RJC Presentation September 2010
To start from our over-all aim, I think we are agreed that this is to make RJ available in as many places as possible, until it is nationwide; and that it should be done to the highest standards. Insofar as it concerns criminal justice, it should not be compromised by conventional criminal justice attitudes. The R J C website states that:
The Restorative Justice Consortium (RJC) is the national voice for restorative practice in England and Wales. We work with those practising Restorative Justice to meet the needs of victims and reduce offending. Restorative Justice has come to apply both in the criminal justice setting, and more broadly to a range of ‘restorative approaches or practices’ which deal with conflict in schools, workplaces, the community and even within prison settings.
Our vision, as re-stated in the Business Plan 2009-2012, is that ‘every person affected by conflict and crime should have access to a restorative process, in which people can work together to address and repair harm.’ Many of us would also support Nils Christie’s well known argument that conflicts should not be ‘stolen’ by professionals but resolved within communities as much as possible. As a contributor to Zehr and Toews’ (2004) Critical issues in restorative justice put it, ‘the movement’s central ideal is to retain control of community issues within the community’ (C Erbe, p. 289). This ideal has been developed in peer mediation in schools, and community mediation services, both of which train ‘ordinary’ non-professional people to act as mediators, as did the original Victim-Offender Reconciliation Program in Ontario. In Norway mediators are even required by law to be non-professionals.
1. Restorative justice includes restorative practices
Restorative processes can be used in at least four main ways:
- decision-making, preventionRestorative processes need not wait until there has been a conflict; they can be used as a decision-making process, which may avoid the conflict
- response to conflictThey can be used to resolve a dispute. The emphasis is on how the disputants will act in future, and how they will communicate
- response to harmWhen actual harm has been caused, the processes can be used to agree how best to put it right
- response to criminal harm
When the harm has been caused by a criminal act, they can be used
- instead of criminal procedure,
- as part of criminal procedure
- after criminal procedure
Of these four, only one, the last, is limited to criminal harm. In the last two, one person may have harmed an innocent other person; or both may have contributed to the conflict.
I believe these issues are crucial for the development of restorative justice. (I will use ‘restorative justice’ and ‘mediation’ to include restorative practices and conferencing, since the Board has decided that the new name of the Restorative Justice Council should be interpreted in that way.) My hope is that we will be the central organization actively working for a transformative ideal: promoting not only general understanding but also nationwide delivery of restorative approaches, and indeed restorative cities and counties, in full accordance with our principles and objectives. Naturally we hope that statutory agencies will adopt restorative ways of working, but also the RJC is best placed to be the national organization working to support local services which implement them.
Dan Van Ness has said that in addition to offering an encounter, and reparation, the term restorative justice is used most broadly to refer to a belief that the preferred response to all conflict, indeed to all of life, is peacebuilding through dialogue and agreement of the parties (the transformative conception). 1
Until now, we appear to have proceeded on the tacit assumption that the way to do this is persuade people within the CJS to adopt a restorative way of working, and ensure that they are trained up to the best standards. This should certainly be an important part of our strategy, and is bearing fruit in several ways. However, I don’t think we should put all, or even most, of our eggs in that basket. It is necessary but not sufficient. We haven’t excluded the third sector, but we haven’t reached out to it. An essential part of the restorative ideal is to involve the community.
This is not of course to suggest that we can add more into this year’s plan than is already there, as it is already a stretch for the staff team. I hope it will be a declaration to everyone, including prospective members, of the direction in which we intend to travel, and the staff posts we hope to create when we can raise funds for them. This has vital implications for fulfilling our mission of making RJ available to everyone who wants it.
2. Access to R J for all
It is our vision that every person harmed by crime or conflict should have the opportunity to resolve it through a restorative process. So a strategy is needed for providing the service and for getting referrals. May we consider firstly RJ in the criminal context, which we might call ‘restorative criminal justice’ or RJ(CJ), and then other fields such as community and schools mediation (‘restorative social justice’, RJ(SJ))?
