header image

"Restorative justice" and other new penal patterns

A Note by the Director (Ditchley 2000/07)
 
23-25 June 2000
Over the weekend of 23-25 June we met at Ditchley to discuss the relevance of Restorative Justice (RJ) to our Criminal Justice (CJ) systems.  We were fortunate in having with us participants from Australia, Canada and New Zealand with wide experience of seeing RJ in action in their countries.  The starting point for our discussions was a growing concern that the existing Criminal Justice system was failing to meet society’s expectations and was proving unsatisfactory in several key aspects.  The cost of crime was rising as was the level of crime itself.  Public confidence in the system was falling, the level of recidivism was high and it was widely held that the interests of the victims of crime were ignored.
We therefore examined RJ from the point of view of the victim, the offender and the community affected by crime.  But before doing so we tried to define RJ.  Was it a process or a philosophy?  How widely could it be applied to various types of crime?  Was it a mainstream or a marginal activity?  Was it an alternative to the Criminal Justice system or could it be integrated into it?  These and other similar questions occupied us throughout our discussions.  Interestingly the nature of the process we were discussing affected the nature of our discussions.  References were made to the effects on local communities of “polite policing” and even in prisons of “polite punishing” with all concerned aware that, taken out of context, such expressions could lay open the concept of RJ to derision in public discussion and thus obscure its intrinsic value.
In our attempts to define RJ, and indeed to find the right name for it, we were reminded that it drew on an ancient concept of community involvement in the administration of justice.  This concept was still present in many Asian societies in Britain today.  RJ brought into the process all the main actors – the offenders, the victims and their communities – in a dynamic process where restitution was more likely than in the present Criminal Justice system and where experience showed that the offender stood more chance of being reintegrated into society with a corresponding fall in the levels of recidivism.  Those currently using the system saw it as operating under the umbrella of the state.  This, they argued, was necessary if it was to have wide application and enjoy public confidence.  In their view the present system of retributive justice had become impersonal with the offender rarely obliged to confront the effects on the victim of his or her crime and with no great feeling that the process was fair or one which commanded respect.  The question of sentencing at RJ processes brought us back to the question of state involvement.  If, as it was alleged, victims were more often concerned with an explanation and/or apology than with sentencing in the normal sense of the word, how would some consistency over levels of sentencing be achieved, and the public be reassured that RJ was neither a “soft touch” nor that “post code justice” would occur in different parts of the country.  The advocates for RJ pointed out that sentencing circles, which frequently included victims and their supporters, put their recommendations to the Court which had the power to modify them if, in rare cases, it considered that the sentence was aberrant.
We discussed whether the system of RJ should be codified.  Practitioners said that the system was still developing and counselled against trying to tie it down too rigidly to a set of procedures which could drive out the underlying message.  But others argued if RJ was to become a mainline practice and not just marginal to Criminal Justice then it would be necessary to codify it to some extent.  Indeed it might be advisable for RJ to have some benchmark procedures to avoid its discreditation should it go wrong.  Examination would even be likely to show that the idea itself had not proved fallible but that the procedures had been incorrectly applied.
Given the escalating costs of the present CJ system we looked at the relative costs of introducing RJ.  At first glance it appeared that the investment in RJ was very high.  Experience had shown that the more people involved in discussing the case and giving their views on its solution, the more effective the outcome for all concerned would be.  But getting them together, training a facilitator, taking the time needed to go through the process, appeared to put RJ at a disadvantage.  Those with practical experience of RJ claimed, however, that when the overall costs of incarceration, of youth detention, the levels of recidivism, the return to normal work and reintegration into society, were taken into account, the cost comparison with CJ looked quite different.  In New Zealand where RJ was widely practised, whole penal institutions had been closed and many courts were sitting for fewer days.
The question of public acceptance of RJ was a recurrent theme in our discussions.  We worried that the term was not widely known nor well understood.  The media thrived on adversarial justice and were quick to categorise as “soft on crime”, systems which did not appear to carry a strong element of retribution.  It was pointed out, however, that studies had been conducted where members of the public had been given the facts of a case and asked to give their views on sentencing.  Almost invariably they opted for lesser sentences than those that had actually been given by the courts.  The media had, however, great influence on politicians who, although they claimed that criminal legislation would be results-oriented and evidence led, were nevertheless swayed by what the media claimed was the public attitude.  We also recognised that words such as repentance, forgiveness and empathy which flowed naturally from the RJ process, were not easy to use in public without awakening suspicions that an over-idealistic scheme was being proposed.
In the British context it was pointed out that changes to the legal system took a considerable time to gain public acceptance.  Community service orders had been in effect for about twenty years before their merits had been widely accepted.  A gradual process starting with youth offenders might offer the best hope for RJ.  Against that it was argued that RJ was a heavy process and should be defended as such.  Outside the UK it had been used successfully for serious crimes such as rape and grievous bodily harm.  Using it on first time offenders in Youth Courts, which was what was being proposed in the UK, might not be the best way of proceeding.  There was, however, a general view that enthusiasts for RJ should not try to oversell it.  RJ was not a “magic bullet” which could make good failings in the education or social welfare systems.
We examined how RJ had been introduced in the countries where it was now well established.  Its success appeared to have relied to a considerable extent on leadership from certain individuals, in particular judges, who had introduced RJ into their courts and gradually established it as a more effective way of delivering justice to all the parties involved.  Parallels were drawn with the way in which, in the USA, judges had introduced drugs courts which had now gained respect from the public as a fairer and more effective way of dealing with a deep seated social as well as criminal problem.  Interest was expressed in the advent of a new Lord Chief Justice in the UK with experience of criminal courts and, it was thought, an open mind about new ways of making the Criminal Justice system more responsive to public needs and concerns.
