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Abstract

With advocates for Restorative Justice arguing that punitive punishments through prosecution alone do little to prevent offending, it must be examined why restorative practices are not more frequently used to tackle road-related harm. In Roads Policing, the victim rarely has an opportunity to take part in the rehabilitation of an offender for their specific offence. Educational courses currently exist for offenders that cause low-level harm (or potential harm) on the roads, yet there appears to be no voice for the specific victim; instead, they must rely on an offender being deterred from future offending by general education or enforcement.

Keywords

roads policing restorative justice

Introduction

This paper seeks to propose policies and amendments to current practice, aiming to promote the use of Restorative Justice in the Roads Policing arena. Government organisations including the Department for Transports, the National Police Chiefs Council and the Home Office may benefit from engagement with the position of this paper.

This paper provides a critical evaluation of restorative approaches that may be applied to Roads Policing within the United Kingdom. With advocates for Restorative Justice arguing that punitive punishments through prosecution alone do little to prevent offending, it must be examined why restorative practices are not more frequently used to tackle road-related harm. Marshall (1999) discusses Restorative Justice, identifying that various parties involved in an offence work together to provide an effective resolution for the future. This provides a problem for Roads Policing, as the victim rarely has an opportunity to take part in the rehabilitation of an offender for their specific offence. Educational courses currently exist for offenders that cause low-level harm (or potential harm) on the roads, yet there appears to be no voice for the specific victim; instead, they must rely on an offender being deterred from future offending by general education or enforcement. McCold and Wachtel (2003:2) state that ‘the essence of restorative justice is collaborative problem solving’, yet the victim does not appear to be involved in the collaboration within current Roads Policing practices.

Literature review

Johnstone (2013) highlights that it is usual practice following the commission of a criminal offence, that the individual be subject of a court trial followed by judicial punishment, yet there are many other alternatives to prosecution that have become more commonplace in recent years. The Crown Prosecution Service are the primary prosecutors in criminal proceedings within England and Wales; their guidance on Restorative Justice gives practitioners advice on how to deploy such tactics when dealing with offending. They state that ‘when properly administered RJ processes produce individually tailored solutions involving interaction between offenders, victims and the community’ (Crown Prosecution Service, 2019:1).

Shapland et al., (2006:506) describe Restorative Justice as a ‘conceptual umbrella, under which a number of different practices .. have found common ground’. Piggott and Wood (2019) conversely argue that to analyse data, or to use RJ as a singular element or practice is not useful in criminal justice procedures. There are several diverse practices within the Restorative Justice concept; thus, Hayes (2005) argues that there is a diverse outcome when applying Restorative Justice, and the way it influences offending behaviour. It cannot be defined as one simple, singular act, rather a range of tools available to criminal justice practitioners to resolve criminal behaving either instead of, or alongside prosecution. It should also be considered whether Restorative Practices are an effective use of resources in the UK. Shapland et al., (2011) highlight some key statistics that would substantiate claims of its effectiveness; 85% of victims were satisfied with outcomes from Restorative Justice and Re-Offending was reduced by up to 27%. Additionally, of the 43 Police Forces in England and Wales, 33 actively use restorative practices either as an alternative, or in conjunction with prosecution (Shewan, 2010).

Restorative Justice may incorporate practices alongside criminal proceedings (Restorative Justice Council, 2016). This paper focuses on Restorative Justice as a response to criminal driving offences, rather than Restorative Practice (Wachtel, 2020). Restorative Justice in its own right is not a disposal for offences, whether roads based or criminal. Out of court disposals are a regular feature that sit within Restorative Justice, though alone they are restorative, they may be used in conjunction with (or without) Restorative Justice (Restorative Justice Council, 2016). Slothower (2014) found that victims may be more satisfied with an out of court disposal than more traditional methods whereby the offender receives a criminal conviction. This allows for the proposal that Restorative Justice is used with out of court disposals in traffic offences whereby there is a victim or a victim’s family in cases where death is caused.

Death and serious injury on UK Roads has been an increasing concern for emergency services in recent years. There were 24,470 killed or seriously injured casualties … in road traffic accidents reported to the police, for the year ending June 2020 (Haylock, 2021). Statista (2021) shows that in the same period, there were 623 offences of causing death or serious injury by dangerous driving. This does not take into account offences of Careless Driving, which are currently unrecorded. With a common interest between the general public, law enforcement and victims to reduce road-related harm, it is important for academics and law enforcement officials to consider the benefits of Restorative Practice and how it may be applied to an area of business where it would not routinely be considered, and how it may assist in lowering the above numbers.

