Week 10: Restorative justice in practice

There is a lot to be said about restorative justice in the English criminal justice system, and I said a fair bit of it this afternoon. If you've got any interest in RJ I strongly recommend having a good look at the slides on Moodle. Also, do some reading when you get a moment. (John Braithwaite! Barbara Hudson! Andrew Ashworth! Go on, you know you want to.) However, given the way this unit is structured, the sad fact is that taking an interest in RJ at this stage is unlikely to have any effect on your degree, so I can understand why a number of you gave it a miss today. Note to self: next year, set RJ essay.

It was nice to see so many people turning up for the 'drop-in' sessions this afternoon. I'll be running them again next week, so you can bring any last-minute essay panics to me then. I've been very favourably impressed with the thoughtfulness and creativity that's gone into planning your essays; I'm looking forward to seeing the finished articles.

Week 9: Restorative justice

First things first: if you didn't get to the lecture (and I know how many people did), please download the slides and read them through. You won't get the full effect, but it'll be better than nothing.

If you weren't involved in the role-playing exercise we did in seminars, please have a look at the "Restorative Conference Facilitator Script" which is linked on Moodle. Here are some excerpts (there are also set questions for the victim and for anyone who has come along to support them).

Ask the offender:

• “What happened?”
• “What were you thinking about at the time?”
• “What have you thought about since the incident?”
• “Who do you think has been affected by your actions?”
• “How have they been affected?”

Ask each parent/caregiver: “This has been difficult for you, hasn’t it? Would you like to tell us about it?”

Have each respond to all of the following questions.

• “What did you think when you heard about the incident?”
• “How do you feel about what happened?”
• “What has been the hardest thing for you?”
• “What do you think are the main issues?”

Ask the offender: “Is there anything you want to say at this time?”

Picture yourself sitting around a table, after a crime has been committed, and answering questions like these - as the victim, as the offender, as an offender's 'supporters' (very often parents). How do you think they would make you feel? Do you think the victim would find the process useful or satisfactory? What role do you think the offender is being made to play?

Some more general questions to ponder.

If restorative justice works through 'restitution' - giving the victim back what they've lost - how can it work for victims of physical violence? And if a victim of violence is willing to accept some form of more or less symbolic restorative justice, what implication does this have for other victims of that same crime?

If restorative justice works through 'reintegrative shaming' - encouraging the offender to say 'sorry' and encouraging the victim to accept the apology - how can we be sure that everyone involved is being sincere? What if the victim genuinely wants to accept the apology on the day, but has second thoughts later?

If restorative justice works through 'community conflict resolution' - mobilising the community as a whole to deal with the conflict represented by the crime that's been committed - how can we, in developed Western societies, identify the relevant 'community'? If we can get together a group of people who will be listened to by both the offender and the victim, how can we be sure they're going to resolve the case satisfactorily and not simply gang up on the offender?

'Restitution', 'reintegrative shaming' and 'community conflict resolution' have all been put forward as rationales for restorative justice (Dignan refers to these models as the 'civilisation' thesis, the 'moral discourse' thesis and the 'communitarian' thesis, respectively). In the real world, can a single process achieve all three of those outcomes? If not, is there anything that all these forms of restorative justice have in common?

One final thought to leave you with: what would it be like to go into a restorative justice process having admitted guilt for tactical reasons, not actually having committed the crime? Would your innocence be found out?

Week 8: Victims, politics and the law

Here's a useful link: legislation.gov.uk. If you go there, you can find the text of all Acts of Parliament passed since 1988 - and many passed in earlier years, going back to 1801. The main way in which the law is made in this country is through Bills which are discussed in Parliament, voted on and become Acts; Acts of Parliament are consequently the main way in which criminal offences are defined. If you're ever curious about what constitutes 'harassment' in the law, for instance, the text of the Public Order Act 1986 will tell you - although for completeness' sake you should also look at the Protection from Harassment Act 1997, not to mention the modifications which were made to it by the Serious Organised Crime and Police Act 2005. More recently, the present govenrment has also amended the Protection from Harassment Act by bringing in a specific law against stalking; you'll find that in the rather Orwellian-sounding Protection of Freedoms Act 2012.