(a) RJ(CJ) for all
Until now our centre of gravity has been with R J in the criminal justice context. Some of the RJC’s first documents relate to principles and standards. But we have not given so much attention to how they are to be made available to everyone, and at all stages of the CJ process, in accordance with our own ideal and Council of Europe Recommendation (99) 19, which says that what it calls mediation in penal matters should be a generally available service, available at all stages of the criminal justice process, and should be given sufficient autonomy within the criminal justice system (Articles 3-5).
At present the picture in England and Wales is patchy. The only nationwide service is the referral order, which is only partly restorative, and of course is only available to juveniles and their victims. Here and there a police force is introducing restorative training, and measures such as the youth restorative disposal, but these are limited to relatively low-level offences. We need a development officer who would, for example, work with the Probation Service to advocate the use of R J to help reduce the prison population, or follow up the abolition of ASBOs by encouraging the use of R J in their place.
Perhaps the biggest gap is at the prosecution stage: if a case were resolved to everyone’s satisfaction, it would no longer be ‘in the public interest’ to continue it. The CPS has issued Legal Guidance on R J, commending the use of restorative processes. Keir Starmer, the DPP, has publicly supported the principle of R J in dealing with young and adult offenders. The Code for Crown Prosecutors says that Crown Prosecutors should consider the alternatives to prosecution, and consider the availability of suitable rehabilitative, reparative or restorative justice processes. He accepts that there is some scope for adopting a conference-based approach to settling on suitable conditions for conditional cautions, especially in cases where there is a relationship between the parties..
The key, however, is availability. Mr Starmer points out that the feasibility of this approach depends to a large extent on the availability of mediation services at the local level, but the availability of suitable mediation services across England and Wales is highly variable, although some CPS area prosecutors have been able to utilize locally established mediation services. In his opinion, the creation of suitable local mediation services is appropriate for government departments, local authorities and third sector organizations 2.
Probation officers, also, could propose a restorative meeting in their pre-sentence reports, as a ‘Requirement’, if a local R J service was available. Their victim enquiry work, contacting victims of violence before the offender’s release from prison, also provides a great potential for R J.
We could adopt a laissez-faire approach, and hope that initiatives would spring up around the country, but standards and sustainability would probably be variable. Rapid development and professional standards would be better assured if a national third sector organization took the initiative. Local organizations which subscribed to a code of practice would get accreditation, which in turn would help them in securing funds.
(b) RP (or RJ(SJ)) for all: Community, schools
We have so far done little to further our aim of making available a range of ‘restorative approaches or practices’ which deal with conflict in schools, communities and workplaces. Work in schools has been progressing under the inspiration of Transforming Conflict, IIRP, Leap and the Peer Mediation Network; perhaps we could aim to offer a forum in which they could co-ordinate and extend their activities, and provide logistical support for the PMN? A Development Officer could also help the Policy/Information Officer to respond to the many reports in the media about the need for discipline and anti-bullying policies in schools, reducing physical restraint of young people in custodial institutions, and so on.
The RJC has rightly laid great emphasis on standards and practitioner registration, and it is good to see that the Skills for Justice Level 4 diploma in restorative practice is written in terms which include not only crimes but other conflicts: the units refer to an ‘incident’ and ‘participants’, and are not limited to offences, victims and offenders. The skills largely overlap, as can be seen from the Skills for Justice article on Restorative Practice in Resolution (Spring 2010, No. 35, p. 10). The Business Plan does not, however, place much emphasis on liaison with other organizations.
As regards community mediation, there are already a number of local services – it seems that no one even knows how many. Besides providing neighbourhood mediation, they could encourage mediation in local schools where it is not already available, and above all they could fill the big gap in the criminal justice system by providing an R J service.
