What is restorative justice?
Restorative justice (RJ) is an approach to justice that aims to repair the harm done to victims. In doing so, practitioners work to ensure that offenders take responsibility for their actions, to understand the harm they have caused, to give them an opportunity to redeem themselves, and to discourage them from causing further harm. For victims, the goal is to give them an active role in the process, and to reduce feelings of anxiety and powerlessness. This approach brings together victims, offenders, and the community to restore harmony between the parties involved.
What are the aims of restorative justice?
Restorative justice has been defined as a process through which parties with a stake in a specific offence collectively resolve how to deal with the aftermath of the offence and its implications for the future. This can take the form of victim-offender mediation either through direct contact between the offender and victim or indirect communication involving third parties. It can also include actions of payment or agreed compensation to make up for loss, damage, or injury that has been caused. This is agreed between offenders and their victims.
Correctly implemented, RJ processes produce individually tailored solutions involving interaction between offenders, victims and the community. RJ’s can give victims answers to questions about why they have been victimised that information or support on their own cannot. Victims are more likely to receive an apology through an RJ process than at court. Similarly for offenders, RJ processes offer a unique opportunity to face up to what they have done, take responsibility and make up for the harm their offending has caused.
The aims of RJ are commonly stated to be:
- Engagement with the perpetrator: To ensure that they are aware of the consequences of their actions, have the opportunity to make reparation, and agree a plan for their restoration in the community.
- Creation of community capital: To increase public confidence in the criminal justice system and other agencies with a responsibility for delivering a response to anti-social behaviour.
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What are the different types of restorative justice in England and Wales?
There are various types of RJ processes in operation in the UK. These include:
The victim and offender, guided by a facilitator, communicate with one another. Other people can also be involved in the process, such as supporters of the victims and perpetrator, and also members of the wider community. This can take place through a direct face-to-face meeting, or, when several other people are involved, a conference; or indirectly with the facilitator acting as ‘go between’ in ‘shuttle mediation’. An agreement is usually reached to decide how best to repair the harm caused and a rehabilitative programme may be agreed.
This is a large-scale conference particularly useful at resolving anti-social behaviour. These conferences can deal with a large number of participants including local community members, several victims and perpetrators. In this approach the community as a whole is often the victim. This process is similar to community problem solving meetings. However, it is restorative if the process focuses on the harm caused and its resolution.
Young people who receive a court referral order attend a panel meeting to discuss their offence and the factors that may have contributed to their offending behaviour. The panel is made up of Youth Offending Team staff and community volunteers. The victim, or their representative, may also attend so that their views may be put forward.
What is the procedure for restorative justice?
In areas where RJ-trained personnel are available and a case with a personal victim is being considered for a conditional caution, consideration should always be given to including a RJ process in the caution. The procedure for administering a conditional caution is set out in the Director’s Guidance on Conditional Cautioning (7th edition).
As the police have the power to administer a conditional caution without referring the matter to the Crown Prosecution Service (CPS) (except for indictable only offences or offences involving domestic abuse or hate crime) it will be relatively rare for prosecutors to become involved in RJ considerations under the conditional caution scheme.
There are two ways that RJ can be used as part of a conditional caution:
- Where RJ processes are to be used to help determine the conditions to be attached to a conditional caution, the offender can be bailed under s37(7)(a) of the Police and Criminal Evidence Act 1984 for a sufficient period of time to allow this to take place.
- Participation in a RJ process may also be a condition of the caution itself. In such cases, positive participation in the process is all that is required of the offender by the caution, and any actions arising out of the RJ process will form a voluntary agreement between the offender and the victim.
How should the victim be involved in restorative justice?
RJ is a diversionary process available to all victims under the Code of Practice for Victims of Crime. Where RJ is an option the police should contact the victim (unless there are exceptional reasons not to do so) to ask for their views on reparation as a condition of the caution. Additionally, (if the offender has already indicated they are willing to participate) the victim can be asked if they would like to be involved in a direct or indirect RJ process.
The timing of this invitation can be crucial as victims often need a little time to recover from the initial trauma of the offence, before being able to agree to address the issues involved. However, if left too long, many victims will have “moved on” emotionally and will not wish to revisit the events of their victimisation again.
The victim’s consent must be obtained in any case where direct reparation or RJ processes are being considered. If the victim does not wish to participate in any meeting or have any contact, direct or indirect, with the offender or have any harm made good or compensation paid, these views must be recorded in writing on the case papers by an officer involved in the investigation and taken into account when determining what conditions are to be applied.
Where the direct victim does not want to participate in a restorative process, the police should consider whether there is an available and appropriate community member also affected by the crime or otherwise representing the community who would add value to the restorative process with the offender.
In cases where neither the victim nor an appropriate community member is available, a restorative approach could still be used to deliver the conditional caution, by encouraging the offender to consider what harm their offence may have caused, and how best they might repair it. This could be done in a one-to-one discussion (with the officer/facilitator), ideally in the presence of family or other supporters.
Who will make the final decision?
The final decision of whether a prosecution or diversion is in the public interest is a matter for the prosecutor. Prosecutors should consider any reasons put forward by the victim in support of his/her opinion that the offence ought to be prosecuted (or not prosecuted at all). For example, the victim may provide further information in relation to the background or the impact of the offence. However, while the views of victims are important, they do not operate as a right to reject or approve a diversion or prosecution. Whilst the Victim’s Code allows victims of domestic violence to take part in restorative justice techniques, the National Police Chief’s Council (NPCC) policy does not support the use of restorative justice in certain cases.
Where a victim of domestic abuse demands restorative justice, it should only take place after careful consideration and advice from supervisors or experts. Prosecutors should take careful consideration to ensuring that:
The victim’s safety is paramount.
There has been a thorough risk assessment.
The victim is a willing participant and that there are no coercive influences.
The facilitator is properly trained and experienced in dealing with these sensitive cases.