Restorative Justice
- General Principles
- Using Restorative Justice Processes in the Criminal Justice System
- Types of RJ in England and Wales
- Procedure
- The views of the victim
- Useful References
General Principles
Restorative justice (RJ) 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. RJ 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 involve restitution or reparation where this is agreed between offenders and their victims.
The aims of RJ are commonly stated to be:
- Victim satisfaction: To reduce the fear of the victim and ensure they feel 'paid back' for the harm that has been done to them.
- 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
Properly administered, RJ processes produce individually tailored solutions involving interaction between offenders, victims and the community. RJ 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.
Using Restorative Justice Processes in the Criminal Justice System
RJ can take place at any stage of the criminal justice process including after conviction and it can also form an integral part of any sentencing disposal, especially with children and young people. Currently it is more common for the RJ process to be used before a case comes to court, i.e. as part of a diversionary process. See guidance elsewhere on Adult Conditional Cautions, Youth Conditional Cautions (The Director's Guidance).
Sections 7.1 and 7.2 of the Code for Crown Prosecutors provide guidance to Prosecutors on alternatives to prosecution for adults and youths, including conditional cautions. Also, sections 3.4 and 3.5 of the Victim’s Code (April 2021) contains a detailed explanation of RJ with the intention of raising awareness of RJ amongst victims of crime.
In relation to adult offenders prosecutors are most likely (although not exclusively) to come into contact with RJ when considering the use of reparative conditions as part of a conditional caution. In addition Part 2 Chapter 1 of the Sentencing Act 2020 makes it explicit that the courts can use their power to defer sentence post-conviction to allow for an RJ activity to take place by imposing an RJ requirement. Alternatively the court might adjourn sentence to allow for an RJ activity to take place.
RJ processes are more widely used with youth offenders. The Youth Justice Board has been promoting RJ since 2001 and includes within its national standards for children in the youth justice system a standard regulating RJ and work with victims of crime. Restorative Justice can be used in youth cases as part of an order on conviction, such as a Referral Order or Youth Rehabilitation Order and as part of a rehabilitation programme delivered by the Youth Offending Team following a youth caution or youth conditional caution.
Restorative processes can also be effective and proportionate responses to low level offending where the public interest does not require a formal criminal justice disposal, and can form part of an Acceptable Behaviour Contract and to resolve offending behaviour in schools and children’s homes. For more information see guidance elsewhere on offending behaviour in children’s homes and behaviour management policies.
Types of RJ in England and Wales
There are various types of RJ processes in operation in the UK. These include:
- Direct or indirect restorative justice processes: 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.
- Community conferencing: 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.
- Referral Order panels: 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.
- Mediation: Mediation is a process in which an impartial third party - the mediator - helps people in dispute work out an agreement. The people in dispute work out the agreement rather than the mediator, who runs the meeting with ground rules.
Restorative Justice as Part of Conditional Cautioning
As stated above, in relation to adult offenders prosecutors are currently most likely (although not exclusively) to come into contact with RJ when considering the use of reparative conditions as part of a conditional caution; see the Code of Practice for Conditional Cautions – Adults.
The Code of Practice states that when considering the appropriate conditions to achieve the rehabilitative, reparative or punitive objectives of a conditional caution, the prosecutor should also consider whether any of the following are applicable to the case:
- Opportunities to provide reparation or compensation to any victim or relevant neighbourhood or community;
- Use of conditions to reflect and secure the interests of the victim and neighbourhood or community (for example by requiring the offender to stay away from a specific area;
- Use of restorative and reparative processes to have a positive impact on the community or individuals affected by the offending behaviour;
- Opportunities to provide reparative unpaid work that benefits the community;
- Use of a financial penalty condition to punish the offender and deter future offending.
A requirement for an offender to participate in a restorative justice mediation is one of the example reparative conditions listed in Annex B to the Director’s Guidance on Conditional Cautioning.
RJ processes must always be voluntary for both the victim and the offender. Where RJ is to be considered as part of a diversionary process (e.g. with a conditional caution) offenders need to have admitted responsibility for the harm they have caused.
Involvement in an RJ process can either be made a part of a conditional caution where both victim and offender agree to take part; or the RJ process can itself be the way in which the conditions of the cautions are arrived at.
Either type of link between RJ approaches and conditional cautioning will require the prosecutor to have an understanding of RJ, the type of case in which it might be appropriate and the offender’s background. RJ works best where the offender is committed to participating in a meaningful way, rather than simply trying to avoid being prosecuted. Therefore, prosecutors should look for some evidence in the referring officer’s report that the particular offender is considered suitable for an RJ based disposal and an indication of the anticipated outcome of that participation.
The prosecutor will also need an understanding of how onerous RJ processes are for all taking part. This should be taken into consideration when deciding what other conditions might be appropriate to ensure that, overall, the conditions are proportionate to the gravity of the offence.
Procedure
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 an 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 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 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.
The views of the victim
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.
The final decision whether or not a prosecution rather than diversion is in the public interest is a matter for the prosecutor, not the victim.
Prosecutors should give consideration to 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 veto on 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 these 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 give 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.
Useful References
- Code of Practice for Conditional Cautions – Adults
- Code of Practice for Youth Conditional Caution
- Director’s Guidance on Adult Conditional Cautioning
- Director’s Guidance on Youth Conditional Cautions
- Cautioning and Diversion