The court as last resort: victim-sensitive, community-based responses to crime

The court as last resort: victim-sensitive, community-based
responses to crime
.
This is a pre-copy-editing, author-produced PDF of an article accepted for publication in British Journal of Criminology following peer review. The definitive publisher-authenticated version, British Journal of Criminology, 2002 42 (3) Summer (special issue on restorative justice), 654-667,  is available online.
Most of the first projects which developed into what is now commonly called
restorative justice had the word ‘victim’ in their name: in Canada and the United
States, for example, they were created in 1974 as Victim/Offender Reconciliation
Programs (VORPs). Many of them have adopted the word ‘mediation’ rather than
‘reconciliation’ or ‘reparation’, because a key concept is that the process, the
opportunity for interaction between victim and offender, is of primary importance;
but if the very name of the programme or the court order states the intended
outcome, the participants are not being empowered to work things out for
themselves. The word ‘restorative’ gained currency from about 1985, when it was
included in the title of a pamphlet by Howard Zehr (1985). It opens the way to a
broader concept; but it may also be partly responsible for the fact that some
developments have placed less emphasis (or none) on the involvement of the victim,
as will be seen below.
Some practitioners have continued to emphasize the importance of the victim and of
the process. The pioneering Leeds Reparation Project soon found that the process
was as important as the outcome, and changed its name to Leeds Mediation and
Reparation Service (Wynne 1996), and members of the European umbrella group
formed in December 2000 felt that the interaction between victim and offender was
so important and well accepted in several countries that it should be included in the
rather lengthy name, the European Forum for Victim/Offender Mediation and
Restorative Justice.
This article will focus particularly on what restorative justice theoretically offers to
victims; it will consider how these intentions are, or might be, incorporated in
current restorative justice practice, and will assess recent legislation in the United
Kingdom in that light. It will attempt to account for the discrepancies between the
ideal and the implementation, and finally will suggest an agenda for more victimsensitive
justice. The word ‘mediation’ will be used as a generic term to include
other methods, such as conferencing.
This discussion will focus mainly on those cases where there is an identifiable victim
(including employees of a victimized organization) who has suffered appreciable
loss or distress, and the offender is known; it needs to be remembered also that for
the majority of crimes the offender is never discovered. In others the victim has
suffered inconvenience rather than trauma, victim/offender contact is not possible or
appropriate, or there is no individual victim. In many cases the victim’s family also
suffers, or both parties have put themselves in the wrong (Young 2000). There are
also corporate victims and offenders. In such cases restorative principles will have
to be applied differently.
There are numerous definitions of restorative justice; with the development of the
concept, they now often include these features:
¨ concentrating on the harm rather than on the fact that a crime has been
committed;
¨ concentrating on the people harmed, who may include the offenders and
their families;
¨ making healing and reintegration, individual and social, the primary aims;
¨ recognizing the importance of the process of responding, because the
hoped-for outcome is not merely a tangible act such as reparation but a
satisfied victim and an offender who feels he or she has been treated fairly;
¨ involving the community in the response; and
¨ integrating the system so that, when victims and offenders in dialogue
uncover social, economic and political pressures towards crime, these can
be taken into account when drawing up a crime reduction strategy locally,
nationally, and ultimately globally (cf. YJB 2001: 11, item 11).
(Wright 1999a).
It is recognized that some practices are more restorative than others: a procedure is
restorative to some extent when it is supportive to victims (especially those whose
offenders are not known or do not agree to take part), for example through victim
support or criminal injuries compensation; or helps offenders to make a new start
through rehabilitative measures; or involves the community, especially as
volunteers. A fully restorative process would do all of these things, as well as
offering direct participation to victims and offenders.
