Better criminal law or better than criminal law?

Better criminal law or better than criminal law?

What restorative justice offers to victims and offenders

Paper for Building Bridges Project Conference, Rome, 19-20 November 2015

Now is an exciting time to be involved in the field of justice, because the way we look at it is changing, and the Building Bridges (BB) programme is part of that change. My own involvement has been mainly with restorative justice, in which BB could be included. There is more work to do, to gain wider acceptance of the new approach, and constantly to improve our practice; in addition, we need to think about how different parts of the movement can work better together. The next question is how both restorative justice and Building Bridges can work with the existing criminal justice system, which is still mainly based on traditional ways of thinking; and finally, looking further ahead, can they even (at least partly) replace it? This is the question suggested by my title, ‘Better criminal law or better than criminal law?’ which is taken from the German academic lawyer Gustav Radbruch1 (1878-1949).

Outline

Criminal justice has progressed from merely punishing offenders: it has added the idea of rehabilitating’ them, and more recently taking note of victims and involving them in the way offenders are dealt with. This is part of a new understanding in which the focus of criminal justice should not be on retribution but on repairing the harm caused by the crime, which is called restorative justice (RJ). It may be helpful to define terms, because they are not always used in the same way. I will use ‘restorative practices’ as the overarching term, with ‘mediation’ as conflict resolution through dialogue with facilitators, and ‘restorative justice’ for the same when the criminal justice system is involved. RJ is, firstly, a new structural approach, which can be practised in different ways. In the main version, individual victims and offenders can meet, sometimes in a ‘conference’ with other people present who were affected by the crime. We could call this ‘individual RJ‘. The Sycamore Tree model, used by Building Bridges in several countries, brings together representative victims and offenders in cases where the real ones do not wish to participate or cannot be found. We may call this ‘surrogate RJ‘, and we will say more about it below2. Secondly, RJ works on a different psychological principle: the authoritarian idea based on behaviourist notions of controlling behaviour by fear and the threat of punishment is replaced by the recognition that people reciprocate when they are treated with respect and empathy (Baron-Cohen, 2012; Wallis, 2014).

We will look at when individual RJ can be used, what is needed to make it work, especially legislation and infrastructure, and what to do when it cannot be used: one possibility is surrogate RJ, the Sycamore Tree Project (STP) method. Then we ask the same questions about STP.

Both individual RJ and STP can be used as community-based measures as well as during or after prison sentences (Johnstone 2015:12), and many will hope that they are steps towards reducing the over-use of imprisonment which is wasteful both of money and of human lives. Finally we will point to ways in which RJ, including STP, could be extended beyond criminal justice to other fields, such as neighbourhoods, workplaces and especially schools, as we work towards building a restorative society.

1. Introduction

An ancient idea, perhaps even an instinct, is that when people break the law, those in authority inflict pain on them. The underlying assumption is that people are motivated into acceptable behaviour by fear. There was also some early recognition of the idea of reparation: Zacchaeus, for example, in the biblical story, said that if he falsely accused anyone, he would make restitution fourfold (Luke 19: 1-10). But increasingly punishment became the norm – so much so that in several languages the law relating to wrongdoing is not called ‘criminal law’ but ‘penal law’ (diritto penale, Strafrecht, and so on: Wright, 2013b). The seriousness of a crime is measured, not by the harm done to the victim but by the maximum amount of punishment the government has decreed by legislation and the amount actually imposed by a judge.


Philosophers found various justifications, such as that it will deter offenders,
which it frequently doesn’t, or that it is self-evident that wrong-doing should be followed by punishment, although many of us would regard it as equally self-evident that causing harm should be followed by putting right the harm or making up for it, which could be called ‘reparative law’.. Another idea is that the length of a prison sentence is based on assessing culpability and harm (and then taking account of aggravating and mitigating circumstances and personal mitigation). It bears no relation to the length of time required to ‘reform’ the offender – even assuming that prison was an appropriate place to attempt that.3

2. Victims become visible

Around the 1970s people became aware that much attention was focused on perpetrators while victims were being ignored (Wright, 1977). Organisations to help victims were set up in several countries; the British one, Victim Support, received many complaints about the way in which victims were neglected by courts and prosecutors except as witnesses in a trial. It published a report (Victim Support, 1988) which did lead to some reforms, such as the Witness Service which was established in 1994. But in 2015 there were still complaints that Victims, witnesses and defendants alike can find appearing in court terrifying, humiliating or frustrating – or any combination of these’ (Jacobson et al., 2015: 18). Early attempts at victim-offender mediation4 were suspected of ‘using’ victims for the benefit of offenders, but at least they encouraged offenders to think of their victims, not only of themselves. Now the approach is more balanced, although sometimes the supposed wishes of victims are still used as a justification for punitive attitudes and harsh treatment of offenders. Victim Support now endorses R.J and its benefits for victims, offenders and the community (Victim Support, 2014).

a. A new structural principle

The idea of restorative justice using victim-offender dialogue has developed in two ways. One is a new structural principle, namely that instead of using professionals, people can resolve their conflicts themselves, with the help of mediators. Nils Christie (1977) famously wrote that the professionals have ‘stolen’ the conflicts. Mediation returns them to their owners, including victims and offenders. People who worked with offenders, rather than merely theorising about them, saw that many of them suffer from disadvantages in their education and upbringing, and their prescription was to ‘rehabilitate’ them; in many ways this was relevant to their needs, but while punishment was based on the idea of doing things ‘to’ them, the new insight was that ‘people are happier, more co-operative and productive, and more likely to make positive changes when those in positions of authority do things with them, rather than to them or for them’, as Ted Wachtel of the International Institute for Restorative Practices has pointed out (Wachtel, T., 2013: 8).

b. A new psychological principle

This provided a new psychological basis. The authoritarian idea was based on behaviouristic notions of controlling bad behaviour by fear and the threat of punishment, although for many people there was little reward for good conduct. As noted above, it is replaced by the recognition that people reciprocate when they are treated with respect. This introduces a new principle into criminal justice: not fear and punishment, not rehabilitation and treatment, but dialogue and empathy. This word itself is relatively new; the Oxford Dictionary records it as occurring in 1912, although the German Einfühlung came first, but I don’t know when it first appears in restorative justice literature. The interesting thing is that empathy tends to be mutual: the offender feels the pain he has caused to the victim, and often the victim feels the painful background from which many offenders come. This can transform their anger and other feelings.5

3. The restorative ideal

This is part of a new understanding that the focus of criminal justice should not be on punishment but on repairing the harm caused by the crime. The second part of the idea, which is not always possible, is that the victim can meet the offender one-to-one, in mediation sessions, or with others affected by the offence, in ‘conferences’. The restorative movement:

a. recognises the harm experienced by victims;

b. makes it possible, under the guidance of facilitators, for victims to tell offenders the effects of what they did, ask questions, and also learn about the offenders;

c. encourages offenders to recognise the harm suffered by the victim, and make some form of reparation; and

d. in this way it bases society’s response on making things better for the victim, and also for the offender if he or she needs it.

While originally RJ was used in the sense of an encounter between victims and offenders, such as in mediation, that concept has been considerably widened in recent years to include a variety of measures aimed at reparation of harm in daily life, and even includes such practices as those aimed at reparation of violations of human rights and historical injustices. What they have in common is the way in which dialogue is used, for example in ‘non-violent communication’ (Rosenberg, 1999).  

4. Restorative justice in practice

There are different ways of carrying out RJ. Individual RJ includes victim-offender mediation or conferences (which may bring in a wider circle of people affected by the crime), but this requires the victim and the offender to come together in the same room. ‘Shuttle’ (back-and-forth) mediation is also possible, but the evidence (Shapland et al. 2011: 98-9) suggests that it is less effective than face-to-face, and that when the victims and offenders are offered only the face-to-face option, they generally accept it. RJ doesn’t always require the parties to be labelled ‘victim’ and ‘offender’, and can be extended to non-criminal cases. Surrogate RJ (STP) is an extension of this, bringing together victims with groups of offenders whose crimes were committed against other victims, and using a different format (see Section 5 below).

The overall case for restorative justice has been persuasively made; there is a large quantity of research showing not only that the great majority of victims and offenders find it helpful, but also that it reduces the amount of offending (Shapland et al., 2011). Research is also being carried out on why it works (Rossner, 2013) and how to implement it (Walters, 2014; Thorsborne and Blood, 2013). In this paper I want to focus on when individual RJ can be used, and what is needed to put it into practice. Then we can ask the same questions about the surrogate version of RJ used in the Sycamore Tree Project (STP), described in Section 5 below.

a. When individual RJ can be used

The first way in which RJ can be used is to keep cases out of the criminal justice system altogether. (It is then often called ‘restorative practices’.) There are many cases where it is in the best interests of their relationship to treat the matter as a civil dispute: the criminal justice process is ‘civilised’ (Wright, 1982: 249-50; Cornwell et al., eds, 2013). Often this is preferable, especially when the case involved a dispute (or even a fight) between individuals who know each other.6 Both may have contributed to the conflict, so it is not always necessary to identify one as the offender and the other as the victim, and thus neither is responsible for causing the other to have a criminal record, with all the consequences that that may entail later in life. This is an exception to the principle that one person must admit to committing an offence before RJ can take place: the focus is not on determining blame, but with the help of the mediator they can reach an agreement about their future conduct, compensation or an apology if appropriate, or to continue (or discontinue) their relationship.

In jurisdictions where RJ is the norm, at least for juveniles, cases are referred automatically; there is no need for someone to check the list of cases to select suitable ones. Instead, the facilitators check, usually through an interview, to assess which cases are not suitable (e.g. likely to victimise, or be re-victimised by, the other person). These may be considered for the STP, or referred to the court.

Once a case has entered the criminal justice process, a feature of individual RJ is that it can be used at any stage. If legislation permits, the prosecutor may defer prosecution to allow an opportunity for a restorative settlement. Similarly, the courts can defer sentence: in England and Wales they can defer passing a sentence to enable restorative justice to take place (where both victim and offender are willing to participate) (Restorative Justice Council 2014).

When the accused admits guilt or is found guilty, the court can impose a non-custodial restorative sentence, under the Offender Rehabilitation Act 2014, but only if facilities are available. This can involve a restorative meeting if victim and offender are willing, or a partly restorative measure such as a reparative activity.7 Lastly, if a prison sentence is imposed, a restorative meeting can be arranged during or after the custodial sentence.

b. What does it need to make it work?

Much of this section applies both to individual and surrogate RJ. To be put into practice, RJ requires firstly legislation and secondly infrastructure, in addition to ongoing support and evaluation. There are different levels of legislation. Some laws neither prevent nor encourage restorative initiatives, in which case these will be dependent on an individual or group promoting them under existing law (Wigzell and Hough, 2015: 56-8). This also applies to RJ during or after a prison sentence. Secondly, legislation may mention it as an option, but without providing the machinery for it to be made available everywhere, as in the just-mentioned legislation in England and Wales. This too leaves it dependent on local initiative and on the attitudes of courts. Thirdly, as in New Zealand, the law can make a restorative process (family group conference (FGC)8) a standard part of the procedure for young offenders and their victims (Children, Young Persons and their Families Act 1989), and establish an agency to carry it out (Jacobson and Gibbs, 2009: 1-2). More recently, changes in New Zealand’s Sentencing Amendment Act 9 (in December 2014) mean that a court must adjourn certain cases involving victims to find out whether restorative justice is appropriate (Fulton 2015). In one area (Northland) this has doubled the number of restorative justice referrals from 32, with 6 conferences, in the first three months of 2014, to 76, with 22 conferences, in the same period in 2015. In Northern Ireland the Justice (Northern Ireland) Act 2002 provides that when a case is court-referred, the court must refer all young persons to a youth conference (except for a small number of very serious offences); the majority of young offenders (75 – 80 per cent) are dealt with informally, 10 – 15 per cent are given restorative cautions and only about 10 per cent are referred for prosecution (O’Mahony, 2008: 305, 376).

The countries which have succeeded in introducing restorative practice nationwide, at least for juveniles, are the ones which have established a national infrastructure using trained volunteer facilitators (Norway, Finland) or paid specialist staff (Austria, New Zealand, Northern Ireland). To make the programme universally available requires it to be either government-run, or operated by a securely (government) funded NGO, or what is called in the UK a ‘Quango‘, a quasi-autonomous non-governmental organisation. I think that would describe Neustart in Austria: it has a degree of independence, although this is limited by its dependence on government funding. The programme’s staff should be fully committed to RJ; if they are, for example, probation officers or prosecutors, they will only be able to manage restorative cases in the time they can spare from their main job (Wigzell and Hough, 2015: 46-8). There are advantages in using volunteers, because they are often available in the evenings and at weekends, and because they are members of the community (although they may not be typical representatives of it (Fonseca Rosenblatt, 2015) and they need good training and supervision. Norway has, from the outset, used lay mediators, managed by full-time professionals (Andersen, 2015), and most mediators in Finland are also trained volunteers (Kinnunen et al., 2012: 127). In England and Wales the situation is unclear: the probation service has been largely replaced by a ‘market’ in which a diverse range of rehabilitation providers from the for-profit, voluntary and social sectors operate through 21 Community Rehabilitation Companies (CRCs). Contracts were awarded in December 2014, and the Offenders Rehabilitation Act came into force on 1 February 2015, but it is not yet certain how many of the CRCs will provide RJ. Other RJ services are (or are not) commissioned by 41 elected Police and Crime Commissioners. All this makes funding very uncertain (Collins, 2015).

The next requirement is support for reparation. RJ and STP do not finish when the restorative sessions have taken place. The victim may need continuing emotional and practical support. As for offenders, they usually undertake to do certain things by way of reparation, and it is up to ‘us’, the rest of society, to make that possible for them by providing training, therapy, accommodation, work and other needs, including opportunities for constructive community service if that is the agreed form of reparation. The support needed for RJ to ‘work’ includes a public acceptance of the idea, willingness to use the RJ option when there are alternatives, and less punitive attitudes generally.

Last but not least, like any innovation, RJ needs evaluation (possibly action research, sometimes called Begleitforschung or accompanying research, in which the researchers work alongside the practitioners and advise them if required). There should also be feedback, of two kinds: to mediators, including mutual assessment when they work in pairs, and to social policy makers, to draw their attention to social factors associated with crime.

c. What to do when it can’t be used?

There are cases where there is no individual victim, or the victim or offender is unsuitable or unwilling to take part in individual RJ, perhaps because a face-to-face meeting risks being traumatic for the victim and hence would not be restorative. In these cases, and of course when the offender is not caught, the Sycamore Tree Project is a possibility. This will be considered in the next section. Alternatively, if neither RJ nor STP were possible, the case would go to court. If a more restorative philosophy of sentencing can be developed, a convicted offender would be required to make amends in a suitable way, including taking part in any programmes that made him or her less likely to re-offend, and possibly in research into factors linked to his offending. Imprisonment would be used where the offender persistently refused to co-operate, or there was a serious risk of serious re-offending.

5. Sycamore Tree Project

Now we ask similar questions about the STP. It brings together a group of offenders with people who have been victims of other offenders (often because ‘their’ offenders have not been caught). In one version, there are equal numbers of victims and offenders; others are more offender-oriented, and bring in one or more victims only to some of the sessions (Johnstone and Klaassen, 2015: 7), Another difference from individual RJ is that instead of a single session, the normal STP model provides a course of 6 to 8 sessions. Some victims take part in more than one set of sessions, which suggests that they are acting at least as much from altruistic concern for offenders as for their own recovery from the harm they have suffered.

a. When it can be used

As just mentioned, individual RJ encounters an obstacle if the victim or the offender is unwilling (and it has to be a voluntary process), or unsuitable, or unavailable. This is where the Sycamore Tree Process can come in.

The STP, on which BB is based, has its origins in Prison Fellowship International. It is stated that ‘Building Bridges is designed to be run in a range of settings, both inside and outside of prisons’, and that ‘[w]e also expect that the healing through well-facilitated restorative dialogues between victims and offenders can be achieved in other settings, such as peace circles in local communities’ (Johnstone and Klaassen, 2015: 7, 11), but its centre of gravity so far appears to have been in prisons. It does not appear to have the same degree of flexibility as individual RJ, as regards the stage in the criminal justice process where it can be used. Probation orders and suspended sentences with conditions are available under existing legislation in some countries, and we may hope that they will be available everywhere, preferably with RJ or STP specifically mentioned as one of the conditions which courts can consider imposing.

There have been isolated experiments on these lines before. In the youth institution in Hameln, Germany, a group of women (not victims) met with offenders convicted of rape, to change their attitudes and feelings towards women (Tügel and Heilemann, 1987). In another young offenders’ institution, in Rochester, England, a scheme called Victims and Offenders In Conciliation invited the local Victim Support Scheme to refer victims of burglary to groups of offenders (not ‘theirs’). The authors recommend that this is best done in groups, with offenders who have already been sentenced (Launay and Murray, 1989).

b. What does it need to make it work?

In addition to the points raised in Section 4b above, if Building Bridges is to be universally available, it will also have to consider how it fits into the existing system. Will it be an independent organisation, perhaps an offshoot of Prison Fellowship International, knocking on the door of the courthouse and asking for cases to be referred; or will it be state-funded, with a room in the courthouse, and risk losing some of its independence? For example, the Guide to establishing and running the Building Bridges Programme seems to accept that some prisons may require behaviour reports about participants (Johnstone and Klaassen, eds. 2015: 14), but this appears to conflict with the principle of confidentiality: ‘Anything said during a Building Bridges programme should be kept confidential’, (ibid. p. 16), which avoids putting the facilitator in the position of judging the offender’s behaviour.10 There is a tension between a universal state-run service with assured funding and voluntary organisations which are not available everywhere and are insecurely funded but may be more flexible and innovative. There is probably a need for a national organisation, independent but state-funded, or perhaps a quango, to support and monitor local services and promote new ones where they are needed.

At first projects will understandably be cautious about the types and seriousness of the cases which they undertake. In principle individual or surrogate RJ can be used in any type of case, subject to risk assessment. The dividing lines are: does the case have to enter the criminal justice system at all, or can it be dealt with as a civil conflict; if it enters the criminal system, can it be part of a community-based sentence; or is custody unavoidable, in which case either version of RJ could be offered during or after the sentence?

