Restorative justice, victims’ rights and the future

Restorative justice has become mainstream following the establishment of youth offender panels last year under the Youth Justice and Criminal Evidence Act 1999. It is no longer just another possible option available in some places at various points in the criminal justice process. However, there is no consensus over a definition. Tony Marshall defines restorative justice as 'a process whereby parties with a stake in a specific offence collectively resolve how to deal with the aftermath of the offence and its implications for the future'.

More recent Home Office research comments on the 'variability and changeability' of approaches in seven different schemes; the aims of practitioners vary and there is widespread uncertainty as to what the term means, both in theory and practice. There has been considerable enthusiasm about exploring the possibilities of victim/offender contact – which may result in young people seeing the consequences of their actions, accepting responsibility for them, and being given assistance to reintegrate into society.

Thames Valley Police has been organising 'conferences' to promote these ends for some years. Now, under the 1999 Act, the youth offender panels, consisting of one member of the local Youth Offending Team (YOT) together with two members of the community, are attempting the same thing in a slightly different way. Young people are referred by the court to appear before them, with provision for victim involvement during the ensuing discussion about the reasons for offences, the reparation that may be made, and any courses or other facilities available to assist development, and thus reintegration.

[Reparation can involve helping or working directly for victims, or doing something for the community. Apologies are regarded as an important part of reparation, since if they are genuine they should lessen the chance of reoffending, which is something the research shows victims want most of all. However, there are concerns about the need for various safeguards for both offenders and victims and about compliance with human rights standards generally. In addition, many will be wary of new projects that start off with inspiring leadership and gradually deteriorate as the practice becomes more routine.

It is instructive to realise that, in other jurisdictions, the keenest supporters of victim/offender mediation are well aware of the need to keep up standards in a process that is far more dependent on personal communication and relationships than any formal system. It is now time to ask some more searching questions about whether and how restorative justice can be integrated into our own criminal justice system, what it has to offer, and what principles it is based on. Human rights standards

It may be useful to begin by outlining the international human rights context. Human rights standards place emphasis on due process and fairness; Article 6 of European Convention on Human Rights ('the Convention') enshrines the right to a fair trial: the presumption of innocence, the right to legal assistance and the right to have criminal charges and sentence determined by an independent and impartial tribunal. The Convention also guarantees equality of arms, which requires defendants to be placed on an equal footing with the prosecution in presenting their case.

Strasbourg jurisprudence is infused with the concept of proportionality, which means that restrictions on individuals' liberties and rights, if permitted at all, should be proportionate to the legitimate aim that the infringement seeks to achieve. Sentences must therefore have a purpose, be the least restrictive option available, and be proportionate. The Human Rights Act 1998, which incorporated the Convention into domestic law, thus has important consequences for the extent and manner of integrating restorative justice into our criminal justice system.

One main criticism of restorative justice is that it fails to provide adequate protection for individual rights. Classic models use informal processes of negotiation and mediation, which are designed to resolve conflicts arising out of criminal offences in a way that is constructive for all parties. The values of restorative justice are based on harmony and the good of the community as well as benefits for the parties.

It places responsibility for outcomes in the hands of the individuals concerned and it can only operate if the offender accepts the basic facts of the offence. Negotiation takes place in private – not in open court. The presence of lawyers is commonly thought to impair restorative processes because it affects the directness of communication; in Europe, victim/offender mediation tends to involve lawyers as advisers (or experts on levels of damages) rather than as representatives.

Both the United Nations (UN) and Council of Europe have recently set out a number of principles and standards relating to restorative justice , which may provide safeguards for some of these concerns. These deal with the availability of mediation; voluntary participation; the necessity for the parties to be evenly balanced; the importance of procedural safeguards; and the question of when legal advice should be available. They form an important basis for the international movement towards resolution by consensus, and restorative justice measures in particular.

The way they are interpreted, and the influence they have had on the emerging European Union commitment to these ideas, in the form of the European Forum on Restorative Justice, is of great significance in terms both of international practice and for the future of domestic criminal justice. The offender perspective A central question within the restorative justice debate is whether cases can, or should, be diverted into restorative processes without the offender having to engage in a criminal trial.

This issue is of particular importance in the youth justice field. The UN Convention on the Rights of the child emphasises the importance of diversion away from proceedings. It also underlines the importance of reintegrating young people, and the use of detention as a last resort. Countries such as Austria, Germany, and indeed, Scotland, have carefully avoided court proceedings; and have thus sidestepped the requirements of Article 6 of the European Convention on Human Rights. It must be remembered that this Convention was not written with children in mind.

In addition, both child development theory and practical experience have shown that, in dealing with young people, flexibility and non-stigmatisation are much more important than due process. There is therefore a tension between the requirements for a fair trial and the informal measures which are likely to be more successful, with young people in particular. In the light of these principles and of international practice generally, it is difficult to understand why the government here has chosen to make referral to the youth offender panels dependent on a guilty plea in the youth court.

Unless referrals are made to YOTs following final warnings, youth offender panels will receive cases following court appearances. This places a burden on court time and places responsibility for conflict resolution in the hands of the victim and the offender at a much later stage. It also triggers the fair trial guarantees of the Human Rights Act, which are engaged as soon as court proceedings begin. It is common ground that participation in restorative justice processes must be voluntary, but there are serious questions as to how possible this is in practice, and what safeguards are needed.

There may be considerable pressures on an offender to participate in mediation or conferencing if the alternative is going to court and possibly getting a prison sentence. This raises the interesting puzzle of how voluntarism can have a place in a criminal justice context which is coercive. Critics of restorative justice point out that demanding or vengeful victims may increase sentences where there is pressure on offenders to agree, as there is likely to be if they are understandably want to avoid court proceedings. [need to explain what they are under pressure to agree to] .

Net widening is another potential problem. Experience shows that perpetrators of minor offences, who would previously have received a caution or conditional discharge, can end up agreeing to significant reparation and behaviour improvement packages which are disproportionate to the offences committed. Recent research shows that members of youth offender panels were concerned about disproportionality in youth offender contracts. The independence and impartiality of the mediator is also a potential problem, as it is crucial that the process is an even-handed one.

[need to explain the role that mediators in relation to panels and within the process as a whole]. This may raise questions about the role of police, who are identified both with the prosecution and with victims; and have conducted many mediation sessions in Thames Valley and other parts of the country. The question of legal representation is one that has been much discussed, not least in Scotland. When the government ratified the United Nations Convention on the Rights of the Child, it entered a reservation in respect of the lack of legal representation at Scottish children's panels, which have operated without it since 1971.

This has been challenged following the implementation of the Human Rights Act; and the Court of session's decision suggests that lack of legal representation at children's hearings could, in certain cases, amount to a breach of Article 6 of the Convention, and that panels may have the discretion to grant such representation – even though the legislation is silent on this question. This decision might lead to applications for legal representation before youth offender panels in cases where there are exceptional difficulties, such as serious emotional or intellectual problems which would leave young people at a significant disadvantage.