Victim/offender mediation in the United Kingdom: legal background and practice

Paper to Seminar on Mediation between juvenile offenders and their victims, organized by the Council of Europe and the Ministry of Justice (Institute of Justice) of Poland, Popowo, near Warsaw, 22-24 October 1997.

i Published in Juvenile offender-victim mediation, ed. by Beata Czarnecka-Dzialuk and Dobrochna Wójcik. Warsaw: Oficyna Naukowa, 1999.

Introduction

The first formal programme for victim/offender mediation, established in Canada in 1974, was called a Victim/Offender Reconciliation Programme (VORP). From the start, victims were invited to be involved actively (but of course only if they wanted to). The belief was that victims would not only benefit materially, for example by receiving compensation from the offender, but would feel more satisfied because they had been able to tell the offender how they felt, ask questions, and possibly make a small contribution to persuading the offender to change his attitude.

In the two decades since then, problems have been raised and answered, some practices have been criticized, new methods developed, and research conducted; out of all this a theory is emerging, which has been given many names, but is perhaps most commonly called restorative justice. This maintains among other things that assisting the victim’s recovery should be a primary aim of the system; that offenders should be held accountable for the harm they have caused to the victim, but in a constructive way; that it is appropriate for victims to be involved in agreeing an action plan for the offender because it is reparation (but victims should not be involved in punishmentii ); the commun­ity should take part in this process and contribute to the necessary resources; and there should be feedback from the process to the agencies responsible for crime prevention. Unlike the conventional justice system, restorative justice regards the process as important in itself, and measures its success by the effect on the victim as well as on the offender; research has almost always found that a high percentage of victims and offenders felt that the process had been helpful and fair. Lower reconviction rates are not a primary aim; victim/offender mediation is regarded as successful if they remain the same, provided that victims feel satisfied and offenders consider that they have been fairly dealt with. There are other secondary aims such as saving the time of prosecutors and courts (and hence saving money), and dealing with cases more quickly.

An example of mediation in practice comes from Sheffield.

`Paul’ started experimenting with drugs when he was fifteen, and progressed to cannabis, LSD, Ecstasy, heroin and cocaine. He served several prison sentences for burglaries, and went through detoxification, rehabilitation programmes and methadone prescriptions. He suffered powerful withdrawal symptoms. The victim of one house burglary asked the victim/offender mediation service if he could meet Paul. Through this Paul learnt about the upset he had caused the victim and his family, and began to think about the effects of his actions on other people as well as himself. One of the mediators wrote afterwards: `It was quite a solemn moment when Robert and Paul sat down around the table. Robert spoke first and as he was telling Paul about the effects of the burglary on himself and his family, the atmosphere in the room seemed to change. I felt touched to feel a relationship being formed between these two people. Usually I am cynical but something really did happen on that day. Robert expressed the hope that Paul would get off drugs and stop burgling. Paul promised Robert in their agreement that he would attend a rehabilitation unit for his heroin addiction. Afterwards he wrote to say how glad he was that he had taken part in mediation.’

(Shortened from Sheffield, 1997)

The mediation service comments that seven years of drugs and crime cannot be undone by one meeting, but it gave Paul his first opportunity to accept responsibility for the damage he had done to a victim. The victim also felt that he had done what he could to motivate Paul.

This paper will begin by looking at the legislation relevant to restorative justice and victim/offender mediation in Britain, and the criminal procedure. Then it will consider aspects of current practice in different mediation services; and finally some points for consideration will be presented.

Legal background

Laws on victim/offender mediation in Britain are like snakes in Ireland: they do not exist. There are however some measures which are restorative for victims or offenders, but not both. The first to be introduced was compensation for victims of violent crimes (introduced without legislation in 1964, but not made statutory until the Criminal Injuries Compensation Act 1995, when the government of the day wished to change (and reduce) the compensation. Compensation orders (requiring offenders to pay to victims) were introduced in the Criminal Justice Act 1972; this Act also created community service orders, although it was not clear to what extent they were intended as reparation to the community, rehabilitation, punishment, or simply a way of persuading courts to pass fewer prison sentences. Another service that is restorative for victims is the independent organization Victim Support, which arranges for volunteers to contact victims of crime and campaigns for reforms of law and procedure (but not sentencing) on their behalf; this receives some government funding, but there is no legislation about it.