Restorative justice has inevitably encountered difficulties in its relationship to the
conventional system when both are running alongside each other, and in convincing
those who are familiar with the existing mind-set and are apprehensive about
change. It has been subjected to much research, some of which sets criteria at least
as high as those applied to existing processes (see for example Umbreit 2001:
Appendix E). In making comparisons both the defects and the strengths of the
conventional system have to be borne in mind. One problem, for example, is that the
rules of evidence exclude what is not legally relevant, but victims need the truth to
be acknowledged, and the threat of punishment gives the offender an incentive to
deny or minimize what he has done. The threat of punishment also requires firm
safeguards against wrongful conviction; but these too can be an obstacle to
uncovering the truth. However, procedures will be needed when fully restorative
processes cannot be used for any reason; and the system, despite its serious
shortcomings, provides a basic method for trying to determine the facts when the
accused denies responsibility. It is getting better at looking after victims of crime
(though some attempts in this direction, such as victim statements, may be unable to
deliver the intended benefits, as will be seen later). In some cases courts will also
have to impose restriction or deprivation of liberty, but ways should be found to
make these measures as restorative as possible for victims and offenders.
What the restorative process offers to victims
The tone was set from the outset by the Columbus Night Prosecutor Program, started
in 1973, which held its sessions in the evening for the convenience of participants
(Palmer 1974). The victim’s perspective was stressed in an early article in the
Howard Journal (Wright 1977), and researchers also saw the importance of the
victim perspective in the new process, in evaluations of VORP for which the field
work was carried out in 1983 and 1984 (Coates and Gehm 1989), and of the Home
Office pilot projects in the mid-1980s by Marshall and Merry (1990). The first
major theoretical work, Howard Zehr’s Changing lenses (1990), described the
feelings victims often experience, such as fear and anger, and the way in which the
conventional system leaves them ‘peripheral to the justice process’ (ibid. p. 31)
before turning to offenders. Zehr describes the benefits as ‘healing’ (ibid.; ch. 10);
often there was already a relationship between victim and offender, but even if not,
the crime created one. If the victim is angry, knowing the person with whom they
are angry may represent some improvement, and may ‘lay the groundwork which is
necessary for a sense of recovery and closure’ (ibid. p. 189).
What are the benefits which victims are supposed to receive? A VORP training
manual in 1983 claimed that:
Victim benefits include:
¨ restitution in the form of labor or cash repayment for damages and losses
¼ ;
¨ opportunity to meet offenders in a setting where feelings and fears can be
vented and questions answered;
¨ opportunity to have a direct part in the settlement of the case;
¨ changed attitudes and the opportunity to offer forgiveness;
¨ opening the door for living together peacefully in the community
(PACT 1983)
An early book by Mark Umbreit expands on this, listing points which recur
frequently in the literature:
The victim gets the rare opportunity to confront the person who violated him
or her … to express feelings of frustration, hurt and even anger. The victim
may ask many practical questions. Why me? How did you get into my house?
were you stalking me for a number of months? Why did you have to destroy
my kid’s toys? Was there something I could have done to prevent you from
coming in?
(Umbreit 1985: 101-2, italics in original)
The expected benefits for victims are often indicated by researchers’ choice of
criteria. Umbreit and Roberts (1996), for example, investigated victims’ satisfaction
with the criminal justice system and with the outcome of mediation, their perception
that their participation in mediation was voluntary, reduced fear of revictimization,
and aspects of mediation which they felt to be important (telling the offender the
impact of the offence, receiving an apology, and negotiating restitution). Criteria for
victims in the RISE project in Canberra included similar points, and also indications
of the victim’s anger with the offender before and after the conference, and negative
ones such as feeling bitter with the way they were treated and ‘the [conference] made
me feel angry’ – which were experienced by a minority but not a negligible one
(quoted by Masters 2002: 60-61).
