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The future place of restorative justice in the criminal justice system

Minutes of the Annual General Meeting of the All-Party Penal Affairs Parliamentary Group held on 3 July 2012 at 5.00 pm in Committee Room 6

The Future Place of Restorative Justice in the Criminal Justice System

Lord McNally, Minister of State, Ministry of Justice
Lizzie Nelson, Director, Restorative Justice Council
Javed Khan, Chief Executive, Victim Support 

Lord Ramsbotham, in the chair
Lord Bradley
Paul Flynn MP
Paul Goggins MP
Baroness Hamwee
Lord Hodgson of Astley Abbotts
Baroness Howe of Idlicote
Lord Hylton
Baroness Linklater of Butterstone
Earl of Listowel
Paul Maynard MP
Lord Woolf

Lord Ramsbotham introduced the evening’s speakers.  The meeting was fortunate in having Lord McNally, Minister of State in the Ministry of Justice, with them.  He knew Lord McNally had a strong interest in the evening’s topic, restorative justice, and he was very pleased to invite him to open the proceedings.

Lord McNally began by saying how glad he was to join members of this group. He too referred to the moving event the previous week to celebrate the life of Lord Corbett. It had been an eclectic gathering, with a strong penal affairs element to it. He had known Robin Corbett for forty years, and knew how committed he was to this cause. He also said he regularly saw the notices for the Penal Affairs Group and shared members’ admiration for the organisation behind it. He had enjoyed the AGM. There was nothing more complete in the workings of democracy than the election of officers for all party groups.

He was delighted to be there, and to share the platform with Lizzie and Javed.  He knew Javed, but had heard Lizzie for the first time at a round table at the MoJ that morning. He knew the meeting was in for a treat.  He continued:  ‘I plan to use this time to set out the Government’s approach to restorative justice in England and Wales. In addition, let me make clear that I am an ardent supporter of the principles of restorative justice (RJ). I believe it offers an opportunity not only to assist the rehabilitation of offenders but to give victims a greater stake in the resolution of offences and in the criminal justice system as a whole.

Victim-led restorative justice can allow us to make inroads into the re-offending cycle, with the triple benefit of victims avoiding the trauma of future crimes, the tax payer not having to foot the bill for more crime, and a rehabilitated offender making a positive contribution to society.  As many of you know far better than me, the evidence for the effectiveness of restorative justice is promising.  Analysis conducted by the MoJ of a number of restorative justice pilots showed that 85% of victims who participated were satisfied with the experience and there was an estimated 14% reduction in re-offending.   The government is therefore committed to making use of restorative justice in more areas, and in more circumstances, across the criminal justice system.

Crucially, the increased use of restorative justice needs to be rooted in local needs and responsive to local crime and re-offending. It needs to be driven by how practitioners, victims and communities want to respond to crime in their area. This is part of a move towards localism where we accept that different areas will have different approaches. To ensure restorative justice is delivered in the way most appropriate for each area, we are working with partners like the Restorative Justice Council to provide local areas with the tools to make greater use of restorative justice with confidence.   Therefore as part of our response to lower level crime, more than 18,000 police officers have been trained in restorative practices. We are also working with 15 local areas to develop Neighbourhood Justice Panels which will bring together the victim, the offender and community representatives to respond to low-level crime by using restorative justice and other reparative processes.  

Further up the system, over £1 million is being provided to train prison and probation staff and volunteers and to develop guidance, and we are providing over £600,000 to Youth Offending Teams to provide training to Youth Referral Panel members to deliver more restorative and reparative panels. Provisions in the Legal Aid Sentencing and Punishment of Offenders Act which received Royal Assent on 1 May will also allow courts to make wider use of Youth Referral Orders which are focused upon restorative and reparative outcomes.  All of this work is geared towards enabling local areas to build the capacity and capability to develop and deliver RJ practices which are effective and victim focused.

We also believe there could be a place for restorative justice before the sentencing process for offenders who admit guilt and are able and willing to participate alongside the victim. Pre-sentence restorative justice would inform the court's decision about what the right type of punishment should be. At this stage, we need to learn more about how this would operate, and hope to work with one or more local areas to test pre-sentence restorative justice out.

To ensure that restorative justice is delivered to a high standard, we funded the Restorative Justice Council's 'Best Practice Guidance for Restorative Practice', and last year the Ministry of Justice and the Restorative Justice Council launched a National Register of Restorative Justice Practitioners and professional qualifications accreditation. This allows criminal justice staff and voluntary sector organisations supporting victims to recommend properly trained individuals who can safely and effectively support victims to participate in restorative justice.  We cannot hope to achieve our aims without the crucial involvement of victims. So I am particularly pleased about our continuing work with Victim Support. One of the key purposes for expanding the use of restorative justice must be to give victims a greater stake and voice in the resolution of offences and in the criminal justice system as a whole.

