RESTORATIVE JUSTICE IN NEW ZEALAND: BEST PRACTICE
Part A: Introduction | Part B: Principles of Best Practice for Restorative Justice Processes in Criminal Cases | Part C: Statement of Restorative Justice Values and Processes
Introduction
Principles of Best Practice for Restorative Justice Processes in
Criminal Cases
The Principles of Best Practice for Restorative Justice Processes in Criminal Cases provide guidance for how restorative justice processes should be used in the criminal justice system. The Principles were developed following a consultation process in 2003 with restorative justice providers, the judiciary, relevant non-government organisations and others working with, or participating in, restorative justice.
Care has been taken to ensure that the Principles protect the inherent flexibility of restorative justice processes, but also provide clear guidance about the use of these processes in a safe and appropriate way. The eight fundamental principles that have been identified should always underpin restorative justice practice in criminal cases.
The Principles focus on the use of restorative justice processes pre-sentence, and do not apply to the use of these processes after sentencing. However, the Principles are likely to be broadly applicable to the use of restorative justice processes at any point in the criminal justice process, as well as in other sectors. [5]
The Principles of Best Practice are part of a broader Ministry of Justice work programme to facilitate the continuing development of restorative justice processes in New Zealand. Further work is to be undertaken to identify appropriate funding arrangements for restorative justice processes, as well as on a range of other issues that have been identified through the 2003 consultation (for example, the use of restorative justice processes in cases of family violence and sexual violence).
Ministry of Justice
March 2004
1. Restorative justice processes are underpinned by voluntariness
Participation of the victim and offender must be voluntary throughout the restorative justice process
A restorative justice process cannot take place without the informed consent of the victim and the offender. Neither the victim nor the offender should feel coerced into giving their consent and both have the right to withdraw consent at any time (including during a conference). Facilitators should end the process if either the victim or the offender indicates their unwillingness to continue. The offender's consent to participate should be obtained before the victim is contacted. [6] 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 arrived at voluntarily and reflect the agreed view of the victim and offender
Outcomes must be developed and agreed by the victim and offender (as the primary participants) without coercion. Facilitators must ensure that the victim and the 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
The victim and offender are the primary participants in the restorative justice process
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. Other participants should encourage the victim and offender to participate at a level at which they feel comfortable. [7]
Victims must determine their own level of involvement in the restorative justice 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. Although full participation by the victim is the ideal, some programmes allow restorative justice processes to proceed so long as the victim agrees to the process taking place and the victim's views are represented. [8] If a victim does not wish to participate in a restorative justice process in any way, it should not take place.
Where a case involves multiple victims and offences, each victim must be given the choice about whether to participate in that process and, if so, whether they would prefer a joint or separate conference. That one victim does not agree to a restorative justice process taking place should not prevent a process being undertaken for other victims to address the harms caused by the offence(s) committed against them. The facilitator(s) should work these issues through with victims at the pre-conference stage (see principle 3).
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. A balance is required between all relevant people attending the conference, and not overloading the conference or overwhelming participants. Facilitators should always encourage victims and offenders to have support people present at the conference. The attendance of community members at the conference should be discussed with the victim and offender at the pre-conference stage (see principle 3).
'Professionals' (police officers, probation officers, and defence counsel) may attend a restorative justice conference, but on a carefully prescribed basis
'Professionals' 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. Facilitators should discuss the attendance of 'professionals' with the victim and offender at the pre-conference stage (see principle 3). Consent of the victim and offender to their attendance may be required. Neither defence counsel, nor their client, should make direct contact with the victim before or after the conference (for example, to seek agreement to a restorative justice process taking place).
3. Effective participation requires that participants, particularly the victim and offender, are well-informed
Participants in restorative justice processes must be well prepared for the conference
Pre-conference meetings should be held with participants, particularly the victim and offender. Participants will typically require information on the nature of the process, including the procedures to be followed, who will be there and ground rules; realistic options for dealing with the offence; the benefits and risks to them of participating; limits to confidentiality; and their role and rights in the process. The defence counsel, probation officer and police officer (if they plan to attend the conference) should also receive information about their role, and how this differs from conventional court processes.
