Addressing Crime and Social Inclusion

Kearney, Kirkwood and MacFarlane (2006, p. 7) suggest making restorative justice available at the following stages of the criminal justice system: a) diversion from prosecution; b) pre-sentencing; and c) post-sentencing. Under the Criminal Procedure Act of 1995 Part V for Children and Young Persons, which has eleven sections at Section 41 to 51, prosecution of children is immediately addressed right after the age of criminal responsibility has been ascertained (Office of Public Sector Information 2007). Prosecution is the second step under this provision.

Here, restorative justice could come before prosecution and hence prosecution is diverted. These diversion schemes are basically intended for those with minor offences so these can be addressed outside of the established court system (Kearney, Kirkwood & MacFarlane 2006, p. 3) as provided in the Criminal Procedure Act of 1995. Part of these diversion schemes are mediation and reparation so offenders can make amends with their victims directly or indirectly through face-to-face meetings and shuttle dialogue (p. 3).

These schemes avoid “criminalizing people, and yet ensure[s] that justice is done in the eyes of those directly affected” (p. 4). Moreover, these free up court time for more serious offences as well as give victims a direct say in the results which is more appropriate to their needs (p. 4). In pre-sentencing, Kearney, Kirkwood and MacFarlane cite New Zealand as a primary example (2006, p. 4). Restorative justice in this stage is described as “…providing an option for judges to refer people to engage…in a conference involving people harmed and those responsible for the harm” where such outcomes are considered for sentencing (p.

4). In New Zealand, the “youth justice system…encourage[s] the police to adopt low-key responses to juvenile offending…” (Morris & Maxwell 1998). It starts with a street warning, then a warning in front of the offender’s parents, an apology to the victim and community service (Morris & Maxwell 1998). When such sanctions do not work or for more serious offences, the offender undergoes a family group conference (Morris & Maxwell 1998). For a young offender to be dealt in court, a family group conference is a pre-requisite (Morris & Maxwell 1998).

However, when the issues have already been properly resolved in a family group conference, then the matter ends there (Morris & Maxwell 1998). This is aimed for a more positive impact for the victim/s in the resolution of the offence making them move on at a faster pace (Kearney, Kirkwood & MacFarlane 2006, p. 4. ). This can also increase satisfaction in the justice system as well as reduce repeat offences (p. 4). In post-sentencing, Kearney, Kirkwood and MacFarlane identify a potential need for the bereaved relatives of homicide victims as they can be very unsatisfied or even traumatised by the court proceedings (2006, p.

5). They note that “the end of the court trial is often the beginning of a further stage of emotional support needs, and this may be the time when these needs are greatest” (Victim Support, cited in Kearney, Kirkwood & MacFarlane 2006). 500 2. In what ways might restorative justice processes assist victims of crime? (500 words) Kearney, Kirkwood and MacFarlane specifically name four restorative justice processes as follows: a) restorative justice conferences; b) face-to-face meetings; c) shuttle dialogue; and d) victim awareness (Scottish Executive, cited in Kearney, Kirkwood & MacFarlane 2006).

Restorative justice conferences involve the victim/s, the offender/s, facilitators or support people, and other affected persons. Face-to-face meetings involve just the victim/s, the offender/s and the facilitators (Scottish Executive, cited in Kearney, Kirkwood & MacFarlane 2006). Shuttle dialogue involves no direct meeting between victim/s and offender/s, and is facilitated (Scottish Executive, cited in Kearney, Kirkwood & MacFarlane 2006). Finally, victim awareness involves a facilitator, the offender, and instead of the actual victim, a surrogate victim (Scottish Executive, cited in Kearney, Kirkwood & MacFarlane 2006).

These processes give people a chance or chances to share experiences and their take on the offence (Kearney, Kirkwood & MacFarlane 2006, p. 2). It also provides safe discussion of the cause/s and effect/s of the offending behaviour and development of “…an action plan that may include a reparative task or agreement to undertake a programme that deals with the causes underlying the offence” (p. 2). a) Restorative Justice Conferences. In a post-sentencing case example, Kearney, Kirkwood and MacFarlane note a case of homicide that did not underwent trial due to early admission of guilt (2006, p. 5).