In Britain, the leading victims’ organization Victim Support has been cautious. It is
well aware of the way in which some victims are ignored or even re-victimized by
criminal justice processes (being kept waiting, given little information, or subjected
to bruising cross-examination: see for example Raine and Smith 1991, Cretney and
Davis 1995, Temkin 2000). It suggests however that ‘mediation should not be an
alternative to prosecution or sentencing, but it does meet some victims’ needs’, so ‘it
could be helpful to communicate with the person who has affected their life – in
some cases a long time after sentence, or possibly before the offender’s release’
(Victim Support 1995: 13). The organization described the development of
mediation programmes as ‘fraught with difficulties’, since ‘if suitable cases for
mediation are identified only when the offender, or more probably the court, has
expressed an interest, the victim could feel under pressure to co-operate with the
process, particularly if the alternative is that the offender will be prosecuted or
imprisoned’ (ibid. p. 9). It is also pointed out that victims may not want anything for
themselves, but, as concerned citizens, are often willing to take part in the hope of
influencing offenders ‘to help reform them and help them stop re-offending’ (Reeves
and Wright 1995: 84) for the offender’s own sake and the community’s. Some
victims are willing to take part because they feel social concern and desire to help
(Marshall and Merry 1990: 148-9, 168, 184-5) or believe they would keep the
offender from prosecution and prison (Miers et al. 2001: 33). It can commonly be
observed that people who have experienced a trauma want some action to be taken
to reduce the likelihood that others will suffer in a similar way; some even set up
organizations for the purpose, such as the Suzy Lamplugh Trust (promoting personal
safety) and the Zito Trust (supporting victims of mentally disturbed people for whom
care in the community was inadequate).
More recently, in guidance for its members, Victim Support has accepted that
Mediation and reparation, if done well, can be enormously beneficial to
victims. However, many victims (perhaps even most), may not want any
contact with the offender, whether face-to-face or through an intermediary.
For those who do, there must be adequate preparation, support and
debriefing; for those who do not – and may be feeling guilty or unsettled –
there must be adequate support.
(Victim Support 2000a: 2)
It also calls for ‘clarity’ in explaining the possible benefits: victims should not be
promised healing if the real primary aims are crime reduction and the re-education
of the offender (Reeves and Mulley 2000: 142-3). Most advocates of restorative
justice would probably agree, but would say that others, such as political policymakers
and conventional practitioners, have sometimes superimposed their own
priorities.
Restorative practice
How could the intention to help victims best be realized? It would depend firstly
on the structure, secondly on the actual mediating practice, and thirdly on the
arrangements for cases where mediation was not possible or appropriate.
Structures
Possible structures are listed by Johnstone (2002: 163-5). One of these, for
example, would be based on the idea of ‘civilizing’ justice, mooted since the
1970s and 1980s (for example by Hulsman 1976, 1986). If the victim knew the
identity of the offender, for example if the crime arose from a dispute, both might
consider it best to go to a community mediation service to resolve matters. Some
form of coercive power would be necessary when the accused would not take part,
and adjudication when he or she denied the act. Another would be ‘parallel but
interlinked tracks’ in which restorative justice was interdependent with the formal
system. This could be similar to the New Zealand system for juveniles.
The question whether mediation serves victims better when provided in-house by
statutory agencies such as the probation service or youth offending teams, or when
contracted out to voluntary agencies has not yet been resolved empirically. Home
Office researchers have made a preliminary comparison, without drawing a firm
conclusion. The in-house model is administratively simpler, but constrained by
the number of suitably trained staff. It can be argued that in-house services,
delivered by professionals, will be of a higher quality and will have better access
to decision-makers in the system who can refer an adequate caseload to them.
Conversely, most of the agencies in YOTs are accustomed to dealing with
offenders rather than victims, so there is a possibility that victims’ concerns may
receive insufficient attention. This happened at first in New Zealand (Morris et al.
1993), and Home Office researchers found some services where contact with
victims was not a high priority, to the extent that ‘there are serious doubts whether
they could reasonably be called restorative justice schemes at all’ (Miers et al.
2001: 2, 5). In some places there was even resistance among some YOT workers
to victim consultation (Holdaway et al. 2001: 87); in one sample, the victim was
consulted in only 56 per cent of cases with an identifiable victim (ibid. p. 97). It
also seems likely that if mediation is only part of a staff member’s responsibilities
it may take second place to their primary job. The outsourced (contracted out)
model can generate more innovative practices and involve the community better;
there have been problems in communication, though these should be resolvable in
time. A hybrid model, with a representative of the voluntary sector organization
working within the Youth Offending Team, appeared to overcome some of these
problems (ibid. p. 82-3). In any case victim support organizations should be
invited to take part in planning and managing the service.
