Uses of Restorative Justice: evidence review

The uses of restorative justice - key messages

Norway, Belgium and Colorado State have the most comprehensive systems of the jurisdictions we examined, offering Restorative Justice at each stage in the criminal justice system, for all ages and offence types.

Norway^[23]

The Norwegian approach is generally regarded by experts as an effective model and one of the most comprehensive in the world.

Norway has a National Mediation Service centralised under the Ministry of Justice and Police, with 22 regional mediation services delivering 8-9000 cases per year. Facilitation is by trained volunteers from the community rather than professional mediators, which is viewed as providing a crucial link into the wider community. They receive referrals from any agency, for any offence and at any stage of the process. The centralised approach came about after an initial model, requiring each municipality to develop its own mediation service, failed to provide a consistent service. RJ can be offered as an alternative to other penal consequences. If the case is successfully resolved it is closed and not recorded in the criminal record.

Belgium^[24]

Belgium has a similarly comprehensive system, underpinned by the view that access to RJ is a right at each stage of judicial procedure, regardless of the seriousness or type of offense. It differs from Norway in that Belgium uses third sector delivery partners (one major partner for each language group in the country) and professional mediators rather than volunteers. The victim receives letters automatically at each stage of the judicial process reminding them how to proceed if they would like to take up the offer. There is a legislative requirement on prosecutors to release the details of any person involved in a case if requested by a mediator, so that they can offer them RJ or communicate another party’s willingness to start the RJ process.

Mediante, the French language provider, noted the following early lessons learned as RJ has developed in Belgium.

• Initially, RJ was only allowed at the request of the victim. This significantly limited the number of referrals. Now that either party can request RJ, 80% of approaches come from the offender, but 50% of victims asked then decide to participate.
• Initially, judges had to rule on the suitability of any request. This was slow and cumbersome, and services found that judges are not particularly well placed to know whether RJ is suitable or not. This requirement has now been removed.
• Excessively severe or unnecessary screening of offender profiles have now been relaxed slightly – for example, previously there were very high expectations in terms of sincerity, remorse etc, which did not account for victim needs to, for example, express anger and disgust. This was seen as too offender focussed and screening is now more balanced and proportionate.
• Initially RJ operated strictly outside of the criminal justice system to ensure there was no incentive for offenders to participate insincerely in order to obtain a lighter penalty. However, this approach was seen as not being respectful to the wishes of the person harmed, in that it gave no scope for agreements reached with the victim to be incorporated into judicial decisions, which would help with monitoring and enforcement. Now there is limited scope to feed into judicial process, where it is appropriate and relevant, which is mainly in situations where the two parties have reached an agreement that it is relevant for the judge to take into account.

With these changes, Mediante view the system as broadly working well. They report that the main challenge now is in implementing the duty to inform parties of their rights.

Colorado

The State of Colorado has perhaps the best developed RJ system in the United States. Services can be found throughout the spectrum of entry points prior to and within the criminal justice system. They also have a central body, the statutory Restorative Justice Coordinating Council (RJCC) which provides training and supports the development of RJ programmes;^[25] the same law which created the RJCC also enables RJ to take place throughout the youth justice process. In 2013 a new law introduced a $10 surcharge on offenders to fund new RJ pilots, research and a State RJ coordinator^[26]. This law also gives victims the right to be informed about the availability of RJ; requires many young offenders to undergo a pre-sentence evaluation to determine whether RJ is a suitable sentencing option; requires district attorneys to assess whether certain young offenders are suitable for diversionary RJ; and directs the Department of Corrections to establish policies and practices for RJ in prisons.

Restorative Justice for young people is more universal than for adults, but adult provision is still widespread.

Youth Conferencing

Northern Ireland, New Zealand, and Australia all have near universal access to forms of conferencing for youth offenders, and Norway and Belgium for all offenders regardless of age. In England and Wales, under the victim’s code, victims of young offenders are entitled to be offered RJ where appropriate, which is carried out by Youth Offending Teams. However, victims of adult offenders have slightly weaker rights, with the code entitling them to information only, and provision for adults varying geographically due to funding being decentralised^[27].

