GS Misc 749
RESTORATIVE JUSTICE – RETHINKING
SENTENCING: Background to the Synod debate
A Report from the Mission and Public Affairs
Council
Introduction
1.
There could hardly be a more appropriate time for
Synod to be debating restorative justice and wider sentencing
policy. Criminal Justice issues are a major political concern –
17 criminal justice bills have been introduced by the Labour
Government between 1997 and 2003. Probation and prison
services are in the process of merging, prison numbers continue
to rise relentlessly, and the search for new and effective
methods of dealing with offenders is intensifying. The Synod
debate also follows a well-received debate in March in the
House of Lords initiated by the Archbishop of Canterbury on
the social purpose of sentencing.1
2.
General Synod has debated penal and prison policy on
two previous occasions in the last fifteen years. In 1991 it
expressed concern at the ineffectiveness of custodial sentences,
the size of the prison population including a disproportionate
number of ethnic minority people and the lack of alternatives to
custody for mentally ill offenders. It welcomed the then
Government’s determination to develop non-custodial
sentences, affirmed the ministry of all Christians working
1House of Lords Hansard, Vol 659, No 61 Cols 957-1003, 26 March
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2004
within the criminal justice system especially those in prison
chaplaincy and commended the development of local penal
affairs groups. The debate was supported by the report Crime,
Justice and the Demands of the Gospel.
3.
In 1999 it debated prison policy welcoming the
Government’s commitment to the development of restorative
justice programmes, its efforts to provide alternatives to
custody for young offenders and recording concern about the
effects of crime in communities, about provision for the
mentally ill and the disproportionate number of ethnic minority
people in prison and affirming the role of prison staff,
chaplains and visitors. That debate was preceded by an address
from the Director General of Prisons and supported by the
report Prisons: A Study in Vulnerability. (The full texts of the
Resolutions are in an Appendix to this report.)
4.
July’s debate focuses on issues of sentencing and in
particular restorative justice and is supported by a collection of
essays from a number of Christian experts in criminal justice
issues Rethinking sentencing: a contribution to the debate.
The current context
The Carter Report and the National Offender Management
Service (NOMS)
5.
In 2003 the Home Office and the Cabinet office
commissioned a businessman named Patrick Carter to analyse
the Prison and Probation Services and make recommendations.
He had worked on a number of Government initiatives in the
past. The Carter report was published in January 2004 to a
warm welcome from Government. It recommended a more
integrated approach for the management of offenders both
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inside prison and in the community by bringing Prison and
Probation services into a single structure, with an emphasis on
value for money, competition in providing services.
6.
The National Offender Management Service (NOMS)
with a single Director, Martin Narey, previously Director
General of the Prison Service, came into existence at the
beginning of June. The Government hopes this will produce
the kind of joined-up service for adult offenders that now exists
in the Youth Justice field. It will emphasise private firms
bidding for contracts, especially in the area of non-custodial
sentences, and on providing services for offenders. Area
managers will oversee this process of putting out services to
contract, and on forming joined up partnerships.
7.
The proposal has met with opposition both from MPs
and from some of those who work in the Probation Service.
This service went through a massive reorganisation less than
three years ago, which resulted in the loss of independence of
regional probation services and the creation of a unified
national probation service. Now a further reorganisation is
underway. It is reminiscent of the enormous changes in the
Health Service in the 1990s. Probation staff are concerned
about privatisation, and that the distinct probation ethos will be
lost as well as the name as a description of the staff roles and
responsibilities.
Rise in prison numbers
8.
The prison system is in a critical state. Prison numbers
have risen relentlessly, from 42,000 in 1991 to 76,000 today.
The Government wants to restrict the prison population to
eighty thousand by 2009, accepting the recommendation of the
Carter report – but that is still nearly five thousand more than
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are crammed into our prisons at present. Some argue that
money spent on providing prison places is money well spent,
because it takes offenders off the streets. Those less convinced
point to the fact that nearly 60% are re-convicted within two
years of release. Building more prisons in the hope that it will
reduce crime is, they say, like building more hospitals
believing it will reduce road accidents. It is generally agreed
that over-crowding hampers initiatives to address offending
and rehabilitate the offender.