This could be made into a project which should be attractive to funders, and will also fit well with the local community-based initiatives promised by the new government; if it is serious about the ‘Big Society’, it will make adequate funding available – and will find it good value for money.
3. How best to deliver R J for all?
The main ways in which restorative processes can be delivered are through the statutory agencies or the third sector. Both have their advantages and disadvantages.
The RJC has always taken the position that RJ can be done well either by professionals (teachers, police officers, probation officers) or by people working in the third sector (whether volunteers or not) . The key thing is not the agency and whether people are paid or not, but the standards of training and supervision/support. In this position, the RJC has always aimed to be evidence-based – as we should be in all our work.
However, little evidence about the best means of delivering R J is available as yet. Joanna Shapland’s study set out to answer specific questions, which did not include the pros and cons of statutory and voluntary services; she only made a few passing comments about that. It focused on a small group of schemes, all three of which were essentially add-ons to the CJS (Shapland 2: p. 41). We cannot generalize from these few, especially as there were other variables, notably that two of them used VOM rather than conferencing.
(a) Statutory services: pros and cons
(i) R J in the community. Statutory services have done little to promote this. Some housing departments offer in-house mediation, but this is not ideal because of questions of impartiality and confidentiality. Others outsource the service to voluntary organizations.
(ii) R J in schools. Some schools are adopting restorative practices, in some cases encouraged by YOTs, but there appears to be no national policy.
(iii) R J in criminal justice. There have been encouraging publications from the leading criminal justice agencies, and mentions by politicians, but there is no plan to ‘roll it out’. The Home Office’s R J unit was wound up, as we know (their loss is our gain!).
As regards delivery on the ground, there are potential advantages: the large resources of the state (if they are made available), the statutory roll-out, as with referral orders, better prospects of getting referrals when the programme is embedded in the system.
But it depends on having a local ‘champion’ who will push it through in his or her area.. R J is sometimes misunderstood – much of the emphasis is on reparation rather than on dialogue with its potential for the growth of empathy. Where mediation does take place it is often not done in a way which empowers the participants to make their own decisions about a restorative action plan. It should not be just another form of punishment, and Joanna Shapland warned, at the February 2010 RJC conference, against having RJ staff line-managed by non-RJ managers. It only operates in parts of the CJS, mainly in youth justice.
The RJC has focused primarily on the delivery of R J by professionals. Their involvement is to be welcomed, and many of them are enthusiastic advocates and practitioners of restorative justice (although others do not ‘get it’). But this strategy has serious weaknesses.
- Its focus is largely on criminal justice, rather than on other conflicts, including those which could be kept out of the CJS if dealt with restoratively from the start. When YOTs try to provide RJ in-house, it is harder to maintain standards, and many might not do it at all.
- Often, notably in Youth Offending Teams, there are one or two restorative justice officers in a team where the overriding ethos remains the conventional one. They are often junior members of the team. If their managers are not committed to R J, they are in an isolated position as regards obtaining referrals, maintaining restorative values, and being supervised and supported by people who understand RJ. When ostensibly restorative principles are applied within the CJS, they are often diluted – as in the case of Youth Offending Panels and unpaid work requirements
- There is little movement towards providing the service for victims of adult offenders – in general, the probation service doesn’t seem likely to.
- Criminal justice agencies are as subject as anyone to changes of priorities and funding restrictions, in the current climate – and employees of the state have little scope for finding alternative funding, or protesting if restorative values are diluted.
- The statutory sector is not good at recruiting volunteers, and there is never likely to be enough funding for enough paid facilitators to fulfil our vision of universally available R J.
We should of course work to address these problems, but we should be unwise to rest all our hopes on the statutory sector.
