Restorative justice, victims' rights and the future.
Restorative justice, victims' rights and the future.
By Kate Akester of Justice. First published in LAG.
Restorative justice has become mainstream following the establishment of youth offender panels last year under the Youth Justice and Criminal Evidence Act 1999. It is no longer just another possible option available in some places at various points in the criminal justice process. However, there is no consensus over a definition. Tony Marshall defines restorative justice as 'a process whereby 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'. More recent Home Office research comments on the 'variability and changeability' of approaches in seven different schemes; the aims of practitioners vary and there is widespread uncertainty as to what the term means, both in theory and practice. There has been considerable enthusiasm about exploring the possibilities of victim/offender contact - which may result in young people seeing the consequences of their actions, accepting responsibility for them, and being given assistance to reintegrate into society. Thames Valley Police has been organising 'conferences' to promote these ends for some years. Now, under the 1999 Act, the youth offender panels, consisting of one member of the local Youth Offending Team (YOT) together with two members of the community, are attempting the same thing in a slightly different way. Young people are referred by the court to appear before them, with provision for victim involvement during the ensuing discussion about the reasons for offences, the reparation that may be made, and any courses or other facilities available to assist development, and thus reintegration. [Reparation can involve helping or working directly for victims, or doing something for the community. Apologies are regarded as an important part of reparation, since if they are genuine they should lessen the chance of reoffending, which is something the research shows victims want most of all.
However, there are concerns about the need for various safeguards for both offenders and victims and about compliance with human rights standards generally. In addition, many will be wary of new projects that start off with inspiring leadership and gradually deteriorate as the practice becomes more routine. It is instructive to realise that, in other jurisdictions, the keenest supporters of victim/offender mediation are well aware of the need to keep up standards in a process that is far more dependent on personal communication and relationships than any formal system.
It is now time to ask some more searching questions about whether and how restorative justice can be integrated into our own criminal justice system, what it has to offer, and what principles it is based on.
Human rights standards
It may be useful to begin by outlining the international human rights context. Human rights standards place emphasis on due process and fairness; Article 6 of European Convention on Human Rights ('the Convention') enshrines the right to a fair trial: the presumption of innocence, the right to legal assistance and the right to have criminal charges and sentence determined by an independent and impartial tribunal. The Convention also guarantees equality of arms, which requires defendants to be placed on an equal footing with the prosecution in presenting their case. Strasbourg jurisprudence is infused with the concept of proportionality, which means that restrictions on individuals' liberties and rights, if permitted at all, should be proportionate to the legitimate aim that the infringement seeks to achieve. Sentences must therefore have a purpose, be the least restrictive option available, and be proportionate. The Human Rights Act 1998, which incorporated the Convention into domestic law, thus has important consequences for the extent and manner of integrating restorative justice into our criminal justice system.
One main criticism of restorative justice is that it fails to provide adequate protection for individual rights. Classic models use informal processes of negotiation and mediation, which are designed to resolve conflicts arising out of criminal offences in a way that is constructive for all parties. The values of restorative justice are based on harmony and the good of the community as well as benefits for the parties. It places responsibility for outcomes in the hands of the individuals concerned and it can only operate if the offender accepts the basic facts of the offence. Negotiation takes place in private - not in open court. The presence of lawyers is commonly thought to impair restorative processes because it affects the directness of communication; in Europe, victim/offender mediation tends to involve lawyers as advisers (or experts on levels of damages) rather than as representatives.
Both the United Nations (UN) and Council of Europe have recently set out a number of principles and standards relating to restorative justice , which may provide safeguards for some of these concerns. These deal with the availability of mediation; voluntary participation; the necessity for the parties to be evenly balanced; the importance of procedural safeguards; and the question of when legal advice should be available. They form an important basis for the international movement towards resolution by consensus, and restorative justice measures in particular. The way they are interpreted, and the influence they have had on the ...
