Restorative justice’s voice is growing louder and its case is becoming stronger. In the light of a grave and dark economy, the step up to finding more low cost alternatives to punishment are being sought and called upon at an intensity not seen before. It would be interesting to see how restorative justice would grow in this age of austerity and whether it would favour such con

Balancing Justice with Restoration...

ditions. Through reading the academic literature it would appear that its introduction to England and Wales would require a certain degree of limitation, in order to account for the failures it has been criticised for. However, as Braithwaite (2002: 565) suggests our understanding of restorative justice is at such a rudimentary stage that the real good and bad practices are yet to be truly discovered.

The most considerable argument must be that restorative justice would find it hard to operate without a strand of penal policy in place. Instead of restorative justice being a punishment in its right it should be developed as a go-between between the courts and other sanctions. Kathleen Daly (2006: 136) argues that if the system is to be introduced it requires independence from the fact-finding strand of the criminal justice system. Disputes should not be aired in this arena; instead it is an arena of reflection and restoration. Daly (2006: 136) explains that for a full expansion into our current justice system, restorative justice would have to equip itself with a ‘method of adjudication’. This is a point that Braithwaite (2002: 566) suggests needs developing in order to move away from the culture of legalism, to one which really does empower the victim to achieve justice in their own sense. He also questions whether those who represent the victim and defendant really act in the interests of the parties involved. Implementing an adversarial approach to restorative justice would potentially remove certain elements of the due process model that our current system aims to adhere to (Daly, 2006: 136. Braithwaite, 2002: 566).

The second limit that should be put on the growth of this is the types of offences it serves and the outcomes it can direct. First of all, restorative justice should never and will never exert punishments greater than what a court would, or could, direct (Braithwaite, 1999: 63-4 cited in Ashworth, 2002: 590). However, there needs be a type of passive threat to the offender that is involved in this process. It may be that certain crimes do not work with restorative justice, or some require a conjunctive approach to repairing the harm done (Christie, 2009: 196). Limiting the expansion of restorative justice should mean that the non-adversarial approach does not overpower the role of the courts.

The next approach is to limit the system to those who fit a criterion involving victims and offenders. What this will achieve is that unapologetic and blasé offenders are not coincidentally matched against unaffected victims. One question for its expansion is that should it be limited to just victim participation or, in the absence of a willing victim, should it be taken on by the state to restore the ‘social’ harm? Braithwaite highlights that restorative just should only develop into the criminal justice system if a standardised approach is adopted (Braithwaite, 2005). He argues that if a peer-to-peer method of justice is to succeed there has to be a clear charter of objectives, however, these should not be enforced by the professionals. Instead, these should be encouraged through discussion and exchange of views. Braithwaite concentrates his attention that suspects and victims should aim to achieve ‘remorse over the injustice; [an] apology; censure of the act; forgiveness of the person [suspect]; and mercy’ (Braithwaite, 2005: 570). A charter of standards is an important merger of the projected outcomes of restorative justice and would be a requirement before its planned expansion into the criminal justice system. There are two reasons for this: the first is to ensure the victim receives a genuine admission of guilt and a sincere apology, the second is to ensure that dialogue between the two parties is removed from the hands of legal professionals into their own hands – creating a notion of informality (McKevoy et al, 2002: 472. Sherman and Strang, 2007: 4).

Before restorative justice moves to the criminal justice system as its default position of dealing with criminal disputes there are hosts of limitations and criticisms of its type of justice. This has proposed only three limits, and the list is by no means exhaustive. Attempting to fit all of the limitations in this short piece would be wrong and difficult. However, the three analysed here should represent those that are compulsory if it is to be implemented. Taking away the legalities and arenas which legal professionals perform in to one which allows victims to air their grievances is a positive step and a fundamental one. But more important and a standard that has to be met before any progression, is that the suspect genuinely accepts they committed the crime and issues a sincere apology. Finally, it is important that restorative justice becomes the justice in itself and is a step in the process to which leaves fact-finding behind and concentrates restoring the harm done to the victim and offender. In summary, restorative justice could become an exciting, radical and fundamental part of our justice system but, in the same way our current system needs, it requires a set of standards to adhere to ensure it does work.


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