Soub 94 Explain the arguments for and against the use of restorative justice in England and Wales.

Exclude the Scottish Criminal Justice System from your discussion To begin this discussion, it seems fair to say, that restorative justice has become a popular topic for discussion within the field of criminology and criminal justice, or as Gibson & Cavadino (2008, p.218) assert, it has become a force to be recognized, whose adherents exist worldwide. Introduced into mainstream thinking during the last quarter of the last century, restorative justice is held by many advocates as a criminal justice approach with many noted benefits. As Newburn (2009) observes, ideas and initiatives influenced by restorative justice are now regularly offered as holding out the prospect of a more civilized and efficient means of dealing with criminal conflicts. However, equally, Newburn also notes that while it is seen as a popular alternative approach to criminal justice there remains a certain amount of confusion about what restorative justice is actually about and what it aims to achieve (Newburn, 2009, p.710).

The objective of this essay is to explore some of the main arguments for and against the use of restorative justice in England and Wales which have been drawn from the literature reviewed. The concept of restorative justice is examined by exploring what is meant by restorative justice and exploring who it is said to benefit. Thereafter, the arguments for and against the use of restorative justice are examined in the context of its origins and applications in

England and Wales. While there is no universal definition of restorative justice, there are a considerable number of different initiatives being practiced worldwide which claim to be restorative in nature. In order to explain the arguments for and against the use of restorative justice in England and Wales it is important to explore what is meant by restorative justice first. Marshall (1997) describes what he refers to as the features of restorative justice that virtually every proponent would advance. These include, the prevention of re-offending; helping victims more; preventing the escalation of formal justice and public resources; and the re-creation of community. According to Marshall these said objectives can be achieved by processes which make room for personal involvement; address the problem in its social context; and look ahead to the future (Marshall, 1997, p.15). Marshall's broad description connotes some important themes that can be drawn out from others to be found in the literature. As a working definition, The National Restorative Justice Consortium of Restorative Justice based-

organizations defines restorative justices as restorative processes which bring those harmed by crime or conflict, and those responsible for the harm, into communication, enabling everyone affected by a particular incident to play a part in repairing the harm and finding a positive way forward (www.restorativejustice.org.uk).

As interpreted from both definitions, the main focus of restorative justice is to enable all those who have a state it a specific offence, to include the victim, offender, family members, and community, to repair any harm caused so all parties can move on in a positive way. Having gained a better understanding of what restorative justice is, or at least what it strives to achieve in theory, discussion now turns to establishing how restorative justice is different from conventional forms of criminal justice, by examining who benefits and how. While it is noted that there are a plethora of discussions to be found in the literature which have examined restorative justice in respect of its appeal for communities as well as offenders and victims, this discussion focuses on its application and developments regarding offenders and victims. This follows the assertion made by Goodey (2005) in that; restorative initiatives are only restorative if they result in both victim and offender feeling that the harm afflicted by an event has been amended through restorative agreements and actions be this an apology, monetary compensation, or an act of restitution (Goodey, 2005, 213).

In exploring the benefits restorative justice is said to deliver on behalf of 'victims' first, one is immediately drawn to the early work of Nils Christie (1977). In his seminal article entitled 'Conflict as property', Christie expressed his concern that victims of crime had become more and more lost within modern criminal justice systems. The call by Christie for a more 'victim-orientated' approach was based on his contention that the role of victims had become marginalized as criminal justice systems became more professionalized and
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adversarial whereby any harm or loss suffered by a victim of crime somehow came to be contested as a crime committed against the state instead. As a resolve, Christie argued for a system that moved victims of crime away from the margins of criminal justice proceedings into the 'spotlight'. Christies sentiments echoe that of Howard Zehr, an early advocate of restorative justice who has been equally vocal in criticising the way conventional justice systems respond to victims. According to Zehr (1990) We do not listen to what they have suffered and what they need. We do not seek to give them back some of what they have lost. We do not let them help to decide how the situation should be resolved. We do not help them to recover (Zehr, 1990, p.32). Zehr further contends that the failure to allow victims a participatory role in any given attempt to put right a wrong doing or harm they have suffered amounts to secondary victimization. According to Zehr, Part of the dehumanising nature of victimization by crime is the way it robs victims of power. Instead of returning power to them by allowing them to participate in the justice process, the legal system compounds the injury by again denying power. Instead of helping, the process hurts (Zehr, 1990, pp.3031). The argument in support of restorative justice on behalf of victims advanced here is clear. Essentially, restorative justice is seen by many advocates as a criminal justice approach which allows victims a more participatory role in the resolution of their own conflicts. In comparison to conventional justice proceedings, restorative justice initiatives are said to offer victims amongst

other things empowerment by giving them the opportunity to say how an offence has impacted on them and to get answers to their questions (Larson Sawin & Zehr, 2007, cited Johnson & Van Ness, 2007, pp.41-58).