This is a preview of the whole essay
Both the United Nations (UN) and Council of Europe have recently set out a number of principles and standards relating to restorative justice , which may provide safeguards for some of these concerns. These deal with the availability of mediation; voluntary participation; the necessity for the parties to be evenly balanced; the importance of procedural safeguards; and the question of when legal advice should be available. They form an important basis for the international movement towards resolution by consensus, and restorative justice measures in particular. The way they are interpreted, and the influence they have had on the emerging European Union commitment to these ideas, in the form of the European Forum on Restorative Justice, is of great significance in terms both of international practice and for the future of domestic criminal justice.
The offender perspective
A central question within the restorative justice debate is whether cases can, or should, be diverted into restorative processes without the offender having to engage in a criminal trial. This issue is of particular importance in the youth justice field. The UN Convention on the Rights of the child emphasises the importance of diversion away from proceedings. It also underlines the importance of reintegrating young people, and the use of detention as a last resort. Countries such as Austria, Germany, and indeed, Scotland, have carefully avoided court proceedings; and have thus sidestepped the requirements of Article 6 of the European Convention on Human Rights. It must be remembered that this Convention was not written with children in mind. In addition, both child development theory and practical experience have shown that, in dealing with young people, flexibility and non-stigmatisation are much more important than due process. There is therefore a tension between the requirements for a fair trial and the informal measures which are likely to be more successful, with young people in particular.
In the light of these principles and of international practice generally, it is difficult to understand why the government here has chosen to make referral to the youth offender panels dependent on a guilty plea in the youth court. Unless referrals are made to YOTs following final warnings, youth offender panels will receive cases following court appearances. This places a burden on court time and places responsibility for conflict resolution in the hands of the victim and the offender at a much later stage. It also triggers the fair trial guarantees of the Human Rights Act, which are engaged as soon as court proceedings begin.
It is common ground that participation in restorative justice processes must be voluntary, but there are serious questions as to how possible this is in practice, and what safeguards are needed. There may be considerable pressures on an offender to participate in mediation or conferencing if the alternative is going to court and possibly getting a prison sentence. This raises the interesting puzzle of how voluntarism can have a place in a criminal justice context which is coercive.
Critics of restorative justice point out that demanding or vengeful victims may increase sentences where there is pressure on offenders to agree, as there is likely to be if they are understandably want to avoid court proceedings. [need to explain what they are under pressure to agree to] . Net widening is another potential problem. Experience shows that perpetrators of minor offences, who would previously have received a caution or conditional discharge, can end up agreeing to significant reparation and behaviour improvement packages which are disproportionate to the offences committed. Recent research shows that members of youth offender panels were concerned about disproportionality in youth offender contracts. The independence and impartiality of the mediator is also a potential problem, as it is crucial that the process is an even-handed one. [need to explain the role that mediators in relation to panels and within the process as a whole]. This may raise questions about the role of police, who are identified both with the prosecution and with victims; and have conducted many mediation sessions in Thames Valley and other parts of the country.
The question of legal representation is one that has been much discussed, not least in Scotland. When the government ratified the United Nations Convention on the Rights of the Child, it entered a reservation in respect of the lack of legal representation at Scottish children's panels, which have operated without it since 1971. This has been challenged following the implementation of the Human Rights Act; and the Court of session's decision suggests that lack of legal representation at children's hearings could, in certain cases, amount to a breach of Article 6 of the Convention, and that panels may have the discretion to grant such representation - even though the legislation is silent on this question. This decision might lead to applications for legal representation before youth offender panels in cases where there are exceptional difficulties, such as serious emotional or intellectual problems which would leave young people at a significant disadvantage.
Involving the victim
The degree of victim participation in restorative justice initiatives has not generally been very encouraging. Contemporary research indicates that the level of participation in the new youth offender panels is very low indeed. The obstacles that have been identified include time pressures on the organisation of panel hearings (and thus little time for victims to think or be prepared); lack of training and awareness of victim issues on the part of those doing restorative justice work; a lack of commitment on the part of those responsible for victim contact; and low public awareness about youth offender panels and referral orders. Panels are convened in the area where the young person rather than the victim lives, which may cause the victim problems with travelling and with the timing of panel meetings.