Any form of RJ, including the BB programme, needs evaluation, and the inclusion of research as an integral part is welcome. The feedback to practitioners and to social policy makers could contribute to socially just communities in Europe (Johnstone and Klaassen, eds., 2015: 12).

One aspect of STP has raised mild concern. The Guide rightly states that ‘facilitators need not have any particular qualifications or professional status, nor a background of work in criminal justice’ (ibid., p. 15), and this fits with a policy of diversity and equal opportunities. To paraphrase, they should be people just like us – or indeed different from us, if the movement is not going to be taken over by middle-class, educated, white people! The programme is open to those of all faiths and none; it is based on biblical principles, but most of these are in tune with restorative ones.11 The Christian inspiration is appreciated. But an early edition of the Guide also stipulates that the facilitator should be a Christian (ibid., p. 6), and there are some reservations about this. In a world full of such diversity of faiths, other sources uphold central RJ and STP values such as respect, confidentiality and being non-judgemental. Examples from several faiths are given by Hadley (2001). There should be no expectation that participants embrace the religion (if any) of the facilitator. At least one similar course was developed by a Muslim imam working in The Mount prison in England, based on the story of Joseph, victimised by his brothers (Genesis, chapters 37-47 – which happens to be a story shared by all three Abrahamic faiths) (Liebmann, 2010). The Muslim scholar Nawal Ammar writes that ‘[a]ccording to most interpretations, Islam allows for the encounter between victim and offender, it imposes reparation of one kind or another, and to some degree permits participation of all parties’ (Ammar, 2001: 178), although she concedes that more work is needed to provide a clearer picture of Islam and restorative justice, and specifically the place of women in such a view of justice. All can follow the cardinal principles of RJ, including STP. For example, the Buddha taught the Noble Eightfold Path, and Lao Tzu conceived the Tao, the Way: there are many paths up the mountain.

c. What to do when STP can’t be used?

For offenders who were unwilling to take part, or unsuitable for any other reason, the sentence would be imposed by the court, and would ideally be a restorative one as described above.

6. Justice in a restorative society

Individual restorative justice and the Sycamore Tree method could form complementary parts of a restorative system of justice, and their potential for a more harmonious society could be even greater. Those who believe that courts and prisons are essential for social control need not be worried. This proposal is minimalist, not abolitionist, but it envisages a substantial transfer of resources to community-based programmes, and the proposal for peace circles in local communities is welcome (Johnstone and Klaassen, eds., 2015: 11). It is voluntary and non-custodial as far as possible, but compulsion and custody remain as a last resort. Even then individual RJ or STP is an option which can be added voluntarily to the compulsory measure.

Just as the number of offences for which the death penalty could be imposed was progressively reduced, and then public executions were abolished, then corporal punishment, can the criminal justice system be gradually modified? Many reformers believe that the time has come for imprisonment to be progressively replaced by community-based measures and the prison population reduced, as has been achieved in Finland (Lappi-Seppälä, 2013), and a group of British scholars and practitioners has made a case for this in a publication entitled A presumption against imprisonment (British Academy, 2014).

To sum up, harmful behaviour could then be dealt with in a number of ways. If it was not criminal, or the person harmed did not wish to treat it as criminal, they could go to a mediation centre instead of to the police. If they did report it (provided the accused did not deny the act, and the victim was willing), the case could be referred to a mediation centre to assess the possibility of a restorative meeting. Assuming that the law permitted it, this referral could be made by the police, the prosecutor or the court: proceedings would be suspended, conditional upon an agreed outcome of the process.12 When a case proceeded all the way to court, conviction and sentence, the non-custodial sentence could still include a restorative measure.13 In all of these situations, especially if the victim is not willing to take part, or there is no individual victim, the Sycamore Tree Project would be an option, but this too would depend on its local availability. Finally, restorative justice can be used during or after a prison sentence, including STP, as the Building Bridges project has shown.

The campaign to make restorative measures acceptable is well under way, especially in countries where there is a national organisation to champion them. In England and Wales, for example, one survey found that 88 per cent of people agreed that victims of theft and vandalism should be given the opportunity to inform offenders of the harm and distress they have caused; and 71 per cent believed that victims should have a say in how the offender can best make amends for the harm they have caused (Bromley Briefings 2014: 79). The problem in many countries is to ensure that local services, adequately managed and supervised, exist to deliver the programmes.

There is cause for optimism in the fact that restorative practices are spreading beyond the justice system, for example in schools, workplaces, and even to respond to historical injustice and gross violations of human rights, such as the Truth and Reconciliation Commissions in South Africa and elsewhere. This has led to the idea of a ‘restorative city’. What would a restorative city be like? Looking to the future, a city or municipality would begin with children. Schools would be encouraged to use restorative practices, which have been found to reduce truancy and exclusion for bad behaviour. Children would learn restorative values such as respect and non-violent communication (Rosenberg, 1999), and many of them would become mediators or would have experience of the mediation process. Children’s services would aim to be child-friendly, especially towards children who were disadvantaged or harmed. Family group conferences, in which the child would have a voice, would be used to make decisions affecting children, and the extended family would be regarded as a resource. As few children as possible would need to be looked after by the state. In The Netherlands, the Law on Child Welfare gives every citizen, as of January 1, 2015, the right to make their own plan first when social services has been called upon to intervene in the care of a child or adolescent. The NGO Eigen Kracht (Our Own Power), which campaigned for the new law, has a database of 800 trained coordinators throughout the country: paid citizen volunteers who may facilitate several FGCs each year. They are independent and are seen as a bridge between the world of citizens – family and friends – and the world of professionals, who have the authority to intervene. Eigen Kracht also deals with young offenders and adults (Nederlands Jeugd Instituut, 2011; Wachtel, J., 2015 ).

Restorative values would also be spread through local communities. Local services could be made responsible for establishing (and publicising) mediation, with a national NGO to maintain standards. If a conflict arose between children, family members, neighbours, or work colleagues, their first call could be to the mediation service; legal action would be the last resort. Complaints by citizens against, for example, a doctor, social worker or police officer could initially be handled similarly. Restorative (participative) management of an organisation can reduce the number of disputes, and when they occur, mediation can be offered. Some of us are beginning to think of RJ as a way of life or a guiding principle to be used whenever we engage in social interactions, and we may hope that where children can learn from their early years to resolve conflicts with respect for the other person, through dialogue, facilitated by mediators if necessary, they will grow up to create a more restorative society.

I am grateful to Kate Akester, Teresa Reynolds and Margarita Zernova for comments on drafts of this paper, but responsibility for the content and any errors is of course mine.

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Rossner, M. (2013) Just emotions: rituals of restorative justice. Oxford: Oxford University Press.

Shapland, J., G. Robinson and A. Sorsby (2011). Restorative justice in practice: evaluating what works for victims and offenders. London and New York: Routledge.

Thorsborne, M., and P. Blood (2013), Implementing restorative practices in schools: a practical guide to transforming school communities. London and Philadelphia: Jessica Kingsley.

Tügel, H., and M. Heilemann , eds (1987 ) Frauen verändern Vergewaltiger. Frankfurt am Main, Fischer Taschenbuch Verlag.

Victim Support (1988) The victim in court: report of a working party.. (Chairman: Lady Ralphs.) London: Victim Support.

Victim Support (2014) ‘Victim Support celebrates Restorative Justice Weekhttps://www.victimsupport.org.uk/about-us/news/restorative-justice-week., accessed 4 November 2015.

Wachtel, J. (2015) ‘New Dutch law puts family power first. Restorative works, February 13, https://restorativeworks.net/2015/02/dutch-law-puts-family-power-first/ ,accessed 7 November 2015.

Wachtel, T. (2013) Dreaming of a new reality: how restorative practices reduce crime and violence, improve relationships and strengthen civil society. Pipersville, PA: Piper’s Press.

Wallis, P. (2014) Understanding restorative justice: how empathy can close the gap created by crime. Bristol: Policy Press.

Walters, M.A. (2014) Hate crime and restorative justice: exploring causes, repairing harm. Oxford: Oxford University Press.

Wigzell, A., and M. Hough (2015) The NOMS RJ Capacity Building Programme: a study of the quality of participant and implementation experiences. London: Institute for Criminal Policy Research and Birkbeck University London.

Wright. M. (1977) ‘Nobody came: criminal justice and the needs of victims.’ Howard Journal, 16(1), 22-31.

Wright. M. (1982, repr. 2008) Making good: prisons, punishment and beyond. Hook, Hampshire: Waterside Press.

Wright, M. (2013a) ‘Could a restorative system of justice be more civilised than a punitive one?’ In: D.J.Cornwell, J. Blad and M. Wright, eds. Civilising criminal justice: an international restorative agenda for penal reform. Hook, Hampshire: Waterside Press.

Wright, M. (2013b) ‘Restorative justice: the search for the mot juste.’ Restorative justice, an international journal.1(1).

Rome 2015 Better than criminal law

1“[N]icht die Verbesserung des Strafrechts, sondern der Ersatz des Strafrechts durch Besseres, durch ein ‘Besserungs- und Bewahrungsrecht’ ” Cited in http://criminologia.de/2009/11/gustav-radbruch-1878-1949/ , accessed 17 October 2015: ‘Not the improvement of the penal law, but the replacement of the penal law by something better, by a reformative and preventive law’ (Transl. MW).

2Daniel Van Ness questioned the term ‘surrogate’, in his presentation to the conference, on the grounds that it means a person who acts on behalf of someone else.The dictionary meanings include ‘substitute’. No better term has suggested itself so far.

3In England and Wales, the Criminal Justice Act 2003 lists five different, and in some ways incompatible, purposes of sentencing: punishment, crime reduction (including deterrence), rehabilitation, protection of the public, and reparation.

4This paper will make no hard-and-fast distinction between victim-offender mediation and individual restorative justice.

5More evidence is needed about possible effects on offenders from a privileged background if they were to meet those who were harmed by their financial malpractice, environmental destruction, sale of inadequately tested pharmaceuticals and other exploitation (Braithwaite, 2002; Wright, 2013a: 383-5).

6This may include the controversial case of domestic violence, where concerns have been raised about, for example, power imbalance between the parties, but methods have been developed for handling it effectively (Pelikan 2010).

7 In England and Wales most first-time juvenile offenders are referred to a youth offender panel, where victim involvement is possible but not very common (Fonseca Rosenblatt, 2015).

8 The FGC process brings in family members and others affected by the young person’s actions. It also includes a period in which professionals, after providing information, leave the room, so that the family can work out its own plan.

  • 9 The following section is inserted before section 25:

24A Adjournment for restorative justice process in certain cases

(1) This section applies if—

      • (a) an offender appears before a District Court at any time before sentencing; and

      • (b) the offender has pleaded guilty to the offence; and

      • (c) there are 1 or more victims of the offence; and

      • (d) no restorative justice process has previously occurred in relation to the offending; and

      • (e) the Registrar has informed the court that an appropriate restorative justice process can be accessed.

(2) The court must adjourn the proceedings to—

(a) enable inquiries to be made by a suitable person to determine whether a restorative justice process is appropriate in the circumstances of the case, taking into account the wishes of the victims; and

(b) enable a restorative justice process to occur if the inquiries made under paragraph (a) reveal that a restorative justice process is appropriate in the circumstances of the case.”

10If a court (pre-sentence) or a prison insisted on this, it would be necessary to make participants aware of it before they agreed to take part.

11But some are not: see some examples from Leviticus and Deuteronomy quoted by Zehr, 1995: 127; also Esther, 9: 1-16; Hoyles, 1986: 3-14

12As noted above, in England and Wales the Crime and Courts Act 2013 allows courts to defer sentence to provide an opportunity for a restorative meeting, but only if arrangements are available.

13Also in England and Wales, one option under the Offender Rehabilitation Act 2014 is a rehabilitative activity requirement which may include a restorative process. At the time of writing, however, provision of suitable arrangements throughout the country is uneven.

David Blunkett’s big idea

David Blunkett’s big idea

The government will says this week that it is introducing “restorative justice”. It is an idea could transform the way that criminal justice works. But will ministers that it is about much more than cleaning graffiti or picking up litter?

The Observer Crime and Justice debate

Martin Wright

Sunday 14 July 2002 02.46 BST

This week’s White Paper will see the government put criminal justice reform at the centre of the political agenda. But, like King Canute showing his credulous courtiers that he couldn’t control the tide, Lord Justice Auld commented in his report on the criminal courts 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”.

The problems are well known and David Blunkett will rehearse them again on Wednesday. Courts keep victims waiting around, subject them to demeaning cross-examinations, and often give offenders a mere walk-on part. The background to the case is excluded, victims can’t ask offenders for explanations. Overload causes inefficiency which aggravates overload.

The British Crime Survey has shown that a third or less of victims wanted prison for ‘their’ offender for crimes such as burglary or mugging (preferring community measures or cautions), and the Home Office’s review of sentencing, the Halliday report on Making Punishments Work repeats yet again that the younger the offender and the shorter the sentence, the higher the reconviction rates. The courts’ response: to impose more short sentences and lock up more young offenders. This ingeniously aggravates both the prison crisis and the crime rate.

A new idea is obviously needed. There is one – it is called restorative justice – but the government has not yet understood it. Hopefully the White Paper, which will pledge allegiance to the idea, will show a fuller understanding of what it means? The common mistake is to think it means a new form of punishment, such as cleaning graffiti or picking up litter. Ministers need to undersyand that this is a distinct philosophy of criminal justice which could supersede the problematic ‘just deserts’ (proportionate punishment even if it doesn’t work) and ‘utilitarian’ (aim for what ‘works’, even if it isn’t proportionate).

Restorative justice starts by re-thinking the aims of the criminal justice system. The first priority should be the victim, and the help offered by victim support agencies. If the offender is found (and only a minority are) the process itself should encourage him or her to acknowledge the harm caused, and put it at least partly right. Many victims welcome the chance to tell the offender the effect of what he did, and ask questions such as ‘Why did you pick on me?’

One young man violently robbed a woman at a bus station in broad daylight. He agreed to meet his victim, with his mother; the victim brought her friend. She told him how frightened she had been; and he explained that he wanted money to buy new clothes for a big party. His mother was shocked at what he had done. The victim was not so concerned about the money, but wanted the robber to do something for people less fortunate than himself. It was arranged that he would work on a project teaching disabled children to swim. (Details changed to preserve anonymity.)

More than this, restorative justice involves people in the community as far as possible. Mediators are often volunteers, managed by a voluntary organisation; this spreads understanding of the issues. An accreditation system is being introduced to ensure high standards. In one version called ‘conferencing’, the offender’s extended family, and other people who matter to him, are invited to meet and work out a plan to help him stay out of trouble; the victim, with family or friends, can also attend, talk with the offender, and discuss reparation. Offenders are more likely to complete reparation they have agreed to than if it is ordered by a court. Often an aunt or a grandparent, rather than an official, will provide supervision.

Where does this leave deterrence? For many offenders ‘taking their punishment’ is a badge of courage; the embarrassment of meeting their victim (and their own family) is much harder to face. Being found out remains the primary deterrent. Punishment encourages them to deny or minimize the harm they have caused the victim. In a restorative process they talk more freely about their background; often this will show up a pattern of high unemployment in the area, few youth clubs or inadequate schools or colleges. This can then be fed back to those responsible for crime reduction strategy, and ultimately to social policy.

How would it work? Minor offences should get a restorative caution, already pioneered by Thames Valley police, emphasising the harm to the victim rather than threatening punishment next time. Many crimes such as assault, arising from a dispute, could go straight to mediation to resolve it; prosecutors would divert more serious cases, where the accused did not deny involvement, to mediation or conferencing. If the victim and offender were satisfied, it would no longer be in the public interest to take up court time with the case.

The White Paper should therefore promote community-based mediation services nationwide. Courts would then reduce their backlog, and have more time for the most serious cases; even here, conferences could be used to work out a plan on which to base the sentence. In New Zealand youth courts, where this is done, judges generally follow the recommendations; the use of courts and custody dropped dramatically.

Extensive research on restorative justice shows more victims are satisfied, more offenders feel fairly treated, and fewer re-offend, but too few victims are told about it. The law needs amending to make it more restorative and more mainstream. Surely this could be an all-party crime policy.

Martin Wright is the author of Restoring respect for justice (Waterside Press 1999). Find out more at the Restorative Justice Consortium website.

Email Observer site editor Sunder Katwala at observer@guardianunlimited.co.uk with comments on articles or ideas for future pieces. You can write to the author of this piece at rjconsortium@btconnect.com.

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Why Restorative Justice can be seen as more civilised than Criminal Justice

 

12.10.2014

 

 

 

 

 

S’il y avait un peuple de dieux, il se gouvernerait
 
démocratiquement. Un gouvernement si parfait
 
ne convient pas à des hommes.

 

Rousseau, Du contrat social, 1762.

 

 

An essential feature of a civilised society is that people treat each other decently1. The means by which they encourage each other to do so should be decent, and also the response when they do not. But as well as being decent, it needs to be effective. This paper will argue that a society is more civilised when it is based on consent, ideally on internalised ethical standards or failing that on peer pressure and persuasion, and repair of harm; less so when it relies on compulsion, stigma and punishment. It will consider some principles which should be met in a civilised society, and how far the traditional criminal justice and the restorative approaches meet them. It will critically review the place of sentencing. Finally it will propose a model for a restorative, or civilised, society.

 

 

How is social control exercised in a democracy? The ideal is self-control: people are brought up to behave decently, and normally do not lower themselves by hurting someone else, or going against accepted norms which are set for the common good although they may not have individual victims. This is reinforced by peer pressure: people whose respect we value would think badly of us if we fell below the standard. This control is mostly exercised by persuasion, although sometimes peer pressure involves punishment, verbal or even physical. But some forms of behaviour are so damaging that they have been labelled as crimes, and the state takes responsibility for the control. The next question is, how does it enforce the control? We have become accustomed to thinking that it should automatically use punishment, and this is where it becomes less civilised.