Educational inputs for traffic offences as an out of court disposal were first used with the introduction of the speed awareness course in 2007 (Ipsos MORI et al., 2018). This progressed over time, leading to the introduction of the National Driver Offender Retraining Scheme (NDORS), offering courses including speed awareness, motorway safety, and safe and considerate driving. The entitlement to a course is at the discretion of the Chief Constable of each geographical police force, and UK Road Offender Education (2021:5) state that ‘an offending motorist may be offered the opportunity to attend a course focussing on re-education designed to achieve greater compliance with Road Traffic Legislation .. The alternative is a fine and, where applicable, penalty points’. Ipsos MORI et al., (2018) identified that offenders attending a course were 23% less likely to offend again within six months which demonstrates that out of court disposals may be an effective resolution when dealing with traffic offences.

Though this is the modern version of educational inputs for traffic offences, research has been conducted into their effectiveness for many years. Burgess and Webley (1999) highlight that early studies suggested that courses were ineffective in reducing future offending and collisions (Koppa and Banning, 1981; Lynn, 1982), though later research concluded the opposite, in fact, they were effective, and results showed a reduction in offences and collisions (Finigan 1995; Wark et al., 1997). It was concluded in their research that ‘attending [driver improvement] courses has a significant effect on changing clients attitudes and self-reported behaviour in the desired direction’ (Burgess and Webley, 1999:13)

Many of these courses, however, deal specifically with potential harm, rather than actual harm caused. An option available to police forces when dealing with road traffic collisions is a Safe and Considerate Driving course provided by the National Driver Offender Retraining Scheme. This is approved for use, where harm is caused but the standard of driving does not exceed an offence of Driving without Due Care and Attention. In England and Wales there are a number of offences that are catered for in statutory legislation, regarding harm caused by negligent driving. The Road Traffic Act (1988) allows for several driving standards offences to be prosecuted in criminal law (Lavanchy, 2021) This paper will consider offences whereby harm is caused: Causing serious injury by dangerous driving, Death by Dangerous Driving or Careless Driving, and Dangerous or Careless Driving alone (Road Traffic Act, 1988:Section 1-3). With educational courses only being offered for the lowest driving standard offences, it is important to consider if they could be used as part of a restorative approach to more serious offences.

Academics have identified that in Restorative Justice models, there is a focus on the consequence of an offence rather than the action behind it and legislation therefore forces resolution away from a restorative to a punitive model (Zehr, 2002). Maxwell and Morris (1999) highlighted that in the most serious of offending, victims may in fact benefit from alternative methods of approach. Johnstone (2011) identifies that response to a crime should not focus on what to be done punitively with the offender, rather focusses should be shifted to what support or intervention can be provided for the victim. Though the severity of an offence must not be ignored, if a victim receives a serious injury in an offence of Dangerous Driving, their voice cannot be heard and a mandatory prosecution begins. Pressley (2018) tweeted ‘the people closest to the pain, should be closest to the power’. 90% of victims when presented with a ‘choice between restorative justice and incarceration for the perpetrator, chose to work with the perpetrator’ (Common Justice, 2020 in: Hanak 2020). Not all victims, however, benefit from participating in restorative practices, with Daly (2006) identifying that victims with high levels of distress were often more negatively impacted after a restorative conference than before.

It is not just the victim, however, that is key in the success of Restorative Justice. McCold and Wachtel (2003) discuss primary and secondary stakeholders. Victims are of course primary, as they are often harmed physically through injury and are left emotionally distressed or at financial loss through lack of work following the incident. However, the offender is equally as primary. In order than at offender is rehabilitated, they must understand the consequences of their actions and take responsibility for the harm they have caused. Offences of causing harm by driving rarely involve an intention to cause such harm but are more reckless to the consequences of driving in that manner. Offenders when faced with victims in any restorative setting are afforded the opportunity to see the direct consequences.

Victims of road traffic offences often wish to participate in a restorative process as they hope to hear from the offender, which can cause a ‘more nuanced and human image of the person who caused the road crash. In many cases this is favourable for the healing process of all persons involved’ (Marit, 2018:9). This is, however, the case with many criminal offences, though there is substantially more research into Restorative Justice and criminal offending, than those of a traffic nature.

