Sunday, 6 April 2008

Semi-Plenary 1: David O'Mahony - Restorative justice and criminal justice: Complementary or conflicting paradigms?

O’ Mahony opened by acknowledging the fact this is a topical debate and providing a background for the emergence of restorative justice. There has been a growth in the area of alternative dispute resolution as well as the increasing dissatisfaction of victims with the criminal justice system. Restorative justice (RJ) offers, perhaps, a more active role for victims, who for many years were alienated by the mainstream criminal justice system. O’ Mahony pointed out the various international attempts to make RJ more a part of criminal justice. An EU framework promoted mediation as advantageous and the UN Vienna Declaration also committed members to implement RJ.

He then attempted to define RJ. This he pointed out is not an easy task as there are in existence many varying definitions of RJ. Many of these definitions are too broad and vague. The danger of this according to O’ Mahony is that RJ may mean all things to all people, in other words nobody knows exactly what it is all about. He set about highlighting some of the varying definitions in a bid to bring some clarity to the purpose of RJ.

The implementation of RJ programmes may vary greatly; different programmes attempt to achieve different things. Some may be special to a particular locality such as the work done with the Loyalists in Northern Ireland. Some commentators would argue that RJ belongs in the community rather than the criminal justice system. He then added that RJ is divergent in its scope, range and intention.

RJ may contrast in many ways to the criminal justice system. The state takes the conflict away from the key people in the offence, whereas in RJ these people are at the heart of any programme. Criminal justice seeks to be cold and impartial. Punishment is objective and retrospective, whereas RJ will often look at the potential to repair future harm. Criminal justice is effective at fact finding but RJ is all about dealing with the aftermath of the facts.

O’ Mahony then went onto examine some of the main types of RJ. First he examined victim-offender mediation. This is marginalised from criminal justice. It began in Canada and operates only on a small scale in the UK; it is developed on an ad-hoc basis. It is developed at a local level and is operated by the Probation service. The second example of RJ was community reparation boards. These help to give the community a further stake in the criminal justice system. In the UK they are mandatory for first time offenders and low-level offenders. According to the Newburn study their outcomes have been mostly positive. O’ Mahony pointed out that victims and offenders are generally more satisfied than the traditional criminal justice route. However he also noted the problems with resources and the low-level of victim participation (only 13%). He begged the question if this is truly a restorative measure with such a small uptake from victims. Also the mandatory participation of offenders also makes this questionable.

The next example of RJ was police-led restorative conferencing. Similar initiatives to this are available in Ireland. Although police participation is strong, victim participation is again weak (14%). O’ Mahony pointed out that the Irish system is much stronger in this area with high levels of participation from all parties. There were 320 such conferences in 2006. However, he did point out that this was out of 27,000 referrals. So the good progress was on a small scale. Finally, he gave the example of restorative conferencing. According to O’ Mahony, only Northern Ireland has a fully-fledged system. Victim participation is high (69% in 2005). It is a resource intensive process. 91% of victims get at least an apology, with only 11% who would have preferred to have gone to court.

He concluded by saying that RJ is no panacea but the process has some distinct advantages. It needs to be managed carefully. It has the potential to be harmful if it is not operated effectively. RJ and criminal justice can be brought together with effective safeguards and if managed properly.

Summary provided by LL.M (Criminal Justice) candidate, John Cronin.

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