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Privatised probation: is payment by results compatible with

restorative justice?
Dr. Martin WRIGHT30
The British government has announced a 'revolution' in rehabilitating offenders, to
tackle some of the problems which many of them face, but it omits one serious
disadvantage which many face: imprisonment itself. The article examines the
consultative document, a central feature of which is to privatise much of the
probation service on the basis of payment by results. It argues that the not-for-profit
sector will be at a disadvantage, and proposes a network of local voluntary
organizations, focused especially on restorative justice. The government is promoting
deferred sentences; a further step would be deferred prosecution. The
transformation should question the repeated emphasis on the ill-defined concept of
'punishment' (which is not as popular as often assumed), and replace it with
'consequences', which might also be unpleasant but would primarily be constructive
measures aimed both at reparation and rehabilitation.
We are accustomed to governments advocating a 'tough' criminal justice policy, so it
is welcome to see a document with 'rehabilitation' in the title, and to find that the
Ministry of Justice is leading a revolution.31 Should those working in the criminal
justice field join the uprising? This consultation paper begins with a ministerial
foreword drawing attention to the regrettably high level of re-offending, and
acknowledging the chaotic background with which many offenders have to contend.
The Secretary of State rightly stresses that prisoners released from short sentences
30

Dr. Martin Wright has been librarian at the Institute of Criminology, University of Cambridge;
director of the Howard League for Penal Reform; and policy officer for Victim Support. He is a senior
research fellow at the Faculty of Health and Life Sciences, De Montfort University, Leicester. He was
a founder member of the European Forum Restorative Justice and until 2006 a member of the board,
and until 2010 was a board member of the Restorative Justice Consortium and the Conflict Research
Society. He is a volunteer mediator with Lambeth Mediation Service in South London, and with
CALM Mediation Service in West London. Publications include Making good: prisons, punishment
and beyond (1982, reprinted 2008); Justice for victims and offenders: a restorative response to crime
(2nd ed. 1996); Restoring respect for justice (2nd ed. 2008) and Towards a restorative society (2010).
He is an honorary fellow of the Institute of Conflict Resolution, Sofia, and holds a diploma from the
Polish Centre for Mediation. In 2012 he received the European Forum's European Restorative Justice
Award.
Email: martinw@phonecoop.coop
31

This article is based on a response to the Ministry of Justice consultation: Transforming


rehabilitation: a revolution in the way we manage offenders. February 2013. Page references are to
this document unless otherwise stated.

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need support, and proposes to introduce a programme of mentors who will meet them
at the prison gate and have a package of supportive measures sorted out. The
document goes on to spell out the re-offending rates: 57.6% of offenders sentenced to
less than six months re-offend within one year, and 72.5% of all adults within five
years. 'It is clear that a fresh approach to rehabilitation is needed'. (p. 7)
Thus far there will be wide agreement. There is, however, one serious omission from
the list of factors conducive to re-offending: the unintended side-effects of
imprisonment itself. Official figures show that every time a person is sentenced to
imprisonment, the probability that he or she will reoffend is increased. For example,
among adult offenders sentenced in the first quarter of 2007, 25.2 per cent of those
with no previous custodial sentence re-offended. When they had one previous
custodial sentence, the proportion jumps to 40.3 per cent, with two previous, 48.9 per
cent, and so on until 76.4 per cent of those with 11 or more prison sentences offend
again. For juveniles, the rate jumps from 36.2 per cent with no previous custodial
sentence to 80.5 per cent with one previous and 89.1 per cent with more than six
previous custodial sentences (Answer by Maria Eagle to Parliamentary Question by
Rt Hon. Keith Hill MP, 29 October 2009, quoted in Wright 2010, p. 7).
This is not surprising, in the light of the known effects of imprisonment, highlighted
by the Prison Reform Trust from official sources and academic research in Bromley
Briefings Prison Factfile, November 2012. One in four men and half of all women on
remand receive no visits from their family. Many prisoners are held at some distance
from their homes: an average of 50 miles or more, and over 750 women more than
100 miles away (p. 27). 30% of boys and 47% of girls in custody reported having no
visits in the last month or never having had visits. The odds of re-offending were 39%
higher for prisoners who had not received visits compared to those who had (p. 29).
These factors are not due to the regime inside prisons (though that has good and bad
features) but to the fact of imprisonment. In addition, rehabilitative work in prison is
very limited: only about one fifth of prisoners with serious literacy or numeracy
needs enrol on a course that would help them (p. 62). The average working week in
prisons is about 12 hours (p. 65). Of course there are constructive programmes and
activities in prison as well, but not nearly enough, and there is no realistic prospect of
increasing them significantly. The question is, is this likely to motivate or even enable
people to avoid re-offending? It is much harder to provide the programmes in prison
than in the community, although admittedly prison puts more pressure on them to
attend.
Rehabilitation should mean motivating and enabling a person to change their life by
undoing the harmful influences that they have experienced previously. Too often it
has to begin by undoing the harmful influences of imprisonment itself.

