BSC Seminar Cardiff February 2009 Reflections on the Status and Influence of Restorative Justice BSC...

BSC Seminar Cardiff February 2009

Reflections on the Status and Influence of Restorative Justice

BSC Seminar

Cardiff, February 2009

Professor David Miers Cardiff Law School


Introduction: three broad themes

• The status of RJ across European jurisdictions, where both the European Union and the Council of Ministers have expectations about the place of RJ within the public prosecutors’ and the judiciary’s repertoire of responses to crime.

• The common law world: England and Wales

• MoJ research (July 2008)


Legal Base legislative position; soft law, duties on gatekeepers

• specific legal authority / general law • permissive: may consider before action:

gatekeeper discretion (Belgium, Finland, France)

• coercive– an obligation to consider (Austria, Germany, Slovenia)

– an obligation to refer (England and Wales (referral orders); NI)


Legal Scope subjects; offences; orientation; gatekeepers; points

of intervention; legal effect

• Offences: typically at the less serious end• All jurisdictions target both adults and juveniles:

but considerable variation in provision• Orientation: victims / offenders / both • Gatekeepers: prosecutor, courts, police, social

services • Legal effect: post arrest, pre-charge, pre-trial,

sentence (deferral and condition), post sentence


Legal Organisationagencies: establishment and funding; practice and

intervention types; outcomes

• Delivery: a mixed economy

• Funding: central, local, mix

• Mediators: dedicated public body; professionals / volunteers (training; NGO guidelines); accreditation / approval

• Processes: consensual; preparation for and conduct of meeting; direct / indirect; confessions (A6)

• Outcomes: apology; reparation; community work; offender focus; not usually enforceable in civil law (Finland); almost always relevant to the trial / sentence.


The European Dimension: EU Framework Decision (2001) Article 10

• available at all stages of the CJ process • legislation should promote the use of mediation

services for offences which the MS ‘considers appropriate’

• participation should not be used as a evidence of guilt in subsequent legal proceedings

• minimalist; permissive; almost all EU states in easy compliance save the last for E&W: [A6]


The European Dimension: Expectations: FSJ: the Pupino Case

• EU Green Paper COM(2004)134 Final: on the approximation, mutual recognition and enforcement of criminal sanctions

• Pupino: Case C-105/03 preliminary ruling AA 2, 3 &8 FD 2001 (Standing of Victims): ‘perfectly comprehensible’ that TEU should extend ECJ remit to Title VI

• difficult for EU to achieve objectives if the principle of MS’ ‘loyal co-operation’ to take apt measures to meet their obligations did not also extend to Title VI


The European Dimension:Council of Europe 1

• R(85)11: position of victims in criminal procedure

• R(2006)08: assistance to victims

• R(99)19: mediation in penal matters:

• Guidelines (Dec 2007 / March 2008): better implementation of mediation in penal matters:– availability, accessibility, awareness


Council of Europe: Mediation in Penal Matters (R(99)19): scope

• Five broad areas within which there are many sub-headings; impossible to deal with all here – General principles

– Legal basis and legal rights

– The relationship with criminal justice

– The operation of restorative justice services

– Continuing development of restorative justice

• Demanding: clear gaps in practice across the EU


England and Wales: a summary 1: RJ is available

as a matter of law or of discretion

in the case both of adult and young offenders, and in the case of young offenders in some cases as a mandated response

as pre-court (cautioning), as pre-sentencing, sentencing, and sometimes post-sentencing, options

on paper, though not always nationally


England and Wales: young offenders

pre-court: reprimands and final warnings: mandatory (Crime and Disorder Act 1998), and conditional cautions (Criminal Justice and Immigration Act 2008): discretionary

sentencing: referral orders: mandatory (Powers of Criminal Courts (Sentencing) Act 2000)

sentencing: reparation and other orders: discretionary (PCC 2000, CJI 2008)


England and Wales: adult offenders

pre-court: simple caution: discretionary (general law)

pre-court: conditional cautions: discretionary (Criminal

Justice Act 2003)

pre-sentence: deferred sentence: discretionary (PCC 2000)

sentencing: compensation orders: discretionary (PCC 2000)

sentencing: community orders: discretionary (CJ 2003)


England and Wales: overview 1

HMG conception of RJ / VOM: Criminal Justice and Immigration Act

2008 section 9: the sentencing court must have regard to ‘the making

of reparation by offenders to persons affected by their offences’.