There is some restorative legislation for offenders, also, especially for juveniles: for example, the Children and Young Persons Act 1933 states that courts shall have regard to the welfare of the child or young person; and much of the work of the probation service is directed to helping offenders. In addition there are numerous independent organizations, large and small, to help offenders in the community, in prison, and after prison.

No British laws, however, are fully restorative, in the sense of promoting the well-being of both victims and offenders and encouraging them to discuss reparation together, in the manner of the original VORP.

Criminal procedure: the framework within which victim/offender mediation is practised

The English youth justice system

Children’s legislation in England and Wales is based on the principle that the welfare of the child is paramount; criminal legislation, however, has become more punitive in recent years. The new government, elected on 1 May 1997, is proposing new laws, which will be indicated below in square brackets [ ]. The intention is apparently to be firm but not necessarily harsh; for example young offenders will no longer be cautioned several times, but when they receive a Final Warning it will usually be accompanied by rehabilitative measures and reparation to victims.

The age of criminal responsibility in England is low, 10 years (in Scotland and Northern Ireland it is 8); children aged ten and under 14 are presumed to be doli incapax (incapable of evil), but if the prosecution can show that the child knew hisiii action to be seriously wrong, he can be convicted of a criminal offence. [The government proposes to abolish the presumption of doli incapax, that is, to presume that children aged 10-13 do know what is seriously wrong.]

The first decision when a child (aged 10-13) or young person (14-17) is suspected of committing a crime rests with the police; in many areas they are advised by a multi-agency group with a name such as `juvenile liaison bureau’. After interviewing the suspect, they may give the offender a formal caution, provided the offence is not too serious and he admits it. About 80% of offenders do not offend again after a caution. At present a young person can be cautioned more than once; but the use of cautions varies widely in different areas, and the previous government had, in response to political and media pressures, issued a circular recommending that an individual should be cautioned only once. [The present government proposes that the caution be re-named a `Police Reprimand’. A young person will only be reprimanded once; after that he will receive a Final Warning or be prosecuted. A second Final Warning could be issued if two or more years have elapsed since the first one. A Final Warning will normally be accompanied by other measures such as counselling, supervised activities, work to improve school performance, help for parents, and reparation to victims. Mediation UK proposes that victims and offenders could be involved, through mediation or conferencing, in discussing what these measures should be.]

If the offence is too serious for a caution the police ask the Crown Prosecution Service (CPS) to prosecute. Under its Code of Practice the CPS may decide to discontinue the case if there is not enough evidence or if prosecution would not be `in the public interest’, for example if the offence is very minor, or the offender has made reparation. There are however no arrangements to encourage reparation.

If the young offender is prosecuted and convicted in the Youth Court, the court can pass a sentence (normally after obtaining a Pre-Sentence Report), such as:

– a fine

– a compensation order

(the court must order fines and compensation to be paid by parents of under-16s unless this would be unreasonable in the circumstances, and may order this for 16- and 17-year olds)

– a supervision order (which may include conditions)

– secure training orders (age 12 to 14; not yet in force)

– detention in a young offender institution (minimum age 15)

For those aged 16 and 17, sentences may include:

– a probation order

– a community service order of 40 to 240 hours (for imprisonable offences only)

– a combination order (for those who need the help of a probation order and the punishment of a community service order, these can be combined. It is a sign of current thinking that community service orders are regarded as `punishment’, rather than as a way of making reparation to the community)

– a parental bind-over (the parents are `bound over’, i.e. required, to control their children and make sure that they comply with court orders; if they do not, they may have to pay up to £1 000)

– a curfew order

[The government proposes several new measures:

– a Reparation Order, involving for example an apology or community service

– a Parenting Order, offering parents help in learning how to control their children (with a possible fine of up to £1 000 for those who fail to attend; it is not yet clear who will provide this service)

– an Action Plan Order, which may combine for example making reparation, complying with educational arrangements, specified activities, and/or staying away from certain places.

– a Supervision Order, with more options than the existing one, such as reparation or community service.

Finally, the government proposes two measures for under 10s:

– a Child Safety Order, requiring children for example to be at home at specified times, attend school, and stay away from certain places.

– a Local Child Curfew, preventing children under 10 from being in a public place between certain times, unless accompanied by a responsible adult.]

