by Frank Schnittger
Wed May 4th, 2016 at 06:59:26 AM EST
NB This post does not seek to represent the official views of RJS Limited.
One of my few remaining active responsibilities post retirement is to act as a voluntary director and community representative on the Board of Restorative Justice Services Ltd., a charity funded by the Probation Service of Department of Justice. As such, I am somewhat constrained in what I can say on the subject, and in particular, must avoid using confidential or privileged information. However one of our roles is to act as an advocacy group for restorative justice in Ireland, and it is in that spirit that I offer the following summary (based largely on internal documents) of what is being done in the area of restorative justice in Ireland, and particularly in the greater Dublin area.
Restorative justice is defined in National Commission on Restorative Justice Final Report (2009) (PDF) "as a victim-sensitive response to criminal offending, which, through engagement with those affected by a crime, aims to make amends for the harm that has been caused to victims and communities and which facilitates offender rehabilitation and integration into society".
We see restorative justice as complementary to the punitive or retributive criminal justice system and we manage the process entirely under the supervision of the Courts service and the Department of justice. There is in Ireland, at present, no statutory basis for our service and as such participation is entirely at the discretion of the relevant Judge, the offender and the victim. The service generally intervenes pre-sentencing and is focused on offender rehabilitation and harm reduction with a view to reducing re-offending and the impact of crime on victims and the wider community.
At present we offer services only for adults in the greater Dublin area while a sister organisation offers somewhat similar services in Cork City, Offaly and Tipperary. The service is simply not available elsewhere in Ireland yet. A different model of restorative justice is offered in parts of Northern Ireland arising largely out of the Troubles and as an alternative to the vigilante justice that was sometimes meted out by paramilitary groups. I will not offer an account of this service as I have no direct experience of it.
There are quite a wide range of different models of restorative justice in operation throughout the world arising out of different social traditions and judicial systems. We focus on just two: Victim Offender Mediation, and more commonly, Offender Reparation Panels which do not require victim involvement. Initially our focus was on less serious offences committed by first time offenders, but increasingly the focus has shifted to more serious crimes committed by repeat offenders. We currently deal with c. 250-300 cases a year referred by the courts with the help of volunteer panel members and a small staff of full time and sessional case workers.
Offender Reparation Programme
The offender reparation programme gives adult offenders referred by District and Circuit criminal Courts prior to sentencing an opportunity to reflect on and make up for the harm caused by their actions and behaviour. It is a form of restorative justice which may involve dialogue with the victims of the crimes but does not require their involvement. The purpose is both to repair the harm and to reduce the risk of re-offending.
Referrals are for a wide range of offences, including assault, theft, burglary, criminal damage, public disorder and drug offences. To be eligible, offenders must accept responsibility (usually by pleading guilty), show remorse and indicate a willingness to repair the harm and avoid further offending.
Offenders appear before a Panel to discuss what happened, how the harm caused might be repaired and how to avoid re-offending. The Panel comprises three people, a representative from the community (chairperson), the Probation Service and the Gardaí.
Key restorative questions that offenders are asked include: what happened, what they were thinking then and since, who was affected and how, how things might have been done differently and what they think needs to occur to repair harm and avoid re-offending.
If all goes well, a list of actions to be undertaken by the offender is agreed and a "contract" to that effect is drawn up between the panel and the offender. A case worker works with the offenders, accompanies them to panel meetings, supports them throughout the process and prepares a report for court. When the offender has completed these actions, he or she appears at a second Panel meeting for a review of the work prior to return to court.
On return to court, the judge decides the appropriate sentence taking all factors into account, including the actions completed by the offender. In some cases the Judge may apply the Probation Act in which case the Offender avoids a criminal conviction altogether - an important consideration for offenders with a previously clean record and who may wish to travel to work abroad. All aspects of the process are important and Panel members and case workers often remark on the change that occurs in offenders' understanding and attitude between Panel meetings.
The process is faithful to restorative values, principles and objectives: It is respectful, challenging and constructive and focuses on accountability, responsibility, reflection, awareness-raising, and the repair of harm.
Agreed actions by the offender typically include:
- Writing about who was affected by their actions and how, what they have learned from their experience and what they would do differently in a similar situation in future.
- Meeting with the victim or their representative or a volunteer from the National Crime Victims Helpline.
- Writing letters of apology to the victim and other people affected.
- Undertaking victim awareness work.
- Making direct reparation to the victim.
- Making a charitable donation.
- Undertaking voluntary work in the community.
- Undertaking a programme such as anger management, alcohol or drug awareness, substance abuse treatment.
- Researching and writing on issues relevant to the offence such as the effect of alcohol or drugs or the links between drugs and crime.
All actions are agreed voluntarily, and actions related to victims depend on the victims' willingness to engage in the process. No pressure is exerted on victims to engage, and when they do, great care is taken to avoid any risk of re-victimisation.
A restorative approach typically has a number of benefits for all the stakeholders:
From the funders point of view the Offender Reparation panel process is a cost-effective way of dealing with crime. The costs incurred are generally a tiny fraction of the costs that might otherwise be incurred through incarceration - although it should be noted that the judge retains complete discretion over sentencing and a reduced sentence is not a guaranteed outcome.
Where they wish to participate, victims can benefit by getting an opportunity to tell their story and ask questions, getting reassurances, receiving an apology, and seeing the efforts to repair the harm. This can significantly mitigated the trauma experienced by the victims of crime and promote a recovery and healing process.
Communities benefit indirectly from charitable donations and voluntary work done by offenders and from the avoidance of future offending.
Offenders can make up for what they have done wrong and move on with their lives and may receive a lesser sanction by the Courts or avoid a criminal conviction altogether.
The process is fully documented and all staff and volunteers receive formal training. Within budgetary restraints, Restorative Justice services is seeking to expand the number of referrals from the courts and to extend coverage to a wider area.
The National Commission on Restorative Justice Final Report (2009) (PDF) recommended that legislation be enacted to extend the application of restorative justice processes and provide safeguards, protect core values and address sensitive issues.
Extending restorative justice services nationwide and increasing the number of cases referred by the Courts would be greatly facilitated by placing the service on a statutory footing and giving offenders and victims a right to apply to have their case dealt with on a restorative basis.
Judges, barristers and solicitors need far greater training and awareness of restorative processes and the whole system needs to become more focused on the need to repair the harm to victims and their communities and to give offenders a greater opportunity for rehabilitation.
There is presently no formal educational qualification in restorative justice processes in Ireland and the general level of awareness of what these entail is quite low in both the legal profession and in public debate more generally.
There is also a need to broaden the scope of restorative interventions available. Too often it is years after the initial offence by the time an offender has been found guilty, and that is much to late to lessen the trauma experienced by the victim in most instances. By that stage many victims just want to move on and want no further involvement. An intervention prior to prosecution might be far more beneficial to many victims in that situation.
No system is perfect, and restorative justice processes are not necessarily applicable to all crimes, offenders and victims. But we have experienced very few failures, and more often than not these relate to the incapacity of the offender to engage with almost any process.
General elections, such as the one now underway in Ireland are often influenced by debates on Law and Order, and Sinn Fein's proposal to abolish the (non-jury) Special Criminal Court has become an issue in the current campaign. No one has ever (to my knowledge) campaigned to broaden the scope and application of restorative justice processes. This is a pity because they have been shown to promote offender rehabilitation, reduce recidivism, reduce victim trauma and reduce the costs of the justice system generally in many different jurisdictions world-wide.
Here's hoping that a more constructive and informed debate on Criminal Justice can be had in the future.