Restorative justice and the victim: the English experiences

Rev 16.6.2004

RESTORATIVE JUSTICE AND THE VICTIM

The English experiences

 Paper to seminar at École Nationale de la Magistrature, Paris, 6-7 May 2004. A version of this paper was published in International Perspectives in Victimology, 2(1), July 2006. The article had to be shortened for publication, and unfortunately some errors occurred during the editing process. This is the original text.

The recent history of restorative justice in England and Wales is of small experiments, a renaissance, a takeover by the government, and a struggle by those who believe in the concept to preserve its ideals. I will begin by giving a picture of the most widespread version of restorative justice as it operates in England and Wales at present. I will then say a word about the concept of ‘restorativeness’, and describe the development of restorative justice in England and Wales in the last four decades: compensation, Victim Support, victim/offender mediation, conferencing, and the most recent policy developments. After a word about what restorative justice needs, especially from the victim’s point of view, I will give short case histories to show to how the current version of restorative justice operates for juvenile offenders. Finally I will suggest how it could develop so as to bring the greatest benefits both to victims and to the community.

None of the measures introduced so far fulfils all the criteria that have been proposed for the ideal of restorative justice; in particular, until now the involvement of victims has been limited. It is surprising that restorative justice has made so much progress in a generally repressive penal climate1, with the prison population at a record level of 75,000 (almost 140 per 100,000 of the population, compared with 85 in France); the question is whether they can help to change that climate, or will be absorbed into it. If another criterion for ‘success’ is needed, it could be the reduction in the number of prisoners.

The three leading methods are called referral orders, victim/offender mediation and conferencing, and I will begin by describing referral orders, which are now a major method of dealing with young offenders, with 27,000 cases per year.

Versions of restorative justice

Referral orders

The juvenile justice system has been radically overhauled, especially as it applies to young people aged 10 to 17, appearing in court for the first time, and admitting their guilt. In such cases, with few exceptions2, the juvenile court has to make a ‘referral order’. This rather uninformative name is used because the Youth Justice and Criminal Evidence Act 1999 requires magistrates’ courts to refer young offenders to a ‘Youth Offender Panel’. What is a ‘panel’? It consists of three people; two are members of the public who have undergone special training, and one is a worker from a Youth Offending Team (known as a ‘YOT’, which I shall describe later). There are now over 5000 volunteer panel members. The court can only specify the length of the order: between three and twelve months, depending on the seriousness of the crime Even some quite serious crimes can be dealt with in this way.

The panel aims to provide a constructive forum for the young offender to confront the consequences of his crime and agree to undertake a programme of meaningful activity. The principal aim of this is to prevent any further offending. The Act also refers to reparation and mediation, but appears to regard them only as means to that end; proponents of restorative justice would prefer to give more emphasis to the needs of victims. One or both parents of the young person are expected to attend. In addition, other persons may be asked to be present: the victim or a representative of the community, a victim supporter, a supporter of the young person, and a person who, in the opinion of the panel, may have a good influence on the young person. The panel meets at the beginning and end of the order, and in the case of a long order there are intermediate meetings as well.

At this meeting, a ‘contract’ with the young person is drawn up, in which he or she agrees to a programme of behaviour. This may involve meeting the victim (if they are willing and were not present at the first meeting)3, making financial or other reparation to the victim, doing work for the community, attending school, staying at home at specified times or staying away from specified places or persons. Colleagues working within the system have told me about two cases, for example (details have been changed to preserve confidentiality):

One young man had stolen a woman’s handbag late at night. When she met him she told him how frightened she had been, but said that she was not concerned about the money that was in it; she wanted him to continue his education and to work for people less fortunate than himself. It was arranged that he would help with a project where children with disabilities learned horse-riding.