When considering the application of Restorative Justice to Roads Policing, it must be noted that often these offences are serious in nature and may regularly invoke a custodial sentence. If the offence involves death or serious injury, then the use of Restorative Justice may be questionable. Importantly, Elliot and Gordon (2013) note that just because a serious offence has been committed, that does not naturally lead to a conclusion that the perpetrator is a serious or dangerous offender. Many cases of road-related harm or death arise out of what would ordinarily be considered a low-level offence such as speeding, or distraction. A previously unconvicted person, who was rushing home after work, causing the death of another, though the offence itself has caused death, does not ordinarily result in them being considered a high-risk offender.

There have been several case studies, examining Restorative Justice, and its use in complex and serious cases, significantly in sexual and domestic violence, these have been shown to help identify benefits and limitations of Restorative Justice to the victims of serious crime (Walters, 2015; McGlynn et al., 2012; Miller and Iovanni, 2013). There will regularly be physical and mental trauma for victims that survive road harm, yet families of those killed then become an indirect victim. The ability to hold a Restorative Justice conference between victims (or their families) and offenders will often give victims the chance to ask questions of the offender, a desire that Van Camp and Wemmers (2013) found to be prominent in victims reasoning to take part in Restorative Justice. It is also important that victims see remorse in offenders, Rossner (2013:80) argues that ‘The acknowledgment of harm and the emotional responses this gives rise to is a key component of successful restorative dialogue’ (in Walters 2015). Victims, however, may not always get the closure they seek (Casey, 2011); after all, the victim may not get the answer, they have a predisposition to achieve. Walters (2015) further argues that in serious cases, Restorative Justice may also benefit the offender, with the generation of reforming emotions such as shame and guilt (Harris et al., 2004). These emotions can cause ‘genuine feelings of remorse, and in turn an offender who is more mindful of the consequences of his actions’ (ibid:1220). This is epitomised by Van Stokkom (2002:340) who states that ‘These interconnected emotional responses can give rise to a negative evaluation of the self that is painful in nature’. Negative emotions may provoke a response within an offender that will prevent recidivism and cease any future offending. When discussing Homicide cases (of which road death is categorised), Eschholz et al., (2003) states that homicide discussions focus on ‘retributive justice or deterrence’, though they research how Restorative Justice may supplement criminal proceedings. They interestingly discuss the impact of incarceration and punishment for serious offences on the offenders families. They state that ‘family members of offenders experience intense suffering, which is in many ways exacerbated by the criminal justice system and by their treatment within their communities’ (ibid:175). Their findings conclude that involving the families of offenders and victims, as well as the individuals themselves, together offer a reassuring response to the community, and provide an open forum for all parties to openly converse. Further, research suggests that family members from deceased people in any homicide case can significantly benefit from involvement with the Restorative Justice process, seeking to understand reasons for offending and allows for assistance in their processing of the death (Walters, 2015).

Conclusion

Johnstone (2013:14), whilst summarising Brathwaite (1999b), predicted that ‘gradually, Restorative Justice will become the presumptive disposition; prosecution, trial and punishment will become the exception, reserved for cases where Restorative Justice has repeatedly failed’. With this in mind, application in criminal setting is widely used, posing the argument as to why it is not more regularly used in a Roads Policing environment.

Death and Serious Harm is frequently caused on Britain’s roads, with over twenty five thousand cases in the year ending June 2020 (Haylock, 2021). Many of these incidents are caused by negligent or criminal driving offences that are standardised by prosecution, giving little scope for a voice of the victim or their families where somebody is killed or injured on the road. There is no doubt that such behaviour is serious in nature, especially those offences where the death is caused by driving that is categorised as dangerous. However, serious offences are not exempt from Restorative Justice practices. Research by Walters (2015) found that even in the most serious offences, Restorative Justice has a place in the rehabilitation of the offender and may help in easing the inescapable trauma left behind for victims and their families (Armour, 2002b).

Offenders who cause death and serious injury on the roads, face significantly less punitive punishment than their criminal counterpart. Though road death is categorised as Homicide, it is not prosecuted as such. A person who unlawfully kills in a criminal offence such as Murder or Manslaughter can expect a life sentence, though those who kill due to negligent driving face a maximum sentence of fourteen years imprisonment (Sentencing Council, 2021). Therefore, such offenders will be re-integrated to the community far more quickly, with an expectation by the community and the victim that they will have rehabilitated and will not go on to cause further road-related harm.

