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Abstract

Despite policy and guidance stating that all victims of crime should have ‘equal access’ to restorative justice in England and Wales, victim participation remains low. Here, the ways in which criminal justice agents – responsible for providing victim services, including restorative justice – offer restorative justice to victims are explored. Drawing upon empirical data collected from criminal justice organisations in two police force areas, this article outlines what factors lie behind the inconsistencies found across police forces in terms of structure and delivery of restorative justice. Work pressures, differing views of the suitability or effectiveness of restorative justice and a lack of systematic guidance that underpins the work culture of criminal justice organisations all impede victims’ access to restorative justice. This paper concludes with recommendations for embedding a culture of restorative justice within criminal justice organisations based upon the principles of inclusivity and engagement.

Keywords

Equal access restorative justice organisational culture victim participation

Introduction

Since 2012, there has been significant governmental support in England and Wales in relation to developing and expanding the use of restorative justice within the criminal justice process. This governmental endorsement of restorative justice is evident in the plethora of policies and guidance, alongside financial investment, that have been witnessed since the adoption of the EU Directive (2012). However, despite governmental endorsement of restorative justice as a justice mechanism, in which the Victims’ Code of Practice (VCOP) 2015 (Ministry of Justice (MOJ), 2015) states that all victims are entitled to ‘receive information’ on restorative justice, the number of victims who actually get the opportunity to participate in a restorative justice intervention is minimal.

Research highlights that the recent governmental support of restorative justice as a justice mechanism has not resulted in an increase in victim participation levels in England and Wales (Office for National Statistics, 2021). Victim participation levels have remained stubbornly low and vary nationally – victims are subjected to a ‘post code’ lottery when it comes to being provided with information on restorative justice. Low participation and offer rates raise several pertinent questions: why, despite the development and expansion of restorative justice within the criminal justice process, do so few victims get the opportunity to participate in restorative justice? Why are victim participation levels so low? How actually do criminal justice agents make the offer of restorative justice to victims? And furthermore, do the ways in which the ‘offer’ is made impact upon victim participation?

First, this paper will provide an overview of how restorative justice, since the adoption of the EU Victims’ Directive (2012) is, in policy and practice, implemented and delivered in England and Wales. This overview will illustrate how current policies and guidance have resulted in the patchy integration of restorative justice within the criminal justice process. The ways in which criminal justice agents responsible for providing victim services, including restorative justice, offer restorative justice to victims will be explored. Drawing upon empirical data collected from criminal justice professionals across 13 criminal justice organisations in two police force areas, the factors that lie behind the inconsistencies found across police forces in terms of structure and delivery of restorative justice will be presented. The paper will argue that work pressures, differing views of the suitability or effectiveness of restorative justice as a justice mechanism, and a lack of systematic guidance (that underpins criminal justice organisations’ work culture) impact on whether or not victims are offered the opportunity to participate in a restorative justice intervention. The paper concludes with recommendations for embedding a culture of restorative justice within criminal justice organisations.

Restorative justice as a criminal justice mechanism

In 2012, the EU Directive (Directive 2012/29/EU of the European parliament and of the council) established minimum standards on the rights, support and protection of victims of crime, and stipulated that all victims of crime have the ‘right to receive information from the first contact with a competent authority […] [on] the available restorative justice services’ (European Parliament, 2012: 66). The Directive (2012) was implemented in England and Wales through the VCOP 2015. Since the adoption of the Directive (2012), a number of instruments have been introduced to support the use of restorative justice as a justice mechanism. In November 2013, specific governmental funding (up to £29 million) was provided to Police and Crime Commissioners (PCCs) and charities to help deliver restorative justice for victims over the forthcoming 3 years (2014–2016) (MOJ, 2013).¹ PCCs were expected to either develop or commission a restorative justice service in their area to ensure that restorative justice was available to all victims of crime. Furthermore, within the Crime and Courts Act (2013), the Anti-Social Behaviour, Crime and Policing Act (2014) and the Offender Rehabilitation Act (2014), it was made explicit that courts can use their powers to defer sentencing in order for a restorative justice activity to take place and for the utilisation of restorative justice as an optional activity within a diversionary out of court disposal, a Community Order, or Suspended Sentence Order.

In addition to the financial support and statutory measures evidenced from 2012 onwards, further endorsement of restorative justice was witnessed within the VCOP (2013). The VCOP, initially introduced in 2005 and revised in 2013, included an entitlement for victims to be provided with information from the police on restorative justice and how they could partake. Further revised in 2015, the VCOP stipulated, for the first time, that statutory organisations including the police, youth offending teams (YOT), police Victim and Witness Care units (VWCU) and the National Probation Service (NPS) must provide victims with information on restorative justice (MOJ, 2015). The most recent version of the VCOP (2020) outlines that all victims have the ‘right’ (rather than entitlement) to information about restorative justice. While the police should initially provide this information, all service providers throughout a victim’s journey through the criminal justice process should also provide this information (MOJ, 2020: 16). The 2020 iteration also addressed the previous discrepancy between victims’ entitlements to restorative justice in adult justice compared with youth justice.² All victims now have a right to information on restorative justice either initially from the police (for victims of adult offenders) or from the YOT (for victims of offenders aged under 18) (MOJ, 2020).

