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Repairing Harm, Rebuilding confidence and Reaching a Resolution: How Hate Crime Victims are Benefiting from Restorative Justice in the UK
Imagine that you were the victim of a hate crime. The crime was committed by an offender you have never spoken to directly, but you are familiar with, having regularly seen them in your community. Over the next days, weeks and months after the incident, what sort of emotions are you likely to be feeling? Angry? Scared? Shocked?
Research shows that it is likely to be a combination of all of those things and victim support groups believe that both victims and their families would require some form of emotional and practical support.
One way in way of dealing with the emotional harm that a victim may face is through a restorative justice(RJ) measure. Restorative Justice is a justice model based on conflict resolution and it aims to heal the harm caused by offending and create a dialogue between the stakeholders of a crime. Despite the various definitions that have been offered over the past years, RJ remains enigmatic and can be seen as ‘a concept, a theory, or a social movement’, depending on whom you ask..
It has however been used in hate crime cases to get the parties involved an incident – victim, offender, supporters from the wider community – to engage in a discussion of how the harm has impacted on them, break down stereotypes and reach a resolution to prevent any future incidents.
This will be used in the form of Victim-Offender Mediation (VOM) and Family Group Conferencing (FGC). Usually both will involve a face-to-face meeting between those affected in a safe and neutral environment – or indirectly – to discuss the incident, the harm and how it can be repaired. FGC will involve the wider community such as family, friends of the victim and offender, concerned community members and representatives of the state such as Housing officers, the police and social workers.
For the purpose of this piece, I will be focusing on racist hate crimes within England and Wales, which is defined by ACPO as any criminal offence that is perceived by the victim or another person as being motivated by hostility or prejudice based on the individual’s race or perceived race. This piece takes the view that RJ is having a positive impact on victim participants and will begin by highlighting studies that demonstrate the positive relationship between hate crime and RJ. I will then look at the criticisms of using restorative practices for victims of hate crime before discussing the main benefits of combining the two.
History of HC
Under the current law, hate crimes are offences motivated by hostility against another person based on a characteristic such as race, gender, sexual orientation, religion or gender identity. The offence can be motivated wholly or partly by this hostility when the membership to one of these groups is presumed by the offender. The definition is, as the Crown Prosecution Service intended, both broad and inclusive, allowing for virtually anyone to be the victim of a hate crime.
Offences based on this hostility are seen as aggravated offences, with a maximum penalty of up to 7 years imprisonment. However critics view this as special treatment rather than equal treatment, and the law itself has been described as an ‘Orwellian response to prejudice’.
Most hate crime thinkers would agree with Jacobs and Potter that the crime is less about hate and more about bias and prejudice. A fundamental part of hate crime is the notion that hate crimes hurt more, and Iganski bemoans the preoccupation of the media and current hate crime thinkers with extreme, dramatic violence rather then casual everyday offences.
I agree with this belief. The reality is that despite what we may watch or read, most hate crimes are not extreme, but are committed by ordinary members of the public.
Whilst we may be familiar with the more extreme forms of hate crime, such as physical assaults and arson, many hate crimes are lower level crimes, such as verbal abuse and harassment, which may appear less severe but is just as prevalent, if not more. Iganski states that what is really an alarming reality is that hate crime offenders are not ‘confined to the margins of society but mingled inside communities shared by their victims’. This is because many incidents are ‘committed by ordinary people in the context of their ordinary ‘everyday’ lives’.
There were 43,748 hate crimes recorded by the police in 2011/2012 and of these crimes, 82%, or 35,816 were for race hate crimes. Of these racist hate crimes, 85% were for violent offences against the person, 12% were for criminal damage and 3% for other offences such as burglary, theft and sexual offences.
The number of recorded hate crimes varies each year, so it cannot be said with certainty that there has been a consistent pattern. The ACPO recorded a total of 48,127 hate crimes in the year ending 2011, with 39,311 specifically racist crimes , which was up from the 44,361 hate crimes and 35,875 racist crimes recorded in 2010.
The media continues to raise awareness for hate crimes, having published interactive maps to highlight how the number of reported crimes vary across regions. Reports had also shown the highest amount of prosecutions for hate crime since records began, which reflected well of the Coalition Government as they released their latest plan to tackle hate crime, focused on challenging attitudes and increasing reporting amongst victims.