In this case, the young man killed his friend and the bereaved mother wanted her questions answered regarding the death of her son. The outcome of the restorative justice conference enabled the mother to finally bury the ashes of her son who was cremated. Moreover, since her questions have been answered, her mood and general well being have considerably improved (p. 6). b) Face-to-Face Meetings. In a pre-sentencing case example, the first of its kind in Scotland, the male victim asked the court to meet the four female youth offenders who assaulted him (Martin, cited in Kearney, Kirkwood & MacFarlane 2006).

He wanted to tell them what the girls’ unprovoked assault did to him (Kearney, Kirkwood & MacFarlane 2006, p. 4). After three face-to-face meetings, they came up with an action plan in which the offenders attended a day of training at the brain injury clinic of Ashley Ainslie Hospital, Edinburg (p. 4). This training gave the girls a comprehensive look into the potential harm of their assault (p. 4). Here, the victim was able to say his piece (p. 4).

This helped him regain control in his day-to-day activities, become more confident, become supportive of restorative justice and actively participate in the process as a surrogate victim in another case (p. 4). c) Shuttle Dialogue. In a post-sentencing case example, Kearney, Kirkwood and MacFarlane report the case of a drunk driver who killed a 15-year old boy and was sentenced to eight years in prison (MacLean, cited in Kearney, Kirkwood & MacFarlane 2006). The boy’s parents became concerned about certain issues when the driver was about to be released on licence halfway through his sentence (p.

6). One of these concerns includes what would happen if the parents and the driver meet on the street? (p. 6). A shuttle dialogue enabled the parents to hear the driver’s voice and his apology (p. 6). The facilitators noted a sudden shift in the parents’ use of words during the meeting where words such as ‘killed’ or ‘knocked down’ was eventually replaced with ‘when our son died’ (p. 6). This signified a final acceptance of the tragic loss (p. 6). The parents have finally moved on due to the shuttle dialogue (p. 6). d) Victim Awareness.

In another pre-sentencing case example, the process of victim awareness in which a surrogate victim participated, Kearney, Kirkwood and MacFarlane report that the victim was able to influence the action plan which addressed his needs (2006, p. 5). The offender made an apology. Moreover, the victim was able to gain a deeper insight into the motivations behind the offence (p. 5). This assuaged his concerns of a repeat of the offence, racially aggravated breach of the peace, and thus “led to increased feelings of safety” (p. 5). 678 3. Family Group Conferencing is a much used method for restorative justice intervention with young people.

Describe what it entails and discuss its usefulness as a tool for resolving conflict? (1,000 words) Family group conferencing originated in New Zealand (Umbreit 2000). It involves the youth offender, family members of the youth offender or whomever the family invites, the victim/s or victim representative/s, a support person for the victim/s, the police, and the mediator or manager of the process (Morris & Maxwell 1998). Sometimes a lawyer and/or a social worker is also involved (Morris & Maxwell 1998). The main goal of a family group conference is to arrive at an action plan that will address the offence (Morris & Maxwell 1998).

Its components are: a) admission of guilt by the offender or proof of guilt through the court system; b) information exchanges among those involved such as the nature of the offence, its effects on the victim/s, the motivations behind the offence, prior offences and other issues; and c) recommendation or decision (Morris & Maxwell 1998). Family group conferences are usually held in informal settings (Morris & Maxwell 1998). The venue is basically a room with comfortable chairs arranged in a circle (Morris & Maxwell 1998).

The conference starts with a prayer or blessing according to the customs of those directly involved (Morris & Maxwell 1998). The mediator or manager of the process then welcomes the participants, makes an introduction of everyone, and describes the purpose of the conference (Morris & Maxwell 1998). The police or police representative then reads a summary of the offence (Morris & Maxwell 1998). This varies however this is what usually happens in such meetings (Morris & Maxwell 1998). Next, the offender’s version of the offence is heard (Morris & Maxwell 1998).

