Delivery of restorative justice in Scotland: guidance

Part A -€“ Overview and Key Principles

2. What is restorative justice?

Restorative justice is a process of independent, facilitated contact, which supports constructive dialogue between a victim and a person who has harmed (whether this be an adult, a child, a young person or a representative of a corporate or other body) arising from an offence or alleged offence.

It gives victims the chance to meet, or communicate with, the relevant people who have harmed, to explain the impact the crime has had on their lives. This has the potential to help some victims by giving them a voice within a safe and supportive setting and giving them a sense of closure.

It also provides those who have harmed with an opportunity to consider the impact of their crime and take responsibility for it, with the aim of reducing the likelihood of re-offending. In some circumstances it can also allow them the opportunity to make amends for the harm caused. It can also be appropriate and helpful for children and young people who have harmed, where the need to safeguard and protect their interests is paramount.

During a restorative justice process, the person who has harmed and the victim may sometimes agree on certain actions that the person who has harmed can undertake to acknowledge the harm they may have caused. Clearly the agreement of both parties on which actions are appropriate cannot be guaranteed. The restorative justice process can be initiated by either the victim or the person who has harmed.

Restorative justice processes may take a variety of forms, including:

(i) Direct communication between the victim and person who has harmed, prepared and supported by a suitably trained facilitator. For example:
(a) a closed face-to-face meeting between the victim and person who has harmed in the presence of a trained facilitator (often called 'victim-offender mediation'). Where supporters of the victim or person who has harmed are present it is often called 'conferencing'.
(b) the use of technology such as video conferencing that allows direct communication where a meeting is neither practicable nor desirable.

(ii) Indirect communication between the victim and the person who has harmed, supported by a trained facilitator, for example through the use of shuttle dialogue, written, audio or video messages.

Restorative justice should always be considered an entirely voluntary process for both the victim and person who has harmed, which can be discontinued at any time.

Both parties should be aware that there is no guarantee that participation in the restorative justice process will be a positive experience for either participant. Victims, in particular, should be advised of the mental or emotional impact that interacting with the person who has harmed may have. The potential positive and negative impacts, the potential for further harm, the need for support, advice and the safeguards necessary to ensure the victim's safety should be considered in risk assessments conducted by the facilitator prior to consideration of any restorative justice taking place. This assessment must take place at the start and then be reviewed during, and at the conclusion of, the process.

Throughout any restorative justice process the needs and interests of the victim, and avoiding further harm, are imperative.

3. Key Principles of Restorative Justice

Any restorative justice process should be:

a) Honest - in the first instance, the person who has harmed must be able to acknowledge the basic facts of the case.

b) Informed - through access to unbiased information and preparation, so that participants understand the aims of the restorative justice process, the role of the facilitator, what to expect during any communication, how each party will be supported and what the possible outcomes might be.

c) Voluntary - participation is voluntary and is based on the informed consent of both the victim and person who has harmed, taking into account the potential benefits, risks and possible outcomes. This includes any mutual or co-produced agreement, the production of which is entirely voluntary and not a mandatory expectation or aim of participation in the process. Consent to participate can be withdrawn at any time by any participant.

d) Safe - facilitators should ensure the arrangements for any communication allow participants to feel safe and be safe, and that the communication process and the realisation of any outcomes, has participant safety at its core. In each case, the potential for harm, the need for support and the safeguards necessary to ensure safety should be assessed by the facilitator at the start of the restorative justice process and be reviewed both during and at the conclusion of the process. Appropriate safeguards, advice and support should be provided to participants.

e) Respectful -€“ facilitators should manage any communication to ensure all participants are allowed a fair and equal opportunity to speak without fear of interruption, discrimination or intimidation.

f) Accessible -€“ facilitators should ensure restorative processes are non-discriminatory and do not exclude those participants with additional support needs.

g) Appropriate -€“ facilitators should ensure the preferred restorative process is appropriate to the offence committed. Whilst the restorative justice process can, in theory, be used for any type of crime, it is anticipated that it will very rarely be appropriate for offences involving domestic abuse, sexual offences, human trafficking, stalking or exploitation offences, particularly where there may have been a deliberate course of conduct or coercion by the person who has harmed over a prolonged period of time. Facilitators should be mindful that, in such circumstances, a victim may be further victimised or traumatised by any contact or dialogue with the person who has harmed.

h) Confidential -€“ what is communicated during the restorative justice process is completely confidential and should remain firmly between the participants (unless they agree to disclose information or there is a legal requirement to disclose it, for example, where there is an overriding public interest, or an imminent and significant risk of harm).

i) Not about establishing guilt -€“ where the person who has harmed takes responsibility for the harm caused and its consequences, the victim should have the opportunity to hear that person take this responsibility.

j) Proportionate - any agreement resulting from the restorative justice process should aim to be proportionate to the harm caused in terms of any reparation and should be mindful of the capacity of the person who has harmed to complete it. Any agreement must be entered into voluntarily by the participants.

k) Empowering and facilitating - the victim is empowered to communicate with the person who has harmed them in circumstances in which that person has admitted responsibility. The process also aims to provide the person who has harmed with the facility and opportunity to apologise for causing the harm.

l) Look to the future as well as the past -€“ any agreement resulting from the restorative justice process may include an assurance as to the nature of any future contact between the victim and person who has harmed and how that should be conducted.

