own words, ‘felt humiliated by myself’ and committed himself to changing his way of life and fighting his addictions. As he relates in his recently published book, The Damage Done: ‘It was the most powerful moment I had ever experienced… I had no answers for how I had ruined these people’s lives.’ The conference had achieved what years in prison had not.

Advocates of restorative justice argue that there are benefits for victims, offenders and society as a whole in these processes. Riley, one of Peter’s victims and chair of a new organisation for victims of crime, Why Me?, explains how victims of theft or rape, for example, are excluded from the current criminal justice process. ‘In a court of law, victims just sit in the public gallery. They are the most affected by the crime and the least involved. This is quite wrong.’

Barbara Tudor, a victim offender development officer in the National Probation Service’s Victim Liaison Unit for the West Midlands, agrees.

She says that traditional methods leave the victim with no understanding of why a crime has been committed against them, leading to anger, fear and even trauma. ‘There is a tendency for our court system not to get to the truth – evidence is very different from truth,’ she says. ‘Victims want to know what really happened, not what is provable.’

A conference, where an offender must justify themselves and face the consequences of their actions, can help a victim to put their experience behind them, and even to forgive the offender.

For offenders, restorative justice provides them with the opportunity to apologise, to make amends, and offers them a chance to change. But it is also about stopping re-offending. According to the Prison Reform Trust, three-quarters of offenders re-offend within two years. Tudor explains how restorative justice can stop this cycle: ‘For the vast majority of people, when they commit an offence, they don’t think about the victims at all. We ask them: "What did the victim look like?" And they don’t know. That’s because if they were looking, they wouldn’t have done it. Meeting their victim [through restorative justice] is about an offender looking at them, and facing up to what they have done. After that, it is quite difficult to offend again.’

Tudor’s experiences at the National Probation Service are backed up by academic research. A report produced last year by the Smith Institute, Restorative Justice: The Evidence by Sherman and Strang, concludes that ‘offenders who receive restorative justice commit fewer repeat crimes than offenders who do not’. It is this propensity to reduce re-offending that is most eye-catching for society – and, with the cost of each prison inmate estimated at £40,000 per annum, there is an obvious saving to the taxpayer.

At present restorative justice is employed within the youth justice system (the victim requests the approach). However, despite numerous pilot schemes run within the adult system, only a few local areas where a particular individual or service has taken the initiative, such as the West Midlands, actually practise it for adults.

There appear to be two main hurdles: a public perception that it is a soft option and the supposed cost of the process. Many believe that restorative justice allows criminals to ‘get away’ with their crimes because they are not doing time. This notion is often given life by the media – these are just some of the headlines in the Daily Mail relating to restorative justice: ‘Let-off for teenage thugs who say sorry to their victims’; ‘Teenager burglars paint instead of going to jail’; ‘Say sorry and avoid going to court’. Their message is hardly subtle. Restorative justice lets criminals off the hook. This is despite the fact that offenders themselves have said that restorative justice is the hardest option, and that court appearances and prison sentences are the easy way out.

The second obstacle is cost. Restorative justice is a time-consuming, labour-intensive activity and all projects come at a price. But economist Sohail Husain, director of Analytica Consulting Services, has done some work on the subject and does not agree that it is expensive – quite the opposite.

He took Woolf’s story and analysed it in pure cost terms. The cost of the conference was approximately £800, but Husain estimates the saving to the taxpayer – derived from the fact that Woolf stopped offending and stayed out of prison – at £1.69million (taking into account the value of stolen property, cost of police work, court costs and prison).

As Sir Charles Pollard, a pioneer of restorative justice and former chief constable of Thames Valley Police, says: ‘It’s not a cost, it’s an investment – it reduces victim anger and it reduces re-offending. If you look at that £1.69million figure, if only one in 100 cases succeed, it has paid for itself.’

