newsletter of the court-referred restorative justice project - january/february 2004 - issue #20
Inside this issue
Victims and offenders often change the perception they have of each other when they meet face-to-face, says Auckland Restorative Justice Services facilitator Fiona Landon.
Best Practice Principles Released
Principles of best practice for restorative justice processes in criminal courts have been released by the Ministry of Justice.
They cover issues such as victim and offender consent, the need for effective interaction between the victim and offender, the importance of preparation of participants, offender accountability, the need for flexibility and responsiveness, emotional and physical safety, responsibilities of restorative justice providers, and the appropriateness of particular types of cases for restorative justice.
The principles are the result of several months of consultation following the release of a Ministry discussion paper in May last year. Feedback was received from restorative justice providers, government agencies, non-government organisations such as Victim Support and the New Zealand Law Society, judges, academics and private individuals. The principles identify how and when restorative justice processes should be used in criminal cases. The Ministry intends the principles to be a resource for all those working with or participating in restorative justice, including victims and offenders, current and potential restorative justice providers, court staff, defence lawyers and judges.
Best practice principles were needed for a range of reasons, says Ministry senior advisor Andrea King.
"The Sentencing Act, Parole Act and Victims Rights Act - all passed in 2002 - contained provisions relating to restorative justice. But, while they create an important framework for the use of restorative justice in the criminal justice system, the new legislation does not provide guidance on what would be a good process, what judges should expect of a restorative justice process, what victims and offenders could expect, or the role of people like defence lawyers.
"Internationally there is quite a trend towards developing guidelines. The United Nations has endorsed basic principles for the use of restorative justice in criminal matters. Canada and the United Kingdom have also been doing similar work."
Andrea says New Zealand provider groups also realise that principles of best practice will help protect the integrity of restorative justice in this country: "At the same time that we have been developing the principles, restorative justice providers have identified their own set of standards and values. The two projects complement each other very well."
The project manager for the court-referred restorative justice pilot, Alison Hill, says the principles are valuable because they express a shared understanding about how restorative justice will be approached in New Zealand.
"The principles do not prescribe the detail of the models that can be used, so there is room for a range of approaches to evolve. The pilot provides examples of ways in which the principles can be expressed in practice."
Andrea says that the principles provide a platform for work in the future: "Now that the principles have been finalised, we need to look more closely at funding responsibilities for restorative justice. A range of issues were also raised through the consultation process, such as the use of restorative justice processes with family violence, that we think need further work."
The principles are summarised inside. A full copy will be published by the Ministry, and is expected to be available by early April.
Recognition for New Zealand
Waitakere Restorative Justice Community Group chair Dr Chris Marshall has won an International Community Justice Award for his work in developing and promoting community-based justice alternatives.
Chris, who is a facilitator for the court-referred restorative justice pilot, received the award from Princess Anne in London in late January. He said the award was for the New Zealand restorative justice movement as a whole:
"It's a recognition of what many people are doing."
The awards are sponsored by the British Home Office and conferred once every four years. Nominations were received from 39 countries.
Principles of Best Practice for Restorative Justice Processes
The following is a summary of the principles released by the Ministry of Justice.
1 Restorative justice processes are underpinned by voluntariness
Neither the victim nor offender should feel coerced into giving their consent and both have the right to withdraw consent at any time (including during a conference). Both victims and offenders may require independent advice (for example, legal advice for an offender or advice from a victim support agency for a victim) before agreeing to participate.
Outcomes must be developed and agreed by the victim and offender (as the primary participants) without coercion. Facilitators must ensure that the victim and offender understand what has been agreed to, including what is required for agreed outcomes to be completed. Reaching agreement on outcomes should not be the sole focus of the restorative justice process.
2 Full participation of the victim and offender should be encouraged
Although there may be many other people who participate in the restorative justice process (for example, members of the community), the interaction between the victim and offender is at the centre of the process. While the offender's presence and participation in a restorative justice process is always required, victims should not be pressured to participate in the process or personally attend a conference.
The ‘community' should be represented during the restorative justice process. What is meant by ‘community' is likely to differ from case to case. It will most often include support people for the victim and offender (for example, a friend, family member or community support person) but could also include others affected by the offence.
‘Professionals' (police officers, probation officers and defence counsel) have a significantly different role in a restorative justice process to that usually played in conventional court processes. They may (but are not required to) attend a conference. If they do attend, they may offer advice and support but are not parties to any agreement and should not dominate discussion.
