As a new film portrays the power of restorative justice, Dani Garavelli asks why Scotland doesn’t do more to bring criminals and victims face to face.
From the moment Ailbhe Griffith set eyes on the stranger who had sexually assaulted her a decade earlier she knew she was doing the right thing.
He wasn’t a scary monster – he was just a man
The Republic of Ireland’s Probation Service, which had set up the meeting at her behest, had been concerned for her well-being; her attacker was a man who spoke bluntly, she was told, and he was unlikely to apologise for what he had done.
But Griffith – who was 21 at the time of the attack – still had unanswered questions. She wanted to know why he had done it; and she wanted to take back control of her life.
In the years since the man had beaten, bitten and raped her in 2004, she had continued to function. “I had a job and I got on with life,” she says. “But every time I heard something about rape or sexual assault I would feel an intense sense of disempowerment and it would generate all those negative feelings again.”
When her attacker was released from jail in 2014, her feelings of trauma worsened. “I knew I was looking around every corner. I was conscious he was out and about. Dublin is a small city and I said to myself, ‘I cannot live this way, forever afraid of a monster.’
“I felt I absolutely had to confront him because otherwise I would live my whole life afraid. And I was more afraid of that than I was of him.”
There was no tradition of restorative justice for serious crime in Ireland but, by coincidence, Griffith’s sister, who was studying to be a social worker, had attended a lecture given by Dr Marie Keenan, a proponent of the practice, at University College Dublin.
Keenan agreed to help Griffith and – after months of to-ing and fro-ing – the meeting was arranged. “I’d be lying if I said it wasn’t intense,” Griffith tells me. “But I walked in and he was just sitting there like a normal person on a chair in normal clothes and, from that point on, my fear began to evaporate because he was not this scary, terrifying monster who came out of the darkness and dragged me into a bush; he was just a man sitting on a chair.”
Griffith is an insightful and articulate woman; the 80 minutes she spent with her attacker has now been made into a film called The Meeting (in which she and her supporter, Keenan, play themselves) and she devotes a lot of time to raising awareness of the potential benefits of restorative justice.
At first, Griffith was given the chance to tell her attacker what it felt like while he assaulted her, and how the experience changed her perception of the world. Then, she asked two questions: “Why did you do it?” and “Did you mean for me to die?”
“His response wasn’t rational or logical, but it was how he saw the world, it was what motivated him to behave that way and it brought a kind of closure,” she says.
The reason the film, which premiered at last year’s Dublin Film Festival, is so compelling, however is because the way attacker and victim relate to each other shifts towards the end.
“It would be a stretch to call it friendly, but it became respectful on both sides and that was really important for me,” says Griffith.
“I wanted to humanise him so I would no longer be afraid of him, but I also wanted him to see me as human. I thought he had gotten away with not seeing that and that I would be honouring everything that I went through if he realised I was a person.”
Restorative justice – where victim and offender meet to talk about the damage done and potential reparation – is not a new concept. Versions of it can be found in antiquity. Under the Babylonian Code of Hammurabi, for example, victims were entitled to receive payment for certain property offences.
In the modern era, the idea began to regain traction in New Zealand in the 1970s. “It started in Maori populations because young boys were disproportionately represented in prisons for all sorts of petty crimes,” says criminologist Estelle Zinsstag, a senior researcher for KU Leuven, currently based in Glasgow.
“It was a catastrophe, so their own community said to the justice system: ‘We must do something about this. Sending them all to prison doesn’t work. We need to use some of our ancient ways. Why don’t we try to change [the system] in a way that works for everyone?’ So they passed a law and now restorative justice is part of the system.”
Other early adopters include Norway and Belgium (where restorative justice is widely used for every age group and every offence) and Northern Ireland.
A decade ago, there was a proliferation of schemes in Scotland, many of them run by the Scottish Association for the Care and Resettlement of Offenders (SACRO), but, as austerity bit, funding ran out and most of them closed.
More recently, a European Directive on Victims’ Rights, combined with a desire to cut down the number of people going through court and into custody, has led to a resurgence of interest in countries across the Continent, including Holland, Denmark and France.
A Home Office report suggesting that, for every pound spent on restorative justice, the criminal justice system saves another nine has driven an expansion of services in England.
The interest of the Scottish Government has also been piqued. In 2017, on the back of an international seminar held at Edinburgh University, it published guidance for service providers and facilitators and committed to ensuring access to restorative justice across the country by 2023.