In 2012, the MOJ published the Restorative Justice Action Plan for the Criminal Justice System. The Action Plan set out a series of actions to ‘bring about real change in the delivery and provision of restorative justice across England and Wales’ (MOJ, 2012: 1). The Plan acknowledged that despite the ‘well known’ victim-specific benefits, restorative justice was ‘not being used enough’ and aimed to make restorative justice a victim-led process, that, ‘if willing’, all victims could access at any stage of the criminal justice process (MOJ, 2012: 1). Revised in 2013 and 2014, the Plan took into account the ‘evolving criminal justice landscape, the significant progress already made in the development of restorative justice provision and the need to support restorative justice development (MOJ, 2014: 3). The fourth iteration of the Plan (published in 2017) stated that more needed to be done to ensure equal access to restorative justice for victims of crime. The Plan (2017) made a commitment to three main values: equal access (victims should have equal access to restorative justice at all stages of the criminal justice system irrespective of their location, the age of the offender or offence committed against them); awareness and understanding (people should have an ‘awareness and understanding’ of restorative justice and how to access it); and good quality restorative justice (MOJ, 2017: 2). The Victims’ Strategy, published in 2018, stipulated that PCCs needed to ensure that ‘restorative justice services are available in their area’ while also highlighting that victims were not always being offered their entitlement to participate in restorative justice (HM Government, 2018: 32). The financial investment, the legislation, the VCOP, the MOJ’s Restorative Justice Action Plans and the Victims Strategy all illustrate the recent and significant governmental support for restorative justice to ‘provide a solution and deliver justice even in relation to the most serious crimes’ (Herbert, 2011) and to ensure that all victims have the opportunity to participate in restorative justice at any stage of the criminal justice process, if they so wish (as set out in international and national policy and guidance).

Restorative justice and victim participation levels

Prior to 2012, levels of victim participation were, in the main, extremely low in England and Wales. There was no clear consistent approach to the service delivery of restorative justice; evident in a lack of equal access to restorative justice, patchy restorative justice provision and schemes and initiatives established and delivered on an ad hoc basis. A number of evaluations conducted between 2000 and 2012 determined that victim participation levels ranged between 7 and 28% (Crawford and Burden, 2005; Holdaway et al., 2001; Hoyle et al., 2002). It was argued that low participation rates were due to victims simply not being offered restorative justice and poor implementation of restorative justice initiatives or services (Hoyle et al., 2002; Newburn et al., 2002).

Despite international instruments, governmental support and good practice guidance there continues to be ‘recurring shortcomings of the practical application of restorative justice in England and Wales’ with regard to the number of victims that are given, or take up, the opportunity to participate in a restorative justice intervention (Hoyle and Rosenblatt, 2016: 32). Inadequate victim involvement in restorative justice remains an issue (Criminal Justice Alliance, 2019; Hoyle and Rosenblatt, 2016; Victims’ Commissioner, 2016). The Crime Survey for England and Wales (CSEW) (2011–2020) details that only 6.3 percent of victims recall being offered the opportunity to participate in restorative justice (Office for National Statistics, 2021).³

Access to, provision of and service delivery of, restorative justice remains ‘patchy’ for victims of adult perpetrators and many (adult) restorative justice services are hampered by low referral rates (Criminal Justice Alliance, 2019). Victims’ access to restorative justice services is a ‘postcode lottery’ due to a lack of continuity in the provision of restorative justice services, low awareness of restorative justice across criminal justice organisations and how victims are invited to participate in a restorative justice intervention (see Bright, 2017; Criminal Justice Alliance, 2019). Restorative justice is not being utilised to its full potential within the criminal justice system due to it being an optional process that is not fully integrated or mainstreamed within the system (for victims of adult offenders) (Shapland et al., 2011).

In contrast, as first outlined in the Crime and Disorder Act 1998, the youth justice system is (meant to be) underpinned by the restorative principles of restoration, responsibility and reintegration. However, access to, and victim participation in, restorative justice in youth justice also remain disappointingly patchy. While the Youth Offending Service (YOS) may be based upon a restorative ethos of victim engagement and inclusion, restorative justice is still not embedded within YOT practice (HM Inspectorate of Probation, 2016; Hoyle and Rosenblatt, 2016). Victims’ involvement remains a rarity (Hoyle and Rosenblatt, 2016). Low numbers of victims continue not to be given the opportunity to be involved in the youth Referral Order process and victim participation levels have not changed over the past 15 years: YOS restorative justice practices are ‘repeating history’ through the ‘shortcoming’ of ‘inadequate victim involvement’ (Hoyle and Rosenblatt, 2016: 30).

In contrast, other jurisdictions – in which restorative justice is mandatory or ‘partially integrated’ within the criminal justice process – appear to achieve higher levels of participation for cases involving both adult and youth offenders (Dignan and Lowey, 2000). These jurisdictions include Belgium, Austria, Finland, Northern Ireland and New Zealand (Bolivar, 2013; Honkatukia, 2015; Miers, 2001; Shapland et al., 2011).⁴ In these countries, restorative justice is fully integrated within the criminal justice system with a clear referral process (in New Zealand and Northern Ireland restorative justice is statutory for youth offending only).⁵ Therefore, the methods and approaches adopted by criminal justice organisations in England and Wales – responsible for providing victim services, including restorative justice – offer restorative justice to victims, of both adult and youth perpetrators, would appear to impede victim participation.

