I would like to begin by saying that I am sorry I couldn't personally attend the Justice Research Consortium's Restorative Justice at the Coalface Conference. I hope that all who attended found it worthwhile, and I know you had a full and interesting programme.
In this speech, I'd like to look forward, to the future of restorative justice, in particular in relation to sentencing.
The Government's overarching objectives for the criminal justice system are:
Restorative justice contributes to most, if not all, of these measures. We are committed to developing the use of restorative justice in the criminal justice system, based on evidence from the current programme of pilots.
Restorative justice can take place at any stage of the criminal justice system. It can take place where a case is diverted from court, as will be the case in conditional cautioning; it can take place pre-sentence, so that a sentencing court can take account of the restorative process in passing sentence, or the restorative outcome agreement can take the place of a formal sentence; it can be the process by which the court formulates the sentence, as in Canadian sentencing circles; it can form part of what an offender is sentenced to do; or it can be something entered into post-sentence, for example on a victim-initiated basis while a sentence is being served, or afterwards.
So far, the development of restorative justice for adults in this country has taken place alongside the mainstream criminal justice system. Much of it has been encouraged and facilitated by criminal justice professionals - for example probation officers working in victim liaison units, or police delivering cautions restoratively. But it has remained, in essence, a private transaction between the individuals concerned.
We are now beginning to take steps towards integrating it more fully into the adult criminal justice process - that is, to use restorative processes to decide what the criminal justice system requires of the offender, perhaps backing up that requirement with penalties if they fail to comply. This raises a number of difficult and important issues on which we need to develop a consensus - about the aims and limits of criminal justice interventions; fairness and consistency; and human rights. I want to raise those issues - focusing on sentencing, where they are perhaps at their most acute - in the hope of launching a debate that will lead to that consensus.
These are already live issues, because we are already beginning to use restorative processes to determine what is required of an offender. In the new conditional caution, implementation of which is due to begin later this year, the conditions of the caution can be determined using a restorative process, and the offender will be prosecuted for the original offence if they fail to complete the conditions they've agreed with their victim.
You have heard from the Justice Research Consortium speakers about their work providing restorative conferences pre-sentence in London crown court cases. Judges have taken offender's participation in pre-sentence restorative justice into account in sentencing, and the Court of Appeal has ruled that they are right to do so, and that willingness to participate alone can justify a reduction in a custodial sentence. It is after all a tangible expression of the acceptance of responsibility and the desire to make amends.
These are also issues that will become increasingly important in future if, depending on the results of our current research programme, we take further steps to integrate restorative approaches into the Criminal Justice process. The 2003 Criminal Justice Act already allows a court to make participation in a restorative process an activity requirement of a sentence served in the community, and we are planning to pilot this. At the moment, there is no suggestion that the offender would be required by the court to comply with anything they agree to do in the restorative process; but, in principle, subject to resolution of the issues I will mention, we could consider this. The effect would be similar to the youth justice Referral Order. I would stress that policy in this area is very open - we are looking years ahead. But eventual decisions in this area would need to be informed by clear thinking on these issues.
The first issue we face is that restorative processes and sentencing have different - though overlapping - objectives. The 2003 Criminal Justice Act set out five purposes of sentencing. One of these is reparation, which restorative processes are very good at achieving. Indeed, the Act even specifies that reparation can include restorative processes involving the victim and offender. We know that restorative processes can do more than court to meet the needs of and empower victims, involve communities, and enable offenders to take responsibility for their actions. But it is clear that restorative justice cannot fulfill or replace all the other important and legitimate purposes of sentencing - especially punishment and protection of the public for the most serious offenders and offences.
But there are difficult dilemmas. For example, what if the participants during a pre-sentence restorative process agree that the offender should repair some material damage they have done to the victim's property that needs addressing straight away; but the court feels that it needs to hand down a custodial sentence? Or the participants might decide that the offender should attend an anger management course; but the court might require a quite different accredited offending behaviour programme, on the basis of an evidence based assessment. It may be difficult to find the resources to do both.
There are no easy answers to these kinds of questions. They highlight trade-offs that are inherent in the different purposes of sentencing, and between the purposes of sentencing and wider social objectives. Such conflicts are common in the sentencing process anyway, so the issues are not entirely new. However the impact of restorative processes pre-sentence on sentencing decision-making, balancing the range of objectives, and the question of what might be appropriate trade-offs for participation in Restorative Justice, are issues we need to consider in greater detail.
A second issue is the implications of restorative justice for the principle of consistent sentencing. A great advantage of restorative processes is their responsiveness to the particular needs and ideas of the individuals involved. But such 'personalised' justice appears to conflict with the idea that fair sentencing requires consistency - that similar offenders, who have committed the same offence, should be treated in consistent ways; and that what happens to an offender should be proportional to the seriousness of the offence.
These issues of consistency and proportionality arise as soon as there is any form of requirement from the criminal justice system that the offender complies with what they have agreed to do. The issues are particularly acute if non-compliance is backed up with criminal penalties, but arise even if the means of enforcing the requirement are less clear. In New Zealand the Children, Young Persons and their Families Act 1989 makes clear that the court retains ultimate control over sentencing even after referring (as it must) all admitted offences to a restorative justice process, the family group conference. The conference provides a recommended plan to the Court but if the Judge considers the outcome is excessively severe or lenient the plan is not accepted.
