How can more victims access restorative justice?

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Jon Collins
15 August 2016

Last week the Office for National Statistics published new data on restorative justice from the Crime Survey for England and Wales. It shows that in 2015-16 only 4.2% of victims of crime where the offender was known to the police recall being offered restorative justice. While this is not surprising – since this question was introduced in 2010, it has consistently shown that fewer than 10% of victims report having been offered restorative justice – it remains disappointingly low and is, in fact, even lower than in recent years. And this is despite the fact that the code of practice for victims of crime now specifies that victims of crime have an entitlement to information about restorative justice (albeit depending on the services on offer in their area). So what’s going on?

First, a couple of caveats. As with any survey, the Crime Survey for England and Wales is based on asking people about their past experiences. While respondents are likely to recall being victims of crime, it is possible that they will have forgotten an offer of restorative justice if they did not accept it. Moreover, we know that in many areas victims of some crime types (particularly domestic and sexual violence) are deliberately not offered restorative justice, and that sexual crimes are forming an increasing proportion of the police’s caseload. While it’s the RJC’s view that automatically excluding victims of certain crime types from accessing restorative justice is a mistake, where it does happen this will also affect these figures. Finally, many offenders do not accept their guilt (even when convicted) or are otherwise unsuitable for restorative justice and in these cases it may never be offered to the victim.

That doesn’t explain the extent of the problem, though. In order to do that, it’s worth first considering how victims can be offered restorative justice. This varies from area to area, which is not unproblematic in itself, but it can happen in a number of ways:

  1. Where the police deal with a crime informally or with an out of court disposal, this can include restorative justice (for example as part of a community resolution or conditional caution).
  2. In the youth justice sector, victims of young offenders should be offered restorative justice by the local youth offending team.
  3. Police and Crime Commissioners (PCCs) have been provided with funding by the Ministry of Justice to make restorative justice available to victims of crime in their area as part of their broader responsibility to help victims recover from crime.
  4. Presentence restorative justice, which enables sentencing to be postponed at the point of guilty plea to enable restorative justice to take place, was piloted in 2014-15 and is still available in some areas.
  5. In some areas the probation service provides restorative justice as part of its victim liaison work and its work to reduce reoffending, while some prisons also offer restorative justice to the victims of the offenders that they manage.
  6. Small independent providers, many operating on shoestring budgets, offer restorative justice where statutory agencies or those with statutory funding have not done so.

If most victims of crime are not being offered restorative justice then one or more of these mechanisms is not working and my best guess is that none of them is working as well as they could. To be clear, this in no way a criticism of those individuals and organisations that are working hard to deliver restorative justice across the country. But they also tell us that they are frustrated by the amount of progress being made. So what can be done?

First, it’s well known that while some police forces offer restorative justice as a matter of routine – their evidence to the Justice Committee shows that Greater Manchester Police, for example, used a restorative disposal in 23% of all solved crimes in 2015 – others are much less likely to offer restorative justice as part of an out of court disposal. While a degree of local variation is inevitable, the structure of out of court disposals is due to be reformed after a recent pilot, with the aim of creating greater uniformity. When the new structure is rolled out, it will be an opportunity to ensure that restorative justice is routinely embedded in the two available disposals.

Second, for the police – or other frontline justice professionals – to be able to offer restorative justice, they have to know what it is and to feel confident in talking about it with victims. This is not always the case. Restorative justice is often confused with other disposals such as community resolutions. There is also the issue that offender-focused staff may feel uncomfortable talking to victims – the evaluation of the NOMS capacity building programme, for instance, found that prison staff struggled with this – which will compound the issues caused by lack of understanding. This could result in restorative justice not being offered to victims even when it is meant to be, or the offers made being confused and leaving victims unclear on what they are being offered. We need to work to make sure that all frontline staff in the criminal justice system understand restorative justice and feel confident talking about it with victims.

Third, we know that in many areas provision is now in place, funded by PCCs, to make restorative justice available to victims of crime. But there are still gaps - areas where provision is extremely limited and, consequently, victims are not being offered restorative justice. With new PCCs in place in many areas following elections in May, there is an opportunity to ensure that these gaps are filled. In some areas this is already happening – in London, for example, a new service has been commissioned and should be up and running later this year. But in areas where that is not the case we need to persuade PCCs to invest in restorative justice in their area.