This is all rather complicated and may not seem relevant, but the history of harassment in the law brings out two points about law-making which are directly relevant to victims of crime. One is that politicians act politically: laws are made in response to political pressures, to deal with what seems like an urgent current problem. It's debatable whether a new law against harassment was needed in 1997 on top of the provisions that existed in the Public Order Act; it's very debatable indeed whether new anti-stalking legislation was needed last year. But in both cases the politicians thought there was a problem that needed fixing, and a new law was duly passed. Secondly, if somebody thinks something ought to be done, it's not that hard to take a Bill that's going through Parliament and add a measure to do 'something', even if it's not directly relevant to what that Bill is about. ('Somebody' could be an individual MP, or it could be an MP's constituents, a lobbying group, the police, a newspaper company...) So as well as instant Acts in response to current problems, there are many cases of laws being made through 'tote-bag' Acts containing a huge variety of different measures.

The last government was particularly active in both these ways. A lot of laws passed over the last decade affect victims, and it's not always obvious which laws they are. More importantly, New Labour legislation affects victims in multiple different ways. Sometimes victims are used as the justification for a more punitive approach to suspects and defendants; sometimes victims are seen as people who need compensation (in the case of compensation orders, this overlaps with the previous approach); sometimes they're seen as participants in restorative justice initiatives; sometimes they're seen as people who need justice and deserve better treatment.

The balance sheet for New Labour's law-making on victims is mostly positive: lots of good and useful legislation was passed. But the record is mixed, and - as you'll see if you check back over the lecture slides - it's also very complicated!

Week 7: Victim Support

We've devoted quite a lot of attention to things that victims need (but aren't getting) and problems with the criminal justice system. This week, for a change, we looked at one of the positive features of the system and described how it actually does give victims something they need.

Victim Support is a charity, albeit one with a constant source of funding from the Home Office; it's probably best considered as a semi-detached part of the criminal justice system. It has a public face which campaigns for a better deal for victims, but it's not primarily a campaigning organisation: the bulk of what it does is simply to provide support to victims. Initially a purely voluntary organisation, Victim Support now has a substantial layer of permanent staff, but the people at the sharp end are still mainly volunteers: the organisation has something like a 1:4 staff:volunteer ratio. This means that Victim Support can offer a level of personal commitment and dedication which you don't always get from a government department: as a rule, people who work for Victim Support are doing it because they really want to. At the same time, Victim Support has 'core' Home Office funding, i.e. funding which isn't going to be turned off overnight; this supports its administrative superstructure and makes it possible to train and manage all those volunteers.

When Victim Support does campaign on behalf of victims, it does so in a very specific way. Unlike some groups which claim to speak on behalf of victims, Victim Support never claims that 'victims' in general want more of a particular kind of sentence (either harsher or more lenient). Victim Support's view, based on years of working with victims, is that 'victims' as a group don't have any particular view on how criminal cases should be resolved: some victims are very vindictive, some are forgiving, some don't care either way and just want to put the crime behind them. Instead of outcome-oriented reforms, Victim Support focuses on the process. Victims may not have any views in common, but what they do have in common is the experience of being a victim and being involved in the criminal justice system.

Rights for victims within the criminal justice process are Victim Support's key campaigning priority. Over the years, most of Victim Support's core demands have been met to a greater or lesser degree; the only one which has clearly not been met is the universal right to compensation. The key process-based rights of respect, protection and information (giving and receiving) are now very largely respected, along with the negative right of not having responsibility for the outcome of cases.

But is this enough? Should victims have more involvement with criminal cases - or even control over them? Is that what victims want? Is it even possible? More on these questions next week.