Methodology

The research was conducted within two of the 43 police forces in England and Wales. Due to the lack of knowledge of the availability of restorative justice in different geographical areas, the two police force areas were selected due to their geographical closeness to one another and the researcher’s connections with the main stakeholders prior to the research commencing (see below). Both police forces’ PCC funded restorative justice services were in their infancy – one police force’s PCC funded restorative service (police force area 1) had been established less than 2 years and the other area (area 2) was newly established (<12 months). Within these two police force areas there was a total of four PCC funded restorative justice hubs (hubs), four VWCUs, three restorative justice Service Delivery Providers (these agencies provided the restorative justice service delivery for the hubs in one of the police force areas), and four teams of restorative justice volunteer facilitators (RJVFs) (one volunteer team for each of the hubs).⁶ There were also seven YOTs and two NPS teams. These agencies were selected as they are the criminal justice statutory organisations that must adhere to the VCOP (and provide all victims with ‘information on the availability’ of restorative justice and ‘how they can access’ restorative justice: MOJ, 2015: 55).

The qualitative empirical field work took place over a 20-month period and included participant observation of criminal justice professionals (93 hours), semi-structured interviews with criminal justice professionals (n = 89) and analysis of official documents. This empirical research was conducted through an interpretive and qualitative framework to determine and understand if, when, and how criminal justice professionals offered restorative justice to victims and how the culture, mechanisms and approaches of criminal justice organisations and restorative justice services influenced and affected victim participation. Conducting semi-structured interviews in tandem with participant observation enabled analysis of both types of data to determine professionals’ routines and their actual knowledge of their actions and routines, capturing and exploring criminal justice professionals ‘operational culture’ compared with their ‘oral culture’ (Waddington, 1999). Semi-structured interviews with professionals (n = 89) included restorative justice hub staff (n = 3) and coordinators (RJCOs) (n = 3), restorative justice service delivery provider managers (SDPs) (n = 3); Victim and Witness Care Officers (VWCOs) (n = 43); RJVFs (n = 19); YOT staff (n = 13: YOT RJ workers n = 8, YOT managers n = 4, YOT police staff n = 1); and NPS staff (n = 5: NPS victim liaison officers n = 2, probation service officers n = 2, NPS offender manager n = 1). Furthermore, semi-structured interviews were also conducted with victims (n = 24) and provided an understanding, from the victims’ perspectives, of their experiences of restorative justice and how the offer of restorative justice was made and received. While convenience sampling was used to select victims, the victim sample included victims who had been subjected to an array of offences – from criminal damage to attempted murder and rape.

Initial research access to both police force areas was secured through the researcher’s own networks (established via connections made during previous research and attending restorative justice events: resulting in opportune meetings with criminal justice professionals and initiating research ‘referral chains’). Main institutional gatekeepers (RJCOs) within both police force areas then acted as ‘locators’; suggesting and recommending suitable research participants and providing initial introductions (Biernacki and Waldorf, 1981). One limitation of this method is the potential for gatekeeper (and self) selection bias. Researcher control over ‘referral chains’, in this study, aimed to minimise bias and ensure the sample was reflective of the ‘general characteristics of the population in question’ (Biernacki and Waldorf, 1981: 155). Gaining access to ‘hard to access’ organisations is usually achieved through the researcher’s ‘relationship with a “connected” person’; in this study, ‘cultivating’ gatekeeper relationships and trust secured ‘unhindered access’ and research assistance (Trulson et al., 2004: 455, 458).

Before outlining and discussing the findings from the study in relation to how, when and if the offer of restorative justice was made to victims and what factors lie behind the inconsistencies found across police forces in terms of structure and delivery of restorative justice, it is important to touch briefly on the findings from the interviews conducted with victims in this study (the victim sample included both victims who elected to participate or declined to participate in a restorative justice intervention). Previous studies (inter alia Shapland et al., 2011; Laxminarayan et al., 2015) have determined a number of victim specific, ‘self-orienting’ (and other-orienting) factors underlying victims’ participation decisions, including fear and offence triviality. In this study, there seemed to be no victim-specific factors that influenced whether victims accepted the offer of, or participated in, restorative justice. However, it is important to note this may have been due to the victim sample being small (n = 24) and heterogeneous. Limitations noted, this finding does provide a small contribution to the limited research on ‘participating’ and ‘non-participating’ victims (Bolivar, 2013; Hoyle, 2002).

In the main, in this study, the offence type and whether or not victims knew their offender did not influence their decision as to whether or not to accept the offer of, or to participate in, restorative justice.⁷ Whether victims knew or did not know their offender appeared to have no influence on their decision to accept the offer or to participate. This finding (limitations acknowledged) contrasts with Bolivar’s (2013) findings which determined victim-offender relationships as an important variable in whether victims elected to participate.⁸ Much like previous studies (see Umbreit et al., 2006; Wemmers and Cyr, 2004), victims cited perceiving the offence as too trivial (even in one grievous bodily harm case) or being too busy as reasons for declining the offer. None of the victims voiced that the gravity of the offence prevented them accepting the offer of, or participating in, restorative justice.

Despite whether the victims, in this study, elected or declined to participate when offered restorative justice, or the final outcome of the restorative justice intervention, they all welcomed and appreciated being offered the opportunity to participate and the majority of victims stated that they would participate in restorative justice in the future. These findings support, inter alia Laxminarayan et al.’s (2015) and Newburn et al.’s (2002) research which determined that the majority of victims are in favour of restorative justice and if given the opportunity and support, many would participate in restorative justice. However, concerningly, the majority of the victims in this study stated that restorative justice was described to them as the opportunity to meet their offender face-to-face; most victims if asked ‘would you like to meet your offender in person?’ are not likely to spontaneously agree but given detailed information, the necessary support and opportunity would participate at some level (direct or indirect) (Hoyle et al., 2002; Laxminarayan, 2014). Hoyle et al. (2002) determined that many ‘non-participating’ victims would, given the option, take part in an indirect restorative justice (rather than a direct, face-to-face) process. Providing victims with correct information that enables them to make an informed decision as to whether to participate or not is vital to the principle of ‘inclusivity’ and to ‘equal access’.

