Monday Message 07.03.16
Mark Fenhalls QC
A couple of weeks ago I met some of the people who run the Restorative Justice Council. It struck me that “restorative justice” was an idea that practitioners should know more about. Before you sniff dismissively and assume that it is some kind of well-meaning but impracticable project of little application in your “real world”, consider this…
MoJ research shows that restorative justice works for all types of crime, right up to the most serious offences. The last significant government study several years ago showed that it provides an 85% victim satisfaction rate and a 14% reduction in the frequency of reoffending. This should mean that every £1 spent on restorative justice should save the CJS about £8. Links to various reports considering the evidence can be found HERE.
Last Thursday on ITV, there was an episode of the Tonight programme called ‘Meeting My Enemy’, which showed the benefits that restorative justice can have for both victims and offenders. The documentary featured two cases. One was a burglary, where a drunken offender broke into the house of a 93-year-old woman and her daughter while they were at home. The other was a manslaughter case, where a young man was killed by a single punch while on a night out in Nottingham.
Both offenders went to prison, but it wasn’t a “lock them up and throw away the key” story. Instead the programme explored the impact that restorative justice can have. Many report that it can be a transformative experience, helping the victim to put the crime behind them and move on and the offender to recognise the impact of their behaviour and ultimately not to reoffend. You can read about the programme and see a powerful short film recorded by the mother of a teenager who died from an ecstasy overdose about the beneficial effects of restorative justice HERE. The full programme is HERE.
Restorative justice is not new and reforms over the last five years have sought to embed it across the justice system. Section 44 and schedule 16 of the Crime and Courts Act 2013 permit the deferral of sentence following a guilty plea for pre-sentence restorative justice. Section 15 of the Offender Rehabilitation Act 2014 allows it to be included within the requirements of a community or suspended sentence.
The Restorative Justice Council has published a briefing for criminal justice HERE. It is a process which can take place at every stage of the justice system, whether as part of an out of court disposal, pre-sentence following a guilty plea, as part of a community or suspended sentence, alongside a custodial sentence, or in historical cases. The offender must plead guilty, and all participants must voluntarily consent to take part. It does not replace a prosecution. Those who have experience stress that it is not a soft option and can have a remarkable effect alongside conventional sentences in making offenders face the consequences of their actions and reduce re-offending rates.
The process will often involve a face to face meeting, which is led by a trained facilitator who assesses the participants and arranges safeguards. But if a face to face meeting is not appropriate, participants can instead communicate indirectly, for example through letters or videos as happened in the short film mentioned above.
Of course much of this may not directly affect many of your cases, but I am sure we would all agree that anything that leads to reductions in re-offending and greater public confidence in the CJS can only be a huge benefit to us all. Pre-sentence pilots have taken place in ten Crown Courts with what participants describe as very promising results. You can find the evaluation report by the Institute for Criminal Policy Research HERE. For the right case and client this could be a critical step to embark upon after plea and before sentence. There is of course no guarantee of success, but it is hard to imagine a better way for an offender to demonstrate remorse.
For the victims, the process gives them a very welcome and much needed voice if they choose it. It provides an opportunity to explain the impact that the crime had on them, ask any questions that they may have, and potentially receive an explanation and an apology. In the Crown Court pre-sentence pilot (mentioned above) 90% of the victims said that it affected them in a positive way and 94% saying that they would recommend it to others.
Computers etc into prisons:
Last week I was sent a copy of an IT policy for a private prison that sought to ban Apple devices. Various other professions were covered in the policy, but it seemed they did not think about lawyers. We have raised the issue at a high level with HMCTS who are trying to sort this out with the Prison Service. I suspect everyone involved with the reform programme is deeply frustrated with what appears to be a privately owned prison introducing their own security policy that runs contrary to everything we are all trying to achieve with digital working. There is a very specific Prison Instruction (PI) dealing with the taking of IT equipment into prisons, but anecdote suggests that it is simply not implemented day to day by staff on the gates. And it ought to apply equally to private sector prisons as to those in the public sector. Please keep sending in the examples so we can try to get this irritating and counterproductive problem solved.
The Bar Council has recently published a document to draw barristers’ attention to their legal obligations in relation to countering money-laundering and terrorist financing, and to make some practical suggestions. Whether you do direct access work or not, it is worth reminding yourself of your obligations and responsibilities. We should all be grateful for the work done by the Ethics Committee on our behalf. But please note the caveat that it is not “guidance” for the purposes of the BSB Handbook I6.4, and it has not been approved by HM Treasury.