Restorative Justice

Legal Guidance

General Principles

Restorative justice (RJ) has been defined as a process through which 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. RJ can take the form of victim-offender mediation either through direct contact between the offender and victim or indirect communication involving third parties. It can also involve restitution or reparation where this is agreed between offenders and their victims.

The aims of RJ are commonly stated to be: 

  • Victim satisfaction: To reduce the fear of the victim and ensure they feel 'paid back' for the harm that has been done to them.
  • Engagement with the perpetrator: To ensure that they are aware of the consequences of their actions, have the opportunity to make reparation, and agree a plan for their restoration in the community.
  • Creation of community capital: To increase public confidence in the criminal justice system and other agencies with a responsibility for delivering a response to anti-social behaviour

Properly administered, RJ processes produce individually tailored solutions involving interaction between offenders, victims and the community. RJ can give victims answers to questions about why they have been victimised that information or support on their own cannot. Victims are more likely to receive an apology through an RJ process than at court. Similarly for offenders, RJ processes offer a unique opportunity to face up to what they have done, take responsibility and make up for the harm their offending has caused.

Using Restorative Justice Processes in the Criminal Justice System

RJ can take place at any stage of the criminal justice process including after conviction and it can also form an integral part of any sentencing disposal, especially with youths. Currently it is more common for the RJ process to be used before a case comes to court i.e. as part of a diversionary process.

Sections 7 and 8 of the Code for Crown Prosecutors provide guidance to Prosecutors on alternatives to prosecution for adults and youths, including conditional cautions. In addition, Standard 3 of the CPS Core Quality Standards (CQS) stipulates that we will use out-of-court disposals as alternatives to prosecution, where appropriate, to gain speedy reparation for victims and to rehabilitate or punish offenders.

In relation to adult offenders prosecutors are most likely (although not exclusively) to come into contact with RJ when considering the use of reparative conditions as part of a conditional caution.

The Revised Victims Code which came into force on 10 December 2013 includes RJ for the first time, with the intention of raising awareness of RJ amongst victims of crime.

In addition part 2 of Schedule 16 to the Crime and Courts Act 2013 inserts a new section 1ZA into the Powers of Criminal Courts (Sentencing) Act 2000 which makes it explicit that the courts can use their existing power to defer sentence post conviction to allow for an RJ activity to take place by imposing an RJ requirement. Alternatively the court might adjourn sentence to allow for an RJ activity to take place. Although the Crime and Courts Act 2013 came into force in December 2013 the introduction of pre sentence RJ is through two separate pathfinder projects- one in the magistrates' courts looking at processes and the other based in 10-12 specific Crown Courts focusing on outcomes.

RJ processes are more widely used with youth offenders. The Youth Justice Board has been promoting RJ since 2001 and includes within its national standards a standard regulating RJ and work with victims of crime. Restorative Justice can be used in youth cases as part of an order on conviction, such as a Referral Order or Supervision Order and as part of a final warning or intervention programme delivered by the youth offending service following a final warning.

Restorative processes can also be effective and proportionate responses to low level offending where the public interest does not require a formal criminal justice disposal, and can form part of an Acceptable Behaviour Contract and to resolve offending behaviour in schools and children's homes.

Power to issue a youth conditional caution is contained within the Criminal Justice and Immigration Act 2008 and provides another vehicle for the RJ approach.

Examples of RJ processes being used are contained in Annex A.

Types of RJ in England and Wales

There are various types of RJ processes in operation in the UK. These include:

  • Direct or indirect restorative justice processes
    The victim and offender, guided by a facilitator, communicate with one another. Other people can also be involved in the process, such as supporters of the victims and perpetrator, and also members of the wider community. This can take place through a direct face-to-face meeting, or, when several other people are involved, a conference; or indirectly with the facilitator acting as 'go between' in 'shuttle mediation'. An agreement is usually reached to decide how best to repair the harm caused and a rehabilitative programme may be agreed.
  • Community conferencing
    This is a large-scale conference particularly useful at resolving anti-social behaviour. These conferences can deal with a large number of participants including local community members, several victims and perpetrators. In this approach the community as a whole is often the victim. This process is similar to community problem solving meetings. However, it is restorative if the process focuses on the harm caused and its resolution.
  • Referral order panels
    Young people who receive a court Referral Order attend a panel meeting to discuss their offence and the factors that may have contributed to their offending behaviour. The panel is made up of Youth Offending Team staff and community volunteers. The victim, or their representative, may also attend so that their views may be put forward.
  • Mediation
    Mediation is a process in which an impartial third party - the mediator - helps people in dispute work out an agreement. The people in dispute work out the agreement rather than the mediator, who runs the meeting with ground rules.