We considered whether RJ might be unsuitable for particular classes of offence.  Some of our instincts suggested that crimes of hate, in particular those involving race, were unlikely to be amenable to RJ which relied on the consent of the parties and the willingness by offenders to acknowledge that they had caused damage.  But those with practical experience of the system argued that it was precisely in such cases where RJ, if successful, had most to offer society as a whole.  In an attempt to define some criteria which could be used to determine whether RJ could be said to be successful, one participant put forward four tests.  We would expect RJ to reduce crime (to which we later added violence) and recidivism and at a lower than normal cost.  We would expect that victim and offender satisfaction would go up.  It would achieve a high level of justice.  And it would strengthen social relationships.  It was pointed out that the first two of these four criteria were individual whereas the last two were communal.  We heard – again from those with practical experience of RJ – that the available empirical data available from New Zealand, Canada, Oregon in the USA and Canberra in Australia supported claims based on these criteria.  Those advocating the introduction of RJ should not be reluctant to point to this data in support of their case.
In looking at RJ in relation to victims, offenders and communities, the following points emerged.  At present the interests of victims were thought largely to be overlooked by the CJ system.  Only a relatively small proportion of offenders were brought to court.  Even when offenders were tried, if they pleaded guilty this obviated the need for any further involvement of the victim whose life might have been changed forever by the physical or mental damage done to them.  This was equally true when the “victim” was the community, for example a housing estate terrorised by a gang or a school vandalised by young people.  A strong argument was made for the state (society at large) to help victims where either the offender was never apprehended, or where material restitution was beyond the offenders means.
Among the advantages of RJ from the victims point of view was the opportunity it provided to gain access to information.  Was it a random offence or a deliberate personal attack?  It also allowed them and their supporters to “have their say”.  Frequently it resulted in a sincere apology which, surveys had shown, was often of critical importance to the victim and encouraged “forgiveness”.  It was argued that if CJ was used to determine guilt then RJ could be used to help determine the sentence thus introducing a process in which victims had as many rights as offenders.  Victims might be encouraged to attend a RJ process but should not be coerced to do so.  They might be too afraid of retribution or simply not ready to re-live their experiences.  It should also be made clear to them that while their views were valued, the final decision on sentencing was not theirs alone, otherwise they risked having their expectations disappointed, as was sometimes now the case over victims statements sent to courts where the victims were inclined to claim that their statement changed nothing.  It was, however, noted that Defence Counsel sometimes expressed dismay at the thought that their clients interests could be prejudiced by the introduction of allegedly “extraneous matter”, such as the views of victims.
In relation to offenders, RJ was also thought to have benefits.  Offenders could, depending on their behaviour, be treated with respect which would in turn engender respect for the system on their part.  They were confronted by “the human face of crime” which made it more likely that they would show remorse and apologise and offer to make amends.  They could be helped by communities and agencies to stop their offending behaviour which would lead to their reintegration into society and thus lessen the chance of recidivism.  It was argued that a range of RJ options should be used.  Some cases might need sentencing circles and some might only require mediation.  Since the results were mostly consensual there was more likely to be feeling that the outcome was fair.  As against that, we recognised  there was the problem of achieving consistency of outcomes for similar offences.
Perhaps the most challenging area of the use of RJ techniques was thought to be in the community.  The first problem was to define what was meant by community.  In developed societies there was often little contact between people living in what previously would have been close geographical communities.  Nevertheless RJ had achieved considerable success in schools, for example in the Thames Valley and in Australia, where police officers had acted as brokers and achieved remarkable results in curing truancy, vandalism and bullying.  The same had been true for dysfunctional housing estates, but with the caveat that RJ was not a substitute for other policies aimed at alleviating poverty, lack of education or housing.  The limitations on RJ in the community were thought to be the need for the parties to accept a negotiated settlement, the need to train facilitators and the time needed to achieve a satisfactory outcome.  One of the unexpected benefits appeared to be the flexibility RJ gave the police in deciding how to deal with a particular situation.  They had the option of trying to achieve an outcome which would restore the peace without necessarily having to use formal legal procedures which might, in many cases, prove nugatory for lack of evidence, or even if successfully brought to trial, simply harden attitudes.
At the end of the conference we looked at a number of tensions and trade-offs which had arisen from our discussions.  Should RJ be a golden thread running through the entire justice system, as some wished – a mainstream or a minority process?  Was there a danger of overselling RJ and thus discrediting it when expectations were disappointed?  How would RJ be perceived by the British public?  Could it really deal with serious crime and the dilemma of punishment?  If RJ was a part of the Criminal Justice system, where exactly did it fit?  Should it be used at an early stage or later, possibly for sentencing, and was it more effective with serious offenders or with young offenders?  Could RJ guarantee quality?  How did the time-consuming nature of RJ sit with the wider pressures for speed in dealing with offenders?  Where in the UK would leadership come from?  Was it correct to look to a new Lord Chief Justice or would there in fact be public pressure for RJ?
Many of these questions and tensions had been answered by those with experience of RJ with a variety of persuasive arguments.  The conviction of the protagonists came across clearly.  And of the options available RJ appeared to offer advantages to all the parties involved.  Even politicians and political parties would, they argued, be impressed, if only by the benefits for victims who were at least as numerous as the offenders.  Their bottom line was, however, that the present system of CJ was failing.  The problem would not be resolved by trying to make it more efficient.  We needed to do things differently.  It remains to be seen when we return to this question in the years ahead, whether in relation at least to the UK, the protagonists’ convictions will have proved justified.  But many of us exposed to their arguments over a weekend at Ditchley came away with the belief that RJ should at least be given a chance to prove itself.
This report reflects the Director’s personal impressions of the conference.  No participant is in any way committed to its content or expression.
 
