How our criminal justice system is failing victims and their families

How our criminal justice system is failing victims and their families

by Liam Kerr
article from Saturday 18, November, 2017

AS IT STANDS, those who suffer the most from crime find themselves side-lined in favour of a process that cares more about helping offenders than the rights or needs of victims.

According to one former police officer, common feedback from victims and witnesses is the feeling that they are “on the outside looking in” and once they have given their statement, they often hear nothing further until receiving a citation to attend court.

So how do we empower the victims of wrongdoing rather than those who commit it?

The answer is by putting them at the very heart of how we deal with offending.

‘Restorative justice’ is an innovative approach that desperately needs more attention in Scotland. The Scottish Universities Insight Institute defines it as: “a process that brings together those harmed by crime and those responsible for the harm to safely discuss the harm and how it might be set right”.

In practice, this means some form of communication between offender and victim, which is voluntary for both parties. The offender must be prepared to admit responsibility, though crucially there’s no need for victims to forgive in return.

None of this replaces a formal trial to establish the guilt of the offender.

According to Joanna Shapland, Chair of the Scottish Restorative Justice Forum, the process allows victims and their families to ask questions such as “why me?”, “are you sorry for what you did?”, and “what are you doing to change your behaviour?”

Historically, the process tends to be most used for young offenders and minor crimes, but according to recent research, restorative justice is as or more effective with more serious offences and especially with adult offenders.

The evidence suggests restorative justice acts as victim empowerment, which, according to authoritative research is effective in reducing the post-traumatic stress symptoms of victims, provides both victims and offenders with more satisfaction with the criminal justice system and reduces the victim’s desire for revenge against the offender.

But of course it does; where practicable the victim often has a say in the punishment carried out by the offender so that, for example, the unpaid work carried out as part of a Community Payback Order (CPO) would have more of a connection with the original offence. This in turn is likely to increase the offender’s understanding of the impact of their crimes and better satisfy the victim’s sense of justice.

It’s no wonder that a significant proportion of victims want it. An academic evaluation of three schemes which ran in England found up to 83 per cent of victims offered restorative justice wanted to take part, contingent upon the elapsed time since the offence and its nature. In the same evaluation, victims appreciated the offender meeting them, answering questions, and the opportunity to receive a direct apology, which is not normally possible in criminal justice processes.

Victims were keen for the offender to try to turn his or her life around. International research consistently shows very high rates of participant satisfaction with typically over 80 per cent of respondents saying they found the process helpful, are pleased they did it and would recommend it to others.

As well as putting victims in the driving seat, restorative justice has been shown to significantly reduce reoffending.

According to 2007 research, levels of reoffending drop amongst most if not all of those offenders who have been through a restorative justice process. Figures from New Zealand for the period 2008-13 indicate that offenders who engaged in restorative justice had a 15 per cent lower rate of reoffending in the following 12 months than those who did not so engage, and committed 26 per cent fewer offences overall.

With reoffending rates in Scotland that have barely changed in 17 years, there’s a massive reason to get restorative justice working.

So why is Scotland behind the curve? Shapland, who is also director of the Centre for Criminological Research at the University of Sheffield, has said that ‘Scotland has been relatively slow to embrace restorative justice’ and that ‘restorative justice in Scotland is far less developed than it is in England or in Northern Ireland or in mainland Europe or further afield’.

One answer might be that it’s seen as ‘soft touch’, but restorative justice is not a replacement for sentencing. It is an additional element that runs alongside traditional justice processes.

Recently, the Scottish Government published its Guidance for the Delivery of Restorative Justice in Scotland. This is good guidance and welcome. But guidance isn’t very useful if nobody is carrying out restorative justice – and the experts are clear we are lagging behind.

It was rather telling that when I tabled a Parliamentary Question asking the Scottish Government how many victims and offenders had been offered restorative justice in the last year, that it replied that it didn’t know.

Next week (19 to 25 November) marks International Restorative Justice Week, organised by the European Forum for Restorative Justice. They’re trying to raise awareness of restorative justice practices by organising events, conferences, debates, and movie screenings in over 16 countries.

The Scottish Conservatives want to see the SNP Government mark this week with a clear commitment to implementing restorative justice processes across and alongside the criminal justice system. An important first step is ensuring trained practitioners are in place to provide the service.

It will take time, but in some areas it would not be difficult. Sherriff David Mackie has argued that restorative processes could easily be included in the process of CPOs. Speaking about his experience of conducting Community Payback Review Hearings, Mackie says ‘I have on occasion thought that the only person missing is the victim.’

And that’s the essential point; If we care about victims of crime, we must make them a part of putting things right.

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