Restorative Justice as Part of Conditional Cautioning

As stated above, in relation to adult offenders prosecutors are currently most likely (although not exclusively) to come into contact with RJ when considering the use of reparative conditions as part of a conditional caution; see the Revised Code of Practice for Conditional Cautions - Adults.

The Code of Practice states that when considering the appropriate conditions to achieve the rehabilitative, reparative or punitive objectives of a conditional caution, the prosecutor should also consider whether any of the following are applicable to the case:

  1. Opportunities to provide reparation or compensation to any victim or relevant neighbourhood or community:
  2. Use of conditions to reflect and secure the interests of the victim and neighbourhood or community (for example by requiring the offender to stay away from a specific area:
  3. Use of restorative and reparative processes to have a positive impact on the community or individuals affected by the offending behaviour:
  4. Opportunities to provide reparative unpaid work that benefits the community:
  5. Use of a financial penalty condition to punish the offender and deter future offending.

A requirement for an offender to participate in a restorative justice mediation is one of the example reparative conditions listed in Annex B to the Director's Guidance on Conditional Cautioning (7th Edition: April 2013).

RJ processes must always be voluntary for both the victim and the offender. Where RJ is to be considered as part of a diversionary process (e.g. with a conditional caution) offenders need to have admitted responsibility for the harm they have caused.

Involvement in an RJ process can either be made a part of a conditional caution where both victim and offender agree to take part; or the RJ process can itself be the way in which the conditions of the cautions are arrived at.

Either type of link between RJ approaches and conditional cautioning will require the prosecutor to have an understanding of RJ, the type of case in which it might be appropriate and the offender's background. RJ works best where the offender is committed to participating in a meaningful way, rather than simply trying to avoid being prosecuted. Therefore, prosecutors should look for some evidence in the referring officer's report that the particular offender is considered suitable for an RJ based disposal and an indication of the anticipated outcome of that participation.

The prosecutor will also need an understanding of how onerous RJ processes are for all taking part. This should be taken into consideration when deciding what other conditions might be appropriate to ensure that, overall, the conditions are proportionate to the gravity of the offence.

Procedure

In areas where RJ-trained personnel are available and a case with a personal victim is being considered for a Conditional Caution, consideration should always be given to including an RJ process in the caution. The procedure for administering a Conditional Caution is set out in the Director's Guidance on Conditional Cautioning (7th edition).

As the police can now administer a conditional caution without refering the matter to CPS (except for indictable only offences) it is less likely that prosecutors will be involved in RJ considerations under the conditional caution scheme. There are two ways that RJ can be used as part of a conditional caution:

  1. Where RJ processes are be used to help determine the conditions to be attached to a Conditional Caution, the offender can be bailed under section 37(7)(a) of the Police and Criminal Evidence Act 1984 for a sufficient period of time to allow this to take place.
  2. Participation in a RJ process may also be a condition of the caution itself. In such cases, positive participation in the process is all that is required of the offender by the caution, and any actions arising out of the RJ process will form a voluntary agreement between the offender and the victim.

When the provisions of the Crime and Courts Act 2013 are fully implemented prosecutors may find that sentences are deferred or adjourned for pre sentence RJ.

Victims awareness of the availability of RJ has been raised through the Revised Victims Code which came into force on 10 December 2013.

The views of the victim

RJ is a diversionary process available to all victims under the Revised Victim's Code which came into force on 10 December 2012.

