Presentation to Regional Forum on ‘Implementing Alternative Measures in Penal Cases: introducing and sharing experiences on restorative justice and victim-offender mediation application for juveniles and beyond’, organized in Tirana by the Albanian Ministry of Justice and others, 25-26 February, 2009
Reconciliation and forgiveness are ancient traditions, in Albania as elsewhere: they are a ‘manifestation of magnanimity, nobility, fortitude, patriotism and evidence of the civilization level of Albanian people.’ 1 Punishment and revenge are also very old human practices, but it should not be assumed that they are either effective or justifiable, or that they meet the needs and wishes of victims2,3 This paper will consider restorative justice, crime and responses to crime, especially from the point of view of the victim, with reference to recommendations of the council of Europe and the United Nations, with comments on the implementation of restorative measures in England and Wales.
Understanding restorative justice
Restorative practices include restorative justice, which focuses on repairing harm, but also on the process4,5 . They also include mediation6 in different contexts, such as communities and schools.
Where possible the outcome is reached by agreement. It is based on a new set of questions: not
has a crime been committed?
who was to blame?
how should they be punished?
who has been affected by what you did?
what do you think needs to happen to make things right?
The message of punishment is ‘If you behave like that, we will inflict pain on you’; the restorative message is ‘If you repair the harm, we will help you and re-accept you’. Repairing the harm may include an apology, compensation for the victim, work for the victim or the community, or co-operating with a programme that will help the offender not to commit more offences.
It is also worth spending a moment thinking about the meaning of ‘crime’. Almost all crime causes harm to someone (or to a country, or to animals or the environment). There are other forms of harm which have not been defined as criminal; they may be dealt with by lawsuits for compensation under civil law. We should remind ourselves that crime does not only mean burglary, robbery and violence; it also means actions by large companies, such as frauds, or failure to ensure the safety of workers (in a factory) or passengers (on a train or a ship). These can also be dealt with by restorative processes 7 Even in the most serious cases, such as murder and manslaughter, a restorative process can help both offenders and the relatives of their victims, although here the process will be an addition to another sanction, not an alternative8. There is another category of crime, which is not usually recognised by legal textbooks: crimes where the victim and offender know each other. These can be especially suitable for mediation: often there is a conflict in which both parties are to blame, and it is in the interests of both to resolve their conflict, rather than for one of them to be responsible for the other getting a criminal conviction.
When an action is defined as criminal (and when it is reported to the authorities), it means that the state can deal with it – usually by punishment, but punishment is not the only response, and it is not necessarily the most effective one. If the punishment consists of imprisonment, it often makes the situation worse: it separates the offender from people who could have a good influence on him, it gives him a stigma which makes it harder for him to find work. Courts can impose rehabilitative sanctions in the community, which may be constructive (to attend a course of training, or to learn to read and write), or restrictive (not to go out after 19.00 hours). Now they can also be restorative.
This is what many victims want. An ICM survey of 1,085 victims of non-violent crime in the UK, for the Ministry of Justice in England, found that 81% would prefer an offender to receive an effective sentence rather than a harsh one, and nearly two thirds (63%) disagreed that prison is always the best way to punish someone. An overwhelming majority of respondents (94%) said the most important thing to them was that the offender did not do it again. This figure is higher than the last survey in 2006 (91%). Many surveys (for example Shapland et al. 20079)have found that the great majority of victims who have experienced a restorative process found it helpful, enabling them to tell the offender the effects of his or her actions, and ask for answers to questions, and the satisfaction rate is much higher than when the cases went to court (although it has to be remembered that cases are only referred to mediation when the accused admits being involved in the offence). However, victims should not be ‘used’ to help the rehabilitation of the offender, and no pressure should be placed on them to take part 10
Since so many victims benefit from it, a restorative process should be offered to all victims, at any stage of the process 11, which is unfortunately not the case in the United Kingdom. This requires the availability of restorative justice services throughout the country, which will be considered in the next section. There should be general public awareness of this; victims and offenders in particular should have the process explained to them 12; and all concerned should be aware of it: criminal justice personnel, police, lawyers, judges and social workers 13. Awareness of restorative methods should start in schools 14, and these Recommendations should themselves be widely disseminated 15, and translated into all languages of the Council of Europe, where this has not already been done 16
It should be remembered that there is a minority of victims who are not satisfied with the process, and everything possible should be done to keep this number as low as possible. Thus there is a need to maintain high quality through standards 17 which are the basis of the training, support, supervision and professional development of mediators 18 . Mediators should know how to handle a power imbalance between the victim and the offender and ensure their safety during the process 19 . There should be procedural safeguards20 and continuing research and monitoring 21. There should be a complaints procedure22 (and this should itself be based on restorative principles, which CEPEJ does not mention). Special attention should be given to protecting minors 23; The guidelines should also mention other vulnerable participants, and should point out that victims as well as offenders should be protected.