Mediation practices
Good practice begins with the first contact with the victim, and problems begin
with its timing. Victims often experience a range of emotions, such as not
believing that a crime has been committed, shock, emotional violation, guilt, anger
and others, and while some may be able to get on with their lives immediately,
others can take weeks, months or years to begin to talk about the effects of the
crime (Victim Support 2000b: 4-6; see also Fattah 1991: 215, Ruback and
Thompson 2001). It is usually considered best, however, to deal with the offender
as soon as possible, and political demands have tended to give priority to this
imperative, although offenders too may take some time to come to terms with what
they have done. There have been complaints about victims being telephoned and
asked to make snap decisions (Holdaway et al. 2001: 88), but in the pilot projects
most victims (in a small sample) decided within a day or two (Miers et al. 2001:
32). Youth Justice Board guidance advises against contacting victims directly
from court and says that victims will usually be able to decide in two to three
weeks (YJB 2001: 9, 6). On the other hand, some victims criticized the length of
time taken to complete the process (Miers et al.: 81). It seems clear that victims
are entitled to have the procedure explained to them by suitably trained people,
and to decide without pressure, and the Data Protection Act should not be
interpreted in such a restrictive way as to prevent this (Holdaway et al. 2001: 36-7,
87).
As one would expect, the nature of the intervention affected victims’ perceptions.
More victims were satisfied after taking part in direct (face-to-face) mediation
than indirect (‘shuttle diplomacy), although in some places the majority choose the
latter (Marshall and Merry 1990: 243-4; Umbreit and Roberts 1996: 84). Victims
did not like ‘formulaic’, ‘too structured’ or ‘regimented’ procedures and in at least
one case there was a surprising departure from recommended practice (YJB 2001:
7) when a victim was asked to go to the offender’s house, which was
understandably ‘terrifying’ (Miers et al. 2001: 33-34).
Mediation should be voluntary, and pressure on victims to mediate has not often
been raised as a major concern. Although Reeves and Mulley (2000: 139) are
worried that victims ‘may feel guilty if they choose not to participate and yet
anxious if they do’, the American researchers Umbreit and Roberts (1996: 14-15,
27) found that most felt that participation was their choice, and wondered whether
English case management procedures are ‘too passive in terms of encouraging
participation in direct mediation, while still honoring the individual’s free choice’.
Procedures have been suggested to minimize any possible pressure. For example
if they do not participate, a willing offender should be able to make reparation to
the community instead, and should therefore know that he will be no worse off
because of the victim’s unwillingness. The final decision about whether to
proceed should rest with the mediation service, so that if it does not take place the
offender will know that the service, not the victim, is responsible. Victims should
of course be made aware of these safeguards; they should be told that they may
feel better and their point of view may influence the offender, but that there is no
guarantee of this (Wright 1999b).
Victim Support (2000a: 19) has noted that there has not been any comparative
research of the various models to see which produces the most victim satisfaction.
Nor have there been many studies of the effects of the quality of mediation. One
of these, by Daly (forthcoming), assessed youth justice conferences in South
Australia: about 50 per cent ended on a ‘high, positive note of repair and good
will’ (including 10 per cent with very good procedure and skilful co-ordination of
the conference), and 50 per cent did not (including 20 per cent mixed good-to-fair,
and 30 per cent fair-to-poor). As expected, those where the youth justice coordinators
managed the process well did significantly better, although the attitudes
that victims and offenders brought with them to the conference were also linked to
its success. Unlike many studies, this one interviewed victims again a year later;
by then, it found, highly rated conferences were associated with victims’ recovery
less strongly than before. They did influence victims’ attitudes towards offenders,
but a third of victims still thought their offender to be a ‘bad’ person. Daly makes
the point, however, that although improvement is possible, and highly rated
conferences do produce more restorative results than those with mixed-to-poor
ratings, there are limits to the attainability of good practice, to victims’ capacities
to see offenders in a positive light and to offenders’ capacities to feel sorry for
what they did and be affected by victims’ accounts of the incident. We are doing
restorative justice a disservice if we raise expectations of complete success. But
restorativists would maintain that using criteria of this kind is already closer to the
ideal than the conventional indicators. Reduced re-offending may well emerge as
a welcome side-effect: 8 to 12 months after the conference, young persons who
had participated in highly rated conferences were significantly less likely to be
known to re-offend.
