Introduction
The Criminal Justice System (CJS) in England and Wales is the major public service set up with the aim to deliver justice to all those that have been effect by crime, to achieve this effectively the CJS consist of multiple government agencies that have been tasked to “ deliver justice for all by convicting and punishing the guilty and helping them to stop reoffending, while protecting the innocent”, (Gardside,2008), other gaols of the CJS include the rehabilitation of offenders, preventing other crimes, and to provide moral support for victims.
The CJS consists of several interdependent components and is comprised in three main parts Law enforcement in the form of the police, Courts including the prosecution and defence and Agencies for detaining and supervising offenders such as prisons and probation agencies. Nevertheless, some of the services that are offered by the Criminal Justice System are available from a range of voluntary groups including victim support and Restorative Justice (RJ), (CPS, 2010).
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Restorative Justice (RJ) is an approach to justice in which it brings victims, offenders and the community affected by a crime together in a meeting in an attempt to deal with the after effects of a crime or conflict and try to find a way forward and attempt to repair the harm caused, (Crown Prosecution Service, 2017 and Gov.UK, 2015).
Restorative Justice sees crimes as something more than just breaking the law and the crime causes harm to people, relationships and the community and the use of Restorative Justice is a way for the harm to be repaired by all parties involved, (Centre for Justice and Reconciliation 2020).
Restorative Justice is an approach to criminal justice that emphasises on restoring the victim and the community rather than just punishing the offender/s the principles Restorative Justice use are to work with all that are personally involved most importantly are the victim and the offender but this does also include the family’s and the wider community. The use of this process helps reduce crime, violence and bullying it improves human behaviour, strengthen civil society, provide effective leadership restore relationships and repair the harm caused by the crime.
Restorative Justice brings those harmed by crime and those responsible for causing the harm together in a controlled meeting that has been arranged and a trained mediator has worked with both parties in advance, to communicate thus allowing all involved to be part of the of the repairing of the harm caused and to find a positive way forward for all parties involved with the aim to reduce future reoffending,(Wachtel, 2013). The process of Restorative Justice is increasingly being used in Schools, Children services, Workplaces, Hospitals, Communities and the Criminal Justice System, (Gov, UK, 2015). However The use of Restorative Justice can be an extremely challenging for the offender/s as it allows them to see the impact of their crimes and the effect this has had on their victim/s, nevertheless this process can provide the victim with the vital information they need to be able to move forward as Restorative Justice empowers the victim to communicate with their offender/s in order to achieve this potential life changing opportunity.
LITERATURE REVIEW
The Criminal Justice system has the overwhelming task of dealing with the constant and ever growing challenges of lowering the crime rates while enduring to uphold and maintain the public’s confidence in the criminal system (Brooks, 2017,). Restorative Justice could just be the answer the system is looking for as Brooks (2017) states that Restorative justice can lower offender rates by up to 25 percent. However, although this process is popular with the political process in Britain, it comes with its disadvantages as it is primarily only directed at the less serious crimes and youth offenders. On other hand, Marshall (1999) suggests that by using Restorative Justice with the more serious crimes there can be a lot of advantages in terms of the victim benefits, this process should only be used hand in hand with the criminal justice system and not as a substitute.
For many of the victims of crime seeing the offender held answerable for their offences by the use of the judicial system providing the victims with a level of closure thus allowing them to be able to move on from the crimes they have been a victim of is often enough. However, this is not the case with all victims of crime and the judicial process is not enough by itself, (Wright 2012). Restorative Justice is a process that provides the victims a voice that the Criminal Justice system often denies them, (Robb,2012).
Restorative Justice is a process by way of offering victims the opportunity to have their say in the outcome of the offence/s and to have an input into the punishment of the offender providing ways to improve and transform the way the victim’s needs are met, this process also allows the offender to face up to the consequences of their actions and the impact these have had on others, (Ministry of Justice, 2012).
Restorative Justice is a process set up to address some of the failings including the limits and failures of the criminal justice system, (Zehr, 1990).
“Crime is a violation of people and relationships. It creates obligations to make things right. Justice involves the victim, the offender, and the community in a search for solutions which promote repair, reconciliation and reassurance. (Zehr, 1990: 118).
