News & Insights
The downward spiral of the criminal justice system provides opportunities for alternative approaches to dealing with offending behaviour and offenders. Joe Hingston discusses why measures such as “Restorative Justice” should be prioritised if we are to tackle some of the challenges.
Restorative Justice (RJ) has a loyal following from all corners of the criminal justice system. But its use, particularly in dealing with adult offenders, has been sporadic at best. Perhaps because the concept of RJ has not always fit snugly into our adversarial format: the idea that ‘opposing parties’ could meet informally and resolve their differences without intervention from the court process has not always been embraced. However, with the criminal justice system under considerable strain, there is perhaps no better time for it.
RJ allows people affected by crime to communicate with the person responsible, with the hope that victims can move forward and offenders confront the impact of their wrongdoing. There is no formal process, but for any type of RJ to take place, the offender must have accepted their responsibility and both the victim and the offender must have consented to the process. The conferences are set up by trained facilitators who prepare the parties and ensure that the process is safe.
Currently RJ is more widely used with youth offenders; either before a case comes to court in diversion or as an order following a finding of guilt as part of a Referral Order or a Youth Rehabilitation Order.
But RJ has been given far less attention when dealing with adult offenders. The Government’s recent White Paper on ‘smarter’ sentencing released last year placed emphasis on deferring sentences but made no mention that this might be accompanied by RJ, even though the Sentencing Code provides for it (Part 1, Ch. 7, Section 7).
Pilot programmes are launched periodically by Police and Crime Commissioners, but these are limited in scope and often temporary. The availability of RJ relies on the whim of the various agencies, able to deploy trained facilitators.
The advantages of RJ are not contentious: satisfaction rates amongst victims are very high and it reduces re-offending. The figures vary, but they point in the same direction.
By the same token, the criminal justice system is enduring an extraordinary crisis – paucity of funding, case backlogs, overcrowded prisons and inherent distrust in how the system now works.
Perhaps then the time is ripe for bold change – and this should include the use of innovative measures such as RJ. The benefits are numerous:
1 – Changes in criminal behaviour
The police, prosecutors and the courts are having to deal with more cases, many of which could be dealt with more effectively by RJ.
Sexual allegations made by students
The ‘Everyone’s Invited’ website has triggered a national reckoning on how children behave towards each other in the school environment. More than 10,000 anonymous allegations and testimonials about sexual violence and abuse have been made.
Some of these complaints will amount to criminal wrongdoing, but arguably not all of them should be dealt with by the courts, a process which can lead to the disproportionate ruination of young peoples’ lives. In the appropriate circumstances and facilitated in a sensitive way, RJ could offer an alternative.
The death of Sarah Everard, national lockdowns, Extinction Rebellion, the Black Lives Movement, and Brexit have all brought people onto the streets in public protest. Large demonstrations have unfolded into civil disobedience and public disorder. Hundreds of protestors, often of good character, have been arrested on single days. The criminal justice system cannot cope with that influx of cases. In cities such as Philadelphia in the United States which have experienced similar disorder, the local prosecutor has diverted hundreds of cases – or about 80% of arrests of protestors – under a program called the Civil Unrest Restorative Response. There is no reason why similar initiatives could not be considered here. RJ does not simply need to be “one on one” but can take the form of community conferences.
Year on year, the number of hate crimes has increased. RJ is one way of strengthening trust in the criminal justice system and empowering victims. It might be suitable in cases where the offender is of good character, accused of a non-violent offence, and willing to confront their prejudices.
2 – Failure to fund a broken system
The government’s latest budget offered no new money to the Ministry of Justice. It will continue to limp along. RJ can offer savings in the long term.
A number of reports on RJ champion significant savings – a report commissioned ten years ago revealed that the cost of implementing a national RJ scheme would be paid back in the first year and during the course of two parliaments society would benefit by over £1 billion.
Although there has been some skepticism of these figures, the House of Commons’ Justice Committee’s report released in 2016 into RJ recognised it is value for money.
3 – Broken and bursting
Weekly government bulletins remind us that prison population exceeds prison capacity. The latest recidivism rates for adults released from custodial sentences of less than 12 months was at 61.0%. It is an appalling record.
Overwhelmingly we are imprisoning those who have complex needs. The government accepts that “too often, short-sentence prisoners leave custody just as illiterate, as unemployable and as prone to drug dependence as when they went in.”
Despite the pronouncements of successive governments, prison does not work. We must alleviate overcrowding by offering more effective community sentences or, alternatively, custodial sentences must better prepare offenders to be released as law abiding citizens. RJ has a part to play.
4 – Restoring faith in our “world beating” system
Public confidence in our criminal justice system is at its low water mark. The police are no longer trusted to tackle anti-social behaviour and other crimes which blight communities. Disenchantment with the formal process needs to be remedied.
The victim lobby is an increasingly powerful political voice and, for better or worse, can engender change. Yet the criminal justice system is failing victims – trials being listed in 2023 is inexcusable, the impact for the victims is wrenching. Those affected by crime do not necessarily want to see an increase in maximum sentences – they want empowerment, closure and faith in the system. RJ has proven to be a satisfactory alternative in divert cases away from a hemorrhaging court backlog.
The government should make RJ a priority – both in diverting cases and in sentencing. Schemes should be funded properly and for the long term. Consideration should be given to prioritising RJ and integrating it with other sentencing disposals.
RJ will not cure all of the ills that beset criminal justice system – and it will not fit every case. But it is one example of how a more creative and dynamic approach could be adopted to divert cases away from the court process in the first place. It has the capacity to make a timely contribution.
Joe Hingston is a barrister acting exclusively for the defence. In recent years, his practice has included instructions in allegations of murder, organised crime including drug and firearm importation. He takes a particular interest in initiatives aimed at modernising the criminal justice system. He undertakes a considerable amount of work pro bono and is Chair of Trustees of APPEAL, a charity which aims to tackle miscarriages of justice.
Ben Hargreaves explores the inherent challenges in the admissibility of sexual history in sex cases. Section 41 of the Youth…
Tom Edwards looks at the impact of the shift from Joint Enterprise to Common Purpose in the five years since…
An analysis of the law on fitness to plead and stand trial in the magistrates’ courts: Silas Lee reviews the…
Silas Lee, pupil barrister, reviews the statutory regime on witness anonymity. Anonymous witness orders are most commonly sought by the…