Two questions go to the heart of the implementation of restorative philosophy.
One is whether the victim and the offender should have an unconditional right to
agree on the outcome of their mediation. It appears that victims are generally
realistic, and even sympathetic, when agreeing to the amount of reparation an
offender should make. But if they seem to demand too much or too little of the
offender, should facilitators, or courts, intervene to try to persuade them to
reconsider, or even have power to veto an agreement that appears unreasonable?
On the face of it that would be disempowering to the participants. In the case of
Clotworthy described by Morris and Young (2000: 11-13) an offender agreed to
pay NZ$15,000 for his victim’s plastic surgery (the victim was not in favour of a
prison sentence because he himself had been to prison previously and considered
that ‘it did not do him much good’), but the New Zealand Court of Appeal
imposed a three-year prison sentence on grounds of consistency and deterrence
(Mason 2000: 5), which meant that the offender was able to pay only a third of the
amount. These examples suggest that the facilitator should (as in civil mediation
cases) be able to invite the parties to consider voluntarily whether their agreement
was realistic; and that courts should be able to modify agreements if these
appeared unfair or unrealistic, or to protect the public from a substantial risk of
repetition of a serious offence, but not on conventional retributive or deterrent
grounds.
The second question is whether the process is adequately resourced. If an offender
is to pay compensation to the victim, he needs to be able to earn the money; if he
has agreed with the victim to make reparation through community service or by
addressing (for example) his problem of violence or addiction, suitable resources
have to be available, otherwise the community cannot be said to have fulfilled its
part of the implicit bargain. The Youth Justice Board has stated that a wide
variety of reparation activities need to be available locally (YJB 2001: 9, 11 point
7). Funding for these programmes in England and Wales appears however to have
been uneven and insecure to say the least (Holdaway et al. 2001: 10, Miers et al.
2001: 2, 17-19, ch. 6, 79) and often inadequate, yet they have been evaluated as if
they were being compared on equal terms with securely funded conventional
measures. Some had to spend much time on fund-raising (Miers et al. 64) and one
was severely curtailed because of changed priorities in its parent probation service
(ibid. p. 27). For referral orders, also, there was a feeling among panel members
that the planning of suitable activities for young people was hindered by lack of
resources (Newburn et al. 2001a: 51-2, 2001b 81)
Where mediation is not possible or appropriate
There are of course a number of circumstances in which mediation is impossible
or inadvisable; can they be handled in a way that is at least partly restorative?
The commonest of course is that the offender is not known, in which case support
(and possibly compensation) should be offered to the victim; similarly if the
offender refuses to take part, or mediation is considered potentially harmful.
Victims should also be supported if they choose not to take part. In some cases a
mediation or conference could proceed with someone to represent them. Where
the offender has denied the alleged act, it will be necessary to try to make the
procedure more sensitive to victims’ feelings. If the court has considered it
necessary to imprison the offender (which in a restorative system would be only
for the protection of the public), procedures should be in place to enable the victim
to request a meeting with the offender. There have been a few instances of this in
the United Kingdom (see for example Moreland (2001), and a substantial number
in the United States (Umbreit 2001: ch. 13).
Recent legislation and practice in the United Kingdom
Victim/offender mediation has been operating on a small scale in the United
Kingdom under existing legislation since the mid-1980s (Marshall and Merry
1990, Wynne 1996), and restorative cautioning since the mid-1990s (see for
example Miers et al. 2001: 141). But restorative justice has come to prominence
with two recent Acts which have brought the phrase into common currency, even
though the practice does not always match the ideals of its exponents. Both Acts
refer only to juvenile offenders, thus excluding victims of offenders who happen
to have reached their eighteenth birthday, but this has been a feature in other
countries also (such as New Zealand and Austria), and like them, England and
Wales are considering extending it to adults.
The Crime and Disorder Act 1998 and accompanying Home Office guidance
require that before a court can make a reparation order it must obtain a written
report. The report writer ‘may wish to’ talk to the victim, and should indicate the
type of reparative activity or compensation which could be included in the order.
This should relate as closely as possible to the offence (Home Office 1998: paras.
