Delivery of restorative justice in Scotland: guidance

Introduction

1.1 Purpose

The purpose of this document is to provide statutory guidance to ensure that, where restorative justice processes are available, these are delivered in a coherent, consistent, victim-focused manner across Scotland, and are in line with the EU Victims' Rights Directive ^[1] .

1.2 Who is this guidance for?

The guidance is intended for restorative justice practitioners and facilitators, as well as restorative justice service providers, and may be useful for those referring to restorative justice services. It aims to provide both an overview of restorative justice principles and key factors which should be considered by practitioners and facilitators ( Part A ), and more detailed best practice guidance regarding the provision of restorative justice services ( Part B ).

This document is not intended as a guide for victims or persons who have harmed, although they may find it informative nonetheless.

1.3 Statutory basis and scope

This guidance is issued in accordance with Section 5 of the Victims and Witnesses (Scotland) Act 2014, which enables Scottish Ministers to issue guidance about:

(i) the referral to restorative justice services of a person who is, or appears to be, the victim of an offence;

(ii) the referral to restorative justice services of a person who has committed or is alleged to have committed the offence; and

(iii) the provision of restorative justice services to those persons.

For the purposes of the 2014 Act, "restorative justice services" are defined in section 5(3) as: any process in which [the victim of an offence and the person who has, or is alleged to have, committed the offence] participate with a view to resolving any matter arising from the offence or alleged offence with the assistance of a person who is unconnected with either person or the offence or alleged offence.

This guidance is also informed by Directive 2012/29/ EU establishing minimum standards on the rights, support and protection of victims of crime (' EU Victims' Rights Directive'), in particular Article 12 ( Right to safeguards in the context of restorative justice services).

This guidance relates specifically to restorative practices undertaken, in the context of an offence having been committed, by those bodies or persons that may be prescribed by Scottish Ministers. It may also be useful as a guide for other bodies or persons involved in restorative justice processes. It does not apply to other situations in which similar methods may be deployed such as in schools, the workplace or community settings, for example, in supporting conflict resolution.

1.4 Definitions

The term " victim of an offence" is not defined by the Victims and Witnesses (Scotland) Act 2014. However, it may be helpful, for the purposes of this guidance to refer to the EU Victims' Rights Directive definition of a victim. Article 2(1)(a) of the Directive defines a victim as:
a natural person [ i.e. an individual not a company or other legal entity] who has suffered harm, including physical, mental or emotional harm or economic loss which was directly caused by a criminal offence; or family members of a person whose death was directly caused by a criminal offence and who have suffered harm as a result of that person's death.

Family members are defined in Article 2(1)(b) of the Directive as:
the spouse, the person who is living with the victim in a committed intimate relationship, in a joint household and on a stable and continuous basis; the relatives in direct line, the siblings and the dependents of the victim.

This definition of 'victim' should not however preclude restorative justice processes being used where legally the victim is a corporate or legal person, including community bodies, and individuals connected to these bodies have been affected.
The person who has harmed the victim through the commission of a criminal act is called the offender in the Directive. However, this guidance uses the term 'the person who has harmed'. The guidance applies to both adults, children and young people ^[2] , as well as legal entities such as companies or organisations and the term 'the person who has harmed' should be understood to apply to such persons.