Participants must have reasonable expectations of the process and outcomes
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. The facilitator(s) should discuss participants' expectations during the pre-conference meeting.
4. Restorative justice processes must hold the offender accountable
The offender must acknowledge responsibility for the offence before a case can be referred to, or accepted for, a restorative justice process
A case should not be referred to, or accepted for, a restorative justice process unless an offender has acknowledged responsibility for the offence. A plea of guilty, which may be accompanied by an agreed Statement of Facts, will provide the clearest indication of an offender's acknowledgement of responsibility. It may sometimes be appropriate for a restorative justice process to be undertaken after an offender has changed their plea from not guilty to guilty. Providers and facilitators should be aware of, and put in place appropriate measures to mitigate, the additional risks to the victim and offender when restorative justice processes are undertaken in cases where a guilty plea has not been entered [9] or when there has been a change in plea.
Agreed outcomes should provide an appropriate and realistic response to the offending
There are no outcomes that must always result from a restorative justice process. Instead, outcomes should reflect what participants think can be done to put right the offending. This will depend on a range of factors, including the needs of the victim and offender and circumstances of the offending. Agreed outcomes should be fair, realistic, achievable, and credible, and be able to be completed within an identified, appropriate timeframe (in most cases, within a maximum of six months and in all cases as quickly as possible). [10] 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.
Agreed outcomes must be monitored
Conference participants should develop a conference plan that clearly identifies agreed outcomes and their timeframes and includes specific information on monitoring arrangements. The plan should be signed by the victim, offender, facilitator(s), and the person(s) responsible for monitoring. If a judge receives an agreed plan that does not identify who is responsible for monitoring each agreed outcome, he or she may request that inquiries be made about the availability of such a person before deciding how that case should be dealt with.
Action should be taken when an agreed plan breaks down
The most appropriate way to address lack of compliance with a plan will largely depend on how the case has progressed through the court. [11] Conference participants should discuss what action should be taken if a plan breaks down as well as the status of agreed outcomes if they are not reflected in the offender's sentence or in any other way that the court chooses to deal with the offender. The victim should always be informed if the plan breaks down.
The court should be informed about what took place in the restorative justice process
The restorative justice provider (or facilitator) should prepare a report on the restorative justice process before the case returns to court. The report should be as succinct as possible and provide an accurate reflection for the court of what took place. Although there is no standard format for these reports, basic information to meet the needs of the court will include when the conference was held, who attended and in what capacity, what process was followed (including pre- and post-conference), what outcomes were agreed and how these will be monitored. [12] The court should also be informed if the process only took place in relation to specific victims or offences in cases involving multiple victims.
Care will always be required to protect privacy and confidentiality when preparing the report (for example, the victim's home address should not be identified). It will usually be the restorative justice provider's responsibility to ensure that the report is forwarded to the appropriate people (for example, the victim and offender, police prosecutor, offender's counsel, probation officer (if applicable), and Victim Adviser (if applicable)).
The restorative justice process should only respond to the offence(s) that is the subject of the original referral
Although offending disclosed at the conference that has not come to the attention of authorities before may be relevant to the appropriateness of an agreed plan, [13] it should not be specifically addressed in the current process. [14] Some offences will be sufficiently serious (for example, violent or sexual offending or when someone's safety or well-being continues to be at risk) that the Police should be informed. Participants, particularly the offender, should be aware that the Police may be informed if other offending is disclosed. Where there are multiple victims, the restorative justice process should only address the effects of the offence(s) committed against the victim(s) participating in that process.
5. Flexibility and responsiveness are inherent characteristics of restorative justice processes
Restorative justice processes should be guided by restorative justice values
Best practice requires that particular steps always be undertaken in a restorative justice process (for example, a pre-conference 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 values provide an underpinning framework within which flexibility and responsiveness can be exercised. These values include:
Restorative justice processes must 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. A range of strategies can be used to ensure that restorative justice processes respond to the culture of participants. These include:
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.