Here, he or she is asked whether he/she agrees to the summary of offence as read by the police representative (Morris & Maxwell 1998). Variations in the story are noted, if any (Morris & Maxwell 1998). When the offender does not agree, the conference is stopped and considered for referral to the court for a hearing (Morris & Maxwell 1998). When the offender agrees, then the conference proceeds (Morris & Maxwell 1998). Next, the victim/s or the victim/s representative/s is/are then asked to tell his/her/their version of the offence and how it affected the victim/s (Morris & Maxwell 1998).

Afterwards, this progresses towards a general discussion of the offence and the underlying circumstances surrounding such offence (Morris & Maxwell 1998). The general discussion could be very emotional at this point (Morris & Maxwell 1998). The offender and his/her family could immediately feel remorse at this stage and make a quick apology to the victim/s (Morris & Maxwell 1998). Most often though, this remorse and apology occur at a later period and in some cases, it does not occur at all (Morris & Maxwell 1998).

After all of the issues have been discussed like what the offence meant and the several choices that will make amends or remedy the harm/s of such offence, the professionals like the mediator, lawyer, social worker, or police including the victim then leave the offender and his/her family to privately discuss how they are going to make amends and prevent repeat offences (Morris & Maxwell 1998). This private discussion time will take from 30 minutes or longer (Morris & Maxwell 1998). Afterwards, the conference is reconvened (Morris & Maxwell 1998). At this point, the offender and his/her family usually make an apology (Morris & Maxwell 1998).

A spokesperson from the offender then conveys their proposal on how to make amends (Morris & Maxwell 1998). Discussions among all participants then ensue until all mutually arrive at an agreement (Morris & Maxwell 1998). The details of the action plan and other details are then formally recorded (Morris & Maxwell 1998). The family group conference finally ends with a sharing of food (Morris & Maxwell 1998). Family group conferencing is a very useful tool for resolving conflict. Since its institutionalization into law in New Zealand in 1989 judges report drops in caseloads of up to 80 percent (Umbreit 2000, p.

3). Its primary aims are to establish accountabilities, prevent repeat offences and empower the victim/s (p. 3). Victims get “…an opportunity to express the full impact of the crime upon their lives, receive answers to any lingering questions about the incident, and participate in holding the offender accountable for his or her actions (pp. 3, 5). On the other hand, offenders get to tell their side why they committed the offence, how it has affected their lives and to make things right to compensate for their offence against the victim/s (p. 5).

Umbreit notes the advantages of family group conferencing and these are: a) it contributes to community empowerment and healing due to the greater number of participants involved to discuss the offence, its effects and its remedies; b) it addresses the full impact on victim/s since both primary and secondary victims are invited to participate in the process; c) it encourages citizen volunteers to provide more follow up support for victim/s and offender/s alike due to a wider range of involved participants for “…the reintegration of the offender [back] into the community and the empowerment of the victim;” and d) it acknowledges and emphasizes the importance of family in an offender’s life (p. 5).

Moreover, family group conferencing provides higher levels of satisfaction with the process and outcome among victims and offenders (p. 1). It leads to “…a greater likelihood of successful restitution completion by the offender than traditional justice programs” (p. 1). Finally, family group conferencing “…have reduced fear among victims and decreased the frequency and severity of further criminal behavior among offenders” (p. 1). This is better elaborated by findings that many victims found family group conferencing as a positive process for two major reasons (Maxwell & Morris, cited in Morris & Maxwell 1998). Firstly, many victims note that the experience gave them a voice in the determination of the outcome (Maxwell & Morris, cited in Morris & Maxwell 1998).

