Now that legislation has enabled more widespread restorative justice, defenders must understand the process.
Restorative justice received widespread support from the coalition government with targeted funding and the introduction of legislation enabling it to take place at every stage of the criminal justice system. The police, judiciary, and criminal justice agencies responsible for delivering innovative rehabilitative services are turning to restorative justice in the knowledge it reduces reoffending.
It is now time for those in the defence community to understand the benefits of restorative justice and provide the opportunity for their clients to reap the rewards.
Restorative justice helps offenders take responsibility for their crime, express remorse and make amends for the damage they have caused. It is a resolution to crime that holds offenders to account for what they have done, providing them with an opportunity to learn from their actions and reintegrate into the society they have harmed. It also empowers victims and communities by giving them a chance to communicate with their offender to explain the real impact of the crime.
Recent legislation has made restorative justice available at every stage of the criminal justice process. Victims and offenders are able to initiate the process as part of an out-of-court disposal, at post-conviction pre-sentence stage in the court, as part of a community or suspended sentence, alongside a custodial sentence or at resettlement stage through the prison gate. Under the newly revised Victims’ Code, victims of adult offenders are also entitled to receive information on restorative justice and victims of young offenders have the right to participate in restorative justice where it is available.
So why have these legislative changes come in to force? In short, the strength of the evidence. A government-funded £7m, seven-year research programme into restorative justice demonstrated it reduces the frequency of reoffending by 14%. Eighty per cent of offenders who take part in restorative justice think it will lessen their likelihood of reoffending. The research also confirmed that more than half of victims who take part in restorative justice conferences think their offenders have received the right sentence, and 85% of victims are satisfied with the process.
At post-conviction, pre-sentence stage in the court, the judge or magistrate can defer sentencing for restorative justice to take place. The outcome of the restorative process is reported back to the sentencer and it is up to the bench to decide what effect pre-sentence restorative justice should have on sentencing following the report.
There is no expectation of reduced sentencing by way of participation, but the sentencer is able to reduce the sentence if this is considered appropriate. Participation could be argued as a sign the defendant is displaying remorse. It is therefore extremely important for victims to be informed of the possibility that the offender’s sentence may be reduced following participation in a restorative justice activity.
If pre-sentence is not deemed an appropriate stage for restorative justice to take place, it can also form one of the options of a community sentence within the Rehabilitation Activity Requirement (RAR). The RAR was introduced in the Offender Rehabilitation Act (ORA) 2014, which explicitly states that restorative justice can be included as one of the activities.
Restorative justice needs to be entered into voluntarily – it can only take place if both the offender and victim are willing. The process can take the form of a face-to-face meeting between the victim and offender or be done via letters, audio recordings, videos or by ‘shuttle’ communication through a facilitator. The process usually leads to an outcome agreement where the parties agree certain actions the offender can undertake to repair the harm they have caused.
Offenders who do not wish to participate in a restorative justice conference should not be coerced or pressured into taking part. This could, despite benign intent, exacerbate their feelings of anger and distress. To prevent this from happening, highly qualified restorative justice practitioners are able to identify the suitability of individuals through a thorough risk assessment.
Some people argue that while an offender may start the journey to restorative justice with less than sincere motivations, active engagement in the process will still lead to a legitimate restorative justice outcome which is positive for the victim and offender. Peter Woolf, a prolific offender who committed thousands of crimes, said: ‘I only really wanted to do the restorative justice conference to get out of the cell for an hour. As the day came, I was thinking I don’t really want to do this.’
But on the day of the conference he listened to the victim of his most recent violent burglary and said: ‘When you hear the harm you’ve caused, you’ve got to be a very bitter and twisted human being if this doesn’t affect you.’ His victim said: ‘This man wasn’t showing remorse because his lawyer told him to, this was a man who was genuinely affected by what we’d said.’ Peter has not reoffended since this meeting in 2004.
Restorative justice is often the only opportunity for offenders to demonstrate remorse directly. One offender said: ‘I didn’t realise how much guilt I’d been carrying around with me until I met my victim and apologised. And then I felt so much lighter.’ Offenders can find it challenging but life-changing: ‘Going to prison, that’s just running away and getting away from it all. But to actually go into a room and sit down knowing that they’re going to walk through that door in a few minutes time and want to know why you stole from them – that’s scary for me. Every time, it kind of broke me, but it made me as well.’
Ninety per cent of victims who take part in a restorative justice conference receive an apology from the offender in their case, compared with only 19% who just go through the conventional justice system. Victims generally feel less angry afterwards. One victim said: ‘When you meet somebody and they say, ‘I did it and I’m sorry’… it’s a cathartic thing. It’s therapeutic. It gives you closure. People are never the way you imagine them to be.’
Extended friends and family of both victim and offender can also benefit from restorative justice. They too often have many unanswered questions, and restorative justice provides a safe space for them to find reassurance. Restorative justice can mitigate against social exclusion and marginalisation following offending behaviour and allow offenders an opportunity to re-enter society and their supportive networks.
In this legislative landscape, where restorative justice is becoming an integral part of the criminal justice process, professionals representing those convicted of crime must understand restorative justice. They need to be able to advise their clients on the benefits of taking part as well as what it will involve. This advice may be needed at a variety of stages in the criminal justice process from out-of-court disposals through to sentencing.
Prior to accepting a caution, an offender may wish to talk to their solicitor before agreeing to restorative justice as part of the conditions of a caution. The solicitor can help them make an informed decision by ensuring they are clear on the process and the benefits of taking part. Clients may also require guidance from their lawyer at post-conviction pre-sentence stage in the court.
Probation or the youth offending team may recommend a deferral of sentence for restorative justice to take place – it is essential the offender is aware of what this might entail. Additionally, probation may suggest restorative justice as an intervention within a community sentence in the pre-sentence or stand-down report. Each stage necessitates guidance and information from a lawyer to their client.
Public perception of the defence community will also be enhanced by their support for restorative justice. A recent poll showed the public are strongly in favour of the process – 77% believe victims have a right to meet their offender, a figure which rises to 83% among people who have been victims of crime. Sixty-nine per cent of the public believe offenders need to see the real impact of their crimes and face their victims.
It is time for defence lawyers to not only ensure their clients receive an appropriate sentence but to also provide them with a chance to repair relationships, demonstrate contrition, make up for the harm they have caused and set themselves on a path to rehabilitation.
As Lord Justice Fulford (pictured), senior presiding judge, said recently: ‘The senior judiciary are supportive of restorative justice initiatives that will assist the victims of crime and help offenders face up to the reality of what they have done and break the cycle of their offending.’
Dani Gover is the senior policy and public affairs manager at the Restorative Justice Council