An important safeguard is that all victims and offenders should be treated equally before the law: those who refer cases to mediation should make sure that victims or offenders who come from an ethnic minority (black, Asian or Roma, for example), or another disadvantaged group such as homosexuals and people with disabilities, have as much opportunity as anyone else to take part in a restorative process. During the process they should be treated equally by mediators; mediators should be trained to be aware of their own prejudices.
Delivering restorative justice
What is necessary for restorative justice to be delivered? Firstly, there needs to be a good understanding of it. This does not mean that there is only one way of doing restorative justice; we are still learning how to do it better. But it does mean that the basic principles have to be understood; otherwise we sometimes find measures which are called restorative but are not really restorative, for example because there is not enough effort to encourage victims to take part, or because the measure imposed on the offender is a disguised form of punishment..
Secondly, as already mentioned, general awareness of restorative processes is important: everyone should know about them.
Thirdly, its relationship to the criminal justice system should be clear24. As we have seen, in cases where the victim and offender know each other (or both are offenders and both are victims), they should be able to refer themselves to mediation (and here, with respect, I question the Council of Europe recommendation which says that a decision to refer a criminal case to mediation should be reserved to the criminal justice authorities 25). After that, in England and Wales, it is possible for the police or prosecutor to ‘caution’ or ‘warn’ the offender, and in some areas this is being done ‘restoratively’, which means encouraging the offender to understand that he has not only broken a law, he has caused harm to someone. In some cases the victim can be invited to take part.
In some countries prosecutors can decide to defer prosecution, to allow an opportunity for a restorative process to take place, but this is not yet used in England and Wales. The court can defer the sentencing decision (for up to six months in England and Wales), to allow the offender the opportunity to change his life, and this also provides a space in which mediation can take place). A sentence can be suspended, which has a similar effect, except that the period of time is longer, and if the offender does not comply, the sentence will be imprisonment. A community sanction can be imposed, as mentioned above.
In England and Wales there is a special measure26 for young offenders (under 18) who admit their offence and are in court for the first time (unless the offence is too little or too serious). It is called a ‘referral order’, and means that the offender must be referred to a ‘youth offenders’ panel’. It consists of one official and two members of the public, volunteers who have been trained. (This fulfils one of the aims of restorative justice, namely involvement of the public, although their training and operation are kept within the official framework.) The aim is not to punish the offender but to make an ‘action plan’ which will help him to keep away from crime. It may include reparation to the victim, if the victim wants it, and victims and their supporters should be invited to be present. Until now, however, not many of them do. We believe that there are two main reasons for this: that the process and its advantages are not explained clearly enough, by someone who understands restorative principles, and that they are not consulted about the time of the meeting. An early research study found that only 13 per cent of victims attended a hearing27, but efforts are being made to improve this.
In Northern Ireland victim-offender mediation has community roots: it was started by two groups, one Nationalist, one Loyalist, as an alternative to punishment beatings by paramilitary gangs. Now the Justice (NI) Act 2002 makes mediation, or ‘conferencing’, part of the juvenile justice system: cases are referred by youth courts and the Public Prosecution Service to youth conference co-ordinators. Extension of the programme to adults is under consideration. The community-based programmes, however, are now finding great difficulty, because the authorities are imposing conditions which they are unable or unwilling to meet. 28.