The government published its response to the consultation, 'Getting it Right for Victims and Witnesses' yesterday. There we recognised that, despite the improvements that have been made over the last two decades, victims still too often feel they are an afterthought for the criminal justice system. We are committed to ensuring that victims get the support they need to deal with the immediate aftermath of a crime and, over time if need be, receive further help, which may include compensation, to put their lives back on track.

To realise these ambitions the government has committed to reviewing and updating the Victims' Code and the use of the Victim Personal Statement as well as the process for dealing with complaints when something has gone wrong. We will prioritise, as part of this review, how the offer of a restorative approach can be incorporated in a revised Code and whether the Victim Personal Statement could be used as a way of a victim signalling their interest in restorative justice.

The government has also committed to make offenders pay reparation to victims for the harm they have caused. This may be financial - through court ordered compensation paid by the offender to the victim - or indirectly, through revenue raised from the Victim Surcharge which is spent on support services.  We are also providing Victim Support with £38 million in funding per year until 2014 so it can invest in services that are victim focused; we have put rape support centres on a secure financial footing for the first time, with 65 centres around the country receiving total grant funding of nearly £3 million a year until 2014; and we have further guaranteed funding of £2 million a year for the next two years to fund specialist support for adult victims of human trafficking.

The next significant step in this context has been the government's consultation on community sentences. I'm very pleased that this included a substantial section on reparation, looking at how we can ensure that restorative justice is more regularly used in the sentences of the court and what more we can do to strengthen the role of victims in it. The consultation closed on 22 June, and we are still busy working through the responses. However, it is clear from initial analysis that there is considerable practitioner enthusiasm for greater use of restorative justice. And I hope to see some constructive proposals that build on what we've achieved already.

Our vision, therefore, is for a criminal justice system which understands and addresses the issues involved for victims, offenders and wider communities, responds intelligently and is more effective. We want a system that focuses relentlessly on tackling reoffending, helping offenders lead law-abiding lives and supporting victims. This is why we will continue to work with organisations across the sector to improve best practice, tackle capacity hurdles, extend the use of restorative justice and firmly establish its place now and for the future in the criminal justice system.’

Lord McNally concluded by saying that that was the end of his text. He told the meeting that he hated reading speeches, and quoted one of his early mentors, Michael Foot,  saying that he had found this one of the worst things about being a minister ‘because I like being as excited as everybody else about what’s coming next.’ He again mentioned the round table meeting that lunchtime, which had left him with things to think about. Good intentions were not enough. Things needed to be thought through, to ensure that delivery and expectations were in kilter. Otherwise public confidence in the concept of RJ would be undermined. However he was convinced that the government was on its way in this area, and completely committed to taking it forward. He was looking forward to the support of all the organisations and individuals in the room to making it a reality in the very near future.

Lord Ramsbotham thanked Lord McNally very much indeed for his presentation, and reflected on how delighted Charles Pollard of Thames Valley Police, one of the original proponents of RJ, would have been to hear it. He agreed that the key would be to ensure that it was implemented in the best way.  He then introduced the next speaker, Lizzie Nelson, and noted how very much she had contributed to progress thus far.

Lizzie Nelson began by thanking the meeting for its invitation, and thanking Lord McNally for his and the government’s support.   This had been crucial in shifting the culture amongst the criminal justice agencies towards taking RJ seriously. She continued: ‘The Restorative Justice Council (RJC) is the national membership body for restorative practice. We have around 250 member organisations, which are the organisations delivering RJ at a local level around the country. Since the launch of our practitioner register last year we now have 250 registered individuals, who are also members of the RJC.  

As we heard already from the Minister, RJ works. We don’t have to debate the evidence any longer. There was a £7m 7-year study showing that it reduced reoffending, delivered very strong victim satisfaction, and that 70% of victims who were offered the opportunity to meet the offender face to face following a serious crime of burglary or robbery took up that offer. So we know that it works. And we know it’s the right thing to do. Giving victims the opportunity to confront the offender with the real impact of the offence and encouraging offenders to face up to what they’ve done and to take responsibility for its impact on others is simply the right thing to do. I think that’s why the Prison Reform Trust’s ICM poll last year showed that 88% of the public support a victim’s right to confront the offender with the real impact of their crime. I think that’s also why we have received such strong cross-party support. I want to take this opportunity to thank all the peers who spoke in the recent debates on the LASPO Bill in favour of legislation on RJ. It is really striking to see the wide range of support, from cross bench peers and from all three main political parties.