Roach (2017) identifies that there is a pattern of multiple and wider offending with many serious driving offenders, linking them to further criminality. There are several other pieces of academic research that concludes similar findings, suggesting that offenders who are disqualified from driving will continue to offend in this area, and are likely to be linked to other areas of criminality including violence (Broughton, 2007; Rose 2000; Willet, 1964) The purpose of the use of Restorative Justice in Roads Offending is largely however aimed at the needs of the victim (or their families), rather than the needs of the offender. Whilst the reduction of re-offending is highly desirable, it is important to note the purpose is to allow the victim or their family to engage, and to be part of a process whereby a punitive outcome is not the only option for them (Pressley, 2018; McCold and Wachtel, 2003; Maxwell and Morris (1999).

Ipsos MORI et al., (2018) found that those who attend educational inputs were up to 23% less likely to reoffend in relation to traffic offences. Further extensive research has shown that restorative practices work in preventing re-offending, although considering specific schemes. Shapland et al., (2008) found that offenders who participated in Restorative Justice committed statistically significantly fewer offences (in terms of reconvictions). Arguably, a combination of existing restorative practices, with victims and offenders meeting to discuss what happened, along with educational inputs on road harm, would cause a significantly lower rate of re-offending and could be used as an alternative to prosecution. Where those cases require a mandatory prosecution, such as those involving death, evidence supports the theory that Restorative Justice is equally as effective alongside prosecution (Eschholz et al., 2003).

Although not defined as such, Restorative Justice is arguably already used in low-level offending such as driving at excess speed. Whilst there is no victim involved in these offences, there is still a potential victim and only luck has prevented harm from occurring. Restorative Justice has also been extensively used in simple Roads Policing matters such as road rage offences (Liebmann 2018, in Gavrielides, 2018) yet, what remains untested is the use of Restorative Justice in road-related harm cases. Strang and Sherman (2015:2) are critical about the universal approach to Restorative Justice, identifying that there are a number of untested practices, with confusion as to which are supported in the criminal justice arena, with ‘serious risks of both direct and indirect harm in promoting—or even condoning—untested practices’. Though caution should be used when approaching road death and harm from a Restorative Justice perspective, evidence in this paper shows it may be of great benefit and could well be used to assist victims and their families with trauma management, but also in preventing re-offending, should the offender meet their victim face to face. There is some existing, though limited, evidence of the use of Restorative Justice in Roads Policing. Why-me (2021), a Restorative Justice charity, gave evidence of Restorative Justice alongside prosecution in a road-related death. Having lost her daughter in a death by dangerous driving case, the offender was sentenced to three years and nine months in prison. The victim stated that though she was happy the offender was imprisoned, she still had questions that needed answering. The victim attended the prison where the offender was held for a Restorative Justice conference. Before the meeting, she stated that ‘Losing her so suddenly had wrecked all our lives and I wanted him to know how we all felt’, she then stated that as soon as she saw him, she saw how remorseful the offender was, especially when he apologised. She left the conference stating ‘I’d had to process what happened as a terrible accident and I accepted that he had not set out that night to kill my daughter’. (‘Kate’, Why-me, 2021).

Restorative Justice is widely used in out of court resolutions, and more regularly alongside criminal prosecutions. Evidence shows the success of Restorative Justice, and some practices are already in use to combat road harm. These however are only used in low-level cases, where there is only a potential victim and harm has not yet been caused. This paper argues that when serious harm or death occurs as a result of negligent or criminal driving, Restorative Justice should not be discounted; arguably, it should be used more regularly. There is often severe trauma left behind from collisions, whereby victims, communities and offenders have a common goal in rehabilitation and the healing of the pain left behind. Further research and application will assist in combatting the points raised by Strang and Sherman (2015), though they are only valid concerns in these cases due to the infrequency of the use of Restorative Justice in Roads Policing. Government and Policing organisations should seek to explore the lack of engagement with RJ in Roads Policing, bringing such practices into sentencing or policing guidelines.

Footnotes

Declaration of conflicting interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author(s) received no financial support for the research, authorship, and/or publication of this article.

ORCID iD

Andrew Lavanchy

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The police journal Restorative Justice in roads policing

Abstract

Keywords

Introduction

Literature review

Conclusion

Footnotes

Declaration of conflicting interests

Funding

ORCID iD

References