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Reducing re-offending
Hence a major contribution to transforming rehabilitation and reducing re-offending
could be made by reducing the use of imprisonment. When politicians are asked
about this, they tend to claim that sentencing is a matter for the courts, not for them.
The consultative document states (twice) that 'It is for the courts to decide on a
sentence for an individual offender' (pp. 8, 30). But this is at best a half-truth. It is
also stated that 'The public sector probation service [i.e. what is left after
privatisation] will advise the court on sentencing, and will need a clear understanding
of what rehabilitative services providers can offer, and what sentence will best
facilitate these'. (p.22) Probation reports will not propose non-custodial measures and
courts cannot impose them if the facilities for overseeing them do not exist, and it is
politicians who decide what resources to allocate to them. As the House of Commons
Justice Committee (2011, p. 3) has said, 'It is unacceptable that sentencers hands are
tied by the unavailability of certain sentencing options because of inadequate
resources'. More will be said about this below. Also, laws made by politicians set
maximum sentences, which have an effect on the whole sentencing tariff; recently
they have set minimum sentences as well. ['Indeterminate sentences for public
protection' (i.e. other than life sentences) are fortunately no longer being imposed,
since 3 December 2012, but many prisoners are still serving IPPs.] Judges cannot
ignore the rhetoric of politicians and the popular media.
There is a lack of consistency in the approach to sentencing: it is assumed that if a
non-custodial sentence does not 'work' the next step should be a prison sentence; but
since prison sentences also have a high failure rate, it would be more logical in many
cases to argue for the improvement of non-custodial measures.
The government's proposals
Competing services in the community
The proposals are based on the theory that competition increases efficiency and
reduces costs. This assumption is questionable. The basis of the private sector is
primarily to make a profit by delivering a service which keeps costs to a minimum
while being good enough to meet certain criteria. There is an inevitable temptation to
'cut corners' in order to do so. The basis of the not-for-profit sector is primarily to
deliver the best possible service within the available budget. The primary motivation
is job satisfaction and even altruism, and there is no reason to believe that these are
less effective than financial incentives. If the work were outsourced by the probation
service, rather than by private-sector companies, both contractor and sub-contractors
would be working to similar, not conflicting, values. Of course voluntary
organizations should be run in a business-like way, but they should not be turned into
businesses, as is implied by terminology such as 'supply chain'.