RJ as a technique, not an end in itself (qv many EU countries)

1980s: ‘caution plus’; HO funded schemes; died during 1990s: young

offenders: Crime and Disorder Act 1998, YJCE 1999

Restorative Justice: the Government’s Strategy (Home Office, 2003):

substantial expansion in its role for adults: conditional cautions

(extended to young offenders s 48 and Schedule 9 of the CJI 2008) .


England and Wales: overview 2

Many discretionary options for adults: standing as supplements rather

than alternatives to conventional criminal justice responses (Sherman

and Strang, 2006, 52): well illustrated by the guidance issued by the

Office of Criminal Justice Reform (OCJR), Restorative Justice:

Meeting Local Needs. This states that ‘the Government’s strategy on

restorative justice is to encourage, without requiring, its use’. It

invites local criminal justice boards ‘to consider how restorative

justice approaches for adult offenders could contribute to delivering on

their priorities, particularly on victims and public confidence’ (Office

of Criminal Justice Reform 2005, 1.3.1).


Problems

• Net widening

• ‘the soft touch’

• managerialism

• definition: retribution / rehabilitation

• fair trials

• does it work


Research 1

‘Restorative justice holds the promise of restoring victims’

material and emotional loss, safety, damaged relationships,

dignity and self-respect’ (Hoyle, 2002; p. 101).

• Restorative justice can be distinguished by two particular

ideas (Wright 2001; p. 360): ‘one is that the process is an

essential part of the response: it is constructive, perhaps

even therapeutic. The other is reparation.’


Research 2: intrinsic benefits

Evaluations in continental European (Miers, 2001), Australasian and North American jurisdictions (Morris, 2002: 604; Sherman and Strang 2007) generally show very high levels of participation and satisfaction on the part of both

victims and offenders at the conclusion of the process. • Some qualifications: England and Wales: Miers et al.(2001),

Newburn et al. (2002), but generally positive (Shapland et al. 2007)

Victims critical of process ‘drift’, O insincerity, lack of

clarity of outcome and of delayed closure


Research 3: instrumental benefits 1

Does RJ ‘work’? A reduction in the frequency or severity of offending is for most policy-makers the litmus test (Hoyle et al., 2002). Two key questions:

does RJ reduce re-offending?

if it does, does it do so more cheaply than the conventional response?

• Generally the evidence is more positive in the case of young offenders: Audit Commission, 2004, National Audit Office, 2004), Sherman and Strang (2007)


Research 3: instrumental benefits 3: Shapland et al (2008): reoffending 1

• Offenders who participated in RJ committed statistically significantly fewer offences (reconvictions) in the subsequent two years than the control group: quantity test.

No significant differences in terms of severity of reconviction between RJ and control groups: quality test.

No significant effect of any demographic or offence variable (age, ethnicity, gender, offence type) on whether RJ created differences in whether offenders were reconvicted or in the frequency of reconviction between JRC restorative justice and control groups.


Research 3: instrumental benefits 3: Shapland et al (2008): reoffending 2

o differences in subsequent reconviction related to V’s views about the conference, whether V and O knew each other, whether VV accepted any apology the O made, or whether VV thought the offender was sincere.

With adult offenders alone, there were significant relationships between several measures of re-offending and offender views about the conference: experience, realisation of harm done; meeting V, involvement and usefulness: all significantly and positively related to decreased subsequent reconviction.


Research 3: instrumental benefits 3: Shapland et al (2008): costs and vfm

Costs primarily determined by staffing No clear relationship between the

size of the scheme or cost per case; schemes covering larger

geographical areas not much more costly. Work involving adult

offenders or serious offences not intrinsically more costly. Indirect and

direct mediation no cheaper than conferencing. Ease of operating the

process, particularly in elements which depend on relations with other

criminal justice agencies an important determinant.

• Unable to put a monetary value on victim satisfaction or any

improvements to victim health from taking part in restorative justice.

One programme (JRC) produced a net benefit.

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