History of RJ
As Chakraborti highlights, a key feature of ‘post-Macpherson’ was to address the way hate crimes are reported and investigated by the police. Yet despite these good intentions, many victims feel disillusioned by the traditional criminal justice process.
RJ bridges this gap and helps promote the aforementioned Government aims of ‘challenging attitudes’ and improving the victim’s experience of justice, research shows us that this can be done. For example, with VOM, the mediation can occur at any time during the criminal justice process once it is deemed safe to do so.
Since RJ has become more widely known, it has been associated with a series of myths as Daly highlighted:
It is the opposite of retributive justice
It uses ingenuous justice practices and was the dominant form of pre-modern justice
It is a ‘care’ (or feminine) response to crime in comparison to a ‘justice’ (or masculine) response
It can be expected to produce major changes in people
BENEFITS: Studies of victim experiences/perspectives
The requirements of VOM are that both parties must be willing and prepared to take part; the expectations of each party are explored; the experience must be as positive as can be for all parties; and the safety of participants is not compromised.
Shenk identified three reasons why RJ and VOM is a useful response. Firstly hate crime offenders usually dehumanise their victims, through a technique of neutralisation, but meeting the victim allows them to understand the harm caused and see the victim as an individual, not just a faceless member of an outsider group. Gerstenfeld also supported the use of RJ to rehabilitate offenders through VOM since it gets all parties privy to the hate incident to engage in dialogue, in order to repair and reconcile.
Secondly, both parties are given an opportunity to discuss the incident and the emotional impact it has had, which is important in order the resolve the emotional effects of hate crime.
The typical VOM victim participant will feel less anxious, angry and fearful after engaging in direct or indirect communication with the offender. This is because the victim is getting across to the offender the consequence of their actions; how they felt and how they are feeling. This is therapeutic for the victim and rebuilds their self-esteem.
Thirdly, the experience of VOM can motivate future reporting of incidents and reduce re-offending by the perpetrator. Losel also noted that RJ can have a positive effect of recidivism when facilitated well and involves the affected parties. This is because an agreement is usually reached via a signed contract and there may even be a direct apology or apologetic gestures. These actions will give the victim confidence that the offence will not be repeated.
Hall adds two more benefits of using RJ to resolve the harms caused by hate crime, since mediation puts the victim at the centre of justice and empowers them to regain their self-esteem, and it can be used in conjunction with other punitive measures or by itself.
Of course the way in mediations are researched and arranged will vary depending on which party first proposition the meeting. A mediator would also look at the motives of the victim for seeking restorative meeting and ensure that their expectations of the meeting is not to unrealistic.
Walters and Hoyle see RJ potentially achieving the aims of healing communities and victims, challenging stereotypes regarding ethnic minorities and changing behaviours, mindsets and attitudes when facilitated well. The authors used case studies to show that RJ can only repair the harm caused by hate crime when facilitated correctly and their research proves that if parties are properly prepared for RJ interaction, and this interaction is led by a person of appropriate training, it can promote empathy, tolerance, understanding and acceptance.
RJ can also have positive effects on re-offending, but in order to discover the benefits, we must first seek to understand what good practice is. The Restorative Justice Consortium looked at various RJ practices across the globe and found one study in which 73% of offenders had not re-offended since mediation and had acknowledged that this was due to their participation in the programme.
Criticisms of RJ with HC:
The most obvious issue in regards to using RJ with hate crime is tackling the power imbalance between the parties. Remedi, a non-profit organisation that facilitates mediations, notes that mediations would not occur in many instances of violent crimes or harassment will not go through mediation because of the risk of repeat victimisation.
Sibbitt found that few probation officers had experience dealing with racist offenders, or even responding to racist language, which led to a range of logical or illogical reactions.
=this highlights the importance of having facilitators who are properly trained and aware of cultural/diversity differences in order to adequately tackle hate
It may be difficult to facilitate a dominant abuser and there are four reasons for this:
The offender may still be able to intimidate the victim in the presence of the mediator
The offender may not accept responsibility for the harm and victimisation
The offender may give non-genuine apologies, which results in secondary victimisation for the victim
The offender may use the meetings as an opportunity to reinforce their prejudice
The task for agencies is to choose a facilitator who has been properly trained, who will be able to lay down the restorative principles to encourage an environment of openness and respect, and challenge prejudice whilst maintaining their impartiality. Also, when dealing with members of the offender’s community who may reinforce hateful beliefs, the task for the facilitator is to carefully identify relevant third parties and ensure they too respect the restorative principles.
