A series of linked articles on the challenges and opportunities of the new probation landscape is opened by Jon Collins, CEO of the Restorative Justice Council, who puts the case for integrating restorative justice into probation practice. He argues that effective partnerships will be crucial in ensuring the availability of services.
There is now a widespread consensus among politicians, policy-makers and practitioners that restorative justice works. If done well, it can both improve victims’ experience of the criminal justice system and reduce reoffending.
As a result, there has been significant progress made in recent years in embedding restorative justice into the justice system. In addition, national standards have been developed to support the delivery of quality practice. This article explores the growing use of restorative justice and its place in the new probation landscape.
The history of restorative justice in England and Wales has seen it develop organically, primarily based around the efforts of individual practitioners. There has, however, in recent years been an effort to move it into the mainstream. Breaking the Cycle, the 2010 document setting out the then Government’s plans for the criminal justice system, highlighted their support for restorative justice, stating that the Government was “committed to increasing the range and availability of restorative justice approaches”.
A Restorative Justice Action Plan was then published in 2012, setting out the Government’s intention to embed restorative justice within the criminal justice system by improving access and raising awareness.
2013 saw the publication of a new Code of Practice for Victims, which states that victims of young offenders have the right to access restorative justice under appropriate circumstances.
The rights of victims of adult offenders are weaker – the code includes only a right to learn about restorative justice and to learn whether they can access it. This reflected, in part, the still inconsistent restorative justice provision available across England and Wales for victims of adult offenders.
To address this, the government also announced in 2013 funding of £29 million for restorative justice provision. The bulk of this money was devolved to Police and Crime Commissioners (PCCs) to enable them to provide victim-initiated restorative justice in their areas.
2013 also saw legislation passed to enable courts to defer sentencing in order for restorative justice activity to take place ‘pre-sentence’.
While this could, in practice, have taken place previously, this legislation, the Crime and Courts Act 2013, was intended to send a message to the courts that this is a route that they should consider.
Pathfinders have been undertaken in three Magistrates’ Courts and are currently underway in ten Crown Courts across the country. Managed by a partnership of Restorative Solutions and Victim Support, these Crown Court pathfinders are intended to demonstrate whether this approach can work in practice. The results of an evaluation of the pathfinders will be published later in 2015.
The NOMS Restorative Justice Capacity Building Programme was also established to train 1,000 prison and probation staff to run restorative justice conferences.
In addition to the training that was delivered, this has led to the publication of Wait ‘Til Eight, a practical guide to help prison and probation managers build restorative justice programmes. While the recent evaluation of the programme found that it had led to real benefits, it also found that there had been significant barriers to successful implementation at a time of considerable change within the criminal justice landscape.
Nonetheless, some prisons make restorative justice available and prior to recent changes to the delivery of probation services there had been an increase in the use of restorative justice as part of a community sentence.
As a result of the changes in recent years – and building on the provision already available in prisons, facilitated by probation services and embedded in the youth justice system – restorative justice is now, at least in theory, available for victims at any stage of the justice system.
At the same time the Restorative Justice Council (RJC) has, with the support of the Ministry of Justice, developed standards for the restorative justice field and mechanisms to enable individuals and organisations to demonstrate that they meet those standards. This is intended to ensure quality and improve confidence in the delivery of restorative justice. While these changes constitute significant progress, it is certainly not the case that all the challenges to making restorative justice fully accessible have been met.
Provision remains patchy across England and Wales, as a mapping exercise conducted by the RJC in 2014 demonstrated, and for many people finding ways to access services offering restorative justice remains a challenge.
Once the services commissioned by PCCs are fully operational this should be addressed for victims, at least to a degree. However, much will depend on the quality of provision, how victims are referred to the services, and the way in which victims are informed about and offered restorative justice.
The issue of responsibility for ensuring that offenders are able to explore restorative justice is more problematic and, within the context of these widespread changes, the role of probation is crucial. Firstly, restorative justice can be delivered as part of a community sentence. This will only happen where it is made available.
Secondly, court-based probation staff should have an important role in identifying suitable cases for pre-sentence restorative justice.
However, as the readers of Probation Quarterly will know only too well, the Ministry of Justice has embarked on a major reform of probation provision, abolishing the existing probation trusts and dividing the provision of probation services between a new National Probation Service (NPS), which now provides pre-sentence reports and manages high-risk offenders, and new Community Rehabilitation Companies (CRCs), which supervise lower-risk offenders on community orders and leaving prison.
Amidst the broader uncertainty caused by these changes, there is also a lack of clarity around the delivery of restorative justice. Such significant reform will inevitably lead to a period of organisational upheaval which may see restorative justice becoming sidelined by delivery organisations.
