There is major potential to de-escalate offenders going to prison by maximising the accessibility of restorative justice through the courts system, a seminar has heard.
Hosted by the Ireland branch of GEMME, the European judges’ group for mediation, the 21 March event was chaired by Mr Justice Paul Kelly, President of the District Court.
Dr Ian Marder (co-deputy director of the Centre for Criminology at Maynooth University) noted that under the Criminal Justice (Victims of Crime) Act 2017, victims of crime should be offered information about restorative justice, where available, on first contact.
“Our interpretation is that often this is not happening. We have extrapolated this from our research, which shows there have been fewer than 1,000 cases a year referred for restorative justice since 2019, even though there are over 250,000 cases a year in the District Courts alone,” he said.
“In 2022, 3,046 people received a prison sentence of under 12 months; a sentence which is likely to increase re-offending and bring little justice to victims. Offering restorative justice between conviction and sentencing in lower-end cases has the potential to reduce the level of criminal records and prison sentences.
“We know from criminological research that the more weight is given to retribution, the less safe society is going to be,” he said.
He added that the justification for one of the European Commission’s proposed revisions to the Victims’ Rights Directive – that all cases with a prison sentence of under five years should be considered for restorative justice – is that victims would benefit from avoiding protracted legal proceedings.
Private Members’ bill
A new Private Members’ bill in December 2023 advocates the use of restorative justice pre-conviction and pre-sentencing (not permitted under current legislation), which Marder said would open and encourage these new pathways in Ireland.
“Currently in criminal law, the role of restorative justice kicks in at the sentencing and disposal stages of the process.
“The exception is in youth justice, where it is introduced prior to summons thanks to the Garda Youth Diversion Programme. I have often wondered whether that is something that should be considered for expansion to adult criminal cases,” commented Mr Justice Paul Kelly.
“I am strong proponent of restorative justice. It offers judges flexibility and versatility in how we deal with cases.
“What disappoints me is the reluctance of victims to actively engage in the process. I believe if there were greater knowledge and understanding of victim-offender mediation in the community there would be better engagement with it and, by extension, better outcomes, and satisfaction for victims.”
‘Restorative-justice renaissance’
Rachel Lillis (head of the restorative justice and victims services unit at the Probation Service) encouraged judges to refer as many cases as possible to be assessed for their suitability for restorative-justice interventions.
She told the seminar that developments since she took on the role nine months ago almost represent “a restorative-justice renaissance”.
Key to this is the Department of Justice policy published last August promoting and supporting the provision of restorative justice at all stages of the system.
This charges the Probation Service with the responsibility of integrating and expanding restorative-justice services into all geographical areas and making them available to the judiciary, victims, and harm-doers wherever appropriate.
“I welcome the opportunity this provides the Probation Service to harness the current momentum and drive out a comprehensive three-year restorative-justice action plan that we are in the process of finalising,” she said.
The Probation Service received an additional €250,000 in funding in Budget 2024 to go towards the national expansion of restorative-justice services. In addition, it provides around €20m in annual funding to the five community-based projects delivering restorative justice services at regional or local levels.
Victim-offender mediation in action
Lillis shared a case example referred from the Circuit Court that led to successful victim-offender mediation. The offender was a 19-year-old from a disadvantaged background on the cusp of custody for the burglary of an elderly couple’s home.
“I had worked with this young man when he was 14 and told me he wanted to be a footballer. He was unfamiliar with the concept of victim-offender mediation, so I had to sell the idea to him. I then approached the victims through the gardaí. They were keen to understand why they were chosen and the potential for future harm,” she explained.
“After a huge amount of preparation, the victims were able to clearly ask questions and were surprised by the young man’s answers – to learn they weren’t targeted for being elderly and he had no intention of breaking into their home that night. He had got drunk and ended up on their street. He was shocked by their thought processes and the consequences they feared.
“Eventually, we supported the young man to get involved in the local football team. The elderly couple took an interest and went to see how he was getting on. All parties involved gained so much and were unburdened by the whole process.”