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Is restorative justice the best way of dealing with criminal offences?

View profile for Sean Joyce
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Met Police under urgent review over forensics mishandling

This week retired, Welsh, international rugby player, Gareth Thomas, went public with his decision to agree that the police should use restorative justice to deal with teenagers who were responsible for what has been described as a homophobic attack against him. This story also happened to coincide with International Restorative Justice Week 2018 (November 18th to 25th).

What is restorative justice and is it always the best way of dealing with criminal offences?

Restorative justice is used by the police to conclude criminal investigations by allowing offenders the opportunity to meet with their victims face-to-face, or to write them a letter, and apologise for their actions. It can give victims closure and the satisfaction of receiving a direct apology, can help to rehabilitate offenders by giving them insight into the effects of their actions on victims and, importantly for those accused of criminal offences, avoids a criminal conviction, formal caution, fines, court costs or other punishments. For the young and those of previous good character, this can be an attractive way out of a difficult situation.

Restorative justice is also a cheaper way of redressing criminal activity than taking people to court, which saves the tax payer lots of money as well. 

So what’s not to like about it?

Certainly, in many cases this can be a good result for all involved. A good defence solicitor can use his or her experience and knowledge of the system to help those accused of criminal offences to avail themselves of the benefits of restorative justice in appropriate cases.

However, by removing people from the criminal justice system, in practice we sometimes find that the protections offered by its rules and procedures, are also removed, for example, rules of evidence and being treated as innocent until proven guilty. These are principles not always properly valued by members of the general public until the consequences of non-compliance directly affect them, or those close to them. These principles are important in a mature justice system, such as ours, and it’s essential that they’re properly protected to maintain public confidence in the system.

The problem can be that in practice, when restorative justice is on the table, investigations often involve the police inviting suspects (often young and often vulnerable suspects who are susceptible to suggestion) to voluntarily attend the police station, without the formalities and protections of arrest procedures, for what tends to feel like an informal chat. In reality it’s far from informal. In fact, for some it can be an event which can change the course of their lives, depending on the outcome. 

Sometime, this “chat” doesn’t even take place at a police station. We’ve seen restorative justice used in schools to deal with children who only have their teachers and parents to guide and advise them. 

In these circumstances, those who find themselves accused, rightly or wrongly, are far less likely to exercise their basic legal rights, like the right to independent legal advice from a qualified lawyer. In fact, in the case of youths – the ACPO Restorative Justice Guidance and Minimum Standards expressly says “An RJ disposal involving young people does not require the presence of an appropriate adult”, let alone the advice of a lawyer (paragraph 14).

The question of whether someone’s actions amount to a criminal offence is not always as clear cut as you’d think. For example, at what point does self-defence stop being self-defence and become an assault?

The problem is that in the absence of legal advice, this casual approach to restorative justice can leave those accused with the impression that this is a very easy way out of what appears to be a difficult spot and otherwise insurmountable problem. This is a particular problem with the young and the vulnerable. Even if you’re innocent, there is, undoubtedly, a huge temptation just to admit it, accept restorative justice, and get the whole unpleasant experience out of the way quickly. This may seem a more palatable option than having to argue your innocence in court, especially if you’re told by the police that it will avoid drawn-out court proceedings, any risk of a caution or conviction and, in some cases, unpleasant formalities such as your finger prints being taken and stored on the police national computer. The danger is that some innocent people sometimes don’t give enough thought to the long term consequences and succumb to this temptation when it simply isn’t appropriate.

People could very well be admitting to an allegation for which there is credible or admissible evidence against them and which, in reality, stands little or no chance of ever reaching a courtroom and would never result in a conviction, even if it did. In cases like this, why should you blemish your good character if you are in fact innocent?

However, an admission and acceptance of restorative justice cannot be later retracted and in the long term these cases can, and very often are, disclosed on enhanced criminal record checks by the Disclosure and Barring Service (DBS).

You have little control over what is disclosed on a criminal record check by the DBS to future potential employers and cases from many years ago involving what may have seemed to be relatively minor offences at the time are disclosed on enhanced DBS checks.

The DBS can not only disclose the fact you were arrested, despite no further action being taken due to a lack of evidence, but the Supreme Court have said it can even be acceptable for them to disclose acquittals after a full trial, if the circumstances justify it (R (on the application of AR) v Chief Constable of Greater Manchester Police and another [2018] UKSC 47).

The two tests applied by the DBS to disclosure requests are relevance and proportionality. Legal aid is not available to fund a legal challenge to these decisions, leaving people in a viscous circle in which they can’t find work due to what the DBS have decided to disclose and, consequently, can’t always afford the costs involved in challenging that decision.

These are all issues that need prominence in any public debate about the success and merits of restorative justice in our criminal justice system. 

We’ve advised countless professionals facing criminal investigations. Some, because they’ve been unable to secure work as a result of what might have been a minor incident when they were young and which they were told at the time by the police, would be quickly forgotten about. Others have involved us early on in the investigation and our advice and representation an at that early stage has enabled us to successfully avoid any kind of finding of guilt being recorded at all and therefore avoid problems arising later in their professional life.

The best approach is to ask for independent legal advice from the very outset. A lawyer can advise you about whether there is any credible and admissible evidence against you and the likelihood of conviction if the case did go to court, whether the circumstances mean you are actually guilty of an offence in the eyes of the law, whether restorative justice is likely to be available and, if so, whether its appropriate to agree to it. 

If you need legal advice call our team on 01616 966 229.