Post Patten paramilitary policing…?

COMMUNITY Restorative Justice is underpinned by the ‘Vienna convention on restorative justice’, according to itself. Newton Emerson asks what that actually means and wonders why those promoting CRJ only seem to pay lip service to it. Emerson concludes: “So let’s be absolutely clear about where this waltz is heading. If the government’s next dirty deal involves endorsing community restorative justice – let alone funding it – then the IRA will be officially policing your neighbourhood tomorrow and the UDA will be officially policing mine the day after.

  • harry flashman

    The problem with CRJ is its fundamentally Marxist basis and this is the reason SF is so fond of it. The premise is that there is no individual responsibility; everything is collective. Therefore if someone breaks into your home they are doing so as a result of society’s deficiencies and not as a result of their own malevolence, therefore it is society’s responsibility to put the wrongdoer right and the victim as a member of the collective has an onus to take part in his rehabilitation.

    Thus we have the subtle implication that the victim has a responsibility towards the criminal who wronged him. Maybe the victim had a nice house or a nice car and the poor criminal was deprived of such things as a result of society’s failures and it is therefore incumbent upon the victim to discuss these issues with the criminal to try to help reform him.

    This of course is derived from the tenet that basically all property is theft so in actual fact the small time crook is not necessarily immoral, he is merely an individual who has the misfortune to be in small scale theft as opposed to the really big crooks. This ridiculous notion is a remarkably widespread notion in university Common Rooms, BBC editorial boards, the Social Services and incredibly even in the higher reaches of the UK policing establishment today and is utterly incompatible with Common Law notions of right and wrong.

    So here’s my position; a free society is based on the absolute right to private ownership of property, if anyone contests this then please provide an example of a free society that did not respect private property. As a result of this it is an absolutely basic function of such a society to protect those whose property has been violated, there is no onus whatsoever on the victim to take part in the rehabilitation of his transgressor. The victim merely asks that society punishes the criminal according to the law and that is all. To do otherwise implies none too subtly that the victim is somehow responsible for his victimhood.

    It is accepted without demur that CRJ is utterly unacceptable in sexual abuse cases, it is my contention that for precisely the same reasons CRJ is utterly unacceptable full stop.

  • Duncan Shipley Dalton

    Restorative justice is not actually a new idea. In England it formed the basis of Anglo-Saxon law before the Norman invasion and it has been part of many earlier legal traditions including the Code of Hammurabi of c.2000 BC. Most traditional justice systems in Africa and Asia were based upon restorative justice and Aboriginal and Native American justice is based upon principles of restoration and reparation. Following the Norman invasion William the Conqueror turned the justice system of England away from this model with crime instead being defined as the disruption of the King’s peace and with fines being paid to the King’s exchequer.

    The first recorded victim/ offender mediation and reparation service was started in Canada in 1974 by Mennonites in Kitchener, Ontario. A probation officer, Mark Yantzi took two young men to apologise and make amends to 22 victims whose house they had vandalised. The first formal legal change to incorporate restorative justice came in New Zealand in 1989. The Children, Young Persons and their Families Act introduced an intermediate stage between arrest and charge, for a family group conference to take place, for serious cases. This procedure was later extended to all juvenile offending. The procedure is based upon the principles of restorative justice. Juvenile offenders and their families are invited to attend as are victims and their supporters. Guided by a facilitator the group explores the factors that led to the offence and the effect on the victims. Concentrating on repairing the damage and preventing further offending the conference aims to produce a plan that will see appropriate measures taken, to make good the harm, and assist the young offender. Once a judge accepts the plan it then forms the basis of a court order and if all conditions of the plan are completed the case is finally discharged. A variation on this was model was also developed in Australia. The Australian variant was developed in the police district of Wagga Wagga and was initially police led, with the police deciding who should be referred to a conference. Unlike the New Zealand model the conference was carefully scripted to ensure consistency even if staffed by those unfamiliar with its workings. Both these models have now been practiced in the USA, UK and in other countries.