Another case involved possession of cannabis, which at first sight appears a petty and victimless crime. At the first panel meeting, however, which his parents attended, it became apparent that there were tensions within the family, and the open discussion helped the parents and their son to understand each other better. As there was no victim to whom the offender could make reparation, he was asked if he would make reparation by giving a donation to a charity. A children’s charity which his father supported was chosen. How much should he give? He was asked to imagine that he was a judge imposing a fine on a young man like him: what should the fine be? He suggested £60. Why that figure? he was asked. ‘Because I used to spend about £30 a month on cannabis, so I doubled that figure.’ The worker from the youth offending team took the money to the charity, which was very impressed with the story, and its staff signed a Thank-you card. At the final meeting he was given this card, which surprised and pleased him and his parents.

Not many victims have benefited yet, however. In the early stages of this measure (which was somewhat hastily introduced), research into the pilot projects (until 31 July 2001) found that only 13 per cent of victims attended (Crawford and Newburn 2003: 185). Of the sample of those who did not attend, however, 76 per cent would have liked to but were invited at an inconvenient time or place, or not invited at all, or prevented for some other reason; only 23 per cent did not wish to (ibid.: 193). The great majority of those who did attend found it rewarding.

When a contract has been completed successfully (and 75 per cent of straightforward cases were: Crawford and Newburn 2003: 139), the offence is ‘spent’ and the offender will in many circumstances not have to declare a criminal record. If it is not completed, the case can be returned to court for a different sentence.

The verdict of the researchers on the first year or so (to 2001) of the pilot projects is that they have had some success, despite structural flaws (for example, meeting the victim is not voluntary for offenders) and in some cases poor practice. The chief weakness has been the low involvement of victims. It has been found that in those areas which appoint victim liaison officers, such an officer can help to achieve a higher rate of attendance by victims at panel meetings; despite this, only half of the areas have so far done so. Two years after the national introduction of the new measure, a system for counting the involvement of victims has only just been introduced (April 2004). These facts are perhaps an indication that recidivism figures, and costs, have been higher than victims on the government’s list of priorities.

There has been substantial involvement of members of the community as members of ‘panels’, and young people have been given a hand in shaping their own futures. Members of the different agencies that form YOTs are learning to work with victims, with each other and with the lay members of panels. All in all, referral orders may be described as ‘mostly restorative’ – but not entirely so (Crawford and Newburn 2003: chapter 12).

Restorativeness

How can degrees of ‘restorativeness’ be measured? McCold defines in terms of reparation to the victim, acceptance of responsibility by the offender, and involvement of the community, including families. Programmes are less or more restorative when they embody one, two or all three of these principles (quoted in Crawford and Newburn 2003: 43). This however does not spell out some characteristics of the concept such as victim/offender dialogue. Another way of describing it is to say that the essential criteria are to repair harm to the victim, but also to overcome damaging life experiences of the offender in many cases; the victim and the offender have an opportunity to take part willingly, not under pressure; they can talk about the offence and suitable reparation. The method of reparation is selected according to the victim’s wishes and the offender’s abilities, and not because it is unpleasant (though in some cases it can be hard work), The reparation is normally agreed; only in the few cases where there is no agreement is this decision handed back to the court. It is also desirable that there should be involvement of members of the community in the process, for example as trained facilitators4 or participants in a conference.

Finally, it would be desirable for information about social conditions, which emerges in the course of restorative dialogue, to be used in the formulation of crime reduction policy. The conventional process of criminal justice does not provide much information about this, because it is focused on narrow questions of guilt and innocence; it is in the interests of the offender to deny or minimize the crime, and to give as little information as possible. If he tries to explain why he committed the crime, it sounds as if he is making excuses in order to receive a lesser punishment. In restorative justice, in contrast, the victim often wants answers to questions that the law considers irrelevant, about the offender’s background and circumstances.

Victims do not want excuses, but they want to understand why the crime was committed against them, and the informal atmosphere of mediation or conferencing encourages offenders to speak freely. This information can be used – not for detection of crimes already committed, but to create a crime reduction strategy. To take an obvious example: if it becomes clear to mediators that many offenders in a certain area are becoming involved in drugs, action should be taken. For example, the early research on referral orders reported that

The panel members [trained volunteers] do see things from a broader perspective and they are a fairly strong and confident group of people. If they see things that are causing concern – like kids consistently coming from the same school – then they will write to the LEA [local education authority] and say something. One of our panel members is so concerned about one of the schools that he has been to speak to the governors and almost issued them with an ultimatum to start putting their house in order. They can do things like that and it seems to have more impact coming from them as members of the community. (Crawford and Newburn 2003: 152).

