Introduction | Appendix 1 | Appendix 2

APPENDIX 2
FURTHER INFORMATION ABOUT RESTORATIVE JUSTICE PROCESSES

There is no agreed definition of restorative justice processes (and there is no definition included in the Sentencing Act 2002, Parole Act 2002 or Victims' Rights Act 2002).  A common definition of restorative justice used internationally is "...a process whereby all the parties with a stake in a particular offence come together to resolve collectively how to deal with the aftermath of the offence and its implications for the future".[6]

Some commentators prefer to focus on the core values, processes and outcomes that underpin restorative justice, for example: "Restorative processes and practices should empower offenders and victims by giving them a sense of inclusion in and satisfaction with these processes and practices; they should enable victims to feel better as a result of participating in them; and they should hold offenders accountable in meaningful ways by encouraging them to make amends to their victims".[7]

Objectives of restorative justice include to:

1. Promote the victim's healing from the effects of the crime. 

2. Engage with offenders to establish accountability and responsibility for the consequences of their actions.

3. Develop an appreciation of the impact of the offence on the victim.

4. Encourage and facilitate the provision of appropriate forms of reparation by offenders to victims and the community.

5. Seek reconciliation between the victim and offender wherever possible.

6. Strive to reintegrate the victim and offender into the community.[8]

There is generally a lack of information about restorative justice processes.  This includes a lack of comprehensive information about how, and to what extent, restorative justice processes are operating in New Zealand.  There is also a lack of research about what makes restorative justice processes effective.  For example, it is not known what processes are most effective in reducing re-offending, what type of offenders or victims best respond to restorative justice processes, or the comparative cost-effectiveness and efficiency of restorative justice processes compared to the formal criminal justice system.

There is no single 'right way' to deliver restorative justice processes.  Examples of restorative justice processes that are operating internationally include conferencing (in New Zealand), victim-offender mediation (in Continental Europe), and sentencing circles (in Canada).  In New Zealand, a number of other processes operate which include some restorative elements (for example, community diversion), but which many would not consider to be a fully restorative justice process.

A common restorative justice process operating in New Zealand is conferencing before an offender is sentenced.  This is the process operating in the Department for Courts' pilot.  Principles of best practice and procedural safeguards associated with conferencing will be considered in more depth as part of the Ministry of Justice's policy framework.  Some examples of key principles include:

• The key participants in the restorative justice conference are the offender, victim and their supporters. Victim involvement is generally regarded as essential to an effective restorative justice conference.  While this will usually require the victim to attend the conference, in particular circumstances someone else (eg. a friend or family member) may attend the conference on the victim's behalf.  There should be a balance in the number of supporters who attend the conference with the victim and offender.
  

•  An impartial and neutral person should facilitate the restorative justice conference. The conference facilitator should not be aligned with either the victim or offender, and should not determine or direct any agreements made at the conference.  Many providers require two facilitators at each conference, to provide support for each other and allow one to facilitate while the other takes notes and prepares a draft conference report.
  

• Participation is voluntary, with all participants well prepared for the role they are to play.  Neither the offender nor the victim should be coerced or manipulated into attending the conference or agreeing to any particular outcome or action.  Before the conference is held, the participants should be fully informed about the processes to be followed, what their role is, and possible (and realistic) outcomes.  Both the victim and offender can withdraw from the process at any stage.
  

• A conference should not be held unless the offender has acknowledged guilt. Many providers require the offender to acknowledge guilt before a conference is held.  Otherwise, there is potential for argument at the conference about whether or not the offence occurred (which may further victimise the victim), or for concerns to be raised about witness tampering/intimidation or distortion of due process.  In the Department for Courts' pilot, offenders who do not accept responsibility for the offence or who believe that the victim invited the harm it caused are not able to take part in a restorative justice conference.
  

• The referral of cases to restorative justice conferences that involve family violence related offences or child complainants should be carefully considered. There is debate within the restorative justice community about the appropriateness of restorative justice conferences for offences that involve family violence or child complainants.  Any power imbalance between the victim and offender is exacerbated when these offences are involved, with an increased risk of revictimisation.  There are also specific physical safety issues in family violence cases, due to the dynamics of this type of offending.  The Department for Courts' pilot excludes family violence offences, and allows a representative of a child complainant (eg. their parent) to attend the conference on the child's behalf.

  At the conclusion of the conference, a report should be prepared for the court with information on what happened at the conference.

A report will be prepared for the court setting out the process followed at the conference, and any agreements that were reached.  This report is one of a number of factors considered by the court when sentencing an offender.  There is no standard format or content for such a report, although it will typically include information on who attended the conference, the processes followed, any agreements reached, timeframes for undertaking agreed actions, and monitoring/supervision arrangements.