Earlier chapters have cast doubt on the ability of adversarial justice systems, including that in operation in England and Wales, to arrive at the truth despite procedural rules and safeguards designed explicitly to facilitate factfinding by discriminating between probative evidence and evidence likely to lead to inappropriate (though not necessarily false) conclusions. There is frustration that the current rules can hamper the search for truth, as well as a realization that the supposed due process protections may be overstated or illusory. To some writers, though, the failure is more profound: despite vast expenditure on the apparatus of a justice system, few criminals are held to account and, even when a culprit is convicted, the trial process causes victim dissatisfaction and current forms of punishment seem more adept at entrenching criminal behaviour than aiding desistance (Mitchell et al, 2017; Ministry of Justice, 2019). As the factually guilty usually avoid detection (and hence possible prosecution, conviction and punishment), the truth only emerges sporadically and arbitrarily. Moreover, even if one could design a system which ensured that only the factually guilty were convicted, the penal response is unsatisfactory. Critics point to the mass of empirical evidence which demonstrates that those punished are seldom deterred by the experience (Nagin, 2013a, 2013b; Chalfin and McCrary, 2017).

This is an account of systemic failure. Consequently, it should come as no surprise that these critics advocate for a radical recasting of how society conceptualizes and reacts to harm and to those who cause it. Part of this critique, at both a macro and a micro level, is how an event should be constructed. Rather than an adversarial model, which presents two (or possibly more) rival accounts to the factfinder (see Chapters 6 and 7), the alternative model discussed in this chapter seeks an agreed truth. The primary motivation for moving towards a restorative model is the individual and societal harm caused by traditional criminal justice processes (the critique transcends individual jurisdictions and adversarial and inquisitorial models of justice), allied to their evident limitations as a means of reducing crime (Pali and Pelikan, 2014; Richards, 2014).