3.1 – 3.3). The court should decide the duration of the order (up to 24 hours in
aggregate, proportionate to the offence) and the activity required (ibid. paras 3.10,
6.12; C&DA 1998, sec. 67). Some mediation services, however, have agreed
with their local courts that the court should make an ‘open-ended’ order, so that
the victim can be involved in a sensitive way in considering what form the
reparation should take (Holdaway et al. 2001: 28), but because of the way the
legislation is drafted, the Youth Justice Board has felt unable to recommend this
unequivocally (YJB 2001: 9).
These procedures mean that the reparative activity is discussed by the victim and
the report writer, not by the victim and the offender, and is ordered by the court.
The victim is invited to propose the reparation or compensation he or she would
like before having met the offender; but there is anecdotal evidence to suggest
that victims’ demands are often more sympathetic (and realistic) after a meeting.
Thus the C&DA does not encourage the victim’s empowerment through
participation: victim/offender mediation may form part of the sanction, rather than
part of the process of deciding what the sanction will be. Victim/offender
mediation is mentioned only as an option which may be included in the reparation
plan (Home Office 1998: para. 6.16). As for reparation, the notion that it should
be linked to the offence, although logical, does not include the other aspect: that it
should be ‘restorative’ for the offender, ‘to relate the reparative activities to the
offender’s skill or interests in order to foster a sense of achievement and “selfesteem”,’
(Holdaway et al. 2001: 92) and enable him or her to earn reacceptance
and respect.
The piloting and research were done under unsatisfactory conditions. The timescale
was short, some local records were incomplete or had been destroyed,
research results were required while some services were still too young to have
handled many cases. One was almost inactive owing to cuts in resources, and
none received Home Office funding during the period of the study. Thee was no
clear definition of restorative justice, and not all the services even offered
mediation. ‘Limited and/or reduced resources constituted a major obstacle to the
successful promotion of interventions for all the schemes’ (Miers et al. 2001:1-2,
19, 26).
The second piece of legislation is the Youth Justice and Criminal Evidence Act
1999. This provides for 10- to 17-year-olds appearing in court for the first time
and pleading guilty to be referred (by a ‘referral order’) to a youth offender panel.
This normally consists of a member of the youth offending team and two trained
lay members, One or both parents are expected to attend, and the offender can
nominate an adult to support her. The panel may also invite anyone else whom it
considers capable of exerting a good influence on the offender. The victim or a
representative of the community may be invited to attend, and the victim may
bring a supporter. Proceedings are informal. Referral orders are being piloted in
eleven areas, but, as with the Crime and Disorder Act, the government has not
waited for the final evaluation before announcing that the new measures are to be
introduced nationwide (on 1 April 2002).
The panels, which have similarities with those in Scotland, have several features
that could be called restorative, notably the victim’s involvement, and the presence
of supporters is reminiscent of family group conferences. But attendance for the
offender is not voluntary, there is no involvement of the extended family, and the
panel members are given the role of authority figures rather than facilitators. But
despite Home Office guidance stressing the importance of victims’ involvement,
and the fact that most panel members found it helpful when a victim was present
(Newburn et al. 2001b: 35, 78), victims were present in a mere 36 of 566 initial
panels studied (ibid. p. 19). Reasons for this include the tight time limits (15 days
for the initial panel meeting), the timing and location of meetings (not chosen for
the victim’s convenience), lack of staff training, victim awareness and
commitment, and unresolved concerns over data protection issues which
complicates the initial approach to victims (ibid. 39, 43-4).
Here too both the programme and the research were placed under severe
constraints by the timetable imposed, which had repercussions on the recruitment
and training of staff and panel members. The training was felt by some trainers to
give a weak emphasis to victims’ issues, and included only a limited mention of
restorative justice, except where the trainers were versed in its principles
(Newburn et al. 2001a: 10-12, 15-19).