4. Requirements for Service Providers and Facilitators

The interests of all participants in restorative justice processes must be safeguarded by adherence to the following high level guidance in relation to the provision of restorative justice processes.

4.1 Service Providers

Service providers may be organisations or individual practitioners. Service providers must:

a) have in place written policies and operational procedures needed for restorative work to take place.

b) in the case of organisations, ensure that the practice of both the organisation and individuals within it is of a high standard and complies with relevant guidance and policy.

c) ensure that participants know what to do and who to speak to should they have any concerns about the facilitation of the restorative process or wish to make a complaint, and ensure an adequate complaints procedure is in place to deal with these sensitively, respectfully and timeously.

d) provide access to suitably trained and competent facilitators.

e) where appropriate, ensure that the informed consent of the participants is obtained in relation to any recording of the process and the sharing of information, and crucially in relation to confidentiality. If appropriate, consent should be obtained from a parent, guardian etc.

f) comply with any statutory obligations, for example in relation to data storage or reporting matters relating to child protection.

g) ensure that any record of the restorative meeting is in a form that can be understood by the participants.

h) feed back to participants on the results of any agreement made during the restorative justice process.

i) keep secure, accurate and up-to-date records of referrals, cases, processes and outcomes.

j) feed back promptly to those referring cases after the conclusion of the restorative justice process.

k) monitor their own performance and the reactions of participants and keep their data in a form such that it could be used to evaluate the offer and delivery of restorative justice processes for research purposes (only with the full consent of participants).

l) guard against any conflict of interest arising between the service provider, facilitators or any of the participants or other relevant bodies.

m) not charge participants for restorative justice services.

4.2 Facilitators

Restorative justice services must only be provided by individuals who are appropriately trained and competent. Any organisation (and individual within it) providing restorative justice services must be able to comply with statutory and other requirements and guidance, as prescribed. The following paragraphs list key skills, knowledge and behaviours that restorative justice facilitators must possess.

Facilitators must be able to:

a) Demonstrate effective communication skills, which includes the ability to:

• actively listen
• form questions that will achieve better understanding
• be aware of and be able to read non-verbal signals
• summarise and reflect back
• use telephone communication skills
• challenge constructively and positively
• enable participants to make their own choices

b) Create a safe environment for participants, which includes the ability to:

• build trust between all participants
• show sensitivity to diversity and differences
• use appropriate risk assessment and evaluation tools
• be alert to the potential for any conflict and aggression and manage it quickly and appropriately, including when a session should be ended to protect the safety and general welfare of any of the participants or the facilitators
• assess imbalances of power, and act to redress any imbalances quickly
• be and remain impartial and demonstrate this to all participants through words and actions
• be aware of how the physical environment can affect the sense of safety, comfort and security felt by participants
• be alert to the manipulation of the practitioner, victim, session or process by the person who has harmed
• be alert to the formulation of agreements or outcomes which could prove harmful and negative to the victim and are not in line with the aim of the process
• be aware of safety and confidentiality issues around the disclosure of personal information

c) Treat people fairly, without discrimination on the basis of gender, age, ethnicity, ability/disability, sexuality, culture, faith or history of causing or experiencing harm. This includes showing respect for all participants, their opinions and views, except where these opinions and views are discriminatory and/or harmful to the victim.

d) Demonstrate additional knowledge or skills as set out in guidance or specialist training when undertaking complex and sensitive restorative processes where there is significant lasting injury, bereavement or harm, and have extensive prior experience of dealing with such matters.

e) Record decisions and outcomes accurately, following service providers' guidelines and statutory and other requirements around confidentiality and data protection.

f) Offer a definition of restorative justice, including reference to:

• victims and those who have harmed
• restorative justice as a process
• the aims of restorative justice, and potential outcomes

g) Articulate how restorative justice differs from other approaches, including:

• other disciplines ( e.g. advocacy, counselling)
• community mediation and conflict resolution (that is, what difference it makes that there is a person responsible for a particular incident of harm)

h) Demonstrate an understanding of the principles and values of restorative justice, and the implications of these principles for your own practice.

i) Articulate the nature and impact of being harmed and the needs that may arise, including:

• the short and long-term physiological, psychological and social impact for the victim and those close to them
• the factors which affect how individuals react to and recover from their experience ( e.g. previous harm done to them, reactions of family and friends)
• their need for safety, respect, recognition, choice, information, confidentiality, and an opportunity to have the harm addressed, materially and/or symbolically
• the services that may offer additional support during or, as an alternative to, a restorative justice process, and how to assist them in accessing these

j) Describe the different types of restorative justice processes available, explaining their respective benefits and limitations, and the situations in which each process would be applicable.

k) Demonstrate an understanding of the criminal and youth justice contexts and the statutory or policy framework for restorative justice practice.

l) Explain why the supervision and monitoring of agreements (if any) and following up with each individual involved after a restorative justice process can be an important part of aiding the victim's recovery, and facilitating the person who has harmed in taking responsibility for their actions.