 

 

The gradual civilisation of criminal justice

 

To say that restorative justice is more civilised than criminal justice is not to say that the latter is uncivilised. Over the years it has become considerably less brutal, and safeguards have been introduced. The stocks and the pillory, transportation, branding, flogging, public executions, and in most Western democracies the death penalty, have been abolished as being not only inhumane but ineffective. For example, the accused can have a lawyer to defend him or her, and the prosecution is required to reveal relevant evidence to the defence. In England and Wales, however, some safeguards have been eroded recently, such as the right to challenge the selection of jurors, the principles of the right to silence and double jeopardy (ne bis in idem), as well as safeguards for accused people, and legal aid has been severely cut (Kennedy, 2005: 4). Until the late 20th century, the criminal justice process paid little attention to the needs and feelings of victims. An attempt has been made to remedy this by allowing them to make ‘victim personal statements’ (BBC, 2014), but it is not clear whether these are intended to affect the sentence, which could be problematic, or merely to be an exercise in catharsis and ‘being heard’ (Sanders et al., 2001). A judge was recently criticised for pointing out, after a parole hearing, that the statements ‘make no difference at all’ (Dodds, 2014).

 

 

The relic: punishment

 But in one important way criminal justice is not civilised – yet! It is still based on, and even defined by, the use of punishment. This is not of course to say that wrongdoing should incur no consequences, but they should be purposeful ones. According to the jurist William Geldart (1984: 146):

 

The difference between civil law and criminal law turns on the difference between two different objects which law seeks to pursue – redress or punishment. The object of civil law is the redress of wrongs by compelling compensation or restitution: the wrongdoer is not punished; he only suffers so much harm as is necessary to make good the wrong he has done. The person who has suffered gets a definite benefit from the law, or at least he avoids a loss. On the other hand, in the case of crimes, the main object of the law is to punish the wrongdoer; to give him and others a strong inducement not to commit same or similar crimes, to reform him if possible and perhaps to satisfy the public sense that wrongdoing ought to meet with retribution.

It has often been pointed out that in several languages criminal law is actually called ‘punishment law’ (e.g. Wright, 2013a: 59-60; 2013b).

 

Principles for a civilised system

 There are certain principles that should be followed in order to maintain a civilised society, and these principles, I suggest, are not met as long as punishment is used as the basis for criminal justice. It is suggested that these include:

 1) The state should not inflict pain on its citizens unless there is no alternative

The infliction of pain could only be justified if it could be shown to be more effective than other methods. There are many alternatives, mostly based on rehabilitation and/or reparation, comprehensively reviewed for example by Bottoms et al. (2004). There is much evidence that punishment does not work, or works only temporarily, or can even be counterproductive (Wright, 2008: chapter 2). As regards prison in particular, figures from the English Ministry of Justice show that court-ordered community sentences are more effective (by over eight percentage points) at reducing one-year proven re-offending rates than custodial sentences of less than 12 months for similar offenders (Prison Reform Trust, 2013: 11). A major study of restorative justice, using random controlled trials, found a significant decrease in the frequency of reconvictions over a two-year period: a difference of 14 per cent (Shapland et al., 2011: 170-1).

 There are two ways of looking at this from a restorative point of view. Firstly, RJ does not work on the behaviouristic punishment-reward basis, but provides an opportunity for people to feel empathy for each other, and to change their feelings and behaviour accordingly. Of course this will not always happen, but deterrence doesn’t always work either. Secondly, the restorative process is not a ‘let-off’: it makes a person spend time in a way he or she would not choose, and it may indeed cause pain, but what may be called ‘the right sort of pain’, which results from realising that one has caused harm to another person.

 2) The state should not use coercion if persuasion is adequate

 As the English Home Office put it in 1990:

 It is better that people should exercise self-control than have controls imposed upon them … If they can develop the skills necessary for life and work, this should encourage greater self-reliance and respect for others; there should be less incentive to offend again. (Cited by Faulkner and Burnett, 2012: 47.)

 Restorative justice is a voluntary process: not entirely, because the alternative is to appear in court, but the accused can refuse to take part, and some are so scared of meeting their victim that they prefer to face a judge. It aims to make people want to behave decently to each other. This can’t be compelled, of course, any more than a plant can be compelled to grow, but we can provide the right conditions for it to grow, which is what the restorative process does.

 3) Social control should be promoted through enabling aspiration, not through threats and fear

Provided that people’s basic needs are met (food, security, employment etc.) the way to persuade them to act more responsibly is not through control and the threat of punishment, but rather through encouraging and enabling them to focus on higher-order needs such as friendship and family, self-esteem, respect for others, and self-fulfilment (McGregor, 1960; Maslow, 1970). It is important to meet offenders’ basic needs: ‘the integration of ex-offenders into the community is more likely to succeed with a service that is problem-solving and empowering as opposed to one that is essentially surveilling and controlling’ (Faulkner and Burnett, 2012: 140). This means that there is a responsibility on ‘us’, the rest of society, to meet those needs, as well as on the offender to respond.

 

 4) The system should follow its own principles

 An organisation that promotes self-determination should itself be run on participatory lines, with a ‘flat’ management structure; otherwise it will fall into the trap of saying in effect ‘Don’t do as I do, do as I tell you.’

Restorative justice can be delivered by independent organisations, which often provide other services such as mediation in the community or the workplace; they have an opportunity to set an example by managing themselves in a restorative way. Not all live up to this principle, however; some have a hierarchical structure, and so do RJ providers who are working within criminal justice agencies.

 5) Crime reduction should focus on reduction on pressures towards crime, rather than on deterrence

Reviewing the research literature on rehabilitation, Faulkner and Burnett (2012: 64-5) saw a prospect of ‘increasing investment in ineffective law enforcement, further pressure on the penal system, and an indefinite need for further prison building, with little impact on people’s experience of crime or on their safety and wellbeing generally’. Instead, they recommended the ‘justice re-investment’ approaches, based on meeting local needs, ‘which channel resources on a geographically-targeted basis to reduce the crimes which bring people into the criminal justice system and into prison in particular’ (House of Commons Justice Committee, 2009: 5).

 

A standard argument for punishment is that it is necessary to deter people from committing crime, but it is widely accepted that the primary deterrent is the likelihood of being caught. Until the 18th and early 19th centuries there were barbaric punishments, including death or transportation to the colonies for small thefts – but crime continued. Criminals could be flogged – they would boast of their scars, pride themselves on not crying out, and would feel like revenge (Clay, 2001: 26-27, 36-37). Even the risk of death does not deter some young people from experimenting with ‘legal highs’ (untested new drugs) (Boseley, 2014). In contrast, a recent example shows how crime can be cut by targeted preventive measures with no mention of increased punishment:

 In 2011 there were nearly 1,000 incidents of cable and other [railway] equipment being stolen, but in 2014 there were just 43 incidents up until August. Though factors such as improved security and a fall in the once sky-high prices for scrap metal have contributed, much of the decline is being attributed to legislation last year which required all metal dealers to be licensed, and granted police and councils enhanced powers to inspect their yards. The Scrap Metal Dealers Act 2013 also required sellers to prove their identity when [selling] scrap (Milmo, 2014).

The restorative process is based on explanations, not excuses, and provides an opportunity to learn about pressures towards crime. The information could be passed to the authorities responsible for social policy, but this feedback has not yet been built into restorative services.

 The problem with sentencing

The trouble with sentencing is that it is trying to do several incompatible things at the same time: to punish offenders, reform and rehabilitate them, and require them to make reparation (Crime and Justice Act 2003, sec. 142); and to deter the rest of us and thus to reduce crime and protect the public. To complicate this there is the concept of denunciation of crime combined with proportionality: sentence lengths are largely based on an arbitrary attempt to make them correspond to the seriousness of the offence, measured in the number of months or years for which a person should be imprisoned and not on what is most likely to persuade and enable them to turn their lives around. This is unfair to them and unhelpful for society. We need to look again at the whole question of punishment, which has been called harming people who harm people to teach people that harming people is wrong (Northey, 2014).

Ultimately the state must use compulsion to maintain social control, but it has a duty to do this in a coherent manner; to do it in such a muddled2 way is not civilised.

 Unintended consequences

Current sentencing in England and Wales, as we have seen, is based on the idea of punishment, and we should not ignore its unintended consequences such as defiance, resentment, and collateral damage to prisoners’ families, especially children. Moreover, it is unjust to impose a heavier sentence on a person than he or she deserves in the uncertain hope of deterring others. It is supposed to deter the individual from offending again, but often makes it more difficult for him or her to desist. As far as deterring others is concerned, it only works if they believe there is a big chance of being caught, know the possible penalty, have stopped to think about it, and so on. The root of the word ‘deterrence’ is ‘terrere‘, to terrify, and many of us do not consider a society governed by fear to be civilised.

Intended consequences

In criminal justice, offenders are told, ‘If you commit a crime you will be punished’. In RJ, they are told ‘If you harm someone, you will face the consequences’, which sounds ‘tough’ but also includes reparation, apology, community service, and/or co-operation with rehabilitative programmes. Using the word ‘harm’ makes it possible to avoid the stigma of a criminal conviction.

 Unresolved issues

There is however an unresolved issue about proportionality. If the victim wants little or no reparation, or does not take part, or there is no individual victim, the consequences can take the form of community service – but how much of it? If the victim asks for excessive reparation for a minor offence, should the facilitator or a judge decide, and how should they decide? Advocates of restorative justice appear to have given little attention to these questions. One suggestion is to retain the idea of relating the length of the sentence to the seriousness of the offence (perhaps to the pain suffered by the victim), but to suspend imprisonment as long as the offender was complying with an agreed reparative and/or rehabilitative programme, and was not a danger to the public (Wright, 2013c).

 A framework for a restorative society

We tend to regard a civilised society as meaning much the same thing as a democratic one. That means much more than electing a parliament every few years, and includes all the non-governmental organisations and local groups which make things happen in civil society. Bearing this in mind, what might a restorative society look like? It would be inappropriate to propose a one-size-fits-all plan for countries with very different cultures and traditions, but as a starting-point for discussion we might consider a model with roots in civil society, which would be promoted both from the top down and from the bottom up. Each area could be encouraged, or even required, to establish a mediation service to carry out restorative practice, and promote understanding of restorative principles. This would create a network of local mediation services, overseen by a national non-governmental organisation to provide support, standards, a code of practice, and accreditation, and to speak for the mediation and restorative practice movement. They would each have a small staff for administration and to mediate complex and sensitive cases, but most of their work would be done by trained lay mediators. They would spread knowledge of mediation and restorative justice locally, and train prospective mediators. An example on these lines is Eigen Kracht (‘Our own power’) (n.d.) in the Netherlands. This NGO uses the New Zealand model of family group conferencing as a decision making process for citizens, especially when dealing with organizations and government bodies, resulting in a plan made by people from their own social network. Alternatively the services could be provided on a statutory basis, as in Norway (Andersen, 2013) and Finland (Lappi-Seppälä, 2013: 516-7)

 Restorative practice in schools

Local mediation services would begin by spreading a restorative approach as the basis for relationships and discipline in schools and other services and institutions working with children, so that young people from their early years would be accustomed to handle relationships restoratively (Hopkins, 2004; Claassen and Claassen 2008). Schools would play an especially important part in showing the new generation a civilised way of expressing feelings and resolving conflict. Restorative principles would be part of the training of teachers, the staff of children’s homes and youth clubs, foster parents and adoptive parents as well as youth justice workers.

In the country as a whole there could be a four-level process.

 First level.Restorative management and decision-making

 Most of us have been to meetings where everyone sits in rows, staring at the backs of other people’s heads. A few speakers may be on the platform, but when they have finished there is limited time for questioning, and it is hard to pursue a complex point for fear of hogging the discussion. Instead, when local RJ/mediation services have spread knowledge and understanding of restorative practices, restorative decision-making through structured discussion can be used. Typically, the participants sit in a circle, or several circles, each with a facilitator and representatives of different interests; everyone gets a chance to speak, and views and proposals are consolidated at the end.

An example of restorative management (or ‘flat’ management, as mentioned above) is given by the Australian sociologist John Braithwaite. Standards were too low in nursing homes, and did not improve when inspectors prosecuted for breach of regulations, and the nursing home was fined. He brought together owners, management, staff, patients and/or relatives. The massive rule book was thrown out; instead they agreed just 31 principles which were the key to a well-run home. Then they met again at intervals to see how things were going and whether they could be further improved. Inspectors concentrated on good points for which they could praise, and found that standards went up (Braithwaite, 2002: 17-18).

In a review of regulatory sanctions in England and Wales, Professor Richard Macrory found support for restorative justice from the Trade Union Congress and British Chambers of Commerce, and recommended using it in cases of regulatory non-compliance. He pointed out that offenders, including white-collar offenders, will often be very nervous about facing those they have harmed, and the agreed remedy could amount to a significant burden on the offender (Macrory, 2006: 72).

Where possible, decisions are reached by consensus; otherwise a preferential voting systemcan be used. A well known system is the Borda Count, which is promoted in Northern Ireland by the De Borda Institute3.

 Second level. Conflict resolution

In this way some conflicts could be avoided from the outset. But when they do inevitably arise, the first resort would be mediation, which could be provided by local mediation services. It can be used at an earlier stage, and have a preventive function.The conflicts would be handled in a problem-solving fashion, using restorative practices for conflict resolution, agreeing on the repair of harm, and on the method of communication to be used in the event of further problems. They could also offer mediation in the family, in the workplace, between neighbours and so on.

 Third level. Reparation

When the conflict resulted in actual harm, this could also go to mediation. Some incidents could be classified as criminal, but it is not always in the public interest, or anyone else’s, to do so. They might work on the principle ‘when in doubt, keep it civil’.

 Fourth level. Restorative justice

 Only when the harm is so great that the state must step in would cases need to be processed through the criminal justice system. In cases where the restorative process could not be used (e.g. because the offender denied responsibility or refused to comply, or there was a serious danger of serious re-offending) it would be backed up by the courts. When the accused was convicted, the sanction could still be a restorative one as far as possible, for example community service would be seen as reparation, not punishment, and fines would be regarded as reparation for the harm caused and the cost of law enforcement, rather than as punishment. There would be built-in feedback to pass information about social problems leading to conflict and crime to the representatives and authorities responsible for social policy.

So only the highest level of wrongdoing would involve the criminal justice system, and even there, possibilities exist for restorative processes. Wherever possible a civil procedure would be used.

A society based on these values would depend on respect and co-operation rather than on power and fear. In the last quarter-century we have begun to learn how to live in harmony with the planet; now it is time to learn to live in harmony with each other.

 

= = = o o o 0 o o o = = =

 

REFERENCES

 

Andersen, P (2013) ‘Development of restorative justice practices in Norway’. In: D Cornwell, J Blad and M Wright, eds. Civilising criminal justice: an international restorative agenda for penal reform. Hook, Hampshire: Waterside Press.

 BBC (2014) ‘Victims of crime law planned by government’ . http://www.bbc.co.uk/news/uk-29193548 accessed 15.9.2014

 Boseley, S (2014) ‘Danger of death doesn’t deter those dabbling in dark world of legal highs’. Guardian, 5 July.

 Bottoms, A, S Rex and Robinson, eds. (2004) Alternatives to prison: options for an insecure society. Cullompton: Willan Publishing.

 Braithwaite, J (2002) Restorative justice and responsive regulation. New York: Oxford University Press.

 Claassen, R and Claassen, R (2008) Discipline that restores:  strategies to create respect, cooperation, and responsibility in the classroom. South Carolina:  BookSurge Publishing, 2008. (www.disciplinethatrestores.org )

 Clay, J (2001) Maconochie’s experiment. London: John Murray.

 Dodds, L (2014) ‘Judge says victim statements make ‘no difference’. Daily Telegraph, August 5. http://www.telegraph.co.uk/news/uknews/crime/11012431/Judge-says-victim-statements-make-no-difference.html, accessed 6.10.2014.

 Eigen Kracht (n.d.) What we do. (http://www.eigen-kracht.nl/en/inhoud/what-we-do , accessed 3.10.2014)

 Faulkner, D, and R Burnett (2012) Where next for criminal justice? Bristol: Policy Press.

 Geldart W (1984) Introduction to English Law. 9th ed. by D.C.M. Yardley. Oxford and New York: Oxford University Press.

 Hopkins, B (2004) Just schools: a whole school approach to restorative justice. London: Jessica Kingsley.

 

House of Commons Justice Committee (2009) Cutting crime: the case for justice reinvestment. First report of session 2009-2010, HC94. London: The Stationery Office.

 Kennedy, H (2005) Just law: the changing face of justice – and why it matters to us all. London: Vintage.

 Lappi-Seppälä, T (2013).Downsizing the use of imprisonment in Finland.’ In: D Cornwell, J Blad and M Wright, eds. Civilising criminal justice: an international restorative agenda for penal reform. Hook, Hampshire: Waterside Press.

 Macrory, R B (2006) Regulatory justice: making sanctions effective. Final report. London: Better Regulation Executive, Cabinet Office.

 Maslow, A (1970) Motivation and personality. 2nd ed. New York: Harper & Row.

 McGregor, D (1960/2006) The human side of enterprise. Annotated edition. New York: McGraw-Hill.

 Milmo, C (2014) ‘Rail delays caused by metal thieves slashed by successful new laws’. Independent, Sunday 14 September.

 Northey, W (2014), ‘A brief look at restorative justice’, Justice Reflections, (35), no. JR240.

 Prison Reform Trust (2013) Prison: the facts. Summer 2013.

 Sanders, A, Hoyle, C., Morgan, R. and Cape, E. [2001] “Victim impact statements: don’t work, can’t work”, Criminal Law Review, 447-458.

 Shapland, J, G Robinson and A Sorsby (2011) Restorative justice in practice: evaluating what works for victims and offenders. London and New York: Routledge.

 Wright, M (2008) Restoring respect for justice. 2nd ed. Hook: Waterside Press.

 Wright, M (2013a) ‘Gerechtigkeit (wieder)herstellen: wenn Theorie, Gesetz und Praxis sich treffen.’ In: Servicebüro für Täter-Opfer-Ausgleich und Konfliktschlichtung, Restorative justice: der Versuch, das Unübersetzbare in Worte zu fassen. Cologne: DBH – Fachverband für Soziale Arbeit, Strafrecht und Kriminalpolitik.