Fourth, where there is a PCC-funded service in place, we consistently hear that the caseload is not as high as they expected – that there is more capacity than there is demand. This is partly because these services are new and will take time to get properly embedded into criminal justice processes. But it is also important to consider how these services operate, and in particular how they make sure that victims are contacted. Processes vary considerably and some approaches appear more successful than others. We are currently conducting a project – due to report in early 2017 – that will explore this issue as an element of looking at how we can improve take up of restorative justice. We hope that this will help. But PCCs and their staff also need to explore what they can do locally to make sure that the services that they have commissioned or developed are effective at contacting victims.

Fifth, and linked to this, is the issue of pre-sentence restorative justice. Following a change in legislation in 2013, this approach was piloted in ten crown courts in 2014-15. The outcomes for victims were extremely positive but in most areas the provision has now petered out. This was in part due to concerns about low caseloads but also because it was unclear who should take on responsibility for these projects once the dedicated funding for the pilots came to an end. This closed off one potential route into restorative justice for victims. Some PCC-commissioned services have, however, now begun to address this by developing links with courts and identifying cases early, meaning that the process can take place presentence where appropriate or, if that isn’t possible within the time available, instead continue post-sentence. Other areas may want to learn from this approach.

Sixth, the local delivery landscape is messy. Some Community Rehabilitation Companies are delivering restorative justice with the offenders they work with. So is the National Probation Service, at least for the time being, in some areas. Some prisons also try and contact the victims of the offenders they hold in custody. And, as previously mentioned, PCCs have commissioned or developed services in most areas. While some areas have developed partnerships or hubs to bring all this together, in other areas it remains largely uncoordinated and it is not clear who is responsible for which cases. Where this happens, gaps will inevitably emerge. It’s essential that structures are developed locally to effectively coordinate provision and make sure that every case is covered.

Seventh, not enough victims have ever heard of restorative justice. Our recent polling, conducted by Ipsos MORI, found that only 28% of the public have heard of restorative justice. If more people know about restorative justice and understand its benefits before they become victims then it’s more likely that any subsequent offer will be something they understand and recall. Some might even proactively ask about restorative justice. Work to raise awareness of restorative justice generally is therefore important.

Eighth, victims’ entitlements, including around restorative justice, are currently governed by The code of practice for victims of crime. This entitles victims to information about restorative justice, dependent on the availability in their area. As availability is so variable, this by no means guarantees that there will be a service that victims can be informed about or access. The code is, however, due to be augmented or replaced by a new Victims’ Law, with a green paper expected imminently (recent ministerial changes at the Ministry of Justice notwithstanding). When introduced, we believe that this new legislation should significantly strengthen victims’ rights with regards to restorative justice by giving every victim an entitlement to be offered restorative justice (and PCCs the responsibility for ensuring that this is delivered). This would both build on the requirements of the code and give them statutory force, which would be a significant step forward in ensuring that victims are offered restorative justice.

Finally, there are, inevitably, issues about funding. While Ministry of Justice data shows that only £10.5m of the £23m made available to PCCs for restorative justice for 2013-16 was spent, this reflected the fact that for much of this period new services were being commissioned, under development or just getting up and running. Now that services are beginning to hit their stride there is no longer any specific funding within the victims’ services grant allocated to restorative justice. This means that PCCs will be free to spend whatever they see fit on restorative justice. Given all the other demands on PCCs’ available resources, this may see cuts to existing spending in some areas.

A statutory duty on PCCs to make restorative justice available – as proposed above – would ensure that these cuts do not go too far, but in the meantime PCCs should be encouraged by the Ministry of Justice, through the contract management process, to maintain funding for restorative justice. Perhaps more pressingly, however, small local voluntary sector providers, which have long plugged the gaps in statutory provision, are being starved of funding and are beginning to close. There is no easy solution to this, unfortunately, but unless it’s addressed there will be further holes created in the availability of provision.

None of these proposals are easy wins. Funding and resources are limited. But we know from the evidence and from the victims that we’ve worked with that restorative justice works – it helps victims to put the crime behind them and move on. It’s simply not good enough, therefore, that so few victims are even offered the opportunity to access it. This blog is intended to set out some ways in which this could be addressed. So what other ideas do you have?