HK should consider restorative justice

Grenville Cross says requiring them to meet victims has been proven to lower recidivism

PUBLISHED : Tuesday, 18 September, 2012, 12:00am
UPDATED : Tuesday, 18 September, 2012, 1:50am

"An eye for an eye," said Mahatma Gandhi, "makes the whole world blind." Although some people see responses to crime solely in terms of punishment, this is changing. Whereas large numbers of young people are arrested each year, recidivism rates for offenders have traditionally been high, and a new approach to crime might well enhance public security.

Restorative justice encourages reconciliation between the victim and the offender, and, hopefully, also reduces re-offending.

If the victim and the offender can meet to talk things through, as now happens in many places, the victim can tell the offender about the real impact of the crime, and obtain answers and reparation, while the offender has the chance to understand the harm that he or she has done and to make amends.

Restorative justice is not, however, designed to replace court proceedings, although it may be an alternative in the less serious cases, and runs in parallel with the criminal justice system.

A restorative process should only be used where there is sufficient evidence to charge the offender, and both the victim and the offender agree to a meeting. It can operate at different stages, sometimes before an offender is charged and sometimes after, and has been endorsed internationally.

In 2002, the United Nations' Economic and Social Council adopted basic principles to encourage the development of guidelines and standards for restorative justice, although these have yet to be applied in Hong Kong. The council stressed that while restorative justice "enables those affected by crime to share openly their feelings and experiences, and aims at addressing their needs", it also allows offenders "to gain insight into the causes and effects of their behaviour and to take responsibility in a meaningful way".

In New Zealand, the use of family group conferences for young offenders and their victims has been acclaimed. A statutory basis now exists for restorative justice schemes, and these are sometimes taken account of in the sentencing of offenders.

The ministry of justice finances 24 providers of restorative justice, and a recent survey of 154 participating victims revealed that 82 per cent were satisfied with restorative justice, while 80 per cent said they would recommend it to other victims facing a similar situation to theirs.

In Canada, restorative justice projects are under way in every province and territory. Many offenders who have participated have commented that they find it far harder to acknowledge their crimes in face-to-face meetings with their victims and to take responsibility than to simply receive their punishment.

Canada's Correctional Service has emphasised that restorative justice is not "soft on offenders", and that it increases offender accountability and contributes to public safety.

In England and Wales, the government has funded a seven-year project into restorative justice. The independent evaluator, Professor Joanna Shapland, found that, in controlled trials of restorative justice in cases of serious crime, the majority of victims chose to meet the offender when offered the services of a trained facilitator, and that 85 per cent of victims who participated were satisfied with the process.

England's Restorative Justice Council has advised the government that, by providing restorative justice in 70,000 cases involving adult offenders, there would, through reductions in re-offending, be savings to the legal system of £185 million (HK$2.3 billion). In 2010, the government quantified the reduction in the frequency of recidivism following restorative justice as 14 per cent.

In Australia, most jurisdictions now deploy conferencing to deal with youth crime. When used as an alternative to prosecution, the conference brings together the young offender, who admits the offence, his or her supporters, the victim, his or her supporters, a police officer and a conference facilitator, who is a trained justice official or administrator, familiar with conflict resolution.

The offence and its impact are discussed, and sanctions or reparations are imposed on the offender, which may include compensation, work for the victim or the community, and counselling sessions, with the outcome being legally binding.

In Hong Kong, the government told the Legislative Council in 2007 that it did not support restorative justice for young offenders. There was said to be a lack of empirical evidence to show that victim/offender conferencing would reduce recidivism, and to go down this route risked "sending a wrong message to the public that the balance is being tilted too much towards helping the offender".

As a result, a useful opportunity to modernise criminal justice was lost, and local arrangements for responding to juvenile crime have now fallen behind those available elsewhere.

In 2011, the police arrested 3,343 youths between 10 and 15 years old, and 4,350 youths aged between 16 and 20. At least some of these cases would undoubtedly have benefited from a restorative approach.

At the very least, the government must now, in light of international advances, review its arrangements. The evidence shows that restorative justice can work, and this option should now be available to victims and offenders alike.

Grenville Cross SC, an honorary professor of law at the University of Hong Kong, is the vice-chairman of the senate of the International Association of Prosecutors