9.
Overcrowding also means there is more movement of
prisoners around the system. Half of all women prisoners are
held more than 50 miles from home and a quarter are held
more than 100 miles from home. This, together with
bureaucratic difficulties in arranging visits, can make it
difficult for mothers in prison to remain in contact with
children. And that has significance beyond the humanitarian,
for research has shown that maintaining good family ties can
significantly reduce the risk of re-offending.
10.
Despite these rising prison numbers, and statistics
showing a drop in many forms of crime, few people are able to
say that they feel safer, suggesting that perceptions gained from
media coverage are significant. Reformers point to the various
aspects of social exclusion that are behind most crime. Both
offenders and victims are generally from the most
disadvantaged communities.
Forms of Sentencing
11.
This debate is not about prison, or even about crime. It
is about how we respond to crime, by passing sentences on the
guilty. Put very simply, there are five ways we can respond to a
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criminal act.
The Mentally ill
12.
We can deal with the process in a way that diverts a
person from the criminal justice system because they are
mentally ill, and there is much argument about how much
compassion should be exercised at this point. The problem lies
in the fact that only a few cases are clearly in the area of
diminished responsibility. For those individuals with a serious
crime there will be a severe sentence but this will be served in
a secure hospital, such as Ashworth. For others there may be
some impaired responsibility and the issue is whether a person
is best served by diversion away from the courts. Should such a
person be brought to trial, and, if so, should they receive a
custodial sentence? There have been some very painful cases in
the last decade, especially the case of a young mentally ill man
called Christopher Edwards who was remanded overnight in
prison for trial and murdered by his fellow inmate. His parents
won a victory in the European Court of Human Rights two
years ago, and Public Affairs staff gave support to the family,
who are active within the Church.
Restorative Justice
13.
Second we can deal with a criminal act in a way that
does not bring the offender to trial but rather introduces him or
her to the process known as Restorative Justice, where a person
is confronted with their offence in a setting outside the courts,
and they agree to a form of reparation, or apology. This form of
response to crime has been very influential in recent years, and
has been used extensively in New Zealand, Canada and
recently in the Youth Justice system in England and Wales.
There are many Christians who have both been at the cutting
edge in implementing it and in writing about it. One of the
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national experts is Tim Newell, a member of the Society of
Friends, who has worked extensively in the Thames Valley
Area on Restorative Justice. He writes a chapter in the
accompanying report Rethinking Sentencing.
14.
Restorative Justice is seen as offering a new approach.
Crime is seen, not just as harming the state, but also as harming
the victim and the community. Restorative Justice works to
resolve conflict and repair harm. It encourages those who have
caused harm to acknowledge the impact of what they have
done and gives them an opportunity to make reparation. It
offers those who have suffered the harm, the opportunity to
have their harm or loss acknowledged and amends made. Many
Christians have welcomed Restorative Justice initiatives, both
those to engage young people on the brink of a criminal career,
and those serving long prison sentences for serious offences,
because they are seen as embracing Christian principles of
Respect, Justice, Repentance, Healing, and Restoration.
Use of fines
15.
Third a person can be given a fine and this ends their
liability to the criminal justice system. The use of fines has
declined markedly in the last fifteen years, with a greater
emphasis on community sentences and on imprisonment. It is
Government policy to redress this decline, and to introduce a
much greater use of fixed penalties and of fines which are
related to people’s income. The Carter report endorsed this
already well-established attempt to persuade magistrates to
make much greater use of fines.
16.
The Bishop of Worcester (who is also Bishop to HM
Prisons and will be introducing the Synod debate) has
questioned whether the use of fines is not a way of driving
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those who are poor in our society into greater debt. His essay in
Rethinking Sentencing deals with the opposition to Restorative
Justice in a culture dominated by a financial way of thinking.
