Conditional Cautioning - Annex B

Restorative Justice

Conditional Cautions

What Is Restorative Justice?

1. Restorative justice processes bring victims and offenders into contact so that victims can describe the impact of the crime on them, have their questions answered, and receive an apology, and so that offenders can understand and make good the harm caused by their crime. Community members are often also involved in restorative processes - for example, in cases where the community rather than a particular individual suffers as a result of crime, or as supporters of the victim or offender. Restorative justice helps meet victims needs, confronts offenders with the effects of their actions and can help to engage the community and build confidence in the criminal justice system.
2. Restorative processes can be either direct (face to face) or indirect (where the participants communicate either via the practitioner, or through letters for example). All restorative processes work towards an outcome agreement detailing how the offender will make some amends for the crime.
3. Restorative Conditional Cautioning needs to be seen in context as part of the wider programme of criminal justice reform, including the Government's restorative justice strategy; the community engagement strand of the police reform agenda; the confidence and justice gap targets; and the national Victims and Witnesses Strategy
4. In particular, the Government's restorative justice strategy sets out the benefits restorative justice has to offer, some case studies, and the existing research and evidence base for the strategy.

The Evidence Supporting The Use Of Restorative Justice

1. Research shows that restorative justice processes meet the needs of the great majority of victims who choose to take part. In recent studies over 75% of victims who took part in restorative justice said that they were glad to have done so. Practitioners report that restorative processes help to reduce victims' fear of crime and reprisal and that it can help them to overcome the trauma of the crime.
2. Research also suggests that for some offenders, or some types of crime, restorative processes can help to reduce reoffending. This is why the Government's strategic aim is to maximise the use of restorative justice where we know it works well, to meet the victims' needs and reduce re-offending.

Restorative Justice And Conditional Cautioning

1. Restorative processes can be used in conjunction with Conditional Cautioning as a condition of the caution or as the means by which the conditions are agreed. However Conditional Cautions do not have to be administered restoratively and restorative justice can similarly take place at other points in the criminal justice process.

Implementation Of A Restorative Justice Approach With Conditional Cautioning.

1. There is strong evidence that restorative justice can produce clear benefits, especially for victims, when well delivered. At the same time, the sensitivity of bringing victims and offenders into contact means that poor practice presents significant, though manageable, risks. Successful delivery of restorative justice requires commitment and oversight from senior managers to ensure the benefits are realised and the risks managed. It is crucial that Forces introducing restorative approaches do so as part of a clear and comprehensive strategy, and ensure that adequate resources are dedicated to it. Experience has shown that they will need to consider carefully all of the following areas.

Aims and targets

2. To make the culture change a reality, clear aims for taking up restorative justice (linked into the wider aims and objectives of the organization) and perhaps targets for its use in particular areas or types of case (Conditional Cautions) need to be in place.

Training, supervision and quality assurance

3. The Conditional Cautioning Code of Practice makes clear that anyone facilitating restorative processes must be appropriately trained. ACPO, along with a wide range of statutory and voluntary sector partners, has helped produce and has endorsed Home Office Best Practice guidance for restorative practitioners . Any training commissioned to enable areas to deliver Conditional Cautioning restoratively should equip anyone involved in delivering restorative processes with the skills outlined in the Best Practice Guidance. The material in the Best Practice Guidance will form the basis of new national occupational standards and accredited awards for restorative practice, available from late 2005.
4. There will also need to be training available for anyone more tangentially involved in the process, for example, CPS colleagues, to ensure they understand the restorative ethos, and awareness raising in the force as a whole.
5. Restorative practitioners also need ongoing supervision of and support for their restorative practice. If support and supervision of restorative practice takes place outside the normal line management structure, clear reporting lines and accountability need to be established. The police force (or partnering voluntary organisation) should also develop some form of independent quality assurance of restorative practice.

