THIS WEEK saw the publication of Lord Bracadale’s “Independent Review of Hate Crime Legislation in Scotland”. This was commissioned by the Scottish Government last year to examine the country's hate crime laws and is a full and comprehensive examination of the current state of play, with twenty-two recommendations on how to proceed.
Amongst many interesting areas, towards the end of the report, is a section “How the Criminal Justice System deals with Perpetrators of Hate Crime”. In the second paragraph it states “The report of the Independent Advisory Group on Hate Crime, Prejudice and Community Cohesion specifically recommended… explore the use of restorative justice…” but goes on to note that “Restorative justice processes have not been widely used”.
Restorative justice is, in essence, voluntary, facilitated, constructive dialogue between a victim and offender that seeks to make amends. It deals with the concern that at times we try to empower those who break the law, more than victims.
The Scottish Universities Insight Institute defines it as “a process that brings together those harmed by crime, and those responsible for the harm, to safely discuss the harm and how it might be set right”.
In essence then it is some form of voluntary (on both sides) communication between offender and victim, which takes place in a safe manner and environment, in which the offender must be prepared to admit responsibility but, crucially, there is noneed for victims to forgive.
Yet why is it necessary? One former police officer’s comments are worth reading: “Common feedback from victims and witnesses was the feeling that they were ‘on the outside looking in’. And once they had given their statement, they often heard nothing further until receiving a citation to attend court. In many cases this came as a surprise. They had expected to be contacted when the alleged offender had been traced, and spoken to, in order that they be involved in the decision making process, given that they are the ones who have been most affected by the incident”.
The concept of ‘Restorative justice’ seeks to address this. Joanna Shapland, Chair of the Scottish Restorative Justice Forum says the process allows victims and their families to ask questions that all those of us who’ve been a victim of crime will be familiar with, such as “why me?”, “are you sorry for what you did?”, and “what are you doing to change your behaviour?”
And to look the offender in the eye and receive an apology.
It includes victims in the process that follows in the aftermath of a crime and allows them to confront offenders with the real, human impact of their wrongdoing.
Restorative Justice works.
An academic evaluation of three schemes in England found up to 83 per cent of victims to whom “restorative justice” was offered, wanted to take part. Those who did appreciated the offender meeting them, answering questions, and the opportunity to receive a direct apology, which is not normally possible in criminal justice processes.
International research consistently shows very high rates of participant satisfaction with typically over 80 per cent of respondents saying they found the process helpful, are pleased they did it and would recommend it to others.
An outcome agreement – being an agreement between the parties for some kind of appropriate “restoration” was reached in 98 per cent of cases.
That seems to be positive from a victim’s point of view. From the offender’s perspective, Scotland’s reconviction rate has barely changed in seventeenyears.
According to University of Sheffield research, restorative justice processes significantly reduce the frequency of reoffending. Figures from New Zealand over a five-year period show that offenders who took part in restorative justice had a 15 per cent lower rate of reoffending and committed 26 per cent fewer offences overall than an appropriately constituted control group.
Yet despite these apparent benefits, the SNP are not encouraging it to any great degree. Bracadale notes that it “requires considerable devotion of resources if it is to be made to work” but the SNP prefer to empty the prisons without reviewing, understanding and resourcing what happens on the other end.
The SNP did publish guidance for the delivery of restorative justice in Scotland last year entitled Guidance for the Delivery of Restorative Justice in Scotland. It is good but underutilised.
When asked what restorative justice is, nearly half of local authorities either didn’t know or supplied an answer that substantially contradicts the Scottish Government’s own definition. Only five of our thirty-two local councils offer any sort of restorative justice service. Edinburgh runs it on a pilot basis and Shetland is the only council with a full adult offering – but just one referral in the space of a year. Others including Dundee, Perth & Kinross and Fife only offer versions for young offenders, and 16 do not offer any sort of restorative justice.
The Cabinet Secretary’s predecessor Kenny MacAskill said of restorative justice that there has been a ‘failure to take action’ as ‘a natural consequence of it not being made a ministerial priority’. Which, given that he was the Minister might be a close to an admission of failure as we’re going to get!
Steve Kirkwood and Mary Munro, academics at the Universities of Edinburgh and Strathclyde respectively, are clear that “the relative neglect in Scotland is rather odd given developments of restorative justice in other parts of the UK, across Europe and in jurisdictions across the world.”
We need to get these services up and running. That’s the first step to creating a justice system that puts victims at its heart. That means trained professionals available to facilitate the communication. It means informing victims that this service is available and of their ability to access it.
One Sheriff has very fairly asked why victims are not part of community payback review hearings. Everyone is represented round that table – except the person who has suffered the most from the crime. Wouldn’t the public have more confidence in community sentences if victims were able to input into the punishment?
What if the unpaid work carried out by offenders on CPOs had more of a connection with the original offence, so that lawbreakers properly understood the impact of their crimes?
And what if social workers writing reports for courts and hearings had a greater idea about the specific victim’s experience, and whether they want to meet the offender and pose their own questions, to hopefully achieve some kind of closure?
But we also need to be clear what restorative justice is not there for: in my view, none of this replaces a formal trial to establish the guilt of the offender. Joanna Shapland, the Chair of the Scottish Restorative Justice Forum, is clear – restorative justice cannot replace a formal trial.
In my view, she is right: involving victims in the justice process is not a substitute for punishing offenders adequately for the wrongs they have committed.
Yet of the five councils in Scotland that do offer restorative justice, three do it as a ‘diversion from prosecution’.
So restorative justice is better for the victims, better for the offender’s rehabilitation and thus better for society. If we care about victims, we will make them an essential part of putting things right. And we do that by increasing awareness and use of Restorative Justice within the criminal justice system.