Much like the findings of Shapland et al. (2011) and Van Camp and Wemmers (2016), victims in this study, regardless of the outcome or whether they declined to participate, reported high victim satisfaction levels with the restorative justice process and offer. Furthermore, all the victims (n = 24), when asked ‘if you were a victim of crime again would you consider participating in restorative justice?’ responded ‘yes’. This finding supports that of Shapland et al. (2011: 141), who found that over 70% of victims who participate in restorative justice would recommend the process to other victims. Moreover, interestingly, neither of the victims offered restorative justice on more than one occasion, in this study, expressed any issue with being offered restorative justice several times. Previous research has highlighted professionals’ reluctance to offer restorative justice due to fears of secondary victimisation (see inter alia Laxminarayan, 2014). The impact of ‘multiple offers’ would benefit from further exploration. Acknowledging the limitations, this study’s findings suggest that there seems not to be any victim-specific factors that influence whether or not victims elect to participate in restorative justice. So, we can now turn to the criminal justice organisations and professionals themselves to explore what factors influence the offer and participation levels.

Drawing exclusively upon the empirical data collected during this study, there are numerous disparities in the ways in which criminal justice agents offer restorative justice to victims, which include the method of invitation, the timing and the frequency of the offer. The main reasons for these ‘offer’ disparities are work pressures, differing views and a lack of systematic guidance that underpin the work culture of criminal justice organisations – all impact on whether or not victims are offered the opportunity to participate in restorative justice.

The approaches that professionals adopted to inform victims about restorative justice differed significantly between and within the organisations in both police force areas. There was no uniform approach to the service delivery of restorative justice between or within the organisations that participated in this study (see also, Hoyle and Rosenblatt, 2016; Laxminarayan, 2014; Shapland et al., 2011). The approaches adopted ranged from victims being selected based on offence type, victim characteristics, only accepting victim-initiated case-referrals or only offering restorative justice to victims of offenders who displayed remorse.

The method of invitation

Analysis of official documents alongside interview and observational data determined that the method of invitation differed between and within the organisations and ranged from sending victims opt-in letters, inserting leaflets within victim correspondence, informing victims over the telephone or face-to-face or just not providing victims with any information on restorative justice whatsoever. While a number of the criminal justice organisations provided victims with written information on restorative justice, there was neither any continuity nor consistency between or within criminal justice organisations or teams as to what written information would be provided, how or when. Restorative justice was either an additional piece of information included within the generic written correspondence sent to victims or a separate leaflet which was either included within the generic victim correspondence or sent separately (mainly following a conversation with the victim).

Many professionals were able to use their discretion (and did) as to whether or not to provide written information to victims and routinely decided whether to include or exclude restorative justice information from victim correspondence. Criminal justice professionals’ decisions to include or exclude written information on restorative justice were based on a number of factors including whether they (individually or organisationally) perceived the restorative justice information to be unnecessary/necessary or unsuitable/suitable. Many professionals (both restorative justice specialists and criminal justice generalists), when interviewed, voiced it was inappropriate to provide victims of certain offences (domestic violence or sexual offences) with information on restorative justice, and therefore edited victim correspondence to exclude restorative justice. Despite restorative justice leaflets being available for all the VWCOs to include within the generic victim correspondence, very few were observed, during the field research, doing so. Whether professionals actually ‘forgot’ to include the leaflet or whether they intentionally did not insert the leaflet into victim correspondence was unclear. Despite national guidelines on ‘equal access’ for all victims, the professionals developed their own ‘exclusion criteria’. Previous studies by inter alia Marder (2020: 500), Wigzell and Hough (2015) and Laxminarayan (2014) also determined that criminal justice professionals adopt exclusion criterion – as a result of either personal or organisational attitudes – and implement and offer restorative justice in a ‘selective, discretionary manner […] case by case’.

To ‘opt in’ or to ‘opt out’?

Analysis of the written information (letter or leaflet) sent out to the victims (of adult offenders) in this study determined that victims were not directly invited to participate in restorative justice – it was essentially an opt-in method (victims had to actively respond to the written correspondence). In the main, the written correspondence was not followed up by a phone call. However, for victims of youth offenders, a number of YOTs did provide an opt-out service but the method of invitation varied across the YOTs; impacting upon levels of victim participation.

There was an absence of victims (of adult or youth offenders), who called the organisations to discuss the option of restorative justice on the back of written information (provided in a letter or leaflet), as determined from the observations conducted with the criminal justice organisations and victim interviews. This illustrates that only offering an opt-in service is not conducive to securing victim-initiated restorative justice referrals and that written information is not enough alone to prompt victims to request additional information on restorative justice. Opt-in methods of invitation place the responsibility on the victim to obtain further information on restorative justice – a process that until receiving the letter they may have had little prior awareness of (Wigzell and Hough, 2015). The offer needs to be proactive and ‘as interactive as possible to engage the parties’ (Laxminarayan, 2014: 156).