Since they are the closest individuals to the offender, their involvement in the RJ process is crucial in order to effectively rehabilitate the offender and their role cannot be ignored.
Another issue in regards to using RJ to deal with hate crime is whether it responds to hate offenders to changes their views, stop re-offending.
What makes a hate crime offender? These are offenders who have ‘a fully developed repertoire of stereotypes about the potential victim that are accompanied by deep-rooted prejudice’.
Sherman and Strang had found high levels of satisfaction reported amongst RJ participants and this was because it gave victims more information, reduced their feelings of anxiety and improved their understanding of why crimes were committed. However it is unclear how genuine the apologies were and whether re-offending was actually reduced.
Shapland also found that direct and indirect mediation lowered frequent re-offending, but did not significantly affect serious repeat offending.
The prejudice behind hate crime varies and is quite complex, so effective intervention will not be easy and RJ cannot be seen as a “panacea for hate offending”.
Another challenge is that due to the intricate nature of proving hate in court, many offenders will slip out of restorative interventions since their crimes will not be recognised as being based on hate. This means that court may only recognise overtly hateful behaviour but may fail to pick up on subtle offenders with underlying prejudice.
One common criticism of RJ is the inconsistency, as Ashworth argued is the result of a victim-centred approach where too much emphasis is placed on victims. Other critics look at its hard-to-measure subjectivity, the assumption of a great sense of community and the problematic implementation.
Victim Support highlighted some of the issues facing restorative practices which included:
Less than 1% of victims are offered a restorative approach
The type, quality and usage of the meetings are inconsistent
Some meetings are focused on ways of benefiting the offender
Another issue that they identified – which is of great importance to us as we look at the use of RJ with hate crimes – is that RJ is not “routinely” used in more serious crimes, despite being shown to be effective in this area. They discuss recommendations to resolve these problems, such as giving all victims the choice of a restorative approach and carrying out risk assessments and providing training for victim participants to ensure they will have a quality experience of the meeting. The key emphasis for Victim Support is on ‘quality’. Victims should be safe in a restorative programme and the programmes themselves should be given sufficient funding to be facilitated.
Benefits: of using RJ as an alternative form of justice for HC victims
Benefits for Victims
Daly stated that ‘conferencing, or any new justice practice, is not nirvana and ought not to be sold in those terms’, and although RJ practices are worth maintaining and clearly have many successes, we as advocates must be careful to not be too generalised.
VOM has the power to do both great good and great harm depending on facilitation. Victim Support Europe acknowledged that when considering VOM the benefits and risks should be balanced against each other. In regards to hate crime victims, VOM would seek to reinstate the victim’s autonomy but this must first be balanced against the victim’s reason for participating in a mediation and whether that in itself was an autonomous decision.
One study into RJ practice quoted the victim in this mediation having said:
“To meet him before his return to work was of benefit, but it also really helped my girlfriend because she was so shaken up by what happened. It helped us to hear his apology, because he meant it. I was able to put it behind me and get on without fear of what would happen if I bumped into him. I don’t have panic attacks any more.”
This quote illustrates what victims actually find attractive about RJ.
Victims like the fact they can get restitution. They like to be able to get closure on the incident and put the actual experience behind them. As the quote explains, victims are able to move forward without fear and this it seems can improve their physical wellbeing. When we consider the perceptions, expectations and experiences of victims, there is a general consensus that those who participate in restorative meetings tend to favour this style of justice.
It is paramount that the victim chooses what sort of approach they want to engage in, whether that will be a restorative conference, mediation or, if the offence involves a young offender, a Young Offender Panel meeting. They can also think about whether they would prefer direct reparation from the offender or if reparation should be made to the wider community.
The progress of a program in Ingatestone demonstrates how RJ practices can benefit victims who do choose to take part. The program received 510 referrals in its first year and dealt with 180 victims; 100% of these victims were satisfied with the RJ process and a third of them had participated in a direct mediation.
This shows clearly that victims prefer a restorative approach, and allowing them the freedom to choose the type of contact also increases their satisfaction.