In exploring the purported benefits of restorative justice for 'offenders' Australian Criminologist John Braithwaite (2000) sees restorative justice as a third model for failed criminal justice systems. Essentially, he sees it as a much needed, new and radical approach to punishment. As exemplified in the following quote by Braithwaite, "Few sets of institutional arrangements created in the West since the industrial revolution have been as large a failure as the criminal justice system. In theory it administers just, proportionate corrections that deter. In practice, it fails to correct or deter, just as often making things worse as better" (Braithwaite, 2000, p.319). It is important to note that while Braithwaite does not reject punishment as a response to crime, he has long advanced the view that the stigmatized shaming of offenders as a form of punishment has little success in reducing crime. In criticizing juvenile justice systems in particular, his main contention is that both tried and tested justice and welfare models have done nothing else other than stigmatize and label young offenders, making them outcasts, before later subjecting them to rehabilitation programs. While Christies and Zehrs main contention is that victims are denied the opportunity to discuss at length how a crime has affected them, Braithwaite extends their assertions that traditional trial settings also leave little scope for offenders to fully acknowledge or
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understand the extent of harm their actions have caused their victims. Braithwaite theorizes that offenders are more likely to take on responsibility for their actions and experience true shame and remorse if their behaviour is held into account by their victims and other people who matter, such as their family. According to Braithwaite the key to prevent re-offending is to employ reintegrative shaming techniques, where the shaming of an offenders actions are also accompanied by expressions of support. Though Christie, Zehr and Braithwaite have attracted criticism following their independent calls for a radical change in the way conventional justice systems operate, their work has also been accredited for informing current restorative justice practices (Johnstone, 2002). As already noted numerous initiatives have been developed World-wide, underneath the banner of restorative justice, indicating both its popularity and growing significance. According to Dignan (2005) all of these initiatives can be categorized under five distinct categories or models, to include, court-based restitutive and reparation measures; victimoffender mediation programmes; conferencing initiatives; community reparation boards and panels; and healing or sentencing circles (Dignan, 2005, pp.107-108). Though there remains skepticism as to how many of these said initiatives are actually restorative on the grounds that some non-restorative practices are often dressed up as restorative, a common view to be found in the literature is that New Zealand has gone further than most by putting restorative values into practice especially in respect of young offenders. (Morris and Gelsthorpe, 2000,
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p.20).

One widely celebrated juvenile justice approach has been family group conferences (FGCs). According to McLaughlin & Muncie (2002) FGCs are based on Braithwaites reintegrative shaming theory and have been adapted from traditional, communitarian systems of conflict resolution within Maori culture. In keeping with the principles of restorative justice principles, FGCs directly involve those people most affected by the offending to determine appropriate responses to it. Although the role of the New Zealand court is not excluded altogether, its role is quite marginal and the most usual outcomes are apologies and community work (McLaughlin and Muncie, 2002, p.286).

Similar conferencing style initiatives have been applied in England and Wales under the wide ambit of the 1998 Crime and Disorder Act and the 1999 Youth Justice and Criminal Evidence Act. One notable mainstream initiative which encompasses restoration, reintegration and responsibility is the referral order. Procedurally, this initiative has been incorporated within the juvenile justice system so that most first time offenders aged 10 to 17, are now dealt with in a way which is said to induce more positive outcomes for both offenders and victims (Goodey, 2005, p.186). As Dignan (2007) observes, instead of being sentenced in the normal way, offenders are referred to a local youth offender panel. The role of the panel is to facilitate a forum where young offenders,

their parents, panel members, and, where appropriate, victims can discuss the impact of the offence and reach an agreed outcome which takes form in a contract. Stipulated within these contracts are the practical reparative activities the offender is required to undertake in order to make amends to their victim/s. When there is no identifiable victim or if the victim wants nothing to do with the offender, the offender is required to make amends to the wider community. One distinctive aspect of the referral process, according to Dignan (2007), is that the conviction is spent when the contract has been successfully completed. This wiping clean of the slate is consistent with Braithwaites (1989) theory of reiterative shaming which opposes indelible or indefinite shaming on the grounds that it is stigmatic and counterproductive (Dignan, 2007, cited Johnson & Van Ness, 2007, p.276). While exploring the key theoretical ideas behind restorative justice, and by briefly examining how one restorative initiative, in the form of face to face meetings between victims and their offenders has been applied in practice, this discussion has established some of the potential benefits restorative justice is said to offer both parties. However, while restorative justice might well be considered by many as a constructive and socially inclusive way of responding to criminal behaviour, it has also attracted a considerable amount of criticism (Ashworth, 2005, p.89). What follows next is an examination of some of the main criticisms of restorative justice that can be found in the literature reviewed.