 Wright, M (2013b) ‘Restorative justice: the search for the mot juste.’ Restorative justice: an international journal, 1 (1), 85-90.

 Wright, M (2013c) ‘Could a restorative system of justice be more civilised than a punitive one?’ In: D Cornwell, J Blad and M Wright, eds. Civilising criminal justice: an international restorative agenda for penal reform. Hook, Hampshire: Waterside Press.

 

= = = o o o 0 o o o = = =

 

1Billijk? anständig? convenable?

 2The word is not only mine: Douglas Hurd, as Home Secretary in the 1980s, spoke of ‘muddles’ in sentencing, and Lord Chief Justice Lord Judge wrote of ‘the continuing burden of comprehending and applying impenetrable legislation’ (Faulkner and Burnett, 2012: 98).

 3The Borda Count works like this. If for example there are five options, each voter is given a ballot paper and asked to rank the options from 1 to 5. Each number one ranking receives 5 points, a number two ranking receives 4 points, all the way down to the number five-ranked option which receives 1 point. The system is designed to make a decision among several alternatives and is considered by many egalitarians to be a better system of voting than the majoritarian systems typically used by legislative bodies and referendums. It is promoted in Ireland by the De Borda Institute: <http://www.deborda.org/&gt;

 

Restorative Justice Council strategy: Strategy for nationwide restorative justice

RJC Presentation September 2010

 If we 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. 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:

  1. 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
  2. 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
  3. response to harmWhen actual harm has been caused, the processes can be used to agree how best to put it right
  4. response to criminal harm

When the harm has been caused by a criminal act, they can be used

      1. instead of criminal procedure,
      2. as part of criminal procedure
      3. after criminal procedure

Of these four, only one, the last, is limited to criminal harm. In the last two, one 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 (CJ) and then community and schools mediation?

(a) R J (CJ) for all

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. We need to consider how to make R J available at all stages of the CJ process, in accordance with our own ideal and Council of Europe Recommendation (99) 19.

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 have as far as I know no plan to appoint a development officer who would, for example, 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 recognition, which in turn would help them in securing funds.

(b) RP 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 and Leap; perhaps we could aim to offer a forum in which they could co-ordinate and extend their activities, and provide logistical support for the Peer Mediation Network? A Development Officer could also help the Policy Officer to respond to the many reports in the media about the need for discipline and anti-bullying policies in schools, 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 (No. XX, 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 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, 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.

  1. 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.
  2. 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
  3. It’s not clear who else would provide the service for adults – in general, the probation service doesn’t seem likely to.
  4. 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.
  5. 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.

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.

  1. Victim satisfaction.

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.

  1. 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 this was not one of the questions the research set out to answer. 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.

(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). 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. Of course 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:

  1. are 100% committed to restorative principles; their first loyalty would be to the national R J organization, not to the CJS.
  2. can help to resolve conflicts outside the criminal justice system.
  3. can provide support for mediators from RJ-qualified staff.
  4. being independent, can protest publicly at policies that limit R J or water it down.
  5. 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.
  6. 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.

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 XX 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. Schools are probably adequately covered by Transforming Conflict and IIRP, but we could consider this.

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 contributin 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.

5. Completing the picture

An important part of the Business Plan needs to be not only developing local services but liaison with others in the field.

Enabling reparation and rehabilitation

Need for community to provide resources

 

Feedback for social (preventive) policy

 Adequate support for Third Sectori

Adequate support for Third Sectori

Recognising the new paradigm and upholding restorative values

Recognising the new paradigm and upholding restorative values

As the ‘voice’ of restorative justice, we should not only campaign for it, but 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.

Preventing dilution

Preventing dilution

6. Towards a restorative society

 

7. Recommendations

 

Strategy for getting referrals

Encourage community mediation services to extend into VOM

Encourage use of volunteers and NGOs as well as statutory sector.

 

Development officer

RJC to work towards appointing development officer(s) for schools, community and RJ(CJ).

Working parties or sub-committees?

 

Research

 

Nationwide, community-based mediation services

 

 

=

1. Restorative justice includes restorative practices.

 

To promote restorative justice for the public benefit as a means of resolving conflict and promoting reconciliation by:

(i) Promoting the use of restorative justice in the criminal justice system, in schools, in the workplace and elsewhere in the community in situations where conflict may arise;

(ii) Developing and promoting agreed standards and principles for evaluating and guiding restorative practice;

(iii) Advancing education and research on restorative justice and the publication of the useful results of that research.

 

Accreditatiion

There could be a ‘kite mark’ for local community based services, and it is welcome that in the Vision Statement document agreed in March we are already planning to develop a quality mark for restorative services, whether in the statutory or voluntary agencies. Our current business planning with David Irwin, paid for by Esmee Fairbairn, will hopefully identify how soon we can get this off the ground and the kind of start up investment such a quality mark would need. It would both maintain standards in community-based services and assist them in applying for funding; it would also give them an incentive to join the RJC in order to acquire it – a boost for our membership drive. The Business Plan does not include costings, but the 2009/2012 one included substantial sums for ‘brokerage’ and ‘service delivery’, and I have repeatedly tried to get more discussion of other options before we went down that path. We need to consider whether this is the best use of the funding.

 

When the Board used the Wates grant to develop accreditation, it gave JPAssociates a contract to come up with a plan. In doing so, JPA appear to have assumed (1) that large numbers of individual practitioners in the statutory sector would apply (or their employers on their behalf), so that the scheme would cover its costs, and (2) that the scheme would be run by the RJC itself.

 

First that Standards and Accreditation Board (SAB) look at existing accreditations available for community mediators and whether these should give full access to the RJC register, or whether some additional accreditation would be needed. [NB associate membership of the register, simply by signing up to a Code of Practice for practitioners, as we require at present of trainers – would certainly be open to all]

Second that in developing quality marks for restorative services, the RJC/SAB should bear carefully in mind the needs of third sector organizations (including mediation services) in addition to the needs of statutory organizations (prisons, police forces, schools, care homes).

I think these two proposals would be greatly welcomed by SAB and by the Board as I think they encapsulate the concerns and issues you have raised in your paper, but phrase them in ways that fit with existing commitments and build them in to existing work plans.

 

Accreditation. It has apparently been decided that the accreditation scheme will be administered by the RJC, requiring a start-up investment of tens of thousands of pounds. Before this decision is finalized, the Board should have the opportunity to consider existing accreditation schemes such as OCN and the College of Mediators, from the point of view of both quality and cost. As far as I am aware, this comparison has not been placed before the Board for consideration. Secondly, if it were decided that this large investment was indeed the best way forward, there seems to have been no discussion of how it would dovetail with other schemes. Would the RJC recognise them? Would a mediator, working for a service which provided both community and victim-offender mediation, be required to be accredited twice? Have these issues been discussed with other bodies in the field, or will we be in competition with them? The latter does not seem a good basis on which to build a restorative movement.

 

In relation to accreditation I think there is a misunderstanding in your paper. There are no plans for the RJC to become an accrediting body. At present the plan is for the RJC to develop a practitioner register, full access to which would be dependent on practitioners having some form of accreditation. The RJC SAB are currently developing criteria for which forms of accreditation the RJC should ‘badge’ and recognise as giving access to the register. It is likely (and to be hoped) than more than one form of accreditation would give people access to the register. The main criteria is likely to be around how far any particular accreditation matches up with the 2010 National Occupational Standards in restorative practice. Thanks for explaining about accreditation. I hope that will free up the large sums allocated to ‘brokerage’ etc. for purposes more directly connected with developing RJ.

 

We have not decided to set up an accreditation scheme. This was one of the options in the JPA report, but not one the RJC is proposing to take up, as this was only ever a fall back proposed by them if the Skills for Justice award did not take place for some reason. As per our Vision Statement and Business Plan agreed in March, the plan is now to develop an RJC register of accredited practitioners. The RJC SAB are looking at the question of which accreditations the RJC should recognize and ‘quality mark’ as accreditations that will enable full membership of the RJC practitioner register. We are not planning to develop an accreditation of our own, nor to become an awarding body. Associate membership of the register would be open to anyone who signs up to a Code of Practice.

 

 

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).

 

Prison is not the answer

(This article appeared, with minor editorial cuts, in Church Times, on 15 November 2013)

More than 4000 criminal offences have been created since 1997, 292 in the year to May 2012 alone, and three quarters of them potentially imprisonable.  Sentences also keep getting longer. Once again we approach Prisons Week (17th-23rd November) with a prison population close to the 86,000 maximum capacity. We know the harmful effects, especially of short sentences, so it makes no sense to persist with this policy. Christian teaching encourages visiting prisoners; but we need not send so many to prison in the first place.

 More than 4000 criminal offences have been created since 1997, 292 in the year to May 2012 alone, and three quarters of them potentially imprisonable. Sentences also keep getting longer. Once again we approach Prisons Week (17th-23rd November) with a prison population close to the 86,000 maximum capacity. We know the harmful effects, especially of short sentences, so it makes no sense to persist with this policy. Christian teaching encourages visiting prisoners; but we need not send so many to prison in the first place.

 This is a world-wide failure. The International Centre for Prison Studies regularly reports overcrowding and appalling prison conditions in every continent. In the UK, punishment heads the list of the purposes of sentencing, even for community sentences. Presumably ministers either believe that it ‘works’, or that the electorate wants it, despite research funded by the Ministry of Justice suggesting that 81 per cent of victims of non-violent crime would prefer an offender to receive an effective sentence rather than a harsh one. A similar proportion would favour community sentences if they prevented re-offending.

The reason for creating more and more imprisonable offences seems to be something like this. An offence hits the headlines, such as knife crime, an attack by a dangerous dog, or fraud by welfare claimants or bankers. ‘Something must be done,’ goes the cry. The easiest ‘something’ is to increase the maximum penalty. Later, more appropriate preventative measures are introduced, such as stop-and-search, identity checks, muzzles, stronger regulation, and (easier said than done) changing the culture. Some of these are effective, but people assume that the penalties, not the preventative measures, are responsible for any improvement.

Imprisonment generally makes things worse. The Prison Reform Trust’s Prison factfile (December 2012) shows that 47 per cent of adults are reconvicted within one year of release, and more for those with short sentences under 12 months (57.6 per cent), young offenders (71 per cent for ten- to 17-year olds), and those who have been in prison before (76.4 per cent of adults with 11 or more previous prison sentences); but eight per cent fewer for those given community sentences than similar offenders imprisoned for less than 12 months.

Plans for massive prisons like the 2,000-place institution proposed at Wrexham mean that more prisoners will be held far from home, making it difficult to keep contact with families and friends. Few prisoners have work inside (averaging 11.8 hours per week in 2009-10), education (82 per cent are at or below GCSE grades D to G in writing and 65 per cent in numeracy), or treatment (three quarters of mentally disordered prisoners are returned to the community with no appointment with outside carers).

Many prisoners had been taken into care (24 per cent) and/or experienced abuse as a child (29 per cent), have no qualifications (47 per cent), and/or have various addiction or mental health problems. Locking them up far from home, with little to do, and a stigma when they come out, is hardly likely to help them to stop re-offending, although 97% of them say they want to.

Once the court decides that the offence is so serious that prison is necessary, the length of prison sentences is determined on the basis of an arbitrary attempt to ask ‘How bad was the crime?’ and then translate that into a period of time. So for specific types of offence the Sentencing Council guidelines give a starting point, and a range within which the sentence may be increased or reduced because of aggravating or mitigating factors. These periods have little relevance to what is needed to (re-)habilitate people from (mainly deprived) backgrounds with all sorts of needs and circumstances. One aggravating factor is ‘failure to respond’ to previous sentences, neatly side-stepping the question whether those sentences were fit for purpose.

To escape from this illogical logic, we need to ask different questions: how to make things better for this victim (by the offender or the community), how to encourage this offender not to harm anyone else, and how to reassure the victim and the public that enough is being done.

The traditional questions are ‘Which law was broken? How much should the offender be blamed? What should the punishment be?’ They focus everyone’s attention, including the offender’s, on the offender. But making things worse for offenders does not make things better for victims.

Instead we can begin with the victim, by asking ‘What happened? Who was affected? What needs to be done to make things better? Who should do it?’ The offender should be held accountable and make amends; but the community has to persuade and enable him or her to do better. Meeting victims (if they are willing) to hear first-hand the effects of the crime is one way; it might also make more impression on some white-collar offenders in their remote offices.

We need to avoid criticism of the ‘Jail let-off for shoplifters if they apologise’ variety (as The Sun put it on 2 March 2011). We all, including victims, need to feel that this ‘something that must be done’ shows enough concern. One way is by taking away people’s liberty, but purposefully: by requiring them to work and attend programmes in the community in their own time, not by warehousing them in institutions that do more harm than good.

Second, people naturally feel that wrongdoers should experience pain; accepting responsibility for causing harm to another person or persons is painful, but in a restorative way, and allows them to earn redemption by making amends.

Third, imprisonment is not excluded in certain cases if we have a clearer idea what it is for: to enforce community-based programmes if offenders do not co-operate, or for public protection if there is a major risk of serious re-offending. Where some serious crimes are concerned, it may even be appropriate to remove the perpetrator from the community for a time to take stock and prepare for a fresh start. But these should be prisons’ primary purposes, not by-products achieved in spite of the regime.

Last, both conventional and restorative justice theory lack the idea of feedback. The factors in the lives and circumstances of offenders which led them to commit crimes should be studied more by policy-makers and community leaders.

We have created the temptations and pressures of an increasingly unequal society, cut back on care for the weak, and failed to educate the privileged about their responsibilities to the less fortunate. If we cause our brothers and sisters to stumble, they are crushed for our iniquities.

 

Church Times Prisons 139

It works. So why don’t people use it?

Restorative justice has been tried and tested, argues Martin Wright, but it needs to be applied.

A government minister, Jeremy Wright, recently raised hopes of a new approach to criminal justice for England and Wales based on restorative justice. Disappointingly, it is being introduced half-heartedly. The Opposition is attacking it for the wrong reasons; the voluntary sector seems to have no clear strategy for making it happen, and it could fall into the lap of profit-oriented companies. But faith-based groups could fill the gap and help to transform the system.

Restorative justice is based not on ‘returning evil for evil’ but on healing the harm, and where possible enabling the victim to tell the offender the effects of the crime on him or her, and to ask questions. This can be an eye-opener to the offender. Unlike the adversarial criminal trial, the process encourages empathy on both sides, although of course it doesn’t guarantee it.

Restorative justice works better in more serious cases, including violence, where there are more emotions needing a response; but the government’s 15 experimental neighbourhood justice panels, which have no central funding, are focused on relatively minor anti-social behaviour, some of which may not even be criminal.

Opportunities are being missed. The Crime and Courts Act 2013 allows prosecution to be deferred to allow for compensation, donation to a charity, or disgorging profits from the alleged offence; but it applies only to corporate offenders such as firms, not to individuals, and there is no opportunity for their victims to meet the directors in person (rather than underlings or lawyers) to tell them, face-to-face, the human effects of their mis-selling of insurance or pharmaceuticals or their pollution of the environment.

The Act also allows sentencing to be deferred to give an opportunity for restorative justice; but prosecutors, probation officers and courts cannot refer cases to restorative justice if no service is available locally to provide it.

WHERE restorative justice has been introduced, for example in Thames Valley, it is working well. So it is disappointing to see it criticised for the wrong reasons. In April, Yvette Cooper, the Shadow Home Secretary, complained about the number of cases being dealt with by community resolution.

It is odd to see saving police time and paperwork presented as somehow dubious. Police used to have to choose between charging someone (possibly leading to a ‘crime cleared up’, but saddling the person with a conviction), or recording an unsolved crime (bad for statistics), or taking no further action. Now ‘restorative disposals’ can count as positive outcomes, which are good for community cohesion, besides saving police and court time on minor cases.

Prosecution is not necessarily the best response to wrongdoing. Even crimes labelled ‘violent’ do not all cause serious injury. They often involve former friends, neighbours or colleagues, and mediation can help them back on speaking terms. Indeed, applied at an earlier stage it might have prevented the violent outburst.

After crimes by a stranger, victims commonly want to know ‘Why me?’ Hate crimes (attacking people merely because they are black, gay, disabled, foreign, or otherwise different) arise from ignorance and stereotyping, and a restorative process is better suited to overcoming these than conviction and punishment.

Criticism is often based on misconceptions, such as a Daily Telegraph headline, ‘Violent offenders avoid courts with soft on the street justice’ (30 April).

Restorative justice is not only concerned with offenders but also with victims, who consistently give it high satisfaction ratings. It doesn’t aim at controlling crime by fear of judicially ordered pain, but by the pain of recognising the harm caused to another person.

If an offender agrees to make reparation, for example by community work, the community will have to provide suitable and properly supervised tasks – not degrading ones, but activities by which he or she can gain self-esteem and the approval of the community.

One victim of street robbery asked that her attacker do something to make him realise that others were less fortunate than him; a placement was found for him to help at a project where disabled children learnt to ride.

Other offenders cleared junk from a river in south London; although the work was hard and cold, it was not chosen for that reason, but because they could feel a sense of achievement.

What many victims want most is that offenders should not ‘do it again’; many offenders need skills (including literacy), anger management, addiction therapy, and so on, and these have to be available to them, together with the basics such as accommodation and work.

USING restorative justice for domestic violence is more complex; it certainly needs handling with caution. But the UK is lagging behind several continental countries that use it widely, notably Austria, where a study in 2010 by Dr Christa Pelikan found that 83 per cent of the women who responded lived free of violence after the mediation experience;.

Of these, 80 per cent said that restorative justice had contributed to this result, mostly by making them feel stronger and more assured about their rights, and 40 per cent stated that their partner had changed as a result of going through mediation.

In a typical case, where the man had abused his partner verbally and physically, the restorative process made her feel empowered to take control of the situation. He agreed to attend a behaviour change programme, and found that he was pleased with his new life style.

In another instance, the meeting strengthened the woman’s determination to leave her abusive partner, but they were able to agree on separation and on custody of the children. Dr Pelikan stresses that it is simplistic to claim a ‘success’ rate of 83 per cent; restorative justice is not a cure-all, but needs the support of other measures.

