19th January 2024
On 19 January 2024, Irish Legal News published an opinion piece by Dr Ian Marder and Pa Daly TD disucssing the upcoming Criminal Justice (Promotion of Restorative Justice) (Amendment) Bill 2023.
Read the article on Irish Legal News website or read the piece below.
"Pa Daly TD and Dr Ian Marder argue their new private members’ bill could be a win-win for victims of crime, people who commit offences and the wider community.
We expect our criminal justice system to make us all safer and meet the needs of victims of crime. Yet, our courts face long delays and our prisons are overcrowded, making them dangerous places to work and unlikely to help people achieve their full potential after offending. Meanwhile, victim services remain a lottery — inaccessible in many places, and drastically underfunded.
These problems are far from unique to Ireland. But as we seek to move our country forward in its health and economic systems, we must also reform criminal justice so that everyone who suffers from crime or experiences criminal justice is able to contribute fully to this progress.
What if our system sought to address and repair the harm caused by crime, with a view to meeting the need of those affected? What if all those with a stake in an offence had an opportunity to come together to explore how to make amends for what happened and stop it happening again?
In this context, we collaborated to draft a private members’ bill to try to achieve this. The bill would promote a process known as ‘restorative justice’, one of few interventions that research shows both helps victims recover from crime and reduces reoffending.
Restorative justice is when a dialogue takes place between a victim of crime, a person who has committed a crime against them, and an independent person who is trained to prepare and manage such conversations. This can be a face-to-face conversation but does not have to be. If it is face-to-face, the people involved can also invite other people to support them.
The process is voluntary for all parties, so nobody can ever be forced to participate. Yet, restorative justice is also flexible: if one person does not want to participate, or in cases where a direct victim or perpetrator cannot be identified, it is still possible to offer a restorative process to the other person with their family, other supporters and concerned members of their community.
Restorative justice has existed in Ireland for many years. It can take place alongside youth cautions, delivered by trained gardaí. It can also occur in the adult courts. In some counties, such as Dublin, Tipperary and Wexford, judges can refer to restorative justice between conviction and sentencing. The Probation Service has a Restorative Justice and Victim Services Unit, which means that trained probation officers can use restorative justice when people receive community or prison sentences.
These services change people’s lives. One of us (Ian) received research funding from the Department of Justice to map restorative justice in Ireland and collect case studies. These case studies show time and again what we already knew from international research: restorative justice results in high levels of victim satisfaction, helps victims recover from crime, and supports people to stop offending.
For victims, restorative justice allows them to tell the person responsible how they were affected and express what they think should happen next. For people who have committed offences, it may be the one process that does not feel designed to bring them down through stigma and punishment. This is likely among the reasons why people are more likely to pay reparations and engage with support services when agreed through restorative justice, than if imposed by the court.
The problem is that restorative justice is rarely offered. The mapping exercise found huge gaps in restorative justice provision around the country, as well as very low levels of use of existing services. Figures published last year suggest that there were only around 400 referrals to restorative justice in adult cases in 2022, down from around 700 in 2019. Proper provision would mean that all victims of crime have the information and the opportunity to decide if restorative justice is right for them.
The private members’ bill on which we collaborated would explicitly encourage gardaí, prosecutors and judges to refer cases to restorative justice providers, who can then explore if the people involved would like to participate. This would be the first law in Ireland to encourage referrals, and would not result in pressure being put on any person to participate if they did not want to.
In addition, while existing laws do not prevent cases being referred pre-conviction, this bill would explicitly permit and encourage it. This would open up new referral pathways for gardaí, prosecutors and judges, and mean that victims could benefit from restorative justice at an earlier stage. As an EU report on victims’ rights noted, victims can benefit enormously from the opportunity to resolve cases outside of court, given substantial court delays and the fact that meeting victims’ needs is not a key goal of the sentencing process.
If victims opt to participate in restorative justice pre-conviction or pre-sentence, they could say what they want or feel they need to say, ask questions to which only that person has the answer, seek reparation or apologies, and ultimately move on from what happened to them. It could also trigger people who commit offences to reflect on and re-evaluate their behaviour, provide a stepping stone on the path towards desistance, and help people solve the problems in their lives that contribute to offending.
The bill to promote restorative justice is one among many changes to criminal justice that are sorely needed. But what better place to start than with something that is a win-win for everyone?"
Respect for rights in the penal system with prison as a last resort.