Week 5: Compensation for victims

There have been three themes running through this unit. The first, encapsulated in the idea of the Ideal Victim, has to do with how we think about victims. We've seen how entrenched some assumptions about victims are, and - more importantly - how unhelpful those assumptions can be. The second has to do with the criminal justice system, and how difficult it is to fit victims into it: the victim doesn't belong on either side of the confrontation between the Crown and the offender, and often ends up, literally, serving as a witness to her own victimisation. The third has to do with what victims want - that is, real victims; ordinary people who happen to become victims of crime. It seems to me that what victims most consistently want is what anyone would want: respect. Some victims are vengeful, some are forgiving; some are knocked flat by the after-effects of the crime, some shrug it off; some want to take an active part in the prosecution of the crime, some want to put it all behind them. The only thing all victims have in common is that they want to be taken seriously, listened to (if they want to talk), given support (if they need it) - in short, treated with respect.

This week's lecture may have seemed like a bit of a digression - I talked about compensation for three quarters of an hour before concluding that both the main compensation schemes are wildly inadequate. However, it actually involved all those three themes. The Criminal Injuries Compensation Scheme is explicitly designed to exclude anyone who doesn't co-operate with the police and anyone with a 'bad character' - which is to say (among other things) anyone who has served a custodial sentence of any length within the last seven years. (Hard luck if you go to prison for non-payment of debts and get beaten up a year later.) Only the innocent and virtuous need apply, in effect.

The other main form of compensation is the Compensation Order, which can be handed down by courts as part of a criminal sentence. This is a vivid illustration of the inadequacy of the criminal justice system to give victims what they need - and of the need for respect. Not all crimes are reported to the police; not all of those are detected, i.e. have an offender identified; not all of those are prosecuted, and (inevitably) not all prosecutions lead to a guilty verdict. But it's only a guilty verdict that can lead to the imposition of a Compensation Order - and even when the option is available, in practice most sentences don't include compensation (often because the offender would be unable to pay). Putting it all together, the criminal justice system can only provide compensation, in the form of a Compensation Order, for a tiny, tiny minority of victims.

When a Compensation Order is made, how much should it be? This is a difficult one. Somebody who has had a leg broken in three places, suffering permanent impairment as a result, isn't going to want to be fobbed off with a ten pound note. But if a more satisfactory order was made - £10,000, say - would this mean saying that the leg was worth £10,000? It's not a calculation anyone would want to make. I think we have an instinctive sense of when monetary compensation is far too low, without having a clear sense of what the right level would be. The reason is the message that it conveys - the point of a very low amount is that it conveys disrespect. Similarly, research has shown - perhaps surprisingly - that victims don't object to compensation payments being spread out over a long period, if there is no other way that the offender can pay. What victims do object to is not knowing how long the period will be or what the payments will be: in short, they object to being kept in the dark, treated with disrespect.

Having said all of that, the fact remains that both the main compensation schemes are wildly inadequate: victims need respect and support, and they need a universal service for victims. Which is what we'll be talking about after Reading Week.

Week 4: Victims, prosecution and the courts

Whose pigs are these?
Whose pigs are these?
They are John Potts',
I can tell them by their spots,
And I found them in the vicarage garden.
- traditional

We did a bit of history this week, starting with something that may be more myth than history.

In the beginning (this is the 'myth' part) there were no courts and no trials; when people had problems with one another, they sorted them out face to face. The vicar would have a word with John Potts, and they'd come to some arrangement: he'd keep his animals in his own garden, or the vicar would let him graze them by the vicarage on Mondays and Wednesdays, or whatever. There would be no laws being broken and no general principles being decided, and nobody would end up with a criminal record.

Then, at some unspecified time, things changed: disputes between people were no longer sorted out by the people themselves, but had to be decided in accordance with the law. Did John Potts have the right to graze his animals by the vicarage? Were they even his in the first place - could he prove it? All of a sudden, any dispute could end up in the courts, where it would be decided according to laws backed by the authority of the government. In the process the role of the victim changed dramatically, from being at the centre of the conflict to merely being a witness to the crime.