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In recent years the probation services motto has changed from advise, assist and
befriend to enforcement, rehabilitation and public protection. Now not only is the
profit motive to be superimposed, but an organization with a tradition and ethos of
public service is to be parcelled out to a number of commercial organizations whose
primary concern is their balance sheet. It is possible that large not-for-profit
organizations will win some of the contracts, so that the results-based payments could
be recycled into the provision of more services, but all the signs are that large
commercial companies will win the contracts, as for example in New York, where it
is reported that Goldman Sachs is investing in a 'social service bond', called a Rikers
bond'. It will be guaranteed by Bloomberg Philanthropies, the philanthropic group of
the mayor of New York, which will back $7.2 million of the planned $9.6 million
investment. The four-year program, in which private non-profit groups will provide
education and intensive training and counselling to at-risk incarcerated youths, must
reduce the recidivism rate by at least 10 percent for Goldman to recoup the
investment. If the recidivism rate drops further, Goldman could reportedly profit up
to $2.1 million beyond its original investment. If the program fails to reduce
recidivism by 10 percent, Goldman could lose $2.4 million. (Goldman 2013). The
report does not mention whether the non-profit groups on whom the profit depends
will be adequately funded, or whether they will be able to preserve their ethos in the
face of commercial imperatives.
It is not clear why this is expected to bring improvements, when one after another we
have seen privatised services delivering massive failures, for example with school
examinations, court interpreter services, assessment for disability payments, and
security for the Olympic games. Indeed it is doubtful whether Transforming
rehabilitation should be called a consultation document at all, since the government
had already announced its intention of introducing payment by results in its Green
Paper Breaking the cycle two years previously (Ministry of Justice 2010, pp. 38-48).
Effective partnership working between providers and the public sector
Elsewhere the document refers to partnership, and it seems clear that partnership,
rather than competition, would be the better model for delivering a good service. It is
welcome that the document proposes to involve the voluntary and community sector
(VCS); but if the process is based on competition, voluntary organizations will be
forced to compete with each other instead of collaborating. They will also be in
competition with the private sector, which has far greater resources for drawing up
bids, but often little or no experience of delivering this specialized service. The term
'supply chain' implies that commercial organizations would sub-contract work to
local voluntary organizations. These would then be in a subordinate position,
depriving them of their autonomy and the willingness to experiment which are the
greatest strengths of the third sector. There have been instances where a commercial

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organization, having won a contract, poaches staff from voluntary organizations,


which weakens them and their ability to do their work.
In social programmes, success depends mainly on good relationships, and the major
expense will inevitably be staff. In commercial organizations, this will lead to
pressure to reduce staff, for example by increasing the number of people supervised
by one person, and/or reducing the amount of time spent with each client. There is
also pressure to reduce staff by using technological devices such as electronic tags,
combined with the threat of sanctions for any lapses. All these factors make it more
difficult to form good relationships. Also, the competitive model is based on the
assumption that failure to reach targets will result in the contract being transferred to
another provider, which means breaking off relationships and having to build new
ones.
Efficient structural design and integration with local partnerships
The ability of sentencers to select appropriate sentences depends on the availability of
suitable programmes in the community, as has been mentioned above. In the case of
restorative justice, this could be provided by a nationwide network of local voluntary
organizations, overseen by a national body to agree and maintain standards, covering
both the practice of individual facilitators and the governance of the organizations.
The national body would work in partnership with local probation services to
establish such services, and it would be a key performance indicator for the probation
service to ensure that there was one operating in their area.
Affording the reformed system
The earlier in the criminal justice process restorative justice is used, the greater the
saving of time and money. Hence the first gap in the provision of restorative justice is
at the pre-trial stage. It is open to the prosecutor to decide not to prosecute if the
defendant has put right the loss or harm that was caused, and in several countries the
main source of referral to restorative justice is the prosecution service. It is not
necessary for the accused to enter a full plea of guilt at this stage; in New Zealand
and several European countries it is only necessary that he 'does not deny' some
involvement. This course is obviously only open to the prosecutor if a mediation
service is available. Another possible method is referred to below.
In theory, facilitation could be done by probation or police officers, provided they
have received adequate training for this different way of working; but at a time of
cut-backs it is difficult to see how they could do it except at the expense of other
duties. The involvement of the VCS is desirable for its own sake, as part of
government policy, and has the additional advantage of low costs, since it relies
largely on volunteers.

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How would the proposals work?