The telephone call

While victims, in this study, were subjected to differing forms of opt-in written information on restorative justice, both police force areas (restorative justice services, hubs and VWCUs) mainly made contact with victims (of adult offenders) via a telephone call. When asked how they were offered restorative justice, only a small number of victims interviewed (n = 4) could recall receiving any written information on restorative justice; over half of the victims (n = 14) recalled being offered restorative justice over the telephone; several recalled being offered restorative justice face-to-face by the police, while several of the victims had requested restorative justice themselves (by telephone). When asked how they were first offered restorative justice and what their thoughts were when offered, none of the victims mentioned that the method of invitation had impacted on their decision or whether they felt that one method in particular was more impactful. However, the fact that only a small number of victims recalled receiving written information compared with over half recalling the telephone or face-to-face method of invitation suggests that victims who have the opportunity to discuss restorative justice with a professional are more likely to accept the invitation – when victims (of both adult and youth offenders) were merely expected to opt-in through a letter of invitation they rarely did so.

Findings from the interviews conducted with victims alongside previous research demonstrate that while written information is ‘a common way of providing victims with information’ and may introduce the concept of restorative justice, alone they ‘do not appear to be very effective [… ] [and] are not proactive enough’ (Laxminarayan, 2014: 156). A telephone or face-to-face conversation is the preferred method of invitation and secures the highest levels of awareness and participation (Bright, 2017; Victims’ Commissioner, 2016). The most important factor is that there is sufficient time for victims to have personal contact with a restorative justice facilitator to hear about the process and ask questions (Shapland et al., 2011); that ‘victims are, through ‘talk’ with a knowledgeable professional, well informed’ (Laxminarayan, 2014: 156).

Regardless of the method of initial invitation, all the victims, in this study, notwithstanding whether they elected to participate in restorative justice or not, appreciated the offer – the opportunity to participate in restorative justice and to be part of the decision-making process. Victim satisfaction was achieved even when victims only had an initial introductory restorative justice conversation.

The offer void

Professionals, in this study, did not routinely offer restorative justice to victims (of adult and youth offenders). Content analysis of documents and the semi-structured interviews with NPS staff determined a complete void for the victims of serious offences (victims who are, post-sentence, allocated an NPS Victim Liaison Officer (VLO) due to the severity of the offence committed against them) – in being providing with any written information on restorative justice. Restorative justice was only mentioned to victims when NPS VLOs chose to directly discuss it – following clear triggers and indicators from victims that they wished to communicate with their offender, or if the NPS service officers and NPS offender manager informed NPS VLOs that offender(s) displayed ‘sufficient’ signs of remorse. Although the NPS VLOs stated that they offered their victims restorative justice when they (the victims) provided ‘indicators’, in practice it appears that even when victims indicated a desire to communicate with their offender they were not always offered restorative justice. In the NPS interviews, one NPS VLO discussed the case of a victim she had worked closely with over a long period. The victim had regularly requested to communicate with her offender but the NPS VLO denied her the opportunity; she deemed it inappropriate. The victim finally accessed restorative justice by making a self-referral via her newly established local PCC funded restorative justice hub (confirmed within an RJCO interview).

Many professionals, from across all the organisations in the study, stated that they selected certain victims, ‘ideal restorative justice victims’, to whom to make the offer. They did not make ‘proactive and systematic’ offers to victims, instead they made ‘protective and selective’ offers (Van Camp and Wemmers, 2016) based on a myriad of factors including whether they felt the victim was too upset or too angry, engaged well, displayed altruistic tendencies or was a victim of certain ‘ideal’ offences such as burglary or assault. This ‘stilted notion of victimhood and victim vulnerability’ resulted in professionals, in this study, selecting the ‘ideal restorative justice victim’ based on hierarchies of victimhood which ignored victims’ resilience and which denied ‘voice to victims’ (McAlinden, 2014: 191). Victim selection criteria emerged as a theme both during the interviews with professionals and participant observation. Professional disregard of victims’ resilience and ‘non-standard’ victims being perceived as potentially problematic has previously been highlighted by Walklate (2011) and Dignan (2005: 168). As suggested in previous research (see Maglione, 2017; Shapland et al., 2011), consideration of whether a case is suitable for restorative justice should be made case by case, not through socially constructed case categories and construction of ‘ideal restorative justice victims’. The construction of an ‘ideal restorative justice victim’, by professionals in the current study, resulted in victims being disempowered as they were not given the opportunity to make ‘real choices’ and were not given equal access to restorative justice, as stipulated within the Restorative Justice Action Plan (Ministry of Justice, 2014).

Other reasons that criminal justice professionals gave for not offering restorative justice included a lack of confidence in their own decision making, lack of awareness of restorative justice, that it did not seem like the right time and that they simply just ‘forgot’. Many criminal justice professionals voiced and were witnessed ‘forgetting’ to make the offer of restorative justice; it was just another thing to remember. For one VWCO, it was a ‘bolt-on […] a nicey-nicey add on’ in the victim toolkit that they could use if and when it was thought appropriate. For another, it was ‘an ideal additional service’. Restorative justice was not perceived to be a mandatory victim service (in that criminal justice professionals had to, as part of the job role, ensure they offered victims restorative justice). Unlike the Victim Personal Statement (VPS) (which criminal justice professionals have to ensure is in place before sentencing),⁹ there was no concrete deadline by which to make the offer of restorative justice. The flexibility of when to make the offer appeared to contribute to restorative justice being forgotten or perceived as non-mandatory – an optional extra. Even within youth offending restorative justice was not perceived to be a core priority of professionals’ roles. This, it can be argued, was due to restorative justice still being seen as a ‘bolt-on’ process that merely sits on the periphery of the criminal justice process – therefore not an essential. To embed restorative justice within the criminal justice process, clear structures and guidelines are necessary (see inter alia Laxminarayan, 2014).

The timing of the offer: too late?

