Speech in the Scottish Parliament

22 May 2018

I congratulate Liam Kerr on bringing the debate, and I commend the principles of restorative justice that he described.

As we have heard, it can be tempting to think of restorative justice as an alternative to action under the existing justice system, but I agree with Liam Kerr that we should resist that temptation.

The experience of existing alternatives to prosecution suggests that restorative justice cannot be based on good will alone; restitution needs to be enforceable and that principle must also apply in future.

Requiring offenders to meet their victims and to apologise for their crimes can encourage them to face up to the consequences of their actions, perhaps make them think twice about committing another crime, and help to reduce reoffending overall.

However, restorative justice is equally important for victims.

Their recovery can be helped by the knowledge that offenders have paid a price for their crimes and paid their debt to society, whether that be through a community sentence or financial compensation to the victims.

By contrast, when victims do not see justice being done, measures that are intended to deliver restorative justice can undermine their faith in the justice system.

For example, my constituent Michelle Gavin has had that experience.

Two years ago, she was the victim of damage to her property when a man entered her garden.

The bill ran into hundreds of pounds.

The Crown Office made the apparently reasonable decision to offer the offender the option of paying compensation direct to his victim so that the offender need not be taken to court and the victim would benefit from a form of restorative justice.

Two years later, with not a penny paid, Michelle Gavin has had cause to regret accepting that fiscal compensation offer.

The offender has not paid.

The Crown is effectively unable to do anything about it.

The offender has been arrested on warrant, detained in custody and taken to court for non-payment not once, but three times.

On each occasion, the justice of the peace has set new payment terms and told the offender that he should pay the compensation, but to no avail.

If a fine had been imposed by the courts, fines enforcement officers employed by the Scottish Courts and Tribunals Service would be able to take action but, because it was a fiscal compensation offer, fines enforcement officers have no effective sanction.

Critically, offenders who have received a fiscal compensation offer are under no obligation to complete a declaration of income form.

Without that, fines enforcement officers cannot know whether offenders are in work or on benefits, they cannot identify bank accounts, or arrest wages, benefits or savings.

If a fines enforcement officer encourages an offender to provide such information on a voluntary basis, and the offender’s defence agent does not, the outcome, sadly, is all too predictable.

Not only that, but when it comes to fines and compensation offers that have been issued by fiscals, courts cannot impose an alternative sentence as they would for fines that have been imposed by a court, such as a community payback order, so there is no incentive for the offender to pay up.

In a case such as Michelle Gavin’s, an effort to achieve restorative justice without the full powers of enforcement that are available under the traditional justice system has done the opposite of what was intended.

In such a case, the victim loses faith in the justice system, the offender does not require to change their behaviour, and justice is not seen to be done.

As we go further down the road of restorative justice, as I strongly believe that we should, we need to learn those lessons in order to achieve the desired results.