Restorative justice now plays a crucial part in Northern Ireland, but it is primarily limited to youth crime (although a system for adult offenders is currently being developed)^[28]. There are two types of conferencing – diversionary (for which the young person admits they have committed the offence and consents to the process) and court ordered (for which the young person must either admit guilt, or guilt must be established through the court process, and they must also consent to the conferencing process). The Magistrate is required to refer a young person to youth conferencing in almost all cases. Their youth conference system is noted for being inclusive, future oriented, and underpinned by problem-solving principles, and for the important role victims play. The Youth Justice Agency has a statutory footing and the Youth Conference Rules (Northern Ireland) 2003 lay out the procedures to be followed when convening and facilitating a conference.^[29] The service employs professional Youth Conference Coordinators who feed post-conference reports into the Public Prosecution Service (PPS) or the youth court. Case Managers facilitate the day-to-day service, including taking referrals and returning conference outcomes to the PPS or youth court. The service received 5,500 referrals in the first six years. Completion rates for the plans agreed at conferences is high, at around 90%^[30].

In New Zealand, Family Group Conferences (FGCs) are now, with a few exceptions, the primary and mandatory decision making forum for all types of serious offending before the Youth Court^[31]. A specialist youth-focused division of the police force ensures that approximately 80 percent of all youth offending is dealt with by community-based alternative intervention. Those who are still charged in the Youth Court have a mandatory FGC, reducing reliance on judicial decision-making and instead developing a consensus-based plan that holds the young person accountable while addressing the underlying causes of offending. This model diverges from traditional RJ in a number of ways, including that it is compulsory for the young person regardless of whether the victim chooses to participate. It also necessarily includes the offenders family and/or wider support network, and emphasises a wider focus than the specific offense. In these ways the FGC can be seen as a model somewhere in between social work practice and Restorative Justice.

Adult Conferencing

Norway and Belgium provide RJ for any offender who consents (as long as other suitability criteria are met and the victim also agrees to participate).

In New Zealand it is also compulsory for cases involving adult offenders to be adjourned before sentencing to consider the suitability of RJ, and then to allow the outcomes of the RJ process to be taken into account in sentencing. This includes any offer of amends, any agreement between the victim and the offender as to how the offender may remedy the wrong, the response of the offender or the offender’s family, or any measures to make compensation or apologise to the victim^[32].

For adults in Australia there is some form of conferencing or victim-offender mediation available in New South Wales, South Australia, Victoria and the Australian Capital Territory. In Queensland, conferencing is available for all adult offenders in certain geographic areas under the Justice Mediation Programme, which is intended primarily for offenders without a criminal history who have committed less serious offences, but can be convened for more serious cases if it would benefit the victim. Referrals can be made at any stage of the process, from police, prosecutors or courts, though it is primarily intended for diversion from the courts. Compliance with agreements reached is generally high, and evaluation has indicated that participants are generally satisfied with the process and reoffending rates are low. Some states also have specific programmes for aboriginal Australians^[33].

Restorative Justice is used for serious offences in a number of jurisdictions, but this requires more stringent practice guidelines and highly trained facilitators.

Most jurisdictions examined for this paper delineate a set of “sensitive” offences which are treated differently in relation to RJ, although there is variation in whether these cases are ineligible for RJ or merely require more stringent practice guidelines or more highly trained facilitators. The offences covered in these lists vary, but sexual assault, domestic violence and hate crimes are all common inclusions.

In Norway, Belgium and New Zealand any offence type can be referred for RJ, but there are specialist guidelines and training for dealing with certain sensitive cases.

In England and Wales, eligible offences vary geographically, with some areas offering RJ for any offence type, some not proactively serving cases of domestic abuse, hate crime or sexual offences (though they will do so at the victim’s request), and others excluding those offences entirely.^[34]

In Australia, the offences covered in youth conferencing vary by region – some will cover any offence, but, for example, New South Wales excludes a relatively long list comprised of sexual assault, drug and traffic offences, offences causing death and breaches of apprehended violence orders. Adult coverage also varies by jurisdiction. New South Wales excludes child prostitution, child pornography, stalking or intimidation offences involving the use of a firearm or domestic violence^[35].

In Scotland, restorative justice has been used in relation to more serious crimes in a very small number of cases through interventions called Talk After Severe Crime (TASC)^[36] and Restoration in Serious Crime (RiSC)^[37]. However, it has been reported that these services lack funds, require skills not always available, and highlight the need for support services for those affected by severe crime^[38].

Norway and Belgium offer Restorative Justice at all stages of the criminal justice process. In other jurisdictions, it is common for RJ to be concentrated pre-sentencing so outcomes can feed into sentencing decisions.

Norway and Belgium provide RJ at any stage, from diversion from prosecution to after a prison sentence has been served.

