David O'Mahony is a Reader at Durham Law School (England) and co-director of the Centre for Criminal Law and Criminal Justice. He graduated in psychology and criminology from the University of Ottawa, Canada in 1984 and in 1987 was awarded the degree of MA in Criminology. In 1988 he was awarded an MPhil in Criminology at Cambridge University where he went on to work as a researcher. Amongst other projects completed a national evaluation of the youth justice system in England and Wales for the Home Office.

He has conducted research projects for the Department of Health, the Home Office, the Northern Ireland Office, the Probation Board for Northern Ireland and the British Council. David is presently directing a research study with colleagues from Queen’s University, the University of Ulster, University of Sheffield and University of Wales examining restorative justice practices with young offenders. He is an advisor to the Irish National Commission on Restorative Justice.

He has published widely in the areas of youth crime and criminal justice. His teaching interests include the legal regulation of young people, restorative justice, crime and social control, and legal and social research methods. David was awarded a funded visiting research fellowship under the ‘Gender, Sexuality and the Family’ programme at Cornell Law School. He is a member of the editorial board for the journal 'Youth Justice', and a member of the Northern Ireland Crime Prevention Panel and the Northern Ireland Restorative Justice Working Group.

QUESTION.- What's the definition of Restorative Justice in Europe within the criminal justice system?

ANSWER.- Restorative justice has developed as a victim-centred response to criminal offending. In recent years, it has come to exert an increasingly strong influence across many different systems as policymakers have become more concerned about the capacity of the traditional system to deliver participatory processes and fair outcomes that are capable of benefiting victims, offenders and society at large.

The restorative process looks to the individual needs of the parties through seeking to repair the injuries caused, restore relationships, and through addressing the needs of the offender as well as those of the broader community. In turn, restorative approaches are said to contribute towards greater community protection and safety by promoting offender responsibility and removing the stigma of crime, and thereby restoring and reintegrate those most affected by the offence.

Q.- Can you please provide us a short description about Restorative Justice and how it is promoted in Europe?

A.- Recent years have witnessed a rapid expansion at European and international levels in developing initiatives grounded in restorative principles. International instruments increasingly view restorative interventions as a legitimate, if not superior, means of delivering justice. In placing a strong emphasis upon participation and reparation, international trends have certainly exerted pressure upon national governments to develop policies based on restorative justice principles. At European level, the EU Framework Decision calls on Member States to promote mediation in criminal cases for offences which it considers appropriate for this sort of measure. Article 10(2) calls on Member States to ensure that ‘any agreement between the victim and the offender reached in the course of such mediation in criminal cases can be taken into account’. ‘Mediation’ itself is defined relatively broadly in Article 1(e) as ‘the search prior to or during criminal proceedings, for a negotiated solution between the victim and the author of the offence, mediated by a competent person.’ This definition would cover the vast majority of approaches taken by restorative practitioners within Europe.

In addition to the European Union, the Council of Europe has also recognised the recent tendency of states to integrate restorative measures within their criminal justice system. In 1999, this organisation issued a fairly detailed set of principles in its in Recommendation (99)19 ‘Concerning Mediation in Penal Matters'. The Recommendation, which consists of 34 articles, recognises that there is a need for both victims and offenders to be actively involved in resolving cases themselves with the assistance of an impartial third party. These provisions generally reflect internationally recognised principles of best practice, including, the importance of specific training, the principle of voluntariness, the need for judicial supervision, and the need to ensure that procedural human rights guarantees are safeguarded. In addition, Member States are called on to promote research and evaluation of mediation processes. It should be underlined, however, that this is a form of ‘soft’ law and Member States are simply asked, in developing mediation schemes, to bear in mind the principles laid down in the Recommendation and to circulate the text as widely as possible.

The Council of Europe’s Recommendation was adopted as the basis for part of the United Nations Vienna Declaration on Crime and Justice. This instrument committed the Member States ‘to introduce, where appropriate, national, regional and international action plans in support of victims of crime, such as mechanisms for mediation and restorative justice, and we establish 2002 as a target date for States to review their relevant practices, to develop further victim support services and awareness campaigns on the rights of victims and to consider the establishment of funds for victims, in addition to developing and implementing witness protection policies’ (at para 27).

