Oral evidence: Restorative justice, HC 594Tuesday 19 April 2016
Oral evidence, 19 April 2016.
Witnesses
Gary Stephenson, Chief Executive, Restorative Solutions CIC, Ray Fishbourne, Chair, Thames Valley Restorative Justice Services Steering Group, Thames Valley Partnership, and Dr Theo Gavrielides, Founder and Director, IARS International Institute, gave evidence.
Chair
Welcome, everybody. Thank you very much for coming to give your evidence. Could you briefly introduce yourselves, for the record?
Gary Stephenson
I am Gary Stephenson, chief executive of Restorative Solutions, a community interest company.
Ray Fishbourne
I am Ray Fishbourne, chair and founder of the Thames Valley restorative justice advisory group.
Dr Gavrielides
Good morning. I am Theo Gavrielides, founder and director of the IARS International Institute.
Chair
Let me start with you, Dr Gavrielides. You have helpfully provided written evidence, as all the witnesses have. You describe the argument that restorative justice costs less as a “thin” one that requires more research. We have heard other witnesses describe the Shapland report costings as robust. Would you regard them as robust?
Dr Gavrielides
With all due respect, as Jon said, it has been quite a while since the figures were produced. They were produced by Government-funded projects. I do not want to say anything bad about the research, but a lot of research needs to be done with specific types of crime. We have been talking about restorative justice and crimes as if they were one thing. They are not. If you look at complex cases—you have been talking about domestic violence and hate crimes—they take a lot longer. We need to look at the variants. When you are costing restorative justice, what variants are you looking at? Are you looking at police time? Are you looking at court time? What are you looking at to say that it is cheaper? We have all been concerned about the rising levels of imprisonment and the costs of the criminal justice system. The current Government are looking at mainstreaming restorative justice on a cost-benefit argument. I am very concerned when we say that restorative justice costs less, because when we look at individual crimes, the evidence is not there. More research needs to be done, looking at the variants of each crime. If we are going to look at theft, let us look at the variants for theft. If we are going to look at murder, let us look at the variants for murder. I still question whether the evidence is there to make a valid argument that restorative justice costs less. It has been said that it costs £500 to £1,000 for each case, compared with a cost of £45,000 or £46,000 for one adult, and £187,000 for a young offender to stay in a young offenders institution. I am questioning that, having spoken to many practitioners in different cases who would not quote those figures.
Chair
What are your thoughts, Mr Stephenson and Mr Fishbourne? Would you agree with that analysis, or would you be with some of the members of our first panel on that?
Ray Fishbourne
I am not aware of any adult value-for-money studies, other than Shapland, involving victims. Shapland—particularly the restorative justice I have been involved in—is in addition to normal process. There are no savings, because it is not a diversion. That is one point. Shapland’s calculations are based on lower costs of reconviction. They do not look at the victims’ benefits. In the Justice Research Consortium, which was Shapland’s research, the lower costs were for the restorative justice group compared with the control group. What Shapland told us—some of the research was in my area—was that the costs levelled themselves out, basically. That was the case in Thames Valley. The £1 for £8 that has been mentioned was the result of a big differential in the London randomised control trial sites, for all sorts of reasons. The cost savings do not just relate to the criminal justice system. One has to look at the health benefits, particularly to victims, and, I assume—I do not think research has been done—the lesser demands that are made on GPs, counselling, psychotherapeutics and post-trauma stress services. All that stuff is a benefit as a result of restorative justice.
Gary Stephenson
There are some other studies you are probably not aware of. I do not think we included them in our written submission. There is the Matrix study, which was an economic study of young offenders, showing significant savings over a period. I can send you the reference for that.
Chair
That would be very helpful. Thank you, Mr Stephenson.
Gary Stephenson
It is very robust. Then there is a study by Assistant Chief Constable Garry Shewan, who leads on restorative justice for what was ACPO and is now the National Police Chiefs’ Council. He did a business case to ACPO showing significant benefits in terms of reduction of demand, particularly for repeat problems and repeat calls. Again, I would proffer that as robust evidence. There is also a study that we commissioned with an economist, who looked at a prolific offender who had been through a restorative justice conference. He committed four crimes a day throughout the course of his 20-year criminal career, but he stopped his offending post the restorative conference. The economist gave the estimated cost of the savings across the criminal justice sector alone as £500,000 over the next five years. Again, I can send you the link and share that study with you. The benefits are there and, I would argue, so is the evidence.