In addition, existing organisational systems to support the delivery of restorative justice have been disrupted. Most of the successful bidders for the contracts to run CRCs do not have a track record of delivering restorative justice and it remains to be seen whether they will develop (or, where it already exists, retain) in-house capacity or commission an external organisation to provide restorative justice services when they are needed. Budgets will also be tighter. This level of uncertainty will inevitably affect provision, at least in the short term.
Even more challenging is the issue of co-ordination between services. In addition to the relationships between the NPS and CRCs, it is essential to consider how CRCs, with the responsibility for managing offenders, and new PCC-commissioned services, with responsibility for ensuring that victims can access restorative justice, will work together.
Effective collaboration is crucial given that both victim and offender need to be involved for restorative justice to take place.
Links will also need to be made between areas, as both victims and offenders may move around. Will services have the processes in place to deal with partners from different areas? And will information be shared in a way that enables referrals to take place? These practical challenges will need to be addressed if the current structures are going to operate effectively.
Despite this, however, the reforms to probation offer significant opportunities for restorative justice. As part of the reforms, a new Rehabilitation Activity Requirement has been introduced as one of the options that can be included as part of a community or suspended sentence. The Offender Rehabilitation Act 2014 explicitly states that these Rehabilitation Activity Requirements can include restorative justice.
While this actually replicated the status quo as restorative justice could already be used in a community sentence (normally through the use of a Specified Activity Requirement), it is a welcome step that removes any ambiguity.
Sentencers and CRCs should therefore be in no doubt that this is an option, while NPS court staff should be fully cognisant of the availability of restorative justice locally. This will enable them to assist sentencers to identify cases suitable for a Rehabilitation Activity Requirement that could include restorative justice, although it will, of course, be the CRC that ultimately determines whether restorative justice forms a part of this requirement.
In addition, the focus in the new probation landscape on value for money and payment by results (based on reoffending rates) should benefit restorative justice as the evidence in support of its use is clear.
A major, government-funded randomised control on the use of restorative justice conferencing found that it had a positive impact, reducing the frequency of reoffending by 14%. It also concluded that the use of restorative justice can lead to significant cost savings, with reductions in reoffending leading to £8 in savings to the criminal justice system for every £1 spent.
A systematic review of the evidence on restorative justice, published by the Campbell Collaboration, similarly concluded that restorative justice conferences “cause a modest but highly cost-effective reduction in repeat offending”.
CRCs should therefore be confident that the use of restorative justice will help them to effectively rehabilitate offenders and cut reoffending.
Evidence also demonstrates that restorative justice has significant benefits for victims, improving victim satisfaction and helping victims to put the crime behind them and move on with their lives.
Improving victims’ experiences should be a primary goal of the criminal justice system as a whole and the NPS and CRCs will recognise the importance of supporting victims and of improving their future quality of life. Restorative justice can help them to achieve this.
So, what’s next? The new CRC arrangements will clearly take some time to bed in. In the meantime, the status quo may well be maintained in many areas.
But once this transition period passes, every CRC should ensure that restorative justice is a core part of their rehabilitative work. The evidence in support of its use should ensure this happens, while the new owners of the CRCs are in favour of restorative justice.
The NPS will also need to decide whether they retain capacity to deliver restorative justice themselves. If they do not, then they will need to ensure that mechanisms are in place to enable them to access delivery capacity when required in work with high risk offenders.
Local partnerships will also be important. Effective partnerships around restorative justice delivery between the NPS and CRCs will be essential, as will effective co-ordination between the NPS, CRCs and PCC-funded restorative justice services.
Broader partnerships may also be beneficial. Establishing multi-agency restorative justice hubs to coordinate the provision of restorative justice is one way to achieve this.
This approach brings together all the relevant providers in an area – for example the NPS, CRCs, PCCs, YOTs and the local voluntary sector – to properly coordinate provision and ensure that duplicate referrals do not take place and that gaps in service provision are removed.
This is a cost effective way to boost provision, given anticipated future budget cuts, by using existing local capacity to maximum effect.
At the same time, it will be essential that restorative justice commissioned or delivered by the NPS or CRCs is delivered to a high standard.
To help to achieve this, the RJC has produced evidence-based standards for the restorative practice field and developed mechanisms to enable individuals and organisations to demonstrate that they meet these standards.
In our view, all those involved in the delivery of restorative justice should adhere to these standards and probation organisations that deliver restorative justice should seek to achieve the Restorative Service Quality Mark, which was developed with the Ministry of Justice and demonstrates that an organisation is delivering safe, quality restorative practice.
Restorative justice should be at the heart of our response to offending, embedded across the criminal justice system so that it can be accessed at the time when it can have the greatest impact for both victim and offender.
The NPS and CRCs will have an important role to play in this and should ensure that every offender who they supervise is able to access high quality restorative justice.
The Restorative Justice Council has published an information pack for CRCs and the NPS: www.restorative-justice.org.uk/probation-pack