Although this can happen spontaneously, the idea has not been taken up in a systematic way. We may hope that when more people have taken part in restorative justice, there will be a deeper and more widespread understanding of the social and structural pressures which lead to delinquency.

How it grew

We should remember that restorative justice is based on concern for victims as well as offenders, and most offenders are not detected; so a restorative system should begin by offering assistance to victims, including those whose offenders are not known. In the United Kingdom compensation by the state for victims of violence was introduced in 1964. Typical awards are £11,000 for rape and £25,000 for loss of an eye. The normal maximum is £250,000, for brain damage and quadriplegia, but this can be increased to not more than £500,000 when care costs and loss of earnings are added. In 2001/02 the Criminal Injuries Compensation Authority awarded £200 million to 40,000 victims of violence.

As regards non-financial assistance to victims, the first local service was started in 1974, using trained volunteers. The national organization Victim Support was formed in 1979, and by the 1990s it had extended nationwide and also provided a service for witnesses in courts. Unlike some victims’ movements this non-governmental organization offers support to victims of almost all types of crime, and it refuses to comment on the sentences imposed on offenders.

Victim/offender mediation5

In the 1970s reports began to come from North America of an innovation called victim/offender reconciliation (e.g. Wright 1977), and some projects were started in England in the 1980s. They caught the attention of the then Home Secretary (minister for the interior), and four pilot projects were started and evaluated; but the minister departed, civil servants delayed the publication of the research6, and momentum was lost (Marshall and Merry 1990). Only a few local services kept the flag flying, with the help of the newly-formed ‘umbrella organization’ Forum for Initiatives in Reparation and Mediation, formed in 1984 and now known as Mediation UK.

When victim/offender mediation was first introduced in the 1980s it involved one-to-one mediation, sometimes with volunteer mediators, who work in pairs and in some cases are paid a small honorarium. At first it was used for adults and for some quite serious cases in which the offender would probably have gone to prison. Now it is used mainly for juveniles, and very little for adults, although there are plans to extend it.

Conferencing

The 1990s saw a renaissance, imported this time from Australia and New Zealand. A police force in New South Wales, Australia, introduced the method known as ‘conferencing’. A police officer, Terry O’Connell, received a travelling scholarship and came to England, where he attracted the interest of the Chief Constable of Thames Valley (between London and Oxford), Mr (now Sir) Charles Pollard. In England the police can give certain offenders a warning or ‘caution’, and he adapted this idea to make ‘restorative cautions’ in which offenders are encouraged to think of the consequences for their victim, not for themselves; that is, instead of trying to terrify and humiliate the young person, threatening him with serious punishment if he re-offends, it stresses the harm caused to the victim as well as to his own family and to himself. If the victim is present, it is called a ‘restorative conference’. He publicized the new method very effectively, to the extent that many people gained the impression that restorative justice was a new idea, and that this was ‘the’ way to use it. In the early stages practice did not always correspond with the restorative ideal (Hoyle et al. 2002), and doubts have been expressed as to whether police officers can be perceived as neutral facilitators.

Conferencing is similar to mediation but invites relatives and supporters of the offender and victim to take part. It was based on the theory of ‘reintegrative shaming’ of the Australian criminologist John Braithwaite, and the ‘family group conferences’ introduced in New Zealand in 1989. The facilitators7 are often police officers, they work from a written list of questions or ‘script’, and they attach importance to celebrating the agreement at the end of the session by sharing refreshments.

The New Zealand model is different in some ways. More emphasis is placed on inviting the offender’s extended family to the meeting (though not as much as in New Zealand), and after the social workers have provided information about the available possibilities, and the victim has asked questions and expressed his or her feelings and wishes, everyone else leaves the room, giving the family ‘private time’ during which they can work out a plan for the young person. Both styles of mediation are used in England; family group conferences are also used with young people who have problems but have not committed offences.

