Oral evidence: Restorative justice, HC 594Tuesday 24 May 2016
Oral evidence, 24 May 2016.
Witnesses
Rt Hon Mike Penning MP, Minister for Policing, Fire and Criminal Justice and Victims; and Michael Spurr, Chief Executive, National Offender Management Service, gave evidence.
Chair
Welcome, Minister. It is the first time that we have had the pleasure of your company at the Justice Select Committee. We are delighted to see you. Welcome back, Mr Spurr. You are a more frequent visitor to the Committee. It is very good to see you, too. This is the last piece of evidence that we are taking in our inquiry into restorative justice. We have had quite a lot of written evidence and we have heard oral evidence from a lot of witnesses. What I want to start with, from the Ministry’s point of view, is this. We have heard some evidence that, basically, it is difficult to say how effective restorative justice is. The evidence base can be varied. Very often the Ministry refers to the study that was done by Joanna Shapland, which goes back to 2012. Some people say, “Have things moved on from that?” Other people would say that a lot of the evidence we have is purely around the victim conferencing approach to restorative justice and that it is not so detailed on the other aspects. What is your assessment of the evidence on that?
Mike Penning
The first thing is that we must make sure that we look at exactly what restorative justice is in the context of what the Committee is looking at particularly, because there is some confusion among victims and individuals out there. The type of restorative justice involving victims, with either face-to-face or video conferencing, is one side. Restorative justice within out-of-court disposals and to do with the piloting of deferred prosecutions is somewhat separate. As you can imagine, money is tight, so we would not be putting in the sort of money we are putting in if we did not think that it would work. It is not a golden bullet. It is not the only way. We still think that the 14% figure shown in the report you alluded to a moment ago is about right; it may be slightly better. The more accurate one from my point of view, as the funding Minister, is probably what I call the BCR—for every pound that I put in, what tangible benefit does the Department feel there is? For every pound, it is £8. When I was at Transport—to use that analogy—that kind of road programme would go ahead every single time. I was putting projects through at 1:3 and 1:4. That is where we are. Do we need to work to understand better how that funding works in particular areas? You will probably come to that conclusion as a Committee anyhow, especially as we are using PCCs more in the trial. You have seen the extra money that we have put into it. That is going to develop. The agreement between the Home Secretary and the Justice Secretary on more powers for PCCs in that particular area is very important.
Chair
I understand. Mr Davies, do you want to come in on this point?
Philip Davies
Yes. I was rather surprised that the Minister seemed to be such a world-leading authority on the benefits of restorative justice. When I asked some parliamentary questions a couple of weeks ago about restorative justice, the Minister and the Government appeared to know very little about it, but it seems that there has been a radical change in the last two weeks. I asked how many people who had committed certain types of offences—indictable offences and violence against the person—had been on restorative justice programmes. The answer was, “We don’t know. The information could be obtained only at disproportionate cost.” I asked how many people had been on such programmes on more than one occasion. The answer was, “We don’t know. The information could be obtained only at disproportionate cost.” I asked what assessment had been made of the effect of participation in restorative justice on reoffending rates. Apparently there is a great financial benefit to this, but I was told, “No assessment has been made of the reoffending rates of people participating in restorative justice.” I asked whether they would go on the police national computer. The answer was, “We don’t know. There are no plans to do any of that.” I asked how many restorative justice resolutions were given to people on suspended sentences: “No idea—can only be obtained at disproportionate cost.” Literally, the Minister has not been able to answer every question I have asked. How do we know all of a sudden that for every £1 invested there is an £8 benefit, when two weeks ago no assessment had been made of any of these things?
Mike Penning
Probably the reason was partly that I was coming before this Committee and I wanted to make sure that I had as much detail as possible. It is very difficult when you are using myriad different suppliers and have changed—very much so—how you develop this since the initial plans were done in 2013. You ask an awful lot of questions, and I answer them as best I can. Sometimes your asking a question and my coming before the Committee generates more questions for us, but that costs money. At the end of the day, I have to make sure where that money goes. The best measure is the victims. Surely we are all here to make sure—
Philip Davies
Hold on a moment. Before we get on to—
Mike Penning
Let me finish my point and then the Committee can ask me more questions. If victims are coming forward and saying that they feel that this is beneficial to them, surely that is crucial.
Philip Davies
That is a different question. You said categorically that as far as you are concerned, for every £1 spent on restorative justice there is an £8 benefit. Two weeks ago, in an answer to a question, you said that no assessment had been made of those sorts of things.
Mike Penning
I asked for an assessment to be made.
Philip Davies
How can we go from no assessment being made two weeks ago to the absolutely definitive, “We know that there is an £8 benefit for every £1 spent”? Either the first answer was wrong or this answer is wrong. Both of them cannot possibly be right.
Mike Penning
Of course they can. If you have data in front of you at the time when a PQ is answered, that is the information you give. I may then ask for more information. Nothing is 100% definitive. I do not care who they are—no one who comes before any Committee says, “That is 100% where we are,” but I will write to the Committee and give you the evidence as to how the 1:8 figure was arrived at. We can do that.