New Zealand, Australia, the US and England and Wales all have adversarial justice systems like Scotland’s, so it is particularly relevant to examine these case studies.

New Zealand’s family group conference for young offenders generally replaces the judicial process entirely, but adult RJ is only centrally funded for pre-sentencing conferences. As noted above, it is now mandatory for courts to adjourn to consider the appropriateness of an RJ process between victim and offender before sentencing,^[39] and to take the outcome of restorative processes into account in sentencing, including any offer of amends, any agreement between the victim and the offender as to how the offender may remedy the wrong, the response of the offender or the offender’s family, or any measures to make compensation or apologise to the victim. Some organisations also obtain funding from other sources to provide RJ at other stages of the justice process, but this varies by region depending on local provision.

In Australia, youth conferences are available in all Australian states and may be held at different stages of the process, but in the four jurisdictions that provide RJ for adults it is primarily used at the pre-sentencing stage, except in the Australian Capital Territory, where it is available at any stage^[40].

In England and Wales provision varies by region and particular issues have been noted with places that only offer RJ after conviction.^[41]

In Colorado, young offenders must undergo pre-sentence evaluation of suitability. Their Department of Corrections is actively developing RJ programmes at other stages including in prisons.

Overall, it appears to be common in adversarial systems for RJ to be concentrated in the pre-sentencing period, in order to allow outcomes to feed into sentencing decisions. This may not be considered best practice by some experts, who argue that to do so can compromise the sincerity of the offender’s motive for participating. However, a lesson from Belgium has been that maintaining a strict delineation between RJ and the judicial process did not best respect victims’ experiences, in that it gave no scope for agreements reached with the victim to be incorporated into judicial decisions, which would help with monitoring and enforcement. On this basis, Belgium changed their system to allow pre-sentencing information sharing.

One advantage of focussing RJ provision at a specific point in the justice process is that it can clearly embed and formalise the use of RJ at these points and in relation to the wider process. However, a downside is that it can make it harder to access at different points in the process and may make it less responsive to the needs of those responsible or harmed by crime. For example, in New Zealand, a person responsible for or harmed by crime may not be ready or willing to take part in RJ at the pre-sentence stage, but it is not normally offered at a later point, even though more time may be required before the participants feel ready, or before a change such as release from prison prompts the parties to feel they would benefit from it.

Central coordination and funding is associated with comprehensive Restorative Justice systems, but delivery varies in jurisdictions with more devolution to local areas.

In Norway RJ is centralised under the Ministry of Justice and Police, with 22 regional mediation services. The central administrative service also carries out quality assurance. This structure was adopted after an initial, more decentralised, model failed to deliver consistent provision across the country. Facilitation is by trained volunteers from the community rather than professional mediators^[42].

Colorado’s central coordinating council (statutory) provides training and supports programmes. It is funded partly through a $10 surcharge on all offenders. In Northern Ireland RJ is implemented by the Youth Justice Agency, who employ facilitators directly^[43].

New Zealand has centrally funded RJ for young people, and for adults there is central funding for pre-sentence RJ, so funding for RJ at other points in the system varies locally. RJ is delivered by third sector partners, who may also obtain funding from other sources to extend local provision. Notably, in the areas that are centrally supported (young people and adults pre-sentence), availability is broad and fairly consistent, but when RJ is not supported centrally (for adults at any other stage in the process), it is highly variable by local area.

In Belgium, RJ runs parallel to the judicial process, so responsibility for ensuring people access RJ is placed on the judicial system. They ensure that the victim receives letters automatically at each stage of the justice process reminding them of their rights and how to proceed if they would like to take up the offer. The offender will usually be informed in their summons, and also in other subsequent letters. RJ is delivered by third sector partners who employ professional facilitators^[44].

In contrast, funding is not ring-fenced in England and Wales so provision varies geographically. RJ is administered by Police Crime Commissioning area and is delivered by a mixture of Police and Crime Commissioners, third sector partners and also by the probation service, prisons and community rehabilitation companies. For young people, RJ is delivered mainly by Youth Offending Teams. The large number of players has made delivery confusing and inconsistent and also gives rise to intractable data sharing issues which have hampered the development of Restorative Justice south of the border. The House of Commons Justice Committee’s 2017 report on the state of restorative justice in England and Wales^[45] concluded “that restorative justice provision is currently subject to a ‘postcode lottery’ and varying regional buy-in”.