Details of these proposals have not yet been made known, and are probably not yet complete at the time of writing. What is lacking in the proposals produced in September 1997, Tackling youth crime, is any indication of enlisting the voluntary co-operation of offenders and their parents before orders are imposed by courts and plans drawn up by social workers (in contrast to the spirit of the Scottish system described below). More than once this consultation document refers to seeking the views of victims about reparation (Home Office 1997). People with knowledge of mediation hope that opportunities will be provided for victims to meet offenders (or communicate indirectly), not only as a way of agreeing on the reparation, action plan or other measure, but also because of the value of the process of communication itself.

Scotland

In Scotland, which has a separate legal system, the procedure for juveniles under 16 is based on the Kilbrandon Report of 1964, which stressed that wherever possible at least one parent should attend the proceedings, to try to enlist their co-operation `in an atmosphere of full, free and unhurried discussion’, with the aim of adopting appropriate orders informally and by agreement in many cases. The case is referred firstly to an official known as a Reporter, who often takes no official action, but may give the parents advice or a warning, and may emphasize the possibility of putting right what the child has done, especially with regard to vandalism and thefts.

Secondly, the Reporter may refer cases to the Social Work department, to enable voluntary arrangements to be made. Thirdly, if he or she feels that compulsory measures are necessary, undisputed cases (about 95% of the total) may be referred to the Children’s Hearing, which the parents must attend. This is a Panel which tries to involve the child and parent(s) in a fair and frank discussion. In some cases the Hearing is probably the first occasion on which parents and children sit down and talk through their situation. The panel then decides on supervision (85% of cases) or `compulsory measures of care’, which may include being sent to an institution (summarized from Wright 1996: 39-40).

If the offence is very serious, or is denied, the case goes to the Sheriff Court; if proved, it may go to a Hearing, as above, or the sheriff may impose a sentence.

Practice

It is difficult to present a clear picture of current practice in Britain, because the services are so different. Some use victim/offender mediation, others conferencing, or both. Some are for juveniles, others for adults, or both. Some are managed by the probation service, others by the police, or independently. They have been described by Shadbolt (1994) and more recently but in less detail by Marshall (1996). Instead, I will select particular features of the various services, which may be relevant in other countries. These include the stage of the criminal justice system at which they operate, the mediation methods used, and the management structure. Finally I will put forward some points for consideration in the design of a victim/offender mediation service.

Mediation and criminal justice

The county of Northamptonshire provides examples of several relevant points. The Northamptonshire Diversion Unit operates at the beginning of the process: when the police have decided to caution the offender. The earlier in the criminal justice process a case is diverted to mediation, the more work it saves for prosecutors and courts; but this means that there is a ceiling on the seriousness of the cases diverted. This ceiling can however be quite high; most cases involve offences such as theft and criminal damage, but there are also some assaults and threats to kill. (In Austria offences by juveniles for which the maximum punishment is five years’ imprisonment can be referred for mediation, and in New Zealand, because the process is supervised by judges, all juvenile cases except homicide can be referred.)

Many mediation services have to work hard to maintain a flow of cases, but in Northamptonshire there is a Juvenile Liaison Bureau, supported by the county’s chief officers of Police, Education, Social Services, Youth Service and Probation. All cases are considered by a panel of the Bureau, which meets once or twice a week, with the result that substantial numbers are referred to the Diversion Unit: 1 226 in 1994/95. Several of the staff are seconded from these agencies for two or three years.

There is a question mark over the use of the word `diversion’ in this context, because it implies that the aim is to benefit the offender (by keeping him out of the criminal justice system) or the system (by reducing its workload) rather than the victim. One reparation service invites young offenders aged 10 to 16 to make reparation, as a means of diverting them out of the system. According to its guidelines it asks the offender and the social worker whether they think the proposed reparation is fair; in practice, however, victims are consulted, about 8 out of 10 accept reparation, and 6 out of 8 choose to meet the offender (Wiltshire 1997 and personal communication). Similarly, a service limited to juvenile offenders is not fully restorative, because it offers no benefit to the victims of adult offenders; but a start has to be made somewhere, and there are clearly advantages in working with juvenile offenders at first.