(b) Voluntary sector: pros and cons
A voluntary organization is usually entirely focused on its own principles and ethos, whereas Shapland noted that there are potential tensions between the role of the facilitator and other demands of criminal justice if the facilitator is also a C J practitioner (Shapland 2, P. 42). REMEDI staff, for example, did not have other, simultaneous roles with criminal justice (Shapland 2, p. 14). RJ can be facilitated well by people from any criminal justice professional background or by volunteer mediators, as long as they are trained and supervised well (RJC summary of Shapland 2). JRC facilitators recognised the value of community input in conferences and would ideally have preferred more (Shapland 2 p. 7).
Voluntary agencies do face difficulties, and Joanna Shapland found that projects faced less difficulty setting up when they were based within Criminal Justice Agencies and had access to established HR, finance, IT and other central services (RJC summary of 1st report). Moreover, uncertainty about ongoing funding results in anxiety among project staff currently, not-for-profit agencies will only secure funding for time-limited projects. Fund-raising remained a major part of senior managers’ jobs (Shapland 2, pp, 22; 32-3). But the fact that a statutory programme is easier to set up does not necessarily mean that it delivers better R J.
Voluntary agencies tend to have to work hard and to be around for some time to gain a ‘place’ or ‘standing’ in the process and, more practically, in court premises (Shapland and Bell 1998). In order to obtain such a standing in the process, a new agency in a criminal justice context will have to negotiate formal protocols for its relations with statutory agencies: how will it get information, what will it do with people referred, how will it report back, what service delivery standards will be adopted, how will security and data questions be sorted. The move to formal protocols and service standards is one driven by governmental philosophies stressing best value and trying to change and control the plethora of agencies in criminal justice. They are excellent ideals. But they also place major burdens on new struggling, pilot initiatives, particularly from the voluntary sector, especially since the statutory agency can insist that protocols are negotiated, signed and come into force before restorative justice work can commence. (Shapland first report p. 51)3.
Voluntary agencies obviously need to be well managed, and should have to follow a code of practice to ensure this as far as possible, as regards for example record keeping, training, financial management, training of volunteers and so on; similar points could be made with reference to the statutory agencies.
However, it is argued that it is worth the effort to overcome these difficulties. RJ/mediation services would also strengthen regional practitioner networks; some networks already exist, and I think we would be missing a trick if we did not build on what is already there. Some of them may be struggling, and support from the RJC could make all the difference.
This is not to advocate using voluntary organizations and volunteers instead of professionals, but a ‘mixed economy’, albeit with as much volunteer involvement as possible – maybe I haven’t made this clear. Statutory agencies can either use volunteers directly, or outsource to mediation services, but of course they can do the work in-house if they want to. We should keep an eye on this, however, because of possible conflict of professional attitudes – see Thames Valley research Proceed with caution by Hoyle et al. Yes, I plead guilty to wanting R J to be nationwide and to have as much community involvement as possible – which is in line with the ‘restorative city’ ideal – but not of course at the cost of high standards. It is true that volunteers can be used by statutory agencies as well as NGOs. But this is also a pragmatic point: I think there is a better chance of working towards our ideal of nationwide coverage if we make full use of the potential of the voluntary sector, especially in the present political climate. I hope Lord Wei, who is to work alongside Cabinet Office minister Francis Maude on how best to implement aspects of the government’s ‘big society’ plans to strengthen civil society, will support us!
Mediation services in the voluntary sector:
- are 100% committed to restorative principles; their first loyalty would be to the national R J organization, not to the CJS.
- can help to resolve conflicts outside the criminal justice system (‘net limiting’ instead of net-widening).
- can provide support for mediators from RJ-qualified staff.
- being independent, can protest publicly at policies that limit R J or water it down.
- train large numbers of volunteers, who are usually available outside office hours, and who spread understanding of restorative principles into the community even when they stop their voluntary work.
- provide a local springboard for promoting restorative practices in schools. YOTs are less likely to do this, and in any case it is preferable for restorative practices to be developed for their own sake, not as an offshoot of the CJS.