Paragraph 28 of the Declaration further commits the member states to implementing restorative justice policies that are ‘respectful of the rights, needs and interests of victims, offenders, communities and all other parties'. At a subsequent meeting, the United Nations Congress on Crime Prevention examined restorative justice in its plenary sessions and formulated a draft proposal for Basic Principles on the Use of Restorative Justice Programmes in Criminal Matters. This instrument was adopted by the United Nations in August 2002.

The Basic Principles stipulate that restorative justice programmes should be generally accessible at all stages of the penal procedure; that they should be used on a voluntary basis; that participants should receive all relevant information and explanation; and that differences in aspects such as power imbalances, age, and mental capacity need to be taken into account in devising processes. Core due process requirements should also be observed. Moreover, if restorative justice processes or outcomes are not possible or agreement cannot be reached, steps should be taken to support the offender to take responsibility for his actions to provide reparation to the victim and the community.

Q.- How does restorative justice differ from 'traditional' response to crime?

A.- The restorative paradigm conceptualises criminal behaviour in a very different manner from which it has been traditionally conceived within orthodox models of criminal justice. Traditionally, the historical evolution of conventional criminal justice systems has tended to gravitate around the idea of protecting the public interest, and in denouncing and punishing those who offend against it by breaking the criminal law. By contrast, advocates of restorative justice view criminal behaviour as something that is first and foremost a violation of people and relationships. The restorative process aims to make amends for the harm that has been caused to victims, offenders and communities and downplays the concept of just deserts. For many commentators, the normative framework of the traditional criminal justice system fails to meet the needs of those most affected by crime.

By contrast, the restorative process looks to the individual needs of the parties through seeking to repair the injuries caused, restore relationships, and through addressing the needs of the offender as well as those of the broader community. In turn, restorative approaches are said to contribute towards greater community protection and safety by promoting offender responsibility and removing the stigma of crime, and thereby restoring and reintegrate those most affected by the offence.

Q.- What are the benefits of restorative justice? And, why is it a step forward on juvenile justice developments?

A.- Restorative justice seeks to resolve crime and conflicts by addressing the wider needs of victims, offenders and the community. It offers benefits to all of those who participate and can be especially useful for young offenders. It helps them realise the harm caused by their actions, while holding them to account. In particular, the impact of young offenders having to explain their actions to the victim can have a powerful effect on them.

The restorative paradigm also provides a framework positioning the victim at the heart of the process, an opportunity is provided for them to meet and ask questions of the offender, such as ‘why did the crime happen?’ or ‘why was I victimised?’. The answers to such questions, which only the offender can provide, help to fulfil a psychological need for information about the offence. In turn, victims are better placed to find emotional closure and will be better able to move on from the offence.

In addition to having questions answered, victims are also given an opportunity to participate within the process and explain the impact that the offence has had upon them using their own words. In contrast to the adversarial process, typically victims will be offered a ‘free narrative’ phase to outline how they felt and how the offence affected them. In this way, victims are given a channel by which they can offload their feelings about the impact of the offence, which in turn may allow victims to make sense of their experiences. The provision of a forum which does not seek to control or restrict what the victims says, and allows them to tell their story using their own words acknowledges the status of the victim as a genuine stakeholder who has suffered directly as the result of the offence. Victims are thereby empowered, as Zehr explains: ‘their sense of personal autonomy has been stolen from them by the offender, and they need to have this sense of personal power returned to them’.

Q.- What are the main differences between Restorative Justice and Mediation Practice?

A.- There are many points of similarity between restorative justice and mediation, but one of the key differences is that the restorative process actively looks to a solution that addresses the harm that has been caused. As such the co-ordinator has a specific agenda. Mediation, on the other hand, is often a process whereby the mediator plays a much more neutral role, seeking agreement and consent between the parties, and less of an emphasis on achieving specific outcomes that address the harm caused.

Q.- What are the background needs to further develop Restorative Justice in youth justice across Europe? Are there cases more adequate than others to be dealt with restorative justice?

A.- There is significant potential to develop restorative justice across Europe, and this is something being promoted as greatly beneficial by the European Union, and also by international bodies, as noted above.

As to the types of cases, there is strong evidence to suggest that restorative justice can be used across a wide range of offence types. Indeed, there is good evidence that it can work very effectively with more serious types of offences.

Q.- How can innovative restorative justice practices be integrated into the criminal juvenile Justice system?

A.- It is generally accepted that restorative practices can usually be categorised as falling under one of four forms: victim-offender mediation; community reparation groups; police-led restorative cautioning and family group conferencing.