RJ also offers a high quality service to participants, in terms of giving more respect and better communication. In regards to secondary victimisation, research that victims were not re-victimised during the process and did not feel forced into the RJ process.
Benefits for Offenders
It is interesting to see that the satisfaction of victim participants with restorative meetings has been found to be lower than offenders, which tends to be even higher.
The three main changes that Restorative Justice can have on the offender is getting them to admit to the offence, attempt to make amends and also take action to change their behaviour. Offenders can also have eye-opening experiences of RJ and the offender of the aforementioned victim was quoted as saying:
“I was very nervous but afterwards it was a huge weight off my shoulders…I reflected more on that meeting than on the whole of my time in prison. To hear their side of the story and look him in the eye was hard. My partner also told me how it had affected her and I hadn’t realised.”
Talk about the benefits this offers offenders
RJ simply is one way the offender can make reparation to the victim, and gives offenders the chance to understand the impact of the harm and try to restore some of that harm.
The US-based Victim-Offender Reconciliation Program (VORP) provides training and education on VOM. On of their specialities is dealing with the mediations for severely violent crimes, and they succinctly note the benefits of VOM for four vested bodies; the victim, the offender, the community and the Justice System.
Of course for the victim, there is the sense of closure, and the chance to hold the offender accountable for the crime, but another important factor is the “chance to get answers to questions that only the offender can answer”. I believe that these are the questions that are critical to a hate crime victim’s sense of closure. After being targeted for your perceived group identity, the victim will ask whether they brought the harm upon themselves with their way of dressing, language etc. The uncertainty regarding what caused the incident may cause a victim to code switch and adopt a new way of speaking or dressing.
For the offenders, mediation is a chance to understand the actual human consequences of the incident.
For the community, it can increase the belief in justice within the community and decrease the chance of repeat offending within the community.
For the actual Justice System, mediation can reduce the cost of dealing with offenders through traditional systems and increase public awareness of restorative measures.
When looking at the future impact of using RJ with hate crime, it is quite difficult to gauge public attitudes to RJ when in fact public knowledge of RJ is so low. On face value, we would expect members of the public to be apprehensive of non-traditional justice models, but in reality they tend to be receptive and welcoming of RJ options, once the aims have been thoroughly explained.
One factor that will help improve public attitudes of RJ is its cost. Research shows that for every £1 spent in RJ, the restorative process can create a saving of £9 for society, showing that it is a cost-effective option also.
Although many have criticised RJ for its inconsistency, I believe that this can be a benefit in regards to allowing flexibility in practice.
Of course a clear practice strategy needs to be introduced, and one recommendation was for the National Offender Management Service is to ensure that there is a national strategy to expand the use of RJ with offender both in prison and within local communities. The current issue is that the level of quality in a mediation varies depending on location and the agency that is in charge of RJ practices in that area and this leads to inequality and unfairness. However, the introduction on one standard RJ procedure would ensure that the RJ process is as equal as can be for participants.
How local authorities use mediation
A recent report by the HMCPSI looked at six different police forces and the way they used RJ in practice. There were variations regarding who could issue an RJ measure and also what the minimal level of resolution would be required, from there being no level to there being a direct or indirect apology. Half of the police forces operated with a ‘traffic light’ system in order to distinguish between the crimes that are precluded for restorative measures, allowed under a certain level of authority or allowed at an offer’s authority.
In a comprehensive study of victims and offenders who took part in either informal resolutions or restorative conferencing, the HMCPSI found that:
For victims, 85% were happy with the experience and 75% felt they had received either complete or “a lot” of the reparation.
For offenders, 91% of them described the process as fair, whilst 70% admitted that the experience did have a positive influence on their offending.
When comparing RJ to police cautions, of the 630 officers that were interviewed, 73% said RJ practices were more effective at improving victim satisfaction and 53% believed they were more effective at reducing Reoffending. There may be a fear that some offenders are pressured into RJ, but the HMCPSI found that the meetings that took place between victims and prisoners or young offenders were completely voluntary.
More needs to be done to raise the profile of hate crime in general. As a recent study found, there is a desire amongst hate crime victims to raise awareness of their victimisation and send a message out to the public that such treatment is both morally and legally wrong.