There is also an important role for judges. In New Zealand, they not only oversee the process to try to make sure that it has operated in a restorative way, but they try to send their notes on particular cases to the press, and post them immediately on a website, to explain their decisions. They are also active in complaining to the Press Council (Carruthers 2003). This function is carried out in England and Wales to some extent by the Youth Justice Board, which publishes a promotional newsletter, YJB News; the latest issue (April 2004) for example contains an article by the YJB’s director of communications headlined ‘Building public support for community sentences is not an optional extra’, and there are also some references to restorative justice and crime prevention.

Government initiatives

In 1996 the government watchdog, the Audit Commission, published Misspent youth, a review of the youth justice system which it criticized as uneconomic, inefficient and ineffective. The Labour Party, which formed the new government in 1997, intro­duced major reforms. One was to define, for the first time in British legislation, the principal aim of the youth justice system: ‘to prevent offending by children and young persons’. It creates two main mechanisms for this. One is to require the local authority and the chief of police in every area to make a plan for crime reduction. The other is to require each local authority to create a Youth Offending Team.

This brings together for the first time not only the criminal justice services, but those responsible for social work, education and health, and non-governmental organizations, because all have a role in the reduction of offending and re-offending. They are also responsible for implementing the orders of the youth courts. In England and Wales there are 155 YOTs, supervised nationally by a Youth Justice Board. At first it was difficult for these agencies to work together, and some of them were unaccustomed to work with victims, or were even unwilling to do so (Holdaway et al. 2001: 87).

The government also heard of the idea of restorative justice. In a White Paper (policy document) entitled No more excuses they described it as ‘Restoration, Reintegration and Responsibility’ (Home Office 1997). ‘Restoration’ is defined as ‘young offenders apologising to their victims and making amends for the harm they have done’, so that the victim’s role is merely to be a passive recipient of the apology; and the other two ‘Rs’ are focused entirely on offenders. The definition does not mention a dialogue in which victims and offenders could agree on suitable reparation. This showed that they had not fully understood the importance of the victim’s role, nor of empowering victims and offenders by enabling them to communicate at a human level.

The misunderstanding is reflected in the Crime and Disorder Act 1998, which began a major overhaul of the youth justice system. In reparation orders for juveniles, for example, the court can impose an order, whose length (not more than 24 hours in total) should be proportionate to the seriousness of the offence; it may specify that the offender must make an apology, repair damage, or undertake an activity for the benefit of the community. A probation officer then asks the victim if this is acceptable. There is no mention of communication between victim and offender before the decision is made, let alone enabling them to agree on the reparation. This is possible only in areas where YOT workers who have an understanding of restorative justice have persuaded the magistrates to circumvent the Act by making an ‘open’ order: they specify the length, and the mediation service can then arrange for the victim and offender to meet, if they are willing, and agree how the offender should spend those hours (CDA, sec. 67-68)..

In the following year the referral order, described earlier, was introduced by the Youth Justice and Criminal Evidence Act 1999.

Recent policy developments

Restorative justice, even in a somewhat diluted form, is being increasingly mentioned in official policy, as four recent examples show. Firstly, the government commissioned a review of the criminal courts by Lord Justice Auld (2001). He said that

I have always been of the view that we expect too much of the courts as a medium for reducing crime, for remedying wrongs to victims and society and for rehabilitating individual offenders (p. 387).

He therefore considered that

[t]here is value in providing for resolution outside the courtroom so far as is consistent with justice, the public interest and efficient public administration’ (p. 368); and that ‘[a]ny initiatives in this field should be part of an over-all and principled reform aimed at removing from the courts matters for which they are not appropriate or necessary, while leaving them, in the main, to deal with matters for which they are well suited, in particular, marking society’s disapproval and safeguarding public and private safety (p. 388).

In sum, he recommended

the development and implementation of a national strategy to ensure consistent, appropriate and effective use of restorative justice techniques across England and Wales (p. 391).

This suggests that he endorsed another characteristic of many restorative justice programmes, namely the informality of the procedure; but the reference to relying on the courts to ‘mark society’s disapproval’ and ‘safeguard public and private safety’ implies that he did not see restorative justice as entirely replacing punitive sentencing that attempts to act as a deterrent.