Victim-offender mediation
Most victim-offender mediation (VOM) programmes within the criminal justice sphere have their roots in programmes that were developed in North America in the mid-1970s. In Canada they were promoted by the Christian Mennonite movement, with an emphasis on the values of forgiveness and personal reconciliation. These programmes, which still flourish today, bring together victims and offenders with a facilitator or mediator, who is usually professionally trained. The aim of mediation is to give victims and offenders a safe environment in which they are able to discuss the crime, its impact and the harm it may have caused, and to allow an opportunity to put right the harm caused.

VOM has proved very popular and is currently the most common form of restorative practice used in both North America and continental Europe. It has also developed into more general forms of dispute resolution and mediation services which can include neighbourhood disputes, especially where there has been a history of conflict between the parties that has not been resolved by other forms of intervention. It has also gained in popularity across many parts of Europe where it is currently the most dominant form of restorative justice practice. It should be noted, however, that VOM is primarily directed at repairing the relationship between the victim and offender, and can be said to be settlement-driven, rather than dialogue-driven. This differs from the other forms of restorative justice noted below, in that the process remains focused on that relationship rather than the offence itself. While the circumstances surrounding the offending behaviour may be addressed as part of the mediation, the process is not primarily geared to developing an outcome that provides reparation for a specific offence.

Community Reparation Groups
Another restorative justice model, which has recently found favour in a number of jurisdictions, is the use of community reparation groups. These groups have been commonly used in the United States, such as the Vermont Community Reparative Board since the mid-1990s. While the groups are primarily used for adult offenders convicted of non-violent offences, more recent initiatives have been focused on juvenile offenders. Such groups or panels are typically composed of a small number of community representatives who hold face to face meeting with offenders who have been referred by the courts. The groups, with the offender, decide the sanction that should be imposed for the offence, monitor compliance and report back to the court on its completion. The main goal of the groups is to promote community involvement and empowerment in relation to offending and to promote offender responsibility and victim reparation.

Police-led Restorative Cautioning
Police-led restorative cautioning schemes have their roots in Australia where they were developed in the early 1990’s, mostly as an alternative approach to traditional formal police cautioning. The approach spread and was taken up and used in various forms in New Zealand and America, particularly in Minnesota and Pennsylvania in the mid 1990s. It then spread considerably and North American facilitators have promoted the approach and trained many facilitators worldwide.

In the United Kingdom restorative cautioning programmes have been used in a number of police forces, particularly by the Thames Valley police and more recently by the police in Northern Ireland. The approach is largely based around Braithwaite’s ideas of ‘reintegrative shaming’. In essence these schemes seek to deal with crime and its aftermath by attempting to make offenders ashamed of their behaviour, but in a way which promotes their reintegration into the community. In this sense, it is different to the traditional police caution, which has been described by Lee (1998) as a ‘degrading ceremony’ in which the young person, most often a first-time and minor offender, is given a ‘dressing-down’ by a senior police officer.

The restorative caution attempts to reintegrate the young person, after they have admitted what they did was wrong, by focusing on how they can put the incident behind them, for example by repairing the harm through such things as reparation and apology. It thereby allows the young person to move forward and reintegrate back into their community and family. The whole process is usually facilitated by a trained police officer and often involves the use of a script or agenda that is followed in the conferencing process. The victim is encouraged to play a part in the process, particularly to reinforce upon the young person the impact of the offence on them, but as Dignan notes, restorative cautioning schemes have (at least initially) placed a greater emphasis on the offender and issues of crime control, than on their ability to meet the needs of victims.

Restorative Conferencing
Perhaps the best known restorative conferencing scheme is the family group conferencing model, first developed in New Zealand. The model was devised as part of a more general initiative which sought to address difficulties in the way young people were being treated in the criminal justice and welfare systems in New Zealand - particularly minority group offenders such as the Maori and Pacific Island Polynesians. The model sought to develop a more culturally sensitive approach to offending that emphasises inclusive participation and collective decision making, bringing together young people, their families and community to determine appropriate means of redress for victims.