The Data Protection Act 1998 (DPA) also presents significant obstacle to victim participation. There is widespread confusion and a wide diversity of practice amongst YOTs and restorative justice projects concerning the DPA's requirements. Some YOTS operate from the premise that the DPA effectively requires first contact with victims to be made by police officers. Youth offender panels and other projects working in this way report far lower rates of victim participation. However, other YOTs interpret section 115 of the Crime and Disorder Act 1998 as authorising victim information to be passed direct to restorative justice project workers, so that they can take charge of all contact with victims. Projects which operate in this way, such as the MARS [in full?] project in Southampton, report significantly greater success in encouraging victim participation. These projects argue that contact with victims is highly sensitive and needs to be handled by trained individuals who are well informed about the pros and cons of what restorative justice can offer.
However, the Crime and Disorder Act also creates a difficulty. Because it defines the purpose of the youth justice system as being the prevention of offending, this gives rise to a common criticism that projects aimed at reducing recidivism use victims as part of the process to rehabilitate offenders, rather than genuinely recognising victims' own interests. It follows that, if meetings between victims and offenders are not expertly prepared and controlled, they can provide an opportunity for re-victimisation by the offender because of concentration on the young person's difficulties, rather than the victim's needs. This may arises with persistent young offenders, who characteristically have damaged and disadvantaged lives that may prevent them being able to develop any empathy.
Issues for the community
Community involvement in restorative justice is a popular concept, but it is ill-defined. In practice, community involvement may imply no more than having a couple of social workers working with a young person on an intervention . It is not really clear whether this is a sufficient representation of the wider population or whether something more should be involved. If nothing else, the community - in the broadest sense - has a general interest in fairness and consistency of approach. Because outcomes depend on agreements reached between offender and victim, they vary according to circumstances, including whether victims are particularly lenient or particularly demanding. As we have seen, because of pressure to agree to restorative initiatives , one offender may end up being treated very differently from another who has committed a similar offence but has a more (or less) demanding victim. There then arises the question of how this inconsistency fits in with the community's need for more objective fairness. This, in turn, gives rise to the question of what role the courts should play in supervising or amending agreements between victim and offender.
Reparation to the community may result when direct reparation to the victim is inappropriate or unwanted. One of the difficulties at present is that there do not seem to be sufficient opportunities for practical work or other contributions in many localities. Even where there are , it can be controversial. Some of those involved in co-ordinating community reparation orders report that activities which are genuinely beneficial to the young offender often require a greater input of resources than is ever recouped through work done by the individual concerned. It has been pointed out by practitioners that restorative responses to very minor offences can require up to 30 hours' preparation time by youth offending teams . This represents a significant cost to the community in response to an offence which might otherwise be dealt with by other means. Is this then reparation in name only, with the focus really being on the offender rather than the community? Experience in New Zealand suggests that very minor offending is better dealt with in a quicker and more informal way, as often it is not likely to be repeated. There, the more costly and time-consuming family group conferences are reserved for more serious offending.
Developing restorative responses
There is increasing acceptance that restorative justice has a place in both prison and community sentences; already there are lessons to be learned, particularly from experience with young people. The recent Halliday report on sentencing , with its emphasis on the abolition of short-term sentences and the development of community alternatives, presents an opportunity to encourage the development of restorative options and makes the case for adequate resourcing for the facilities, such as drugs counselling or other means needed to tackle the causes of offending . Both restorative justice and human rights requirements demand that sentences have a purpose. Approaches to reparation need more attention; in particular there is a consensus between those working on the ground that reparation should be agreed as far as possible between the parties, rather than being imposed by a court - thus undermining the important principle of voluntarism, meaning that the offender is able to exercise a degree of free will, so that he or she can choose to put things right, rather than have this imposed by a court.