CQS Standard 7 requires the CPS to assess the needs of victims and witnesses and keep them informed about the progress of their case. Where RJ is an option the police should contact the victim (unless there are exceptional reasons not to do so) to ask for their views on reparation as a condition of the caution. Additionally, (if the offender has already indicated they are willing to participate) the victim can be asked if they would like to be involved in a direct or indirect RJ process. The timing of this invitation can be crucial as victims often need a little time to recover from the initial trauma of the offence, before being able to agree to address the issues involved. However, if left too long, many victims will have "moved on" emotionally and will not wish to revisit the events of their victimisation again.

The victim's consent must be obtained in any case where direct reparation or RJ processes are being considered.

If the victim does not wish to participate in any meeting or have any contact, direct or indirect, with the offender or have any harm made good or compensation paid, these views must be recorded in writing on the case papers by an officer involved in the investigation and taken into account when determining what conditions are to be applied.

Where the direct victim does not want to participate in a restorative process, the police should consider whether there is an available and appropriate community member also affected by the crime or otherwise representing the community who would add value to the restorative process with the offender.

In cases where neither the victim nor an appropriate community member is available, a restorative approach could still be used to deliver the Conditional Caution, by encouraging the offender to consider what harm their offence may have caused, and how best they might repair it. This could be done in a one-to-one discussion (with the officer/facilitator), ideally in the presence of family or other supporters.

The final decision whether or not a prosecution rather than diversion is in the public interest is a matter for the prosecutor, not the victim. Prosecutors should give consideration to any reasons put forward by the victim in support of his/her opinion that the offence ought to be prosecuted (or not prosecuted at all). For example, the victim may provide further information in relation to the background or the impact of the offence. However, while the views of victims are important they do not operate as a veto on diversion or prosecution.

Whilst the Victim's Code allows victims of domestic violence to take part in restorative justice techniques, the Association of Chief Police Officers (ACPO) policy does not support the use of restorative justice in these cases. Where a victim of domestic abuse demands restorative justice, it should only take place after careful consideration and advice from supervisors or experts. Prosecutors should give careful consideration to ensuring that:

  • the victim's safety is paramount;
  • there has been a thorough risk assessment;
  • the victim is a willing participant and that there are no coercive influences;
  • the facilitator  is properly trained and experienced in dealing with these sensitive cases.

Government Initiatives to increase the use of RJ

The Government considers RJ to be an important part of the CJS, seeing it as a means to allow victims to describe the hurt, stress and anxiety caused by the crime to the person who caused it, namely the offender.

To imbed the use of RJ within the CJS the Government has:

  • Produced an Action Plan to develop the use of RJ;
  • Introduced pre sentence RJ through the Crime and Courts Act 2013;
  • Included RJ for the first time in the revised Victims Code which came into force on 10 December 2013. The intention of this is to raise awareness of RJ amongst victims of crime. Under the revised Code victims are entitled to receive information on RJ from the police. The Code emphasises that RJ is voluntary and that appropriate measures will be put in place to ensure the safety of the victim.

 

 

Annex

Annex A - Case Studies

Case Study: Conditional Caution

The offender, an 18 year old male, broke into the victim's garage one night on his way home from the pub, having drunk a considerable amount of beer. He broke the garage window, damaged a fence, and left his coat behind. He was chased by a neighbour who was woken by the noise, but not caught. He was arrested the following day, having been identified by possessions in his coat pocket. He had no recollection of events, but accepted responsibility for the damage. At interview, he expressed remorse, offered to pay the victim for the damage, and wanted to apologise.

The conditional caution caseworker visited the victim. He had slept through the break-in, but was awoken by his neighbour in the early hours, which he described as a rather unsettling experience, but was otherwise not harmed emotionally. He did, however, talk about the hassle of getting quotes and organising repairs. He had costed the repairs and gave receipts to the caseworker. He agreed to meet the offender, on the grounds that it would clear the air and may be beneficial to the offender to come face to face with his victim. He said he appreciated being contacted by the caseworker and asked his views.

The case was sent to the CPS with the recommendation for 2 conditions: firstly, financial compensation be paid; and secondly, the offender attend a meeting to apologise in person to the victim. The offender agreed to these conditions. The CPS authorised this recommendation, and decided on a level of compensation that would reflect not just the actual cost of repairs but also some compensation for the trouble caused to the victim.

