Putting the justice system on trial

I was recently speaking to an intelligent woman who had been mugged. She was clearly upset by the experience, but did not think that locking up her attacker would solve anything. She wanted to speak to him to find out why he had offen-ded against her. Our system would almost certainly lock up that young man, and it would actually place some obstacles in the way of her meeting him. She is an instinctive supporter of a concept called "restorative justice".

This invaluable book describes and assesses the academic treatment of restorative justice. It is an alternative view of criminal justice that involves the abolition of "punitive justice". Punishment is replaced by a "process" that involves offenders facing their victims and learning directly of the harm that they cause. It is claimed that this will prevent re-offending, empower and satisfy victims, save money and brighten the lives of criminal justice agencies.

Much of the thinking is premised on the widely acknowledged truth that the present system does not work and that it debases all who come into contact with it. It is expensive, it may encourage re-offending and it is notorious for undervaluing victims.

As one who works daily in the British system of punitive justice and who deals with serious crime, I agree with the doubts about its effectiveness. We lock up too many people for too long in prisons that are a disgrace. In reacting as I do to the claims made on behalf of restorative justice by some authors whose work is summarised by Gerry Johnstone, I do not mean to defend the status quo uncritically. Nevertheless, I wish to record that restorative justice, as advo-cated by some, is a deeply unsatisfactory product.

We are presently undergoing a re-evaluation of trials: should there be a right to trial by jury or not? If we go for restorative justice, we shall abandon the right to any sort of trial at all. People will enter their "processes" without any formal adjudication on the question of whether or not they were guilty. Is it not important to know, as a result of a process in which the public has confidence, who committed or did not commit a particular crime? The fact that they may feel excluded by having been publicly accused and humiliated by the trial process is the price we pay for open and fair justice.

The notion of crime as an offence against the public is to go. It will be replaced with the idea of a crime as an act against an individual (the victim). Thus, as long as the victim has control over the outcome, the public has no role to play.

Further, contact with the victim will prevent further offending because of the theory that "in order to commit offences and live with their behaviour, criminals must construct elaborate rationalisations for their actions". Thus, if you show them that their rationalisation is flawed by replacing punishment with respectful dialogue between victim and criminal, they will be unable to continue to commit crimes. Apparently, many criminologists subscribe to this idea. I had thought that criminology was the study of criminals, but clearly I was wrong. It is the science of introducing criminals to their victims, without having contact with them oneself.

The assessment of victims' motivation seems equally utopian. I regularly experience the modern howls of delight when a murderer is convicted by a jury. The relatives of the deceased usually shout "Yes!" and punch the air, being unable to punch the defendant. They exult, hug each other, thank the police and tell the press that justice has been done. Sometimes they say that the defendant should hang. The emotional release of the verdict is palpable, and rather frightening. It is catharsis. To criticise it because it leaves the victim's family ultimately dissatisfied is beside the point. They remain bereaved as a result of violent crime. Nothing can repair them, certainly not "processes" involving social workers and respectful dialogue with the offender.

There are surely only two justifications for today's use of prison: public protection, and the undoubted fact that it alone among sentences available commands public respect. We lock up drivers who kill due to serious but momentary errors of judgement only because the victims' families demand it. Nobody thinks that such sentences do any good in rehabilitating the convict, and it is doubtful whether such crimes can be deterred because they are not deliberate. If more funding were available, prisons could be better places and might produce some positive benefits. No one could credibly claim that this is true today.

In simply holding dangerous criminals, our prisons do perform a function. If restorative justice were limited to less serious offending in cases where the criminal admitted guilt, it would be easy to welcome it, at least to the stage where it could be extensively piloted so that real experience replaced anecdote and theory. However, anyone who blithely proposes that it can apply equally to all crime, however serious, as some do, is not engaging with the real problems.

The author of this admirably concise and intelligent descriptive work is not in that category. The book fulfils its stated purpose of introducing the concepts to a wider public so that a debate can be started. Lord Justice Auld's recent review of the criminal justice system does refer in passing to restorative justice as a concept. It will take a revolution to introduce some versions of it, but it would be folly to deny it a hearing.

Andrew Edis QC is a barrister.