Dr. Ian D. Marder
Maynooth University, School of Law and Criminology
On 8th August 2023, the Department of Justice published a new policy paper on restorative justice. This meets a commitment set out in the Justice Plan 2021 to publish policy proposals, based on the Programme for Government pledge (p.86) to ‘work with all criminal justice agencies to build capacity to deliver restorative justice, safely and effectively’. Minister of State James Browne T.D. said that the policy ‘sets out a roadmap for present and future attainment of the highest standards in this area’.
What does the policy aim to achieve?
It is significant for the Government to restate its commitment to restorative justice at a time when they are under considerable media pressure to become more punitive on issues of crime. The policy includes the explicit recognition that restorative justice is beneficial, both for people who committed offences and victims, emphasising ‘rigorous international evidence’ (p.4) to this effect and economic benefits to the State. Correctly, restorative justice is noted as having the potential to reduce the use of imprisonment (p.6) and improve the response to gender-based violence (p.7).
The policy paper starts with a strong aim (p.3): ‘to ensure that safe, high quality restorative justice is accessible to all persons who could benefit from participation’. This aligns with the Council of Europe framework to which Ireland is party, which provides for restorative justice to be ‘generally available’.
New dedicated funding promised
Perhaps most importantly, the policy includes commitments to increase restorative justice provision. It refers to the gaps in services in many parts of Ireland and stages of the criminal justice process that our research identified, and to judges seeking greater access to restorative justice. Consequently, it says, ‘in order to achieve an appropriate level of savings, and to offer the opportunity to participate in restorative justice to all those who might conceivably benefit from the process, the capacity of restorative justice services requires further expansion’ (p.6).
Restorative Justice: Strategies for Change Ireland worked with the Department in 2021 and 2022 to draft and present a briefing paper for the Criminal Justice Strategic Committee, then to organise and deliver a stakeholder consultation. The consultation considered four options, requiring varying levels of investment: 1) to strengthen existing capacities within current structures; 2) to establish dedicated coordinators across all relevant agencies; 3) to establish a national delivery service to oversee new regional, multi-agency partnerships; or 4) to establish an autonomous restorative justice agency.
Based on stakeholders’ views expressed during the consultation, we submitted draft text for a policy based on the third option: a national service to develop and oversee regional partnerships. However, the policy has identified the first option, ‘to strengthen existing capabilities within current structures’ (p.8), as the preferred approach. It states that this option ‘represents the best prospect to make the most significant impact with the greatest efficiency at this time’ (p.8) and maintains that this will:
…enable the further development of restorative justice provisions in a manner that continues to deliver immediate services while also future proofing for expansion and development when the provisions of restorative justice are more established and numerous across the State. […] Engagement with the Probation Service and the provision of dedicated funding will provide significant ongoing support for the provision of restorative justice at all stages of the criminal justice system, and help expand such services into all geographical areas of the State so that there are viable options available to the judiciary and to victims and offenders wherever appropriate.
A new service for the North West?
There are reasons to be positive about this policy, not least that new resources are being committed to the development of restorative justice, in recognition of the fact that services do not exist in some counties and at some stages of the criminal justice process.
The policy and press release do not specify the amount of new resources that will be provided, nor the manner of their allocation. The Probation Service’s response may give some indication. Director of Operations for Prisons and Reintegration, Fíona Ní Chinnéide, stated that the policy:
…builds on existing work within the [Probation] Service to expand the provision and access of community-based restorative justice services nationwide, including our recent commitment to fund a new restorative justice outreach service in the North West.
The notes clarify that the expansion into the North West has involved ‘allocat[ing] additional funding to Tuam Community Training Centre in Co. Galway to support the recruitment of a restorative justice worker for the North West region’. This is indeed an important development, representing the first time that the Courts will be able to refer cases to a dedicated service in the North West. The existing specialist services only cover Greater Dublin, Wexford, and Tipperary, Laois and Offaly (adults), and Limerick and the South West region (young people).
Gaps in services will likely remain
In theory, Probation has the capacity to deliver restorative justice pre- and post-sentence across the country, in cases where the victim or judge requests this and the offender is known to the Probation Service. In most cases, however, victims are not aware of restorative justice or the fact that they can ask for it, and the figures suggest that judges do not refer most cases. This means that restorative justice is highly inaccessible in practice, even in areas with Probation-led or dedicated services.
Unless several new services are set up (or existing ones expanded), and new referral pathways are established, significant gaps will likely remain. Courts in much of the South West, Midlands and South East are also unable to refer adult cases to a dedicated service, and courts outside the South West do not have access to such a service for young people (Young Persons’ Probation, which offer restorative justice infrequently, aside). Several counties already host Community-Based Organisations to which a new restorative justice worker could easily be attached, but it remains to be seen how much funding will be made available for such purposes.
It is also unclear if restorative justice will be available between arrest and charge or between charge and conviction, post-conviction if the perpetrator is not sentenced to a probation order or prison, or alongside adult cautions – all of which are gaps in existing provision. The Department funded a small pilot (p.71) with Restorative Justice in the Community to receive Garda referrals, but we are yet to see how this will work or whether the new referral pathway will be expanded across the State.
Overall, it seems likely that the level of investment the policy envisages will not suffice to meet its own aim: that restorative justice is ‘accessible to all persons who could benefit from participation’.
Towards legislation and further investment?
The policy does not preclude greater investment in the future. For example, it notes that a working group reviewing community sanctions legislation has proposed ‘the inclusion of a new Head [to the Criminal Justice (Community Sanctions) Bill] which specifically provides for restorative justice’ (p.8). This could represent a significant further step if it puts service provision on a statutory footing, and creates automatic referral mechanisms so that providers can offer restorative justice systematically and work with the parties to explore whether the process is right for them.
The policy concludes by noting that the Department will ‘examine the costs associated with the next stages of the work […] with a view to considering the need to increase such funding as appropriate’ (p.9), including considering the possible impact of the Community Sanctions Bill. The Department’s Justice Plan 2022 committed to the agreement of an ‘implementation plan’ to support the safe and effective delivery of restorative justice, which might contain some of these details when published. It must also include timelines, provisions for evaluation and partnerships with criminal justice agencies on information sharing, and commitments progressively to increase accessibility and develop services beyond that outlined in the new policy, if Ireland is to meet the attributes of successful provision we set out in a briefing.
In the press release, the Minister of State says that ‘it is reasonable to conclude that Ireland is yet to use restorative justice to its maximum potential’. This policy paper represents a positive step, but much more work is needed to make restorative justice universally accessible.