He writes that there are problems in the easy appeal to fines as
an answer to minor criminal offences:
The value of such a system in dispensing swift
and predictable penalties has to be weighed
against the reality that for those who can afford
to see them in this way the difference between a
‘fine’ – which is punishment – and a ‘charge’ –
which is levied as the price of a particular
activity, as in the London ‘congestion charge’ –
is elided
Non-custodial sentences
17.
A fourth answer to a criminal offence is a non-custodial
sentence. Here the Government has spent much time and
energy. A review of custodial and non-custodial sentences was
carried out by a Home Office civil servant, John Halliday, three
years ago. The report Making Punishments Work explored
many ways of delivering punishments both inside and outside a
custodial setting. (A member of the Board for Social
Responsibility staff served on the External Reference Group of
the review). Non-custodial punishments were made far more
varied, with the intention of delivering them more closely to fit
the needs of the offender.
18.
Again the Youth Justice Board has been a pioneer in
delivering new forms of community sentences, including
tagging, intensive surveillance, and a focussed approach to
address the literacy and numeracy needs of the offender. If
combined with a training package, work on anger management
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and other issues to do with a person’s personality, this can be
very effective. Two contributors to Rethinking Sentencing have
national prominence. David Faulkner was a senior Home
Office civil servant for much of his career, and since retirement
has worked at the University of Oxford in criminology. His
chapter provides a fascinating overview of this process of the
reform of sentencing in which he was himself much involved.
Another perspective is given by Lord Justice Laws who has
been a Lord Justice of Appeal since 1999.
Custody
19.
The use of sentencing to custody has increased across
the Western world since 1990. Why this is so is the subject of
much debate, for crime rates have been in decline since the mid
1990s and there is no evidence that increased use of custody
does reduce crime. It is nonetheless the case that the U.S.A.
and England have led the way in increasing the use of custodial
sentences. Again the Halliday report explored the use of
custody followed by further community sentences, or weekend
custody, and many other variants. This has been influential on
subsequent Government policy. A stern critic of this policy is a
former prison governor, Stephen Pryor, who writes a chapter in
Rethinking Sentencing on how prison diminishes the
responsibility of the prisoner to others and on how society is
complicit in this process.
Christian involvement in the sentencing debate
Churches’ Criminal Justice Forum
20.
In all these debates there is an active Christian voice,
both from the churches, from Christian groups and from
individuals. The creation of the Churches’ Criminal Justice
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Forum (CCJF) in 2001 enabled this concern to be focussed
through an overall body. CCJF is a network of CTBI and
employs three staff members. Its criminal justice officer, Stuart
Dew works extensively on educational issues. His chapter in
Rethinking sentencing provides a very helpful overview of the
ways in which Christians are practically engaged in the
criminal justice system. He summarizes his understanding of
that engagement in these words:
Indeed, Christ’s whole earthly ministry could be
said to have been with the kind of people who
nowadays occupy the time of our sentencers,
our prison and probation staff, and our victim
support services. They were the marginalised,
the dis-possessed, the disabled, the mentally
unwell and the personality disordered as well as
those whose morality was awry. In crude terms,
the bad – but much more often the sad or the
mad. Christians have an honourable history of
engagement in this field, through chaplaincy,
police court missionaries (the forerunners of
today’s probation officers), the many thousands
of volunteers who give their time to national and
local projects, as well as those who work within
the statutory services. Theirs is the long haul.
Often, they will experience disappointment and
frustration. They very much need the support of
the church.
21.
It is out of that engagement that the integrity and
credibility of Christian participation in the policy debate is
made possible. This activity shown by the members of CCJF is
mirrored in the work of many General Synod members who
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belong to the Penal Affairs Group which meets every Synod
and is chaired by the Bishop to Prisons. Both he and the
Chaplain General to Prisons, Ven. William Noblett, have done
much to ensure that Christian involvement in everything from
Restorative Justice to prison visiting is kept at the front of
Christian thinking.
