Lasting Powers of Attorney: recent key developments
Restorative Justice has hit the headlines recently with the House of Commons Justice Committee finalising its inquiry into Restorative Justice last month. This was followed by media reports (The Times, June 2 2016) of a forthcoming Green Paper setting out plans for a ‘Victims’ Law’ with the striking headline “Victims offered a say in choice of punishment for criminals”.
Sophie Wood explores what restorative justice means in practice and might we might expect to see in the Green Paper.
What is Restorative Justice?
Restorative justice, a non-adversarial, non-retributive approach to dispensing justice in a way that provides reparation for victims and holds offenders to account, enables harm to be repaired and facilitates communication to help build fractured relationships.
According to the ACPO’s Guidance, in order for a measure to be deemed ‘restorative justice’ it must meet the following standards:
1. The offender must take responsibility (and thus admit the offence);
2. The victim, community or other affected party must be involved (and be willing, along with the offender, to engage in the process);
3. There must be a structured process that establishes what has occurred and what the impact has been; and
4 There must be an outcome that seeks to put right the harm that has been caused or an outcome that makes other reparation that may not be directly related to the original case.
Why should it be used?
Whilst promoted as a ‘victim focused resolution to crime’, restorative justice has a number of other ancillary benefits. As the criminal justice system continues to face a deluge of financial assaults, it must adapt and utilise other mechanisms to ease pressures on courts and the overrun prosecution service whilst investing in measures that might assist rehabilitation and reduced reoffending. The system would therefore benefit from innovation like restorative justice which allows for mutually agreeable conclusions to be reached without the delay. In the Restorative Justice Council’s 2015 report over 85% of victims who took part in the process were satisfied with 78% stating they would recommend it to others.
From a defence point of view, it also offers a resolution that will avoid a disproportionate effect on an accused’s life. Criminal convictions (including cautions) can have a serious impact on a person’s life, no matter how big or small the offence. This is particularly true for those making visa applications, undertaking DBS checks and/or working in regulated sectors. Restorative justice is a far simpler, cost-effective and proportionate remedy.
What are the challenges?
The Ministry of Justice is firmly behind the further development and use of restorative justice measures - with its Action Plan 2014 reporting that a total of £23 million had been provided (2013 – 2016) to Police and Crime Commissioners to encourage restorative justice projects.
However, those who gave evidence before the Justice Committee (the Victims' Commissioner, representatives of the Community Rehabilitation community, the National Probation Service, National Offender Management Services and the Minister for Policing), were concerned about the lack of consistency across the country as to how forces approach and engage with this new tool. This appears in spite of ACPO Guidance released in 2011 and the Restorative Justice Council’s October 2015 Information Pack.
A further issue under debate was how to measure the success of restorative justice with broad agreement that it was better to gauge the success of the programmes through ‘victim satisfaction’ surveys rather than the number of referrals for Victim-Defendant conferences. The fact that a victim should not be “forced, pushed or cajoled” into this process was underlined in the evidence session by Justice Minister Mike Penning MP, backed up by Baroness Newlove, Victims’ Commissioner, who confirmed that being involved is the victim’s choice and the process should be empowering so “they can walk away and rehabilitate their lives”.
Currently victims’ rights are set out in the Code of Practice for Victims of Crime. The most recent version of the Code came into force on 16 November 2015. The 2015 Conservative Manifesto pledged that it would “strengthen victims’ rights further with a new Victims’ Law that will enshrine key rights for victims”. During the Restorative Justice inquiry, the Justice Minister promised MPs that he would bring forward a Green Paper setting out plans for a Victims’ Law “before the Summer”.
When asked whether the draft Bill would contain a right to access restorative justice, the Minister said “I cannot see any reason why we would deviate from the code. In other words, yes.”
What this entails and whether it addresses the concerns raised and detailed above we will have to see. Key issues of enforcement and redress are going to have to be debated. However the renewed focus on the implementation of these measures is to be welcomed and will hopefully assist not only victims, but offenders too in having a real opportunity to rehabilitate themselves from past misdemeanours – something all too often impossible to achieve once an entry is formerly recorded on the police national computer.
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