Thames Valley Police have developed four levels of cautioning: an Instant Caution, for minor offences; a Restorative Caution, after consulting the victim; a Restorative Conference, when the victim wishes, before the caution, to have a face-to-face meeting with the offender and the latter agrees; and a Community Conference, where victims can make a positive contribution to the outcome. In the large new town of Milton Keynes they have also developed the Retail Theft Initiative. Here the `victim’ is usually a large store, but the offender is invited to meet the human face of a manager, who explains the effect of shoplifting on management, employees, customers and suppliers: it is not a victimless crime. He or she will also emphasize the effects on the price of goods, the employment of local possibility, and the possibility of the shop closing. The meeting is voluntary, since it takes place after the decision to caution, but it is pointed out to offenders that taking part will help to reduce the risk that they will re-offend, and tackle some of the issues which led them to steal, such as pressure from peers or lack of recreational facilities. In this project the aim is not victims’ satisfaction but to reduce re-offending; this has fallen from 35% to 3% for first offenders, although offenders with criminal records continue to re-offend at a rate of more than 70% (McCulloch n.d.).

The next stage at which cases can be referred for mediation, is prosecution. For this our example comes from Scotland, because prosecutors in England have not yet made much use of it (in Northamptonshire, 95% of cases come from the police, 5% from prosecutors). Mediation services have been operated in different parts of Scotland by SACRO (the Scottish Association for the Care and Resettlement of Offenders), currently in Motherwell, near Glasgow, and Aberdeen, in the North West. Service to victims as well as to offen­ders is emphasised. Volunteer mediators are used, so as to involve the community; their mediation skills may also be useful to the community in other ways.

The model used is deferred prosecution. First a decision to prosecute must have been made. This excludes minor cases, and those where the evidence is not strong enough to secure a conviction. The cases referred include mainly theft, criminal damage, fraud, breach of the peace, and assault to injury (a Scottish term, roughly equivalent to Actual Bodily Harm in England). The minimum age for offenders is 16. Victims are approached first to ensure that there is no pressure on them from the accused to participate. The victim is under no obligation to meet the accused; agreements are often reached by shuttle negotiation, although this takes more mediators’ time, and research elsewhere suggests that face-to-face mediation leaves both parties more satisfied. A procedure has been agreed with the Procurators Fiscal (prosecutors):

Procurator Fiscal refers case to Mediation Service

Fiscal writes introductory letter to victim, outlining mediation and introducing the Service

Service writes its own letter to victim

Victim is visited, with no obligation to participate. The Service is described, mediation offered to victim.

If `No’, case is returned to Fiscal

If `Yes’, process is discussed thoroughly with victim; victim is re-assured that court can still impose sanction until an agreement is completed.

Fiscal is informed of victim’s decision.

The same procedure is followed with the accused: a letter from the Fiscal, a letter from the Service. If the accused accepts responsibility for the incident, is willing to settle through mediation, agrees to make reparation, and keeps the agreement so that the victim is satisfied, the settlement is reported to the Fiscal. Usually no further action is taken, although the Fiscal retains discretion to prosecute. Further details are given by Hastie (1996).

Examples of reparation agreements include:

Teaching children with learning difficulties to swim

Writing letters for senior citizens in homes, with physical handicaps

Baking for charities

Cleaning the banks of the river

Gardening for old age pensioners

Care and support for people with physical and mental disabilities

Help with nursery care in community centre

Taking part in workshops on alcohol-related offending.

This list is not complete, and it probably contains ideas which social workers on their own would not have thought of. Another way of making amends, which is very popular with victims, is improved behaviour by the accused; it may include seeking treatment for alcohol or drug abuse. Sometimes an agreement is drawn up in which the offender agrees not to harass the victim (and in some cases the victim also undertakes to stop behaviour which annoys the offender). The British government is at present proposing to make Orders for some of these things; those with experience of mediation believe that it is much better to encourage people to agree to do them, and that compulsion should be the last resort. In Northamptonshire, for example, only 3% of compensation agreed by victims and offenders in 1991 was written off; when compensation is ordered by the court the proportion is much higher.

The next point at which mediation can be considered is when the offender has pleaded Guilty and the court has remanded the case for pre-sentence reports. The procedure is similar to that described above, except that at this stage the case is in the hands of the probation service, not the prosecutor. Normally at most 28 days are allowed for pre-sentence reports, so it is difficult to arrange mediation unless the offender states before the trial that he will plead guilty, or the trial can be deferred. Another possibility is that the court can defer sentence, with the expectation that if reparation is completed the sentence will be a nominal one; this is a good incentive to complete the reparation, but is unpopular with courts because it requires an extra hearing. (Another possibility would be the American practice of `adjournment in contemplation of dismissal’.)