Is there a right time to offer restorative justice and does the timing of the offer impact on whether victims elect to participate in restorative justice? The VCOP (2015) ‘victim’s journey through the criminal justice system’ infographic stipulates that there are three stages during a victim’s journey through the criminal justice system when restorative justice should be offered (this does not mean that restorative justice cannot be mentioned at other junctures, merely that the VCOP outlines three specific points when restorative justice should be offered to victims): (1) when the victim is told that the offender has been arrested; (2) at the stage when they are informed about the offender’s plea and where there is a guilty plea; (3) when the victim is informed of the sentence and provided with an explanation of the outcome. Despite the removal of the infographic from the latest VCOP (2020), the revised VCOP stipulates that ‘all service providers must consider whether […] (the victim) would benefit from receiving […] information (on restorative justice) at any stage of the criminal justice process’ (Ministry of Justice, 2020: 16, emphasis added).

Many of the criminal justice professionals, in this study, expressed when interviewed that they felt that the most appropriate time to offer restorative justice was at the final stage, when they informed the victims of the final sentence outcome. They felt that offering victims restorative justice pre-charge was too soon as there had not yet been a guilty plea or confirmation that the suspect would be charged and they were reluctant to make an early offer for fear of causing distress to the victims and consequently tended to wait until the court/sentence-outcome stage. They stated (and were observed doing so) that they largely only made a pre-court offer of restorative justice to victims (of adult offenders) who provided verbal cues in the form of triggers and indicators that they wished to have communication with the offender to gain answers. Laxminarayan’s (2014: 49) international restorative justice evaluation also found that many criminal justice professionals left it until after the court process to make the offer as they ‘did not always feel’ there was ‘a practical moment to introduce’ restorative justice: there was ‘no set protocol when the referral [or offer] should be made’. Victims of young offenders, in this study, were also mainly only offered restorative justice post-sentence, once the YOT began working with the young offender following sentencing.

While it can be argued that offering restorative justice in the immediate aftermath of the offence is too soon (even though Van Camp and Wemmers (2016) posit that victims do not mind being offered restorative justice at this stage, as long as it is done sensitively); waiting until the end of the court process to raise the subject of restorative justice can be too late. It can be contended that victims, at the time of being informed of the sentence outcome and severing their contact with the criminal justice system and their VWCO (who has been their single point of contact throughout their journey through the criminal justice process), are digesting a significant amount of information at this final stage. They are being informed of the court/sentence outcome, how they will receive their compensation (if awarded), the process of being allocated a NPS VLO (if the offender has been sentenced to 12 months or more for the offence committed against them) and any additional signposting to victim support services. The amount of information that victims are having to process at the end of their journey through the criminal justice system is comparable to the amount of information they must digest at their entry point into the criminal justice process. Shapland et al. (1985, 2011) outlined the importance of the timing of making an offer (to offenders) of restorative justice: if done at a time when they were ‘overwhelmed’ with an array of information it may adversely affect participation levels. Moreover, Shapland et al. (1985) found that by the time victims had been through the criminal justice process a number would not report a crime again and had reached saturation point.

The findings from the victim interviews conducted in this study suggest that there is not an optimum time to make the offer of restorative justice to victims – further supporting the argument for an ‘early’ offer. The majority of victims in this study felt that the offer did not come too soon (even for the victims who were offered restorative justice at various stages prior to the court-outcome stage) – that the offer was made at the right time. This suggests that there is no one ideal time or stage within the victim’s journey through the criminal justice process to mention restorative justice to victims. While there appears to be no optimum time to offer restorative justice, making an initial offer of restorative justice at either court-outcome or post-sentence stage can be too late. It can be argued that waiting until case conclusion may result in low levels of take up owing to victims being reluctant to engage due to becoming disenchanted with the criminal justice system. Moreover, only making the offer at court-outcome or post-sentence will ensure that restorative justice is never fully integrated into the criminal justice process.

Multiple offers – do victims mind?

There was a reluctance among the criminal justice professionals in this study to persuade or to make the offer of restorative justice more than once. Victims were selected as ‘ideal’ for restorative justice based upon the ‘frozen’ snapshot taken by professionals of victims’ pain and punitivity (McAlinden, 2014: 191). This ‘frozen’ singular snapshot appeared to influence professionals’ decision as to whether they should make the offer of restorative justice (either at all, or at multiple times). Two of the victims recalled being offered restorative justice on more than one occasion. Neither of these ‘multiple offer’ victims expressed any issue, annoyance or distress with being offered restorative justice several times. Victims rarely spontaneously agree to take part in restorative justice or voice a desire to meet their offender[s]; practitioners need to actively encourage victims – through making the offer – to participate in restorative justice at different stages within the criminal justice process (Honkatukia, 2015; Hoyle, 2002). Participation needs to be seen as a continuum (Hoyle, 2002).

Rather than choosing one moment in time, the offer should be provided regularly at different stages of the process […] Not only would this ensure that parties get to hear about the offer, but also when the timing is bad, they will have another opportunity to engage in a restorative procedure. (Laxminarayan, 2014: 49)

The impeding factors behind the inconsistencies

What factors lie behind the inconsistencies and lack of continuity, found in the study, in how and when victims are offered restorative justice? What are the compounding factors that result in victims not having ‘equal access’ to restorative justice at all stages of the criminal justice system? The study found that work pressures, differing views of restorative justice as a justice mechanism, lack of systematic guidance and work culture all impacted on whether victims were systematically and proactively invited to partake in restorative justice by criminal justice professionals and what service delivery method was adopted.