Chair
That is most helpful. We are grateful to you for that.
Mr Hanson
We are looking at a range of issues to do with performance measures of restorative justice. We have had some evidence from colleagues on the issue. There has been some concern that enforcement of performance measures has been detrimental to the delivery of justice. Have you any evidence to support those claims?
Gary Stephenson
I can give you an example from the pre-sentence trials that we ran in Crown courts up and down the country. Basically, the legislation says that a sentencer can adjourn or defer sentence for the purpose of a restorative conference. That conference takes place within six weeks. Its outcome is then reported back to the sentencer, so that they can make a smarter sentencing plan. That has been absolutely snookered by the fact that the Courts and Tribunals Service has introduced better case management, which practically outlaws any adjournments or deferments. In essence, they have to deal with the case more or less at the time of first appearance, so the opportunities for victims are now removed, as is an early motivation for an offender to change and engage with whatever the sentence is, as a consequence of the timeliness target set by better case management. That is one example. We have a legislative framework to do pre-sentence restorative justice. Unfortunately, the performance indicators that HMCTS has introduced prevent it from occurring. Another example is policing. Over the last five, six or seven years, the police have made significant strides towards moving away from sanction detection as the holy grail—in essence, an output, not an outcome. They are becoming more outcome-focused and are engaging better with victims on their needs. The difficulty is that there are still police forces out there that are slaves to sanction detection. That conspires against taking an alternative method or an alternative disposal. If we look at the mood music within the National Police Chiefs’ Council, out-of-court disposals now appear to be getting traction. Over the last couple of years, sanction detection has been significant in preventing restorative justice from occurring.
Chair
Do the other witnesses have any comments?
Dr Gavrielides
I will try to answer the question slightly differently. If we try to understand restorative justice within the current criminal justice system and fit it in, mainstream it and roll it out, whatever answer I give you will not be fitting. If we try to take restorative justice back to its roots, change our lenses and see it for what it is, we will be able to understand that restorative justice works at local level, through communities, and when it is initiated by the individuals. Whether we call them victims or offenders, using the criminal justice lens, is irrelevant to restorative justice. If you introduce performance measurement targets for criminal justice agencies—or, through those agencies, those who are funded to deliver restorative justice—and ask them to deliver, with £20,000, 20 cases that need to lead to an outcome, in my view, it will fail. I am not a practitioner but a researcher who has looked at restorative justice around the world. We may get one or two cases, but it will not be the restorative justice we know about and value, which is about the empowerment of individuals to reach some sort of consensus that makes them happy, so that we reach justice in a different way. If we try to mainstream it, introduce targets and, through those targets, fund individual projects, that is not restorative justice; it is another criminal justice option.
Mr Hanson
Could I turn to another area—the quality of the services provided by various restorative justice organisations? Some concern has been expressed to us in written evidence that the MOJ is not providing sufficient guidance. There is also some evidence that the quality of some of the organisations is variable. I have a simple, quick question for all three of you. Should standards be set by the MOJ for delivery of restorative justice? Is sufficient guidance given to the commissioners about what those standards should be, to ensure equality of outcome?
Ray Fishbourne
I have seen evidence of police and crime commissioners having insufficient information about how to commission services and what they should be looking for, in terms of good quality. That would tend to suggest that there is a degree of lack of guidance from the centre. The Restorative Justice Council is doing and has done a great deal of good work around quality of services. The restorative services quality mark is something that ought to figure in commissioning specifications. If services are not already in receipt of that qualification, they ought at least to be working towards receiving it. There are a number of loose usages of terminology. “Qualified” and “training” are not the same. Qualifications are not the same. We have different routes, via BTEC qualifications and NVQs. There is a case for something that might look like a professional standards committee to benchmark the content of qualifications, so that there is some consistency available to all commissioners to enable them to know, when they receive tenders, what is meant by, “Our staff are all qualified.” Some people will say, “They have all been on a three-day training course.” Other people will have done the equivalent of, perhaps, three years’ diploma-level social skills in restorative justice.