One more innovation (introduced in October 2001) which is intended to be
restorative for victims is the victim personal statement (VPS). This is based on the
victim impact statement (VIS) now widely used in the United States and
elsewhere, but with substantial differences. The VIS is presented to the court
immediately before sentence is passed, and in some jurisdictions may include the
victim’s views on sentence. It is commonly described as ‘giving victims a voice’;
but Victim Support has criticized it on the grounds that for victims to make
statements which might influence the sentence could be burdensome or even
dangerous and, if their wishes appear to be ignored by the sentencing judge,
frustrating as well. The VPS is closer to Victim Support’s recommendations; it
enables the victim to provide, at an earlier stage, information relevant to bail
decisions or to any award of compensation, and to give the prosecutor information
which may be used to refute misleading statements made by the defence in
mitigation (Victim Support 1995: 16). It appears that VPSs have not had a great
influence on sentences (Erez 2000: 174); it is doubtful whether they should
‘influence decisions which are not appropriately theirs’ (Sanders et al. 2001: 458),
and if they did, it is doubtful whether that would aid victims’ recovery.
A second reason for VPSs is suggested by the researchers of the English pilot
schemes, which they call ‘catharsis’: that the act of making the statement could be
therapeutic for the victim. They have not been found to be very effective at this,
since in the pilot projects only about 30 per cent of victims chose to make one, and
of these only about one third said they felt better, and 18 per cent felt worse. The
researchers conclude that the scheme does not solve the inherent problems; for
example, VPSs will serve dual aims and will not solve the problem of the
‘marginalized’ victim, They therefore ‘want to advance victim satisfaction
through more effective means’ (ibid., p. 458, 455).
Proponents of restorative justice would agree. Their criticism of VPSs would be
on somewhat different grounds: that the formal, procedurally strict and often
intimidating atmosphere of the court room is not the place for the expression of
feelings, and that the statements are not addressed to the offender and do not allow
any question-and-answer to take place. The informal setting of a mediation or
conference is much more conducive to interaction on a human level, and allows
information which is humanly though not legally relevant to be talked about; in
addition offenders are more likely to fulfil their undertakings when these are made
voluntarily.
The ideal and the implementation: why the discrepancies?
The new legislation has opened the door for much greater awareness of the
victim’s perspective, and involvement of victims in the process, although this is
only beginning to happen on the ground. Its development has been hampered by
the fact that it is based on concepts which are either secondary to the ideal of
restorative justice, or even inimical to it. Firstly, the legislation defines the
principal aim of the youth justice system as ‘to prevent offending by children and
young persons’ (Crime and Disorder Act 1998, sec. 37). By implication this refers
to re-offending, because it is not appropriate for the youth justice system to
intervene in the lives of people who are not known to be, or accused of being,
offenders; and this is an advance, because it also implies that the primary
approach is based on something more constructive than general deterrence. But as
Dignan has argued, crime reduction is unlikely to be achieved by reforming the
criminal justice system: a more promising approach might be ‘the development
and pursuit of a social crime prevention strategy that does address the various
social, economic and cultural factors that are known to influence levels of
offending’ (Dignan 2001: 345).
Secondly, the concepts of restorative justice as they have been developed over the
past decade and more have not been understood by the legislators. The criminal
justice system remains the first resort, in which reparation appears to be seen as a
form of punishment, not as an alternative. There is little scope for offenders to
make amends voluntarily; the new system is still largely about courts making
orders. Victims have more of a role than before, but are still far from being
central; political commitments such as speeding up the youth justice system have
taken precedence.
Even on the political plane, the way in which these changes have been introduced
is surprising. Restorative justice is a radically new concept, which claims to show
concern for victims’ feelings, to hold offenders accountable, and to require them to
make amends – all apparently attractive from a political point of view. One might
therefore expect a prudent political response to be to do everything possible to
make it succeed, rather than introduce it in a hasty, risky way: to pilot it carefully
in a few places, allow enough time for training and teething troubles, and provide
adequate resources to give it a fair trial; after evaluation, using agreed criteria, it
could be gradually extended, with any necessary modifications, or rejected if it did
not fulfil its promise. There have indeed been pilot projects and evaluations, but
as we have seen the time, resources, training, and conceptual criteria have been
lacking, and before final research results were available tight deadlines were set
for the nationwide introduction of the new measures. There is thus no conclusive
answer to the question ‘Does restorative justice work?’ A number of concerns
were raised by community panel members in the pilot projects for referral orders,
and the comment of the researchers could probably apply equally to the Crime and
Disorder Act: ‘Nearly all the concerns … related to problems of implementation
rather than the general principles underlying referral orders’ (Newburn et al.
