Can restorative justice help create problem-solving courts?

Ever since the Justice Secretary visited the US last year, there have been frequent media reports highlighting his support for problem-solving courts. Reportedly impressed by what he saw in Texas and New York, Michael Gove has been working with the judiciary to explore how these courts – which look to play a more active role in enabling, supporting and monitoring an offender’s rehabilitation – could be developed in England and Wales. This is clearly a priority, and is expected to play a major part in the reforms that Gove is looking to introduce to refocus the justice system on rehabilitation.

So what role, if any, can restorative justice play in the problem-solving model?

A problem-solving approach is partly about better-informed sentencing, and presentence restorative justice can contribute to this. Pausing sentencing at the point of a guilty plea to enable restorative justice to take place means that when the case comes back for sentencing, the sentencer has more information to work with.

For example, if the offender engages fully with the restorative process it can be a demonstration of remorse and help to indicate that the offender is willing to change. An outcome agreement between victim and offender can also help to guide the sentencer on how the victim’s expectations can be met. This is not to say that what the victim says goes – there are other factors to consider – but a report from a restorative justice conference can provide valuable insight. With the legislation already passed to enable this to take place, and the lessons that could be learned from the recent pathfinder, this could and should be happening now.

Presentence restorative justice is most likely to take place in more serious cases, where the court process takes longer and there is more time to set it up. But could restorative justice play a role in how the courts deal with lower level crimes? In suitable cases where both parties agree to participate, why couldn’t the magistrate or district judge send the case off for a restorative justice conference to take place? If an outcome agreement can be reached that is fair and the offender sticks to it, I don’t see why any further sentence would be required. This would be similar to the model for young people in Northern Ireland, where court-ordered conferences are used routinely.

If we are going to follow the problem-solving model, then in an ideal world the sentencer would play a part in monitoring the offender’s progress and signing off the completion of their outcome agreement. That may be challenging, given resource constraints, but would have clear benefits both in affirming the offender’s progress and giving the community confidence that the court is overseeing the delivery of justice. Specialist restorative justice courts could be piloted, working with suitable cases where a guilty plea is anticipated and both parties are willing to take part.

This approach would directly involve magistrates and district judges in the restorative justice process, which could also have broader benefits. In an excellent recent report on court reform the Centre for Justice Innovation argued that magistrates should play a greater role in resolving low level offences in the community, including through the use of restorative justice. If a restorative approach could be used in response to low level offending both within and outside court, with magistrates involved in both, it would help to create a consistent, restorative approach.

It’s clear that courts are facing reform intended to enable them to play a more active role in offenders’ rehabilitation. We know that restorative justice can help to reduce reoffending while also engaging victims and helping them to recover. Surely now is the time to think about how it can be embedded into the court process, enabling all those involved in a crime to put it behind them and move on with their lives?