Victim satisfaction plays a critical and substantial part in police-victim encounters and this can play a primary and essential role in the willingness of victims to co-operate. With this in mind the victim’s willingness plays an extremely significant part of the process that allows Restorative Justice to continue to work successfully on behalf of the victim/s, (Aihio, 2017). It was suggested by Camp and Wemmers, (2013) that victimology studies have revealed that procedural justice such as Restorative Justice does continue to make a difference to the victims of crime in the terms of how the criminal justice system deals with the cases as they go through the system.
For the purpose of this research project the definition of satisfaction that will be used is “the Fulfilment of one's wishes, expectations, or needs, or the pleasure” (English Oxford Living Dictionary’s, 2019). The Restorative Justice movement is a societal programme that is looking to work with and alongside the current punitive measures that are used by the Criminal Justice system, (Johnstone and Van Ness, 2007).
Restorative Justice (RJ) is as defined by the Ministry of Justice is “The process that brings those harmed by crime, and those responsible for the harm, into communication, enabling everyone affected by a particular incident to play part in repairing the harm and finding a positive way forward” (Ministry of Justice, 2014 p3). However, the term Restorative Justice has been used as a way to reference the fact Restorative Justice has a large range of approaches and not one single practice (Brooks, 2017). Although a jointly recognised and concise definition of the term has yet to be established T, F Marshall’s (1996) definition appears to encompass the main principles of Restorative Justice and is perhaps one of the most used, “Restorative justice is a process whereby all parties with a stake in a particular offence come together to resolve collectively how to deal with the aftermath of the offence and its implications for the future” (p. 37; cf Braithwaite, 1999, p. 5). However, this quote suggests that the topic possibly becomes problematic to debate due to the large range and variety restorative Justice has to offer, (Brooks, 2017). For the purpose of this dissertation this is the definition for Restorative Justice that will be used.
Restorative Justice was a fairly fresh idea in the field of criminology in the 1980’s nevertheless it was also a recent, new concept that has not been seen and used in the United Kingdom (Daniels, 2013). Crawford and Newburn (2002) likewise states that Restorative Justice has been renowned as maybe one of the most extremely influential developments in crime control in today’s society. Restorative Justice is a process that was introduced to concentre mainly on the victim and the process of the Criminal Justice System as Christie (1977) states that the objective of Restorative Justice is for the offence to belong to the victim just as equally as it does to the offender Christie, (1977), cited that, “Not only has he or she suffered, lost materially or become hurt, physically or otherwise ...but above all he has lost participation in his own case. It is the Crown that comes into the spotlight, not the victim. It is the Crown that describes the losses, not the victim. It is the Crown that gets the chance to talk to the offender, and neither the Crown nor the offender is particularly interested in carrying on that conversation. The prosecutor is fed up long since. The victim would not have been. He might have been scared to death, panic-stricken, or furious. But he would not have been involved. It would have been one of the most important days in his life. Something that belonged to him has been taken away from the victim. (1977: p7-8).
Christie (1977) states that the victim is the one that constantly misses out twice once as the victim of the original offence but then furthermore as a victim of the Criminal Justice System as there is an extremely improbable chance of being paid compensation for their loss. Furthermore, they play a very small role in whatever legal proceedings that follow nevertheless the use of Restorative Justice hands back this right and power back to the victims of crime.
Restorative Justice was originally introduced during the 1970s to manage low level crimes including burglary and other property crimes, however there was a confusion by the victims that Restorative Justice was about forgiveness, (Zehr, 2014). Zehr, (2014) also suggests that some victims do not have any understanding or belief in Restorative Justice as they are of the opinion that the fundamental destination of this process was to encourage or to persuade them to forgive their offenders.
Applications
Restorative Justice practices does in large rely on voluntary cooperation of all parties involved this limits the options available as if one or all parties involved are unwilling to take part than the matter must be dealt with by the formalities of the Criminal Justice system. Restorative Justice is largely centred around the restoration of both the victim/s and offender/s of crime this is achieved by returning the offender back in the community as a law abiding citizen and for the victim providing them with the closure they need to move on with their life after the crime, and to help the wider community as a whole, (Marshall,1999).
Newburn (2017) states that Restorative Justice measures are primarily aimed at just the youth offender/s rather than the adult offender/s also that Restorative Justice is only primarily used for the less severe crimes. Notwithstanding there are cases of successful Restorative Justice outcomes in relation to the more severe crimes, conversely if this is the case why is Restorative Justice not being offered on a larger scale and across all levels of crime. However, the reason for holding back Restorative Justice is solely put done to just two types of crime these are corporate crime and Domestic Violence, it is considered that these crimes are inappropriate to work with Restorative Justice.
