Mr. Shane McCarthy:

The Law Society of Ireland made a submission to the committee on restorative justice alongside its submission on the community sanctions Bill. In this submission, we emphasised the importance of cross-agency and multidisciplinary co-operation, which are vital to ensure the successful roll-out of restorative justice.

While the Law Society welcomes debate as to restorative justice initiatives, we caution against the introduction of a parallel justice system to the existing courts system. Such initiatives might interfere with the rights of people who are suspected of criminal activity, albeit of a minor nature. Any referral to a restorative justice scheme should begin and end in the appropriate court where the accused would have legal advice and representation.

In the context of the criminal justice (community sanctions) Bill, many of our recommendations as regards restorative justice initiatives generally may be of interest to committee members. We recommend that the restorative justice initiatives should be based on an analysis of the impact of any such changes to criminal procedure in Ireland and the avoidance of any potential weakening of the constitutional rights of the accused. They should preserve the rights of accused people to be fully legally advised prior to participating in any such scheme. They should be designed on the basis of evidence-based research and adequate resourcing. They need to be supported by an adequate information programme established to ensure that there is adequate knowledge among all criminal justice personnel as to the appropriateness and suitability of restorative justice options in particular circumstances.

Research has shown that 75% of solicitors are unaware of the main principles of restorative justice. The successful expansion of the restorative justice schemes in Nenagh followed an extensive awareness programme among the public, solicitors, gardaí and other stakeholders. This education scheme is fully supported by the Law Society of Ireland which provides training to lawyers and trainee lawyers as appropriate.

The availability of adequate resources will be vital. Studies in Northern Ireland have indicated that each case referred to a restorative justice conference takes approximately 26 hours of staff time. In cases where it is necessary to obtain the victim's consent, it is the society's view that the victim's opinion should always be considered but there should not be a veto in cases where the judge deems restorative justice an appropriate mechanism. In many cases victims will not want to be involved despite the benefits of restorative justice schemes. For example, 89% of victims who have got involved in the past have confirmed that the apologies they received were sincerely offered. However, studies in England have shown that as few as 16% of victims want to participate in conferences there, with the comparative figures for Northern Ireland being 20% and Ireland approximately 45%. Of those who refused to participate, more than half gave the reason that they simply did not wish to do so. Similarly in the case of so-called victimless crimes where there is no victim to consent to the process, the society believes that restorative justice should not be automatically dismissed as an option for consideration.

The general scheme may put an end to the practice of courts seeking the assistance of the probation services for persons in circumstances where no formal conviction has been made. In such circumstances the individual concerned may benefit from intervention by the probation services, for example, in respect of addiction issues or training and employment assistance. There are instances where probation officers, after a period of informal supervision, may make recommendations that people should not be formally convicted. We recommend that the general scheme should not limit or restrict the range of options available to the courts. The Judiciary should be allowed to order the involvement of the probation services in any circumstances where it believes their involvement would be beneficial.

The treatment of discharge or binding-over orders made under the general scheme for the purposes of future Garda vetting is another consideration. The general scheme provides no direction or clarity on the manner in which it is intended to record discharge and binding-over orders made for the purposes of Garda vetting. Issues arise as to whether a notice of the making of either of these orders, which do not constitute a conviction, will be forwarded to the Garda Síochána for recording.

It is important to note that the Garda vetting unit does not currently operate pursuant to any specific statutory power. While the National Vetting Bureau (Children and Vulnerable Persons) Act 2012 may resolve some of the issues about which the society is concerned, this Act has not yet commenced. Accordingly, the society is very concerned that the current non-statutory procedure may interfere with the privacy rights of individuals, in particular those pursuant to Article 8 of the European Convention on Human Rights. The society believes that the general scheme must be considered in the context of the manner in which orders made under the general scheme, where there is no conviction, will be treated for the purposes of Garda vetting both under the current non-statutory procedure for Garda vetting and the National Vetting Bureau (Children and Vulnerable Persons) Act 2012.