Work pressures

Many victims remained ignorant of the possibility of restorative justice, and victims’ involvement, or lack of involvement, was based upon several factors that included funding and staffing levels within criminal justice organisations. While specific restorative justice funding was provided to PCCs and charities (in 2013–2016) to ensure that restorative justice was available for all victims this funding was only short-term, focused on implementing restorative justice services for adult victims, and came at a time that when criminal justice organisations had already faced several years of austerity and funding cuts. All the criminal justice teams, in this study, bemoaned (in interviews and observations), how they were subjected to either fixed term funding issues or funding cuts and when faced with funding issues and staff shortages made decisions regarding how they would, and to whom they should, offer restorative justice. Staffing levels impacted not only upon the victim selection process but also the method of invitation adopted.

Funding issues had a detrimental effect on the ability of staff to include restorative justice within their day-to-day routine. Funding cuts had reduced many of the agencies’ staffing levels and many stated that as an outcome of cuts to funding they lost dedicated restorative justice specialists – many of the restorative justice workers’ positions (within all the criminal justice organisations) had been either short-term or seconded positions and when these positions or funding expired, they were not always replaced. Managers across the criminal justice agencies, when interviewed, lamented the loss of restorative justice trained staff and invaluable specialist knowledge. The result was the incorporation of restorative justice into the normal daily workload of the remaining members of staff – for many staff, restorative justice was an additional responsibility that they were expected to include within their workload. Professionals voiced that funding issues and staff issues impacted upon professionals’ ability to deliver a restorative service in line with national guidance, resulting in the implementation of a reduced service where victim case-selection methods were introduced (such as only selecting victims of specific offence types or changing the method of invitation from phone call to letter only).

The issue with fixed term funding is that it results in a ‘competitive bidding culture’, uncertainty relating to future funding and insecure, short-term contracts and staffing levels. These issues caused by the ‘fragility’ of fixed term funding and funding cuts militated against the ability of services to deliver a consistent and secure service (see Miers, 2001; Shapland et al., 2011).

Differing views

The interviews with criminal justice professionals determined that some did not perceive informing victims about restorative justice and offering them the opportunity to participate as their job. Several VWCOs questioned whether offering restorative justice was fundamentally their responsibility. Some professionals felt that they did not have the experience or knowledge to provide victims with information on restorative justice and voiced a lack of confidence as a factor as to why they failed to invite victims to participate in restorative justice. One member of the YOT viewed it as ‘too emotive’ and did not believe that victims wanted to get involved in restorative justice. Several other professionals expressed concern that making the offer of restorative justice may cause revictimisation. Not only did individual professionals have differing views, which ranged from being a key advocate to not viewing restorative justice as an effective alternative justice process, so too did criminal justice teams as a whole.

Lack of systematic guidance

Many criminal justice professionals voiced in the interviews that they did not see restorative justice as an integral part of their role due to it being a relatively new process (for VWCOs and NPS) that was not embedded and lacked any set formal procedure. Criminal justice managers appeared, from the interview analysis and participant observation, to leave it to their staff to use their ‘discretion’ as to when, how, or if to make the offer of restorative justice. Therefore, restorative justice was seen as an added extra, ‘a bolt on’, instead of being a fundamental part of their role that must be offered if they are to comply with VCOP (2015) requirements. As discussed above, many questioned whether it was their role to provide victims with restorative justice information.

This questioning as to whether they were the right people to be discussing restorative justice with victims, may be due to the lack of formal process and awareness of their responsibilities under the VCOP. This lack of awareness that they were statutorily obligated to provide victims with information on restorative justice was also found in Shapland et al.’s (2017) recent research on developing restorative policing. Shapland et al. (2017) found that the VCOP requirement to provide victims with information about restorative justice and how they might take part had not filtered through to police officers and there was a lack of understanding that it was their responsibility as police officers to ensure that this information was relayed to victims.

This lack of awareness that as criminal justice professionals they were responsible for providing victims with information on restorative justice suggests that restorative justice may need to be included either as a key performance indicator within staff appraisals or at team briefings to ensure that it is not just an optional extra service that requires no explanation as to why it has not been offered or referred (see also Bright, 2017; Wigzell and Hough, 2015). Furthermore, as discussed above, restorative justice does not have a mandatory deadline by which the offer should be made. It can be argued that due to the VCOP stating three different junctures at which restorative justice should be offered and there being no mandatory deadline by when to have made the offer, the offer can be delayed and professionals can use discretion regarding when or whether to make the offer. However, very few criminal justice professionals in the study seemed to be aware that it was a statutory duty to provide victims with information on restorative justice, let alone knew that there were three different specific junctures when victims should be made aware that they could participate in restorative justice.

The lack of formal process led to criminal justice professionals, in the study, needing to be nudged and prompted by RJCOs to discuss restorative justice with victims. In the hubs where the RJCOs were co-located within the same office (not all the RJCOs were co-located), the RJCOs were witnessed proactively directly and indirectly nudging the VWCOs on a regular basis. Co-location allowed prompting and nudging to take place face-to-face, as RJCOs were able to feed into VWCOs’ daily and weekly briefing sessions, and moreover RJCOs were also able to listen to VWCOs telephone conversations with victims and, as observed, prompt and nudge the VWCOs to offer restorative justice to victims. RJCOs also described how they scoped cases and indirectly prompted and nudged by ‘flagging’ suitable cases (particularly post-sentence cases) on the police and witness computerised management systems.