The family group conferencing scheme was brought into New Zealand under a reform agenda that emphasised diverting young people away from criminal justice interventions. The legislation made conferencing the main avenue of disposal for all but the few most serious offences including murder and manslaughter. In effect, family group conferencing became the main statutory method of disposal for young offenders being prosecuted. Young people can only be prosecuted if they have been arrested and referred by the police through a family group conference. The courts are required to send offenders for family group conferences and they have to consider the recommendations of the conference and generally do not deal with cases until they have had a conference recommendation.

The New Zealand model has been exported to a range of other common law criminal justice systems of North America, Australia and the United Kingdom, although only Northern Ireland has so far opted to place the scheme on a statutory footing. It can also be noted that the FGC model has been widely applied a range of settings outside the formal criminal justice system, including schools and the workplace.

Q.- Can the Community become involved in the Restorative Justice programme for juveniles?

A.- Many advocates of restorative justice emphasize the centrality of ‘community’ to restorative practices. Three major benefits of community participation within restorative justice are commonly cited. First, community involvement assists with localised problem-solving efforts in terms of contributing towards public safety and crime prevention. To this end, community representatives are seen as being more effective than ‘outside’ professionals in encouraging offenders to take personal responsibility for their crimes and in reintegrating them back into the community, since they are in a better position to ‘connect with the victim and offender and support them as they try to repair the harm from the crime’. This comes from the expectation that community members will be more like ‘real people’ to the offenders, who will identify more with community members and care more what they think. In turn, communities that are pro-active and mobilised may reduce reliance upon the resources of the state.

Secondly, community input provides a framework for the restoration of harm and reintegration of the offender. Through offering a forum for the symbolic acknowledgement that harm has occurred, community involvement may be said to have a denunciatory function. However, it simultaneously avoids stigmatising or ostracising the offender, and instead offers a forum where public disproval can be aired, but rituals of forgiveness can be invoked and a ‘continuum of respect’ may be left intact. In this way, ‘reintegrative shaming’ is exercised.

A third perceived benefit of community participation is that it can add a sense of legitimacy to the outcomes and agreements that may result from restorative processes. This is particularly pertinent in settings where there have been longstanding tensions between specific communities and criminal justice agencies. In setting down norms of acceptable and unacceptable conduct, community participation can help foster a sense of civic ownership of disputes. It follows that community involvement may be capable of adding a sense of moral authority to decision-making processes, which may assist in developing a collective sense of understanding of the need to address offending behaviour. In developing policies which are based around partnership with local communities, multi-level governance and civil society may be developed and a sense of ‘democratic space’ may act to revive politics and ‘democratise democracy’.

Q.- In your opinion, which country would is a restorative justice practice model in Europe?

A.- At present Northern Ireland is the best example of a jurisdiction in Europe which has integrated restorative justice into its youth justice system.

The youth conferencing system in Northern Ireland marks an important new role for the Youth Courts, as it is has become one of the primary responses to young offenders brought for prosecution. Youth conferencing, like in New Zealand, significantly alters how victims and offenders experience the criminal justice system. It offers both parties increased involvement in the process and the opportunity to ‘reclaim’ their case from a professionalized, often alienating system.

Typically, a youth conference involves a meeting in which a young person is provided with the opportunity to reflect upon their actions, and offer some form of reparation to the victim. The victim, who is given the choice whether or not to attend, can explain to the offender how the offence has affected him or her as an individual. Following group dialogue on the harm caused by the young person’s actions, a ‘conference plan’ is devised. Unlike the New Zealand model, the plan is usually devised and negotiated with all of the parties present, including the victim. This plan takes the form of a negotiated ‘contract’, with implications if the young person does not follow through what is required of him or her. Agreement is a key factor in devising the ‘contract’, and the young person must consent to its terms. Ideally, the ‘contract’ will ultimately have some form of restorative outcome, addressing the needs of the victim, the offender and wider community.

Court ordered youth conferences provided for in the legislation take place with a view to a youth conference co-ordinator providing a recommendation to the court on how the young person should be dealt with for their offence. The young person may be referred to a youth conference by a court, known as a court-ordered youth conference. The admission or establishment of guilt and consent of the young person are prerequisites for a court-ordered conference to take place. A distinctive feature of the Northern Ireland system is that a court must refer a young person to a youth conference. This is subject to certain restrictions: when a magistrate refers a case they must take into account the type of offence committed. Only offences with a penalty of life imprisonment, offences which are triable, in the case of an adult, on indictment only and scheduled offences which fall under the Terrorism Act (2000) are not automatically eligible for youth conferencing. In effect, the vast majority of young offenders have to be referred for the youth conferencing process. The mandatory nature of court-ordered referrals highlights the intended centrality of youth conferencing to the youth justice system. In jurisdictions where referrals are discretionary, the uptake has often been low which has led to the marginalisation of restorative schemes to the periphery of the justice system.