Maximising the results from Government and public sector resources?
Given the need to reduce public expenditure, the most effective policy is not to
require cuts across-the-board, but to strengthen the more cost-effective services, to
enable reductions to be made in the more expensive ones. This could be done by
adapting the payment-by-results basis: specific community-based programmes would
receive funding dependent on achieving measurable results such as either a reduction
in the number of cases brought to court (which would result from either a reduction in
crime or an increase in diversion to community-based programmes); or a reduction in
the number of months' imprisonment imposed by the local court (which would result
in a reduction in the prison population). Programmes would be monitored to ensure
that the offenders referred to them were suitable, that victim satisfaction was
maintained, and that the local crime rate decreased, or at least did not increase.
Voluntary organizations in particular will be able to deliver a more effective service if
so much of their effort does not have to be devoted to fund-raising and tendering; this
is a form of bureaucracy, which the Ministry rightly wants to reduce (p.8).
Enhancing outcomes
Programmes should include a process for feedback of factors associated with crime to
the authorities associated with social policy. Restorative justice, with its nonadversarial method of dialogue, is especially suited to this. It also identifies the needs
of victims and offenders for services which are needed to assist their support and
rehabilitation. It should, therefore, be included in the list of requirements on p. 30
(para. 2).
Building new flexibility into the delivery of community orders
Restorative justice is especially suitable for this, because it involves victims and
offenders in agreeing the best way for the offender to make reparation; this will often
include taking part in a rehabilitative programme designed to reduce future criminal
behaviour.
The over-reach of the criminal justice system is not only expensive but actually
counterproductive. Criminal convictions have a stigmatizing effect which makes it
harder for offenders to 'go straight'; cases should therefore be diverted where criminal
prosecution is not essential. In New Zealand and several European countries a
substantial number of minor offences are diverted in this way. Restorative justice is
an effective way of doing so, because it is not a 'let-off': it makes more demands on
offenders than punishments do, in facing up to the effects of their actions on victims.

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This is an additional reason for establishing the local mediation services mentioned
above.
Would the payment structure improve performance?
The measurement of re-offending is complex, as the consultation document
recognises (pp. 17-18). A binary measure is unsatisfactory; a more realistic picture of
outcomes would require categories such as those used by Maxwell and Morris (2001,
p. 249): the persistent reconvicted, the improving reconvicted (offended for a time but
then stopped), the occasional reconvicted (2 to 5 offences), the once-only convicted,
and the not reconvicted. Failing that, at least there should be the distinction, used in
Ministry of Justice research, between preventing any reoffending and reducing the
number of re-offences (Bewley 2012, Shapland et al. 2011). It would be considerably
simpler and less expensive to use an indirect measurement of re-offending that was
directly linked to cost savings, such as a reduction in the number of cases coming to
court or a reduction in the number of months' imprisonment imposed, as proposed
above. These would be coupled with checks of the crime rate to ensure that the saving
in costs was not accompanied by an increase in crime.
Bureaucracy could be avoided in the voluntary sector by minimizing the time spent
on tendering and grant applications; in particular, when a contract was fulfilled
satisfactorily, it should be renewed without a repetition of the tendering process. This
would also assist in maintaining continuity of relationships.
Inspection should include regular meetings with managers, staff, victims and
offenders (and relatives or guardians in the case of juveniles), to assess whether the
programme was helpful in supporting victims, holding offenders to account, and
enabling them to fulfil their agreements, with a minimum of 'ticking boxes'.
The voluntary and community sector should receive assistance in applying for
contracts in its own right, and not be dependent on sub-contracts from commercial
organizations.
What legislative changes are needed?
Diversion by prosecutors to enable a restorative process to take place is already
possible under the Code for Crown Prosecutors (para. 5.10 h), but it would be
helpful if this was confirmed in statute. This has the advantage that the sanction for
non-compliance would be prosecution, rather than an additional penalty. The
principle of the Deferred Prosecution Agreement (DPA), contained in Schedule 16,
para. 5(3) of the Crime and Courts Bill, which is currently available only to a body
corporate, a partnership or an unincorporated association, could be appropriately
adapted to apply to individuals, as proposed by Lord Marks of Henley-on-Thames

