Contesting restorative practice and restorative justice

Following the CYCJ and Sacro ‘Restorative Practice in the aftermath of serious crime’ conference, David Orr ponders crimes against Volkswagens, Nordic crime drama and restorative justice.

Restorative practice and restorative justice are terms that are often used interchangeably but they are contested.

A few weeks ago, the symbolic VW logo which appears on the front of all Volkswagen vehicles was removed from my car, presumed stolen. Where before there was a gleaming silver motif, there is now a gaping hole. Fortunately, I am not particularly “car-proud”. After an initial emotive response thinking about what I might do if I were to get my hands on the responsible rapscallion, I paused to reflect on the consequential thinking skills, motivations and interests of the average adolescent male who I assumed to be the guilty party. It is easy to see how a young teenager might through peer pressure, a touch of impulsivity, a love of “the buzz” or all of the aforementioned get drawn into the illegal pursuit of car badge collection! I did not call the Police, feeling it a fairly trivial matter with limited prospect of resolution. That said, I would have been open to a face-to-face encounter with any young person collared in relation to the offence, with the intention of discussing the impact that such minor ‘incivilities’ have upon individuals’ attitudes towards young people and the costs associated with repairing the damage. In this scenario, I could see how a face-to-face restorative justice meeting between myself and the “collector” could have been arranged had the necessary pieces of the jigsaw fallen into place.

From tales of VW vandalism, let’s move to Scandinavian crime drama, specifically The Bridge. I was pleased to see that restorative justice featured prominently in the first episode of Season 2. The storyline involved a face-to-face restorative justice meeting in a secure prison setting between an individual responsible for causing serious harm and one of the show’s protagonists, who had been directly and tragically affected by the former’s actions. On the one hand I was delighted as the programme was demonstrating that restorative practice in the aftermath of serious crime can be facilitated, something all too rarely showcased. On the other hand, the encounter in the show was a disaster! Neither party was even close to being in a position to meet safely face-to-face. Motivations for participation were extremely dubious. The potential for the experience to be traumatising was all too clear. Preparation time of between 6 to 18 months is standard in such cases to ensure that the victim (or person harmed), the perpetrator (or person responsible) and the facilitator of the meeting are all emotionally and psychologically ready for the encounter. As to how things played out in The Bridge, you will need to catch it yourselves as I do not want to be a plot spoiler.

So how does a stolen VW badge link to The Bridge and in turn to restorative justice? In some respects the connection relates to the risks and rewards of restorative justice practice. It is relatively easy to imagine how a face-to-face restorative meeting might have been arranged between myself and the badge collector with a view to repairing the harm caused. Nevertheless, critics might argue that the time and resources required to facilitate a face-to-face restorative encounter in connection with this relatively trivial misdemeanour would be of questionable value. In comparison, to bring together two individuals who are connected as a result of a heinous crime with a view to repairing hurt is an enormously sensitive undertaking fraught with difficulties, as was the case in The Bridge.

Yet when delivered professionally, and when participants have been thoroughly prepared and given their informed consent, the transformative potential of face-to-face restorative encounters in the aftermath of serious crime is enormous, in terms of what they might deliver as regards victim satisfaction and a sense of closure. For the person responsible, the impact could be equally powerful, aiding reintegration into the communities and families from which they may have been excluded on committing a serious offence. Ultimately the focus of our conference this week was upon these very challenging cases, where it may seem easier to ignore the potential of restorative justice approaches owing to the inherent risks and ethical dilemmas, but where the emotional rewards for participants can be significant.

I would argue that restorative justice in the aftermath of serious crime has much to offer with respect to ideas of fairness and social cohesion. More than that, restorative justice approaches in the aftermath of serious crime may help to address some of the existing features of the justice system in Scotland that contribute to feelings of distress and dissatisfaction experienced by many victims.

With our opinions shaped in part by the media, it is salient to note that recent coverage of restorative justice has become somewhat more nuanced than was once the case. I would strongly recommend listening to Katja Rosenberg’s interview with Victoria Derbyshire on BBC 5 Live on January 9. A 40-year old London resident, she was cycling home from work after a drink in 2006 when she was the victim of a serious sexual assault by a complete stranger. The perpetrator was a young man of only 16 years of age. He was quickly apprehended, charged and later sentenced to 14 years in custody. However in September 2013, seven years after the incident, Katja met her attacker face-to-face, the conclusion of a restorative justice process supported by the Probation Service. Her motivation to participate was simple. Of her attacker’s motivation she believed, “You wouldn’t ever do that if you felt happy”. Showing remarkable resilience and emotional fortitude, she placed her own victimisation in the context of much broader societal problems and forces observing, “Life deals very different cards to all of us…it was more about thinking, something’s wrong with society”.