2001b: ix, 89).
An agenda for more victim-sensitive justice
Here then is a concept of a different way of responding when one person or group
harms another, and some attempts to put parts of it into practice. These fall well
short of the ideal, especially in the way they treat victims of crime. How could we
come closer to the restorative vision? Of course different people’s ideal versions
will vary, but proponents of restorative justice do share a core of principles; all
that can be done here is to offer one outline.
The first step would be to recognize that when an action can be labelled criminal,
criminal procedure is not necessarily the best way of handling it. This applies
particularly to those arising within relationships, or involving disputes. The
option of dealing with these by civil mediation should be considered. As Ruback
and Thompson have suggested, informal processing might make sense in cases in
which the victims engaged in some behaviour that suggests they were partly to
blame for the crime: police and prosecutors are likely to believe that criminal
prosecution may not be worth the resources, because juries may not convict and
judges may not sentence harshly. Fattah (1997) has argued that mediation and
restitution make more sense than criminal prosecution for cases like these (Ruback
and Thompson 2001: 201-2)
As for offences committed by strangers, they would be divided into three
categories of seriousness, as determined by the effect on the victim, rather than by
legal category. The least serious would be discontinued by the police or
prosecutor (depending on the legal system of the country concerned), with or
without a warning. More serious cases would be referred to mediation (or
conference) by the prosecutor, and discontinued if an agreement was reached and
kept. The most serious would go to court, but after the offender was found guilty
the court would refer the case to victim/offender mediation (rather than a presentence
report) to enable the victim and offender to communicate and to agree on
suitable reparation, subject to oversight by a court. Each of these stages would
requireand procedures when mediation was not possible, of which space does not
permit a description here; but the main principle would be that the victim would
be offered the chance to take part in the dialogue and to help to reach a restorative
outcome.
Safeguards would be necessary. The first would be a system to guarantee
adequate training in victim awareness and the principles of restorative justice, not
only for mediators but for all those involved in the administration of the system,
including lawyers, magistrates and judges. Firstly the question of legal
representation needs to be resolved. Practitioners of restorative justice are
resistant to the presence of lawyers, who are seen as likely to introduce
confrontation; in New Zealand, however, youth advocates are attached to courts
not to represent offenders but to advise them and facilitate the process (Akester
2000: 30). But although a mediation or conference is not a court, and therefore
may not be covered by international instruments such as the European Convention
on Human Rights, it can lead an offender to undertake a substantial commitment
(as in the Clotworthy case mentioned above), and he or she should be able to
obtain advice. Victims may also need advice, which in some countries is available
in courts, but not necessarily free of charge. In England and Wales there is little
prospect that the state would pay for two lawyers to be present at a conference;
but it might be thinkable to appoint an ‘amicus consilii’ to oversee the proceedings
on behalf of all concerned, more like a clerk to the lay magistrates than an
advocate. This ‘friend of the conference’ could be available to all participants for
information and guidance, and advise the facilitators if either party appeared to be
treated unfairly. As a further safeguards, the court would oversee the outcome of
the process and provide quality control, as in New Zealand (ibid. p.30).
Community involvement would also be desirable in various ways. Firstly, the
relatives and supporters of victims and offenders are themselves members of the
community. Secondly, facilitators can be drawn from the community (either as
volunteers or paid for each case); so can volunteers to support victims. This
would already help to increase the level of understanding of crime and associated
problems. Employers would be encouraged to provide work, to enable offenders
to earn money and pay compensation; a fund might be set up to pay the full
amount, as in Germany, so that the victim would receive it all at once, and the
offender could repay the fund in instalments (Wright 1988). Finally the
community, in the form of individuals, voluntary organizations and local
authorities, can use the knowledge gained from these processes to develop crime
reduction programmes such as mentoring, youth activities, skills training, support
for young people coming out of care facilities, and other ways to reduce the
pressures towards offending behaviour. In these ways the community’s response
to harmful acts could help not only to repair the harm but to make it less likely to
occur.
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BELFAST BJC 021.doc