For some victims of crime, coming face to face with the perpetrator can be a cathartic experience. Now, a new report from British MPs on the Justice Select Committee proposes that everybody in the UK should have a right to what’s called “restorative justice” – the chance for victims and offenders to meet or communicate. Until now, the MPs argue, access to such a process, which can be requested by either the victim or the offender, has been somewhat of a “postcode lottery”.
Evaluations of referral orders – currently the main vehicle for delivering restorative justice in England and Wales – have praised the more positive lines of communication that have been opened up between offenders, victims, parents and communities. But these evaluations have lamented the coercive nature of restorative justice, highlighting problems of low victim participation, blurred lines of accountability, and a general failure to provide offenders with the socio-economic resources for them to develop a meaningful place in community life afterwards.
Some restorative justice campaigners refer to it as a new pattern of thinking. They see it as a way of responding to crime or a new sentencing alternative, or more grandly as a way of transforming the entire legal system, family lives, conduct in the workplace and the practice of politics. The restorative justice movement is often described as an umbrella of a very broad range of practices and approaches which aim to transform the way contemporary societies view and respond to crime.
Methods of punishing offenders are shaped by each society in different ways and influenced by their cultural qualities, morality rates and democratic processes. Most Western countries, predisposed by ideologies of the free market and individual responsibility, aim to deploy forms of punitive and proactive law-enforcement in order to target those who misbehave. Facing pressure from the mass media, politicians tend to adopt a generally punitive position when it comes to meting out justice.
Up until the 1991 Criminal Justice Act, punishment in the UK was expected to be conducted out of the sight of the public, to be administered by bureaucratic expertise and to be efficient and proportional. But over the last two decades, the restorative justice movement has spread widely in Western societies and become a matter for debates in juvenile and criminal justice reform.
Does it work?
In practical terms, most restorative justice work to date in England and Wales has involved young offenders and primarily more minor offences. In their analysis, the MPs raised some doubts over research which found that for every £1 spent on restorative justice the criminal justice system saves £8. But they did state that there is “clear evidence that restorative justice can provide value for money by both reducing reoffending rates and providing tangible benefits to victims”.
Research by the criminal justice academic Joanna Shapland, indicates that restorative justice offers benefits for young people, victims and the wider community. This is because it involves the victim of youth crimes in ways that adversarial justice, where the Crown becomes the proxy victim, does not.
Traditional forms of justice can also insulate young people from the harm their behaviour has caused in a way which is unhelpful for the development of empathy to others. So if there is a genuine interest in repairing harm caused by young people and to young people, then the victim has a uniquely important role to play. When restorative justice is authentically pursued it has as much interest in restoring the young person as it does in repairing harm for the victim.
Risk of coercion
So while I welcome the MPs’ call to widen the use of restorative justice with young offenders, the emphasis on establishing a legislative right for victims of crime to access restorative justice services risks compromising principles of due process and proportionality. When used in youth justice, there remains clear potential for proceedings to be primarily coercive. The child or young person who has committed the crime is usually faced by a panel of adults – a chair from the youth offending team and two volunteers – none of whom have direct responsibility to promote the “best interests of the child”.
Restorative justice – underpinned as it is by the principles of repairing harm, participation from those involved and transformation in the relationships between the community and government – might offer youth justice a chance to rediscover its commitment to social justice.
But the MPs propose that the burden should remain on individuals to accept responsibility for their actions. Rather less attention is given to the potential of replacing legal definitions of crime and the introduction of formal procedures that aim to reconcile conflicts of interests and heal rifts.
In the youth justice context, if taken seriously, restorative justice requires a fundamental rethinking of policy and practice. The report from MPs pays lip-service to the philosophy of restorative justice, but its proposals would tinker with the system rather than truly reform it. Notions of individual responsibility rather than those of community empowerment and restorative social justice continue to be the basis for our youth justice system.