While exceptional, her story is not unique. Joanne Nodding’s account to Zoe Williams in The Guardian in 2011 told a similarly powerful story of her meeting with a former acquaintance who raped her. Of her two hour meeting in a custodial setting with the perpetrator she had this to say: “I walked out of that feeling on top of the world. I thought, ‘now you’ve seen me, you haven’t ruined my life, I’m still here, I’m still doing what I love”.

Hate crime has also been mooted as a category of offending that might usefully be addressed through restorative approaches in appropriate circumstances. Take the recent custodial sentence of six months’ duration imposed on David Limond, older brother of comedian Brian “Limmy” Limond, for his role in spearheading a campaign of sectarian abuse against several journalists on Twitter and via podcasts. Dave Scott, of anti-sectarian charity Nil By Mouth, has spoken publicly of the need to challenge such discrimination in a direct but constructive fashion, stating of online trolls, “We want to see courts being given the power to order some restorative programme that will take in the effect their abuse has on victims”.

The first two cases demonstrate clearly that restorative justice in the aftermath of serious crime, even sexual offences, has a place when managed sensitively and rigorously supervised. The case of David Limond is more hypothetical. As he sits in custody serving the short sentence from which he will almost certainly be released within three months, one wonders whether he or indeed the victim of his abuse would consider there to be any value in a consensually arranged face-to-face restorative encounter. The problem at present seems to be that the question about individuals’ appetite to participate in restorative processes is not being asked regularly. Meanwhile, the skills and capacity of services to deliver restorative approaches safely remain somewhat limited.

There is no doubt in my mind that there is sufficient flexibility within the existing justice system, whether through Children’s Hearings or through the Courts to develop restorative practices and approaches more extensively. Some might argue that we have been here before. In the not too distant past we had National Standards for Scotland’s Youth Justice Services which stated that, “Every victim of a young offender referred to the reporter on offence grounds will have the opportunity to engage in a mediation or restorative justice scheme, where appropriate”. While I am not seeking to advocate a return to the start of this century when social policy relating to youth crime and social inequality had a distinctly less progressive feel than it does today, I do think that this emphasis on restorative justice was one of the few from that ugly era of “Neds”, “Hoodies” and ABSOS which was positive. To some degree, it feels as if restorative processes in the justice system may have been moved to the policy back-burner because they require a cadre of highly-skilled professionals and are often politically sensitive.

Nevertheless, the policy sands may once again be shifting. Directive 2012/29/EU of the European Parliament and of the Council of October 2012 establishes minimum standards on the rights, support and protection of victims of crime. Specifically, Article 12(2) notes, “Member states shall facilitate the referral of cases, as appropriate to restorative justice services, including through the establishment of procedures or guidelines on the conditions for such referral”. Member states are obliged to comply with the Directive by 26 November 2015 and this has been the major driver for the Victims and Witnesses (Scotland) Bill currently working its way through the Scottish Parliament. In the Justice Committee at Stage 2 of the Bill a proposed amendment was passed which would have placed a duty on Scottish Ministers to make provision, by regulations, for the referral of victims and offenders or alleged offenders to restorative justice processes. When the matter was debated in Parliament a compromise position was reached whereby the amendment was revised, removing the duty on Scottish ministers and replacing it with the ability for Scottish Ministers to issue guidance.

This outcome was positive on several levels and Cabinet Secretary Kenny MacAskill’s comments are noteworthy. He stated: “I…agree that more consideration should be given to the potential benefits of restorative justice to victims. We already know that it can be useful to youth justice, in particular”. He went on to add that, “there are compelling reasons for adopting a more flexible approach than would be possible through a statutory scheme” not least the importance of protecting both persons harmed and persons responsible from being drawn into restorative processes to which one or both parties are not fully committed.

I look forward to witnessing further developments in restorative justice as they happen…in policy and popular culture. I am hopeful that society and government can work together to come up with solutions that really do work for everyone and make the society we’re all a part of a ‘better’ place to be. Who knows? In the spirit of 2014, anything is surely possible!

About our blogger

David Orr is a National Development Consultant with CYCJ’s practice team, seconded from Edinburgh Youth Offending Service (YOS). His specialisms include managing high risk offenders and restorative justice, particularly its application in the aftermath of serious harm.Read more about David.