THE big question is, who will make it happen? The probation service, now being severely cut, is unlikely to have the time. Free-lance facilitators cannot guarantee continuity, and have no structure for support and supervision. The commercial sector operates to values which have little in common with restorative ones.

In the age of the Big Society, conflict resolution and restorative justice could be provided by local mediation services in each locality, overseen by a national NGO. Many cases can be handled by trained lay mediators (as in Norway, Finland and the Netherlands, and in some places in the UK), others by staff. If the government is serious about restorative justice, there should be a mechanism for funding it from the resulting savings in other parts of the system (a new adaptation of payment by results).

We need a strategy to spread better understanding of restorative justice and the impetus to put it into effect. About 30 years ago many local groups were formed to spread Victim Support. With guidance from a national body such as the Restorative Justice Council, could local faith groups and others do the same thing, taking up the challenge by helping to set up mediation services nationwide?

 

 

RESTORATIVE JUSTICE (Outline in note form, 2005, with reading list)

 1. Problems with traditional justice

• Victims ignored or even re-victimized by system; measures to combat this (such as CPS’s revised practice, Crown Court Witness Service) do not deal with the root of the problem – the adversarial system itself

• Multiple, incompatible aims, achieved to limited extent if at all: sentences to “denounce” crime do not rehabilitate offenders, rehabilitation does not denounce the seriousness of the offence

• Emphasis on outcome, disregards harmful effects of process (cross-examination of victim etc.)

• Based on punishment, i.e. infliction of further harm, stigma, rejection, and with unwanted side-effects; makes offender think of self, not others

• Coercion used as first resort, not last

• Confuses response to individual offence with crime prevention: assumes that court-imposed deterrence is primary method of crime prevention.

2. What is “restorative justice”?

A new paradigm, based on repairing harm caused by crime as far as possible

Claimed advantages:

• Primary aim to restore victim or make up for harm

• Enables victims to ask questions, express feelings if they wish

• Involves victim in process and in reparation, but not punishment

• Holds offenders accountable

• Enables offenders to earn reintegration and re-acceptance; based on consent where possible: coercion as last resort

• Primary aim compatible with subsidiary ones

• Involvement of community

• Feedback to crime prevention agencies

3. What does it consist of?

• Reparation by offender to victim (if he or she wants it) and/or:

• Reparation to community

• Aid and support by community to victim if required

• Enabling offender to earn reacceptance by making amends

• Victim/offender mediation or group conferences for those who want to communicate or meet

• Victim/offender groups for victims whose “own” offender has not been caught, and offenders whose victim does not wish to take part

4. Does it “work”?

New primary criterion for success: satisfaction of participants with process

Research indicates high success rate: see Facts and Figures, below.

Reconviction rate as limiting factor, not primary aim

5. Does it achieve aims of traditional justice?

Denunciation: yes, reparation can be proportional to harm done

Containment: yes, reparation can be done under close supervision or in custody if necessary for public protection

Deterrence: the main deterrent, the prospect of being caught, remains; the combination of being required to make reparation and face consequences of actions should provide strong discouragement. Studies so far show reconviction rates little changed, but no worse than for traditional measures (see e.g. Dignan 1991).

Rehabilitation: not the primary aim, but restorative more compatible with rehabilitation than punishment is. One way of making reparation is to co-operate with a rehabilitative programme. But this is a two-way requirement: the community has to provide education, training, therapy, and above all employment.

Is it too lenient? (a) it can be stressful for offenders; (b) If less stressful than punishment, in return for process that benefits victims, why not? (Just as guilty plea earns reduced sentence because it spares victim the ordeal of giving evidence.) (c) The more severe the threatened punishment, the more likely it will difficult to uncover the truth. In some cases, for some victims, it may be preferable to obtain more truth and less punishment.

Crime prevention: should be specific field of state policy, with feedback from criminal justice process on possibilities for social and situational prevention.

6. Does it have advantages over traditional justice?

In principle, these have been indicated above: helping victims and including them in process, holding offenders accountable and making them face effects of crime on others. In practice,

• it normally takes place with much less delay

• a higher proportion of offenders pay compensation when agreed by them rather than ordered by court

• procedure is fully explained to victim and offender

• it gives both an opportunity to describe what happened in own words, and to express feelings and ask questions

• when the crime arose from a dispute (e.g. between neighbours), mediation can help parties to resolve it.

• Mediations, and especially conferences, can however be time-

consuming to organize, and should be used only where the offence, and

the harm to the victim, are serious enough to justify it.

7. How can it be introduced?

By adapting traditional Western justice (Canada, USA, UK, Germany) or indigenous justice (NZ, Australia, parts of Canada). Legislation not essential, but may help to establish restorative justice. Victim/offender mediation should be provided in each area by an independent organization, overseen by national body to ensure good standards.

8. Is it compatible with traditional Western justice?

It is working alongside the conventional CJS in various places; some (e.g. Austria, New Zealand) have incorporated it into juvenile law. But there are tensions.

• It is based on harm done rather than intent of offender

• It is based on agreements between victim and offender, which could vary widely. But an extra element could be imposed by court to represent public interest. In a hybrid system this could be punishment, in a purely restorative system this would also be a restorative measure).

• Some of the same problems as traditional justice in setting amounts:

(a) Property crimes – relatively easy to set price, but offender may not be able to pay full amount. Amount can be agreed with individual victims, but this will lead to inconsistencies between offenders. Offender may have to pay more than cost of goods stolen, e.g. extra costs caused by dealing with offender, otherwise no deterrent.

(b) Crimes of violence – cash value is more arbitrary, although some accepted guidelines exist. Same problem if offender cannot pay full amount.

(c) In both cases, if reparation made through service rather than money, no clear-cut equivalence with harm caused by offence.

• Willing participation may be a problem when combined with punishment-based criminal justice system. Offender may agree in hope of a lesser sentence (or discontinuance of prosecution, or earlier parole), victim may agree out of sympathy for, or fear of, offender. Safeguards include:

(a) Not proposing mediation until criminal justice decision has been made (e.g. to caution offender); or

(b) Stressing that the decision to proceed with mediation is made by the service, not by the victim or the offender; they are of course consulted and the consent of both parties is needed; or

(c) In victim/offender conferencing, the victim need not be present, or can be represented by family or friend; or

(d) Pressure on the offender to make reparation, through the prospect of a reduced sentence or discontinued prosecution, is legitimate; it should be distinguished from mediation, a personal transaction between victim and offender, which should be voluntary on both sides; and

(e) Offenders should be offered opportunity to make reparation when victim does not wish to receive it; for example, through community service or by taking part in a victim/offender group. In this way the offender is not disadvantaged by the victim’s refusal to take part, and the victim is not under pressure to do so.

9. Advantages of restorative justice

• Better procedure. Possible development of community participation through family group conferencing.

• For victim: can help recovery

• For offender: integrates, not rejects

• For community: holds offender accountable constructively; can use members of community as mediators, which increases understanding

• Separates crime prevention strategies from response to crime.

10. How is it implemented in England and Wales?

• Restorative cautions: may be used in context of Criminal Justice Act

2003, sec 22, conditional cautions for adults, which may include a

condition of making reparation.

• Final warnings (Crime and Disorder Act 1998)

• Referral orders (Youth Justice and Criminal Evidence Act 1999)

for offenders in court for first time. Case referred to ‘Youth Offending

Panel’, where aim is to devise action plan, often with reparation. Victim may be present but seldom is.

• Reparation orders (Crime and Disorder Act 1998)

Government has produced statements, e.g. Restorative justice: the government’s strategy (2003); Best practice guidance for restorative practitioners (2004).

FACTS AND FIGURES

Taking satisfaction of participants as criterion, research indicates high success rate, e.g. Marshall and Merry, 1990:

82% of victims who took part in mediation felt meeting offender was valuable, including 22% whom it helped to relieve their worries about the offence, and others who hoped it might help to reform the offender. Nearly all were glad to have taken part, although some were apprehensive beforehand.

Similar results from Coates and Gehm, in Wright and Galaway 1989: 89% of victims “satisfied” or “somewhat satisfied”.

Northamptonshire: operating at cautioning stage. In 1991,

compensation totalling £47,500 ordered; £37,800 paid, £1,400 (3%) written off.

Corporate victims: 71% satisfied with handling of case

Individual victims: 62% satisfied (of sample of 45), but 3 opposed in principle, 2 dissatisfied with their offender’s response, 2 felt offender not punished enough, 2 unhappy about enforcement of agreement. Another survey found 90% of victims, 96% of offenders felt fairly treated by the Reparation Bureau.

Reconvictions (survey when 90% had been at risk for at least one year): Kettering 81.5% not reconvicted, matched sample from Wellingborough 79.5% (not statistically significant). Results slightly better for face-to-face mediation than with go-between, but also not significant.

(J Dignan, Repairing the damage: an evaluation of an experimental adult reparation scheme in Kettering, Northamptonshire. University of Sheffield, Centre for Criminological and Legal Research, 1990. Northamptonshire Adult Reparation Bureau, Annual report 1992.)

Coventry and Leeds:

46% of cases referred went to mediation in 1993.

79% of victims who took part were satisfied with the outcome of mediation (the proportion was slightly higher among those who took part in direct (face-to-face) mediation).

90% of offenders were satisfied (of those who took part in direct mediation, 100% – of small sample).

82% of victims and 87% of offenders felt they had participated voluntarily.

Of victims who took part in mediation, 80% said it was important to them to receive answers from their offenders about what happened, 90% said it was important to tell the offender the impact the crime had on them, and 73% felt it was important to receive an apology. 65% said it was important to negotiate restitution.

93% of offenders said it was important to them to be able to tell the victim what happened, 62% said it was important to negotiate restitution, and 90% to apologize to the victim.

80% of the offenders who took part did apologize.

Victims who took part in mediation were only half as likely to fear re-victimization (16% as against 33%).

(M S Umbreit and A W Roberts, Mediation of criminal conflict in England: an assessment of services in Coventry and Leeds. Centre for Restorative Justice and Mediation, School of Social Work, University of Minnesota, 1386 McNeal Hall, 1985 Buford Avenue, St Paul MN 55108, USA.

Albuquerque, NM, Austin, TX, Minneapolis, MN, and Oakland, CA:

comparative study.

36% of cases referred went to mediation in 1990-91. Successfully negotiated agreements 95%. Agreements 58% financial, 13% personal service, 29% community service. Average financial restitution $219. Average personal service 18 hours, average community service 25 hours.

Pre-mediation: victims upset about crime 67%, post-mediation: 49%

Pre-mediation: afraid of being revictimized by offender 23%, post-mediation: 10%

(both statistically significant)

Satisfied with mediation outcome: 90% of victims, 91% of offenders.

Perceptions of fairness of juvenile justice system: 83% of victims in mediation group,62% of those not referred to mediation. Juvenile offenders: 89% in mediation, 78% of those not referred, said they experienced fairness.

Restitution completed: after mediation 81%, no mediation 58%.

Recidivism: new criminal offence within one year. After mediation 18%, no mediation 27%.

Of those who re-offended, 41% of those in mediation group committed less serious crimes than before, 12 % in matched comparison group.

(M S Umbreit, Victim meets offender: the impact of restorative justice and mediation. Monsey, NY: Criminal Justice Press, 1994.)

 

 RISE: Re-Integrative Shaming experiment, Canberra

Results from 111 young offenders convicted of property offences from shoplifting to car theft, offenders up to 29 involved in violent crimes excluding sexual assault and domestic violence, and 437 drink-drivers. In each case, figures for those taken to court, followed by those taking part in conference. Selection from long questionnaire.

Young offenders: increased respect for police 18%/47%

Felt ashamed of what they had done 53%/77%

Said their case allowed them to repay victim 40%77%

Said their case allowed them to clear their conscience 58%/70%

Drink-drivers: increased respect for police 25%/60%

Felt ashamed of what they had done 53%/77%

Said their case allowed them to repay society 41%/82%

Said their case allowed them to clear their conscience 24%/50%.

FGCs in New Zealand

Reconvictions of 161 young offenders aged 14+ when referred. Average time from original sample to interview: 6 ½ years

Just over a quarter persistently reconvicted 14% once, more than a third not at all. Others ‘persistent for a time, then stopped’ or ‘occasionally’.

Persistently reconvicted more likely to have been regularly smacked or hit by parents, hit or ganged up on by other children, suspended or expelled from schools, left before fifth form, had parents who did not almost always know where they were.

Non-reconviction more likely after FGC in which:

victim present, offender apologized, felt involved in decision making, agreed with FGC outcome, felt s/he had repaired damage, was not made to feel a bad person.

Gabrielle Maxwell and Allison Morris (1999) Understanding reoffending. Institute of Criminology, Victoria University of Wellington, NZ.

1996, rev Jan 2005

C:RJRJPoints

RESTORATIVE JUSTICE: READING LIST

Ashworth, A (1993) “Some doubts about restorative justice,” Criminal Law Forum, 4 (2), 277-299. See also: Daniel W Van Ness (1993) “New wine and old wineskins: four challenges of restorative justice”, ibid. pp. 251-276; “A reply to Andrew Ashworth”, ibid. pp. 301-306

Bazemore, Gordon, and Curt T Griffiths (1997) `Conferences, circles, boards, and mediations: the “New Wave” of community justice decisionmaking.’ Federal Probation, 61(2), 25-37.

Bazemore, Gordon, and Mark Umbreit (1995) “Rethinking the sanctioning function in juvenile court: retributive or restorative responses to youth crime.” Crime and Delinquency, 41(3), 296-316

Bazemore, Gordon, and Mara Schiff (2001) Restorative community justice: repairing harm and transforming communities. Cincinnati, OH: Anderson.

Blom-Cooper, L (1988) The penalty of imprisonment. London: Prison Reform Trust. Ch. 3.

* Braithwaite, J (1989) Crime, shame and reintegration. Cambridge University Press.

Theory which has been linked to family group conferences. Care needed about definition of “shame”.

* Braithwaite, John (2003) Restorative justice and responsive regulation. New York: Oxford University Press.

Applies restorative principles to many forms of conflict, including industrial and international.

Braithwaite, J and P Pettit (1990) Not just deserts: a republican theory of justice. Oxford: Clarendon. Esp. ch. 8-10.

Philosophical basis for Braithwaite (1989).

Burnside J and N Baker, ed. (1994) Relational justice: repairing the breach. Winchester: Waterside Press.

Chapters on mediation and on family group conferencing in New Zealand.

Cavadino, M and J Dignan (1992) The penal system. London: Sage. Esp. pp. 42-4, 185-6. See also 2nd ed. 1996.

* Christie, N (1977) “Conflicts as property.” British Jnl of Criminology, 17(1), 1-15.

Seminal, much-quoted article on giving justice back to the people.

* Christie, N (2004) A suitable amount of crime. London: Routledge.

Questions the concept of crime, and current responses to it.

Crosland, Paul and Marian Liebmann, eds. (2003) 40 cases: restorative justice and victim/offender mediation . Bristol: Mediation UK.

* Davis, G (1992) Making amends: mediation and reparation in criminal justice. London: Routledge.

Pitfalls of mediation when too closely linked to offenders and to conventional justice.

Dignan, J (1990) Repairing the damage. University of Sheffield, Centre for Criminological and Legal Research.

Research of adult reparation project in Kettering, later extended to Northamptonshire.

Dignan, J (1992) “Repairing the damage: can reparation be made to work in the service of diversion?” British Journal of Criminology, 32(4), 453-472.

Galaway, B and J Hudson, ed. (1990) Criminal justice, restitution and reconciliation. Monsey: Willow Tree Press.

* Galaway, B, and J Hudson (1996) Restorative justice: international perspectives. Amsterdam: Kugler Publications.

Useful collection of articles on many aspects including shame, public opinion, etc.

* Graef, Roger (2000) Why restorative justice? repairing the harm caused by crime. London: Calouste Gulbenkian Foundation.

Hadley, Michale L (2001) The spiritual roots of restorative justice. Albany: State University of New York Press.

R J from Buddhist, Chinese, Christian, Hindu, Islamic, Jewish, Sikh and aboriginal perspectives.

* Hudson, J, A Morris, G Maxwell and B Galaway, eds. (1996) Family group conferences: perspectives on policy and practice. Monsey, NY: Willow Tree Press.

With article on origin and development: includes welfare and youth justice FGCs.

Johnstone, Gerry (2002) Restorative justice: ideas, values, debates. Cullompton: Willan Publishing.

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

Victim/offender groups compared with victim/offender mediation.

Maguire, M and C Corbett (1987) The effects of crime and the work of Victims Support Schemes. Aldershot: Gower. Pp. 227-231.

British Crime Survey showing attitudes to victim/offender mediation.

* Marshall, T and S Merry (1990) Crime and accountability: victim/offender mediation in practice. London: HMSO.

Home Office research on pilot projects.

Martin, C, ed. (1994) Resolving crime in the community: mediation in criminal justice. London: ISTD and Bristol: Mediation UK.

Report of conference, with papers by J Braithwaite and T O’Connell.

Masters, Guy (2001) The rough guide to restorative justice and the Crime and Disorder Act Bristol: Mediation UK.

The R J concept, and outline of different models of practice.

Mediation UK (1994) Victim/offender mediation: guidelines for starting a service. Bristol: Mediation UK.

Mediation UK (1998) Practice standards for mediators and the management of mediation services. Bristol: Mediation UK.

* Messmer, H and H-U Otto, eds. (1992) Restorative justice on trial: pitfalls and potentials of victim/offender mediation – international research perspectives. Dordrecht: Kluwer.

Conference papers by Tony Marshall, Burt Galaway, John Haley, Mark Umbreit, Gwynn Davis, Martin Wright, and others.

Mika, H, and K McEvoy, eds. (2001) International perspectives on restorative justice: conference report. Institute of Criminology and Criminal Justice, Queen’s University Belfast.

Papers by R Shonholtz, J Braithwaite, A Morris, A Skelton, M Wright.

* Morris, A et al. (1993) “Giving victims a voice: a New Zealand experiment.” Howard Journal,32 (4), p. 304-321.

Research on beginnings of New Zealand family group conferences, showing some shortcomings (some of which have since been corrected).

* New Zealand Ministry of Justice (1995) Restorative justice.

PO Box 180, Wellington, NZ. Discussion paper.