Secondly, the government acted on his suggestion, and produced a consultation document entitled Restorative justice: the government’s strategy (Home Office 2003). This gives an account of restorative justice, and proposes that it should be used more extensively for adults. A pilot project is due to start in July 2004 in which it can be used to divert cases from prosecution, introducing into England and Wales what has been common practice in continental Europe for several years. It will focus on more serious offences with an identifiable personal victim. The accompanying research will examine how it benefits victims, but also whether it delivers faster, more cost-effective justice by saving court time and correctional service resources (ibid. p. 44). .The Home Office and the Youth Justice Board have also produced booklets promoting good standards in facilitation (Youth Justice Board 2003; Home Office et al. 2004).

The aim is to build restorative justice into new developments in the criminal justice system, and to increase public understanding of it. The government intends to ensure a high quality of service for restorative justice, and work has already begun on developing standards (Restorative Justice Consortium 2002). After that, the emphasis will be on training facilitators (although it will be some time before there are enough trainers who have had first-hand experience of mediation and conferencing) and a system of accreditation which, practitioners are hoping, will not be excessively bureaucratic. The ultimate vision, the document says, is ‘restorative justice fully integrated into the criminal justice system’ and ‘embedded in wider society’, where

[r]estorative approaches to bullying and disruptive behaviour would be normal in schools, and would be integrated with education about positive ways of dealing with conflict and harm. Other private and public sector bodies would adopt restorative and alternative dispute resolution approaches to deal, for example, with complaints, staff conflicts and disciplinary matters

(Home Office 2003: 52).

The government is also proposing to establish a ‘victims’ fund’, intended to ‘ensure the delivery of a new and improved service to victims’. It intends to fund this, however, by making savings from the Criminal Injuries Compensation Scheme, and by making offenders of all kinds pay a ‘surcharge’ (Home Office 2004). This method of funding has been opposed by organizations working for victims and for restorative justice (Victim Support 2000; Restorative Justice Consortium 2000); as Victim Support says, ‘providing support and services to victims is … a fundamental responsibility of government and should be covered by core state funding’, and ‘it is perverse that funding for victims may depend on the commission of crime’ (Victim Support 2000: 6).

Thirdly, the Criminal Justice Act 2003 introduces ‘conditional cautions’, but they are intended ‘to facilitate the rehabilitation of the offender, and/or ensure that he makes reparation for the offence’ (section 22); victims are not mentioned at this point. The draft guidelines for conditional cautions that have been circulated for comment (Home Office Criminal Procedure and Evidence Unit, February 2004) describe restorative justice merely as an ‘alternative’ (paragraph 8.2). They correctly state that it is a decision-making process, but importance should also be attached to the dialogue itself. It would appear that the emphasis is on rehabilitative measures for offenders, and that to carry out the cautions in a restorative way, which includes victims, will be optional. This may be seen as a missed opportunity, unless it is made clear that the restorative process should be considered wherever there is an identifiable victim. Once again, the thinking seems to be that the authorities (in this case the prosecutor) would keep control.

Fourthly, the Youth Justice Board has set a target for YOTs in 2004: they should ensure that 75% of victims of all youth crime referred to them are offered the opportunity to participate in a restorative process (which does not necessarily involve a victim) and where victims do take part, 75% of them should be satisfied.

How it works

To explain the current system, perhaps the simplest way is to take the imaginary case history of Tony. He is 16 years old, and has been caught stealing a computer magazine in a newsagent’s shop. He has done something similar before, and on that occasion the police gave him a reprimand. This time he has his last chance: a Final Warning. In fact it is more than a warning: the police refer the young person to the YOT team, which makes a rehabilitation programme, or change programme, for him. In some police areas, the warning is ‘restorative’, as described earlier.

Unfortunately Tony got himself into trouble again before his eighteenth birthday. He had already had his last chance of a warning, so he must appear before the Youth Court. But as this is his first appearance in court, the court has to make a referral order, because he has pleaded guilty and the offence was not serious enough for a custodial sentence. This means that he appears, with one or both of his parents, before the youth offending panel. As we saw at the beginning, the aim is not to decide on a punishment, but on a plan for his future behaviour, and in a small but increasing number of cases the victim can take part in this.