If we believe, as I do, that restorative justice should be both nationwide and community-based, this seems the best strategy for achieving it. Community organizations also have problems, of course, such as obtaining funding and referrals; but the answer should be to campaign to strengthen them, not to write them off. The stated policies of the new government should be conducive to this. It should be remembered that prosecutors, probation officers and courts, as well as housing officers and others, cannot refer cases to a restorative process unless there is a service to which to refer them – and for the above reasons, we should not rely on statutory agencies being able to meet this need.
We aim to base policy on research; what does research tell us?
a) Performance of mediation.
Joanna Shapland evaluated the work of three RJ schemes – two voluntary sector mediation services, and one (JRC) which primarily, although not exclusively, trained CJS professionals as RJ facilitators. In her second and third report she found that mediators tended to take up more ‘air time’ in face to face meetings than the JRC facilitators (primarily police officers trained in RJ), which appears to show that if CJS professionals are both trained and supervised well, they don’t ‘dominate’ RJ processes in the way some in the sector had feared. However, she found it necessary to recommend that the best safeguard against any form of professional domination is to ensure that an adequate number of lay people are there (Shapland 2, p. 54). She also reports that police officer facilitators were sometimes rated as dominant (p. 72), a finding in line with the study in Thames Valley by Hoyle et al. (2002) Proceed with caution. Criminal justice personnel have often shown good understanding of R J, but we cannot be sure that they will deliver R J in a more professional way than volunteers.
Shapland also found that victim satisfaction rates were just as high for all the schemes examined – i.e. victims and offenders benefitted and were just as satisfied whatever the professional or voluntary background of the facilitator/mediator. This is the strongest comparative evidence that exists internationally on this question.. Thus as regards the actual conduct of mediation or conferencing, there is a case for both professionals and volunteers, and accordingly the RJC, on the basis of research evidence, advocates focusing on training and supervision standards, rather than strongly advocating for RJ to be delivered by statutory versus voluntary agencies.
3. Making RJ available
The discussion about delivery by statutory or third sector agencies therefore rests on structural considerations. Here, as we have seen, there are also arguments both ways. On the face of it, restorative values are less likely to slip back into conventional ones in an independent organization whose primary loyalty is to them. The research we have so far tells us about the RJ process, but has not specifically considered, except in passing, whether the results are related to whether the service is provided by statutory or voluntary services. Only three programmes in England and Wales have been studied in detail, and Shapland’s research, which was not primarily directed to answering this question, shows no great differences between the results achieved by the statutory and voluntary agencies, and such differences as there are could be attributed to other factors such as the mediation model used and the staffing level. Other things being more or less equal, community involvement could be regarded as a desirable feature in itself, and the different services could be compared as to how well they delivered it.
4. Making RJ and RP available everywhere
If we don’t provide services, who will? The best way of both spreading RJ and maintaining restorative principles, it seems to me, is for us, the RJC, to encourage existing mediation services to extend into restorative work, and encourage the setting-up of new ones. Without this, many people will be denied RJ; for example, however much prosecutors want to follow the CPS Guidance on RJ (Resolution 2010 No 35, p. 3), they can’t do so unless there is an organization to which to refer cases. And services which are affiliated to the RJC and independent of the CJS are more likely to be able to adhere whole-heartedly to restorative values, including community involvement. They could also usefully add to our membership base.
There are about 100 services already out there, providing community mediation and in some cases RJ/VOM; this could grow to a potential membership base of about 300. Community mediation services will benefit from, and fit with, much that is already in the 2010/11 business plan, including the proposed ‘how-to’ guides, practitioner code of practice, and efforts to support practitioner networks. This will be useful to people starting R J services (or extending community mediation to victim-offender work and schools), and there is already an earlier guide which could serve as a basis. Local services could also advocate mediation in schools, in collaboration with Transforming Conflict, IIRP, Leap, PMN and others.