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(Hansard [HL] 13 November 2012, col. 1479) and not ruled out by the Government.
The requirements that a DPA may impose include, for example:
 to compensate victims of the alleged offence;
 to donate money to a charity or other third party;
 to disgorge any profits from the alleged offence;
 to implement a compliance programme;
 to co-operate in any investigation related to the alleged offence;
 to pay any reasonable costs of the prosecutor.
The DPA may impose time limits for compliance. Defendants should not, however,
avoid prosecution solely because they pay compensation, as the Code rightly says.
The role of the residual probation service and the new Police and Crime
Commissioners
As proposed above, the probation service should be encouraged, through key
performance indicators, to promote the establishment of local services for the
delivery of restorative justice. The availability of restorative justice services should
also be one of the Commissioners' key performance indicators.
Maintaining standards
The Restorative Justice Council is already accrediting individual practitioners, and its
role should be expanded to include the promotion of local mediation services and
their accreditation and supervision, in partnership with the probation service. As
Baroness Linklater has said:
The proposal that [restorative justice] should be readily available to the
courts, victims and offenders is an enormously important move. It
represents the embodiment of the same principles of effective justice that
I have already discussed-namely awareness, knowledge, understanding
and meaningful engagement with the participants, particularly victims. I
have supported these principles and the work of the Restorative Justice
Council for years. I welcome these proposals as having the best possible
potential for enabling positive outcomes following the damage of crime.
However, she warned:
My caveat is that it will take a great deal of time and large investment to
provide adequate numbers of suitably trained and accredited facilitators,
who are the key to the process. Sentencers who would be initiating the
process currently have no established tradition in the use of RJ. They
would need training as well as convincing. The whole process will be
extremely complex and expensive, and it will be vital to ensure that the

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quality of delivery is of the best and not rolled out in a piecemeal fashion.
It would be a disaster if expectations were raised without adequate quality
delivery. That would destroy confidence and set the programme back for
a long time. The Government must clarify not only how much they are
planning to invest in training, promoting and delivery but the estimated
timescale for the rollout of RJ. I cannot imagine that it will become
widely let alone generally available for some considerable time, even
with the expert advice and support of the Restorative Justice Council and
other agencies. (Hansard [HL] 30 Oct 2012, Column 534-5)
Transforming rehabilitation
If rehabilitation is to be transformed, the emphasis needs to be changed. The attempt
to control behaviour by fear only works when the individual perceives a high risk of
being found out and not always then. It is also an unattractive basis for a society
based on mutual respect. Motivating people to behave by building on the individual's
self-worth and need to be valued is ultimately more effective, although initially it
may be more difficult. Control is obviously necessary, but the key words should be to
persuade and enable.
One important way of doing this is through restorative justice, which surprisingly is
not mentioned in the document. This is a way of encouraging empathy, although of
course it cannot guarantee it. It is not easy for the offender, but instead of pain
inflicted by the authorities, which makes the offender think of himself, he has to face
the painful realization that he has hurt someone else. It is a voluntary process (and
some offenders cannot face it, which contradicts the claim that it is not 'tough'
enough), but for those who do, and undertake to make reparation, they are more
likely to complete it because they have agreed to it.
Reparation is not limited to an apology or compensation: what many victims want
most is that the offender takes action that will make him less likely to offend again.
At this point there is a responsibility on the rest of the community to enable him to do
so. If he needs work skills, literacy or numeracy, or treatment for addiction, suitable
programmes need to be available. They will of course also be required in those cases
where a restorative conference is not possible, for example where the victim does not
choose to take part.
Is punishment the answer?
A re-think is needed of the assumption that punishment, in the sense of deliberate
infliction of pain, is effective in controlling behaviour or desired by a majority of the
public. An ICM survey of 1,085 victims of non-violent crime for the Ministry of
Justice (16 November 2007) found that although victims of non-violent crimes in the
UK want offenders to be punished, they do not believe that prison is always the

