Submission to the Oireachtas Sub-Committee on Penal Reform
By Senator Martin Conway
“Learning to forgive is much more useful than merely picking up a stone and throwing it at the object of one’s anger…….for it is under the greatest adversity that there exists the greatest potential for doing good, both for oneself and for others”. The Dalai Lama
Ireland administers a system of justice that is retributive which means that if one is found guilty of a crime, one receives a punitive sanction (Maguire et al, 1997). In the current retributive system, crime is considered a violation against the State. It is an adversarial system with a central component of punishment.
The established theory of the purpose of punishment for an offence concerns the theories of retribution, deterrence and rehabilitation. Retribution often referred to as ‘just deserts’, focuses on whether an individual deserves to be punished. The theory of deterrence intends to operate to deter the individual from committing an offence and secondly, it may operate in a general way to deter society at large from engaging in criminal activity.
The public interest should go beyond the punishment of the offender and should extend to prompting positive change in an offender’s behaviour and most importantly should ensure that the victims of crime are given the opportunities to address issues arising from the crime and, where possible, to receive restitution.
Restorative justice is an invaluable and cost effective option for the criminal justice system in responding to and combatting crime in Irish society.
The National Commission on Restorative Justice has defined restorative justice in the following terms:
Restorative justice is a victim-sensitive response to criminal offending, which through engagement with those affected by a crime, aims to make amends for the harm that has been caused to victims and communities and which facilitates offender rehabilitation and integration into society.
The National Commission on Restorative Justice contends that where offenders take responsibilities for their criminal acts and accept the responsibilities for their criminal acts and accept the consequences in terms of sanction and where the process addresses the harm done and engages the parties in helping to reduce re-offending the public interest is well served.
Society also benefits greatly from the involvement of communities in the provision of restorative justice and their efforts to support victims and offenders.
Restorative Justice in Ireland
Restorative justice is practised in a number of ways most particularly in the Irish youth justice system, where it has a statutory base and in the adult justice arena, where it operates in an informal manner in two pilot projects, which were extended in 2011.
Generally cases are either court referred or police referred to a restorative process and this is reflected in the limited Irish experience of restorative justice to date. The type of offences which are typically referred to restorative justice concern offences such as criminal nuisance.
The Children Act, 2001, is the only legislative initiative which makes provision for the application of restorative justice to offenders under the age of 18. However there is no similar legislative template for offenders over the 18.
Currently, in Ireland the Probation Service, in partnership with community based organisations, is engaged in the promotion, development and delivery of restorative justice in Ireland.
Two pilot programmes namely the Nenagh County Reparation Service and the Restorative Justice Service were established in 2000 and until 2010 have dealt with low tariff offences which were referred to the services by the District Court Judges in these areas prior to sentence. The offenders referred were usually first time or low level offenders. On referral by the Judge a reparation panel was established and if successful a contract was entered into by the offender with the case then returned to court for sanction, which typically led to the dismissal of the charge by the judge.
Since 2010 the Probation Service has, expanded the Restorative Justice Service based in Tallaght to the Criminal Courts of Justice and the courts in south County Dublin. While the Nenagh Community Reparation Project, is extended to the courts in north Tipperary. The service is now being applied to higher tariff offences.
There is a further pilot programme operated in Limerick by the Le Cheile organisation called the Limerick Restorative Justice Project which is operating in conjunction with the Probation Service. The Limerick project works exclusively with young people of 12 to 18 years.
Restorative Justice in Northern Ireland
In relation to Northern Ireland’s experience with restorative justice, Tim Chapman explains:-
Northern Ireland has responded to the challenge issued in 1999 by Bazemore and Walgrave (1999: 5) to develop a ‘fully-fledged, systemic alternative’ restorative youth justice system. The Justice (Northern Ireland) Act 2002 established the availability of restorative youth conferences to all young people who admit any criminal offence other than those who would receive a life sentence in the case of an adult.
The significance of this is that the decision to participate in a conference is taken by those responsible for the offence and by their victims rather than criminal justice professionals.
The approach in Northern Ireland is significant too in that the government decided that youth conferences should be delivered by the Youth Justice Agency and facilitated by highly trained professionals thus reinforcing the commitment by the Northern Irish authorities to place restorative justice at the centre of the youth justice system.
Statistics from the Restorative Justice Service confirm that in relation to the lower tariff offences dealt with prior to 2010 the non-re-offending rate was 78%. However there is a dearth of empirical data in relation to the recidivism rates of higher tariff offences as the work has only started on those offences since 2010.
An Garda Siochana and Juvenile Liaison Officers have embraced restorative justice, so that an Garda Siochana are diverting offenders in advance of cases being brought before the courts and so no data is available for the numbers of such offenders.
On the basis of the recidivism rates to hand and given the high cost to the exchequer of custodial sentences (the average annual cost of keeping an offender in prison in 2011 was €65,359), the Restorative Justice Commission is satisfied that restorative justice measures are among the less-expensive options open to the criminal justice system. The costs of running restorative justice schemes vary widely within and across various jurisdictions. In Ireland, as the average cost of an adult pilot project case is approximately €3,250 this compares very favourably with the costs of a prison place.
The Restorative Justice Commission estimates that the diversion from custodial sentences could lead to a reduction of between 42 and 85 prison spaces per annum. It estimates that that this level of reduction would generate potential savings in prison costs of €4.1 million to €8.3 million.
The Commission is satisfied that restorative justice offers beneficial consequences for both victims and offenders who participate in the process.
- Further extension of the pilot programmes in terms of their geographical area and the application of restorative justice to persons before the Circuit Courts.
- Implementation of primary legislation in order to give the wider application of programmes of restorative justice a statutory basis.
- Where a judge is contemplating imposing a custodial sentence of up to three years, he or she should be required to consider referral of the case to restorative justice.
- Priority should be given to a wider application of restorative justice by means of court referral at pre-sanction stage.
- Transposition of the EU Directive 2012/29 which establishes minimum standards on the rights, support and protection of victims of crime.
- Funding research particularly in relation to the outcome and effectiveness of the extended pilot programmes.
- A multiagency approach needs to be adopted, involving close co-operation between the State agencies involved and other community-based agencies and services as appropriate in order to promote the merits of restorative justice as a viable sanction.
- Additional resources are needed, including more trained Juvenile Liaison Officers and facilitators, support services such as mediation and counselling for victims, offenders and their families before and after conferences to address underlying issues.
- Increase awareness of restorative justice through an information campaign.
- Work should commence to introduce restorative practices in the area of serious crime, including work with prisoners before and after release.
- A National Restorative Justice Committee which is independently chaired and is representative of the relevant criminal justice agencies should be established.
- The Garda Diversion Programme should use restorative practices as much as possible.
- In the area of sex offending, the Building Better Lives Programme in Arbour Hill could provide an opportunity to people who have begun to understand the impact of their crimes to engage in restorative practice