Finally, mediation can take place after sentence; and here it is being considered in conjunction with an interesting new development introduced in the Victim’s charter (1990; 2nd ed. 1996). The Charter (which does not have the force of law) stated that before a life-sentence prisoner was released, the probation service would, wherever possible, `get in touch with the victim, or victim’s family, to see if they do have anxieties about the offender’s release.’ If they do, restrictions may be imposed on where the prisoner works, lives or goes after release; but the date of release is not affected. Probation officers, accustomed to work with offenders, found this difficult. In West Yorkshire, however, a Mediation and Reparation Service had existed since 1985, and mediators have experience of working with both victims and offenders. They therefore undertake the work on behalf of the Probation Service. Although they do not suggest mediation, spontaneous requests for communication with the offender are received in a number of cases; victims request information, which helps them to come to terms with the crime (Johnston 1994).

Methods of victim/offender communication

There are four main methods of victim/offender communication: indirect mediation, direct mediation, conferencing, and groups. Many victims prefer indirect mediation: not to meet the offender but to communicate through a mediator acting as go-between, and it may be that mediation workers are not fully explaining the possible benefits, although research suggests that fewer victims are satisfied with this process. But it is a firm principle that mediators should respect victims’ wishes, and not tell them what’s good for them; so is the victim’s safety (and feeling of safety), which is stressed by several services. Another factor in to-day’s world is the use of drugs: there could be a risk that an offender who returns to the use of drugs might use knowledge about the victim gained during mediation (Wynne 1997).

Direct mediation brings victim and offender together in the presence of one or preferably two mediators. They should be specifically trained as mediators, and not rely on training in different disciplines such as psychology or social work; they should certainly not be involved in the same case in two different capacities, for example as probation officer and mediator (ISSP 1997: 19). Some are members of staff, but several mediation services (such as West Yorkshire and Aberdeen) prefer to recruit and train lay mediators who may have no previous qualifications but know the local community. In some services they are paid expenses only; in others they are paid a fee for each session. In at least one service, training local people in mediation skills is a primary aim (Maidstone 1997).

Conferencing is similar to direct mediation, except that the victim and offender are encouraged to bring members of their families, including extended families (aunts, grandparents, brothers, sisters) and other people who will support them. The project currently being established in Lambeth and Hackney, in London, will use conferencing or mediation, as appropriate. It has been found, especial­ly in Australia, that people from both `sides’ do not line up in an adversarial way; there is value in the offender’s acknowledgement of what he did, and the victim’s expression of his or her feelings. For some, this is enough; others can work together to find an action plan which will be satisfactory to the victim and enable the offender to work towards reintegration into the community.

The idea was originally called family group conferencing (FGC); it was deve­loped in New Zealand, drawing on Maori traditions. It was seen primarily as a welfare model, enabling the young person’s family to resolve their own prob­lems, rather than have solutions imposed on them by social workers; part of the process includes private time with no social worker present. When the young person has committed an offence against a victim, there has been a ten­den­cy to retain the welfare approach, leaving the victim on the margin of the process. Some services using FGCs invite victims or their representatives to state the impact of the crime, but not to join the offender and his family in for­mulating an action plan; this leaves out of consideration the possible benefit to the victim, and also the victim’s potential contribution to a good action plan. one of these services is being independently evaluated, but its criteria for success make no mention of the effect of the process on the victim (ISSP 1997: 33 and personal communication). Victim Support in that county is involved, however, and the Youth Service intends to develop a county-wide policy in the current year to ensure that victim care is an integral part of work with young offenders and to monitor the role of victims within the FGC.

In the New Zealand model the offender and his family propose an action plan, usually including reparation, and the victim has the right to refuse to accept it. This could be a difficult decision for the victim, because it would put on him or her the responsibility for the rejection of the plan; but it could be presented by the police officer. (In fact, in the small number of cases undertaken so far in Kent, some offenders have offered more than the victims wanted.) It seems preferable that all should take part in formulating the plan, and should share responsibility if they are unable to agree. If the family has other problems which do not concern the victim, a separate FGC could be held. To distinguish this welfare process from the method used when a victim is involved, it has been suggested that the latter should have a different name, such as victim/ offender conferencing (V/OC).

The last method can be (but seldom is) used in the large number of cases when no offender is convicted, and also when offenders wish to make amends but their victims do not wish to have communication with them. A group is formed of victims of a particular type of offence and offenders who have committed a similar offence. They can complete attitude questionnaires, take part in a structured discussion, and sometimes use role-plays in which the offender expresses the victim’s feelings, and vice versa. This method was used for a time in Rochester Young Offenders Institution, and found that victims became less angry and anxious, and were able to challenge offenders’ justifications for committing burglary (Launay, 1985, 1987; Launay and Murray 1989). There are currently proposals to include this method in the victim/offender mediation service being established in Waltham Forest, east London.

