Restorative Justice

Last month, the probation inspectorate published another in its new series of specially commissioned research papers aimed at exploring the evidence base underpinning probation practice. Authored by Dr Ian D. Marder from Maynooth Universtity Department of Law, this paper focuses on building restorative probation services and highlights the Council of Europe guidelines on restorative justice. The framework calls for victims and offenders to have access to restorative justice, provides evidence-based standards for its delivery, and delineates the role of probation.

Context

Modern restorative justice has its early roots in probation work. In 1974, a court in Ontario, Canada asked probation officer Mark Yantzi to write pre-sentence reports for two young men who pleaded guilty to vandalising 22 properties. Yantzi discussed with colleagues the idea that the perpetrators meet their victims, suggesting this in his pre-sentence report. Upon receiving judicial approval, Yantzi brought the men to each damaged property to discuss the harm done and possible reparations with their victims. His actions set off a chain of events that culminated in the first formal restorative justice scheme – the ‘Victim-Offender Reconciliation Programme’ in Kitchener, Ontario – in the Western world.

Today, restorative justice has moved from the margins to the mainstream of criminal justice. It is available in many countries at different points in their criminal justice processes, and in different forms. This momentum culminated in the adoption of a new Council of Europe Recommendation on restorative justice in 2018, which defined restorative justice as:

‘any process that enables those harmed by crime and those responsible for that harm, if they freely consent, to participate actively in the resolution of matters arising from the offence, through the help of a trained and impartial third party’.

This is somewhat broader than the UK Ministry of Justice’s definition (2012), in which restorative justice requires some form of communication between a harmed party and the person responsible for that harm. There is no single, accepted definition of restorative justice, but it is generally accepted that the fundamental tenets of restorative justice are:

• the participation of those involved in and affected by an offence (i.e. the ‘stakeholders’);
• the aim of addressing and repairing harm; and
• a focus on cultivating positive relationships.

Three probation roles in RJ

Probation services across Europe may play one or more of three roles in restorative justice provision.

• Firstly, some probation services are, by law, the national provider of restorative justice at all stages of the criminal justice process. Examples include the Probation and Mediation Service in the Czech Republic and the State Probation Service in Latvia,where probation officers are trained to use victim-offender mediation and/or restorative conferencing, and do so both as a diversion from court and post-sentence.
• Secondly, probation may be responsible for delivering restorative justice when a person is on probation supervision. In Gloucestershire, for example, probation officers may co-facilitate, with volunteers from the local restorative justice service, in cases where someone is sentenced to supervision in the community. Another example is in Ireland, where the Probation Service is developing its capacity to deliver restorative conferences pre- and post-sentence, if a victim, offender or judge requests that it be explored, or if a probation officer identifies a suitable case.
• Thirdly, probation officers may refer cases to external providers, such as those operating locally across much of England and Wales, or the national mediation providers in Norway and Finland to which all justice agencies may refer cases.

There is no consensus within the literature as regards the optimal service model, as this depends somewhat on the manner in which justice agencies are organised locally. It is crucial, however, that participants trust services and practitioners to be impartial, and that responsible agencies provide sufficient training, support and space for their practitioners to adhere to standards of best practice.

Promoting a restorative culture in probation

Restorative justice and restorative practices are no silver bullet. However, they can support probation services in its work promoting desistance. The Council of Europe Recommendation emphasises probation’s role in ensuring that restorative justice is open to all those who might benefit. It outlines the standards to which service providers must adhere and describes how restorative principles can inform other probation interventions, enabling those with a stake in justice outcomes to have a voice and play a role in repairing harm. It also provides mechanisms to help agencies resolve conflicts and build positive relationships with colleagues and clients. It is the most progressive and comprehensive international legal instrument on restorative justice to date, and is explicit in calling for ‘a broader shift in criminal justice across Europe towards a more restorative culture and approach within criminal justice systems’.

Restorative justice can represent a new direction for probation practice internationally. We know that almost everyone who commits an offence is also a victim at some point in their lives, and vice versa. Restorative justice gives us the language and the tools to overcome a zero-sum approach to meeting the needs of citizens engaged with the criminal justice process.

Thanks to Tim Mossholder for permission to use this imaged published on Unsplash. You can see Tim’s work here.