Philip Davies
So that has all been compiled within the last two weeks. The information that you stated definitively has all been compiled, put together, analysed and robustly tested in two weeks.
Mike Penning
As I have just said, I will write to the Committee with an analysis of how it was produced.
Chair
Your view is that the Shapland £1 to £8 figure remains very robust.
Mike Penning
Yes.
Chair
That has been out there for some time.
Mike Penning
Yes.
Chair
I understand.
Mike Penning
There is no evidence to the contrary. That is the point I am making.
Chair
Further detail on that calculation will be welcome. Earlier we talked about the distinction between conferencing and indirect restorative justice. Do you have any view on the comparative benefits of those?
Mike Penning
Only from the victim’s point of view. This only works if it works for the victim. In some cases, particularly certain types of offences, the victim will not and, quite understandably, should not be pushed in any shape or form to go down the road of restorative justice. I know that you have seen some evidence from both sides—the victim and the perpetrator—saying what the benefit was. For some, video conferencing or that type of facility works, but that does not take away the absolute need for the Prison Service, for instance, to have a face-to-face facility available. As the Home Secretary said the other day, in no shape or form should victims be forced, pushed or cajoled in any other way into restorative justice. That is absolutely crucial.
Chair
Understood. One quite sensitive area we heard evidence around was in serious and complex cases, particularly where there is a sexual element or an element of domestic violence. You made the point that nobody should be forced into this. Do we know enough about the potential effectiveness or otherwise of its use in those sorts of cases?
Mike Penning
That will develop as we as a society and as a criminal justice system better understand and work with the victims of domestic abuse and other sexual types of violence. Let’s not beat about the bush. For all too many years, it would have been pushed to one side. It would not even have got through the criminal justice system in any shape or form. There is a lot more confidence now, particularly with domestic abuse cases, that people can come forward, but we need to protect them as well. As I said, it is not a silver bullet. There is no point in someone having the confidence to come through to do restorative justice if they are then back in the really terrible and difficult environment that put them there in the first place.
Chair
I understand. As a Minister, you sit in both the Ministry of Justice and the Home Office. I notice that the Home Secretary expressed what appeared to be opposition to or serious reservations about the use of restorative justice in domestic abuse cases. She referred to disliking sticking a victim and an offender in a room. Is there any disjunction between MOJ and the Home Office on this?
Mike Penning
The Home Secretary was absolutely right to make the comments that she made. The police are on a journey as well, particularly around domestic abuse. Some would argue that they are not far enough down that journey. This was a Home Secretary with a size 10 boot saying that the mindset that was there before has to change. I reiterate that it is absolutely wrong for anybody, whether it be the police or any other part of the criminal justice system, to push and cajole someone into restorative justice. It has to be right for them as part of a package. As the Home Secretary said, it should not mean putting you in a room with the perpetrator. That must have been horrendous.
Chair
Can we move on to the Ministry’s action plan?
Alex Chalk
That is slightly what we have just been discussing. It has been put to us that some police forces are wrongly using level 1 restorative justice in cases of domestic abuse, particularly in circumstances where they might go to the scene of an alleged domestic, have a chat with everyone and say, “Is everything all right? Don’t do this. Don’t abuse people. Don’t abuse your wife or partner.” They then call that restorative justice. Are you aware of that concern?
Mike Penning
I am aware of that concern, which is partly why the Home Secretary made the comments that she made last week. It is fundamentally wrong if officers are doing that. I say that as the Police Minister, as well as the Criminal Justice Minister. It is happening less and less, but there is still concern about it. The College of Policing has to get its guidance and training right the way through to the guys and girls on the frontline, as they deal with these issues.
Alex Chalk
Is it not a fact that the police need to be assisted more by Government? Shouldn’t Government be saying that, as we step back and look at this, restorative justice will probably not be suitable for all types of offences, such as domestic abuse, and it is wrong to say that it should be available for all kinds of offending?
Mike Penning
We are saying that. The speech from the Home Secretary this week was very definitive on that. The Justice Department completely agrees with what she was saying. There is a difficulty. The assumption will be, quite rightly, that wherever domestic abuse is reported, prosecution should take place. Restorative justice should run alongside prosecution. This should be an exception. In the particular context we are talking about at the moment, restorative justice is not designed around the idea that it is either prosecution or restorative justice. That is not what restorative justice is supposed to be about—it is supposed to run alongside prosecution. The judges and the courts very much see it that way. Of course, the big problem—it is still a problem—is for individuals to have the confidence to feel that they are safe to go ahead with the prosecution. That is one of the other reasons why we are looking very carefully at police-led prosecutions as well, particularly with the video evidence that we are getting on camera, which has transformed some of these prosecutions.
Chair
That is very helpful.
Mr Hanson
I want to look at funding, Minister. The Ministry of Justice action plan states that £23 million was allocated to police and crime commissioners over three years, from 2013 to this year, to build capacity for restorative justice services. How much of that money has been spent to date?
Mike Penning
I cannot tell the Committee directly how much has been spent, because it is being spent locally, throughout the PCCs. It has been allocated, along with just over £90 million around victim support. More and more of this will come through the PCCs, so the accountability argument as to how that money is being spent will be required.