    Essentially restorative justice procedures of this kind are based upon several principles which differ from the traditional criminal justice system:

    •The victim is given the opportunity to have a more central role in the judicial process.
    •The primary goal of the restorative justice system is not punishment but making good the harm done by the offending, for the victim, the community and the offender.
    •Offenders take responsibility for their actions as a precondition to addressing the harm they have caused.
    •Offenders become aware that a crime has been committed, not against an abstraction, but against a real person like themselves-and against their community, who are all affected by what has happened.
    •Crime and Conflict are seen as affecting relationships between individuals, rather than between individuals and the state.
    •The process aspires to be as inclusive as possible, not exclusive. It involves individuals, e.g. the victim or community figures, who are often left outside of the court system, by conventional justice.
    •Proceedings and agreements are voluntary for all parties. People are offered the chance to take part in mediation, or to make, or accept reparation, but it is up to them to accept it.
    •The process is always confidential, but the outcome and agreement can be made public.

    In this process the victim rather than the state is at the centre. Proving guilt or innocence is no longer the concern but rather the issues are ‘What Harm was caused?’, ‘, What was the wider emotional context and impact?’, ‘, Why was harm done?’, ‘, What will it take to put it right?’, and what will prevent it from happening again?’ In comparison to the usual justice system restorative justice therefore works to heal the damage to individuals caused by conflict and crime and in this fashion can provide a more satisfactory outcome for all parties.

    Its not some kind of marxist plot its a re-emergence of a very old human tradition and it can serve a distinct purpose. in my opinion it can be a useful component of a criminal justice system. It has better results than the adversarial models in jurisdictions like New Zealand and Australia. On the other hand whether the CRJ models being used in some communities are appropriate is another question. But it might be helpful to distinguish the positive concept of restorative justice from the actuality of whatever it is the CRJ groups are trying to achieve.

  • Duncan Shipley Dalton

    On the other points that Harry raised. Individual property rights of the kind he is talking about are a relatively new phenomena and they really only date back to the 16th century. Restorative justice predates private property rights as we understand them in the modern world.

    On a tangential point mind you I have actually yet to read a really good explanation for the philosophical basis of private property so if anyone has one in a nutshell that would be interesting. Myself I find the Hobbesian notion of it simply being the consequence of the greatest power in the land enforcing it to be a pretty persuasive rational basis for the existence of the concept of private property but not really philosophically persuasive. In that sense it’s just this transitory power that reinforces the broader Lockean notion of legal positivism. Private property exists because the legal system says it exists and that happens because of the power behind that system. But how does that really undermine the notion that Proudhon put forward in the first place with the quote that Harry used. Proudhon’s point as I understand it is that nothing can be property except that which is created by labor. You can only truly own what you produce. So it was not so much “all property is theft” and it should all be communally held but rather the point made by Rousseau that:
    “The first man who, having fenced off a plot of land, thought of saying, ‘This is mine’ and found people simple enough to believe him was the real founder of civil society. How many crimes, wars, murders, how many miseries and horrors might the human race had been spared by the one who, upon pulling up the stakes or filling in the ditch, had shouted to his fellow men: ‘Beware of listening to this impostor; you are lost if you forget the fruits of the earth belong to all and that the earth belongs to no one.'” [“Discourse on Inequality,” The Social Contract and Discourses, p. 84]

    In that sense all that sustains the notion of the existence of private property is that the community or social contract allows it to exist. It has no more basis than that. It is, simply because it is. Seems a kind of empty philosophical underpinning though doesn’t it.
    Anyway it’s a bit off the thread topic but Harry got me thinking with his ramblings.

    Anyone with more philosophy training than me care to offer a more in depth analysis?