First and foremost is the argument that there is a significant gap between aspirations of proponents and practical realities of restorative justice (Zernova, 2006, p491). According to Ashworth (2005) proponents frequently purport that restorative justice can lead to the healing of victims, restore the community and reduce re-offending, but there is no evidence that it can do all these things satisfactorily (Ashworth, 2005, p.89). For example, while there are a number of studies available which report high levels of positivity and satisfaction from the perspective of victims who have participated in mediation and conferences with their offenders (Daly, 2001), other studies suggest, or rather question the centrality of victims, as far as the purported aims of restorative justice is concerned (Zernova 2006; Bazemore et al., 2012).

Another common argument pitched against restorative justice is the view that it is a lenient response to offending. According to Roberts and Stalans (2004) the public especially perceives restorative justice as a softer option which allows offenders to get off lightly. Expanding on this criticism, Goodey (2005) observes that there are a number of commentators who view victims as a tool utilised in the service of offenders and restorative justice practitioners where their compliance with restorative initiatives allows offenders to escape a punitive justice system (Goodey, 2005, p.212). In exploring the views on restorative justice as an alternative to punishment as held by conference participants, Zernova (2006) found that most victims and their supporters felt that

conferences were not punishment. Rather, most of Zernovas interviewees, to include both offenders and victims, reported that they felt conferences were primarily designed to rehabilitate offenders (Zernova, 2006, p.464). However, in response to the criticism that restorative justice is a lenient response to offending, there are other commentators like Goodey (2005, p.212), who argue that restorative justice is not the easy option for offenders that many critics of the process take it to be. Goodey reminds us that current restorative justice practice do not exist in isolation from established criminal justice, hence, a failure by offenders to comply with agreements or orders orchestrated to make amends with their victims, will result in a court appearance and will incur some form of punishment for non-compliance. Contrary to being an easier or softer option, Goodey proposes that alternatively one could criticize restorative justice attempts, especially within juvenile justice, for its net widening effects. This is a concern expressed by Fox et al. (2006) who argue that the introduction of the Crime and Disorder Act and the 1999 Youth Justice and Criminal Evidence Act resulted in net widening whereby youths who have committed relatively minor offences are dealt with more formally. Fox et al. argue that the full force of the criminal justice system for non-compliance might be felt by young offenders whose first misdemeanor or offence was such that the criminal law would not have normally intervened before the passing of both Acts (Fox et al., 2006, p.). Other critics contend that schemes which divert offenders to restorative justice programmes without establishing criminal guilt in
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a court of law first, contravene procedural safeguards which are a fundamental human right (Warner, 1994).

It should be noted however, as does Alison Morris (2002), that the validity of net-widening arguments very much depends on the focus of particular examples of restorative justice, and as such, it certainly does not apply to all (Morris, 2002, p.603). Nevertheless, the concern that other procedural safeguards and rights of offenders might be lost within restorative justice models forms is a concern expressed Andrew Ashworth. Ashworth (2002) questions whether giving victims greater rights and responsibilities within the justice system is such a good idea. One of the potential dangers in promoting this alternative system, according to Ashworth, is that it will be far more difficult to maintain proportionality of punishment. He argues that the principles everyone should have the right to a fair hearing by an independent and impartial tribunal and that punishment should bear a relationship to the seriousness of the offence committedgoes against victim involvement in sentencing because the views of victims may vary. The suggestion here is that some victims will be forgiving while others might be vindictive (Ashworth, 2002, p.586). In response to this criticism, Morris (2002) argues that there is nothing in the values of restorative justice which would lead to a denial or erosion of offenders legal rights it is just that different restorative justice initiatives have translated the protection of offenders rights into practice in different ways. Furthermore, she contends

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that it is quite farcical for critics of restorative justice to imply that in contrast, conventional criminal justice systems adequately protect offenders legal rights (Morris, 2002, p.602).