Mr Hanson
As it is not ring-fenced, can you say categorically to the Committee that the £23 million that has been allocated has been spent on restorative justice services?
Mike Penning
No, I cannot. As you quite rightly said, it is not ring-fenced or hypothecated. We believe in localism. You will see more and more of those powers coming out through the localism agenda.
Mr Hanson
Localism is all very well, but if you are allocating £23 million to build capacity for restorative justice services, shouldn’t you have an idea of whether it has been spent on that?
Mike Penning
We will know how it has been spent, but what we are not going to do is say to every PCC in the country, “You must spend every single penny on this.” There could be joint projects going on. This is not a silver bullet—it has to be part of a package. Sometimes those packages will be together.
Mr Hanson
Linked to Mr Davies’s question, could either you or Mr Spurr provide the Committee with a list of projects on which that £23 million has been spent to date, so that we know exactly whether the aspiration meets the reality? Is that a commitment?
Mike Penning
Yes, of course.
Chair
Mr Spurr, can you help us on that today?
Michael Spurr
I cannot, on the basis that I am not responsible for the expenditure of police and crime commissioners. As the Minister said, these are locally commissioned services, some of which my service may provide for police and crime commissioners.
Mr Hanson
Minister, can you give me the logic of providing £23 million of funding from UK taxpayers to local police and crime commissioners to encourage restorative justice when you do not know whether they are spending it on restorative justice?
Mike Penning
First, it is very early; we will know as it comes in. As my colleague just said, some of this will run alongside other projects. If so, it will be money that is spent with other projects locally. I passionately believe that police and crime commissioners should have the responsibility for this particular area; but as it is taxpayers’ money and it is coming out of my departmental brief, we will look at it very closely.
Mr Hanson
What is the formula for police and crime commissioners getting a portion of the £23 million?
Mike Penning
In what respect?
Mr Hanson
There is £23 million—
Mike Penning
There is a formula—
Mr Hanson
The Ministry of Justice action plan, which you are responsible for, says that £23 million has been allocated to police and crime commissioners over three years to build restorative justice services. At the moment, it appears that you do not know what they are spending it on, and you have no record of what they spent it on, but you have some aspirations for them. My question is: on what basis is that money allocated? For example, do all police and crime commissioners get a portion of it? On what basis is it allocated?
Mike Penning
There is an allocation to all police and crime commissioners. Last year the police and crime commissioners got £67 million of a £95 million budget. In your part of the world—north Wales—they got £820,000. I can submit that to the Committee.
Mr Hanson
My bottom line question is simply this. If you are trying to encourage the action plan for restorative justice services and you are allocating money for that, and if, as it appears at the moment, you do not know whether that money is being spent on restorative justice services, isn’t the answer simply to ring-fence a portion of the money that goes to a local police and crime commissioner so that you know that it is going to be spent on that area?
Mike Penning
I think it is too early. As a former Minister, you will appreciate—
Mr Hanson
That was six years ago.
Mike Penning
The principle is exactly the same. We will know. We have said that this is what it is for. Of course, it can be packaged together. It is very early to know exactly to the pound how the money is being spent, but we will know that. Most importantly, we will know how it is working. If you believe in restorative justice and in localism, this is the way to do it, not to ring-fence.
Mr Hanson
I am just trying to find out where we are. Vera Baird, on behalf of the police and crime commissioners, came to this Committee and said that it was a postcode lottery. If it is a postcode lottery, it means that the funding you are providing is not being used by everybody.
Mike Penning
Every police and crime commissioner is getting an allocation.
Mr Hanson
But are they using it?
Mike Penning
As I said to you, it is very early days. You can keep asking the same questions. I do not have the analysis yet, but I will. I will share that with the Committee.
Mr Hanson
What about the Youth Justice Board? How much is it getting to support this?
Mike Penning
I do not have those figures. They are not part of the figures that I gave.
Mr Hanson
The Ministry of Justice action plan says that £2.5 million was provided to the Youth Justice Board. Do you know what they are spending it on?
Mike Penning
I do not have those figures. I will know, but I do not have them in front of me. I will write to the Committee on that.
Mr Hanson
Let us put all that to one side for the moment. We have a three-year plan that ends at the end of this year, where you have allocated £23 million, and a three-year plan where you have allocated £2.5 million to the Youth Justice Board. As of today, which is a quarter of the way through the third year, you do not yet know the outcomes of those two funding streams and what they have been used for.
Mike Penning
That is not fair. You are putting words into my mouth that I have not said.
Mr Hanson
What happens in April or May next year? That three-year funding stream—both the £2.5 million for the YJB and the £23 million for the police and crime commissioners—expires in April next year. When will you evaluate that money? Will you continue it post-April next year?
Mike Penning
First, post-April next year we will have to do a Treasury negotiation. That will have to be evidence-based, because the Treasury will not give us the money if we do not have the analysis to do that. Initially, we feel—this seems to be supported by the experts as well—that although restorative justice is not a panacea or a golden bullet, it actually works, particularly for victims. That analysis will have to come forward and we will have to look it at seriously, but let’s not beat about the bush: we are going to push more and more responsibilities on to PCCs. Vera Baird, in particular, has been very keen for us to do that.