Partnership with voluntary and statutory organisations

6. Conditional Cautions can be delivered using restorative justice through more formal partnerships with voluntary sector providers.
7. Voluntary sector providers, if available locally, could be contracted by police forces to provide restorative justice facilitators . Such contracting out arrangements are common in the Youth Justice Sector, where some YOTs have chosen to contract out responsibility for restorative justice processes, rather than to develop the expertise in-house . Community-based or voluntary providers may be seen to be more appropriate to the ethos of restorative justice.
8. It is also possible under the terms of the Code for a Force to contract out Conditional Cautioning 'wholesale' to a voluntary sector provider. This would involve naming appropriate facilitators or managers within the voluntary agency as authorised persons within the terms of paragraphs 1.4 and 1.5 of the Code. The authorised persons would then co-ordinate the process on behalf of the Police and this would reduce the need for operational officers being involved in work that could be carried out by outside agencies.
9. Similarly, Forces could contract with voluntary sector organisations to provide and supervise reparative work by offenders in the community.
10. Forces will of course retain ultimate responsibility for Conditional Cautioning, and will need to ensure that any voluntary agency staff or other community members used in this way are properly trained, supported and supervised.
11. It could be beneficial for Forces to explore the potential for partnership with other CJS providers, including the local probation area and youth offending team, if they have staff trained as restorative justice practitioners. For example, CJS agencies could develop a co-ordinated service for all CJS partners in an area.
12. The National Criminal Justice Board will publish Restorative Justice Implementation Guidance for Local Criminal Justice Boards early in 2005 covering many of these issues in more detail.

Core Principles And Their Implications For Practice

Involvement of Victims

1. Restorative processes are about victims, offenders and community members finding ways to repair the harm caused by crime. As such, restorative processes are innately victim focussed, and should not be used solely to benefit or impact upon the offender. Forces must ensure that where restorative Conditional Cautioning is available it is offered systematically and impartially to all victims where offenders are eligible, not on an ad-hoc basis.
2. It is vital that victims understand that it is not they who will decide whether or not the offender is to be prosecuted. If the victim is not interested in participating in restorative Conditional Cautioning, Crown Prosecutors must consider whether the offender should be given other conditions.
3. Where the victim does not want to participate in any direct or indirect process, and no community member is available or appropriate, officers may still wish to use a restorative approach to delivering the Conditional Caution, by encouraging the offender to consider what harm their offence may have caused, and how best they might repair it, in a one to one discussion with the officer/facilitator.

Involvement of Offenders

Restorative processes must always be voluntary for offenders as well as victims, as forcing offenders to meet their victims has the potential to result in damaging effects on the victim.

Involvement of Community Members

Forces using restorative justice in conjunction with Conditional Cautioning should consult community groups to ascertain what role they might play or ideas they might bring to restorative processes. Individual members of the community can be involved in restorative Conditional Cautioning as supporters of the victim or offender; as victims of a crime that has affected the community as a whole; as members of a Community Justice Panel (as is being tested in Chard in Somerset); or as trained facilitators for the restorative process.

The Role of the Crown Prosecutor

1. The Crown Prosecutor acts as a gatekeeper in determining whether cases are suitable for Conditional Caution and also in ensuring that the conditions are appropriate. Where a restorative approach is used to decide the conditions of the caution the prosecutor has the discretion to (i) set mandatory conditions, (ii) add conditions to those agreed during the restorative process or (ii) reject part or all of the measures agreed during the restorative process as conditions for the caution.
2. It is expected that prosecutors will only very rarely amend the proposed conditions, as this might otherwise undermine the basic tenet of restorative justice, which is empowering the victim, offender and community to decide an appropriate response to the crime. Proper preparation of all the parties involved, by helping them to consider at an early stage what might constitute appropriate reparation, will help to reduce the need for later amendment by the CPS.

Further guidance

Further detailed information on restorative justice and Conditional Cautioning can be found in the RJ operational guidelines for Conditional Cautioning, which can be found on the Home Office website at www.homeoffice.gov.uk/justice/victims/restorative.