We believe that RJ should be available to any victim of crime, at any stage of the criminal justice process. It shouldn’t be an intervention only offered for low level crimes, or only if you get to court, or only post sentence. It should be available at every stage of the system. Good progress is being made. The Minister has already spoken about some of it, through developing the evidence base, and through the training that has been rolled out among many police forces.  The government has recently funded £1m of training in NOMS. So there is a lot to be positive about in terms of increasing the capacity.

But two things are really needed if we are to move beyond a culture change of encouragement to actually mainstreaming RJ and delivering that vision that the government has set out so clearly. One is the need for evidence-based practice standards to be maintained and adhered to. RJ only works when it is done well. If you don’t do the preparation, generally speaking victims simply won’t come. That’s what we are seeing in a lot of youth justice at the moment. Victims are sent a letter saying ‘we’ve already planned a meeting for two o’ clock next Tuesday. You can come if you want’. It doesn’t tell them this meeting is about them. It doesn’t prioritise whether or not this meeting is at a time that suits them. It’s no wonder that people don’t come. At the moment there is an attendance rate of just 13% amongst victims of crime, nationally.  

Yet we know that RJ only delivers these reductions in reoffending and these victim benefits if the victim and the offender actually get to meet and talk to each other. That’s what delivers these very strong findings of the government’s research. The preparation is essential, running the meeting well is essential, and the follow up is essential. All of that is the restorative process and you can’t just assume that because you have sent someone an opt-in letter they are going to come. So adherence to the practice standards that are based on the evidence the government has gathered is really essential as we roll RJ out more widely.

The second major gap is in relation to the legislation. At the moment the only provision in legislation for victims of adult offenders is in the CJA 2003 where there is a very brief mention of RJ as a possible activity requirement in a community sentence. Based on that legislation, Thames Valley Probation Service has managed to keep going an RJ service since the research trial closed in 2004. But they are the only area of the country that has consistently been involved in RJ post-sentence in the adult criminal justice system. W Yorkshire Probation has also recently introduced a service post-sentence based on this piece of legislation, and London are just starting one. So across the country there are just two areas that are offering RJ post-sentence for victims of adult offenders. And in relation to pre-sentence RJ, which the government has made clear they want more of – half the cases in the government’s 7-year study were pre-sentence – since the trials closed in 2004, there has not been a single incidence of pre-sentence RJ in this country.

If we want to see pre-sentence RJ develop, there are good grounds for doing so. Joanna Shapland’s evaluation of that research showed that more offenders say yes to participation pre-sentence, so more victims get access to RJ.  Victim participation rates and victim satisfaction were just the same pre and post sentence, and pre and post sentence victims also said that RJ had been offered to them at about the right time. The judiciary bowed to pre-sentence RJ, by which I mean that the offender has come to court, they have pleaded guilty, you don’t sentence there and then. You just defer, as if it’s part of the pre-sentence report writing. The judges liked it because it gave them additional information on which to base their sentence. So there is no reason not to introduce pre-sentence RJ as long as it is always voluntary for the victim and the offender, and victims have a choice to say yes or no. The evidence is very strong. I think Javed will say more about potential cost savings. But the key point is that without stronger legislation we won’t see any increase in pre-sentence or post sentence RJ.  So we really need the kind of amendments that many of the peers around this table supported and called for during the last debate.

That’s really all I wanted to say today. I don’t think we need any more evidence for either pre-sentence or post-sentence RJ. The key thing now is to move to action. And on the practice standards: we know what best practice is. We have got the evidence from practitioners, from the Government’s research, and from international precedent. All of that has fed into RJC Best Practice Guidance and national occupational standards on restorative practice. The key thing is to ensure that people actually work to those standards and don’t cut corners. We can best ensure that through practitioner accreditation, where people actually evidence those standards. The government has the power to ensure, through commissioning and guidance to areas, that these are the standards that must be met, wherever RJ is practised.’

Lord Ramsbotham thanked Lizzie Nelson very much for her presentation. He thought what a good thing it was that the RJC existed to ‘kite-mark’ good practice. He was also not surprised to hear that Thames Valley were still practising RJ, and spoke highly of the quality of their work at the conferences he had attended. He was pleased to introduce Javed Khan, Chief Executive of Victim Support. He expressed the hope that parliamentary time could be found for a debate on the recently published consultation, on which he and Javed had worked.

Javed Khan began:  ‘I’m really pleased to have the opportunity to speak at this APPG and to follow the noble Lord and the formidable Lizzie. The problem I have, though, is that I am not sure what I can say that is going to be particularly different. So I shall try to be as controversial as I can be, on behalf of victims. Because I don’t think everything is good. There is a lot of good that is developing but I don’t think we are quite there on everything.