Mr Hanson
On that point, wearing your Home Office hat, what guidance are you giving police and crime commissioners with regard to the commissioning of restorative justice?
Mike Penning
That funding comes from the Justice side, not from police and crime. The guidance that is out there is exactly what I have said to the Committee today. They have been given money for restorative justice, but I am not saying definitively, “You can only spend every last penny on that,” if they are doing stuff alongside it, potentially with Michael’s team. There are myriad different ways this can be delivered out there. It is wrong to assume that there is only one way of doing this, which is to ring-fence it and say, “Right, you must spend all of that within the year. That’s the only way you can spend it.” We know that that money is spent wrongly at times.
Mr Hanson
You are paraphrasing me, Minister. What I am trying to get to is what is the outcome of all this expenditure and activity?
Mike Penning
The outcome has to be that we have less reoffending and that victims feel part of the criminal justice system. For too many years, they have not done so.
Mr Hanson
Do you think that any funding of this issue should be linked to some form of quality control at local level? For example, should we have a restorative services quality mark, so that there is badging of whoever receives this funding over the three years?
Mike Penning
It is very important that, when PCCs are commissioning, the people they commission from are signed up to the toolkit, for instance, and that there is a level standard that is required. That is something we are encouraging and pushing forward on.
Mr Hanson
You will report back to us on your understanding of the expenditure by police and crime commissioners of the £23 million and you will report back to us on the YJB’s £2.5 million. We will then be able to look at whether or not that has made any impact, linked to Mr Davies’s questions earlier.
Mike Penning
Yes. What I cannot do is give you a timescale. I just cannot say to you that it will be here by next week, or whenever, simply because that analysis has to be done. As you can imagine, I do not want to waste huge amounts of money that could be spent.
Mr Hanson
Linked to that is the security of next year’s funding of these issues. If schemes are developing, rightly or wrongly, they are either good or bad—they are effective or not effective. In April next year, a portion of money needs to be allocated. In Government terms, that is not very far away, so I would ask that they be brought back.
Alex Chalk
When would that happen anyway? Presumably, as Mr Hanson has indicated, there would have to be some sort of audit.
Mike Penning
Yes, but it would not necessarily be in time for the conclusions of your report.
Alex Chalk
Sure. When, in the normal course of events, would you expect that review to take place?
Mike Penning
We will meet the Treasury and look at what the expenditure will be in the autumn. Of course, the victims funding was provided directly from the Treasury to Justice. For the first time, we had funding specifically around victims.
Mr Hanson
That is not ring-fenced either.
Mike Penning
I didn’t say it was. I just said that there was specific money.
Mr Hanson
Even on that, if it is not ring-fenced, how do we know that it is going to the area you have allocated it to?
Mike Penning
At the end of the day, if you are asking someone to do a job locally, surely you should let them get on with doing that. A top-down approach is not necessarily the right way forward. We learned from those mistakes previously.
Mr Hanson
It is not necessarily a top-down approach. It can be a top-down approach that says, “There is x amount of money for this. You can spend it how you want to locally, as long as it is spent on that area.”
Mike Penning
I find this line of questioning really interesting. We have put more money into this area than any previous Government, which makes it a bit of a pry to say, “You nasty, horrible people—you are going to stop the money overnight.” There will be a negotiation. No Government can tell you what the funding will be for the following year, outside that spending round, but we have committed to funding victim support, which is a major area. I will be amazed if that is not part of the spending plans going forward.
Chair
You are saying that there is a political commitment to spending on that.
Mike Penning
There is a political commitment to victims, which is the most important thing.
Chair
Mr Chalk’s point, which I think you have accepted, is that there will be a pulling together of the evidence, as part of the spending round.
Mike Penning
In a nutshell.
Chair
No doubt we will want to see some of that.
Alex Chalk
Is this Committee therefore going to ask for something in advance? Are we waiting until the autumn? I am not clear about how it has been left.
Mike Penning
I will supply to the Committee whatever I can, but I cannot supply something that has not yet been evaluated. Whatever happens, I will write to the Committee and give an answer on that rationale. I think we just have a different opinion to do with ring-fencing.
Chair
That is a philosophical and political view that is not for us. We can deal with the report on that.
Victoria Prentis
I move on to raising awareness of restorative justice. We know that awareness is quite low in the population as a whole. Does that matter? After all, the people for whom it in fact matters are victims. Should we concentrate our efforts and our money on ensuring that victims are educated and asked whether they want to take part in restorative justice, rather than on doing general awareness raising?
Mike Penning
I completely agree with you. Putting victims at the front of the criminal justice system is absolutely vital. They should know that they are not compelled but that they can be part of it, perhaps through TrackMyCrime, which is provided by some forces. It is more important for them to be aware of what is available to them than for the general public to know about restorative justice. It is a complicated area, and it covers myriad different aspects, but victims need to be more aware of it. You have seen from the survey of victims how supportive they are of restorative justice.
Victoria Prentis
What about criminal justice practitioners and lawyers, who are themselves fairly unaware of what restorative justice can do?
