Felix | Forgive and forget? Impossible

The other day I was asked what and how and if the criminal law ever ‘did’ forgiveness. This got me thinking, particularly as we approach Christmas. There are a few extraordinary tales of the most incredible forgiveness – parents who have lost children in terrorist atrocities, as well as other victims of ?violent crime.

The criminal law does not ‘do’ forgiveness. The sentencing judge does not have any remit to allow him or herself to proffer forgiveness on behalf of the state and/or the victim. Indeed, ordinarily any semblance of forgiveness being taken into account is positively discouraged – especially in domestic violence cases when the victim often expresses her love and hope for the future with the very man who has inflicted such hurt and misery on her.

Often such statements urge and indeed beg that the court should not send the offender to prison, because he has promised to change and the victim forgives her abuser. The problem of course for the courts is that such special pleading cannot work, for what is the effect when it is absent? And nobody can truly assess the genuine motives behind such a statement – is it real or is there coercion?

Victim impact statements that are read out or are certainly read at the sentencing stage almost positively encourage retribution. I am not arguing against them because too often in the past the sentencing hearing tended to give the impression of focusing too much on the truly sorry defendant (in fact of course, only truly sorry because of the predicament the defendant is in, as opposed to genuine remorse). Now the victim impact statements are to address the psychological harm as well as the physical, which of course is to be acknowledged ?and considered.

Human impact

What is interesting is the element of restorative justice – when the offender comes face to face with his or her victim. This seems to have a far greater impact on the offender and seems to have some efficacy in providing a route away from re-offending. It’s far more harrowing perhaps to see the consequences of what you did; smashed up, tearful, painfully and vulnerably human, than just to think about yourself and whether the police are going to give your iPod back.

In court we all get desensitised to what has happened, what those words on the indictment really mean in terms of human impact. When reality hits home it may hit home for good.

The domestic violence programmes seem to be very successful – again, perhaps a measure of insight and awareness causes people to pull themselves up short on the next occasion. Drug rehab and other skills courses may also be efficacious. The one element that we know is not is prison, but custody has to have its place and long sentences are called for on occasions. But we should try to take a leaf out of the rehabilitation, indeed dare we see it as a form of forgiveness – by trying to get those in custody to learn, to get an education, to get help with counselling, addiction, literacy and numeracy. It was dispiriting to hear on the radio that the already paltry sum of cash given to newly released prisoners is to be withdrawn. What a false and tiny economy that is. How many released prisoners are going to have to offend just to get home or to buy themselves something to eat on their first day back on the outside? If that discharged prisoner is on a suspended sentence, let alone the licence provisions, how quickly will he be back at whatever it costs more a day than Eton to incarcerate him?

Prevention

We cannot do forgiveness in the courts partly because we are scared as a society of being seen to be soft. No centre-right newspaper – and therefore no political party – will tolerate it. We can perhaps try to do a bit more forgiveness by the back-door in terms of rehabilitation and reconciliation. That is where the non-custodial measures come in. But at the heart of it all is the effort that really needs to be made in preventing criminal behaviour in the first place.

Depressing again to read that gangs in London, currently decapitated by long sentences following the riots last year, are being lead by nine-year-olds.

So, deterence, protection, punishment, rehabilitation – the four principles of sentencing. None include forgiveness, unless we use rehabilitation to do so. In the end, as two Australian radio presenters know, the best thing is to try to look before we leap, or in criminal terms, not pick up the knife or succumb to drugs, but stay at school and learn to read and write.

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