Irish Reparation Panels
2.17 Contract Formulation
After the discussion phase targeting the personal characteristics of the offender, the facts of the crime and the level of harm caused by way of the offending behaviour, the next stage of panel practice involved the formation and agreement of a reparation contract. The contract stage was again similar in practice within both panel models. However, within the operation of the town based RJC model there was two procedural differences when considering panel agreements and reparative tasks. First, community service tasks were attached to all of the cases observed, as part of contract agreements, within the RJC model. It was noted that this would always be the case with offences that did not involve a direct victim. Within those cases that did involve direct victims, the reparation wold be tailored around the harm caused directly.94 This was not the case
within the RJS scheme, although Community Service Orders could be attached to a sentence by the referring judge in court. These tasks would generally include litter picking or acts such as repairing buildings within the local community, training local sports teams, working in charity shops or fund raising. Secondly, the RJC panel representatives did not agree a set financial reparation amount themselves as was the case within the city based model. Instead this was left solely to the discretion of the referring judge. The reason for these differences in procedure was not made clear.
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However, both modes of contract formation practice did appear to work successfully within both panel models.
The contract formulation and agreement stage would begin generally with the facilitator explaining to the participant that a number of tasks had to be completed in order for the offender to make amends to both the victim (if recognised) and the local community generally. It was also explained that the referring judge, in order to decide whether or not a diversionary sentence was a viable option, would need to see evidence that attempts had been made at repairing the harm caused by the initial actions. Zedner argues that the act of reparation should involve
‘more than ‘making good’ the damage done to property, body or psyche. It must also entail recognition of the harm done to the social relationship between offender and victim, and the damage done to the victim’s social rights in his or her property or person’.95
Panel representatives did attempt to manage the reparation concept in a similarly broad context. Reparation contracts were detailed and included apologies, written work on the harm caused, financial payments and community service acts.96 They also included
rehabilitative options such as a requirement to visit an anger management or victim support service or an alcohol awareness programme.97 Questions such as ‘how do you
think you can make things right?’ were a common feature at this stage of panel proceedings. Indeed, the practice of asking the offender how they themselves might begin to repair the harm caused by the offending behaviour represented a key principle within both panel models. Participating offenders were not viewed as simply passive
95 Lucia Zedner, ‘Reparation and Retribution: Are They Reconcilable?’ In Andrew von Hirsch, Andrew
Ashworth and Julian Roberts (eds.), 3rd Edition. Principled Sentencing: Readings on Theory and Policy
(Oxford and Portland: Hart Publishing, 2009) 190.
96 For a RJS reparation panel contract example, see appendix 13. For an example of financial reparation
to a community based scheme, see appendix 14.
97 See appendix 1 for an example of a community based alcohol awareness programme’s confirmation of
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actors within contract negotiations. They would be encouraged to put forward their own proposed reparative tasks in addition to the regular contract terms of financial reparation and apologies. This practice of increasing offender input, alongside that of victims and supporters of both sides, within restorative contract outcomes has been further noted in juvenile group conferencing cases within Northern Ireland.98 It is
submitted that involving offenders at this stage is a worthwhile process and allows for a potentially greater understanding of the level of harm caused by the offence. For a participant, being given the opportunity to take active responsibility for their actions and being given a voice within that decision making process can serve to increase feelings of both legitimacy and fairness within the contract formulation stage of the process. Within family group conferences in New Zealand, young offenders have previously complained about not being involved in the process, with decisions being made ‘about them, not with them’.99 Duff suggests that
‘once we move away from the straightforward repair or replacement of material property, the meaning and efficacy of reparative measures come to depend crucially on who offers them; and there may be kinds of repair that only the offender can provide’.100
Offenders observed within the panel process have chosen which charities they wanted to pay their reparation fine into, and have chosen community based reparative acts that have taken their own skills and experience into consideration. One RJC based participant, for example, was a painter and decorator by trade and agreed to help refurbish a community sports hall. Within the writing of apologies as part of contract
98 See Jonathan Doak and David O’Mahony, ‘In search of legitimacy: Restorative youth conferencing in
Northern Ireland’ (2011) 31 Legal Studies 305, 319. One example of the active involvement of offenders observed during reparation panels involved one participant who initially refused to write a proposed letter of apology to Garda officers as he did not believe they represented the ‘community’. He eventually agreed to write a letter to the parish priest as an alternative.
99 Allison Morris and Gabrielle Maxwell, ‘Restorative Justice in New Zealand: Family Group Conferences
as a Case Study’ (1998) (1) Western Criminology Review. [Online]. Available at http://wcr.sonoma.edu/v1n1/morris.html.