Mike Penning
That is the work we need to do.
Victoria Prentis
How are we going to do that?
Mike Penning
Through their representative bodies and, particularly, through the judges, who are responsible as we go through the criminal justice system. This is more Michael’s area.
Victoria Prentis
Judges have very little ability to talk to victims. It is how we get the message out to very vulnerable people that worries me.
Mike Penning
In different parts of the country it is working in different ways. As I said at the start, there is much more work that we need to do to make sure that it is part of the system, not just an add-on. You are absolutely right, but the judges are vital. It is their court. The way they treat victims in their court is very much down to judges. It has been a bit of a transformation for some judges to see it that way. The physical court structures are important. As we heard, restorative justice in this context should not be designed in any shape or form as a replacement for prosecution—far from it. It must rank alongside it.
Chair
Mr Chalk wants to come in. I will then bring in Mr Spurr.
Alex Chalk
This is part-question, part-suggestion. One of the really fantastic steps forward in terms of protecting victims and standing up for victims is victim impact statements at court, read in front of the judge or submitted to the judge, which can have an enormous impact. Might there be some merit in ensuring that, on the forms for those statements, there is a box that says, “I have had explained to me by the officer in the case the possibilities of restorative justice”? We do not necessarily need to spend huge amounts of public money. It is simply about police officers knowing that, when they take victim impact statements, they need to tick the box to remind them to explain to the victim that this is a possibility they ought to consider.
Mike Penning
In a perfect world, I am sure we would not need a tick-box, but we cannot guarantee that everybody has had that explained to them. If we get to a tick-box mentality, let us hope that the question has been asked before they tick the box. I understand exactly where you are coming from, but I want to put the impetus into that part—informing the victim of what is available.
Alex Chalk
It has to be police-led, I would respectfully suggest.
Mike Penning
I agree.
Chair
Baroness Newlove made it very clear that, from her perspective as Victims’ Commissioner, the responsibility is on the police. If the police do not always come up to scratch, maybe we need a process to remind them to come up to scratch.
Mike Penning
Yes. Baroness Newlove would also emphasise the fact—certainly she has done so in the meetings that she has had with me—that at that moment the victim may not be ready to tick the box. If they have ticked the box, later they may not be ready, or if they have not ticked it, later they may be. It is for them to decide when they want to become part of the process, rather than for the police officer, the courts or their legal advisers. It is about putting them at the forefront and having no timetable. It is very important that we do not just fix it and say, “You have to make a decision now.” If we are not careful, that may be what is implied with the tick-box side of it. I understand the principle, but we need to make it as flexible as possible.
Chair
Mr Spurr, what is NOMS’s perspective?
Michael Spurr
I want to add one thing to what the Minister said. I agree absolutely that, in the first instance, it is the responsibility of the police to ensure that they engage with victims through the process. That is clearly set out in the victims’ code, which encourages that. There is a further opportunity. If an offender is convicted, it is the responsibility of the victim liaison officers in the National Probation Service to make contact with victims and to ensure that they understand what their rights are. That provides an additional opportunity, when victims have gone through the court process, to reinforce that restorative justice is an option for them.
Mike Penning
Can I reinforce that point? Quite soon we will produce a Green Paper on the victims’ law. One of the difficulties is defining a victim. If something happened here, now and I was stabbed, would my wife or daughters be the victims? I would be the victim, but I would be dead. Do you see what I mean? There is a really difficult scenario. The Canadians have defined it in law now, and we are very close to trying to define it in the Green Paper. It is really difficult, in restorative justice terms, to make sure that the right people are offered restorative justice. Sometimes it is very difficult to decide who the right people are.
Victoria Prentis
That is an important point. You can look at it from the point of view of probation, but probation is naturally offender focused. We would suggest that restorative justice is really victim focused, so that is not a great time to come in and see the victim again. We are keen to ensure that awareness of restorative justice is raised with victims all the way through the process, but perhaps not from the offender’s point of view and in order to benefit the offender.
Mike Penning
It needs to be their choice. That is the biggest thing.
Victoria Prentis
But they need to be at the centre of what we are worrying about. With due respect, Mr Spurr, it should not be from the offender’s point of view.
Michael Spurr
To be fair, the victim liaison part of the National Probation Service is entirely victim focused. Victim liaison officers do not work with offenders; their role is specifically to liaise with victims. They are in the National Probation Service because it gives them access to practitioners who are working with offenders across the system, but it is really important that they are discrete roles. They work solely with victims.
Mike Penning
The other point is that it gives them access to knowledge and information that would not be available to them otherwise. That is one of the more difficult areas to get round. There are lots of excuses as to why we cannot give information, but none of them is really factual.
Marie Rimmer
Can we get back to restorative justice and what it is really about? We are talking a great deal about victims. It is quite clear that the victim must be the centre and focus of this, yet the Committee has received several pieces of evidence, in writing and orally, asserting that victims are simply not receiving their entitlements. Lucy Jaffé said that police are not passing on victims’ details, as they are required to do under the code. Jon Collins said that the feedback from Restorative Justice Council members indicates that the entitlements are not being fully received. The report of the Victims’ Commissioner also suggests that victims are not receiving those entitlements. In written evidence, the Ministry of Justice has argued that it is too soon to tell how the entitlements under the victims’ code are working. This morning we have listened to so much talk about the victim, but what exactly is the Ministry of Justice doing to ensure that the victims’ code is complied with?
