Sunday, 6 April 2008

Semi-Plenary 1: Brian Fitzpatrick - Restorative Justice an Irish Perspective: Reflections on the National Commission on Restorative Justice

Mr Fitzpatrick of the National Commission on Restorative Justice, began by outlining who is on the National Commission. The committee has representation from the Gardai, the Courts Service, the Probation Service, the Principal Prosecution solicitor and two lay members. The recent Joint Oireachtas Committee report was significant in the area of restorative justice (RJ) as it had cross party consensus, this helps to create momentum. The report recommended more use of RJ, put it on a statutory footing, foster judicial interest and to profile the benefits of RJ for victims.

He then went onto examine what exactly RJ is. Like O’ Mahony he conceded there was no unanimous idea of what it is and he gave a sample of the definitions available. It offers the victim fairness, respect and satisfaction. It offers them the opportunity to speak, participate in the outcome and to receive an apology. It offers the offender a greater appreciation of the harm caused and hopefully a positive impact on recidivism. It empowers the community via involvement.

Over 80 countries use some form of RJ, with Canada having 12 distinct models. Fitzpatrick pointed out that many models of RJ are rooted in the community and address cultural and ethnic issues. He then went on to highlight how RJ is used throughout the world and its use in both adult and juvenile cases. After this brief discussion he focused his attention on Ireland how we have used RJ. He focused mainly on the Garda Diversion Programme. He applauded the Gardai’s commitment and professionalism in helping with implementation of the 2001 Children Act. There was a 93% satisfaction for victims in the restorative approach. Juveniles said it was not an easy option. There was a 33% reconviction rate of juveniles subsequent to diversion. Fitzpatrick pointed to the distinct advantage of having both the victim and the offender’s family involved.

He went on to point out that RJ in the future will only be one of a number of options available to the criminal justice system, it will not overtake the existing system but offers some distinct benefits. He pointed out the large number of people receiving sentences of six months or less. It is his belief that if more of them were diverted there would be better outcomes for both victims and offenders.

He concluded by saying that RJ has now gained a foothold in Ireland and can be used as an alternative to tackle crime. It is limited but growing and the Commission’s task is a work in progress.

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

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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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