In respect of protecting the human rights of victims, is the concern that mediation or conferences might cause victims further harm. According to Carolyn Hoyle (2008) there is always a potential for further harm in bring together victims and offenders whereby some victims might find that meeting their offender does not improve their situation or makes it worse. It is in this respect, the potential for causing further upset to victims that some commentators have argued that meetings between victims of domestic or sexual violence should never be considered. The recommendation advanced by Hoyle is that indirect mediation may well be more appropriate for these offences (Hoyle, 2008, pp.6-10). This is the same view expressed by the long established organization Womens Aid. While Women's Aid supports the principle of giving victims a greater voice in the criminal justice system and in making offenders take responsibility for their behaviour, they argue that restorative justice is not appropriate for domestic violence cases; encouraging contact with the perpetrator does not assist the process of recovery, and listening to their abuser recount his use of violence is likely to be very traumatic for women and children, who will already have heard countless apologies and promises that it will never happen again from the offender. Womens Aid, 2003, no page).

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However, there are other commentators like Schroder (2005, p.32), who assert that meetings may result in positive outcomes for some victims, providing them closure for example. Having the chance to confront an offender in a safe environment may provide immense relief, as opposed to being held as a source of evidence to be drawn from as far as the rules of the court will allow. Essentially, the suggestion here is that restorative justice might help those sexual assault victims who choose to access it. Choose being the operative key word here, and a basic principle endorsed by the UNs (2002) Declaration of Basic Principles on the use of Restorative Justice Programmes in Criminal Matters, which states; Restorative processes should be used only with the free and voluntary consent of the parties. The parties should be able to withdraw such consent at any time during the process. Agreements should be arrived at voluntarily by the parties and contain only reasonable and proportionate obligations (unicef.org). Essentially, this discussion has explored just a small selection of the purported benefits and drawbacks of restorative justice in respect of juvenile offenders, and arguments for and against the use of conferences in response to domestic or sexual violence. Ultimately, proponents have advanced strong arguments to support its use as a legitimate response to crime with potential benefits for both victims and offenders. The nature of criticisms directed at restorative justice explored appears to highlight the challenges it presents to traditional criminal justice practice rather than outright abhorrence. Close to concluding one is drawn to the sentiments expressed by Daly (2005), who suggests that we should

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bear in mind that such criticisms are not necessarily peculiar to RJ; they may have their analogy in established CJ as well (Daly, 2005, p.5). Therefore, one is inclined to agree with Daly, that encounters between victims, offenders and supporters might not deliver strong stories of repair and goodwill every time, but nevertheless it is a practice worth maintaining (Daly, 2005, p.11). 3276 words Bibliography Ashworth, A. (2002) Responsibilities, Rights and Restorative Justice. British Journal of Criminology, 42 (3), pp.578-595. [on line] Available at: http://bjc. oxfordjournals.org/content/42/3/578.full.pdf+html?sid=3c2852b6-2c29-4d93 -a67d-463a3b722c2c (Accessed April 10, 2012). Ashworth, A. (2005) Sentencing and Criminal Justice (4th Ed). Cambridge: University Press. Bazenmore, G., Gilbert, M.J., Choi, J.J. (2012) Review of research on victims' experiences in restorative justice: Implications for youth justice. Children and Youth Services Review, 34(1):35ff. [on line] Available at: http://www.restorativ ejustice.org/articlesdb/articles/10445 (Accessed April 13, 2012). Braithwaite, J. (2000) Collected Essays in Law: Regulation, Crime, Freedom. Chapter 15,Restorative Justice and a better future. Dartmouth: Ashgate Publishing. pp.317-319. Christie, N. (1977) Conflicts as Property. British Journal of Criminology, 17(1), pp.1-15. [on line] Available at: http://bjc.oxfordjournals.org/content/17/1/1. full.pdf+html (Accessed April 08, 2012). Daly, K. (2001) Findings and Prospects, in, Morris, A., Maxwell, C. (eds) Restorative Justice for Juveniles: Conferences, Mediation and Circles. Oxford: Hart Publishing. pp.51-83. Daly, K. (2005) The Limits of Restorative Justice. [on line] Available at: http:// www.griffith.edu.au/__data/assets/pdf_file/0013/50314/rj_paper3_the_limits_ of_rj.pdf (Accessed April 15, 2012).