Fourthly, obviously, restorative services should be available throughout the country. It is common for them to be introduced in a few places at first, and only for selected offenders, such as juveniles, but the aim should be a universal service. There is a debate about whether they should be provided by the criminal justice system, or by non-governmental organizations with support from the state. One consideration is that non-governmental organizations have more independence, and can maintain restorative principles. Another question is, Who should be mediators? Criminal justice professionals, professional mediators, or trained volunteers? Criminal justice professionals may find it difficult to change from a conventional philosophy to a restorative one, although some have done so very successfully; there is general agreement that they should not mediate in a case where they are also involved in an official role. In England we have found that mediators only need training in mediation, and do not require, for example, a degree in social work or psychology; this is in line with the principle that ‘mediators should be recruited from all sections of society and should generally possess good understanding of local cultures and communities’, provided of course that they have sound judgement and interpersonal skills 29.
Governments should therefore enable NGOs or others to provide mediation services,, and provide safeguards, but preferably leave detailed guidelines to NGOs, because they are more flexible, innovative, directly involved with day-to-day practice, and insulated from political pressure (although they will inevitably be open to some pressures while they are dependent on the government for funding30. The Council of Europe says that there should be guidelines, but leaves open the question of who makes them31; mediation services should have sufficient autonomy in performing their duties32. CEPEJ and the United Nations, on the other hand, recommend that member states should consider establishing guidelines, standards and codes of conduct, provided that there is regular consultation between criminal justice authorities and administrators of restorative justice programmes.33 This should however not be necessary if there is a well supported national NGO, whose members are local mediation services which can propose updates in the light of practical experience. This would be the competent body which, in the Council of Europe’s recommendation, should monitor mediation services34. CEPEJ recommends the use of NGOs35.
The fifth requirement is that offenders should be enabled to make amends in the way that they have promised. If they have undertaken to work for the community, the community (NGOs, the municipality, or private employers) must provide work for them to do. If they need therapy or treatment before they can undertake that, these should be available, and they should also be enabled to acquire necessary skills. The need for this is shown by a recent example. a distinguished visitor (formerly Chief Inspector of Prisons) was invited to observe a victim-offender mediation session in a prison. The victims were three young women sharing a flat, which had been burgled. They met the burglar in prison, with a prison officer as facilitator, and told him the impact of feeling that their home had been violated and their possessions taken. The offender apologised, and told them of the difficulties he had faced in life, including alcohol and drug problems and not being able to read and write. He agreed to seek treatment for drug and alcohol addiction and to enrol for a literacy course. The young women asked him to write at intervals to let them know about his progress. The visitor saw the prison governor afterwards, and asked whether those programmes were available in the prison. The governor replied that they were not. The visitor was very critical of the fact that the governor allowed his staff to conduct a mediation in which the offender agreed to terms which, through no fault of his own, he would not be able to fulfil 36
In conclusion I should like to make two points. One is that restorative justice procedures provide an opportunity to look beyond the narrow legal question, such as Did this person commit this crime? In the course of discussing the context of the offence, participants will be able to see factors which offenders have in common. If many of them come from a certain school, or a certain district, or are members of an ethnic community such as Roma, the agencies responsible for social policy should look at those places and groups to see what social conditions are putting pressure on them to commit crimes. Then preventive measures can be taken – provided there is the political will..
Lastly, I suggest that above all we should put our faith in developing restorative practices in schools. Restorative principles are very simple, as we saw in the basic questions at the beginning, and teachers are finding that they make discipline easier and more educative. In February 2009 I visited the Riverside multi-agency project in Hull, a city in the north of England with a population of 250 000. It is working with twelve primary and two secondary schools and aims to introduce restorative practices to everyone who works with children. In one school, in 2007, an average of 60 pupils per week were made to leave their classrooms for misbehaviour; a year and a half later, the average was only one. In another, the average number excluded from school was reduced by 44%, and physical abuse by 40%.37 It is hoped that longitudinal research will be possible to see whether, in the course of time, the rates of crime and anti-social behaviour in that city will be reduced.