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answer. 81% would prefer an offender to receive an effective sentence rather than a
harsh one with nearly two thirds (63%) disagreeing that prison is always the best way
to punish someone. An overwhelming majority of respondents (94%) said the most
important thing to them was that the offender did not do it again, while fewer than
half placed punishment as the most important part of an offender's sentence (49%).
These findings support the view of eight in ten (81%) victims in the UK who would
be in favour of community sentences if they prevent an offender from reoffending.
And there is data to suggest that they do; evidence has found that offenders who
commenced a community sentence in the first quarter of 2004 had lower reoffending
rates than predicted (50.5% vs 54.1% respectively). 58% of victims agreed that it
would be harder for an offender to face up to their problems in the community than
receiving a short-term prison sentence.
The consultation document repeatedly uses the word 'punishment', and the Crime and
Courts Bill requires courts to include in community orders at least one requirement
imposed for the purpose of punishment. There is considerable evidence that
punishment per se often has a limited or short-term effect, and can be
counterproductive (Wright 2008, chapter 2); yet members of the public are
encouraged by some politicians and journalists to believe that punishment is an
appropriate response to crime.
The Bill contains no definition of punishment; members of the House of Lords have
pointed out in debates how unclear the word is. Many types of order could be
regarded as punishment, for example by requiring people to spend time in certain
ways. Ministry of Justice research (Bewley, 2012) at one point defines a 'punitive
requirement' as unpaid work or a curfew (p. ii), elsewhere as unpaid work, a curfew
(electronic monitoring), exclusion (from a particular street or shop), a prohibited
activity or a fine (p. 1). The research found that adding a punitive requirement
(unpaid work or a curfew) to a supervision requirement had no impact on the
likelihood that the offender re-offended, but reduced the number of re-offences
committed within one year by 8.1 per cent, most of this effect being due to the
curfew. Adding a punitive requirement to a supervision requirement plus a
programme requirement (such as anger management or substance relapse prevention)
reduced the number of re-offences within two years, but not by a statistically
significant amount. Adding punishment to other interventions made no statistically
significant difference. The research did not report the comparative effects of
requirements taken singly, e.g. punishment alone versus a programme alone. If the
punitive requirement was the starting point, it worked better when supervision or a
programme was added to it both of which are interventions requiring personal
contact and a relationship. It seems likely that the effect of the curfew was not so
much that it is punishment (i.e. unpleasant) as that it restricts a person's freedom to go
out and possibly get into trouble.

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Similarly, it is commonly assumed that the primary purpose of prisons is to punish


and that punishment will deter people from re-offending. But apart from physical
protection of the public, which applies only to the minority of very serious offenders,
the main preventive function of prison has to be motivating and encouraging
offenders to avoid crime after release; adding gratuitous unpleasantness to the regime
is likely to undermine this aim rather than assist it.
Conclusions
Public policy statements have to reassure the public by showing that firm action is
being taken against crime; but there is evidence that punishment in itself has at best a
limited effectiveness (see above, and Wright 2008, chapter 2) and that what the
public wants, more than punishment, is effective action. The discussion would be
clarified if the word 'punishment' were replaced by 'consequences', which sounds no
less firm, but avoids the implication that pain is being inflicted for its own sake. The
consequences might well be unpleasant, such as a requirement to spent time on a
programme or unpaid work, or attending a restorative meeting, and to that extent they
would be deterrents; but they would be imposed for a constructive purpose, not
because they were unpleasant. This would increase their chances of being complied
with, and of succeeding.
While offenders have responsibility for their acts, it needs to be remembered that
many of them act under the pressure of their circumstances, as the Secretary of State
rightly points out in his foreword (see also Maxwell and Morris 2001 and much
criminological research), and pressure from their peers (members of a gang or even
on occasion of a boardroom); a crime reduction policy must therefore focus on
reducing these pressures, as well as persuading and enabling offenders themselves to
live within the law.
References
Bewley, H. 2012, The effectiveness of different community order requirements for
offenders who received an OASys assessment. Ministry of Justice Research Series
17/12.
http://www.reuters.com/article/2012/08/02/us-usaGoldman,
2013

See:
philanthropy-socialimpactbonds-idUSBRE8711I420120802, accessed 8 April 2013.
House of Commons Justice Committee 2011, The role of the Probation Service,
Eighth Report of Session 201012, HC 519-I, The Stationery Office, London.
Maxwell, G. and Morris, A. 2001, Family group conferences and reoffending, in A.
Morris and G. Maxwell, eds Restorative justice for juveniles: conferencing, mediation
and circles, Hart Publishing, Oxford and Portland.

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Ministry of Justice 2010, Breaking the cycle: effective punishment, rehabilitation and
sentencing of offenders. Cm 7972, The Stationery Office, London.
Prison Reform Trust, November 2012, Bromley Briefings Prison Factfile, PRT,
London
Shapland, J., Robinson G. and Sorsby A. 2011, Restorative justice in practice:
evaluating what works for victims and offenders. Routledge, London.
Wright, M. 2008, Restoring respect for justice. Waterside Press, Hook, Hampshire.
Wright, M. 2010, Towards a restorative society: a problem-solving response to harm.
Restorative Justice Council, London.

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