Roche, Declan (2003) Accountability in restorative justice. Oxford: Oxford University Press.

Stresses the need for built-in safeguards for restorative justice.

Stevens, Joanna (2000) Access to jusice in sub-Saharan Africa: the role of traditional and informal justice systems. London: Penal Reform International.

Strang, Heather, and John Braithwaite (2000) Restorative justice: philosophy to practice. Aldershot: Ashgate.

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

Part of comparative research project; gives attitudes of victims and offenders, etc.

Van Ness, Daniel, and Karen H Strong (1997) Restoring justice. Cincinnati, OH: Anderson.

* Wright, M (1995) “Victims, mediation and criminal justice.” Crim. Law Review, March, 187-199.

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

Development of the restorative idea; new chapter on recent developments in

* Wright, M (1999) Restoring respect for justice. Winchester: Waterside Press.

Various professional perspectives on criminal and restorative justice, especially the problems of punishment and sentencing.

* Wright, M and B Galaway, ed. (1989) Mediation and criminal justice: victims, offenders and community. London: Sage.

Articles on development of victim/offender mediation in several countries; includes review of public opinion surveys (Ch. 18).

* Zedner, L (1994) “Reparation and retribution: are they reconcilable?” Modern Law Review, 57 (2), pp. 228-250.

Thorough but not unsympathetic review of the principles.

Zehr, H (1985) Retributive justice, restorative justice. Elkhart, IN: MCC US Office of Criminal Justice.

18-page outline of Zehr’s concept.

* Zehr, H (1990) Changing lenses: a new focus for crime and justice. Scottdale, PA: Herald Press; London: Metanoia. Esp. ch. 9-11.

Sets out the case for a paradigm shift to restorative justice.

Zehr, H (2002) The little book of restorative justice. Intercourse, PA: Good Books.

British Journal of Criminology 42 (3) Summer 2002. Special issue: practice, performance and prospects for restorative justice. Articles by Ann Skelton, declan oche, John Braithwaite, Allison Morris, Martin Wright and others.

Mediation Quarterly, 12 (3), Spring 1995. Special issue on victim and offender mediation, with articles by Tony Marshall, Howard Zehr, John Haley, Burt Galaway, Mark Umbreit.

International Journal of Comparative and Applied Criminal Justice, 20 (1/2), Spring/Fall 1996. The Fall issue is on “World criminal justice”, including articles on First Nation traditional systems.

NOTE: although far from complete, this is a lengthy list, but it is not necessary to read everything! It is given so that there is a good chance of finding at least some of the alternatives available. Recommended items marked *. Read selectively, using contents lists and indexes.

c:RJR J points 051

Restorative justice: a new response to crime and conflict

Mediators sometimes say that they do not want a society without conflicts – it is unlikely to happen, and would perhaps be rather boring. Through the ages humankind has dreamt of peace. There has always been conflict, but also, side-by-side with it, co-operation (Kropotkin (1902/1987). In the Nguni languages of South Africa, ubuntu describes people who are generous, hospitable, friendly, caring and compassionate, and share what they have. They feel that they belong to a greater whole, and are diminished when others are tortured or oppressed (Tutu 1999: 34-5). The early Hebrews had a vision of shalom, often translated as ‘peace’, but including physical well-being, prosperity, social relationships and moral integrity (Zehr 1995: 130-2). A modern ideal is expressed by Illich:

I choose the term “conviviality” to designate the opposite of industrial productivity. I intend it to mean autonomous and creative intercourse among persons, and the intercourse of persons with their environment; and this in contrast with the conditioned response of persons to the demands made upon them by others, and by a man-made environment. I consider conviviality to be individual freedom realized in personal interdependence and, as such, an intrinsic ethical value. I believe that, in any society, as conviviality is reduced below a certain level, no amount of industrial productivity can effectively satisfy the needs it creates among society’s members  (Illich 1973: 11).

The Navajo people, in what is now the United States, do not ask whether something has absolute qualities such as ‘good’ or ‘bad’, but think in terms of the direction of travel: they ask ‘Is it hashkeeji (tending towards disharmony) or hozhooji (moving towards harmony)?’ (Ross 1996: 123). The latter phrase could be used to sum up the aura of meaning that has been acquired by the word ‘restorative.’

With the help of mediation, conflicts can often be resolved before they become serious. If one person, or their property, has been harmed, the incident may be described in various ways, as an accident, a conflict, anti-social behaviour, or a crime; the person harmed and the one who caused the harm may wish to come together to talk about it, to express their feelings and discuss how the harm can be made good. Mediators help them to guide their dialogue. We will look firstly at the idea of restorative practices; then four examples of their use, including restorative justice itself and its application.

The CRISI course which begins with this lecture covers mediation in civil matters, ‘alternative dispute resolution’, and in criminal cases. In England we prefer not to speak of ‘penal mediation’, because ‘penal’ means connected with punishment, which tends towards disharmony and what some politicians call ‘collateral damage’ (which means wounding or killing innocent people by mistake), and we are concerned with repair. The commonest term now is ‘restorative justice’. This has two central elements, dialogue and making amends, but the idea is broader than that. Firstly, dialogue is valuable for its own sake, to increase understanding on both sides, but it often needs a mediator to guide it. We also use the word ‘facilitator’. Secondly, the dialogue can enable the parties themselves to agree on what is necessary to put things right, or at least make them better, instead of asking an authority figure such as a judge to decide what is best for them. However, when a criminal act is involved, the criminal justice system may also have to be involved, and we will consider that later. Making amends can be done in many ways. It may not be possible to restore the victim to their previous state; or it may be desirable to make things better than before; or the amends may be symbolic: an apology, or perhaps a present.

Mediation has a long history. When two people or groups cannot settle a conflict themselves, by force or discussion, they have two choices. One is to go to a wise person or group, a Solomon or the elders of the tribe, who will decide (arbitrate). The other is mediation. In the Arab tradition of sulha, for example,

in order to prevent the vicious circle of a vengeful response, the family of the attacker should immediately consider going to a delegation of influential, notable people, asking them to mediate between the two parties. These people should be influential, trustworthy, and well known to all those living in the area (Jabbour, 1996: 27).

In some countries, such as parts of Albania, blood feuds were embedded in a detailed tradition (the Kanun) and the struggle to replace it with mediation is still in progress in some parts of the country (Elezi, 2006).

More recently it has come into prominence in resolving industrial disputes, for example through ACAS (Advisory Conciliation and Arbitration Service) in the United Kingdom and a wide range of others, through organizations such as IMCR (Institute for Mediation and Conflict Resolution, New York) (Wright 1996: ch. 4). It has been applied in the field of criminal justice, originally called victim-offender mediation, but now (especially in the anglophone world) restorative justice. Interest spread to other countries, including the United Kingdom (Wright 1977). It has been applied in different ways in the criminal justice system, including one-to-one mediation, conferencing (where others affected by the crime also take part), and circle sentencing, where the participants also recommend the sentence (but it has to be endorsed by the judge).

When people heard about this new practice and how it worked, some of them began to think how it could be applied in other settings, notably in schools. The basic concept of persons meeting face-to-face when they were in conflict, or one had harmed the other, was developed. McCold and Wachtel, for example, identify three main aspects of programmes, victim reparation, offender responsibility, and communities of care and reconciliation; if a programme has features from one of these categories it is ‘partly restorative’, from two, ‘mostly restorative’, and from all three ‘fully restorative’ (cited in Bazemore and Elis 2007: 401). Shapland and colleagues focused on several areas which make an event restorative, and the word ‘restorative’ itself is commonly used to include them. It has been suggested that a process can be described as more or less restorative, according to how many of these it includes. The list of Shapland et al. includes:

  1. Inclusiveness, participation and procedural justice: involving all those affected in the dialogue and decision-making. It has been found that people are often prepared to accept an outcome, even one that is unfavourable to them, if they feel that it has been reached by a fair process in which their point of view was heard.

  2. Dealing with emotion and the effects of the offence: focusing on, and expressing, the harm suffered and feelings of those affected, rather than measuring the offence against a scale of seriousness (such as maximum periods of imprisonment) or an amount of money. If apologies are offered, they are seen as an effort to make things better, not to reduce the amount of punishment.

  3. Problem-solving for the future: this often means agreeing how the parties will (or will not) relate to each other in future. It has been found that what many victims want is not reparation (in the form of money or work) but actions to make the offender less likely to re-offend, such as anger-management courses or acquiring employment skills, both to reduce the number of future victims but also for the offender’s own sake, so that he can make better use of his life. This is sometimes referred to as ‘human capital.’

  4. Building social capital and bringing in the community: ‘social capital’ is the network of family, neighbours, colleagues and so on which most of us depend; a restorative process increases social capital by bringing in more participants into the restorative process, but also by using trained volunteers as facilitators, and in some cases by using NGOs to provide the service (comments based on Shapland et al. 2011: ch. 7).

As these features can be used in civil situations, such as schools, the broader term ‘restorative practices’ is used to describe them. The International Institute for Restorative Practices, for example, has found that situations of conflict or harm can be addressed by asking both (or all) parties open-ended, non-judgemental questions such as

  • What happened?

  • What were your thoughts at the time, and since?

  • Who has been affected?

  • What do you think needs to happen to make things right?

This contrasts with the conventional questions: What law or rule was broken? Who was to blame? How should they be punished?

A new paradigm

It is not yet always understood that this is not merely one method among others of dealing with wrongdoers. It is a paradigm shift (a concept which should be understood in the country that produced Galileo!). The theory of relativity was a paradigm shift (although a recent experiment at CERN and Gran Sasso has raised some doubts about it!). Another is the realization in the past few decades that our survival depends on looking after this planet rather than exploiting it. Conventional justice, and indeed much social control, parenting, management and so on, are based on a behaviouristic paradigm, in which people are treated like donkeys, by the inducement of a carrot and the threat of a stick. Behave well and you will be rewarded, in this world or the next; break the rules and you will be punished. One problem is that both of these depend on what a person thinks will be the consequences for him or herself, rather than the effects of his actions on others; another is that the (dis)incentive won’t work if the person doesn’t think it will happen, or doesn’t even stop to think. A third is that it can lead to cruelty, or indeed deception. Cruelty to children is often justified in the name of ‘discipline.’ Think of the concept of ‘religion as the opium of the masses’, or the supposed belief of suicide bombers who become martyrs in the name of Jihad that they will be rewarded with sensual pleasures by 72 virgins in paradise. These can be called extrinsic consequences.

The restorative paradigm, in contrast, relies mainly on intrinsic consequences. On the one hand, ‘virtue is its own reward’; on the other, the Hebrew prophet Micah says that rich people who hate good and love evil, rip off poor people, and use dishonest scales and false weights will find their ill-gotten gains not worth having: ‘You will eat and not be satisfied, your stomach will still be empty, … you will plant but not harvest’ (Micah 3:2-3, 6: 14-15). In other words, ‘As you sow, so shall you reap.’ (Galatians 6: 7). The Buddhist concept of karma likewise suggests that the good or bad intentions behind actions will lead to good fortune or unhappiness.

That does not mean that restorative justice allows people to sit back and wait for the consequences to happen. On the contrary, whereas punishment makes the offender passive: ‘If you cause harm to someone, we will cause harm to you’, restorative action requires the offender to be active: ‘If you cause harm, we expect you to put it right or make up for it.’ Punishment is based on fear, and makes people think of the consequences for themselves; restorative processes are based on encouraging people to feel empathy and think of the consequences for other people. What is more, this can also work both ways; not only does it bring home to the offender the pain he or she has caused to the victim, but it enables the victim to understand how the offender came to commit the offence, and in many cases to want the offender to have a better life than previously. As regards problem-solving, it is summed up by the image of two donkeys, roped together, who work out together how to reach two piles of hay.

There are two main questions that need to be addressed: What can be done when restorative process cannot be used, for example if the victim refuses to take part or the offender is unco-operative? And, Are restorative practices being implemented correctly? We will return to these later, but first let us review the way in which restorative justice can be regarded as part of a continuum of restorative practices. Conflict can of course happen anywhere, but let us take four examples of the application of restorative practices: schools, decision making, conflict resolution, and restorative justice.

Restorative practices in schools

To introduce a new idea, schools are a logical place to start. The basic principles are very simple, as we have seen:

  • What happened?

  • What were your thoughts at the time, and since?

  • Who has been affected?

  • What do you think needs to happen to make things right?

Quite young children can follow these, and also their own code of conduct: do not take sides, do not make suggestions, do not gossip about what people say in mediation. It has been found to work best if the whole school is run on restorative principles. Roxanne Claassen for example shows how at the beginning of each school year she asks the students to agree on expectations (of each other and also of her), with an eight-step procedure to be used if the ground rules are not followed. These range from a simple reminder, through a one-to-one discussion with another (restoratively trained) teacher, to a group conference with parents. Only after that does the student have to leave the school, and even this is done is a restorative way: not expulsion but finding a school more suited to the young person’s needs (Claassen 2008).

Decision making

There are also restorative methods of conducting discussions in order to reach decisions, for example by dividing into small groups so that everyone can contribute, and using a ‘talking stick’ which is passed round the circle of participants where only the person holding it can speak. Similarly, decisions do not have to be made by a majority vote in which extremes often win. A different method was proposed as long ago as 1770 by J-C de Borda: this determines the winner of an election by giving each candidate a certain number of points corresponding to the position in which he or she is ranked by each voter. Once all votes have been counted the candidate with the most points is the winner. Because it sometimes elects broadly acceptable candidates, rather than those preferred by the majority, the Borda count is often described as a consensus-based electoral process, using a matrix system, rather than a majoritarian one (http://en.wikipedia.org/wiki/Borda_count, http://www.deborda.org/storage/Matrix%20Vote.pdf accessed 1.10.2011). There is reason to hope that decisions reached by such methods will reduce the likelihood of conflict later on.

Conflict resolution

When nevertheless conflicts inevitably occur, restorative methods of mediation and conflict resolution are available, and some of them are included in this course. They normally include the same restorative principles: the facilitator is neutral, and guides the discussion by asking the parties to agree to ground rules for the discussion and by summarizing statements in neutral language. Facilitators do not normally suggest solutions: these come from the participants themselves. The agreement may involve the way in which the parties will relate to each other, including how they will communicate; if harm has been caused, it will often propose a way of repairing the harm; but in many cases the dialogue itself is the reparation. Some practitioners and services specialize, for example in neighbourhood, family, workplace, or commercial mediation, and there are different techniques (the use of a ‘script’, a ‘conference’, ‘shuttle diplomacy’ and so on), but the basic principles are the same.

Restorative justice and its application

The processes described so far have all been in the realm of civil law. They are commonly described as restorative ‘practices’. Restorative justice, proprement dit, is used when a victim has suffered harm and the action has been classified as criminal. This is a two-stage process. The law states that actions of a certain type are criminal; but when a specific individual commits an action of that type, the victim may or may not decide to report it as a crime, or the police or prosecutor may decide not to treat it as a crime, for example because of insufficient evidence.

Let us remind ourselves of Shapland’s distinguishing features of restorative justice; and then compare them with selected European standards, and with legislation in selected countries. We will look at some critical issues for restorative justice, and finally, we will consider some guidelines to be borne in mind when introducing restorative justice.

Distinguishing features of restorative justice

The principles proposed by Professor Shapland, it will be recalled, were:

  • Inclusiveness, participation and procedural justice;

  • Dealing with emotion and the effects of the offence;

  • Problem-solving for the future: ‘human capital’; and

  • Building social capital and bringing in community (Shapland et al. 2011: ch. 7)

Restorative justice and selected European standards

Looking first at Shapland et al.‘s principle of inclusiveness, participation and procedural justice, the Council of Europe (1999) has quite a lot to say about this (references are to the Appendix to Recommendation No. R(99)19). The parties should freely consent (#1) (but it does not mention the pressure placed on the accused when the alternative to a restorative process is prosecution. ‘Informed consent’ might be a better word.) Discussions are confidential (#2), apart from information about imminent serious crimes (#30), so that judges should not ask about the mediation process. Mediation should be available everywhere (#3), which a few countries have achieved, and at all stages of the criminal justice process (#4), which no country has yet attained.

The Recommendation has been amplified by the European Commission for the Efficiency of Justice (CEPEJ 2007), although it is not clear how widely this document has been circulated. This is also concerned with procedural justice, for example recommending lawyers to provide information about restorative justice (CEPEJ #13). It proposes that member states should establish criteria for the accreditation of mediators, trainers and mediation services (#22), although those who favour maximum involvement of the community might prefer that function to be carried out by a well established NGO, and might question whether it is practicable to design a ‘certificate of European mediator’ that would meet everyone’s needs. There is a recommendation for a complaints procedure (#29), which the Council of Europe had not included.

Shapland et al. rightly mention the importance of participation of those affected by the crime, and the Council of Europe states that agreements should be arrived at voluntarily by the parties (#31). This does not however stress that the agreement should be reached by the parties themselves: facilitators should not push them towards a particular form of reparation. It also does not explore what facilitators should do if they feel a proposed agreement to be unreasonable.

An important aspect of the restorative process is dealing with emotion and the effects of the offence. The traditional criminal justice system is often criticized for failing to take account of this. The European standards do not have anything to say about it, and this is probably right: these are matters that belong in the training of mediators rather than in laws and guidelines. It is important to keep it in mind, however, precisely because it is one of the features that distinguish restorative justice. It helps to achieve the high rate of satisfaction of victims with the restorative process, and it also helps to motivate offenders to fulfil their agreements. It encourages the growth of empathy on both sides (although of course it doesn’t guarantee it). There is a tendency for laws and guidelines to emphasise the outcome : the apology, the compensation or community work. These are important if the victim attaches importance to them; but studies in England have found that many victims feel that the best reparation an offender can make is to stop offending, and hence to co-operate with any programme that will help him or her to do so. It will be interesting to know if victims in other countries feel the same way.