100 R.A. Duff, ‘Restoration and Retribution’ in Andrew von Hirsch, Andrew Ashworth and Julian Roberts
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negotiations in both programmes, participants were also asked who they believed would benefit most from the letters. Conversely, however, involving participants in this way also invites an element of inconsistency into reparation panel agreements. During the contract formulation within a RJC panel, an offender who had admitted to an assault proposed a bungee jump for charity as part of the contract agreement which also included a reparative financial sum and apology.101 This particular example of ‘restoring’
the harm caused might be viewed as problematic by some restorative theorists. Duff, for example, argues that certain reparative tasks are required to be burdensome in nature in order to increase the moral and forceful expression of an apology, while Daly has viewed retributive punishment as an essential ingredient of a successful restorative justice outcome.102 Ashworth has also noted that ‘sentencing is for an offence and
respect for the offender as a citizen capable of choice suggests that the sentence should bear a relationship to the seriousness of the offence committed’,103 while for desert
theorists such as von Hirsch, it is important that the sentence should always be proportionate to the crime being managed.104
Further, and perhaps controversially, there have been examples wherein offenders have decided for themselves exactly how much financial reparation they would be willing to pay. It may be submitted here that such a practice should not necessarily be viewed as problematic. Many participants came from socially deprived areas and imposing a large financial burden into the contract, on top of other reparative duties, could potentially weaken a participant’s rehabilitative options. During the series of observations, financial
101 This was not rejected out of hand by the panel representatives, with follow up enquiries made as to
the possibility of achieving such a task. However, it is not known whether this type of reparation proposal would have been ultimately accepted as suitable by the referring judge.
102 See R.A. Duff ‘Restorative Punishment and Punitive Restoration’ in Lode Walgrave (ed.), Restorative
Justice and the Law (Cullompton: Willan, 2002). See further Kathleen Daly, ‘Restorative Justice: The Real
Story’ (2002) 4 Punishment and Society 55, 60.
103 Andrew Ashworth, ‘Responsibilities, Rights and Restorative Justice’ (2002) 42 British Journal of
Criminology 578, 585.
104 The “just deserts” theory of sentencing advocates that punishment should be proportionate to the
seriousness of the offense committed. This philosophy became influential in the United States during the 1970s after publication of the book Doing Justice by Andrew von Hirsch, a leading proponent of the just deserts model which reported on the findings of the Committee for the Study of Incarceration. See Andre von Hirsch, ‘The Desert Model for Sentencing: Its Influence, Prospects and Alternatives’ (2007) 74 Social
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reparation agreements ranged from twenty euros up to 300 euros in total, while some participants would also have offered large reparation sums to the victim, through the caseworker or panel manager, before the meeting as an initial token of compensation.105
Along with a financial payment, a typical contract would also include letters of apology to those deemed to be affected by the crime, as well as rehabilitation courses including alcohol and drug awareness classes if the panel concluded that there were relevant dependency issues connected to the offending behaviour. Within one assault case contract, reparation included a written letter of apology to both the direct victim of the assault as well as to the parents of the victim. The panel explained that a crime such as an assault can affect a wide range of people, including both the direct victim themselves as well as their family members and friends. A letter was also agreed to be written to the parents of the offender as they were also deemed to be indirect victims and suffering as a result of the assault.106 This particular aspect of written apologies to family
members of the participating offender proved to be a common occurrence within observations of contract formulations within both programmes. Within the assault case noted above, the offender’s parents were described by a police panel representative as ‘secondary victims’.107 As part of another case involving the attempted theft of a number
of bicycles, the panel chairperson suggested, as there was no actual victim due to the fact that the offender had been caught by Garda officers in the act, that the participant could perhaps write a ‘pseudo victim’ apology letter to an imaginary bicycle theft victim. It was noted that this ‘pseudo victim’ letter should outline the ways in which the crime might have affected the imaginary victim, such as removing a possible means of getting
105 During initial panel observations of the RJS model in 2012, the financial reparative sum appeared to
always total 300 euros within contract agreements. However, panellists subsequently explained that the sum was lessened due to economic factors and because it was felt that participants were struggling to pay the full amount. However, a small number of cases saw the victims’ families being offered compensation outside the terms of a reparation agreement. One example saw an offer of over a thousand euros by the participant’s family. It will ultimately be up to the referring judge as to the final level of financial restitution deemed appropriate with such payments being taken into consideration.
106 Within this example, the parents of the offender had already paid a substantial financial sum to the
victim’s family for medical bills. The victim’s jaw had been broken by one punch.
107 The panel practice of utilising apologies generally and the subject of victim participation are discussed
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to work or college and thus putting that job or course in danger. Such a policy again allows for panellists to highlight offender accountability and further illustrate that the harm caused by the criminal actions is usually not only confined to a direct victim but can also affect a wider sphere of family members, friends and community members.