Mr Hanson
The nub of the question is, should the Ministry of Justice specify the standards for restorative justice practitioners in this new devolved world of police and crime commissioners and rehabilitation companies? Could I have a yes or no answer from Mr Stephenson and Dr Gavrielides, because of time?
Gary Stephenson
Yes, but not yet. It is too early for the sector.
Dr Gavrielides
Absolutely not. It would kill restorative justice.
Mr Hanson
That is helpful. [Laughter.]
Marie Rimmer
No ambiguity there. We have received written evidence raising particular concerns about the use of restorative justice in domestic abuse cases. Is restorative justice appropriate in those cases? What guidance is there for restorative justice providers in such cases?
Gary Stephenson
It is doable. But, as was discussed earlier, preparation, preparation, preparation and support are absolutely critical. Preparation and support post-conference are as critical as the work you do prior to it. You cannot just rule it out because it is such a sensitive issue. There is no doubt that the individuals conducting the conference should have specialist skills. They should understand the context and the environment in which they are operating and the issues around domestic abuse. We run a programme in a PCC area where we are working with young people in families who abuse their parents and siblings. It is domestic abuse; it is domestic violence. Some of the cases are quite horrendous. It is a significantly resource-intensive programme. It is not a one-off event, but a series of restorative conversations and meetings to engage and deal with the underlying issues around the abuse that is occurring in the home, as the majority of it is. It can be done, but it has to be done very carefully and sensitively.
Ray Fishbourne
Our practice has evolved over 15 years. We started as offender-initiated restorative justice, and we excluded sex offenders and domestic abuse cases. As we grew in experience, and as the focus shifted to victim-initiated restorative justice, we needed to rethink that. We start from the premise that we wish to respond to and respect victims’ wishes and needs. Together with Restorative Solutions and a forensic psychologist, we have now developed some advanced training for people working in these difficult areas. Although in Thames Valley we still exclude domestic abuse in the offender-initiated context, we look to respond to the wishes of victims of domestic abuse who present to us. We are working closely with domestic abuse agencies in Thames Valley to develop an appropriate and sensitive response to the wishes of those victims.
Dr Gavrielides
I appreciate the concern that restorative justice might not be appropriate for cases where the power structures and interests are there and where there is a continuum of relationship. They are going to go back to living together and you are asking them to meet to resolve their conflict, so I understand the concern, but I will be absolutely clear. There is no evidence worldwide that restorative justice is not appropriate for any sort of crime, including hate crime. Domestic violence should not be excluded from the list of crimes for which we should offer restorative justice. In fact, the evidence worldwide says that the more complex the case, the more chances you have for restorative justice to be successful. Thinking as a normal individual who has been victimised by somebody lifting a chocolate from your shop—shoplifting—and you are asking them to meet you, how much emotion or time do you want to invest in meeting that offender? If you are a victim of domestic violence or hate crime, how much emotion or time do you want to invest in restorative justice? The more complex a case is, the more chances you have for restorative justice to be successful. I promise to send Jonathan some research that we have published on domestic violence and complex cases, including a free best practice guide on how to conduct restorative justice in domestic violence cases. That was funded by the European Commission and involved best practice from around Europe. We have spoken to domestic violence victims, offenders and practitioners, put that guide together and translated it into all the European languages. It is out there for best practice. It goes back to your question about standards. It is not about standardising restorative justice. Restorative justice is not another criminal justice option. It is about the ethos, the principles and best practice. What is best practice? It is about putting cases on the record. We know about the court cases—they are on the record. Why don’t we have cases of restorative justice on the record? That would create the best practice guidance. It is not about telling people what to do and how to do it.
Chair
That is very helpful.
Marie Rimmer
It could go some way towards cutting generational domestic abuse. Very often the children who come through families where there is domestic abuse go on to become young offenders.