At present restorative responses are used mostly with young offenders. There is currently no legislative framework governing adult restorative justice practice, a gap which leaves the projects that do exist operating on an ad hoc basis. As a result, responses differ widely from one part of the country to another and funding can be sporadic and uncertain. However, interest in adults has been growing, and there are now schemes starting both here and in a number of other countries. Here, the Home Office initiatives for adult and more serious offenders will be along the lines already developed in the Australian Capital Territory and Pennsylvania, involving police as mediators.
The potential of the philosophy behind restorative justice is wide. Thames Valley Police have started to apply it to the resolution of police complaints and disputes in the workplace, and a great deal of work is now going on in schools, both to try to reduce bullying and to deal with exclusions. These are areas beyond the scope of this article, but it is interesting to note that alternatives to conventional courts are developing fast. In the US, for example, drugs courts, domestic violence courts and mental health courts operate with varying degrees of success and support within the criminal justice system . In Washington DC, for example, drugs courts are widely perceived as being constructive; but in New York they do not enjoy such support, and there are serious arguments about the pressure they may put on defendants. Some alternatives involve the resolution of offending behaviour without findings of guilt or criminalisation - although this once again raises concerns that moving away from traditional ideas of due process may result in the imposition of sanctions, and inappropriately high interventions, without proper safeguards. Questions of prosecutorial discretion and judicial oversight need to be thoroughly explored: prosecutors may not always be seen as independent; and judicial oversight needs to be real. The implications of multi-agency working also need to be considered; the 'joined-up thinking' espoused by the new multi-agency approach within restorative justice is in many ways welcome. However, critics have pointed out that where all agencies work together there are no longer external checks and balances for monitoring the fairness of the system and that individuals may be left with no independent means of redress.
Conclusion
International experience teaches us that the dissemination of information and good practice is crucial for the purposes of monitoring and standards within restorative justice. Although the Youth Justice Board has started to play a role in this respect, preliminary inquiries reveal a striking lack of knowledge about what is happening countrywide. There seems to be little interaction between theory and practice. there is a current suggestion to start an Institute of mediation, that would provide a dialogue between theory and practice, as well as play a role in monitoring and the on going discussion of standards. This is an idea that has proved beneficial in Austria, where victim offender mediation is well established and has enjoyed considerable public confidence.
Whether restorative justice is compatible with human rights will depend on implementation; one can expect a challenge to the lack of provision for legal representation, say where the young person has learning difficulties or other significant problems. Disproportionate and disparate sentences, and the mandatory nature of the referral order may be among other issues to emerge; and although the response to the Human Rights Act has been slow, one can expect it to gather momentum and to enhance the role of international conventions, such as the UN Convention on the Rights of the Child, that bring a much more child-centred approach to bear than do the due process requirements in the ECHR, written at a time when Holocaust victims were the prime concern.
It is very much an open question what happens next. Restorative justice could be seen as just a different form of punishment, or it could promote a shift in thinking that sidelined the importance of punishment, and concentrated on changing the future, rather than the past. At present it is clear that these very basic questions need much more deliberation and flexibility of arrangements if we are to achieve integration. Whether that is, in fact, possible with such a range of conflicting values and priorities we shall see. JUSTICE is about to conduct an inquiry, that will include international research, into these very issues.
.In" Restorative justice: an overview"". London: Home Office 1999
2."An exploratory evaluation of restorative justice schemes", crime reduction research series paper 9, September 2001
3.UN Basic Principles on the Use of Restorative Justice Programmes in Criminal Matters 2000 and Recommendation No. R(99) 19 of the 4. Council of Europe Committee of Ministers to Member States Concerning Mediation in Penal Matters
5. The introduction of referral orders into the youth justice system: second interim report Home Office RDS occasional Paper No. 73 2001
6. The introduction of referral orders into the youth justice system: second interim report. Tim Newburn, Adam Crawford, Rod Earle, Shelagh Goldie, Chris Hale, Guy Masters, Ann Netten, Robin Saunders, Karan Sharpe, Steve Uglow and Arabella Campbell September 2001
7. Making punishments work: Home Office, July 2001