  • ch in texas

    DSD, The problem with your Hobbsian view of private property is that Leviathan was also used by Stalinist Russia to enforce collectivism. Don’t we have private property simply because it is the most efficient mechanism of having it produce goods or services? If I buy a car, I’ll take better care of it than if I rent one, for instance.

  • fair_deal

    CRJ could have a role in our policing and criminal justice system as it does in other western democracies. However, manipulation by the government and republicans of interesting and potentially beneficial principles and approaches to maintain unaccountable dominance and control of communities probably means it is significantly damaged goods.

    In defence of those in Loyalist communities they are much closer to what is common practice elsewhere in the world and co-operate with the other parts of the policing and criminal justice system.

    “The problem with CRJ is its fundamentally Marxist basis”

    Actually the concept of restorative justice is found in the Bible. Many of the groups that have developed CRJ in North America began from a religious basis.

  • Duncan Shipley Dalton

    Yes but inst that the point. The existence, or removal, of private property is prefaced upon the desires of the most powerful entity in the land. In what way is that an inaccurate representation of the existence of private property in the UK or USA? And if that’s the case then what you basically argue is that it is a flawed philosophical rationale simply because it would sustain a communist regime as well as a capitalist one?

    Is the argument of efficiency a sufficient reason to sustain the ‘right’ to private property? If that is its underpinning then can I remove your property by demonstrating that I would take more care of it than you would? If you car is poorly maintained then should you lose the right to own it? In what way does the right to destroy your own property fit within that rationale? If I can not destroy my property then in what sense do I truly own it anyway? Equally if it could be demonstrated (for the sake of argument) that a collective distribution ‘would’ be more efficient then would that negate rights to private property?
    Its an idea but it still seems pretty weak as a rationale.

  • ch in texas

    Well said Dalton.In fact, the US Supreme Court handed down a ruling last month that the city gov. could take your land to give it to a big corp, b/c that new use would increase tax revenue and provide jobs. People here were absolutely apoplectic! Congress passed laws preventing it, however, what is my underpinning for saying I own my house? It is b/c the state says I can own it. It also tells me that I can not own narcotics, for instance. I have no moral right to own any thing, other than what the state grants me.

  • Duncan Shipley Dalton

    ch I remember the Kelo v City of New London case in June this year. That looks to me to pretty much sustain the Leviathan argument doesn’t it? I just ask because many people use the right to private property to sustain a lot of other political preferences but if the right is as insubstantial as merely a result of power then it really has very little if any moral force. As I said I have never really found a satisfactory answer to this question.

  • ch in texas

    So my claim to own something is prefaced on the fact that I live in a Hobbsian Capitalist Society, as opposed to a Hobbsian Communist one. I like it!

  • Belfast Gonzo

    I don’t think the issue here is about whether restorative justice is a good or bad thing. It’s already happening and it’s about to get bigger, whether we like it or not.

    The issue now is about implementation. I have no doubt that in the right context RJ can work, and does. But there need to be democratic safeguards, and I see little of that.

    For example, what happens when a criminal refuses to abide by a decision of the local RJ committee? WHo should they be referred to?

    Presumably the court service and police should become involved at that point, but can anyone really see that happening in west Belfast?

    Not a chance, as one poor kid found out the other week.

  • ch in texas

    “For example, what happens when a criminal refuses to abide by a decision of the local RJ committee? WHo should they be referred to? ”

    Gonzo, Perhaps DSD’s dicussion with me about Hobbsian underpinnings of property rights above cuts straight to the the point. Restorative justice is fine, as long as the state remains in control of the proceedings. Authority can not and should not be devolved to any third party. If so, why not devolve Muslim offenses to Sharia Courts? Canada to her credit just shot that one down. Or nationalist offenses straight to SF courts? The state would lose all authority.

