Moving on

What’s restorative justice got to do with barristers? Mary Cowe explores its relevance to the Bar, benefits for offender and victim and impact on recidivism

The Restorative Justice Council (RJC) is a national membership organisation that advocates the widespread use of all forms of restorative practice, including restorative justice (RJ). 

It sets and maintains high standards for RJ practitioners, in furtherance of a ‘vision of a society where high quality restorative practice is available to all’: so the website reads. During my conversation with Jon Collins, the chief executive of the RJC, he is at pains to emphasise that RJ is not a ‘silver bullet’ for the criminal justice system and that therefore the RJC is not on a mission to evangelise the legal profession.

Engagement with the Bar

The aim of its ongoing attempt to engage with the legal profession is not about persuading us to hang up our wigs in favour of comfortable cardigans and the mythologised group hug. It is primarily about informing solicitors and barristers about what RJ really entails and the benefits it may bring defendants. If RJ is mentioned at a police station or in a probation report, lawyers can then accurately discuss with defendants what it would involve. The RJC does not suggest that this will be a viable alternative to the court process in every case, but that it may work in parallel with the court process to lower recidivism and improve outcomes for victims and offenders alike.

The RJC also seeks to raise the profile of RJ more generally in society. ‘Criminal justice professionals have a very important role to play in informing victims and offenders about the benefits of restorative justice. By being well-informed about the process and what it involves, lawyers can answer any questions that victims or their clients may have,’ says Collins. Others may assume that we as a profession know about different methods of dealing with crime, and the standing of RJ among our friends, families and neighbourhoods may be affected by whether we can discuss its merits intelligently, or whether we greet our neighbour’s question about something they read in the paper with a blank stare.

Barristers are most likely to encounter RJ around the point of sentence – as an option for pre-sentence, or a rehabilitation activity requirement during sentencing – although it is useful to know that participating in RJ can form part of a conditional caution. In an appropriate case, where a defendant admits the offence and wants to engage in RJ, an offer to be made subject to such a conditional caution may be more appealing to the prosecution than accepting a simple caution: RJ is a very visible sign to a victim that an offence has been marked.

Offenders who are not diverted from court in this way can offer to take part in RJ before sentence, and the work they’ve done may inform the preparation of a pre-sentence report, or a willingness to participate in RJ may be discussed as part of a sentencing package. Collins observes that: ‘A well-trained restorative justice facilitator should, during the assessment process, be able to determine if an offender is genuinely engaged.’ Given what Collins says, a defendant who is assessed as motivated to take part in a RJ conference will be a defendant who can properly claim to be remorseful or, at least, seeking insight. RJ can also take place in prison if a defendant is sentenced to immediate custody: it may take place many years after sentence when the offender is eligible for parole.

Managing the dynamics

Not surprisingly, given the RJC’s stated aim to set standards and encourage best practice, Collins is keen to emphasise that RJ facilitators are professionals in their own right. ‘Facilitators are skilled individuals who need proper training to manage the interaction for both parties involved. High quality restorative justice is both safe and effective, and guarantees that victims and offenders will have the best possible experience,’ he says. An important initial criterion is that both victim and offender must want to engage with RJ: unless engagement is truly voluntary, not only does the efficacy of the outcome come into question, but so does the moral legitimacy of the whole enterprise. This is not a modern-day equivalent of putting one’s head in the pillory: it is not an opportunity for the victim to humiliate the offender or seek private vengeance. Mediating the offender/victim relationship requires a facilitator who has been trained to a high standard, and a core purpose of the RJC is to provide such good quality training.

Collins describes the detailed preparations which take place before any face-to-face conference is arranged. ‘Both victim and offender are met individually by the facilitator: the objectives of each are considered and the boundaries of each are noted – if an offender is unwilling to discuss a particular feature of their background, that is respected.’ Some offenders may wish to pass on in writing to the victim some private information about something had an impact on their offending but which they don’t want to be probed in a conference; a bereavement, an issue relating to their mental health or an abusive relationship, for example. Both victim and offender must also agree to certain behavioural rules during the conference. There is no crime regarded as too trivial or too serious for RJ, although the more serious the crime, the more intensive the preparations made by the facilitator: Collins speaks of RJ having been successfully carried out in cases where serious sexual offences had been committed.

Whatever the offence, the facilitator will carry out a risk assessment to ensure that both parties are not only genuine in their desire to engage in the process, but also that it is safe for this particular combination of people to meet in such an environment. Facilitators sometimes assess even willing participants as being unsuitable for a face-to-face meeting. Those who do not meet in person may be able to take part in ‘shuttle mediation’ where communication is facilitated via pre-recorded video or letters. After any meeting both victim and offender will be followed up, and referred to other agencies who may be able to assist them with ongoing problems raised.

The essence of the meeting is for the victim to explain to the offender the harm their actions caused, and for the offender to discuss what lay behind their offending. People take their turn to talk, and the facilitator tries to ensure each person’s pre-determined objectives are met. Collins identifies the presence of dialogue in the RJ process as being its real value: ‘Although the court process has to be “impersonal” in order to be fair, impartial and deliver consistent sentencing, RJ can be beneficial in allowing the victim and the offender talk to each other on a personal level – it humanises people.’ In that way, not only may offenders come to understand the harm they’ve caused (in theory, this understanding is the real driver behind offender desistance), but victims are less likely to think of offenders in a one-dimensional way. Collins talks of victims who have ‘imagined a monster in their heads’, and of the far reaching benefits for society when a victim of crime meets an offender and talks to that offender 
as another human being.

Benefits for offender

Inevitably, much of the information the RJC puts in the public sphere focuses on benefits to victims, but Collins emphasises the benefits for offenders who have an opportunity to speak in a facilitated environment, and the long-term benefits that flow from offenders being turned away from crime. In the course of background research for this article, I consulted academic studies into the effectiveness of RJ. These demonstrate that RJ is often associated with a drop in the level of recidivism, although anyone reviewing the literature on this topic will appreciate that because RJ deals with offenders who have already expressed a willingness to face up to their crimes, there is an element of self-selection. The Ministry of Justice’s (MoJ) own review of some of the research cites an estimated 14% reduction in recidivism when RJ is used, although they have not published the methodology by which they arrive at this figure (see further reading, below). RJ certainly seems to support offenders who are motivated to desist in achieving that aim and it is acknowledged as a cost-effective intervention. It is also associated with a high level of victim satisfaction. It may be that qualitative research into the experience of offenders who participate in RJ would convince more defendants of the merits of the intervention. In my view, the MoJ might be less interested in publicising the ‘offender experience’, but most of us working in the legal profession will appreciate that many offenders are receptive to being presented with the evidence.

The RJC wants to make it known that restorative justice is not only about offenders restoring peace of mind towards victims: it’s also about providing a safe venue for offenders who feel they are on society’s periphery to feel restored into a supportive moral community. The more legal representatives who are properly informed about RJ, the greater the chance this intervention has of reaching those who may most benefit from it.

Contributor Mary Cowe, Counsel editorial board member and Guildhall Chambers, Bristol

Further reading

Restorative justice conferencing: using face to meeting of offenders and victims: effects on offender recidivism and victim satisfaction, a systematic review, Heather Strang et al, 2013

Breaking the cycle: effective punishment, rehabilitation and sentencing of offenders, Ministry of Justice Green Paper, 2010

Does restorative justice affect reconviction?, Joanna Shapland et al, 2008

Restorative justice: the evidence, Sherman and Strang, 2007

www.restorativejustice.org.uk

 

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Mary Cowe

Mary is a criminal barrister at Guildhall Chambers, Bristol and a member of the Counsel Editorial Board.