Paper presented to Scottish Government conference, ‘Progressing Thinking about Restorative Justice in Scottish Criminal Justice’, 21 February 2008, Edinburgh .
RESTORATIVE JUSTICE – CRIMINAL JUSTICE
ROBERT MACKAY
Introduction
I have been asked to speak about how restorative justice might be incorporated into the Scottish criminal justice system. This is a task I take up gratefully and with enthusiasm. So at this point I should make it clear that what I am about to say may be taken down and used as evidence of what I think, but it does not represent the views of Perth and Kinross Council, which has kindly given me the time to prepare for and to participate in this seminar. I should also say that I am not speaking here on behalf of Restorative Practice Scotland, though I will speak up for it.
Some of what I say may be widely shared, some not, but it’s all for open and friendly discussion.
A Scots story
Before I address my task directly, I would like to tell you one of my favourite Scottish stories. I apologise if any of you have heard it before, but it tells us such a great deal about restoration and about justice. My tale concerns three young men, whom I shall at this point call Tom, Alex, and Jamie, and two gangs which regularly used to fight each other. These fights were pre-arranged. The gangs had their own badges and symbols. They also had young women members. They were territorial. Now on one particular occasion the fighting got out of hand, and Alex, who was carrying a knife, cut a member of the other gang, Jamie, on the head. Jamie was left lying in the street. He was later admitted to hospital.
This story could come from many parts of the United Kingdom. The volume of knife crime and the incidence of violence between young men are points we would recognise and rightly deplore. How often do we speak often about attempting to crack down on the knife and gang culture?
But that is as far as the similarities go between the way we look at this type of incident now, and how we might respond, and what really happened in this tale, because this story comes from Edinburgh in the eighteenth century[i].
Tom was a canny young man. Alex and he were mortified about what had happened, and offered to make reparation to Jamie, using a local gingerbread maker as an intermediary. Jamie, a proud working-class lad, refused any reparation, or 'smart money', out of a sense of honour, thinking that this would be interpreted as his having had his silence bought. He was no clype. Instead, Jamie suggested that they gave a pound of snuff to his landlady. This was done. And that’s the end of the story.
Of course, policing wasn’t as sophisticated as it is now - no CCTV – indeed my source wrote: 'this mode of fighting, in parties and factions was permitted in the streets of Edinburgh, to the great disgrace of the police, and danger of the parties concerned'[ii], but this was perhaps just as well for Tom, because, instead of becoming a disaffected youth, he became a judge, and is known to us today as a brilliant writer, and one of our most illustrious countrymen, by the name of Sir Walter Scott.
Lessons from young Walter's tale
This is a story from which one can draw many lessons. Apart from the obvious point that many of us could have landed in trouble with the law, three things stand out here.
The first is that the community may have resources to deal with some bad behaviour in its midst in constructive ways which remove the need for official action, to say nothing of punishment.
The second is that there are three parts to restoration, one being amends to be made by the offender to the victim; the second, the re-establishment of right relations between the people involved; the third, reconciliation and the restoration of social relationships. What is important here, and what everyone in the story recognised, was that a wrong had been committed, and needed to be put right in ways that were acceptable to and indeed honourable for both parties.
The third point is that this is a story that comes from Scotland’s own tradition, its own experience of dealing with harm inflicted by one person upon another. It is reflected in the medieval and early modern procedure of assythment. John Braithwaite, the great Australian criminologist, once challenged participants at an international conference in Belgium to identify the restorative traditions in their own communities. In Scotland we have such a tradition, and we should learn from it. In 1986, I mediated a case which was very similar to Walter's tale. Two young adults and their parents sat together in a room and resolved the case. This meant that the offender was able to gain employment. Months later I got on a bus. The bus driver, the victim's father, recognised me and said that mediation had been a good experience and that it had resolved the trouble in their area.
What has restorative justice to offer in the context of the Scottish Government's objective of helping Scotland 's communities become safer and stronger?
Before we can answer this question we have to define what we mean by 'restorative justice'.
'Restorative Justice' covers many different notions. It is a simple idea at heart, but it is like the beautiful rose that has grown out of control and needs a severe pruning. Another way of putting it is that there is a burgeoning market in the semantics of restorative justice. But it's helpful at least, if you know what I think I'm talking about.
I use as a starting point the definition used by the Prison Fellowship International Restorative Justice On-line website, which is incidentally the best web source of information, resources and reading that I have found on restorative justice:
Restorative justice is a theory of justice that emphasizes repairing the harm caused or revealed by criminal behaviour. It is best accomplished through cooperative processes that include all stakeholders[iii].
(These are: the victim, the offender, an official representative of the community at least such as a judge or prosecutor, and possibly others too, like relatives or friends.)
My own view is that restoration should be an objective of criminal justice. It is based on the view that the offender has an obligation to make amends to the victim for the harm they have done. Much of the criminal and civil law is based on the need to prevent or respond to the harms that people are tempted to and do perpetrate upon each other. So whatever else is done, according to those who support restorative justice, the legal system must facilitate the repair of harm. However, it is acknowledged that the criminal justice system has other things to do besides concerning itself with restorative justice. It has to provide for public protection and community safety. It must denounce proscribed behaviour.