A third feature of restorative justice is problem-solving for the future and building ‘human capital’ . This implies that the process should look beyond the actual restorative meeting. Human capital is a term used for the resources of character and skills possessed by an individual that enable him or her to cope with life. It is well known that offenders often lack many of these essential qualities. A bank robber may lack education, skills, or the ability to think through the consequences of his actions; a fraudulent banker may lack the empathy for his victims that would inhibit him from defrauding them of their savings1. A restorative encounter enables them to meet people they have harmed, who are also likely to come from different sections of society who do not share their unscrupulous values. Again, there is no guarantee that they will begin to feel empathy, but it can happen. In South Africa, a woman who was a victim of an aggravated burglary met one of the burglars at Leeuwkop Prison, Johannesburg, and said afterwards that when she looked into his eyes for the first time she saw a sincere young man who deserved a second chance. He became a friend of her family and they conducted restorative workshops together (Sowetan, 14 July 2003). Another case is described by Braithwaite (2002: 22-24). Insurance companies in Australia were mis-selling worthless insurance policies to illiterate people in Aboriginal communities. Top managers agreed to visit them, and some of them went back to Canberra ashamed of what their company had done. The company voluntarily compensated 2,000 policyholders and set up an Aboriginal Consumer Education Fund.

One offender probably spoke for many when he said ‘There were a number of times when I wanted to stop it and move one, but the urge … was too great and I gave myself permission each time [although] I did feel guilty afterwards (Hanvey et al. 2011: 100). Meeting the victim, or someone representing the victim, makes it harder for someone to ‘give himself permission.’

Fourthly, building social capital and bringing in community. The Council of Europe barely touches on this. It has two aspects: the mediation service itself and the support services for the participants. The Recommendation says (twice) that mediation services should be given sufficient autonomy (#5, 20); it does not mention services run by independent NGOs, but this is implied when it says that there should be regular consultation between criminal justice authorities and mediation services (#33). It does say that mediators should be recruited from all sections of society (#22), which opens the door to the use of trained volunteers.

The second aspect is the support services. There is an imprecise mention of the desirability of guidelines for the handling of cases following mediation (#7), and the training of mediators should include basic knowledge of the criminal justice system (#24), but more is needed. As Shapland et al. rightly say, ‘The state needs to provide the programmes or facilities which are encompassed within outcome agreements’ (2011: 76). Mediators need to know what services exist locally, such as cognitive behavioural therapy, anger management, and basic skills such as literacy; they should not raise false hopes by letting parties make an agreement for which the resources are not available. If they are needed, the mediation service should draw the attention of the state or relevant NGOs to the gap. There should be follow-up for victims, to make sure that they have no unresolved issues after the mediation. Offenders often need help in overcoming the stigma of conviction, although participating in the restorative process should in itself contribute to this.

CEPEJ recommends recognition of social authorities, victims support organizations and other organizations which may offer mediation or restorative justice (#12). This also endorses community involvement, although it does not emphasise it.

Recommendations of this kind need to be amplified by a code of practice. In England we have the Best practice guidance for restorative practice, issued by the Restorative Justice Council (2011). The relationship between the state and the NGO sector is illustrated by the fact that this code is produced by one NGO, endorsed by state agencies and other NGOs, and has a foreword by a minister in the Ministry of Justice. It includes a summary of the skills needed by facilitators and guidelines for conducting a restorative session. It recognises the overlap between civil and criminal situations by including a section on informal restorative practices, and ends with administrative guidance for organizations providing restorative services and their managers.

A more recent statement, still in draft form, has been issued by the European Commission (2011): a proposal on establishing minimum standards on the rights, support and protection of victims of crime. This has been welcomed by the European Forum for Restorative Justice for the fact that restorative justice is included among the services needed by victims; in its present form it is however considered to place disproportionate emphasis on the need for safeguards, rather than on the benefits, and hence on the need for access to restorative justice for all victims of crime and the desirability of actively promoting it in all member states (Kearney, personal communication 20.9.2011).

Restorative justice in legislation

How are these principles reflected in the legislation of European countries? We have to consider firstly whether it is mandatory or permissive, or whether it says nothing at all. In England and Wales we have all three kinds. For young offenders in certain categories the court must order the case to be referred to a youth offending panel. For adults the court may order a ‘community sentence’ (similar to what used to be called ‘probation’) including certain ‘requirements’ for ‘specified activities’, and these may include ‘activities whose purpose is that of reparation, such as activities involving contact between offenders and persons affected by their offences’ (Criminal Justice Act 2003, sec. 201(2)). Thirdly, after a person has been sentenced, he or she, or the victim, may request a restorative meeting; this includes those sentenced to imprisonment. The effect of this is that for young offenders a system has been created so that the order of the court is carried out; however it is not fully restorative, because in many places little effort has been made to encourage victims to attend, and few of them do so. For adults, the probation service is required to contact victims before the release of a prisoner serving a sentence of 1 year or more for a violent offence, and this would provide a good opportunity for restorative contact; however, little use is made of this provision, because there are few probation officers or NGOs able and willing to facilitate restorative meetings. For sentenced offenders, even fewer restorative meetings take place, mostly on the initiative of local NGOs such as CALM (Confidential And Local Mediation) in west London. Because it is not part of the official system, each case has to be negotiated with the prison authorities. By degrees local protocols are being developed. In Belgium for a time (until 2008) restorative justice advisers were available in every prison (Van Doosselare and Vanfraechem 2010: 60).

When Shapland et al. speak of inclusiveness and participation, they are referring primarily to including all those affected by the offence, especially family and friends of both the victim and the offender. This is achieved by ‘conferencing’, but not by one-to-one mediation. Taking it a step further, if restorative justice is only available in certain types of case, there is by definition no inclusiveness. In England and Wales there are the above-mentioned Youth Offender Panels, which include trained volunteers (thus ‘bringing in the community’); but they are only available for young offenders, appearing in court for the first time, and pleading guilty to offences that are not too serious; hence victims of adult offenders, repeat offenders and serious offenders are excluded. However, when a case fits the criteria, the case must be referred to the panel, so the number referred is high. Victims can be invited to take part, but not many do. Most legislation follows the traditional focus on offenders, not victims.

In Germany, for example, only misdemeanours can normally be diverted from prosecution ( Lenz et al. 2010:124)

In Austria the name used, Out-of-court offence resolution (ATA: Aussergerichtlicher Tatausgleich) , emphasises the fact that the cases are criminal and that they are diverted out of court; but the mediators are all professionals. Offences up to a certain level of seriousness can be diverted; as in some other countries this level is defined by the maximum prison sentence that can be imposed: a relic of the traditional system which is based on punishment of the offender rather than the harm caused to the victim (Pelikan 2010).

In Norway mediation can be provided in both civil and criminal conflicts; in criminal cases VOM can be applied with a suspended prison sentence, which implies more serious offences, and it is being increasingly used in cases involving violent offences (Hydle and Kemeny 2010: 207).

Finland has also legislated for mediation in criminal and certain civil cases; it is administered by the Ministry of Social Affairs and Health, through a national advisory board. The Act provides for the funding of the service from government funds. Any type of crime can be dealt with; there are few exceptions, for example with certain vulnerable victims. In both Norway and Finland the mediators are trained volunteers (Iivari 2010).

In Italy mediation services (mostly for juveniles) appear to have been established as a result of local initiatives, and some mediators are volunteers, so they can fulfil the community involvement criterion. For adult offenders,however, justices of the peace do not refer cases to mediation but try to conciliate the conflicting parties themselves; according to Mestitz (2010: 134-5) this is because they are paid on the basis of the number of cases they manage.

These examples show that there is no simple answer to the question, How much in restorative justice used in a particular country? It has to be answered on several dimensions. Is it available at all stages of the criminal justice process: diversion from the process, as (part of) the sentence, after the sentence, or for actions that are not necessarily classified as criminal (including some private complainant offences)? Up to what level of seriousness is it available pre-sentence or in-sentence, and for more serious offences can it be used post-sentence? Is it available nationwide? Does it meet the additional criteria, such as involvement of the community (including people from ethnic minorities) and availability of post-mediation support services? Each country answers these questions in different ways.

Critical issues for restorative justice

Advocates of restorative justice have to remind themselves (if they are not reminded by others) that it does not have all the answers. To take two examples, referred to earlier, What can be done when restorative process cannot be used, for example if the victim refuses to take part or the offender is unco-operative? And, Are restorative practices being implemented correctly?

When a fully restorative process is not possible

The first and crucial point is that restorative justice can only be used when the accused admits at least some involvement. If he claims that he is a victim of mistaken identity, he is not the person with whom the victim should have a dialogue. If he admits involvement but minimizes it, excuses it or shows no remorse, the victim should be consulted: if they would nevertheless like to give the offender ‘a piece of their mind’, regardless of the offender’s attitude, this should be considered; but if they would find this attitude hurtful or provoking, a meeting would not be helpful.

In that case, or if the offender refuses to meet the victim, or fails to keep their agreement, clearly it is not acceptable to say, in effect, ‘We will offer restorative justice, but if the offender cannot or will not take part, we will do nothing’. Conversely, if the victim cannot or will not take part, it is unfair to impose a punitive sanction on an offender who is willing to makes amends. In these case the offender must face ‘consequences’ of some kind, but they should be restorative ones, for example undergoing a victim awareness course or doing work for the community. It should be work whose value is obvious. If possible the offender should meet the beneficiaries of the work, or work alongside volunteers at a shared task, and should receive thanks. This helps the goal of reintegration. It may be physically demanding or even unpleasant work, but the essential factor is that it is not imposed for that reason. And as with all restorative justice work, there is often the pain of being reminded of the harm he has caused. Not all will experience remorse, of course; but not all are deterred by punishments, however harsh, as the prison reconviction rates show.

Is restorative justice implemented correctly?

To put the question in this way is misleading, because it implies that there is a ‘right’ way. It would be better to ask whether it is carried out in the spirit of restorative justice. Mediators obviously need to be trained, and there is some evidence that those previously trained in criminal justice need to pay special attention to restorative principles such as condemning the offence but not rejecting the offender, and not using the mediation meeting to gather information for prosecution purposes. A system of accrediting those who have successfully completed training is needed; it should be such that volunteers as well as professionals can become mediators. This implies compiling standards, such as the above-quoted Best practice guidance for restorative practice of the Restorative Justice Council (2011).

The need for support services has already been mentioned. They should also be available in cases where restorative justice is not possible or appropriate. For victims, there is Victim Support (which may include subsidiary organizations for victims of specific crimes, such as homicide, causing death with a motor vehicle, rape, and others). For offenders there are many organizations, in the United Kingdom at least; one which operates in a restorative way, although not involving victims, is Circles of Support and Accountability. These are (so far) specifically for sex offenders on release from prison. Because of the stigma attached to the crime such a man is especially likely to face difficulties such as loneliness and unemployment; the circle is a group of trained volunteers who meet with him at frequent intervals to help and support him, but on the understanding that if he shows signs of reverting to his previous behaviour, the police will be informed and he may be recalled to prison (Hanvey et al. (2011).

There are other requirements to comply with other aspects of the restorative ideal. For example, mediators should be recruited from all sections of the community, including ethnic minorities. There should be an annual report, demonstrating accountability to the local community.

Finally, one criticism of restorative justice has been that, like criminal justice, it assumes that a crime is an isolated event, committed by an offender, who is called upon to make things right. But this is only part of the story. If facilitators of restorative meetings see a pattern of factors linked to crime, such as a high number of offenders coming from a particular schools or district, they should draw this to the attention of the authorities responsible for crime reduction and social policy generally. Some of these factors are already well known, such as unemployment, but this could put extra pressure on the authorities to take the necessary action.

Conclusions

To sum up: what is this new paradigm, or new incarnation of an old human institution? We started with restorative justice, which is a rather special application because it is concerned with wrongdoing and therefore frequently involves the criminal justice system. It may be used at different stages of the process. Countries implement restorative justice to different degrees, and the law sometimes falls short of restorative ideals, for example by focusing on offenders rather than on victims, and in some cases limiting restorative meetings to juvenile offenders and their victims. There are few countries where restorative justice is available nationwide, even to a limited extent. The public, and the media, do not always understand the idea clearly; for example, ordering an offender to do a menial job, intended to be punitive, without an attempt at victim-offender dialogue, is sometimes wrongly described as ‘restorative justice’. Here is the first part of the paradigm shift, away from retribution for its own sake to problem-solving and reintegrating wrongdoers into the community. It does not begin by asking how they should be punished, but how they can make better use of their lives in future. The model for doing this is not behaviourism, but an approach which encourages empathy and understanding, and hence behaviour which is motivated by those relationships. However, restorative justice needs the courts for those cases it cannot handle for various reasons; it is hoped that it will influence the courts to adopt a more restorative outlook.

These ideas were based on enabling people to resolve conflicts themselves, rather than having a decision imposed on them, and on encouraging empathy rather than rules as the basis for doing so. They were noticed in other spheres of life, notably schools. Children can be shown how to make their own rules, and have shown that they can do so in a very sensible way. They can also understand the basic principles of resolving problems in a respectful way, being non-judgemental, and condemning the wrongdoing, not the wrongdoer.

The same principles are also being taken out into the wider community. In the city of Hull, in north-east England, everyone who works with children is being trained in restorative methods. The aim is to move towards harmony by creating a ‘restorative city’. Disputes between neighbours can be resolved with the help of mediators, and likewise conflicts between family members, or workmates. People who were regarded as a problem become part of the solution to the problem. As Thomas Kuhn (1962) has shown, revolutions in thinking do not happen overnight. But we are in the middle of one paradigm shift, learning to live in harmony with the planet; now we can be part of another, learning to live in harmony with each other.

REFERENCES

Bazemore, G and L Elis (2007) ‘Evaluation of restorative justice.’ In: G Johnstone and D W Van Ness, eds. Handbook of restorative justice. Cullompton and Portland OR: Willan Publishing.

Braithwaite, J (2002) Restorative justice and responsive regulation. New York: Oxford University Press.

CEPEJ (European Commission for the Efficiency of Justice (2007) Draft guidelines for a better implementation of the existing recommendation concerning mediation in penal matters. CEPEJ (2007)13PROV2. Strasbourg: Council of Europe.

Claassen R and R (2008) Discipline that restores:  strategies to create respect, cooperation, and responsibility in the classroom.  South Carolina:  BookSurge Publishing. (www.disciplinethatrestores.org )

Council of Europe (1999). Recommendation No. R(99)19 of the Committee of Ministers to Member states concerning mediation in penal matters. Strasbourg: Council of Europe. Reprinted in: I Aertsen et al. (2004) Rebuilding community connections: mediation and restorative justice in Europe. Strasbourg: Council of Europe.

Elezi, I (2006) Mediation in penal case reconciliation. . Transl. Merita Xhediku. Tirana, Albania: Foundation ‘Conflict Resolution and Reconciliation of disputes’, 2006. gjoka@albaniaonline.net

European Commission (2011)Proposal for a directive of the European parliament and of the council establishing minimum standards on the rights, support and protection of victims of crime. (COM(2011) 275 final, 2011/0129 (COD)). Brussels, the EC, 18.5.2011.

Hanvey, S, T Philpot and C Wilson (2011) A community-based approach to the reduction of sexual reoffending: Circles of Support and Accountability. London and Philadelphia: Jessica Kingsley Publishers.

Hydle, I, and S Kemeny (2010). ‘From local trial projects to state owned services: empirical research on restorative justice in Norway.’ In: I Vanfraechem, I Aertsen and J Willemsens, eds. Restorative justice realities: empirical research in a European context. The Hague: Eleven International Publishing.

Iivari, J (2010) ‘Providing mediation as a nationwide service: empirical research on restorative justice in Finland.’ In: I Vanfraechem, I Aertsen and J Willemsens, eds. Restorative justice realities: empirical research in a European context. The Hague: Eleven International Publishing.

 Illich, I (1973) Tools for conviviality. New York:Harper and Row. http://www.preservenet.com/theory/Illich/IllichTools.html#ChapterII

Jabbour, E J (1996) Sulha: Palestinian traditional peacemaking process. Ed. and compiled by T C Cook jr. Montreat, NC and Shefar’Am, Israel: House of Hope Publications.

Kropotkin, P (1902/1987) Mutual aid: a factor of evolution. London: Freedom Press. 

Kuhn, T (1962) The structure of scientific revolutions. summarized by Frank Pajareshttp://des.emory.edu/mfp/Kuhn.html

Lenz, S, E G M Weitekamp amd H-J Kerner (2010) ‘Depicting the development if victim-offender mediation: empricial research on restoirative justice in Germany.’ In: I Vanfraechem, I Aertsen and J Willemsens, eds. Restorative justice realities: empirical research in a European context. The Hague: Eleven International Publishing.

Mestitz, A (2010) ‘The spontaneous bottom-up rise of mediation with youth offenders: empirical research on restorative justice in Italy.’ In: I Vanfraechem, I Aertsen and J Willemsens, eds. Restorative justice realities: empirical research in a European context. The Hague: Eleven International Publishing.

Pelikan, C (2010) ‘Out-of-court but close to justice: emppirical reaserch on restorative justice in Austria.’ In: I Vanfraechem, I Aertsen and J Willemsens, eds. Restorative justice realities: empirical research in a European context. The Hague: Eleven International Publishing.

Restorative Justice Council (2011) Best practice guidance for restorative practice. London: RJC. (Also available to members of the RJC from www.restorativejustice.org.uk)

 Ross, R (1996) Returning to the teachings: exploring Aboriginal justice. Toronto: Penguin Books.

Shapland, J, G Robinson and A Sorsby(2011) Restorative justice in practice: evaluating what works for victims and offenders. London and New York: Routledge.

Tutu, D (2000) No future without forgiveness. London etc.: Rider.

Van Doosselaere, D, and I Vanfraechem (2010 ‘Research, practice and policy partnerships: empirical research on restorative justice in Belgium.’ In: I Vanfraechem, I Aertsen and J Willemsens, eds. Restorative justice realities: empirical research in a European context. The Hague: Eleven International Publishing.

Wright, M (1977) “ ‘Nobody came’: criminal justice and the needs of victims.” Howard Journal, 1977 16(1), 22-31.

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

Zehr, H (1995) Changing lenses: a new focus for crime and justice. 2nd ed. Scottdale, PA: Herald Press.

1 In the UK, for example, Barclays Bank mis-sold payment protection insurance (PPI) and has had to pay £60 million to compensate customers, plus a fine of £7.7 million (Daily Telegraph 5 October 2011).

