Dr. Ian Marder

Maynooth University School of Law and Criminology

This week, Pa Daly TD, Patricia Ryan TD and Maurice Quinlivan TD moved to introduce a Private Members’ Bill to amend the Criminal Justice (Victims of Crime) Act 2017 to promote referrals to restorative justice.

According to the Explanatory Memorandum, the Criminal Justice (Promotion of Restorative Justice) (Amendment) Bill 2023 would amend section 26 of the Criminal Justice (Victims of Crime) Act 2017 ‘in the following ways:

• proposed subsections (7), (8) and (9) explicitly permit and encourage the court to refer cases to restorative justice schemes between charge and conviction, and dismiss charges if appropriate;
• proposed subsections (10) and (11) encourage the Court to refer cases to restorative justice schemes between conviction and sentencing, which already takes place in parts of the state on a sporadic basis;
• proposed subsections (12) and (13) explicitly permit and encourage An Garda Síochána and the Director of Public Prosecutions to refer cases to restorative justice schemes between charge and court, and review the decision to prosecute if appropriate;
• proposed subsection (14) precludes engagement with a restorative justice provider in any way, whether leading to a successful restorative justice process or not, from being used as evidence of guilt, which is necessary under our proposals due to the would-be pre-conviction provisions.’

In short, the Bill makes explicit that the Gardaí, prosecutors and the judiciary may refer cases to restorative justice following charge but before court or conviction, and encourages them to consider doing so. These referral mechanisms are implicit in the Criminal Justice (Victims of Crime) Act 2017, insofar as s.26(2) of that Act provides that restorative justice can involve either an ‘offender or alleged offender’, indicating that there need not be a conviction before restorative justice can take place. In practice, however, Ireland does not have a referral pathway to a restorative justice service pre-conviction for offences alleged to have been committed by adults. This excludes many thousands of victims and people accused of offences from accessing restorative justice. The Bill also provides that charges can be dismissed, or the decision to prosecute can be reviewed, on foot of a successful restorative justice process, and that participation in restorative justice cannot be used as evidence of guilt.

Finally, the Bill encourages the judiciary to refer cases to restorative justice between conviction and sentencing. This practice already takes place in parts of Ireland, but our mapping exercises show that only a tiny proportion (under 1%) of the overall caseload of the criminal courts is referred.

If passed, the Criminal Justice (Promotion of Restorative Justice) (Amendment) Bill 2023 would be the first legislation in Ireland which explicitly encourages the referral of cases to restorative justice. I was very happy to work with the office of Pa Daly TD to provide advice and guidance on the Bill.

The Bill’s publication comes hot on the heels of Senator Lynn Ruane’s efforts to amend the Policing, Security and Community Safety Bill 2023 to provide An Garda Síochána with a function of facilitating restorative justice. In the same debate, Senator Ruane noted that ‘we need to make efforts to have some sort of restorative justice programme between people within particular communities and the gardaí to the benefit of everybody.’

In November, meanwhile, Minister James Browne TD said, in a Select Committee on Justice debate, that he sees ‘a greater role for probation services, and the restorative justice elements will be a huge part of that over the coming years.’ He observed that there are ‘a number of pilot projects around restorative justice that were started back in the 1990s that perhaps were not expanded. Maybe there was not that focus on it afterwards, but it is certainly something we will see into the future.’