22.
A theology of justice will point to the Augustinian
understanding of the fallen state of human nature in which
social order is maintained by the operation of the law. This
view of punishment sees it as a tragic necessity in which
society must accept a collective responsibility to uphold the
social order, to care for the victim and to seek the rehabilitation
of the offender. David Faulkner points in his article to the fact
that it is not enough to have a particular philosophy, or indeed
theology, of punishment. It is how that understanding is
expressed which also matters. It is an essential Christian insight
that the work of the Holy Spirit is to be found not only within
the community of the Church but also in the secular world.
David Faulkner writes:
The outcomes from that process will depend not
only on the nature of the reforms themselves,
but also and perhaps even more importantly on
the spirit in which they are put into effect and on
the nature of British society more generally.
That spirit may be one of tolerance,
compassion, humanity and trust. Or it may be
one of rejection, vindictiveness, selfgratification and fear. Christians, and all people
of good will, can affect how that choice is made.
23.
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The final word should go to the words of the
sermon preached by Jesus in Luke 4:16-20. “ The Spirit
of the Lord is upon me because he has anointed me to
bring good news to the poor. He has sent me to
proclaim release to the captives”. As Christopher
Marshall has pointed out in his study of punishment and
the Bible, this quotation cannot be turned simply into a
psychological or spiritual liberation for those
imprisoned by sin or guilt. There was a ministry of
restoring freedom and dignity to those burdened by an
unjust system. It is this sermon preached by Jesus
which should always be in our minds as we seek for
justice in sentencing policy.
+Tom Southwark
Vice- Chair: Public Affairs – Mission and Public
Affairs Council
June 2004
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Appendix
Previous General Synod Resolutions on
Penal Justice and Prison Policy
January 1991 – Penal Policy
‘That this Synod:
(a) welcome Her Majesty’s Government’s
acknowledgment of the ineffectiveness of custody in
dealing with much offending behaviour and its
determination to secure greater use of non-custodial
sentences by the courts;
(b) express concern at the size of the prison population and
the associated poor conditions and regime at many local
prisons and at the lack of alternatives to custody for
mentally disordered offenders and call on the
Government to improve remedial facilities in all
prisons;
(c) urge HM Government to accept amendments to the
Criminal Justice Bill which would prohibit by statute
racial discrimination within the criminal justice system;
(d) ask that the reasons for the disproportionately large
number of black people in prison be investigated and
appropriate measures taken;
(e) affirm the valuable ministry of all Christians working
within the criminal justice system and those in the
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Prison Service Chaplaincy;
(f) commend the development of local penal affairs
groups as an important contribution to social
responsibility within the Church and the wider
community.
(g) encourage the continuing study of those theological
and biblical principles which should lie at the root of
any penal system commended by the Church.’
November 1999: Life in Prison: Report by the Board for
Social Responsibility.
‘That this Synod
(a) welcome Her Majesty’s Government’s commitment to
the development of restorative justice programmes
which enshrine the biblical principles of holding
offenders responsible for their crimes, addressing the
needs of victims, and enhancing the protection of the
public;
(b) welcome efforts to prevent 15- and 16-year-olds being
remanded into prison custody by offering constructive
alternatives in the community;
(c) note the continuing public concern about the effect of
crime in our communities;
(d) record its unease at the disproportionate number of
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black offenders in our prisons, and welcome initiatives
to eradicate racism throughout the judicial and penal
system;
(e) request Her Majesty’s Government to reassess the
situation whereby mentally ill people are often held in
prison when they would be better treated in a secure
hospital environment;
(f) recognize the need to reintegrate offenders into the
community through prison- and community-based
programmes and in partnership with employment and
accommodation schemes;
(g) affirm the role of prison staff, chaplains, boards of
visitors and volunteers and the part they play in
supporting the families of people in prison; and
(h) urge dioceses, deaneries and parishes to promote the
study of Prisons: A Study in Vulnerability (GS Misc
557) through criminal justice groups and other means.’
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