Secondly, since they met the offender and his/her family face-to-face, they gained valuable assessment on the offender’s attitude, better understanding on why the offence was committed, and a first-hand take whether the offence will be repeated again by the offender or not (Maxwell & Morris, cited in Morris & Maxwell 1998). 1,029 4. How might diversion from prosecution be achieved through restorative interventions which would satisfy both the public’s and victims’ concern for punishment? (500 words) The Scottish Executive provides for Local Authorities in offering diversion from prosecution services (Kearney, Kirkwood & MacFarlane 2006, p. 2). It has increased its funding for Youth Justice from ? 3. 5 million in 2000-2001 to ? 63 million in 2005-2006 (p. 1). Part of this provision is the mediation and reparation services that the Safeguarding Communities Reducing Offending or Sacro provides (p. 2).

Sacro is the largest provider of Youth Justice Service in all of Scotland’s Local Authorities (p. 1). Sacro intervenes and takes part in a restorative justice procedure when young offenders are referred to the services (p. 2). Sacro basically addresses offending behaviours and facilitates young offenders in making amends to their victim/s (p. 2). Sacro reports that most young offenders that are referred to the service are willing to take part in restorative interventions (p. 2). Moreover, victim/s or those harmed by the offenders are also willing (p. 2). Action plans derived through these interventions have a very successful 97% completion rate (p. 2).

Participant feedbacks suggest that offenders, victims and parents felt that the interventions were beneficial with the large majority saying that they will recommend the service to others in a similar situation (p. 2). Majority of young offenders say that the service gave them better understanding on the results of their deeds and that the said process changed their views on the persons they harmed (p. 2). On the other hand, primary and secondary victims indicated that the service allowed them to have a direct hand on how the offender/s made amends (p. 2). Diversion from prosecution usually starts with Sacro taking referrals from local offices of the Procurator Fiscal (p. 3). Victims or persons harmed either accept or refuse the restorative justice proceedings (p. 3).

Majority of victims accept at a rate of 595 accepting and 35 refusing outright in the sample illustrated by Kearney, Kirkwood and MacFarlane in Figure 1 (p. 3). Of the 595 who accepted, 359 cases were discontinued for various reasons like the unwillingness of victims to participate any further (p. 3). Those cases where both victim/s and offender/s are willing to participate continue with a rate of only 48 unsuccessful cases as against 191 successful cases (p. 3). Of the successful cases, 32% of the victims wished no further legal action since the issue has been resolved (p. 3). The next most common agreement involves financial reparation at 26% and non-harassment also at 26% (p. 3). Agreement for community work as a means for making amends make up 2% (p. 3).

The remaining successful cases have been solved through explanation and apology at 13% (p. 3). Due to these, Kearney, Kirkwood and MacFarlane recommend that restorative justice be made more available throughout Scotland at three stages of the criminal justice system: a) diversion from prosecution; b) pre-sentencing; and post-sentencing (2006, p. 7). Their reason is that “…there are people willing to make use of these processes where they are made available” (p. 7) Restorative justice processes in diversion from prosecution along with the other stages of the criminal justice system provide more direct involvement to both victim/s and offender/s (p. 7).

These allow offenders to take responsibility, apologise for their wrong deeds and give explanations for their offences (p. 7). These also allow victims to find answers to questions that may not arise in the court process and help them move on and thus re-establish their relationships that have been affected by the offensive behaviour (p. 7). As such, Kearney, Kirkwood and MacFarlane imply and conclude that these processes should be made available not only to youth offenders but also to adult in all stages of the criminal justice system (p 7). 5. Should Hong Kong consider the further development of restorative justice interventions as a key sentencing strategy within criminal justice? (500 words)

The Legislative Council Panel on Administration of Justice and Legal Services (2007) which consists of the Hong Kong Security Bureau; Health, Welfare and Food Bureau; Education and Manpower Bureau; Hong Kong Police Force; Correctional Services Department; and the Social Welfare Department noted that: “In the Hong Kong context, the Administration considers that any possible extra benefits that VP [Victim Participation] in the criminal justice system might bring on top of the existing measures are not apparent” (2007, p. 5). The Panel reasons that “there is no single best criminal justice system that suits all jurisdictions” (p. 5). Moreover, the Panel also argues that different communities and societies find, and thus, have their own ways to resolve offences (p. 5).