Restorative youth conferencing has changed the face of the youth justice system in Northern Ireland and although it has only been in operation for a few years, indications appear to be positive. The youth conferencing scheme has been subject to a major evaluation in which the proceedings of 185 conferences were observed and personal interviews were completed with 171 young people and 125 victims who participated in conferences. The research findings were generally very encouraging, especially concerning the impact of the scheme on victims and offenders, and found it to operate with relative success. Importantly, the research showed that youth conferencing considerably increased levels of participation for both offenders and victims in the process of seeking a just response to offending. The scheme engaged a high proportion of victims in the process and nearly half of personal victims attended as a result of assault.

Overall indications of the relative success of the process were evident from general questions asked of victims and offenders. When participants were asked what they felt were the best and worst aspects of their experience a number of common themes emerged. For victims, the best features appeared to be related to three issues: helping the offender in some way; helping prevent the offender from committing an offence again; and holding them to account for their actions. The most positive aspects of the conferencing were clearly non-punitive in nature for victims: most seem to appreciate that the conferences represented a means of moving forward for both parties, rather than gaining any sense of satisfaction that the offender would have to endure some form of harsh punishment in direct retribution for the original offence. Victims and offenders expressed a strong preference for the conference process as opposed to going to court and only 11% of victims said they would have preferred if the case had been dealt with by a court. On the whole they considered that the conference offered a more meaningful environment for them. While a small number of victims would have preferred court, identifying conferencing as ‘an easy option’, this view was not held by the offenders. The offenders identified the most meaningful aspect of the conference as the opportunity to apologise to the victim, a feature virtually absent from the court process. Yet, they also identified the apology as one of the most difficult parts of the process.

A clear endorsement of victims’ willingness to become involved in a process which directly deals with the individuals that have victimised them was evident in that 88% of victims said they would recommend conferencing to a person in a similar situation to themselves. Only one personal victim said they would not recommend conferencing to others. For the vast majority who would, they felt the process had given them the opportunity to express their views, to meet the young person face to face, to ask questions that mattered to them, to understand why the incident happened to them, and ultimately, it appeared to help them achieve closure.

Very recent research findings have also assessed the impact of the scheme on recidivism rates. These encouraging findings, which compare reconviction rates for young offenders given differing disposals, including custodial and community orders, show those given restorative conferences had a one year reconviction rate of 38% compared with a custodial rate of 73% and an overall community disposal rate of 47%.

Q.- How do restorative justice programs achieve their outcomes around the world? What is the level of success?

A.- There is broad body of research evidence now available which has looked at the effectiveness of restorative justice. This research shows that: offenders, victims and supporters usually have positive experiences of restorative justice, finding the process procedurally fairer and being largely satisfied with the outcomes;
The weight of recidivism-based (or re-offending) evidence demonstrates that restorative justice interventions usually have a modest, but statistically significant impact in reducing recidivism;

Restorative interventions appear to have a more powerful impact for violent and more serious offences, and appear to be better at reducing reoffending for higher-risk individuals and especially those who are not first-time offenders; There has been a growing consensus among academics and practitioners that restorative interventions can be applied to certain types of serious offences. Certainly, as far as the empirical evidence shows, there is little basis for the view that restorative programmes are only appropriate for less serious offences or first-time offenders;

The research evidence suggests restorative interventions that involve direct contact between the offender and victim are generally more successful than those that have indirect or no victim involvement;

The research also shows that restorative conferences are better able to reduce reoffending if core elements of the restorative process are achieved, in particular, if they are inclusive, fair and forgiving and when offenders are remorseful and conference agreements are consensual.

Restorative justice has the significant potential to improve the delivery of criminal justice. It is a process that can greatly enhance traditional justice systems in terms of holding offenders to account and encouraging them to accept responsibility for their actions. It often gives victims and offenders a fairer and more satisfying experience of justice, and can produce outcomes that are more likely to result in recompense, forgiveness and reconciliation. It is something we need to actively promote in modernising criminal justice, away from the old failed polices of ever increasing retribution, punishment and imprisonment.