Chair
There seems to be agreement on that, too. Thank you for agreeing to share that further information, Dr Gavrielides. That is most helpful to us. If you could send it to our Committee Clerk, it would be much appreciated.
Victoria Prentis
My question is about raising awareness. The MOJ has had a go, with the restorative justice weeks during the last couple of years. Do you think they were effective? What more do you think the MOJ could do?
Gary Stephenson
They had an impact over the short period of time when they did them, as one-off events, and there was good national and local coverage, but a one-off event is not enough. There has to be a systemic, sustained campaign to make victims aware of their rights and of the opportunities that are there for them. The most effective campaign we are aware of was when we sent a group of practitioners out to a shopping centre on a Saturday afternoon with leaflets telling people about what restorative justice is. Post that exercise, we got 17 referrals directly from victims of crime, saying, “I want to meet my offender.” In terms of effectiveness, to be honest, just get straight to it—go straight to the victims, tell them what they are entitled to and explain to them what the benefits are.
Dr Gavrielides
Restorative justice week was introduced by the Canadian Ministry six or seven years ago. As an international restorative justice week, it is a fantastic opportunity for people around the world to share information and best practice, to talk to one another and to come together at events. It is a fantastic week and it should not be taken away. But that should not be it. Public awareness is one thing, but ads on buses will not work for restorative justice. It is not another L’Oréal product. If we are going to talk about public awareness, the money that the Ministry of Justice wants to invest should go to judges, the legal profession and the police—to those who should be offering restorative justice to individuals, so that they know first about restorative justice. Then we can expect the public to know about it.
Ray Fishbourne
Raising awareness is on two levels. The MOJ has good reach into other criminal justice agencies, but they do not have any deep reach into communities. In Thames Valley, we find that following restorative justice week we have a spike in the number of people ringing us wanting to become volunteers and work with us, but we do not see any spikes in the number of victims. From some of the specialist projects in Thames Valley I am involved in, I know that getting into communities requires boots on the ground. I am coming to the end of an 18-month project where we sent people into every GP surgery, into every student union in universities and colleges and into employment exchanges. Lo and behold, we have started to get referrals from those very same places. Those victim self-referrals are not from the usual suspects. We are opening up new audiences, and that is time-consuming and it needs boots on the ground.
Victoria Prentis
That is very helpful. There may be something that MPs can do to assist with that. We will think about that. Do you think that, broadly, the NOMS capacity-building programme has been a success? Brief answers, please.
Gary Stephenson
Yes, from our perspective. We delivered it with Thames Valley—with Ray. We had a programme to deliver and we delivered it, despite transforming rehabilitation, benchmarking of prisons, fair and sustainable and all the other blockages that the Ministry managed to put in our way. Not only did we develop a capability-cum-capacity, but we conducted 153 face-to-face restorative conferences in the course of the programme. From our perspective, it was a success. It takes time to see the real successes coming through.
Ray Fishbourne
I agree with what Gary said. With hindsight, we were over-optimistic about the number of conferences. The fact that only 6% of cases went to conference speaks for itself. Over 1,000 people trained, and there were 153 conferences. At one level, that tells you that it is time-consuming to build up awareness and get it to stick. Restorative Solutions and Gary were involved on the training side. Thames Valley Partnership was involved in providing implementation support to probation trusts and prisons. We found that, despite our best advice, a lot of prisons and probation trusts were still not geared up to be able to support—
Victoria Prentis
Would the money have been better spent on adapting the buildings?
Ray Fishbourne
No. I do not think that it is buildings—
Victoria Prentis
On making them suitable for restorative justice.
Ray Fishbourne
In the case of prisons, it is about making the whole regime and the institution more supportive, so it is about hearts and minds and processes. If that is not in place, it does not matter how many people you have trained—it is not going to happen. It requires leadership, accountability and communication through all management layers in institutions. It is incredibly difficult to bring about change in institutions.