A five-year demonstration project is being planned in five prisons; it focuses on financially motivated criminals, including burglars, armed robbers, thieves, and drug dealers. It is not part of a mediation service, but will arrange victim/offender reconciliation where possible and this will be evaluated by comparison with matched controls. Otherwise the aim is not so much to assist individuals as to establish systems for doing so: rehabilitation programmes for these types of offender; improved training for bank staff in handling raids; and greater knowledge of how support can best be offered to victims after a raid. The project also hopes to show large cost savings through reduced re-offending and hence reduced imprisonment (Long Lartin 1997 and personal communi­cation). The initiative for the project came from a female employee of a bank who has experienced three robberies; she found a meeting with imprisoned robbers helpful and has been seconded by her employers as Victim Liaison Officer to develop it. This appears to be the only programme in Britain with built-in feedback, although it concentrates on preventing re-offending rather than on primary crime prevention. It also aims to improve the quality of life for the families of prisoners.

Points for consideration

The first essential as always is to be clear about the aim. Without a clear aim it will not be possible to train mediators well, nor to evaluate the programme. Good training, support, supervision and refresher courses for mediators are of course essential. The focus of restorative justice is on the victim and the community, as well as the offender. This means that the criterion for success is whether the victim has been helped; and it is therefore important that the process, as well as the outcome, is helpful. As regards the offender, the essential thing is that he recognizes the harmful effects of what he has done, and takes action to show that he regrets it and to make some form of reparation. He should be given the opportunity to do this voluntarily; insofar as requirements are placed upon him, these should be such as to encourage him to respect other members of the community. The community in turn should provide the resources to enable him to do so.

Some figures from recent research in two well-established victim/offender mediation services in England, in Leeds and Coventry, show how far the aims have been achieved (Umbreit and Roberts 1996). Of victims, 84% were satis­fied with the outcome of direct mediation, and 100% of offenders (admittedly on small samples; the figures for indirect mediation were slightly lower). Of victims who took part in mediation, 79% said they were satisfied with the just­ice system, compared with 55% in cases which did not go to mediation. After mediation, only 16% of victims expressed fear of re-victimization by the same offender; in no-mediation cases, the figure was twice as high. Not sur­pris­ingly, the great majority of victims taking part in mediation attached importance to the offender telling the victim what happened (93%), the victim telling the offender the effects (90%), receiving answers to questions (80%), receiving an apology (73%); only 65% stressed the importance of negotiating restitution. The same authors found broadly similar results in the USA and Canada.

After mediated cases 89% of offenders thought the justice system was fair, but only 56% in non-mediated cases. As for reconvictions, this study did not have a control group for comparison, but of the 54 offenders who took part in mediation in 1989 (excluding an additional 15 who were given prison sentences of 1 year or more), 57.4% had no further convictions after 2 years. Of the 29 who were reconvicted, 68% committed an offence of the same or less gravity.

In preparing this paper I have asked two groups for their ideas. Firstly, I asked the practitioners who helped me by providing information about their services to suggest one or more recommendations that they would make to people in a country where victim/offender mediation is being introduced for the first time. The following are the main points which they considered important. They may be divided into: the place of victim/offender mediation in the criminal justice system, its place in the community, and the mediation process.

Victim/offender mediation in the criminal justice system

The mediation service should represent the needs of both victims and offenders; it should be independent, not part of any one existing organization (two services made this point). People need to re-orient their thinking so that the starting point of the system is to resolve the offence from the victim’s point of view.

Several stressed the need for careful planning, to gain acceptance for the programme by all the criminal justice agencies, and to make sure that all their concerns are considered. It is especially important to involve the police and victims’ organizations, and to reassure them that there are adequate safeguards for victims. It needs to be presented to these agencies in a professional way. Police, courts, probation, social services, Victim Support, offender welfare organizations, need to work together to explore issues relevant to each group and to be clear what mediation can and cannot do. They should co-operate in facilitating the process, for example by providing information, names, addresses and so on to the mediation service.