Usually that will be the end of the story, because the number of 10 to 17-year-olds cautioned or convicted between 1992 and 2001 (before and after the new system) fell by 21 per cent. But if Tony commits another offence, and is caught, he must go back to the youth court, and this time the possibilities include a reparation order or an action plan order – or custody. Both of these orders, as was described earlier, include the possibility of victim/offender mediation but not as part of the decision-making process unless, as described earlier, the YOT persuades the court to make an ‘open’ order so that the victim and offender can agree on appropriate reparation.

What it needs

From the victim’s point of view

If you have the misfortune to be a victim in England or Wales, what would be helpful to you? It depends on you and your circumstances. If you are at school, and you are the victim of another child (whether or not the incident could be classified as an offence or crime), you might welcome the existence of a mediation programme in your school. With peer mediation, in which older children learn to mediate disputes between younger ones, including bullying and cases where it is sometimes difficult to know who was the ‘offender’ and who was the ‘victim’. This can avoid the exclusion from school of bullies, and the truancy of victims, both of which are recognized as pressures towards delinquency. Not only is the dispute resolved, often before it becomes serious, but all the pupils learn how to handle conflicts without the use of force, and the atmosphere of the school can be much more civilized and civilizing. The method can be extended to resolve problems between parents, teachers and others (with adult mediators, of course). It is also spreading through the government’s initiative to include ‘citizenship’ in the school curriculum, but it is not centrally co-ordinated and there appears to be no information about the number of schools which are already using it. A young mediators’ network has been started and is growing, with more than 250 members aged from 13 to 21 and 200 schools and other organizational members.

For all victims, restorative justice should be available regardless of the age of the offender – subject of course to other considerations such as the safety of the participants.

If you become a victim as a result of a dispute, for example between neighbours or workmates, you should have the choice of treating it as a dispute to be resolved rather than a crime to be prosecuted. Dispute resolution generally leaves people, if not friends, at least able to speak to each other; prosecution is more likely to leave them living in fear or hatred. Neighbourhood mediation, if used early in the course of a dispute, has the potential to prevent the crime, so it should have a place in crime prevention strategy. Mediation UK has 240 organizations as members, and together with the government’s Community Legal Service has developed a quality mark for community mediators. It is hoped that mediation will often make it possible to avoid applying for an Anti-Social Behaviour Order8, which is divisive for the community and expensive for the local authority.

If victims have been injured there should be compensation, or treatment for their injuries, and loss of earnings should be covered by the welfare state. If the offender is known, he or she should naturally contribute to the extent possible. Victims of crimes by strangers should be restored as far as possible to their previous condition, or better. If the offender is not known, denies the offence, or refuses to take part in mediation, or if the victim does not wish for mediation, victim support should be available, and indeed this support should also be offered during and after the mediation process.

For those victims who wish to take part in mediation, the process should obviously be conducted as well as possible. There should be well trained and supervised mediators, suitable venues, support during and after the meeting, and mediation or conferencing should be available according to the needs of those involved. The process should be explained to the victim by suitably trained people9; and they should be told about the way in which the meeting should be conducted, and about the complaints procedure, so that they can protest if good standards are not followed. (The same applies to offenders.) The question of human rights needs to be considered. Victims and offenders should not be represented, that is, have lawyers to speak for them, in mediation, because that would destroy the personal human dialogue that is at the heart of the restorative process, but they should have access to legal advice before and after the process. The United Nations has declared that victims are entitled to redress through formal or informal procedures, and should have proper assistance throughout the legal process (UN 1985, Wright 1995). The lawyers who provide this advice should, of course, be familiar with, and in sympathy with, the principles of restorative justice.