Last week it published an action plan, backed by £300,000 of new investment. The plan outlines steps to map existing provision, provide training and increase both public awareness of the concept and the availability and consistency of provision.
Making the announcement, Justice Secretary Humza Yousaf said restorative justice would help victims recover and cut offending.
“I know from my own personal experience when I have been the victim of racial abuse, I would have liked to sit down with the offender and got them to understand the impact the crime has had on me and my family,” he said.
Though victim-driven, it is easy to see how the policy fits with other aspects of the Scottish Government’s justice strategy, in particular the presumption against shorter sentences and the attempt to keep young people out of custody.
But what shape might it take? How would it be resourced? And how realistic is the target?
The first thing to understand about restorative justice, Zinsstag says, is that it is flexible. It can be used as an alternative to prosecution (for low-level crimes), between conviction and sentencing (in the hope of reducing the number of people sent to prison) or post-sentencing for crimes in which very serious harm has been caused, in the hope of achieving closure for the victim and reintegration for the offender.
The interaction between the victim and the offender can take many different forms: there is mediation (victim, offender and facilitator, with an agreement on reparation); victim offender dialogues (the same, but with no expectation of reparation); shuttle diplomacy (offender and victim never meet – their contributions are passed to each other via an intermediary); and conferencing (where victim, supporters, offender and community representatives all contribute).
The facilitators can come from different fields too: the third sector, social work, the probation service or even the police.
Each country that uses restorative justice tailors the service to suit its own culture and priorities. In Denmark, for example, only the victim can seek restorative justice (the offender cannot make the first move). In Belgium, all restorative justice takes the form of mediation, and the process runs parallel to the criminal justice service, so it has no bearing on sentencing.
Northern Ireland’s restorative justice programme – used only for under-18s – developed in tandem with the peace process. During the Troubles, paramilitaries had policed their own estates, meting out rough justice to young people who committed minor crimes. “But as we moved away from military means to democratic means, it wasn’t a good look to be shooting 16-year-olds for stealing cars, particularly if [like Sinn Fein] the [politicians] were sort of backing a human rights approach,” explains Tim Chapman, chair of the European Forum for Restorative Justice and a lecturer at Ulster University.
“They consulted with a variety of NGOs and academics and came across restorative justice.” On both sides, community-based programmes were set up without the support of the government and run largely by ex-IRA and UVF prisoners.”
In 2002, however, restorative justice was put on a statutory basis. Northern Ireland is now the only country in the world where it is mandatory for young offenders to be offered an opportunity to take part in a restorative justice programme (in other countries, it will be at the discretion of the procurator fiscal or judge). This applies to all offences other than those (such as murder and terrorism) that carry a mandatory sentence.
Chapman says one of the most interesting aspects of restorative justice in Northern Ireland is that victims who take part are less likely to demand harsh punishments.
“I was involved in designing the process and training the facilitators and what we said was we could not see restorative justice simply as a way of rehabilitating young offenders,” he says.
“We have to give at least equal priority to the needs of victims. However, if victims come to a meeting and have an opportunity to tell the offender exactly how they have been harmed, they tend to be less punitive because they have been listened to.
“We all fantasise if we are harmed by someone that this person must be a monster, but the average young offender is not that scary, really. They are quite sad and vulnerable with difficulties in their lives. Often victims show great compassion to the people who have harmed them but only if they feel this is a process that has respected them.”
Sometimes the offenders will be asked to pay something back, but more often they will agree to some symbolic reparation such as charity work.
According to Chapman, restorative justice has led to a reduction in re-offending from around 50-70 per cent to around 30 per cent. Interestingly, around 95 per cent of offenders carry out all of the agreed reparation (compared with around 60-70 per cent on probation).
Meanwhile the number of under-18s in custody at any one time has gone down from hundreds to six or seven.
So successful has restorative justice proved in Northern Ireland that it looked set to be extended to adults; but then the power-sharing agreement at Stormont collapsed and everything was put on hold. “It is incredibly frustrating,” says Chapman.
Here in Scotland, interest in restorative justice has waxed and waned in tandem with the economy. According to Dr Steve Kirkwood, restorative justice facilitator and senior lecturer at Edinburgh University, prior to 2008 it was used as a means of diversion from prosecution for adults, as well as in the youth justice system; but these schemes, funded by local authorities, dropped away as the recession kicked in.