A closer look into why the Panel arrived at such conclusion indicate the following:

a) lack of empirical evidence in demonstrating the long term benefits of victim participation and its effectiveness in reducing repeat offences among young offenders;

b) existing schemes in reducing repeat offences are already very effective for instance the Police Superintendent’s Discretion Scheme (PSDS) has kept the recidivism rate at below 20% in recent years;

c) serious concerns that victims are far more likely to be averse in going through the unpleasant experience of facing the offender and recounting the ordeal;

d) serious concerns on sending the wrong message to the public that the right mix of deterrent and rehabilitative effects is being tilted too much towards helping the offender, unless the benefits to the victim and the community could be clearly shown;

e) serious concerns on the adoption and integration of the restorative justice processes whether these should be additional measures or replacement measures like for instance if the process will displace an existing measure, it should “be necessary to first demonstrate that it would be more effective than the measures to be phased out;”

f) concerns on the nature and volume of offences like shop theft where department stores and supermarket victims have no obvious psychological needs to heal and offences like gambling and possession of dangerous drugs that have no victims; and finally,

g) the relatively stable juvenile crime situation in Hong Kong (pp. 2-4).

Unlike in Scotland, New Zealand, Australia, or the United States of America where key government agencies or departments are more open-minded to the benefits of the restorative justice processes, Hong Kong’s Legislative Council Panel on Administration of Justice and Legal Services are rather unsupportive in the introduction of the system in Hong Kong (p. 5). For restorative justice interventions to succeed, key stakeholders like government offices, agencies, departments or offices are very important in its implementation. Likewise funding support needs to be gained to implement restorative justice interventions (Kearney, Kirkwood & MacFarlane 2006, p. 1).

Hence, without funding and operational support from these agencies, restorative justice interventions are likely to fail in the criminal justice system.

The criminal justice system does not only involve the offenders, victims and the community but also the government tasked to keep the justice and peace within their jurisdictions. References Kearney, N, Kirkwood, S & MacFarlane, L 2006, Restorative Justice in Scotland: An Overview. British Journal of Community Justice. vol. 4, no. 3. pp. 1-7. Legislative Council Panel on Administration of Justice and Legal Services 2007, Restorative Justice for Juvenile Offenders: Victim Participation. Available from: <http://www. legco. gov. hk/yr06-07/english/panels/ajls/papers/aj0423cb2-1618-2-e. pdf>. [Accessed 12 July 2009]. MacLean, A (Reporter) 2006, Restorative justice in Scotland.

(Television broadcast). Glasgow: BBC Two Scotland. 11 May. Martin, L 2003, ‘Saved – and sorry’. The Herald. 24 February. Morris, A & Maxwell, GM 1998, Restorative Justice in New Zealand: Family Group Conferences as a Case Study. Western Criminology Review. Available from: <http://wcr. sonoma. edu/v1n1/morris. html>. [Accessed 9 July 2009]. Maxwell, GM & Morris, A 1993, Families, Victims and Culture: Youth Justice in New Zealand. Wellington: Department of Social Welfare and Institute of Criminology. Office of Public Sector Information 2007, Criminal Procedure (Scotland) Act 1995. Available from: <http://www. w3c. org/TR/1999/REC-html401-19991224>.

[Accessed 9 July 2009]. Scottish Executive 2005, Restorative justice in the children’s hearing system. Retrieved 24 May 2006, Available from: <http://www. scotland. gov. uk/Resource/Doc/55971/0015402. pdf>. [Accessed 24 May 2006]. Umbreit, MS 2000, Family Group Conferencing: Implications for Crime Victims US Department of Justice, Office of Justice Programs, Office for Victims of Crime, Center for Restorative Justice & Peacemaking, University of Minnesota. April. pp. 1 -8. Victim Support 2006, In the aftermath. The support needs of people bereaved by homicide: A research report. London: Victim Support. WORD COUNT: 3,322 1 = 678 2 = 500 3 = 1,029 4 = 612 5 = 503