 
PARTICIPANTS
Chairman  : Lord Warner
Life Peer (Labour);  Chairman, Youth Justice Board for England and Wales.
 
AUSTRALIA
Mr Terry O’Connell AO

Consultant on Restorative Justice and visiting lecturer, Centre for Peace and Conflict Studies, Sydney University and Charles Sturt University, Canberra.
Ms Heather Strang
Reintegrative Shaming Experiment/Law Programme, Research School of Social Sciences, The Australian National University.
CANADA
Mr David Farthing

Executive Director, Youth Canada Association.
The Honourable Judge Bria Huculak
Judge, Saskatchewan Provincial Court.
Mr Graham Reddoch
Executive Director, The John Howard Society of Manitoba.
NEW ZEALAND
His Honour Judge Fred McElrea

Judge, Auckland District Court.
UNITED KINGDOM
Mr Rob Allen

Director of Policy, Research & Development, National Association for the Care and Resettlement of Offenders (NACRO).
The Rt Hon Lord Justice Auld
Lord Justice of Appeal, Royal Courts of Justice.
Lord Dholakia OBE DL
Life Peer (Lib Dem);  Chairman, NACRO.
Mr Cedric Fullwood
Member, Youth Justice Board for England and Wales;  Vice President, Centre for Crime and Justice Studies.
Professor Roger Graef
Writer, filmmaker, broadcaster and criminologist.
Mr John Halliday CB
Director, Criminal Justice Policy, Home Office.
Dr Carolyn Hoyle
Lecturer in Criminology, University of Oxford.
Dr Guy Masters
Research Officer, Public Policy Research Unit, Goldsmiths College, University of London.
Mr David McGahey
Director of Education, Buckinghamshire County Council.
Dame Barbara Mills DBE QC
Former Director of Public Prosecution (1992-99).
Ms Catriona Mirrlees-Black
Principal Research Officer, Crime and Criminal Justice Unit, Home Office.
Mr Tim Newell
Governor, HM Prison, Grendon and Spring Hill.
Ms Gill Noble CB
Director, Public Services Directorate, HM Treasury.
Ms Zena Peatfield
Deputy Director, Social Exclusion Unit, Cabinet Office.
Mr Mark Perfect
Chief Executive, Youth Justice Board for England and Wales.
Mr Charles Pollard QPM
Chief Constable, Thames Valley Police Headquarters.
Dr Judy Renshaw
Senior Policy Adviser, Youth Justice Board for England and Wales.
Ms Teresa Reynolds
Head of Policy, National Association of Victim Support Schemes.
Professor Paul Rock
Professor of Social Institutions, Department of Sociology, London School of Economics and Political Science.
Rev Dr Peter Sedgwick
Policy Officer for Criminal Justice, Board for Social Responsibility, Church of England Archbishops’ Council.
Sir Graham Smith CBE
HM Chief Inspector of Probation.
Mr Nigel Whiskin MBE
Chief Executive, Crime Concern.
The Rt Hon The Lord Windlesham CVO PC
Principal, Brasenose College, Oxford;  President, Victim Support.
UNITED STATES OF AMERICA
Mr Ron Angelone

Director, Department of Corrections, Commonwealth of Virginia.
Ms Susan Herman
Executive Director, National Center for Victims of Crime.
Professor Mark Moore
John F Kennedy School of Government, Harvard University.
Mr Larry Naake
Executive Director, National Association of Counties.
Professor Lawrence W Sherman
Greenfield Professor of Human Relations and Director, Fels Center of Government, University of Pennsylvania.
The Hon Jeremy Travis
Senior Fellow, The Urban Institute.