3 Effective participation requires that participants, particularly the victim and offender, are well informed
Participants must be realistic about what can be achieved through the restorative justice process. In particular, both victims and offenders must be aware that how a court ultimately deals with an offender may or may not reflect agreements made in a restorative justice process.
4 Restorative justice processes must hold the offender accountable
A case should not be referred to, or accepted for, a restorative justice process unless an offender has acknowledged responsibility for the offence. A guilty plea will provide the clearest indication of an offender's acknowledgement of responsibility. Providers and facilitators should be aware of, and put in place appropriate measures to mitigate, the additional risks to the victim and offender if restorative justice processes are undertaken in cases where a guilty plea has not been entered or when the guilty plea has followed an earlier not guilty plea.
Agreed outcomes should be fair, realistic, achievable and credible, and be able to be completed within an identified, appropriate timeframe. To the extent possible, participants should try and ensure that agreed outcomes are not overly harsh or overly lenient. The court may be more likely to confirm agreed outcomes if they are not significantly out of line with current sentencing practice.
5 Flexibility and responsiveness are inherent characteristics of restorative justice
Best practice requires that particular steps always be undertaken in a restorative justice process (for example, a preconference meeting). However, within those requirements, restorative justice processes should be flexible and responsive to the needs of participants, particularly the victim and offender.
Restorative justice processes must also be appropriate and responsive to the culture of participants. Facilitators should identify whether participants, particularly the victim and offender, would like particular cultural practices or needs to be accommodated within the restorative justice process.
Although the victim's preference should usually prevail, discussion and negotiation will be required when the victim and offender are of different cultures or have different preferences about how their cultural practices or needs should be reflected.
6 Emotional and physical safety of participants is an over-riding concern
Participating in a restorative justice process has potential risks for the victim and offender that must be carefully managed. The restorative justice process should be discontinued at any time if the facilitator(s) consider it inappropriate or unsafe to continue.
Facilitators should discuss their concerns with participants at the time the concerns arise. If a conference is adjourned or stopped, it may be possible in some cases to reconvene and continue at a later date. The court will need to be informed if the process is discontinued.
7 Restorative justice providers (and facilitators) must ensure the delivery of an effective process
Appropriate and transparent procedures and processes are required that screen potential facilitators at the time of their initial appointment and select facilitators appropriate to the case that has been referred, monitor the performance of facilitators and address performance issues, ensure regular supervision and training of facilitators, including debriefing, peer review and professional supervision, maintain the safety of participants and the provider, and manage complaints.
Formal evaluation of programmes (for example, to determine the effectiveness of different models and practices) should be supported and encouraged wherever possible. Restorative justice providers should also monitor their own practice on an ongoing basis, with a view to modifying and improving their practice where required.
8 Restorative justice processes should only be undertaken in appropriate cases
A range of factors should be taken into account when considering whether a case is appropriate for a restorative justice process.
These factors include the type of offence, the willingness of the victim and offender to participate, and participants' suitability, including their maturity and ability to participate effectively and in a voluntary capacity.
The use of restorative justice processes in family violence and sexual violence cases will not always be appropriate. The particular dynamics of family violence and sexual violence, including the power imbalances inherent to this type of offending, can pose significant risks to the physical and emotional safety of the victim.
Family violence offending, in particular, is often cyclical and reflects deeply entrenched attitudes and beliefs. Offenders may be more manipulative and have offended seriously and repeatedly. A one-off intervention may therefore not be effective or safe.
For further information, or to arrange to receive a full copy of the principles, contact Andrea King, Ministry of Justice, PO Box 180, Wellington, Phone (04) 494 9723 Fax (04) 494 9917, Email: andrea.king@justice.govt.nz
Face-to-face Meetings Can Change Perceptions
Victims and offenders often change the perception they have of each other when they meet face-toface, says Auckland Restorative Justice Services facilitator Fiona Landon (above).
"The potential for changing perceptions is one of the strengths of the process."
Fiona has been facilitating restorative justice conferences since the late 1990s, and has been involved with the courtreferred restorative justice pilot since it began in 2001.
She says that victims and offenders "have these pictures in their minds" about the other person, but when they meet they discover that the reality can be quite different.
"Offenders often have no concept of how it is to be a victim of a crime. They don't understand the emotional context for a victim of being burgled in their home. And a lot of victims have no context of the lives of offenders and the causes of crime. Restorative justice brings everyone together, and it becomes a more real experience for everybody."
Fiona points to a case involving a victim who was injured in a motor accident.
"She had a mindset that the offender (for whom English was a second language) was this rich boy in his toy car who couldn't care less that he'd hurt her.