Victim/offender mediation in the community

Local people should be involved as much as possible; the process should not be left only to criminal justice officials. The profile has to be raised by politicians; the Ministry of Justice at the highest level should issue directives. Attempts should be made locally and nationally to raise public awareness, so that mediation is understood and accepted as a reasonable way to resolve outstanding issues between victims and offenders. There is a need to foster a supportive learning environment that encourages problem-solving approaches and innovation.

The mediation process

No one should be coerced into mediation: it must remain a voluntary process. It should not be left to operate alone: other elements that reinforce offending behaviour should be addressed. In one project, for example, the main focus is on young offenders who steal cars, but victim/offender mediation is an important part of the programme.

Mediation requires a thorough and honest assessment of the monetary, emotion­al and social harm caused by the offence. It should build on a culture of mutual exchange and citizenship in which personal responsibility is encour­aged and the family is the normal group for the resolution of problems. Ideas of fairness, putting right of wrongs, repairing of damage are all basic ideas used within fami­lies as part of child-rearing, and is likely to be more effective as a means of resolving offences than the conventional criminal justice process.

Secondly, I put a similar question to an international study group on restorative justice. They were critical of the conventional system, which they saw as neg­lect­ing victims and even oppressing certain groups. Restorative justice, they said, individualizes the conflict, gives victims a voice, and enables victims and offenders to find their own solutions. It also frees prosecutors to devote more time to serious cases. The conventional system makes the offender defend him­self, which encourages him to deny responsibility, not accept it. Mediation makes the offender accept responsibility: he cannot `neutralize’ or deny the harm caused by his actions. It also gives the community a role in the process.

I will conclude by offering three points on the basis of my own experience. The first is the importance of high standards: deciding what they should be, and ensuring that mediation services uphold them. At the national level a group called Standards in Restorative Justiceiv has been formed in Britain to try to do so. At the local level it is useful to have a small group for policy and practice; its role is to consider new questions as they arise, and to agree how similar situations should be handled in future, in the light of the agreed principles of restorative justice. Perhaps international discussion of this question will soon be desirable.

The second is to stress that the process should aim to benefit the victim as well as the offender. The procedure should be designed so that there is no pressure on the victim to take part; if he or she does not want to, there should be other ways in which the offender can show his active regret, for example through community service. The word `process’ is important. There are three ways in which mediation can have a successful outcome: the communication between victim and offender can be valuable for its own sake; they may reach voluntary agreement about reparation; or their agreement may be made compulsory through an order of the court. The latter should not be presumed to be the best.

Thirdly, the relationship of victim/offender mediation to the conventional system needs to be watched constantly. Those accustomed to the old way of thinking may, perhaps unconsciously, impose their values on the new ones. One example is the way in which attempts have been made in England to regard community service orders as a punishment, rather than as a way of making amends. Another is the way in which the pressure for speedy justice limits the time available for mediation and reparation. Statistics should distinguish between courts which are slow, and those which deliberately delay cases to allow time for reparation. But there is a positive side to this: mediation and reparation can make life easier for criminal justice agencies, and they should be made aware of this. If a prosecutor defers prosecution to allow for mediation, he saves the work of presenting the case in court, and the public can see that the offender has not merely been `let off’. Court time is also saved, of course. For the probation and prison services this is a new way to help the offender to realize that he has not merely broken a law but has harmed someone. In some cases an addition to the prison population will be avoided. These are not the primary reasons for introducing victim/offender mediation, but they help to secure its acceptance.

The principal reason remains to help the victim to recover from the crime and to hold the offender accountable while enabling him to earn reintegration into the community.

NOTES

REFERENCES

Hastie, Keith (1996) SACRO Mediation and Reparation Project. S M R P, 18 Little Belmont Street, Aberdeen AB 10 1 JG.

Home Office (1997) Tackling youth crime: a consultation paper. London: Home Office.

Intensive Support and Supervision Programme (Persistent Young Offenders) (1997) Manual of guidance. Social Services Department, Kent County Council, Springfield, Maidstone ME 14 2 LW.

Johnston, Peter (1994) The Victim’s Charter (1990) and the release of life sentence prisoners: implications for probation service practice, values and

management. West Yorkshire Probation Service, The Basement, Oxford Place -Centre, Leeds LS 1 3 AX.

Launay, Gilles (1985) “Bringing victims and offenders together: a comparison of two models.” Howard Journal,24 (3), pp. 200-212.

Launay, Gilles (1987) `Victim/offender conciliation.’ In: Barry J McGurk, David M Thornton and Mark Williams, eds. Applying psychology to imprisonment: theory and practice. London: HMSO.