Mike Penning
That will probably come under the victims’ law, to put it in statute and to make sure that it actually happens. The evidence is that over 80% of the victims who have been involved in restorative justice feel positively about it. However, for others, the system is not working—I meet the baroness on a regular basis—for one reason or another, as you alluded to in your question. It was in both major parties’ manifestos that we would go for a victims’ law, to put it there and to say, “There is no excuse. You must do what it says on the tin, put the victims first and give them the information that is required.”
Marie Rimmer
Do you accept that victims’ entitlements are not being met?
Mike Penning
In some areas, of course I do. If you have 80%-odd saying that they are happy, there are less than 20% saying that they are not.
Marie Rimmer
So it is not too soon to tell. You accept that it has failed, and that is why we are going for law.
Mike Penning
It is part of the reason why we are going for law, yes. At the same time, particularly with certain offences, this is very new. I fully accept what the baroness has said. We are working together very closely; we have a victims’ panel that talks these sorts of things through as much as possible. But we must make sure that the rights of the victim are adhered to, as you touched on. If that means putting them on the statute book, we will put them on the statute book.
Marie Rimmer
Will the Bill contain a right to access restorative justice?
Mike Penning
The Bill is in Green Paper form. I cannot see any reason why we would deviate from the code. In other words, yes.
Marie Rimmer
So it will.
Mike Penning
There will be a Green Paper and then a White Paper. I am the Victims Minister—
Marie Rimmer
How is it going to be enforced?
Mike Penning
Because it will be in statute.
Marie Rimmer
With the money that is going to PCCs, they will have to comply with that law.
Mike Penning
Yes.
Marie Rimmer
How are you going to enforce it?
Mike Penning
If you have a law, it has to be enforced. There is no point in having laws that are not enforced.
Marie Rimmer
How is it going to be policed?
Mike Penning
You do not police it. You will have bodies that will be legally responsible under statute for fulfilling the commitment that they have. If PCCs or the police are not doing that, it will become self-evident and that will have to be resolved. At the moment, you have 80%-odd who are happy and just under 20% who are not. We need to make the remaining 20% happy with the process.
Marie Rimmer
It has been said that it is “untenable”, because there isn’t the capacity in the system to support such a high level of demand. You said that not every victim accepts restorative justice as it is, even though it is not being monitored. How will you enforce it so that it is offered properly, fully understood and explained and granted?
Mike Penning
There is more money than ever going into the system now. In my jurisdiction, we have 43 police and crime commissioners who are getting funding and will be responsible. If we put it in statute, it will not just be the police and crime commissioners but police forces, NOMS and others who are responsible for making sure that the law is adhered to. It is not a case of policing it with police. It is about saying, “This is on the statute book. This is a legal responsibility for you to produce.” We have that across the board in numerous areas.
Marie Rimmer
Are we going to ensure that the finance is spent on restorative justice? Are we going to start ring-fencing?
Mike Penning
Now we are going back to the ring-fencing situation. Let’s see how the money is spent. If we find that it is not being spent correctly, we will make sure that it is. If we are going back to the business of ring-fencing or hypothecation, I am afraid you will probably get the same answer that I gave before.
Marie Rimmer
So we are going to have a victims’ law.
Mike Penning
We are going to have a victims’ law.
Marie Rimmer
You are sure of that.
Mike Penning
Yes.
Marie Rimmer
And restorative justice will be in that, and it is going to be enforced.
Mike Penning
I will publish the Green Paper and give it to the Committee as soon as I possibly can—certainly before the summer recess.
Marie Rimmer
There are three questions. We are going to have a victims’ law. It is going to have the right to access restorative justice, and the law is going to be enforced.
Mike Penning
Correct—otherwise there is no point in having a law.
Marie Rimmer
Exactly.
Chair
The Green Paper was originally set to be published by early May. It has slipped rather, hasn’t it?
Mike Penning
Yes.
Chair
What is wrong? Why has it slipped?
Mike Penning
I apologise, Mr Chairman. I said publicly that it would be by the end of May to force my civil servants to publish it by then, to be honest, but it is not ready. I will publish it as soon as I possibly can.
Chair
I cannot believe that you did not succeed in forcing them, Minister.
Mike Penning
I tried very hard.
Chair
You will understand the frustration that victims will feel about that.
Mike Penning
Yes. I wanted to go to a Green Paper, rather than straight to a White Paper. I thought that the important thing was for victims, in particular, to feel that they could have an input. If you go to a White Paper straightaway, that is ruled out. I did not want to go out to consultation again. Frankly, these people have been consulted to death. We need to get on with the legislation.
Chair
I understand. Do you accept that maybe one part of the Green Paper should involve what the enforcement mechanism might be? As with any law—you and I both have experience of this—if you have a right and for some reason that right is not delivered, there has to be some means of enforcement and redress.
