Guest Post: Griffin on the Final Report of the National Commission on Restorative Justice

We are pleased to welcome this guest post from Diarmuid Griffin, Lecturer in Law at NUI Galway. You can read more about Diarmuid on our Guest Contributors Page.

The National Commission on Restorative Justice published its final report in December 2009. The Commission, announced in March 2007, was set up to examine the wider application of restorative justice within the criminal justice system.  The Commission was established following the report of the Joint Committee on Justice, Equality, Defence and Women’s Rights which recommended the development of a restorative justice programme for adult offenders in the Irish criminal justice system.

Restorative justice programmes can already be seen in operation in Ireland for juvenile offenders through the Garda Diversion Programme or a court-referred Probation Service Conference and ad hoc programmes dealing with adult offenders in Nenagh and Tallaght.  While there are various different models of restorative justice, the practice generally involves the bringing together of the victim, offender and, where possible, members of the community to negotiate the outcome for the offending behaviour.  For example, rather than sentencing an offender to a traditional term in prison a judge may refer an offender into a restorative programme where such a negotiation may occur.

In its final report, the Commission recommends the national implementation of restorative justice for adult offenders.  The Commission believes that such a programme “will make a positive contribution to the lives of all citizens, and particularly to those more closely connected to the offending behaviour.”  Having conducted an extensive examination of the use of restorative justice in Ireland and in other jurisdictions, the report attempts to provide a workable framework for the development of restorative justice that is mindful of both economic and criminal justice realities.

The Commission did not adopt a definitive range of offences for which restorative justice could be applied.  However, the report does state that restorative justice be targeted at offenders where a sentence of up to three years imprisonment is being considered by the court at sentencing.  In such an instance, the court should be required to consider whether the application of restorative justice would be appropriate instead of a traditional sanction.  The Commission also considers it appropriate to use restorative justice for cases where imprisonment is not being considered as a sanction for the offence.  Targeting a broad range of offences, they argue, would enhance the prospect of diverting offenders away from custodial sanctions and from committing further offences. However, they recognise that the more serious the offence, the less likely it is that restorative justice would be an appropriate alternative.

The report outlines the process by which restorative justice could operate for adult offenders.  They state that an individual should be referred by the court into a restorative process, that participation in the programme must be voluntary and that both victim and offender be willing to engage in the process.  The report refers to three different models that could be used namely, victim-offender mediation, family group conferencing or a reparation panel.  In relation to the desirable outcome of the process, the report refers to the need for reparation and restitution for the harm caused by the offender to the victim, some form of contribution by the offender to the community and the need to address offending behaviour and the underlying causes of such behaviour.

In terms of the overall structure to be used for the operation of a nationwide programme of restorative justice, the Commission recommends that the programme should have a statutory basis to ensure an appropriate structure is in place, to provide safeguards to stakeholders in the process and to address issues such as the impartiality of facilitators of the programme.  The report states that “the grounding of restorative justice in legislation confers legitimacy on such processes, providing for a continuity and consistency not available from ad hoc arrangements.”  The Children Act 2001 already provides a statutory framework for the operation of restorative justice for juvenile offenders through the Garda Diversion and Probation Service programmes.

The Probation Service should be the primary agency in the implementation of restorative justice with a number of other agencies inputting into the programme at both a local and national level as well as the establishment of a National Restorative Justice Committee to “ensure meaningful oversight and co-ordination of restorative justice inputs by the respective agencies.”

The Minister for Justice, Dermot Ahern TD, welcomed the report and acknowledged the role that restorative justice could play in providing an alternative to imprisonment. However, he went on to say that he will consider the report in the context of the White Paper on Crime which is also looking at the use of custodial and non-custodial sanctions.

Restorative justice proponents may be disappointed to hear that this topic will be going through another process of examination and reporting given the overwhelming support restorative justice practices have received from the Oireachtas Committee and the National Commission on Restorative Justice as well as evidence of positive research and experience both nationally and internationally.  Given the comprehensive nature of the report and its focus on the practical implementation of restorative justice, it is concerning that the use of restorative justice has, as of yet, to receive any substantial commitment other than a statement from the Minister that the area will be examined further.