Launay, Gilles, and Peter Murray (1989). “Victim/offender groups.” In: Wright, M and B Galaway, ed. (1989) Mediation and criminal justice: victims, offenders and community. London: Sage.

Long Lartin Research Trust (1997) Financial offenders and victim support research programme … project proposal. Psychology Unit, HM Prison Long Lartin, South Littleton, Evesham, Wiltshire WR 11 5 TZ.

McCulloch, Helen (n.d.) Shop theft: improving the police response. (Crime De­tec­tion and Prevention Paper 76.) London: Home Office Police Research Group.

Maidstone Mediation Scheme (1997) Annual report 1977. Community Support Centre, Marsham Street, Maidstone, Kent ME 14 1 HH.

Marshall, Tony (1996) The evolution of restorative justice in Britain. PC-MP (96) 3. Strasbourg: Council of Europe.

Shadbolt, Maureen P (1994) An investigation of victim/offender mediation and reparation schemes in the United Kingdom. Winston Churchill Memorial Trust, PO Box 10-345, Wellington, NZ.

Sheffield Victim/Offender Mediation Project (1997) Annual report 1996-97. SV/OMP, 342 Glossop Road, Sheffield S 10 2 HW.

Umbreit, Mark, and Ann W Roberts (1966) Mediation of criminal conflict in England: an assessment of services in Coventry and Leeds. Centre for Restorative Justice and Mediation, School of Social Work, University of Minnesota, 386 McNeal Hall, 1985 Buford Avenue, St Paul MN 55108, USA

Wiltshire County Council. Social Services Department (1997) Reparation – home visit: briefing and guidelines. (YJ3) Juvenile Diversion Scheme, 21 Green Road, Upper Stratton, Swindon SN2 6JA.

Wright, Martin (1996) Justice for victims and offenders: a restorative response to crime. 2nd ed. Winchester: Waterside Press.

Wynne, Jean (1997) `Victim/offender mediation: direct or indirect mediation?’ In: Annual report 1996-7. West Yorkshire Probation Service, Victim/Offender Unit, The Basement, Oxford Place Centre, Leeds LS 1 3 AX.

Author’s address: 19 Hillside Road, London S W 2 3 HL, England.

c:RJWarsaw 16 October 1997

VICTIM/OFFENDER MEDIATION IN THE UNITED KINGDOM:

LEGAL BACKGROUND AND PRACTICE

Dr Martin Wright

Paper to Seminar on Mediation between juvenile offenders and their victims, organized by the Council of Europe and the Ministry of Justice (Institute of Justice) of Poland, Popowo, near Warsaw, 22-24 October 1997

C o n t e n t s

Introduction

Reasons for v/om

Legal background

1. Specific to v/om: none

2. restorative legislation:

CICA

Comp. orders

CSOs

3. framework within which v/om is practised

The English youth justice system

(Scotland)

Cautions

Prosecutor (fiscal)

power to discontinue (public interest)

Pre-sentence

Post-sentence

Pre-release

Practice

Northants: all cases screened

Lambeth/Hackney: v/om or conferencing

Leeds: pre-release

paid sessional workers

Scope for v/o m&c in existing and proposed legislation:

compensation orders

CSOs

Cautions

Final Warning

Reparation Order

Action Plan Order

Supervision Order

Local Child Curfew

Parenting order

Proposed legislation and opportunities for v/om

Points for consideration

Aims

victims

offenders

community

feedback

Standards

training (having clarified aims)

Dignan

independence

policy and practice process

record-keeping and monitoring

Safeguards

voluntariness

victims

offenders

grievance procedures (clients and staff)

evaluation: criteria

(see aims; the question of re-offending)

Developing the service

benefits for police, prosecutors, courts, prisons

numbers eligible

Recommendations from practitioners and K U Leuven international study group

i. I am grateful to Guy Masters for reading a draft of this paper and making valuable comments; and to all the victim/offender mediation services which sent information. This will be placed in the Library at Social Concern (see below, note 4).

ii. Punishment is here defined as the imposition of a sentence intended to be painful or unpleasant to the offender; it does not include rehabilitative or reparative sanctions.

iii. For simplicity offenders will be referred to as `he’, but female offenders are of course included.

iv. Standards in Restorative Justice, c/o Social Concern, Montague Chambers, Montague Place, London S E 1 9 DA.