This is exactly what happened in the Clotworthy case, a case involving an adult offender, where, following a successful and productive restorative justice process, the participants wanted the offender to stay out of jail, to enable him to pay compensation. The judge passing sentence initially went with the wishes of the participants, but this was overturned by the Court of Appeal, which decided that only a custodial sentence was proportionate to such a serious assault. However it imposed a reduced term of imprisonment because of the offender's participation in the restorative conference (R v Clotworthy (1998) 15 CRNZ 651 (CA) at 661). This question, of the balance between consistency and proportionality of outcomes, and the ethos and the benefits that the more personalised justice restorative processes have to offer, in all their variety of outcomes, is one that we will need to look at carefully.
A third issue we need to consider is the relationship between restorative justice and the European Convention on Human Rights. Article 6 of the European Convention on Human Rights guarantees the right to "a fair and public hearing" by "an independent and impartial tribunal". But restorative processes arguably don't meet this, because of their active involvement of the victim, and other interested parties. And although they may involve representatives of the wider community, they also often - though not in all models - take place in private and in confidence.
These questions lead onto consideration of the safeguards that must be in place to ensure that the offender's human rights are not compromised by involvement in restorative justice. There are at least four potential safeguards, some or all of which can be used. We need to look in greater detail at each one, and about how they can be used in combination.
A first safeguard is the principle, already consistent with restorative values, that it is crucial that any restorative process that results in a state requirement on the offender must be voluntary for the offender. They must be able to opt out, and to walk out, of a restorative process, or to veto its outcome, and have their case revert to a more conventional sentencing process. The criminal justice system must always be there as a backstop. There is no question about this principle, and the Government is absolutely committed to it.
But this safeguard of voluntary participation is not, on its own, sufficient to safeguard human rights. The problem is that offenders who are vulnerable, or who don't fully understand what the restorative process is about, may voluntarily agree to things that are inappropriately onerous. Imagine an offender with learning difficulties daunted by an angry victim. Or a female offender facing a male victim, where both are from a culture where women are expected to defer to men.
So a second safeguard must be a clear means of quality control over restorative processes. A skilled facilitator will be able to deal with power imbalances between participants, and ensure the rights of all are respected. Work on this is already in hand. We published Best Practice Guidance for Restorative Practitioners in March this year, and Skills for Justice, the justice sector skills council, will use this guidance as the basis for new National Occupational Standards and accredited awards for restorative justice. We are also pleased to see the development of a professional association for restorative practitioners, and we hope that membership of this will be an indicator to employers of high quality practice.
Thirdly, it is important that participants in a restorative process have full, accurate information about the implications of what they are doing, about the options available to them and their rights. They must be able to put across their needs, views and points of view. Access to professional legal advice is one way to help ensure this, along with skilled facilitators. But it needs to be managed with great skill and care, because it is also important that a legalistic or adversarial approach doesn't undermine a restorative process, or disempower the individuals involved.
The fourth safeguard is court oversight of the restorative process or its outcome. I have already described how the court oversees the outcome in cases coming before the New Zealand Youth Court. In Canadian sentencing circles, a judge facilitates and oversees the whole restorative process, as well as its outcome.
I am well aware that I have raised more questions than answers. I have highlighted three areas for further thinking - the balance within any one sentence, between upholding the objectives of restorative justice and meeting other objectives of sentencing; the tension between the principle of consistent sentencing and personalised justice where the outcome depends on those most intimately involved; and the requirements of the ECHR for impartial public justice as a right for every offender. I have outlined four safeguards which we will need to examine to ensure the rights of everyone involved - the principle of voluntarism, meaning that every offender has the right to return to the 'backstop' of a traditional CJS process; a quality assurance process in place; the right to legal advice; and court oversight of restorative processes that play a role in sentencing.
But there are many questions still to be resolved, and with the implementation of the 2003 Criminal Justice Act and the growth of restorative justice, the time has come to address them. I am pleased to note that the Sentencing Advisory Panel is currently considering key elements of the Criminal Justice Act 2003 and I will ensure that they are kept informed about the steps we are taking in relation to the integration of restorative justice. I look forward to the outcome of their deliberations.
I would like to finish with a quote from Judge Fred McElrea, one of the judges who has pioneered thinking about sentencing and restorative justice in New Zealand. He said
"Restorative Justice is a wonderful message of hope to academics, practitioners and a public who alike had become dispirited, weary and wary. Part of this hopefulness lies in our experience of breaking some of the stereotypes that permeate criminal justice. In the Australian RISE research, conferences were seen as fairer than courts by both victims and offenders. In New Zealand, Police Youth Aid officers are involved in conferences as constructive, helpful participants. Everywhere victims are regularly found not to be vengeful people demanding their pound of flesh. Lawyers are capable of playing non-adversarial roles. Judges can be enablers and servants. What a breath of fresh air it is to be free of those rusty old shackles, to be hopeful, to be inspired by the prospect of a better way of doing justice."