But these brick walls of perception have meant the restorative justice movement has had a patchy first 10 years. The present government has supported the theory and produced no fewer than three reports on the subject. It was Jack Straw who, in 1998, began to introduce elements of it into the youth justice system, although previous processes had been tried and tested in the UK as long ago as 1985, when the Home Office ran a series of reparation pilot schemes.

In recent years there have been a few more pilot schemes for adults (which is how Woolf came to have his life-changing conference in 2002), most recently running from 2004-2006 in London, Northumbria and Thames Valley. The current state of play is that restorative justice for adults is ‘encouraged as best practice and as a service to victims’, in the words of a Ministry of Justice spokesperson, but nowhere is it mandatory.

The government says it is waiting for yet another report – due out at the end of June – before it decides what to do next. As a Ministry of Justice spokesperson puts it: ‘Once we have the results of all of the reports, ministers will look at whether the scheme should be rolled out nationally.’ At the same time the Prison Commission, chaired by Cherie Booth QC, will look into restorative justice over the course of this year.

But advocates say there has been too much evaluation and not enough action – the Sherman and Strang report is actually research on the research. At a debate in the House of Lords in November last year, Lord Warner, a labour peer and one-time chair of the Youth Justice Board, said: ‘It is time for us to stop endlessly studying and evaluating restorative justice and to use it more widely in areas where it has proven value’.

If restorative justice is introduced, lawyers are seen as having a key part in any process. Baroness Blackstone, a labour peer, patron of the new Why Me? Organisation, and a victim of a burglary herself, explains: ‘It is really important that any solicitor representing someone who is charged with a crime should play a role in helping that person, and that means they should consider whether they would benefit from restorative justice.’

In Canada, for example, this is already the case. There, lawyers can recommend to their clients that they take up restorative justice, and advocates here say that lawyers support it wholeheartedly.

A solicitor also has the opportunity to educate the bench about this issue, Baroness Blackstone says. ‘In any sort of court procedure, lawyers have a role to make sure that anyone on the bench, whatever type of court, should know that a restorative justice process has taken place.’

A Court of Appeal decision in 2003 would appear to support this approach – and encourages judges to take any process into account when sentencing. In R v Collins, Mr Justice Moses, giving judgment in a sentencing case, said: ‘The appellant [Collins] took part in the restorative justice programme... designed to ensure effective sentencing for the better protection of the public. The programme was by no means a soft option… It was to his credit that he took part in that programme and it was properly taken into account.’

Those who have been involved in pilot schemes and restorative justice practices say solicitors have taken an interest. Tudor says: ‘They have been quite brave [in restorative justice] and make referrals for their clients, arguing that it is in their clients’ long-term interests. I have also often seen lawyers request that the judge or magistrate make a referral. We are very dependent on lawyers to do that.’

Anthony Edwards, partner at criminal law firm TV Edwards, is more circumspect: ‘The criminal lawyer’s role is to ensure the client is provably guilty, to make sure there is evidence. In cases where they are provably guilty, then the lawyer should be familiar with what is available by way of restorative justice and use it where appropriate.’

But to get buy-in from criminal solicitors, the financial implications will have to be considered carefully, as Robert Brown, a partner at Corker Binning solicitors and a member of the Law Society’s Criminal Law Committee, points out: ‘There is a lot still to think about. What effect would it have on legal aid funding, for instance?’

For Tudor it is about ‘repairing harm’ in society – prisons just brush the harm under the carpet. Forgiveness and atonement have particular resonance right now – governments are apologising for slavery, to their colonies and beyond, and abuses during past wars. There are even apology websites (see www.ineedtotellyou.com for an example) for people to make amends for their misdemeanours.But it is the argument that the creaking prison system cannot cope with future demand that is most important in the story of restorative justice. Now that prisons are in the remit of his Ministry of Justice, the huge growth of the prison population might force Straw and his cohorts to act decisively before another decade slips by.

Polly Botsford is a freelance journalist