The offender paid the compensation promptly. A meeting then took place, along the lines of an informal Restorative Justice conference, with the offender, the victim and the offender's mother. The victim's neighbour was invited, but declined as he felt he would get too angry. The meeting started with the offender being asked to explain what happened, as far as his memory would allow. The victim filled in the details, and the offender was shocked to hear what he had done. The victim then described how he and his neighbour had been affected. The offender's mother was invited to say how she felt about it. The offender apologised unreservedly, and said that he would be very careful in future about not drinking to excess. The victim thanked the offender for paying the compensation so promptly. When the victim asked him why he had picked his garage to break into, he was reassured to hear that the offender had not deliberately targeted him. The offender wanted to apologise in person to the neighbour, but it was agreed that in view of the neighbour's antagonism, the victim would pass on his apology to him. The victim ended the meeting by saying that as far as he was concerned, the matter was over and they should all put it behind them, and everyone concurred with this.

Case Study: Conditional Caution

Two young men followed a group of friends out of a village pub, after being told they were there by the girlfriend of one of the offenders. This girlfriend's family had been harassing the victim's family for some time. After some verbal abuse, two of the friends ran off leaving the 15 year old male victim and his 12 year old sister. The 2 offenders tripped up the boy, punched him and took a tobacco tin and some cigars off him which they threw into a field.

The case was referred by CPS for a conditional caution. The offenders accepted responsibility for the assault and were willing to apologise. The offenders accepted cautions with conditions that they pay compensation to the boy of £10 each, and attend a restorative justice conference.

The conference started with the two offenders giving an account of what they did. They both acknowledged that they had acted wrongly and apologised. The victim said how frightened he had been at the time and how he has been worried for his safety since the assault. His sister also voiced her concerns, and his mother spoke about the harassment from the girlfriend's family. The mother of one of the offenders was present. She had initially been hostile to the process but now she realized that the attack had not been as minor as she had supposed, and she too was worried that the girlfriend had used her son for her own ends. She heard with some sympathy of the harassment, and the two mothers ended up on good terms and with some common understanding of the harm caused.

The offenders gave the victim the compensation. The victim said that the tobacco tin had been a gift and had great sentimental value, so the 2 offenders promised that they would return to the field the following weekend and search for it. Everyone agreed that the assault had been instigated by the girlfriend and should not have happened. The offenders assured the victim and his family that they had nothing to fear from them. The offenders again apologised and they all shook hands

Case study: CONNECT restorative justice project

John, a physically active young artist, was knocked off his motorbike by a young criminal in a stolen car. He asked for RJ because he said he did not want all his pain and injury to be in vain and thought that the offender should face him, listen to the consequences of his action and address his behaviour to avoid this happening again. At first the offender, Mark, was unwilling to meet John, but after a number of meetings where a restorative facilitator worked with Mark to help him understand the impact of crime on victims, Mark wrote a very genuine letter of apology, offering to meet John to apologise in person. The face to face meeting took place, and both participants felt it had been worthwhile. Afterwards a previously sceptical prison officer said that he believed the likelihood of Mark re-offending had dropped significantly.

Case study: Restorative Community Conferencing

A group of shopkeepers were outraged by the behaviour, over a long period of time, of a group of youths who congregated in their shopping centre. The police were called on numerous occasions; some youths were arrested and taken to court, others were cautioned, but the nuisance only worsened. Local police officers negotiated with the shopkeepers, some of the young people involved and the Youth Service, and organised a restorative community conference to address the effects of the youths' behaviour and find solutions. The conference, attended by some thirty people, took the best part of a day, and ended in agreement on a code of behaviour that the young people undertook to enforce themselves. It also involved the Youth Service organising extra activities for local young people. The behaviour of the young people in the shopping centre was much improved, and police call-outs much reduced. The shopkeepers were satisfied that their complaints had been taken seriously; the young people felt they had been treated fairly and their needs considered.

Useful references and links

Legal Guidance

Other Useful Material

The Code for Crown Prosecutors

The Code for Crown Prosecutors is a public document, issued by the Director of Public Prosecutions that sets out the general principles Crown Prosecutors should follow when they make decisions on cases.

Continue reading

Prosecution guidance

This guidance assists our prosecutors when they are making decisions about cases. It is regularly updated to reflect changes in law and practice.