Dr. Ian D. Marder
Assistant Professor in Criminology, Maynooth University
The headlines were stolen by the proposal to permit judges to set minimum tariffs for life sentences. Yet, the thrust of the Review’s 21 actions – six of which are listed as priorities for penal reform in the coming years – is broadly progressive. The Irish Penal Reform Trust welcomed the Review as ‘a major step in the right direction’, calling it ‘a comprehensive and ambitious roadmap to transform not only the prison system as we know it, but the entire penal system’. The more progressive elements of the Review – such as proposals to reduce the use of short-term prison sentences and divert more young adults – are framed tentatively, suggesting that caution may be required. Still, the overall direction of travel is positive and conducive to placing a greater emphasis on restorative justice.
Aside from the minimum tariffs for life sentences (Priority Action 6), the priority actions include:
- to consider the incorporation of the principle of prison as a sanction of last resort in statute, in relation to people who do not pose a risk of serious harm, to reduce reoffending and overcrowding in prisons;
- to develop and expand the range of community based sanctions including alternatives to imprisonment, to reduce reoffending and overcrowding in prisons;
- implementation of recommendations from the High Level Task Force to consider the mental health and addiction challenges of those imprisoned and primary care support on release;
- to ensure that all criminal justice policy decisions are pre-assessed to determine, as far as possible, their impact across the criminal justice sector; and,
- to establish a Penal Policy Consultative Council.
Restorative justice features as one of the non-priority actions. Specifically, Action 8 is to ‘work with all criminal justice agencies to build capacity to deliver restorative justice, safely and effectively’. The embedded Action Plan breaks this down into two more actions, providing timeframes and leads. This states that the Criminal Policy Division will commence publication of policy proposals in Q3 2022 and work with the Service Delivery Division to agree an implementation plan at the same time.
Actions relating to restorative justice in the Penal Policy Review Action Plan (p.23)
The Review also reiterates the importance of providing restorative justice at all stages of the criminal justice process, and of alignment between the new model and existing services. It states (p.49):
An appropriate service delivery model is therefore required to promote, support and oversee high quality restorative justice practice at all stages of the criminal justice process, including prevention and diversion. Any proposed model should seek to connect with the expertise and skills of all existing agencies that are currently engaged in the delivery of restorative justice practice.
The commitments to publish a policy proposal and implementation plan closely reflect those in the 2021 and 2022 Department of Justice Plans. The Review does not expand on what the ‘appropriate service delivery model’ for making restorative justice available at all stages of the justice process will look like, although the inclusion of Service Delivery as a co-lead on the implementation plan might indicate that it will have a role in organising or overseeing new services.
The Appendix reminds us of the steps that have been taken so far. The Department of Justice has worked with us to fund a mapping exercise and website, to develop options for service expansion, and to consult stakeholders on those options in Q3 2021. The consultation is described as having ‘provided a clear option to take forward [which] informed the policy paper to be published in Q3 2022, with sign-off by a newly convened subgroup of the [Criminal Justice Strategic Committee]’ (p.1). As per commitments in the 2022 Justice Plan, the Appendix continues, ‘an implementation plan for the agreed policy approach’ will follow shortly thereafter.
While giving little away, the Penal Policy Review keeps restorative justice high on the agenda. It recognises the complementarity between restorative justice and community-based sanctions. This is important given the Government’s stated ambition to make greater use of community sentences in place of short-term prison sentences. Ideally, restorative justice should be offered to all those who serve a sentence in the community as part of the sentence planning process. This way, people who commit offences, victims and communities can all play a role in determining what needs to happen during that sentence in order to repair the harm done and prevent it from happening again.
The review also emphatically recognises the strong evidence underpinning restorative justice, noting that restorative processes can ‘help victims recover from crime, reduce reoffending and save public resources’ (p.15). The absence of equivocation here shows how far we have come in recent years.
The Review follows the Criminal Justice Sectoral Strategy 2022-2024 and the Third National Strategy on Domestic, Sexual and Gender-Based Violence. These strategies were both published in 2022 and included new restorative justice and restorative practice commitments. The Criminal Justice Sectoral Strategy 2022-2024 sets a deadline of Q4 2024 to establish a restorative justice delivery mechanism (p.11). It also identifies restorative practices as a topic on which the CJSC will ‘develop and roll out joint training programmes to address a number of identified cross-cutting sectoral issues’ (p.18).
The Domestic, Sexual and Gender-Based Violence Strategy incorporates two related actions in its implementation plan, namely:
3.3.13 Examine the role and potential of victim/survivor-led restorative justice initiatives as part of a suite of options post-conviction and stage of release into the community. This includes contributing to RJS4C European project for the wider and consistent availability of restorative justice services (including victim offender mediation), ensuring specific provision for vulnerable victims/survivors in accordance with actions identified in Supporting a Victim’s Journey.
3.6.6 Review the response to children as convicted and non-convicted perpetrators within the criminal justice system, to ensure that responses are appropriate and effective in reducing reoffending by prioritising diversion, restorative justice and therapeutic interventions where appropriate.
Again, the ambition is clear. The recognition that any person, relating to any offence, could benefit from participating in restorative justice is to be welcomed. But as the Review itself notes, many of its most progressive proposals have been on the cards for many years. Greater dedicated resources are needed to translate these goals into service provision. The policy proposals and implementation plan should include new resources for service delivery, clear, incentivised referral mechanisms, and national structures to bring all stakeholders together, ensuring that restorative justice is widely supported and consistently offered to all those who might benefit.
The direction of travel is clear, but the road from here to there is long. As ever, we strongly welcome input from the Restorative Justice: Strategies for Change Stakeholder Group regarding the approach we should take to supporting service development and other elements of our own Strategy.