 

Towards a restorative society (RJC AGM 2010)

Where did restorative justice begin?

Many of us are familiar with the ‘creation myth’ of restorative justice: how in 1974 two young men who ran amok in a small town in Ontario visited their victims and agreed on suitable reparation. It really happened1; the myth is that this was where it all began. Already in the 1960s, some American Quakers had been showing people non-violent techniques for civil rights marches. In 1970 the Institute for Mediation and Conflict Resolution (IMCR) was created in New York to train people in mediation techniques, after civil disturbances of the 1960s; here, the Advisory Conciliation and Advisory Service (ACAS) was established in 1974; to say nothing of much earlier examples in places like the Friendly Islands, where offenders do not lose face when they make a public act of apology and reconciliation, but gain approval. There are many other examples from traditional societies, which were being written about from the 1950s onwards.2

 The point I am making is that originally there was no hard-and-fast distinction between civil and criminal mediation. Restorative processes can be used in at least four main ways:

  1. in decision-making, prevention

    Restorative processes need not wait until there has been a conflict; they can be used as a decision-making process, which may avoid the conflict;

  2. as a response to conflict

    They can be used to resolve a dispute. The emphasis is on how the disputants will act in future, and how they will communicate;

  3. as a response to harm

    When actual harm has been caused, the processes can be used to agree how best to put it right;

  4. as a 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. Indeed the principal difference between criminal and non criminal harm is that the state has taken upon itself the power to deal with the former, and the borderline is constantly shifting – witness the fact that in the United Kingdom some 3500 actions are criminal in 2010 which were not in 1997 when the New Labour government was elected.

 Where are we now?

It seems to me that we are at a turning point. The words ‘restorative justice’ are beginning to be well known, and have even entered the political dialogue. But are they well understood? There are two levels of possible misunderstanding. Firstly, in the context of criminal justice, some confuse it with reparation, which in turn is more like punishment if the emphasis is on the unpleasantness of the task rather than the value of the work. Scrubbing graffiti while wearing conspicuous jackets is more like a public alternative to sewing mailbags. Genuine restorative justice is a diamond with many facets, including:

  1. The fact that the process itself is important; it is not just a stressful path to an outcome. Relationships are vital.

  2. The informality of the process also brings it closer to the lives of those involved. Safeguards are needed, however: standards, code of practice, training, supervision and support, and a complaints procedure.

  3. Involving the community3: we need to provide alternatives to graffiti-scrubbing. The ideal would be doing work side-by-side with volunteers, and/or meeting the beneficiaries of the work, being appreciated, making relationships. Other ways of involving the community include

    1. family group conferences, which bring in more members of the community, and

    2. mediation services provided by NGOs, especially when they use trained volunteers as mediators: There is then a higher level of community involvement, and therefore a higher score on the ‘restorativeness’ scale. That is one level at which we have some work to do to make the concept well understood.

  4. dialogue with victims is beginning to be given more emphasis, but needs to empower them to decide the outcome, subject to safeguards, not just to have a conversation, however productive, and then be told by a judge that a different penalty will be imposed. The leading case, from New Zealand, is that of Mr Clotworthy, who agreed reparation with his victim (paying for plastic surgery), but was prevented by a judge who said that punishment, in the form of imprisonment, must take precedence, so that he was unable to redeem himself by paying, and his victim was left empty-handed – and scarred.4

 Key aspects of what was later called restorative justice are the importance of the process itself, and the direct participation of the ‘owners’ of the conflict, which shouldn’t be ‘stolen’ from them by professionals. These points were made in a widely quoted article in 1977 by Professor Nils Christie, entitled ‘Conflicts as property’.5 The Norwegian mediation service accordingly deals with both civil and criminal cases, and requires that mediators be volunteers. In the same year the (American) Victim Offender Reconciliation Program was described in an article in the Howard Journal, which I can safely say received much less attention.6

 But there is a second level of ambiguity. The concept has been picked up by those working in other parts of society, for example by training children to mediate, as well as teachers and parents, and by mediating in communities and workplaces; in other words, it has reconnected with its roots as a way of enabling people to agree their own solutions rather than have them imposed by an authority. This is often called ‘restorative practices’ or ‘approaches’. But some people are using ‘restorative justice’ to include all of this as well. So there is a further hill to climb, to get people used to thinking of restorative justice as including all restorative practices. But if we are referring only to the criminal or the civil aspect, we then have to make it clear, perhaps by distinguishing ‘restorative criminal justice’ and ‘restorative social justice’, RCJ and RSJ.

Where do we need to go?

Firstly, we need to flesh out the concept; and secondly, to consider how to make restorative practices available throughout the country.

 Points which need to be considered in regard to the concept include:

  1. Familiarizing people with 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. Firstly, it understands ‘justice’ as ‘fairness.’ Secondly, 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. A dialogue is encouraged, conducive to empathy on both sides. 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. We haven’t been brave enough in challenging the received wisdom. People say ‘Nobody denies that offenders should be punished, but …’; we need to stand up and say ‘I am this nobody’. This is not to say that wrongdoing should have no consequences, but they should be measures which heal, and do not cause further harm.

  2. 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) has to make it possible for them to do so.

  3. 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. The facilitators of family group conferences in New Zealand have begun to do this.7

  4. 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 spend excessive time applying for funds rather than providing the service.

  5. Preventing backsliding: the movement needs to be on its guard against tendencies to revert to former punitive, authoritarian, adversarial ways of thinking.

  1. Including serious harm, especially ‘crimes of the powerful’. This can include abuse of power in any form, from large companies which exploit their staff or their customers or endanger them by unscrupulous disregard of safety precautions, to police, prison officers or soldiers in occupied or disputed territory who abuse their power over other people.

 As regards making restorative justice available everywhere, it can be done primarily through the state (nationally and locally), and through the voluntary sector. If it is done through the state, it is ‘official’ and in some cases provided by law. Restorative justice workers who are within the system have easier access to colleagues in the Crown Prosecution Service, police, probation and the courts, to obtain referrals – although in a really restorative system, automatic referral would be the default mode. Potentially, statutory services are better resourced, although resources are currently under great pressure as we know only too well. There is a danger that restorative justice workers will be on their own in a large organization operating on a different philosophy to theirs. As regards involving the community, the statutory sector makes only limited use of volunteers; they are used for youth offending panels, but these are only partly restorative. The statutory sector does little in the way of restorative community mediation.

 The other way of making restorative justice available is through voluntary organizations. From the start, involvement of members of the community has been a strong theme in restorative justice theory and practice. Voluntary groups have great potential for both RCJ and RSJ. There are local mediation services around the country; since the unfortunate demise of Mediation UK, no one seems to know how many. They use trained volunteer mediators to handle disputes between neighbours, workplace disputes and others, and they can promote mediation in schools and in the community generally. Volunteers are available out of office hours; when they move on, they take their heightened understanding with them. Voluntary organizations provide a link between the voluntary and statutory sectors.

 This is however not all plain sailing. It can be difficult to establish them, and funding is a constant worry. They need a system of accreditation to ensure that they adhere to a code of practice, both for their mediation practice and for their governance – which should also be managed in a restorative spirit. This need not be a major undertaking; when Victim Support started in 1980, its code of practice was a single sheet; by degrees, in consultation with members, it was developed in line with new needs. They need a national body to be their standard-bearer, and supervise and support them in living up to their standards.

 What would a restorative society be like?

As we move towards a restorative society we could see less reliance on power, authority, coercion, negotiating from strength, and control, and move increasingly towards the restorative principles of dialogue, empathy, problem-solving and respect. This would mean much more than mediation. Alternative methods of conflict resolution would be explored, such as Non-Violent Communication and various ways of using circles.8 Decision-making could be not merely by single transferable vote, but by consensus voting systems, which favour the options which win the most consensus, rather than the most divisive ones.9

 This movement would be led by a network of local mediation centres. They would be accredited by a national organization, with regard both to their standards of mediation and their governance. Ideally, as in Norway, each local authority would have an obligation to fund them. Let us look at some possible applications from restorative social justice and from restorative criminal justice.

 As an everyday example of how things could be different, let us look at a typical organization and its grievance procedure. The basic grade workers will be line-managed by a supervisor, who in turn will be line-managed, and so on. The danger in this authoritarian style is that suggestions are seen as criticism, and questions as insubordination. The grievance procedure will say things like ‘If you have a grievance, raise it with your line manager; if it relates to him or her, raise it with the next in line’, and so on. There is a natural tendency for the senior manager to support the line manager, unless the latter is clearly in the wrong. The procedure is adversarial: Upheld or Not Upheld; it does not encourage recognition of ‘faults on both sides’ or recommendations for improvements within the organization. If the grievance is upheld, relations between the employee and the manager will suffer; if not, the employee is likely to feel more aggrieved. The grievance can continue in this way up the chain of command to the board of management, with the possibility of additional causes for dissatisfaction if the employee feels that the procedure itself has not been satisfactory. The procedure may provide for a final hearing, possibly by the chairman of the board, who again will be under pressure to support the management. After that, if the employee still felt unfairly dealt with, he or she could apply to a tribunal; this in itself would be harmful to the organization’s reputation and the morale of other staff, whether or not the grievance was upheld.

 In a restorative organization, the grievance is less likely to arise in the first place. Suppose, as a typical case, an employee wants an extra day off (which will affect other people’s workload), or feels that their own workload has been increased unreasonably. The matter would be raised initially in a circle meeting, which would try to find a way of meeting everyone’s needs. Sometimes agreement might still not be reached. Then the manager would have to make a decision, but only after listening to the wisdom of the circle, so that further action is less likely to be needed. However, if the employee felt that decision was unfair or contrary to company policy, an independent mediator would interview him or her, and then the manager, to explore what could be a settlement that would meet the needs of the employee, the manager and the organization. There could be some ‘shuttle diplomacy’, if necessary, and then they would be invited to meet in a mediation session. As always with mediation, this would not focus on the details of what actually happened (perceptions often differ) or who was to blame; instead they would ask both parties to focus on a workable arrangement for the future. Of course no one suggests that there would be a 100 per cent success rate. Ultimately someone has to make a decision, but all the indications are that this approach would be much more likely to improve performance and morale.10

 One project which adopted the use of circles is Roca, a youth organization in a rough neighbourhood of Boston, MA, which uses them not only with young people but in its own management, and has persuaded the local authority and even such unlikely places as a youth detention facility to adopt them. A researcher found that ‘when Circles start to be used in seemingly inflexible bureaucratic organizations, they initiate – quietly and almost invisibly – a profound process of change’ 11. She writes that ‘Circles are uniquely able to “hold” conflict in a constructive way’.12 She admits that major change processes require champions, who face enormous challenges, but ‘organizations need a vision for the future; they need to reflect on their core values, achieve clarity about their purpose, and design effective action toward their goals. They must learn to take a hard look at themselves and examine the truth about what they have achieved in order to discover how it may – or may not – measure up to what they say they would like to do’.13

 Schools, likewise, can use circles both for pupils and staff. St Edmund’s Primary School, North Lynn, Norfolk, uses circles for children, regularly and when there has been an incident; but also for staff. In addition to staff meetings they have feelings circles, fun circles and problem-solving circles. Encouraging results were reported after only a few months.14

Perhaps the best known development in this direction is the city of Hull, which as set itself the ambitious target of becoming a restorative city, and has already made impressive progress in its schools and services for young people.15

 In the criminal field, there is a tendency to limit restorative interventions to less serious offences, despite research showing that it works better with more serious ones, probably because there are deeper emotional issues to be resolved. As for serious repeat offenders, Professor John Braithwaite suggests that as there are not many of them, the following restorative approach could be used. The next time they were caught, the police would offer them a choice. They could carry on offending, and almost certainly be caught and reconvicted, or they could work with the Restorative Justice Group. This would bring together a circle of people who care about them and whom they trust, who would work together on a package of reparation and rehabilitation. The judge would then be asked to pass a sentence of intensive supervision instead of prison.16

 Braithwaite gives examples of the use of restorative methods in relation to white-collar crime, for example when a number of Australian insurance companies were selling useless insurance policies , notably in Aboriginal communities. Top management from one company visited the communities and met the victims; they returned to Canberra deeply ashamed. The company voluntarily compensated 2000 policyholders and set up an Aboriginal Consumer Education Fund to ‘harden targets’ for future attempts to rip off Aboriginal people. It was later found that another company was defrauding members of a police union; a huge payout was made and regulatory changes were made. All this was achieved without going to court, except for a couple of individuals who refused to co-operate with the restorative process.17

 The official review of regulatory justice in England and Wales by Professor Macrory recommended restorative justice in case of regulatory non-compliance, as a pre-court diversion, instead of a monetary administrative penalty, and within the criminal justice system as a pre- or post-sentencing option.18 The Restorative Justice Consortium also recommended it in cases of corporate manslaughter.19

 Restorative justice is concerned with harm, which is not always defined as criminal. Take for example Bhopal, the Indian town where many thousands have become ill and died, and many birth defects have been caused, by a disastrous leak of poisonous chemicals. The case was dealt with by civil litigation, which resulted in a wholly inadequate amount of compensation being paid. The company responsible, Union Carbide, has been taken over by the Dow Chemical Company, which denies liability. Attempts have been made to extradite those responsible to stand criminal trial in India. These have been successfully resisted, and even if those responsible were jailed, it would not benefit the victims whose water is still poisoned. In the spirit of Braithwaite’s proposal, would it not be better to invite the company directors, if any of them were brave enough, to visit Bhopal. Their company, ironically, prides itself on high ethical standards, charitable contributions and ‘putting its water solution technology to work to bring clean, fresh water to those in need.20 Then we would see whether their consciences, assisted by some publicity, would allow them to deny that whatever the legal position, the Dow Chemical Company has a moral responsibility to clean up the poisonous aftermath left behind by its subsidiary more than twenty-five years ago. Would it work? It might not; but the other methods haven’t worked yet, and it is possible that the desire to be thought well of is a stronger motivator than fear.

 Conclusion

I have tried to show the scope of restorative justice at many levels of society, from bringing up children to the activities of multi-national corporations – and I haven’t touched on the international possibilities. It is often said that conflict in itself is normal; what matters is how it is handled. We are beginning to build up experience of restorative decision-making, handling of conflicts and responding to crimes. We need to think more about how these methods can be developed and spread, and let everyone know of their successes. This could be a transformation of society comparable to the introduction of the welfare state, and I hope the Restorative Justice Council will play a leading role. If I may repeat what I have said elsewhere, in the last two or three decades we have begun to learn how to live in harmony with the planet; our next challenge is to learn how to live in harmony with each other.

Martin Wright

martin@martinwright.eu

Towards restve soc AGM 109.doc

1 D.Peachey (1989) ‘The Kitchener experiment.’ In: M Wright and B Galaway, eds. Mediation and criminal justice: victims, offenders and community. London: Sage.

2 M.Wright (1996 ) Justice for victims and offenders: a restorative response to crime. Winchester, Waterside Press, chapter 4.

3 In this context this much-discussed word includes individuals, local organizations, businesses and local government.

4 J.Braithwaite (2002) Restorative justice and responsive regulation. New York: Oxford University Press, p. 147.

5 N.Christie (1977) ‘Conflicts as property’. British Journal of Criminology, 17(1), 1-15.

6 M. Wright (1977) ‘Nobody came: criminal justice and the needs of victims.’ Howard Journal, 16(1), 22-33.

7 A.MacRae and H Zehr (2004) The little book of family group conferences, New Zealand style. Intercourse, PA: Good Books. Chapter 5.

8 K.Pranis, K (2005) The little book of circle processes: a new/old approach. Intercourse, PA: Good Books. .

9 P J Emerson (1991) Consensus voting systems. [Belfast: De Borda Institute].

10 Thanks to Annette Hinton and Corinne Rechais for helpful comments.

11 C. Boyes-Watson, (2008) Peacemaking circles and urban youth: bringing justice home. St Paul, MN: Living Justice Press.. p 179.

12 ibid, p. 177.

13 ibid, pp. 175, 185.

14 Lisa Cook, ‘ “Beyond all belief” – restorative practices at St Edmund’s Primary school, Norfolk, UK, http://www.restorativejustice.org/RJOB/201cbeyond-all-belief201d-2014-restorative-practices-at-st-edmund2019s-primary-school-norfolk-uk , accessed 12.9.2010

15 Laura Mirsky, ‘Hull. UK: toward a restorative city.’ http://www.iirp.org/pdf/hull09.pdf , accessed 15.september 2010

16 John Braithwaite (2002) Restorative justice and responsive regulation. New York: Oxford University Press, pp. 36-38.

17 ibid, pp. 22-24.

18 R.Macrory (2006) Regulatory justice: making sanctions effective. Final report. London: Better Regulation Executive, pp. 69-72. www.cabinetoffice.gov.uk/regulation/penalties

19 Restorative Justice Consortium (2005) Corporate manslaughter: the government’s draft Bill for reform. London: the Consortium.

Restorative Justice Council strategy: Strategy for nationwide restorative justice

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:

  1. 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
  2. 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
  3. response to harmWhen actual harm has been caused, the processes can be used to agree how best to put it right
  4. response to criminal harm

When the harm has been caused by a criminal act, they can be used

      1. instead of criminal procedure,
      2. as part of criminal procedure
      3. 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.

  1. 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.
  2. 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
  3. There is little movement towards providing the service for victims of adult offenders – in general, the probation service doesn’t seem likely to.
  4. 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.
  5. 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:

  1. are 100% committed to restorative principles; their first loyalty would be to the national R J organization, not to the CJS.
  2. can help to resolve conflicts outside the criminal justice system (‘net limiting’ instead of net-widening).
  3. can provide support for mediators from RJ-qualified staff.
  4. being independent, can protest publicly at policies that limit R J or water it down.
  5. 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.
  6. 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.

  1. Victim satisfaction.

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’.

 6. Recommendations

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):

  1. 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.).
  2. Use the ‘Big Society’ agenda to encourage use of volunteers and NGOs as well as statutory sector.
  3. Apply for funds for development officer(s) for RJ(SJ) (schools, community etc.) and RJ(CJ).
  4. Apply for funds to establish working parties or sub-committees to work out detailed policies.

Martin Wright.1.9.2010

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).