Dr Gavrielides
It would be harsh to say that it failed. The figure of 6% is very concerning. If it were to be repeated, I would be very concerned, because the money could be invested in a better way. I would not repeat the same. If you are asking me whether or not it was a mistake, we cannot say that with hindsight. As Ray said, there is a lot of capacity building that needs to be done for the expectations to be met. Maybe that is what this did. The 6% figure for actual conferencing is very concerning and should concern anyone who was involved in the delivery of it, but maybe it was something that needed to be done to take us to the next level and prepare us for more numbers.
Victoria Prentis
I apologise in advance for putting you on the spot. If there was one thing that you could do to bring about some sort of culture shift in the MOJ, what would it be?
Gary Stephenson
I would take away the risk-averse nature of the organisation. It should take a risk now and then.
Ray Fishbourne
For me, there are actually three things.
Victoria Prentis
That’s fine.
Ray Fishbourne
There is one thing, in the sense that it all revolves around a presumption in favour. There ought to be a presumption in favour that all offenders are suitable for restorative justice, if their victim wishes to pursue it, unless there are overriding safety grounds that it should not happen. That is the first presumption. There ought also to be a presumption in favour of all victims having access to restorative justice. In relation to courts, one of the purposes of sentencing in the 2003 Act is reparation. If you look at the archaic definition of “reparation”, it is about repair. All courts ought to focus on what harm has been done and how to repair it. Two questions could be introduced that courts and magistrates could ask all defendants: who was harmed by your actions, and what can you do to make things better? That is how you bring about cultural change to the whole system.
Dr Gavrielides
I have to be very careful how I answer this, having looked at the involvement of the Ministry. As a central Government Department, they know very well that it is not their role to get involved at local level and provide detailed guidance. It is about a general direction that needs to be given. I have put this on the record and I will say it again: with the action plan and working with specific organisations to give this standardisation push and to mainstream restorative justice, I have been watching restorative justice on a train that is about to crash. I have just got out of that train, because I do not want to be part of it. My concern is that, if we continue to try to control restorative justice at the local level, it will not be what restorative justice was meant to be. How do we achieve the cultural shift? Let us not talk about the Ministry of Justice in general terms. There are specific teams within the Ministry of Justice, which is the Government Department that is dealing with this at a policy level. If we are going to talk about change, we need to talk about understanding what restorative justice is about and where it came from. We must bring it back to its roots and empower the individual and the community-led practices that have been doing restorative justice, with or without the law, with or without the Ministry of Justice and with or without funding. They have been doing it for many years. If we allow them and empower them to continue to do that, the culture will change at governmental level, PCC level and all other levels.
Chair
In your written submission, you talk about “street restorative justice”. Is that part of going back to a grassroots, bottom-up approach?
Dr Gavrielides
Absolutely. Restorative justice happens every day. It happens in our families, our churches and our kitchens, and when we negotiate differences with our children. That is restorative justice. If we are going to talk about a version of restorative justice that diverts a criminal case from the justice process, which is something different, let us talk about that. If we are going to talk about that, are we talking about awareness raising or actual encounters? We have been using restorative justice in a very broad way and using the words “crime”, “victims” and “offenders” in a very unfair way, putting a lot of emphasis and resources on empowering certain labels, when actually restorative justice is about something else.
Chair
There are just two more topics we would like your help on.
Richard Arkless
I suspect I know what the answer is. For the record, are victims receiving their entitlements under the victims’ code at the moment?
Gary Stephenson
I would be very surprised if they are, uniformly. There are some areas of great practice, where it will be happening. There are other areas where it will not.
Dr Gavrielides
When you are from the research community, you have to be very careful how you answer a question, because there is not a journalistic answer that I can give you. Depending on the type of crime, the time and the situation, the answer will be different, but I can tell you this. We have just finished a project for the European Commission on the victims’ directive, which should have been implemented in November last year and it has not been. It includes things like, “What is a victim?” Are victims being protected under this new law in the way in which the directive expects us to protect them? Are we providing them with the entitlements that are not just in the directive but in any basic human rights legislation or convention, whether it is called the Human Rights Act or the European convention on human rights? No, we are not. For instance, we do not understand victims if they do not have EU citizenship. We do not understand victims if they do not have UK citizenship. Refugee and asylum-seeking women who have been abused are not protected by this legislation. There is a lot that needs to be done. Previously you asked about whether or not a Victims’ Act would help. I think it would, but if you put too much emphasis on it and say, “Now we have passed a law, everything should be great,” that will be a problem. It is also about enforcement, which you have talked about. If you pass a piece of legislation, what do you do to make sure that it is enforced? We passed the Race Relations Act, but we know from evidence that many years later local authorities were treating it as a tick-box exercise. Passing legislation should not just be about saying, “We have done our job,” and moving on.