  • Forrest

    If the British want SF to sign up for the police, they should not fund CRJ, end of story. CRJ was funded by a private donor. As long as it exists SF will have yet another reason to drag their feet to that inevitable day. The British should not continue to facilitate this and expect change at the same time. In addition it beggars belief that while the British is axing funding here and there and cutting back, and raising rates to bring Northern Ireland into line with the rest of the UK, that it would consider spending money on CRJ which defeats the purpose of getting SF on board with the PSNI policing. A lot of what the British government does beggars belief, however, the money poured into a non-sitting Stormont is another colossal waste.

  • JD

    I have worked as a CRJ volunteer and will continue to do so irrespective of whether the British Government decides to fund it or not. This is about helping our communities resolve problems in a non violent manner and it works, I have this witnessed on numerous occasions. People sometimes need to deal with reality. In many republican areas the PSNI are still not trusted and it wouldn’t really matter whether Sinn Fein signed up to policing or not, the PSNI have already begun to dig that hole for themselves. However we need to change that and that will take time and a lot of work by all sides. CRJ are trying to offer non-violent alternatives to resolving community problems where others are arguing for violent responses, not always the most popular position to take in these areas. Some credit must be given for that at least.

  • Shore Road Resident

    JD – Nobody’s arguing that CRJ doesn’t have a role in policing. However, a CRJ scheme that operates as an alternative to policing (which is how you’ve just described it) is quite another matter. For a start, it’s a clear breach of the human rights of the offender.
    Perhaps CRJ should sit down with the PSNI and attempt to work out their differences? After all, if they think that can solve every other problem…

  • JD

    CRJ is community based mediation service, which has been extremely effective in dealing with low level anti-community activity and neighbourhood disputes.

    We are operating in an unusual environment where some victims who, in a normal society would take their problems to the police, choose to have them resolved through mediation. The option of contacting the PSNI is there, however they choose to go elsewhere, in the same way that in the past that some victims have chosen to have the alleged perpertrators injured.

    Lets work to get that environment changed so that everyone can have confidence in a policing service and CRJ can adopt its proper role as a mediation service for appropriate problems.

  • Alan

    Can we clarify where RJ referals come from?

    Is it the courts, probation, the police (?), youth workers, victims, perpetrators? It seems to me that if a crime is committed and a victim created, at some stage the matter has to be reported and some investigation started.

    I don’t really have a problem if the victim approaches RJ, but I do have a problem if the perp makes the approach.

  • Shore Road Resident

    The real complication is that CRJ in Northern Ireland openly refuses to work with the police itself and, according to this week’s Sunday Tribune, also actively discourages or even threatens victims who want to contact the police.
    Bottom line: the clearly politically-motivated people involved in CRJ are even less trustworthy than the PSNI at its worst – and there’s no scrutiny, oversight or redress against them at all.
    CRJ under its present guise is about one party’s political agenda, not justice. It is, as the Shinners themselves like to say, a totally discredited police force.

  • JD

    Approaches come from the victim or the family of the victim or a dispute arise where there is no clear victim but both parties would like it resolved. The vast majority of CRJ referrals do not involve crimes having been committed.

  • Shore Road Resident

    If no crime has been committed then what’s CRJ doing getting involved?
    The Vienna Convention says there must be enough evidence to charge an offender *before* a case can be referred to a restorative justice scheme.

    CRJ is just making the rules up as it goes along – which is exactly why it can’t be trusted to lay down the law to anyone else.

  • Gonzo

    I also thought that CRJ became involved in disputes where, essentially, the perpetrator would be found guilty in a court.

    It’s remit seems much wider than I first thought, as it has gotten involved in a planning dispute (which could be interpreted as putting pressure on objectors when the case was closed) and a woman’s affair (note that the woman was contacted, not the married man).

    CRJ clearly cannot cope with sexual crimes, and if it is keen to have a convicted rapist as a ‘mediator’, it should wise up.

    I doubt if it’s keen to allow the State to have much of a role at all. The boy who was beaten to a pulp in west Belfast recently for not abiding by a CRJ decision (not necessarily by CRJ members) lends weight to this theory.