So if we want RJ/mediation to be available everywhere, we should work towards providing it, aiming at full cost recovery or, preferably of course, income. The fact that we were providing this service would make us more worth supporting from the point of view of funders. Practitioners’ days will also be useful in developing services, and existing services could contribute to consultation meetings about best practice. It will be helpful to have a Code of Practice for services, as well as for practitioners.
Local services could also help with advocacy at local and regional level, and especially of course with ‘Making it happen’ and ‘Strengthening RJC’, with special reference to the membership drive for new sectors of membership. This once again goes to show the potential of the Third Sector, both because of its values and because of its contribution to making RJ and RP available nationwide. Restorative justice could be made available sooner and more widely if we gave more attention to accrediting mediation services, as well as individuals. The process could begin by requiring services which wished to claim full membership of the RJC to adhere to a basic set of standards of practice and governance; by degrees, in consultation with members, these could be made more rigorous. One requirement would obviously be that mediators had successfully taken part in a recognised training programme. In all of this, an important part of the Business Plan needs to be not only developing local services but liaising with others in the field.
5. Towards a restorative society
With a strategy of developing these principles and practices, the R J C could be the leader of a movement towards a restorative society. It would start in schools and children’s services. Local mediation services would educate the public about restorative decision making and conflict resolution, and enable borderline cases to be diverted out of the criminal justice system. So to complete the picture, we need to flesh out the concept.
(a) Enabling reparation and rehabilitation: restorative justice is not just a matter of reparation by offenders, but ‘the community’ (i.e. the rest of us, individuals, organizations, local authorities) have to make it possible for them to do so.
(b) Feedback for social (preventive) policy: Staff and volunteers engaged in delivering restorative conferences will build up a picture of social needs conducive to crime; there should be channels by which they can pass this on to opinion-formers and social policy-makers.
(c) Adequate support for Third Sector: Volunteers are good value for money, but they cannot function effectively without essential infrastructure: office, staff, hire of rooms, and so on. Skimping on this means that staff have to focus on applying for funds rather than providing the service.
(d) Recognising the new paradigm and upholding restorative values: As the ‘voice’ of restorative justice, we need not only to campaign for it, but to try to make sure that it is fully understood. Restorative justice works on an essentially different psychological paradigm. The punishment/deterrence one is based on making people afraid of what will be done to themselves if they do wrong, whereas the restorative one is based on encouraging them to feel for the other person, whom they have harmed, and this often leads to the other person feeling for them, in other words empathy. Perhaps empathy should therefore have a place in our definition. In schools the same principle applies: to secure good behaviour because it will be in everyone’s interest, not under threat of punishment.
(e) Preventing dilution: the movement needs to be on its guard against tendencies to revert to former, punitive, authoritarian, adversarial ways of thinking.
(f) Including serious crimes, especially ‘crimes of the powerful’.
So what should the R J C’s strategy be? I stress once again that I am not suggesting that we do everything at once, but propose a direction of travel – which may also be modified in the light of developments. In addition to the above (Section 5):
- Continue with accreditation of mediators/facilitators and trainers, and develop accreditation and a code of practice for mediation services (in consultation with them), working towards nationwide coverage, with regional groups. This would include a ‘How to’ manual for setting up a service or extending a community mediation service to undertake R J (CJ) work so that prosecutors and probation officers could refer cases to them (conditional cautions, requirements, victim enquiry work, etc.).
- Use the ‘Big Society’ agenda to encourage use of volunteers and NGOs as well as statutory sector.
- Apply for funds for development officer(s) for RJ(SJ) (schools, community etc.) and RJ(CJ).
- Apply for funds to establish working parties or sub-committees to work out detailed policies.
1 D. W. Van Ness (2006) RJ City: Phase 1 , Final Report.
2 Personal communications, 30.11.2009, 15.1.2010, 9.2.2010.
3 Joanna Shapland,et al (2004) Implementing restorative justice schemes (Crime Reduction Programme) A report on the first year. Home Office Online Report 32/04).