"The reality was that he was absolutely devastated by what he had done, and hadn't driven since. At the conference he couldn't express in English how he felt, so we got him to speak in his own language, without translation. Even though no-one could understand what he said, it was obvious that he meant it from his heart."
Fiona says that it was amazing for the victim to see that the offender did care about her: "That was all she needed to know - that he didn't think she was a piece of cardboard he'd run over; that she was someone of value."
Exploring New Frontiers
The international potential for restorative justice processes to be used in cases such as human rights abuse, land grievances, terrorism and religious violence will be discussed at a conference in Auckland later this year.
The New Frontiers in Restorative Justice conference is being hosted by Massey University's Centre for Justice and Peace Development at Albany from December 2 to 5.
Centre director Warwick Tie says that since its modest beginnings some 30 years ago, restorative justice has grown into an international movement for the promotion of collaborative and peacemaking approaches to conflict resolution.
"Historically restorative justice has been practised mainly in criminal justice, with some work in schools and workplaces. The conference will attract people interested in how it might be applicable to other forms of serious violence and conflict."
Questions to be explored include:
Keynote speakers will include Governor-General Dame Silvia Cartwright, restorative justice pioneer Howard Zehr, East Timorese human rights practitioner Aniceto Guterres, former Thames Valley Police Chief Constable Sir Charles Pollard, Dr Chris Marshall, Maori Land Court Chief Judge Joe Williams (right), and the founder of Canada's Community Holistic Healing project, Berma Bushie.
Professor Zehr's book Changing Lenses: A New Focus for Crime and Justice is considered a foundation work in the restorative justice movement.
Aniceto Guterres currently chairs the East Timor Commission for Reception, Truth and Reconciliation. Sir Charles Pollard is chair of the Justice Research Consortium, a multi-agency partnership working to develop and test innovations for improving criminal justice in the United Kingdom. Berma Bushie's project uses healing circles as a way of responding to sexual abuse in aboriginal communities in Manitoba.
Warwick says the idea for the conference came from a series of seminars held in South Africa, New Zealand, the United States, Canada and the United Kingdom in 2002 and 2003.
"Howard Zehr (right) talked about the distinction between critical issues - faced by restorative justice now, and frontier issues - where restorative justice might go next and how it might change. This year's conference will pick up that question."
The conference is already attracting interest from several countries, particularly in Africa, Asia and Europe: "We've got 30 delegates already wanting to present material, even before we have formally promoted the event, and a publisher in the United Kingdom is interested in producing an edited book from the conference."
Warwick says that although the conference will look at the application of restorative justice in fields with which many New Zealand practitioners might not be familiar, he expects discussions on domestic and sexual violence and police culture to be of particular interest.
"The conference will be quite expensive to attend ($600), but the centre is hoping to provide subsidies to members of New Zealand restorative justice provider groups. We won't know what level of subsidy will be available until closer to the conference."
The conference is being supported by the New Zealand Law Foundation, the Office of the Chief Distict Court Judge, New Zealand Police and the Ministry of Justice.
For further information, contact Warwick Tie, Email: w.j.tie@massey.ac.nz, Phone (09) 414 0800 Centre for Justice and Peace Development, Massey University, Private Bag 102904, North Shorth MSC, Auckland Website: http://justpeace.massey.ac.nz/
Te Ara Whakatika is produced by the Ministry of Justice to ensure the wide community of people who support the restorative justice movement are kept informed about the court-referred restorative justice project. The items in this newsletter do not necessarily reflect the views of the Ministry of Justice or official policies. Articles in this newsletter may be copied and reproduced, but Te Ara Whakatika must be acknowledged. Te Ara Whakatika can be viewed online at www.justice.govt.nz/crrj. Inquiries regarding the court-referred restorative justice project should be directed to: Alison Hill, Ministry of Justice, PO Box 180, Wellington, Phone (04) 918 8839, Fax (04) 918 8820, email: alison.hill@justice.govt.nz; or to co-ordinators Islay Brown (Auckland) Phone 025 745 141, (09) 916 9000; Garry Summers (Waitakere) Phone (025) 271 5148, (09) 916 5268; Marianne Lammers (Hamilton) Phone (07) 957 7816, (025) 271 5203; Cathy Brown (Dunedin) Phone 025 271 5164, (03) 471 5170. Te Ara Whakatika mailing list inquiries should be directed to: Abpost, PO Box 38756, Petone, Wellington. Fax (04) 568 3400.
