By Joanna Shapland, Jamie Buchan, Steve Kirkwood and Estelle Zinsstag
This report summarises key findings from our project which was funded by the Scottish Government, in support of the Scottish Government’s Restorative Justice Action Plan (Scottish Government 2019). In particular, we seek to support the expansion of restorative justice in Scotland to include its use in response to more serious offending and more difficult cases.
Our objectives were to develop a sense of what factors were perceived by facilitators as risky in any restorative justice process, how they assessed risks, and what measures have been used to prevent and mitigate these risks, with a view to informing the development of practice and policy in Scotland. By ‘risk’ we mean not (just) risks to safety but any factors that might jeopardise the success of the process, i.e. the participants being able to communicate safely. To this end, we interviewed 30 restorative justice facilitators in 11 European jurisdictions. The extent to which restorative justice was ‘established’, and how it was organised, varied considerably between these. Our questions roughly followed the timeline of a restorative justice process: we began by talking about the referral process and how facilitators decide to move forward (or not), before considering facilitators’ definitions of ‘risk’, approaches to assessment, and measures they used to mitigate specific risks in restorative justice. Finally, we asked them about their training and measures for capacity building, including co-facilitation, mentoring and reflective practice.
Key Findings
The restorative justice risks described by our interviewees attach to individual people and cases. Some cases are risky, but this is because of individual factors, not because of the type of case or person. This is essentially different to the actuarial/statistical mode of risk assessment found in many criminal justice settings.
It is impossible to predict the risks of a case before engaging with the individuals involved, because different people experience ‘risk’ factors in very different ways. Furthermore, the seriousness of the harm in a given case may not tally with the legal categories imposed on it by the criminal justice system.
Aside from unwillingness to engage or attempts to coerce others on the part of either party, only two types of risk were seen as ruling out restorative justice entirely: where the person responsible is unable or unwilling to acknowledge the harm (which does not necessarily entail admitting criminal guilt), and where either party is unable to comprehend the proceedings, usually because of substance use or severe mental disorder. Even these may be amenable to change over time.
Most facilitators agreed that certain difficult cases, particularly those involving sexual offending and domestic/intimate partner abuse, presented particular challenges related to trauma and power imbalance. There was no sense however of them being qualitatively different to other cases in terms of how they were approached from a practice perspective - they just require additional care and preparation.
Capacity to facilitate more challenging cases comes with experience. In Scotland, many facilitators are less experienced with these types of case, so are more concerned about risk and their capacity to facilitate these; facilitators in other jurisdictions with experience around facilitating in cases involving more severe harm are much more confident taking on more difficult cases.
Facilitators rarely used formal risk assessment processes, and none appeared to use, or have, validated risk assessment tools in relation to restorative justice, although some may use informal ‘checklists’ of factors. Professional judgment and a case-by-case approach, sometimes with advice and support from other professionals, was the key element in assessing and mitigating risks. Given this, and the individual nature of ‘risk’, it was usual to consider risks and mitigating measures simultaneously, not sequentially. In assessing risk, they focus on risks related to the restorative justice process itself, rather than more general risks, such as risk of re-offending. They would also adopt a restorative approach to assessing risk, such as through raising and discussing potential risks and their mitigation with participants.
Facilitators valued the advice of other professionals, such as prison officers, social workers and psychiatrists, and (in some cases) these professionals’ work supporting parties in restorative justice meetings. However, in making decisions about restorative justice, facilitators’ own judgment and the views and needs of the parties (principally the person harmed) were seen as more important.
Facilitators use a range of measures to mitigate potential risks. The single most important measure is simply preparation with the people involved, through a series of ‘pre-meetings’. All facilitators used these meetings to prepare each party for the restorative justice process, and identify and mitigate particular risks; more difficult cases were generally seen as requiring more pre-meetings.
Communication difficulties which could affect the process included language barriers as well as those related to mental illness or the youth of the parties. Facilitators used a range of methods to overcome these, including interpreters and supporters as well as non-verbal communication techniques.
While some types of case, such as those involving young people, communication difficulties or large groups, might require extra preparation, these cases (like more difficult cases) were not seen as fundamentally different to any others.
Many participants want supporters present at face-to-face meetings, and so facilitators invited these people into the restorative justice process as ‘supporters’. These could be friends and family of the participants or sometimes professionals (e.g. therapists or social workers). While this was seen as useful, care was needed in order to avoid power imbalances or inappropriate interventions from supporters.
There was varied evidence on the practice of using follow-up measures after the meeting, though this was seen as very desirable. While some facilitators iv check in with the participants afterwards, others are content simply to provide contact information and solicit feedback.
It was common for facilitators to work in pairs on a given case, particularly where the case is risky, complex or involves many people. This ‘co facilitation’ is particularly valuable for gaining complementary perspectives as well as for training newer or less experienced facilitators, who can ‘shadow’ a senior colleague.
The physical space in which a meeting occurs is very important. Preferably this would be an accessible and neutral space with no links to criminal justice or to either of the parties, and conducive to an atmosphere of safety and calm. It should have at least one ‘breakout room’ for parties to prepare and take breaks.
Facilitators generally felt that their training had prepared them adequately for facilitating restorative justice, but this training had not always been well evaluated.
Restorative justice is not suitable for all people or all cases. However, it is worth remembering that for some people harmed by offences, the risks of not engaging in restorative justice may outweigh the risks of doing so.
Suggestions
We do not advise the adoption of formal risk assessment processes in restorative justice. This would risk compromising the individual-focused ethos of restorative justice, and could have harmful consequences by imposing risk categories ‘top down’ on cases. Tools should particularly not be imported from other criminal justice processes, where the aims and purposes are likely to be different. There must be an acknowledgement that every case is different - the most serious offences may be relatively straightforward in restorative justice terms, while apparently minor crimes may hide unexpected risks. However, checklists, tailored to the specific restorative justice services, may function as a useful aide memoire for practitioners in considering the types of issues and factors that should be considered when assessing and mitigating risks.
‘Pre-meetings’ are the key measure for identifying and mitigating risks. Without introducing undue delay, adequate time must be allowed for a preparatory meeting or meetings ahead of the restorative justice process. This is particularly true for more difficult cases.
Restorative justice services will need to be flexible in accepting referrals at different stages of the criminal justice process and afterwards, to allow for cases of serious offending where the person responsible is serving or has served a custodial sentence.
Where necessary, resources should be made available for communication support in restorative justice (interpreters and/or supporters). Non-verbal tools such as picture cards may also be helpful for supporting communication.
Edinburgh: Edinburgh University, 2022. 98p.