I would like to place on record Victim Support’s welcome for the government’s commitment to RJ, which has been developing over the last year. We heard more about that yesterday. I see it as an approach which can go some way to empower victims who so often feel disempowered as a result of crime and, all too often, the result of the way they are treated after crime. However, let me reinforce at the outset, as has been said: it is the needs of the victim that must be at the centre of any effective approach.  That’s the only way that what is on offer is both truly “restorative” – giving back to victims some of what was taken away – and “justice” – where victims can begin to see that offenders recognise the harm done and are committed to facing up to their own responsibilities.

Effective restorative justice needs to have victims at its core but that does not mean it is at the expense of offenders or their rights. There has often been some misconception, and this becomes a victim versus offender debate.  But this is not a binary debate: it’s not an either-or. The rights and needs of victims and offenders are not mutually exclusive and we must not fall into that trap. That’s demonstrated by Victim Support in the work we have been doing with the Prison Reform Trust, the Restorative Justice Council and others, to challenge that outdated narrative.  Doing that is not easy and means challenging long-held preconceptions and assumptions – not least in the media.  I hope today’s discussion will help to move that along.  

I said in my contribution to the annual Perrie lectures last month that there are three key outcomes we most certainly all share:

•    The full rehabilitation of offenders (and prisoners)
•    An improved experience for victims of crime, and
•    A community that is confident the justice system is doing its job.

I think those are universal demands that we all place on the criminal justice system.  And in this vein, I believe restorative justice, when done well and with the needs of victims at its heart, is one of the most effective ways of helping offenders to face up to the impact of the crimes they have committed.  That is what so many victims tell our volunteers, that they want to know that the ‘wrong done’ is recognised by the person who commits that ‘wrong’. And that’s common sense: we all know that we can’t begin to put anything right in our own lives unless and until we recognise what has gone wrong and why.  To put it simply, it’s called taking responsibility.  Perhaps this is not universally fashionable but, I’d suggest, it’s always necessary.

So, facing up to the crime, to the ‘wrong’ committed, is a good and necessary action. It helps the offender and it certainly has real potential to help victims too. I believe, RJ can offer victims a sense that they are making the journey to take back control of their lives. It offers victims a real voice in the criminal justice system, something that is not always evident. That voice is core to the delivery of justice and that’s one of the reasons why Victim Support has been supporting RJ projects for many years; to strengthen the voice of victims in the justice system. And we know that the voices of victims tell us that satisfaction in that system is much stronger when RJ, giving victims a voice, has their needs at its core. As mentioned earlier, we know that 85% of victims are satisfied with restorative meetings and a not dissimilar number – 80% – of offenders feel the same. So, it works for both victim and offender.

And also, when RJ works properly, it raises confidence levels in the justice system more generally, and we know that that’s a major challenge for the government at the moment.  It can provide the community with greater feelings of security.  I believe that confidence levels will continue to grow as it becomes clear that RJ offers a real opportunity to reduce the level of re-offending – which in turn saves money and benefits us all. Victim Support and the RJC have estimated that if all victims of burglary, robbery and violence against the person were offered RJ it could save as much as £185m over two years (by lowering reconviction rates).   I would argue that there is a very strong case for an ‘invest to save’ approach, even in these fiscally constrained times.

So the case for victim led RJ is very strong. But let’s not get too excited just yet, as so far we have only heard some fine words. We already know that there are some major risks to effective RJ being rolled out, coming along very soon. The commissioning of victim services being handed to Police and Crime Commissioners is possibly the greatest of these risks if not done well. We have made our position consistently clear on this and found wide spread support from a range of organisations including the PRT.   Let us be under no illusions that without a national framework and obligations, local commissioning risks having a negative impact on the wider spread of RJ.  

We know that RJ has been shown to be very effective for victims as well as offenders.  It is also highly cost effective.  However, it is still not widely understood and may, therefore, not be prioritised by Police & Crime Commissioners if they are to be given that responsibility.  If this happens, local people will be deprived of the opportunity to benefit from RJ and the lack of resources will choke off the hard-won progress we have made.  Government has an obligation to listen and to act, not just to speak soothing words.  I would call on the Ministry of Justice to reflect carefully on the fact that 70% of respondents to their consultation on local commissioning have said “you’re making a mistake’.  I would ask: why have you chosen to ignore them?  .  

So, to end, we want to see RJ available to all victims who want it, at a time when they want it. It can’t be seen as something to impose on victims.  Rather, it needs to be a genuine offer that clearly aims to meet the needs of the victim.  This will take resources, it can’t be done on the cheap, and at a time when the future funding of services to victims is, at best, uncertain, we look to you, Minister, to help make real the aspirations and commitment we know you share with us.  If we achieve that I think we will build a justice system which we can all be proud of and which meets the needs of offenders, victims and society’.

Lord Ramsbotham thanked Javed Khan for his contribution and opened the floor for questions.