There should be no pressure on victims to take part. This applies not only to overt pressure, by enthusiastic mediators anxious to attract cases to their programme, but to indirect pressures. Both the victim and the offender should be made aware that if the offender is willing make reparation, but the victim does not wish to take part, the offender will be given the opportunity to make reparation through work for the community or a non-governmental organization. Otherwise the victim’s decision could result in more serious consequences for the offender; this is a responsibility which should not be placed on the shoulders of victims, and in some cases could even lead to retaliation by the offender or his mates.

Victims want different things from the mediation process. For some the dialogue itself is the most important thing; some primarily want an apology. But there are many who want the offender to make compensation, or to work on their behalf (this applies particularly to corporate victims such as businesses or schools), or that the offender should ‘put something back’ by working for the community or an NGO, as mentioned above, or by trying to make more of his or her life by entering a suitable programme of training or treatment. Victims will be disappointed if the resources are not available to enable this to happen. Some YOTs have built up a wide range of contacts with various organizations, which are willing to accept offenders on placements.

From the community’s point of view

Above all, everyone – victims and potential victims – wants less crime. Crime reduction is the poor relation of the criminal justice system. As has been mentioned, the restorative justice process gives an opportunity to explore the pressures towards crime from the offender’s point of view, so that they can be addressed. An obvious example is drugs. It is already well known that many offenders commit crimes in order to support their drug habit, in addition to the crimes of selling and possessing drugs. We do not need a ‘war on drugs’ – there are some governments which are only too ready to start wars! – but the restorative justice dialogue could explore what is missing in those young people’s lives that leads them to this disastrous attempt to find satisfaction, in order to create preventive policies to try to remedy it.

It would of course be simplistic to place all the focus on drugs. The restorative process could correct some misapprehensions. For example, it is often supposed that young robbers, like other delinquents, commit their crimes in order to pay for their drugs, or that they belong to a mal-socialized underclass. Research among young street robbers by Simon Hallsworth in south London has found, however, that they avoid drugs, because they need to be fully alert in order to commit robberies successfully; and that many of them are only too well socialized to the values of capitalist society. The problem is that they don’t have the legitimate means to acquire the goods – the latest trainers or mobile phones – which advertisers persuade them they should have (Hallsworth 2004). We also do not need a war on Nokia or Niké or their advertising agencies! 10 But as Hallsworth says, crimes take place only when there is a combination of factors: motivated offenders, suitable targets, and a failure of capable guardians to control. The first thing we need to do, therefore, is to understand the forces that produce motivated offenders: why doesn’t everyone engage in robbery? The dialogue in the restorative justice process may help us to do that; and the more members of the community are involved in that process, the more widely these issues will be understood.

Up till now, the advocates and practitioners of restorative justice have given little attention to the motivation of white collar offenders, who are disadvantaged not in any material sense, but only, like the young robbers on the streets of south London, inasmuch as their upbringing and their peer group have led them to attach excessive importance to material possessions. If a gang is defined as an organized group pursuing a collectively agreed criminal goal, the definition fits corporations like Enron (Hallsworth and Young 2004). Deterrence is not an effective strategy, partly for the familiar reason that the offenders do not think they will be caught and convicted, and partly because they accept the punishment as an occupational hazard. John Braithwaite has described American corporations which have a ‘vice-president responsible for going to jail’, who receives an enhanced salary for a period of time, in return for accepting the responsibility for the corporation’s wrongdoing if it is successfully prosecuted (Braithwaite 1989: 146; 2002: 108). Like the street robbers, they no doubt neutralize their awareness of the loss or harm suffered by others because of their actions11, using the techniques described by Sykes and Matza (1957, quoted by Braithwaite 2002: 85): ‘they won’t notice’, ‘they can resist the pressure if they choose’ , ‘everybody does it’. Restorative justice has been used in many cases where there is a corporate victim (e.g. in cases of shoplifting), but seldom where there is a corporate offender. There is no guarantee that confronting these offenders with the victims of their unsafe practices, frauds or environmental pollution would cause them to have a new perception of the morality of their conduct but, as Braithwaite argues, restorative justice or ‘responsive regulation’, combined with other pressures such as public opinion and consumer organizations, is more likely than conventional punishment to have this effect on at least one person in a position of power or influence in the corporation.12 It can also enable outsiders to obtain some of the information needed in order to see what structural changes are needed to reduce the likelihood of such abuses in future.