In the early 2000s, SACRO ran three diversion-from-prosecution programmes in Edinburgh, Aberdeen and Motherwell. Niall Kearney, who is now a senior policy adviser with the Scottish Government, was in charge of the Edinburgh one, overseeing around 2,500 cases in 10 years.
But he was also interested in the use of restorative justice to bring a sense of closure in more serious crimes, particularly those which had caused deep-seated divisions in the community. While at SACRO, he started to develop two programmes – Talk After Severe Crime (TASC) and Restoration In Serious Crime (RISC), using specific cases to test the effectiveness of this approach.
One of the cases he worked on involved a car accident in which a teenage passenger died. The teenage driver was remorseful, but the dead boy’s mother was devastated and their small community in rural Scotland was split.
Kearney’s first move was to try to work out who was in the best position to approach the bereaved. “It turned out that – on this occasion – it was the police,” says Kearney. “They were great – they contacted the boy’s mother, and transported her back and forth to all the meetings.”
Where serious trauma has been inflicted, the preparation is intense. Facilitators like Kearney have to make sure the offenders are ready to take responsibility for their actions, but they also have to manage the expectations of the victims who might be hoping for a greater display of contrition than the offender is willing or able to give .
In this case, Kearney met both parties many times before they met each other, but the investment paid off. “The meeting lasted two or three hours,” he says. “The driver was a young guy who had never been in trouble with the police before and was burdened with a terrible guilt. He welcomed the opportunity to say sorry because that hadn’t been possible in court. As for the mum, she was able to tell him about the damage the accident had caused in a very clear, unambiguous way.
“In terms of a symbolic gesture, the driver made a few suggestions. But what the mother wanted was for him to go back to the bridge where the accident happened once a year and remember her son. And that is what he has done.”
Tom Halpin, chief executive of SACRO, says there are still a small number of local authority-commissioned services, including one run by the third sector organisation in Fife. These days, however, most involve community disputes, with cases referred from the fiscal, the youth justice team and the housing department.
Halpin tells the story of two neighbouring shopkeepers who ended up in an argument. One of them went too far and pushed the other, who fell and injured his head.
“The idea that there is a binary separation of good and bad is less obvious when you get into specific cases,” he says. “Obviously here one caused the principal injury, but, because of the dispute, both felt they were victims.” On this occasion, the shopkeeper who did the pushing was able to make reparation for the injury he caused, but both acknowledged they had gone too far. “Restorative justice allowed the two neighbouring businesses to carry on, creating employment. The alternative was that one might have closed down.”
Another case in which restorative justice proved productive involved a young boy who had injured a worker by recklessly firing an air rifle.
“When we met them after the process, the father of the boy and the man who had been wounded were maturely discussing the incident, as the man’s son sat beside him,” says Halpin. “The man said: ‘When I started this, I was angry with my son because the family have never been involved with the police. Today, I am proud of him because he has faced up to the reality of what he has done.’”
The victim was equally positive. “He said: ‘The great thing is I feel I have been able to play a part in helping that boy get his life on to a good track.’”
Restorative justice isn’t without its controversies, though most of them revolve around the delivery of specific schemes as opposed to the concept. Often touted as an international exemplar, New Zealand’s system has faced complaints about poor practices, including delays, a lack of communication and instances where young people and family members felt disempowered. Other models have been criticised as too offender-focused, with the victims treated not as the priority but as a mechanism to facilitate the rehabilitation process.
The use of restorative justice in cases of sexual and domestic violence is a particular bone of contention, with feminists split. The Scottish Government guidance says it will rarely be appropriate for such crimes.
Zinsstag, however, believes it should be up to victims/survivors to choose whether or not to meet their abusers. Any attempt to dictate to victims in a misguided attempt to protect them risks further disempowerment. And Ailbhe Griffith agrees.
She says, even if her offender had refused to meet her, she would have gained something from having made the approach. “It meant I knew that he knew I wasn’t afraid to meet him. It was almost me sending a message – ‘I am not afraid’ – and, to me, that was already empowering.”
The meeting itself completed the process. “The minute I walked out of the room, I felt completely different,” Griffith says. “I was on a high like I had never been before. It was just so wonderful to go from nine years of feeling this perpetual state of disempowerment to not being afraid; to being able to let go of all the anger which I realised was futile. It was a real gift.”