March 2004

Restorative justice
An idea whose time has come?
Restorative justice (RJ) describes efforts to repair the damage caused by an
offenders crime through dialogue and negotiation involving the victim and the
wider community. Drawing on the findings of a major inquiry undertaken by
JUSTICE, this briefing charts RJs international appeal and sets out ten key lessons
that should govern its further growth in Britain.

Key lessons
Restorative justice (RJ) should not be narrowly defined.
It should be seen as a set of values rather than one
particular model of provision.
RJ provides a framework within which the criminal
justice system can both deliver to victims, and move
away from over-reliance on punitive imprisonment.
RJ programmes must be realistic and responsive.There
is room to explore RJ with more serious cases,
including domestic violence, subject to satisfactory
protection for victims.
RJ must be adequately resourced in terms both of cost
and follow-on provision to address the causes of crime.

RJ must be designed to avoid net-widening; it must not

draw in minor young offenders who would have ceased
offending anyway. Practice must be consistent with
human rights principles.
RJ must be supported by the development of national
standards for practice and the accountability of
practitioners.
RJ should, ideally, be led by independent practitioners.
RJ should be led by a single body to oversee its
development.
RJ should be championed by Government.

policy
debate
rethink
justice

www.rethinking.org.uk

...victim, offender and the community may repair the

damage caused by the offenders crime through
dialogue and negotiation, direct or indirect.
The context
The Government is to be commended for the aim of
max[imising] the use of restorative justice set out in
Restorative Justice: the Governments Strategy, published
in July 2003. Restorative justice can play a valuable
role in bringing victims to the centre of the process,
and informing credible and constructive alternatives to
imprisonment.This is particularly so because, over the
last decade, there has been an over-reliance on the
use of prison, where the population has risen by
about 60 per cent.
The Criminal Justice Act 2003 introduced a range of
new measures designed to encourage greater use of
community punishments including custody plus
which will replace a prison sentence of under 12
months with a period in custody of no more than
three months followed by supervision in the
community; increased use of deferred sentences
which, it is hoped, will encourage restorative justice
initiatives; and intermittent sentences, where offenders
will be in custody for short periods, e.g. over
weekends.The Act largely follows recommendations
by a review of the criminal courts by Lord Justice
Auld. It is important to note that he also called for
the development and implementation of a national
strategy to ensure consistent, appropriate and
effective use of restorative justice techniques across
England and Wales.

Definitions, models and principles

Restorative justice involves a commitment to the idea
that victim, offender and the community may repair
the damage caused by the offenders crime through
dialogue and negotiation, direct or indirect. An early
pioneer,Tony Marshall, described it as a process
whereby all parties with a stake in a particular offence
come together to resolve collectively how to deal
with the aftermath of an offence and its implications
for the future. Practice can take many forms but
restorative methods share an informal, creative,
problem-solving approach.They offer a way in which
victims and, sometimes, others such as witnesses
may be involved. Many models involve elements of
conferencing bringing the offender together with
others that may include the victim, family members,
police officers and representatives of the community
to talk through the offence and an appropriate
response. Sometimes it is possible to conduct direct

mediation between offender and victim. On other

occasions, there may be victim empathy programmes
aimed at fostering awareness of the human
consequences of offending. Conferencing may be used
in addition to diversionary mechanisms such as
cautions. In some jurisdictions, a sentencing circle may
meet to recommend an appropriate sentence to a
judge.
All such schemes must provide protection for all
parties from possible abuse. National standards are
required.Victims must not be re-victimised. Offenders
must not be unduly humiliated. Human rights must be
respected.