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Dignan, J. (2005) Understanding Victims and Restorative Justice. Berkshire: University Press. Dignan, J. (2007) Juvenile Justice, Criminal Courts and Restorative Justice, in, Johnstone G., Van Ness, D.W. (eds) (2007) Handbook of Restorative Justice, Devon: Willan Publishing. pp.269-291. Fox, D., Dhami, M.K., Mantle, G. (2006) 'Restorative Final Warnings: Policy and Practice', The Howard Journal Vol 45, No 2. [on line] Available at: http://www. crim.cam.ac.uk/people/mkd25/22.pdf (Accessed 03 March, 2010). Gibson, B., Cavadino, P. (2008) The Criminal Justice System: An Introduction (3rd ed). Hampshire: Waterside Press. Goodey, J. (2005) Victims and Victimology Research, Policy and Practice. Harlow: Pearson Education Limited. Hoyle, C. (2008) Restorative Justice Working Group Paper, Howard League Commission on English Prisons Today. [online] Available at: http://www.prisonc ommission.org.uk/fileadmin/howard_league/user/pdf/Commission/Howard_Leag ue_RJ_Working_Group_Discussion_Paper.pdf (Accessed April 16, 2012). Johnstone, G. (2002) Restorative Justice: Ideas, Values, Debates. Devon: Willan Publishing. Larson Sawin, J., Zehr, H. (2007) The Ideas of Engagement and Empowerment, in, Johnstone G., Van Ness, D.W. (eds) (2007) Handbook of Restorative Justice, Devon: Willan Publishing. pp.41-58. Marshall (1997) Seeking the Whole Justice, in, Hayman, S. (ed) Repairing the Damage: Restorative Justice in Action, Proccedings of a Conference. London: ISTD. pp.10-17. McLaughlin, E., Muncie, J. (eds) (2002) Controlling Crime. London; Thousand Oaks; New Dehli: Sage Publications. Morris, A. (2002) Critiquing the Critics: A Brief Response to Critics of Restorative Justice. British Journal of Criminology, 42 (3), pp.596-615. [on line] Available at: http://bjc.oxfordjournals.org/content/42/3/596.full.pdf+html (Accessed April 15, 2012). Newburn, T. (ed) (2009) Key readings in Criminology. Devon: Willan Publishing. Restorative Justice Website. [online] Available at: http://www.restorativejustice
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.org.uk. (Accessed April 04, 2012). Roberts, J.V. and L. Stalans (2004) 'Restorative Justice: An Analysis of the Public's View', Social Justice Research 17(3), pp. 315-34. [on line] Available at: http://crj.sagepub.com/content/5/3/211 (Accessed April 13, 2012). Schroeder, A. (2005) Mediating Sexual Assault: Justice for Victims within and beyond the Criminal Justice System. [on line] Available at: http://www.re storativejustice.org/articlesdb/articles/9586 (Accessed April 15, 2012). Umbreit, M.S. (1994) Victim Meets Offender: The Impact of Restorative Justice and Mediation. New York: Willow Tree Press. UN (2002) Basic Principles on the Use of Restorative Justice in Criminal Maters. [E/cn.15/2002/5/Add.1] United Nations Publication. [on line] Available at: htpp: //www.restorativejustice.org.uk/resource/un_basicprinciples_on_the_use_of restorative_justice_programmes_in_criminal_matters_2002/ (Accessed April 15, 2012). Unicef (no date) Basic principles on the use of restorative justice programmes in criminal matters, ECOSOC Res. 2000/14, U.N. Doc. E/2000/INF/2/Add.2 at 35 (2000), [on line] Available at: http://www.unicef.org (Accessed April 15, 2012). Warner, K. (1994) Family Group Conferences and the Rights of the Offender, in, Alder, J. and Wundersitz, J. (eds) Family Conferencing and Juvenile Justice: The Way Forward or Misplaced Optimism, Australian Studies in Law, Crime and Justice, pp.141-152. [on line] Available at: http://www.aic.gov.au/documents /3/9/E/%7B39E7C4C4-9A99-468B-B147-1393CD014FFF%7Dfamily_report_full.pdf (Accessed April 13, 2012). Womens Aid (2003) Consultation Response: Response to Restorative Justice. [on line] Available at: http://www.womensaid.org.uk/domestic-violencearticles.asp?section=00010001002200070001&itemid=1185 (Accessed April 14, 2012). Zehr, H. (1990) Changing Lenses: A New Focus for Crime and Justice. Scottdale, PA: Herald Press. Zernova, M. (2007) Aspirations of Restorative Justice Proponents and Experiences of Participants in Family Group Conferences. British Journal of Criminology, 47(3), pp. 491-509. [on line] Available at: http://bjc.oxfordjournals.org/content /47/3/491.full.pdf+html?sid=127ebade-9009-440c-935e-6e81ec5323a8 (Accessed April 10, 2012).

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