Reforming the justice system is not Old or New Labour – it is essential for today

6th October, 2017 7:00 am

In David Lammy’s recent landmark report, he found the criminal justice system required a radical overhaul to restore trust with BAME communities. He’s right and we can go further.

The criminal justice system suffers from a lack of public confidence. It is easy to see why.

The legal system can appear an unwelcoming place where the victim – and not the offender – can feel like he or she is actually on trial. Unsurprisingly, many victims report dissatisfaction with their treatment.

This problem is not an accident. The trial is designed so that justice is impartial, guaranteeing procedural safeguards for the accused. This does not mean we have to silence victims about punishment.

The issue of victims having a voice on sentencing raises an important anomaly. While they can provide crucial evidence in favour of an offender’s conviction, victims’ voices are often silenced when we consider sentencing – or even the trial itself. Most criminal cases – more than 95 per cent – never go to a full trial. Offenders plead guilty and a sentence is passed. Victims lack their day in court to express openly the wrongs they have endured and their views about moving forward, all in the name of swift justice.

Our challenge is improving public confidence in criminal justice without alienating victims further. In fact, we can make this system better by giving victims a greater voice in sentencing decisions.

It’s crucial to recognise the public does input into decisions relating to sentencing already. The public sits on juries hearing the most serious cases and, in some jurisdictions, make judgements about punishment and fines. We already allow a space that has worked well for victims to use their voice and this should be developed if we want public confidence in our criminal system to increase.

Restorative justice is an approach revolutionising criminal justice – enjoying cross-party support. It is many things criminal justice is not. Whereas criminal justice is formal, rule-laden and conducted in a courtroom led by legal professionals, restorative justice is informal, flexible and conducted by ordinary citizens under a trained moderator.

Restorative justice allows victims to tell offenders the real impact of the crime, getting closure and an apology. It gives offenders a chance to understand the true impact of their actions and agree a plan to repair the harm they caused.

It also delivers positive results. Evidence suggests victims and offenders alike report higher satisfaction with restorative meetings. Restorative justice has reduced re-offending by up to 25 per cent. And it saves money: £9 can be saved for every £1 spent. Less crime and higher participant satisfaction at much reduced costs.

Restorative justice is a variety of criminal justice that Labour can and should continue to embrace – as we have in our 2017 general election manifesto. From Tony Blair to Jeremy Corbyn, Labour has supported being tough on crime – and also being tough on the causes of crime. Restorative justice does much better than alternatives at bringing offending down, in part, by being specifically tailored to address background risk factors for criminality ranging from drug and alcohol abuse to financial insecurity and mental health issues which too often get swept under the carpet or left untouched.

Sadiq Khan, Labour mayor of London, has not stopped the strong support for restorative work he showed as shadow justice secretary. Last year he pledged £1.3 million to a restorative justice service in the capital.  Defending restorative justice is neither T or new Labour – it is Labour today, offering more opportunities for successful rehabilitation, better support for victims and their families and all without feeding our heavy reliance on prisons.

But there remains a serious hurdle for extending the benefits of restorative justice more widely: the current practice of restorative justice does not include imprisonment as a possible option. While a good thing as prison should be used only as a last resort if at all, this limits its applicability to cases of relatively minor crimes and youth offenders – and there is a need to develop restorative justice for the public, not only teens and young adults, to best bring out the full benefits that restorative justice can offer.

Some argue the public simply won’t support their greater use. The worry is restorative justice might be seen as a ‘soft touch’ where offenders might ‘escape’ prison.

This rests on two mistakes. The first is thinking what people want is harsher, and not better, justice. If restorative justice can effectively reduce re-offending and criminal costs while improving victim satisfaction (not to mention at lower cost), then this is an approach that can win public confidence. The key is to let the proof be in the pudding, building on the evidence base and highlighting individual stories of victims, offenders and communities to show how restorative justice can help bring solutions to deep problems.

The second mistake is failing to include a greater punitive element in restorative justice, or what I call “punitive restoration”. If victims, in line with magistrates, have some power over the offender’s punishment, including the imposition of suspended sentences in case of future criminality and automatic sentences for breaking restorative contractual agreements, then restorative conference could be used more widely and could help further reduce re-offending.

Victims have a say on outcomes in restorative meetings and the effects have been highly promising. It is time to expand the range of possible outcomes to include a more punitive element. This can ensure restorative justice is not seen as an easy option without undermining the success this approach might build on further – and we can reduce the overall punitiveness of the overall system. This must be a good thing and a goal worth striving for by all of us on the political left. Yes, prison should be used less often and conditions improved. Fewer prison sentences can – perhaps paradoxically – be achieved by expanding restorative justice outcomes and putting the onus on getting the restoration right. And breaking the cycle of “prison first”.

While the government will be prioritising Brexit negotiations, it is critical that progress made in embedding restorative justice more deeply is not a casualty of the talks – for the benefit of victims, offenders and the wider community alike.

Thom Brooks is dean of Durham Law School and author of Punishment (Routledge 2012).

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