Mike Penning
My simple view on legislation is that there is no point in having it unless you can enforce it.
Chair
That is exactly right. So we can expect to see something around that. That is helpful.
Dr Huq
I have a couple of questions on the NOMS capacity building programme. Apparently 1,000 people were trained, but there were only 137 victim-offender face-to-face conferences, which is fewer than might have been expected—6% of cases, in fact. Would you call that a success?
Michael Spurr
The evaluation by Professor Shapland said that it was done at a very difficult time, but she concluded that much was achieved during that period. That is true. In the end, there were 153 victim conferences, involving about 300 victims and offenders. There were something like 250 additional restorative interventions that did not lead to full victim conferences. You are right; about 1,000 people were trained and made aware. The awareness is very important in itself. If it becomes the default position that people actually bother about restorative justice, understanding it and having champions for it across the system—Mr Molloy talked about that earlier—are really important. The capacity building programme was funded jointly by ourselves, through a grant of £500,000, and the Monument Trust. It has achieved some things. Most importantly, it made restorative justice something that was very real across the system, which should not be underestimated. There is now a whole load of products available on which people can draw to set up conferences and engage with victims properly. We have worked with partners such as Restorative Solutions and Thames Valley Partnership to produce those. All of that is worth while. Not all the money was spent. We have agreed with the Monument Trust that the additional money is to be used to pilot restorative approaches to conflict management in prisons at Onley and Buckley Hall. There was a good deal done, through a very difficult period when, as Professor Shapland’s research rightly says, the whole system was going through major change. Transforming rehabilitation was being implemented in the community, and prisons were going through major reductions to their budgets; so it was a difficult time, but a lot was achieved.
Dr Huq
So the underspend—175K—is going to be focused on RJ—
Michael Spurr
It is being spent now, in agreement with the Monument Trust, to build a restorative approach to conflict resolution, effectively. Can we use restorative approaches in prisons to resolve some of the issues that are happening there in terms of violence and so on? We are piloting that at two establishments, Onley and Buckley Hall. It is due to report in 2017.
Dr Huq
The guidance document “Better Outcomes through Victim-Offender Conferencing” suggests that there should be a more targeted approach and that RJ should only be delivered where it has the greatest impact on victim satisfaction and reoffending. Doesn’t that contradict the stated aim of equal access to restorative justice?
Michael Spurr
The original 2012 document on outcomes focused primarily on reoffending outcomes. It set out which people you would target if you wanted the biggest impact on reoffending, and they were primarily offenders who were involved in violent or acquisitive crime. We have adapted that. A lot of work on the capacity building programme has been in response, rightly, to the Victims’ Commissioner’s points and the victims’ code, which talks about victim-initiated restorative justice, which is absolutely right. We are now very clear that it is about victim satisfaction, from a victim-initiated point, even where we would not necessarily have targeted resources because we thought it was the best way of tackling reoffending. An outcome where a victim feels that the issue has been fully dealt with and there is some closure in the distress they have had is obviously an appropriate outcome. We are trying to ensure that that is facilitated within the NOMS estate, whether it be in prisons or in the community.
Dr Huq
You mentioned that the underspend is going to be for in-prison work. Given the limited resources in prisons, to avoid duplication of work, wouldn’t it be preferable to focus on making prisons a supportive environment for restorative justice, without actually doing the commissioning or providing the services—separating the two?
Michael Spurr
I agree with you. Primarily, much as in the National Probation Service, the direction is that we will facilitate restorative approaches. That is the right primary role for prisons and for the National Probation Service, particularly where the focus is around victim-initiated restorative justice. In the way we are moving, if it appears that restorative justice approaches will work for the offender and make complete sense as part of their sentence plan, and there is something that will work for the victim—the “and” is very important, of course; it must be both sides—they should be part of the sentence plan. It would be wrong to prevent that. Equally, where there has been an offer of restorative justice to a victim, as the victims’ code requires, and they wish to initiate that, we should facilitate that within prisons. I see the majority of cases being that, rather than our initiating it for offenders.
Mike Penning
That is exactly where it will be. We must make sure that prisons have the facility to do that, either one to one or by video conferencing. Most prisons have that now, anyway.
Dr Huq
There is a danger that the offender-initiated aspect of this will be lost if the probation service is not going to be the provider, and CRCs and prisons are not obliged to develop it.
Michael Spurr
One of the key things is that the people who facilitate restorative justice have to be properly trained. Doing it occasionally is not the right way to get the quality of service for the victim or, indeed, for the offender. A growing number of providers specialise in restorative justice approaches, so using somebody else, rather than doing it ourselves within the Prison Service or the National Probation Service, is a perfectly reasonable way of addressing it. It is open to community rehabilitation companies not only to use restorative justice approaches as part of the way they manage offenders to reduce reoffending, which I think Mr Molloy talked about, but to offer that service to police and crime commissioners and to develop it as something for which they are funded through police and crime commissioners generally. We absolutely see that as a potential option. Some community rehabilitation companies are looking to develop in that way.
Mike Penning
They are.
Dr Huq
On the role of CRCs, does NOMS have a role in kite-marking and assuring quality standards for the restorative justice they deliver?