Decisions about how the restorative justice conference will operate, including arrangements for when and where it will be held, should be responsive to participants
The arrangements for, and procedures at, a restorative justice conference should respond as much as possible to the wishes of participants, particularly the victim and offender. This includes the order of proceedings at the conference, the use of particular ceremonies such as karakia and the conference time and venue. [15] Although the victim's preference should usually prevail, facilitators should try and resolve conflicts about these issues between the victim and offender through discussion and negotiation.
6. Emotional and physical safety of participants is an over-riding concern
Restorative justice processes should be safe for participants at all times
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. If a conference is adjourned or stopped, reconvening and continuing with the conference at a later date may be possible in some cases. Facilitators should discuss their concerns with participants at the time the concerns arise. The court will need to be informed if the process is discontinued.
The privacy and confidentiality of participants must be protected and respected to the extent possible
Personal information (for example, a victim's contact details or an offender's criminal history) is always private to the individuals concerned and must not be disclosed without their consent. [16] Restorative justice processes always take place in private and the consent of participants will be required for non-participants (for example, observers such as media representatives) to attend. Information about what occurred during the restorative justice process may be disclosed to non-participants but only with participants' consent.
Facilitators must make participants aware of the limits to confidentiality before a conference is held. For example, judges may refer to the conference report in open court and the disclosure of other offending may be reported to the Police. While there may be agreement before the conference to respect confidentiality, participants need to be aware that this agreement cannot be legally enforced.
Participants may require some form of follow-up after the conference
Follow-up with participants after a conference, particularly the victim and offender, will usually be required. This should be appropriate to the needs of the individuals concerned (and may therefore be minimal in some cases). Purposes of follow-up include:
Methods of follow-up can vary and may include a conference evaluation form, phone call, letter, home visit, and/or the convening of another conference. Other justice sector personnel (for example, the Victim Adviser) may also be in contact with the victim in accordance with their responsibilities under the Victims' Rights Act 2002.
7. Restorative justice providers (and facilitators) must ensure the delivery of an effective process
Robust internal management systems are required that include appropriate and transparent procedures and processes [18]
Appropriate and transparent procedures and processes are required that:
High-quality facilitators are critical to an effective restorative justice process
Facilitators should act in accordance with restorative values (see principle 5) and demonstrate competencies in the following areas: [19]
Facilitators should not be aligned with the victim or offender or be an employee of a justice sector agency, for example, the Police. A co-facilitation model may be appropriate to enhance the safety and control of the conference, enable one person to facilitate while the other takes notes and prepares a draft conference plan, and to allow immediate debriefing after the conference.
Evaluation and review of restorative justice processes should be supported and encouraged
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
The use of a restorative justice process in a particular case must be carefully considered
A range of factors should be taken into account when considering whether a case is appropriate for a restorative justice process (for example, after a judge has adjourned a case to allow that possibility to be investigated). These factors include:
A case will proceed through conventional court processes if it is not considered suitable for a restorative justice process (or if either the victim or offender do not give their consent to the process taking place). The restorative justice provider should inform the court that a restorative justice process could not be undertaken, but not provide the reason(s) for this. [20]
The use of restorative justice processes in cases of family violence and sexual violence must be very carefully considered
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. Where a restorative justice process does take place, providers must ensure that facilitators possess the specialised skills and experience required to facilitate these cases and that additional safety and support measures are in place. Advice from those knowledgeable in responding to family violence and sexual violence should always be sought.
Particular consideration should be given to the appropriateness of restorative justice processes when the victim is a child or a young person
The age and maturity of the child or young person will often determine the appropriateness of a restorative justice process in a particular case and the extent of their participation (for example, very young victims may not attend the conference). Parents/caregivers should be fully involved in the process, including giving their consent to the process taking place, and participating with, or for, the child. There will be inevitable power imbalances arising from an adult offender and young victim. Therefore, if a restorative justice process does take place, restorative justice providers and facilitators must take particular care to ensure that the child or young person is safe and supported and understands what is taking place.