Transcript A REVIEWOF RESTORATIVE JUSTICE PROVISION IN EUROPE

Reflections on the Status and Influence of
Restorative Justice
BSC Seminar
Cardiff, February 2009
Professor David Miers
Cardiff Law School
BSC Seminar Cardiff February 2009
Introduction: three broad themes
• The status of RJ across European jurisdictions, where both
the European Union and the Council of Ministers have
expectations about the place of RJ within the public
prosecutors’ and the judiciary’s repertoire of responses to
crime.
• The common law world: England and Wales
• MoJ research (July 2008)
BSC Seminar Cardiff February 2009
Legal Base
legislative position; soft law, duties on gatekeepers
• specific legal authority / general law
• permissive: may consider before action:
gatekeeper discretion (Belgium, Finland, France)
• coercive
– an obligation to consider (Austria, Germany, Slovenia)
– an obligation to refer (England and Wales (referral
orders); NI)
BSC Seminar Cardiff February 2009
Legal Scope
subjects; offences; orientation; gatekeepers; points
of intervention; legal effect
• Offences: typically at the less serious end
• All jurisdictions target both adults and juveniles:
but considerable variation in provision
• Orientation: victims / offenders / both
• Gatekeepers: prosecutor, courts, police, social
services
• Legal effect: post arrest, pre-charge, pre-trial,
sentence (deferral and condition), post sentence
BSC Seminar Cardiff February 2009
Legal Organisation
agencies: establishment and funding; practice and
intervention types; outcomes
• Delivery: a mixed economy
• Funding: central, local, mix
• Mediators: dedicated public body; professionals /
volunteers (training; NGO guidelines); accreditation /
approval
• Processes: consensual; preparation for and conduct of
meeting; direct / indirect; confessions (A6)
• Outcomes: apology; reparation; community work; offender
focus; not usually enforceable in civil law (Finland);
almost always relevant to the trial / sentence.
BSC Seminar Cardiff February 2009
The European Dimension:
EU Framework Decision (2001) Article 10
• available at all stages of the CJ process
• legislation should promote the use of mediation
services for offences which the MS ‘considers
appropriate’
• participation should not be used as a evidence of
guilt in subsequent legal proceedings
• minimalist; permissive; almost all EU states in
easy compliance save the last for E&W: [A6]
BSC Seminar Cardiff February 2009
The European Dimension:
Expectations: FSJ: the Pupino Case
• EU Green Paper COM(2004)134 Final: on the
approximation, mutual recognition and enforcement of
criminal sanctions
• Pupino: Case C-105/03 preliminary ruling AA 2, 3 &8 FD
2001 (Standing of Victims): ‘perfectly comprehensible’ that
TEU should extend ECJ remit to Title VI
• difficult for EU to achieve objectives if the principle of
MS’ ‘loyal co-operation’ to take apt measures to meet their
obligations did not also extend to Title VI
BSC Seminar Cardiff February 2009
The European Dimension:
Council of Europe 1
• R(85)11: position of victims in criminal procedure
• R(2006)08: assistance to victims
• R(99)19: mediation in penal matters:
• Guidelines (Dec 2007 / March 2008): better
implementation of mediation in penal matters:
– availability, accessibility, awareness
BSC Seminar Cardiff February 2009
Council of Europe: Mediation in Penal
Matters (R(99)19): scope
• Five broad areas within which there are many subheadings; impossible to deal with all here
–
–
–
–
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General principles
Legal basis and legal rights
The relationship with criminal justice
The operation of restorative justice services
Continuing development of restorative justice
• Demanding: clear gaps in practice across the EU
BSC Seminar Cardiff February 2009
England and Wales:
a summary 1: RJ is available
 as a matter of law or of discretion
 in the case both of adult and young offenders, and
in the case of young offenders in some cases as a
mandated response
 as pre-court (cautioning), as pre-sentencing,
sentencing, and sometimes post-sentencing,
options
 on paper, though not always nationally
BSC Seminar Cardiff February 2009
England and Wales: young offenders
 pre-court: reprimands and final warnings:
mandatory (Crime and Disorder Act 1998), and
conditional cautions (Criminal Justice and
Immigration Act 2008): discretionary
 sentencing: referral orders: mandatory (Powers of
Criminal Courts (Sentencing) Act 2000)
 sentencing: reparation and other orders:
discretionary (PCC 2000, CJI 2008)
BSC Seminar Cardiff February 2009
England and Wales: adult offenders