Michael Spurr
Yes. We have a very clear set of specifications for a whole range of work, including restorative justice. We will have to determine whether our criteria as set entirely match the restorative services quality mark level, but yes, we have that. If restorative justice is delivered, our expectation is that it is delivered to a standard. The first thing you have to ensure if you are delivering services is that you do no harm. Standards need to be in place to assure people that we are not doing harm. Then, hopefully, good comes out of it. We have that mechanism. We have clear specifications. If restorative services are being delivered, we expect them to be delivered to that level.
Chair
Can I come back to one point, Mr Spurr? You referred to using the underspend on capacity building. You said that that has now been committed and that the work is dealing with tensions and issues within prisons. I am trying to see where the benefit to the victim of crime is in that. It is probably very desirable to deal with tensions and to improve prison safety, as this Committee would stress, but it does not seem to me that you are using it to build capacity to help victims anywhere along the line.
Michael Spurr
That assumes that there are not victims when incidents occur in prisons. Of course there are victims. There are staff victims every time they are assaulted.
Chair
That is the way you put it.
Michael Spurr
Yes. There are also prisoner victims. It is that approach, which says that there is a victim in a case.
Chair
That is how you read it; fair enough. That clarifies something that might otherwise have seemed odd. The final thing I want to come back to is data sharing, which seems to be a recurrent issue that has been brought up with us. It has been suggested that, in some cases, it has got to the stage where NPS does not share data with the CRCs, and the CPS and the police will not share data. How do we resolve this quite intractable issue?
Michael Spurr
We start from the very clear premise that the law allows us to share data and we should do so to prevent crime and to support victims. There is no barrier to sharing data. In statute, it is actually a requirement. There is a whole range of issues to do with how you ensure that cultures that are different between agencies come together so that that very clear requirement happens in practice. Then there is the whole issue of how you facilitate that and make it easier by having systems that talk to one another. Across the criminal justice system at the moment, they do not all do that. I am not denying the issue at all. The most important thing, which I try to do within the agency, is to be very clear for all of us that sharing is something we look to do, not something we look to stop.
Chair
It has been suggested, Minister, that the MOJ, for example, might produce an information-sharing template for restorative justice providers. Has anybody thought about that?
Mike Penning
Yes. There is a toolkit, but it will only work—and it would work—if we look at it from the other end of the telescope and get away from, “Why should we?” rather than, “Why shouldn’t we?” The attitude has been, “We shouldn’t share, because of data protection.” That is tosh. The Data Protection Act has nothing to do with this. It specifically sits in statute that, as part of the criminal justice system, information must be shared. That is absolutely crucial. There is an evolving issue, to do with mindset in the different Departments. One thing I have said to my officials is that, if PCCs or others are going to commission, there has to be a level of competency and a level of agreement to do with data sharing. If there is not, they should not commission with that group, whether it be a third-party charitable organisation or whatever. It is quite simple. I know that in Vera Baird’s area they set up a not-for-profit charity alongside. There is no reason why that information should not be shared. We need the mindset change that Michael has just alluded to, and I fully accept that the Justice Department, and myself, through the police, need to drive that.
Chair
That is a fair point. One of the bits of evidence that was given to us was about the Association of Police and Crime Commissioners guidance, which is laudable in itself but it is about 50 pages. The evidence that was put to us was that the mindset can very often be that in those 50-odd pages you will find a reason not to share, and the guidance was being used as a barrier, rather than as an enabler. What can we do to change that?
Mike Penning
The biggest thing, which I shall do tomorrow, when I meet some of the senior officers, will basically be to say, “You can describe it whatever way you want. You can keep your 50 pages, but you need two pages as an idiot’s guide to say, ‘This is what you should be doing.’” They can ignore me, if they wish, but you are absolutely right. If you keep writing, you will find an excuse not to do something. It has to be seen from the other end of the telescope. It is a lot better than it was—I think that is right—but there is a long way to go.
Chair
One thing that was said to us was, try as you may to influence them, they can ignore you, although one would hope not. Perhaps we should put it on a statutory basis and say that there is a duty to share.
Mike Penning
There is a Green Paper, but it is statutory now. I emphasise yet again, what is the point of bringing forward more legislation if existing legislation is not being fulfilled in the first place? The biggest reason why I pushed for a Green Paper, not a White Paper, was to get as much discussion as possible about what is best for the victim in the victims’ law.
Chair
Mr Spurr, do you have any comments?
Michael Spurr
No, I have nothing to add.
Chair
Fine. That is very comprehensive. Gentlemen, thank you very much for your evidence and your time.
Mike Penning
I will write to the Committee as soon as I can.
Chair
Yes, if you would. We will write to your Department setting out the discussion that we have had—
Mike Penning
The letters will cross in the post.
Chair
Then we can make sure that we are both on the same page as to exactly what we have agreed to exchange.
Mike Penning
Yes. There are enough Sir Humphreys behind me to work that out.
Chair
That is very helpful. We will get that letter off to you. Thank you very much for your evidence. The session is concluded. Oral evidence: Restorative justice, HC 594 9