I believe RJ can be hugely beneficial, and there are some factors that dictate how effective RJ it can be, such as; the way meetings are managed; the way facilitators are trained; the way the RJ process is explained to victims, their expectations are discussed and they are prepared and prepped for the meetings; and the way cases are followed up and contact is made to participants in a timely way
Research continues to show very high levels of satisfaction amongst RJ participant, with 85% described as feeling satisfied and nearly 90% of victims who would recommend the process to a friend. Not only this, but for those victims who participate in the process, they are more likely to feel that they have been treated fairly,
RJ works to reduce anger, fear and anxiety, and has also been found to alleviate the symptoms of post-traumatic stress.
As Walters and Hoyle (2010) found RJ offers benefits for all parties – victim, offender and communities – but giving an insight into the consequence of the harm and better understanding of other identities
-effective facilitation can equate to mutual understanding and respect
=“RJ may provide a propitious mechanism for members of our increasingly multicultural communities to find resolution to hate-motivated conflict”.
 Victim Support. Hate Crime. Available from, http://www.victimsupport.org.uk/Help-for-victims/Different-types-of-crime/Hate-crime [Date Accessed: 10th May 2013]
 Cohen, R. (2001) ‘Provocations of Restorative Justice‘. Social Justice Research Vol. 14, No. 2 pp.209-232
 Kent Police. Hate Crime – Report it. Available from, http://www.kent.police.uk/contact_us/hate_crime/hate.html [Accessed on: 30th March 2013]
 The Crime and Disorder Act 1998 (2)
 CPS. Hate Crime. Available from, http://www.cps.gov.uk/news/fact_sheets/hate_crime/ [Accessed on: 30th March 2013]
 Phillips, M. (2002) Hate Crime: The Orwellian Response to Hate Crime, in Iganski, P. (2002) The Hate Debate: Should Hate Be Punished as a Crime (Profile, London)
 Jacobs and Potter (1998) pg 11
 Iganski, P. (2008) Hate Crime and the City (Policy Press, Bristol)
 Op cit pg 39
 Op cit pg 42
 Home Office (2012) Hate Crimes, England and Wales 2011 to2012. Available from, https://www.gov.uk/government/publications/hate-crimes-england-and-wales-2011-to-2012–2/hate-crimes-england-and-wales-2011-to-2012 [Accessed on: 29th April 2013]
 ACPO. ACPO Hate Crime Data 2011. Available from, http://www.report-it.org.uk/files/final_acpo_hate_crime_data_2011_(revised_oct_2011)_1.pdf [Accessed on: 30th April 2013]
 The Guardian. The hate crime map of England and Wales (14th September 2012) Available from, http://www.guardian.co.uk/news/datablog/interactive/2012/sep/13/hate-crime-map-england-wales [Accessed on: 30th March 2013]
 Home Office (2012) ‘Challenge it, report it, stop it’ – a plan to tackle hate crime (10th April 2013) Available from, https://www.gov.uk/government/news/challenge-it-report-it-stop-it-a-plan-to-tackle-hate-crime [Accessed on: 30th April 2013]
 Chakraborti, N. (2009) ‘A Glass Half Full? Assessing Progress in the Policing of Hate Crime’Policing: A Journal of Policy and Practice Vol.3 (2) pp.1-8
 Daly, K. (2010) Restorative Justice: The Real Story, in Hoyle, C. (2010) Restorative Justice: Critical Concepts in Criminology (Routledge, Oxon)
 Shenk, A. (2001) ‘Victim-Offender Mediation: The Road to Repairing Hate Crime Injustice’ Ohio State Journal on Dispute Resolution Vol.17 pp.185-217
 Gerstenfeld , P. (2004) Hate Crimes: Causes, Controls, and Controversies (SAGE, London)
 Losel, F. (2012) ‘Offender Treatment and Rehabilitation: What works?’ in Maguire, M., Morgan, R. and Reiner, R. The Oxford Handbook of Criminology (2012) (5th Ed.) (Oxford University Press, Oxford)
 Hall, S. (2005) Hate Crime (Willan Publishing, Devon)