Richard Arkless
On the subject of enforcement, clearly it is about strengthening the entitlements in a code in a victims’ law. Based on your evidence, I think you would all agree that that should be the case, but how do you envisage that any rights under a new victims’ law could be enforced? We had this discussion with the previous panel. I would be interested to hear your thoughts. Enforcement seems to be a potential problem.
Ray Fishbourne
In our experience in Thames Valley—we are probably ahead of the game in comparison with a lot of areas—entitlement is being frustrated at the moment by things like data-sharing processes, which you have already touched on. If a right is enshrined in law, there needs to an accompanying mandatory responsibility to share data. It is an incredibly complex area, with probably five or six different agencies, different data controllers and different data owners. It is a nightmare. Theo mentioned refugees and asylum seekers. In Thames Valley, their needs are being addressed through the victims’ code currently, but a lot of it is frustrated, in terms of being able to deliver on the entitlements.
Gary Stephenson
I would just make it mandatory referral to a restorative justice service. Problem over. Done. It happens automatically. Basically, a victim of crime is referred to a restorative justice service in the area. Then you begin to put demand into the system that is not there at the minute. Agencies and organisations will respond to that demand.
Dr Gavrielides
I would be very concerned about that. When it comes to victims’ rights, or any human rights, it should be about the individual. Provision, safeguarding and enforcement of those rights should be not just top down but bottom up. How do you empower the individual to request and demand that those rights be implemented? Is there a self-assessment guide and support for individuals who feel that they can claim and enforce those rights? Of course, a piece of legislation would put a top-down obligation on those who are providing the service—the police, the CPS and so on—but what are we doing to empower the individual themselves to request and demand those rights? I have this conversation over and over again with the Ministry of Justice. It should be a two-way street.
Chair
I get that. Ray, you have brought me very neatly to the last topic, because you talked about frustration with data sharing, which is a common theme that runs through pretty much all the evidence that we have had around that. Gary, you have referred to it as well. What is the answer? Is it practice, or do you need some sort of legislative change?
Ray Fishbourne
We have grappled with this for 15 years. In the early days, we relied on personalities to facilitate the flow of information. We used section 115 of the Crime and Disorder Act, which was a kind of catch-all, in the interests of preventing further crime. That is how we got our information. Currently, we have seen some potentially helpful guidance from the Association of Police and Crime Commissioners—I am not sure I have got the title right—but it runs to 55 pages. Locally, we are trying to work our way through that with, probably, five different statutory agencies, all with their lawyers. If anybody is looking for a reason not to share information, I am sure it is there somewhere in the 55 pages. It just is not working. I do not want to sound too pessimistic; maybe it will be delivered this time, but, currently, NPS cannot share information readily with CRCs, and CPS does not share information readily with NPS. It is incredibly difficult. There just needs to be some legislation that says, “The sharing of data for these purposes is mandatory. Get on with it.”
Chair
You will never get them to come together voluntarily—you have to impose something.
Ray Fishbourne
No.
Gary Stephenson
It is not going to happen. There are too many data protection officers.
Chair
Everybody seems to agree on that.
Ray Fishbourne
Even if you get a local agreement, a lot of the parties to restorative justice live in other areas. You immediately hit the rocks once you start contacting other areas where they may or not have any restorative justice, and they certainly do not know who you are.
Chair
You are saying that a role for MOJ is to promote that legislation and to bring it to us here in Parliament.
Ray Fishbourne
Absolutely.
Chair
On that note of unanimity, gentlemen, thank you very much for your attendance and your evidence, which has been most helpful. The session is concluded. Oral evidence: Restorative justice, HC 594 21