The degree of victim participation in restorative justice initiatives has not generally been very encouraging. Contemporary research indicates that the level of participation in the new youth offender panels is very low indeed. The obstacles that have been identified include time pressures on the organisation of panel hearings (and thus little time for victims to think or be prepared); lack of training and awareness of victim issues on the part of those doing restorative justice work; a lack of commitment on the part of those responsible for victim contact; and low public awareness about youth offender panels and referral orders.
Panels are convened in the area where the young person rather than the victim lives, which may cause the victim problems with travelling and with the timing of panel meetings. The Data Protection Act 1998 (DPA) also presents significant obstacle to victim participation. There is widespread confusion and a wide diversity of practice amongst YOTs and restorative justice projects concerning the DPA's requirements. Some YOTS operate from the premise that the DPA effectively requires first contact with victims to be made by police officers.
Youth offender panels and other projects working in this way report far lower rates of victim participation. However, other YOTs interpret section 115 of the Crime and Disorder Act 1998 as authorising victim information to be passed direct to restorative justice project workers, so that they can take charge of all contact with victims. Projects which operate in this way, such as the MARS [in full? ] project in Southampton, report significantly greater success in encouraging victim participation.
These projects argue that contact with victims is highly sensitive and needs to be handled by trained individuals who are well informed about the pros and cons of what restorative justice can offer. However, the Crime and Disorder Act also creates a difficulty. Because it defines the purpose of the youth justice system as being the prevention of offending, this gives rise to a common criticism that projects aimed at reducing recidivism use victims as part of the process to rehabilitate offenders, rather than genuinely recognising victims' own interests.
It follows that, if meetings between victims and offenders are not expertly prepared and controlled, they can provide an opportunity for re-victimisation by the offender because of concentration on the young person's difficulties, rather than the victim's needs. This may arises with persistent young offenders, who characteristically have damaged and disadvantaged lives that may prevent them being able to develop any empathy. Issues for the community Community involvement in restorative justice is a popular concept, but it is ill-defined.
In practice, community involvement may imply no more than having a couple of social workers working with a young person on an intervention . It is not really clear whether this is a sufficient representation of the wider population or whether something more should be involved. If nothing else, the community – in the broadest sense – has a general interest in fairness and consistency of approach. Because outcomes depend on agreements reached between offender and victim, they vary according to circumstances, including whether victims are particularly lenient or particularly demanding.
As we have seen, because of pressure to agree to restorative initiatives , one offender may end up being treated very differently from another who has committed a similar offence but has a more (or less) demanding victim. There then arises the question of how this inconsistency fits in with the community's need for more objective fairness. This, in turn, gives rise to the question of what role the courts should play in supervising or amending agreements between victim and offender. Reparation to the community may result when direct reparation to the victim is inappropriate or unwanted.
One of the difficulties at present is that there do not seem to be sufficient opportunities for practical work or other contributions in many localities. Even where there are , it can be controversial. Some of those involved in co-ordinating community reparation orders report that activities which are genuinely beneficial to the young offender often require a greater input of resources than is ever recouped through work done by the individual concerned. It has been pointed out by practitioners that restorative responses to very minor offences can require up to 30 hours' preparation time by youth offending teams .
This represents a significant cost to the community in response to an offence which might otherwise be dealt with by other means. Is this then reparation in name only, with the focus really being on the offender rather than the community? Experience in New Zealand suggests that very minor offending is better dealt with in a quicker and more informal way, as often it is not likely to be repeated. There, the more costly and time-consuming family group conferences are reserved for more serious offending. Developing restorative responses
There is increasing acceptance that restorative justice has a place in both prison and community sentences; already there are lessons to be learned, particularly from experience with young people. The recent Halliday report on sentencing , with its emphasis on the abolition of short-term sentences and the development of community alternatives, presents an opportunity to encourage the development of restorative options and makes the case for adequate resourcing for the facilities, such as drugs counselling or other means needed to tackle the causes of offending .
Both restorative justice and human rights requirements demand that sentences have a purpose. Approaches to reparation need more attention; in particular there is a consensus between those working on the ground that reparation should be agreed as far as possible between the parties, rather than being imposed by a court – thus undermining the important principle of voluntarism, meaning that the offender is able to exercise a degree of free will, so that he or she can choose to put things right, rather than have this imposed by a court. At present restorative responses are used mostly with young offenders.
There is currently no legislative framework governing adult restorative justice practice, a gap which leaves the projects that do exist operating on an ad hoc basis. As a result, responses differ widely from one part of the country to another and funding can be sporadic and uncertain. However, interest in adults has been growing, and there are now schemes starting both here and in a number of other countries. Here, the Home Office initiatives for adult and more serious offenders will be along the lines already developed in the Australian Capital Territory and Pennsylvania, involving police as mediators.
The potential of the philosophy behind restorative justice is wide. Thames Valley Police have started to apply it to the resolution of police complaints and disputes in the workplace, and a great deal of work is now going on in schools, both to try to reduce bullying and to deal with exclusions. These are areas beyond the scope of this article, but it is interesting to note that alternatives to conventional courts are developing fast. In the US, for example, drugs courts, domestic violence courts and mental health courts operate with varying degrees of success and support within the criminal justice system .
In Washington DC, for example, drugs courts are widely perceived as being constructive; but in New York they do not enjoy such support, and there are serious arguments about the pressure they may put on defendants. Some alternatives involve the resolution of offending behaviour without findings of guilt or criminalisation – although this once again raises concerns that moving away from traditional ideas of due process may result in the imposition of sanctions, and inappropriately high interventions, without proper safeguards.
Questions of prosecutorial discretion and judicial oversight need to be thoroughly explored: prosecutors may not always be seen as independent; and judicial oversight needs to be real. The implications of multi-agency working also need to be considered; the 'joined-up thinking' espoused by the new multi-agency approach within restorative justice is in many ways welcome. However, critics have pointed out that where all agencies work together there are no longer external checks and balances for monitoring the fairness of the system and that individuals may be left with no independent means of redress.
Conclusion International experience teaches us that the dissemination of information and good practice is crucial for the purposes of monitoring and standards within restorative justice. Although the Youth Justice Board has started to play a role in this respect, preliminary inquiries reveal a striking lack of knowledge about what is happening countrywide. There seems to be little interaction between theory and practice.
there is a current suggestion to start an Institute of mediation, that would provide a dialogue between theory and practice, as well as play a role in monitoring and the on going discussion of standards. This is an idea that has proved beneficial in Austria, where victim offender mediation is well established and has enjoyed considerable public confidence. Whether restorative justice is compatible with human rights will depend on implementation; one can expect a challenge to the lack of provision for legal representation, say where the young person has learning difficulties or other significant problems.
Disproportionate and disparate sentences, and the mandatory nature of the referral order may be among other issues to emerge; and although the response to the Human Rights Act has been slow, one can expect it to gather momentum and to enhance the role of international conventions, such as the UN Convention on the Rights of the Child, that bring a much more child-centred approach to bear than do the due process requirements in the ECHR, written at a time when Holocaust victims were the prime concern. It is very much an open question what happens next.
Restorative justice could be seen as just a different form of punishment, or it could promote a shift in thinking that sidelined the importance of punishment, and concentrated on changing the future, rather than the past. At present it is clear that these very basic questions need much more deliberation and flexibility of arrangements if we are to achieve integration. Whether that is, in fact, possible with such a range of conflicting values and priorities we shall see. JUSTICE is about to conduct an inquiry, that will include international research, into these very issues.