 Walters, M., and Hoyle, C. (2010) ‘Healing harms and engendering tolerance: the promise of restorative justice for hate crime‘ in N. Chakraborti. (2010) (ed.) Hate Crime: Concepts, Policy, Future Directions (Willan Publishing, Devon)
 Restorative Justice Consortium (2006) The Positive Effect of Restorative Justice on Re-offending (Restorative Justice Consortium, London)
 Ibid pg 11
 Sibbitt, R. (1997) The Perpetrators of Racial Harassment and Racial Violence. Home Office Research Study 176 (Home Office, London)
 Craig-Henderson, K. (2009) ‘Victim Services and Counseling for Victims and Communities That Experience Hate Crime‘ in Perry, B. (2009) Hate Crimes Volume 5: Responding to Hate Crime (Praeger, Connecticut)
 Sherman, L. and Strang, H. (2007) Restorative Justice: the evidence. Available from, http://www.sas.upenn.edu/jerrylee/RJ_full_report.pdf [Accessed on: 30th March 2013]
 Shapland , J. et al (2008) ‘Does Restorative Justice Affect Reconviction?’ Available from, http://www.justice.gov.uk/restorative-justice-report_06-08.pdf [Accessed on: 30th March 2013]
 Op cit pp.219-223
Ashworth, A. (2002) ‘Responsibilities, Rights and Restorative Justice‘ (2002) British Journal of Criminology Vol 42(3) pp.578-593
 Victim Support (2011) Restorative Justice: Policy Position Statement. Available from, http://www.victimsupport.org.uk/~/media/Files/Policy%20and%20research/Position%20statements/PPS%20-%20RJ%20revised.ashx [Date Accessed: 10th May 2013]
 Ibid Victim Support (2011) pg 1
 Op cit Victim Support (2011) pg 2
 Op cit pg 301
 Victim Support Europe (2003) Statement on the position of the victim within the process of mediation. Available from, http://d19ylpo4aovc7m.cloudfront.net/fileadmin/howard_league/user/pdf/Commission/Mediation_VS_Europe.pdf [Date Accessed: 10th May 2013]
 Op cit pg 25
 Op cit Victim Support (2011) pg 2
 Shapland et al. (2011) Restorative Justice in Practice: Evaluating what works for victims and offenders (Routledge, Oxon)
 Ibid pg 144
 Wemmers, J. and Canuto, M. (2002) Victims Experiences With, Expectations and Perceptions of Restorative Justice: A Critical Review of the Literature (Department of Justice Canada, Montreal)
 Victim Support. Restorative Justice. Available from, http://www.victimsupport.org.uk/Help-for-victims/The-criminal-justice-system/Restorative-justice [Date Accessed: 10th May 2013]
 Op cit pg 25
 Victim Support (2010) Victims’ Justice? What victims and witnesses really want from sentencing? (Victim Support, London)
 Ibid at para 1 p.4
 Robert, J. and Hough, M. (2005) Understanding Public Attitudes to Criminal Justice (OUP, Berkshire)
 Shapland, J et al. (2008) ‘Does restorative justice affect reconviction?’ (Ministry of Justice, London)
 HMCPSI (2012) Facing up to Offending: Use of Restorative Justice in the criminal justice system. A joint thematic inspection by the HMIC, HMI Probation, HMI Prisons and the HMCPSI. Available from, http://www.hmcpsi.gov.uk/documents/reports/CJJI_THM/VWEX/RJ_CJJI_rpt_Sept12.pdf [Date Accessed: 10th May 2013]
 Op cit pg 18 & 19 Figure 2
 Op cit pg 32, Figure 4
 Op cit pg 32, Figure 4
 Op cit pg 54 at para 4.15
 Victim Support (2006) Crime and Prejudice: the support needs of victims of hate crime: a research report (Victim Support, London)
 Sherman, L. and Strang, H. (2009) ‘Restorative justice as a psychological treatment: healing victims and reintegrating offenders’, in Towl, G. and Crichton, D. (2009) (eds.), Handbook of forensic psychology (Elsevier, Amsterdam)
 Umbriet, M et al. (2006) ‘Restorative justice dialogue: evidence-based practice’, Centre for Restorative Justice and Peacemaking. Available from, http://www.cehd.umn.edu/ssw/rjp/PDFs/RJ_Dialogue_Evidence-based_Practice_1-06.pdf [Date Accessed: 10th May 2013]
 Shapland, J et al. (2007) ‘Restorative justice: the views of victims and offenders. The third report from the evaluation of three schemes’ (Ministry of Justice, London)
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