The definition of Domestic Violence as stated by Victim Support is 'Any incident of threatening behaviour, violence or abuse (psychological, physical, verbal, sexual, financial or emotional) between adults who are or have been intimate partners, or intimately related within a family or domestic setting, regardless of gender or sexuality. Domestic violence involves abuse of power and control by one person over another and typically escalates in frequency and severity over time”, (Victim Support 2003, p.2).
Liebmann (2007) p. 268 states that nevertheless, many victims of domestic violence end up not taking the matter further and returning to their abusive situations, so prosecution does not deliver a resolution for everyone. However, Collins (2017) points out that the primary concern for domestic violence cases and the use of Restorative Justice is intimate partner violence this is a crime in which violence is caused by a partner against their current or former partner.
Despite these concerns raised by Collins (2017), the Restorative Justice Council states that Restorative Justice can have many major benefits for victims that have been affected by all crime types in certain circumstances. However, the council must ensure that the victims safety is maintained throughout the criminal process if indeed this is the cases and Restorative Justices is suitable for all crime types why is it not used in more cases of all crimes that a victim/s has been affected, this is the aim of the questions put forward in this dissertation.
Restorative Justice can be accessed at any point of the Criminal Justice System there are currently five identified points where the offender/s may be referred to a Restorative Justice Programme there are as follows, Police (Pre-charge), Crown (Post-charged), Courts (pre-sentence), Corrections (post-sentence) and Parole (pre-revocation).
Impact
Victim support states that for Restorative Justice to work effectively with offenders and victims. RJ can only take place with the agreement of all those involved mainly the victim/s and the offender/s, conversely there are many things that must be taken into account before any such meeting can be held. One of the most significant considerations to take in terms of RJ is the offender must have taken responsibility for their actions and the harm they have inflicted, even if this has taken place the individual in charge of the case may feel that Restorative Justice is not safe or suitable for all stakeholders involved, and finally Restorative Justice still may go ahead even if a direct meeting is not acceptable this can take place for example by communication by letter.
Gaudreault, (2005) indicates that many studies have shown that victims would be prepared to take part in Restorative Justice programmes if they had been given the opportunity to do so as seen in Gavrielides, (2018) found in his study that amongst the victims they surveyed 85 percent had never been offered the chance to take part in any such programme.
Effectiveness
“Restorative Justice can be a real force for good both for the person harmed and the offender”, (Rt Hon Lord Justice Fulford, Senior Presiding Judge, 2015-16). Government research indicates that Restorative Justice provides an 85 percent of victim satisfaction rate and a further 78 percent said they would recommend Restorative Justice to others in the same situation and a 14 percent reduction in reoffending rates after Restorative Justice. An advantage of Restorative Justice could lead to savings to our courts and the criminal justice system of £185 over two years, (Restorative Council, 2016).
The house of commons Justice committee states that Restorative Justice should be made available at any point of the criminal justice system, however despite the Crime and Courts Act 2013 allowing pre-sentence Restorative Justice to take place the victims commissioner found that this was not the case and it was only being offered at certain stages of the criminal justice system, (The House of Commons, 2016,).
The 14 percent in the reduction of offender rates proves beneficial as the Home Office and Ministry of Justice 2015 states that the cost of re-offending is to cost the UK taxpayer an estimated £9.5 Million to £13 billion per year.
Restorative Justice can be highly successful in servicing the needs of both the victim and the offender. Nevertheless, this is limited as such programmes are scattered and in turn are isolated from the mainstream Criminal Justice System this means that the actions of both are pulling in opposite directions, (Marshall,1999).
One limitation of victim offender mediation is the commitment on behalf of the offender to change their ways and to stop committing crime this can be seen in the lack of follow up support provided to the offender, (Marshall,1999).
Umbreit, Coates, and Kalanj, (1994), suggests however that victims and offenders who took part in Restorative Justice programs received better outcomes than those who did not participate.
Hill (2002) suggests however, that one of the main reasons for the small amount of victims taking part in Restorative Justice was that victims refused to use Restorative Justice this was mainly for two reasons one was due to a lack of interest and the other was due to misunderstanding of what the process entailed
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