Human rights and accountability

International human rights conventions have
significantly influenced the spread of restorative justice
particularly in relation to juveniles.These include the
UN Standard Minimum Rules for the Administration of
Juvenile Justice (the Beijing Rules); the International
Convention on the Rights of the Child; the UN Guidelines
for the Protection of Juvenile Delinquency (the Riyadh
guidelines); the EU Framework Decision on Restorative
Justice; and the Council of Europe Recommendation
Concerning Mediation in Penal Matters.The UN
Economic and Social Council has also endorsed Basic
Principles for Restorative Justice.
The Human Rights Act 1998 provides an essential
framework for developments in the UK. In particular,
young people must be able to participate effectively
and legal representation provided in cases where this
cannot be achieved.

New Zealand and Australia

New Zealand made a radical break with the past by
introducing family group conferences, now used all
over the world, in order to deal with Maori demands
for community-based, culturally appropriate solutions
to offending. Detention centres were closed and
responses to offending de-professionalised.Victims'
views had to be explicitly taken into account for the
first time, by virtue of the groundbreaking Children,
Young Persons and their Families Act 1989.
New Zealands experience was influential in Australia
where, independently, the idea of re-integrative
shaming was developed.This argues that offenders can

Thorough evaluation is built into the system and reoffending does seem to have reduced. Victims express
high levels of satisfaction.
be moved by being shamed by those closest to them,
provided that the focus of such shaming is on their
behaviour, not just blaming them. Offenders who feel
shame can then be reintegrated into the society
whose norms they have implicitly acknowledged. Such
an approach was taken up by the police, which
established a number of projects to provide effective
cautioning. As time went on, the use of the police in
this process was replaced by various conferencing
schemes which, in six of the eight Australian states or
territories, have a statutory foundation. New South
WalesYoung Offenders Act 1997 is the most detailed
Australian legislation. Under this provision, conference
convenors are freelance and employed on a sessional
basis: police officers are not excluded as such but they
may not be convenors as part of their official duties.

Austria responded to rising prison numbers by

establishing victim-offender mediation pilots in the
mid-1980s.They were subsequently extended to
adults.The Juvenile Justice Act 1988 introduced a
statutory scheme which allows juveniles to be
diverted from the courts. Unlike in the UK, the
offender has no criminal record at all. Mediators are
members of a special association that controls
standards. Increasingly, the mediators are working with
more serious cases. In 1999, a similar statutory basis
was given to victim-offender mediation in relation to
adults. Mediation has now been extended to domestic
violence cases where, provided there is a thorough
screening of suitable cases, it appears to have proved
its worth.Thorough evaluation is built into the system
and re-offending does seem to have reduced.Victims
express high levels of satisfaction.

The United States

The US has a wide range of restorative justice
projects and experimentation in a diverse range of
contexts ranging from the traditionally liberal
Minnesota to the more conservative Texas.The
former has a wealth of grassroots projects such as the
sentencing circle developed by a judge in a poor area
of St Paul, Frogtown.This is an attempt to identify
young African Americans who face a possible
sentence of imprisonment and who might respond to
a more restorative approach. A restorative approach
permeates the criminal justice system at all levels,
including prison where, for example, victim empathy
work is undertaken in one of the womens facilities.
Texas is renowned for its large prison population and
its use of the death penalty. However, since the mid
1980s,Texas has also had a wide range of restorative
justice projects including neighbourhood conference
committees for dealing with minor, diverted cases and
community impact panels to assist drug offenders to
give up their habit. In addition, there is considerable use
of victim-offender mediation. Evaluation suggests that
victims and their relatives can find this extremely
helpful even in cases which had involved a death, and
where the offender is on death row.

Austria and Norway

These countries provide examples of the use of
mediation, thoroughly integrated into the criminal
justice system, delivered by professionals in Austria
and by members of the local community in Norway.

In Norway, restorative justice also developed as a

means of resolving conflicts as well as a reaction
against imprisonment. In the early 1990s, municipal
mediation boards were established which apply
restorative justice principles in their work with both
adults and juveniles either as part of a sentence or by
way of diversion before trial. Mediators are volunteers
from the local community, paid a notional fee for each
session. Research reveals high levels of victim
satisfaction.There is little evidence on recidivism.