So far, so mythical - although it's quite a plausible myth. Coming forward into historical time, we know that the police took over the responsibility of mounting criminal prosecutions, in Britain, some time in the first half of the nineteenth century, and that as a result a lot more prosecutions took place. We also know that, before the police got involved, prosecutions were very often dropped or settled amicably - which may not produce consistency between different offences, but does give a much bigger role to the victim. The obvious conclusion is that a lot of the increase in prosecutions which took place after the police took over consisted of disputes which would previously not have gone to court.

A series of reforms, culminating in the creation of the Crown Prosecution Service in 1982, continued this process of standardisation, formalisation and centralisation, bringing consistency to criminal trials but reducing the role of the victim. However, by 1982 - the high water mark of this process - the contemporary movement for the recognition of victims' rights was already growing. Since that time, there has been a drive to bring victims back into the process, most successfully in the form of victim impact statements (which we discussed in the seminar).

Having said all of that, there are still issues with victim involvement in the criminal process - which is, fundamentally, all about a confrontation between the offender and the state (or the Crown). Many people argue that victims' needs can never be met by tweaks to the criminal process, and that an alternative process is needed: something more like restorative justice. Of which, more anon (but please read Nils Christie's paper "Conflicts as property" if you're interested.)

Week 3: Victims, the police and prosecution

We're into Part Three of the unit now. Part One was about introducing the idea of the victim and explaining why it's so problematic; this involved looking at the difference between experiencing victimisation and being recognised as a victim, which led on to some discussion of different schools of thought in victimology and a fair old bit about the "*d**l v*ct*m", about which I suspect you are by now sick of hearing.

In Part Two we built on our discussions of radical and feminist victimology by getting into the politics of victimisation and victimhood. We know that not everyone suffers from crime, and not everyone who suffers from a crime will be recognised as a victim; are these random processes, or can we make any predictions as to who is more likely to be a victim of what kind of crime, and who is more likely or less likely to be recognised as a victim? If we can, do our predictions have anything to do with other things we know about society? Looking at questions of gender, ethnicity, class and corporate power, I've been arguing that the answers to those two questions are Yes and Yes: both exposure to the risk of crime and non-recognition as a victim are strongly associated with broader injustices and imbalances of power.

Part Three is about victims in the criminal justice system. There's more descriptive material in this part of the unit - more about how the system actually works - but the angle of the unit is still critical: we're not just asking "how does the system look after victims?" but "does the system look after victims properly?", and even "can the system look after victims properly?".

This week's lecture was about how important victims are to the police (answer: very important indeed); it was also about the politics involved in responding to victims' needs. My argument was that the criminal justice system has made great advances in terms of paying attention to victims, but that this isn't necessarily as positive a development as it sounds. The problem is the way that the government sees victims. Very often, politicians see victims of crime rhetorically, as a way of demonstrating how serious the problem of crime is and how punitive the system needs to be: victims, in this way of thinking, are good people whose lives are blighted by the fear of crime, who are consumed with anger about the wickedness of the offender, and who will tell the Daily Mail all about it if the government doesn't do something to pacify them. The good fearful victim is counterposed to the evil unpunished offender, very much in an ideal victim/ideal offender style. This is a realistic representation of the way some victims of crime feel, but not all or even most of them.

Alternatively, governments see victims bureaucratically: a victim of crime, in this way of thinking, is someone who has accessed services designed for victims of crime (services operated by the police, the courts, the probation services...).  Once the machinery of those services has been set in motion, the thinking goes, the victim should have the right to expect a certain level of service from it, e.g. the right to make a statement about the impact of the crime or the right to receive information about an offender's release from prison. This approach is basically a good thing - it's better than not having the right to make a statement about the impact of the crime, after all. But it has its own problems, which we'll be looking at in more detail during the rest of the unit. The key point is that this approach involves the criminal justice system looking at victims from the perspective of the system - not from victims' own perspective. This means that the system can give victims a lot of what they need and want, but only by improving or adding to what it already does. I would argue that the key thing victims have historically been denied by the criminal justice system is respect - and making that a reality means a bit more than giving the police new standards and targets.

Also this week: the second essay. I'll post something on Moodle about this for the benefit of anyone who was unable to get to the seminar.