'Restorative practice' or 'restorative processes' which I will use here for preference, refers to activities like mediation and conferencing. 'Restorative practice' is also used to cover cases in relation to cases dealing with victim-offender conciliation or reconciliation, where there is no impact upon the criminal justice outcome, as in work done with murder victims' families and offenders facing capital punishment. It is also used to encompass work where there is no criminal jurisdiction invoked in the case, such as in school bullying in.
In considering what restorative justice has to offer, I will refer to R educing Reoffending - N ational Strategy for the Management of Offenders, 2006.
It is impossible to find reference to restorative justice in this document, which is disappointing considering that the Scottish Executive 'Consultation on Reducing Reoffending' in April 2004 did receive recommendations about developing restorative approaches in criminal justice. However, there are loopholes which allow for the incorporation of restorative processes, and there are also points which should actively encourage such a development.
Under 'Outcomes for communities' (p5) it cites 'Improved satisfaction for victims, sentencers and beneficiaries of work by offenders'. Under 'Outcomes for offenders' it refers to
'improvements in the attitudes or behaviour which lead to offending and greater acceptance of responsibility in managing their own behaviour and understanding of the impact of their offending on victims and on their own families' (ibid)
In the section 'Working together in new ways' (p17) it states that 'Partner Bodies will [in the period until 2008] .... Assess their contribution to the better management of offenders, including how they may be able to offer innovative approaches.'
Later on, in a section on victims, it states (p24) 'The needs of victims and witnesses will continue to merit high priority in the reform of offender services.'
Restorative justice has two key components for the offender and the victim [See Figure 1 below.]: (1) restitution by the offender to the victim for the material harm or injury, whether or not it is directly quantifiable, and (2) the restoration of proper relations between the offender and the victim. By this I do not mean conciliation or reconciliation, but the establishment of a proper footing on which the victim and offender can conduct their relations, and a confirmation to them both by the authorities of the outcome of the justice process. A restorative justice outcome would be one in which, for instance, reparation was made to the victim in compensation for damaged or stolen property, or for physical injury, and an apology and agreement about how relations will be conducted in the future, for instance in relation to non-harassment or casual meetings. The confirmation of the agreement by the authorities, whether by the procurator-fiscal or court has the effect of formalising and normalising relationships between the offender and victim[iv].
FIGURE 1
Restorative justice may achieve a number of outcomes which are consistent with the objective of making Scotland safer and stronger.
First, as part of a wider range of measures connected with concerned with victimisation, it may provide practical benefits for victims of crime. Through well conducted restorative processes, victims may experience a degree of vindication and of resolution of the distress and trouble caused by the offender; of practical amends, and reassurance for the future. Thus a victim may come to feel safer than they might have done otherwise after an offence. Notice, I say 'may'. I do not want to be said to make extravagant claims for restorative processes.
Second, restorative processes may serve to engage the offender in an exercise of learning and change: learning about the impact of their own behaviour upon the victim and about how to make amends; change to their way of thinking, their motivation. This can serve to promote a sense of responsible citizenship. It can also serve to reduce the risk of re-offending. It is far more likely to achieve this objective than punishment can.
Third, to the extent that communities are involved in restorative processes, a greater sense of community cohesion may be developed. The employment of volunteers from local communities as mediators or facilitators in restorative processes, the establishment of alternative forms of reparation to the community when a victim doesn't want to receive any form of restitution, may serve to re-establish community confidence. There is increasing interest in international circles in the development of local 'community capacity governance'[v], whereby local people develop co-operatives known as Peace Committees or Forums for Peaceful Co-existence. These co-operatives are paid for dealing with low level conflicts, disputes and minor offences, provided they operate according to set protocols. This has become known as the Zwelethemba model after the township in Cape Town where this approach was developed[vi].
Fourth, and above all, restorative processes will serve to re-establish confidence in the processes of criminal justice. If we adopt restorative justice into the heart of our system of justice, we really will give victims their place, not to determine sentence or whether someone should be prosecuted, but to be heard, to have their needs taken into account, and for them to obtain material amends. We will also properly hold offenders to account for their actions, in a proportionate way, in a way that makes them face up to what they've done, but in a way that enables them to put things right, as far as this is possible and they can achieve it, and in a way that they will see as fair and justified.
How might restorative justice and restorative practices 'fit' with current or future criminal justice strategies?
I would be anxious about speculating on how restorative justice might fit with future criminal justice strategies, so I'll try to focus on the current agenda.
Restorative justice is based on the idea that the offender is obliged to make amends. The offender is accountable for fulfilling any agreement to make amends and the court and the prosecutor is entitled to require the fulfilment of an agreement. If the victim does not seek restitution, the offender should be given the opportunity to make amends in others ways to the community. The successful completion of a restorative agreement should normally have a bearing upon the criminal justice disposal.
With these points in mind, we can find opportunities within the scope Summary Justice Reform agenda in the Criminal Proceedings etc. (Reform) ( Scotland ) Act 2007 to introduce reparative arrangements to benefit both the victim and the community. The capacity of the procurator fiscal to impose compensation orders of up to ￡5,000 can be carried out as an outcome of a restorative process, confirming an agreement between the victim and the offender. This would be an enhancement of what can already happen under existing diversionary arrangements. It is suggested that a mediated agreement that can take into account not only the question of material compensation but also the proper relations between victim and offender, through the making of an apology and an agreement about proper conduct, such as non-harassment, or civil greeting on the stair or in the street.