Circling restorative justice – are we missing a trick?

RJ

If it is a distinction to have been part of the exponential development of mediation in the late 1990’s – then I suppose I have that distinction. It was an exciting time – when Harry Woolf made his transition from Master of the Rolls to Lord Chief Justice of England, and with his elevation, the insertion of alternative dispute resolution into the Civil Procedure Rules of England[1].

They were interesting times too. We felt we had invented mediation – it seems forgetting the Conciliation Act of 1896, and the earlier peace circles of ancient civilisations. But commercial mediation spread like a shoal, spawning a vast fry of ADR, arbitration, med-arb, conciliation and early neutral evaluation.

Whilst professionals and others found ways to make money from the dispute resolution industry, restorative justice crept up on the nets with relative invisibility – or was it simply that we commercial mediators were not looking?  It seems that we in England had totally missed the pioneering efforts in 1992 of Canadian judge Stuart J in R v Moses. But following the success of initiatives in Northern Ireland, the restorative approach went on to capture both hearts and imaginations across the UK, and since then, whether by democratic socialism, or the post-Thatcherite hashtag ‘Big Society’, restorative justice has become well and truly embedded in post-sentence youth justice.

The Northern Irish experience showed that outside service providers – public authorities, police or private institutions – were unable to penetrate tight-knit, segregated communities. When it came, change resulted not from managed community initiatives, but from the vision and application of individuals – from people. They were the visionaries that recruited others not by salary, but by conscience –  involving ordinary, local people meeting other people with problems of conflict – to listen, to help, to suggest and to empower, with a belief that change is possible.

The concept of the restorative circle is integral to the community restorative process, although I have to admit that when I first encountered circles at the European Forum for RJ conference ‘Beyond Crime – pathways to desistance, social justice and peacebuilding’ in 2014 with Professor Dr Evelyn Zellerer, I was skeptical. The idea seemed a little too ‘touchy-feely’ for my commercial mediation tastes. It was only after participating in a circle, that I became hooked. Since then I have introduced circles into my model of dispute resolution and participated in countless circles with other practitioners.

But, what of its use within criminal justice as part of the sentencing process?

In R v Moses, Barry Stuart observed, “Many might debate the extent any decision-making process shapes the result, but indisputably process can be as determinative as content. In sentencing, process profoundly influences the result. The process influences, not just what, and how matters are addressed, but who participates and what impact each person has in shaping the final decision”.

“Currently the search for improving sentencing process champions a greater role for victims of crime, reconciliation, restraint in the use of incarceration, and a broadening of sentencing alternatives that involves less government expenditure and more community participation. As many studies expose the imprudence of excessive reliance upon punishment as the central objective in sentencing, rehabilitation and reconciliation are properly accorded greater emphasis. All these changes call upon communities to become more actively involved and to assume more responsibility for resolving conflict. To engage meaningful community participation, the sentence decision-making process must be altered to share power with the community, and where appropriate, communities must be empowered to resolve many conflicts now processed through criminal courts”.

What was achieved here was revolutionary at the time, and transformative in its effect. The role of professionals in court was changed, a wider array of interested parties (including family) were included, more and better information was received, and a bigger range of options created. Here was a sharing of responsibility involving both offender and victim – to a higher and more constructive degree than in the conventional sentencing process – using community resources and strengths to give greater reach.

What has happened since? Restorative circles remain a central and most effective way to produce acknowledgment of harm and changes in recidivism. Youth offenders will frequently find themselves involved in restorative circles with their victims and justice professionals. Yet English courts have not seized this opportunity fully, especially with regard to the sentencing process itself.

Will restorative justice languish as yet another service level industry, managed on the periphery by ‘providers’, delivered by paid practitioners, and destined to join the fads of failed initiatives?

Restoration cannot be ‘delivered’ as if from Amazon, dropped off by Parcel Force to be signed for by the customer. It is not a commodity. It is not a service. It involves a change in the way we relate to offenders. And it should start with the courts themselves when considering sentence, rather than an afterthought as an adjunct to punishment.

 

[1] CPR 1(4)e

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