Northern Ireland and Scotland

Restorative justice was developed as part of a
grassroots, cross-community desire to lessen violence
in Northern Ireland by organisations on both sides of
the sectarian divide. It has been successful in providing
an alternative to punishment violence as a response
to crime and antisocial behaviour and has recently
legislated to introduce mainstream family group
conferencing for young people a radical move, and a
first in the UK context.
In Scotland, the charity SACRO has built on the nonpunitive philosophy and flexible approach of the
Children's Hearings and has introduced restorative
practice for adults.

Youth justice in England and Wales

Restorative justice has been introduced as a core
element of the arrangements for dealing with young
offenders.The Crime and Disorder Act 1998 and the

Youth Justice and Criminal Evidence Act 1999

contained some very innovative elements and can
generally be regarded as a great success. Between
them, they established the Youth Justice Board and
gave youth courts the power to make action plan,
reparation and referral orders.They created multidisciplinary youth offending teams (YOTs), which
organise youth offending panels containing not only a
YOT member of staff but also two volunteer
members of the community.The panel, after a referral
from the court, decide on a contract to be agreed
with an offender and monitor performance under it.
Such referral orders now account for one-third of all
orders made by youth courts.There was early
concern at net-widening, the referral in cases where
this represented a more serious response to an
offence than would have occurred previously.
However, the Government responded to this criticism
by giving the youth courts more discretion in 2003.
There is some evidence of lower reconviction rates,
though it is still too early to have worthwhile statistics.

The future
The Home Office is sponsoring a major research
programme into the effectiveness of restorative justice
both within a magistrates court (Northumbria) and a
Crown Court (London) context. No doubt, the future
will be much dominated by the findings, particularly
whether restorative justice can justify the tantalising
possibility of more inclusion for victims and a more
effective and problem solving response to offenders
at less cost in the longer term. A major challenge will
be the extension of restorative justice practice from
juveniles to adults and from use as a form of diversion
to integration within the mainstream justice system.
Provided this is conducted within a suitably strong
human rights framework, restorative justice shows
exciting possibilities.

Further information
The following websites contain a wealth of relevant
material on restorative justice as well as information
about the rethinking crime and punishment project
and JUSTICE:

Adult provision in England and Wales

Restorative justice has no statutory basis in relation to
adults but there is a growing interest in its use. In the
vanguard has been Thames Valley Police, whose
restorative cautioning initiative has now been running
since it was piloted in 1997.This adds a conference,
run by a police officer and generally with victims
invited, to a caution. It raises issues of the desirability
of police officers organising restorative events.There
are undoubted advantages.They have the resources,
the access and the interest in reducing offending:
police organisation of the process can also prove very
supportive to victims. However, in the longer term it
may be that, ideally, restorative justice should be
organised by an independent agency. Restorative
justice programmes are also being run by a range of
other statutory agencies, including the probation and
prison services, as well as voluntary organisations.

www.aic.gov.au/rjustice
Australian Institute of Criminology
www.ssw.che.umn.edu/rjustice
Center for Restorative Justice and Peacemaking,
University of Minnesota
www.justice.org.uk
JUSTICE
www.restorativejustice.org
Prison Reform International
www.restorativejustice.org.uk
Restorative Justice Consortium in the United
Kingdom.
This briefing is based on research carried out by
Shari Tickell and Kate Akester.Their report
Restorative Justice:The way ahead is available
from JUSTICE, 59 Carter Lane London EC4V 5AQ.
email: admin@justice.org.uk

Rethinking Crime & Punishment is a strategic grantmaking initiative funded by the Esme Fairbairn Foundation which aims to
raise the level of public debate about the use of prison and alternative forms of punishment.

Esme Fairbairn Foundation

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London
SW1A 1LP
Tel 020 7297 4738
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info@rethinking.org.uk
www.rethinking.org.uk