pre-court: simple caution: discretionary (general law)
 pre-court: conditional cautions: discretionary (Criminal
Justice Act 2003)
 pre-sentence: deferred sentence: discretionary (PCC 2000)
 sentencing: compensation orders: discretionary (PCC
2000)
 sentencing: community orders: discretionary (CJ 2003)
BSC Seminar Cardiff February 2009
England and Wales: overview 1
 HMG conception of RJ / VOM: Criminal Justice and Immigration Act
2008 section 9: the sentencing court must have regard to ‘the making
of reparation by offenders to persons affected by their offences’.
 RJ as a technique, not an end in itself (qv many EU countries)
 1980s: ‘caution plus’; HO funded schemes; died during 1990s: young
offenders: Crime and Disorder Act 1998, YJCE 1999
 Restorative Justice: the Government’s Strategy (Home Office, 2003):
substantial expansion in its role for adults: conditional cautions
(extended to young offenders s 48 and Schedule 9 of the CJI 2008) .
BSC Seminar Cardiff February 2009
England and Wales: overview 2
 Many discretionary options for adults: standing as supplements rather
than alternatives to conventional criminal justice responses (Sherman
and Strang, 2006, 52): well illustrated by the guidance issued by the
Office of Criminal Justice Reform (OCJR), Restorative Justice:
Meeting Local Needs. This states that ‘the Government’s strategy on
restorative justice is to encourage, without requiring, its use’. It invites
local criminal justice boards ‘to consider how restorative justice
approaches for adult offenders could contribute to delivering on their
priorities, particularly on victims and public confidence’ (Office of
Criminal Justice Reform 2005, 1.3.1).
BSC Seminar Cardiff February 2009
Problems
•
•
•
•
•
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Net widening
‘the soft touch’
managerialism
definition: retribution / rehabilitation
fair trials
does it work
BSC Seminar Cardiff February 2009
Research 1
 ‘Restorative justice holds the promise of restoring victims’
material and emotional loss, safety, damaged relationships,
dignity and self-respect’ (Hoyle, 2002; p. 101).
• Restorative justice can be distinguished by two particular
ideas (Wright 2001; p. 360): ‘one is that the process is an
essential part of the response: it is constructive, perhaps
even therapeutic. The other is reparation.’
BSC Seminar Cardiff February 2009
Research 2: intrinsic benefits

Evaluations in continental European (Miers, 2001),
Australasian and North American jurisdictions (Morris,
2002: 604; Sherman and Strang 2007) generally show very
high levels of participation and satisfaction on the part of
both victims and offenders at the conclusion of the process.
• Some qualifications: England and Wales: Miers et
al.(2001), Newburn et al. (2002), but generally positive
(Shapland et al. 2007)
 Victims critical of process ‘drift’, O insincerity, lack of
clarity of outcome and of delayed closure
BSC Seminar Cardiff February 2009
Research 3: instrumental benefits 1

Does RJ ‘work’? A reduction in the frequency or severity
of offending is for most policy-makers the litmus test
(Hoyle et al., 2002). Two key questions:
does RJ reduce re-offending?
if it does, does it do so more cheaply than the
conventional response?
• Generally the evidence is more positive in the case of
young offenders: Audit Commission, 2004, National Audit
Office, 2004), Sherman and Strang (2007)
BSC Seminar Cardiff February 2009
Research 3: instrumental benefits 3:
Shapland et al (2008): reoffending 1
• Offenders who participated in RJ committed statistically
significantly fewer offences (reconvictions) in the
subsequent two years than the control group: quantity test.
 No significant differences in terms of severity of
reconviction between RJ and control groups: quality test.
 No significant effect of any demographic or offence
variable (age, ethnicity, gender, offence type) on whether
RJ created differences in whether offenders were
reconvicted or in the frequency of reconviction between
JRC restorative justice and control groups.
BSC Seminar Cardiff February 2009
Research 3: instrumental benefits 3:
Shapland et al (2008): reoffending 2
 No differences in subsequent reconviction related to V’s
views about the conference, whether V and O knew each
other, whether VV accepted any apology the O made, or
whether VV thought the offender was sincere.
 With adult offenders alone, there were significant
relationships between several measures of re-offending and
offender views about the conference: experience,
realisation of harm done; meeting V, involvement and
usefulness: all significantly and positively related to
decreased subsequent reconviction.
BSC Seminar Cardiff February 2009
Research 3: instrumental benefits 3:
Shapland et al (2008): costs and vfm
Costs primarily determined by staffing No clear relationship between
the size of the scheme or cost per case; schemes covering larger
geographical areas not much more costly. Work involving adult
offenders or serious offences not intrinsically more costly. Indirect and
direct mediation no cheaper than conferencing. Ease of operating the
process, particularly in elements which depend on relations with other
criminal justice agencies an important determinant.
• Unable to put a monetary value on victim satisfaction or any
improvements to victim health from taking part in restorative justice.
One programme (JRC) produced a net benefit.
BSC Seminar Cardiff February 2009