As regards prevention at a community level, there is interest in the model used in programmes in South Africa. The one handling the widest range of conflicts is called called Zwelethemba, in Western Cape. There is a community mediation service, to which not only civil disputes but crimes can be brought by those affected (police being somewhat thin on the ground). In parallel with this, there is a unique ‘peace-building’ process, which ‘aims to address the structural problems underlying conflicts, such as extreme poverty and the chronic lack of employment opportunities and basic amenities’ (Roche 2002: 524-5, 2003: 264-6)

Conclusions

In England and Wales at present there are some partly restorative practices that are widely used, and some more restorative ones used on a limited scale. Work is underway to improve the training and accreditation of facilitators, but the use of trained members of the community is mainly confined to the programme described as partly restorative, namely the youth offender panels. Work in schools has started, and is spreading. There is a need for more political support. There is also a need for international co-operation and exchange of experience. We can all learn both from each other’s achievements and mistakes. This is the significance of the European Forum for Victim/Offender Mediation and Restorative Justice, as well as national non-governmental organizations in each country to promote the theory and practice of restorative justice. Advocates of restorative justice are hoping that the strength of the restorative philosophy will be enough to allow it to be true to its ideals, and to encourage the criminal justice system itself to move in a restorative direction.

Lawyers tell us that most crimes are also torts; we hope that restorative justice will enable our system to move from the punishment of crime towards the repair of harm, replacing dependency on rules with trust in morality.

I am grateful to Borbala Fellegi and Sophie Parent for comments on a draft of this paper, and Mme Aude Magen who made the French translation which is to be published by the École Nationale de la Magistrature.

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M W

Paris17 June 046.doc

martinw@phonecoop.coop

1 Exemplified by the fact that the probation service’s motto has changed from ‘advise, assist and befriend’ to ‘enforcement, rehabilitation and public protection.’

2 Namely, that the offence is not so serious that custody is unavoidable, or so slight that the offender receives an absolute discharge. Also, since August 2003, courts have discretion not to impose referral orders for non-imprisonable offences such as fare evasion..

3 It may be noted that this procedure is not fully restorative, because the victim is not party to the process of working out the contract.

4 The terms ‘facilitator’ and ‘mediator’ are interchangeable, to designate the persons who conduct victim/offender mediation or conferences. ‘Mediation’ can be used as a general term to cover both forms of restorative justice.

5 I believe that this term, or at least ‘médiation en matière criminelle’, is preferable to ‘médiation pénale’, firstly because, as Jacques Faget says, ‘the expression penal mediation juxtaposes two terms, mediation and punishment, which raise antagonistic philosophies and can lead people to believe that mediation has a punitive character’ (quoted by Jullion 2000: 212); and secondly because, by definition, it focuses on the offender to the exclusion of the victim.

6 But to-day there is a much more positive approach in the Home Office.

7 The terms ‘facilitators’ and ‘mediators’ will be used interchangeably to mean the persons who lead the victim/offender mediation or conference. ‘Mediation’ may be used as a general term for victim/offender mediation and conferencing.

8 The ASBO is a civil order to refrain from behaviour that caused or was likely to cause harassment, alarm or distress, but if the order is not complied with, criminal penalties can be imposed (Crime and Disorder Act 1998).

9 An added complication in England and Wales has been concern over data protection, in regard to passing victims’ addresses from the police to the mediation service, and this needs to be resolved.

10 some large corporations, however, are guilty both of overcharging their customers and of underpaying their workers (often in so-called developing countries).

11 Whether or not these have been defined as criminal – and people with power are often successful in persuading legislators not to regulate them, or at most to allow them to regulate themselves rather than be regulated by the criminal law. In many countries, for example, it is not illegal to sell cigarettes to juveniles or hand them out freely to encourage young people to become addicted. Nor is it illegal to manufacture and sell landmines, which are of doubtful utility in war and disastrous in peace. Examples could be multiplied.

12 For a thoughtful discussion of Braithwaite’s ideas, see Levi (2002)