These direct and indirect nudges appeared to encourage and remind criminal justice professionals to mention restorative justice to victims. Many of the VWCOs discussed in the interviews how the RJCOs used these forms of encouragement and how it prompted them to consider making the offer of restorative justice. Moreover, during the observations, RJCOs were witnessed applying these direct and indirect forms of encouragement. However, this nudging and prompting did not result in all victims being systematically provided with information – from the findings of the interviews and observations undertaken with the RJCOs and VWCOs no amount of nudging improved the likelihood of some professionals offering restorative justice to victims. While the use of these direct and indirect nudges and prompts by restorative justice staff to criminal justice professionals is not new, these findings provide further support to the findings of Shapland et al.’s (2011, 2017) study that case extraction increases referral numbers. Furthermore, Shapland et al. (2017) proposed the use of electronic prompts and referrals routes to encourage police referrals and foster VCOP compliance.

Culture

The culture of the organisations in the study also influenced whether victims were notified. The observations and interviews highlighted how the culture among some organisations was offender-orientated or was based on a culture of victim protectionism – this impeded professionals’ ability to adopt restorative justice. Where there was a culture of restorative justice being seen favourably and where there were dedicated restorative justice workers, victim engagement was found to be higher. The co-location of restorative justice hubs within criminal justice agencies ensured that restorative justice did not get forgotten and that a culture of restorative justice was able to breed, enabling professionals to adopt restorative justice into working practice through gentle ‘nudging and prompting’.

The culture of the agencies appeared to impact significantly upon the use and endorsement of restorative justice by individual professionals and was heavily influenced by both managers and by individual staff members. It was evident from the interviews and observations that in the agencies or teams where the manager was a restorative justice advocate, restorative justice was embedded within the culture of the organisation and daily practice. Wigzell and Hough (2015: 57) also found, in their study, in the sites where restorative justice was successfully embedded and being practised, ‘there was a palpable sense of commitment and enthusiasm about restorative justice […] that was evidently lacking in other areas’. It was evidenced both visually and orally, within several teams in this study, that there were a number of enthusiastic individual staff members who fought for restorative justice to be embedded and who actively encouraged their colleagues to incorporate restorative justice practice into their daily work routine. These enthusiastic individuals perceived restorative justice to be an integral part of the service their organisation delivered; they acted as ‘champions’, encouraging colleagues and managers to embrace restorative justice.

Shapland et al. (2011) also found in their research that culture impacts on referral rates and hence victim participation. The YOTs in Shapland et al.’s (2017: 52) research had very different cultures – also found in this study – which contributed to whether or not victims were offered restorative justice: ‘the separate identities and preferences of the […] YOTs […] resulted in quite different rates of (restorative justice) referral’. Differing cultures can prevent the development of a common ‘ideology of unity’ (Crawford, 1994: 504). Furthermore, the organisational ethos and culture appeared in some of the criminal justice organisations, in this study, to be based upon a ‘managerialist criminal justice agenda’ and fixated upon a ‘governance of risk’ (McAlinden, 2011: 383). This appeared to result in the selection of ‘ideal restorative justice victims’; ‘selected in’ rather than ‘selected out’ based on risk, though it was not clear exactly what risk was being envisaged (to the agency? to offenders? or to victims?).

The current culture found within criminal justice organisations negatively impacted on victims having equal access to restorative justice.

Conclusion

The findings of this study present a picture of victim exclusion through protective and selective criminal justice professionals’ discretion and decision-making processes. Victims are not, despite a plethora of international and national instruments introduced over the past decade, given ‘equal access’ to restorative justice. A lack of systematic guidance on how and when to offer restorative justice enables professionals to use discretion and make subjective decisions on behalf of victims. This lack of systematic guidance results in professionals being able to ignore guidelines and policies, allowing them to ‘select in’ victims who they deem ‘ideal’ restorative justice victims. ‘Ideal’ victims are selected based upon victim, offender and offence specific factors and criminal professionals’ (individual and/or organisational) differing views on restorative justice as a justice mechanism. Work pressures, differing views and a lack of systematic guidance underpin the work culture of criminal justice organisations and impede professionals’ ability to fully integrate restorative justice into the working life of the criminal justice system.

Counteracting this culture requires adoption of a culture of restorative justice that sees victims as active and agentic subjective beings rather than just passive components of the criminal justice process. A restorative culture would be based upon the principles and values of inclusivity, engagement, agency, procedural fairness and empowerment that give victims a voice and allow them to be part of the decision-making process through being able to make informed choices as to whether they wish to participate in a restorative justice process. Victims should have the opportunity to engage in restorative justice at various stages – there is ‘no right time’ to provide victims with information on restorative justice. The offer should, as should participation, be a continuum which enables victims to participate when it is the ‘right time’ for them.

Embedding a culture of restorative justice within the conventional criminal justice system, through the adoption of and adherence to a standardised restorative justice process (of informing victims of restorative justice), will significantly aid in ensuring that restorative justice becomes an integrated and integral process that forms part of the complete justice package for victims rather than leaving restorative justice as an additional ‘optional extra’ to the criminal justice system.

Footnotes

Acknowledgements

This research was funded by an Economic and Social Research Council PhD studentship, grant number 1654852.

Notes

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Just an ‘optional extra’ in the ‘victim toolkit’?: The culture,mechanisms and approaches of criminal justice organisations delivering restorative justice in England and Wales

Abstract

Keywords

Introduction

Restorative justice as a criminal justice mechanism

Restorative justice and victim participation levels

Methodology

The method of invitation

To ‘opt in’ or to ‘opt out’?

The telephone call

The offer void

The timing of the offer: too late?

Multiple offers – do victims mind?

The impeding factors behind the inconsistencies

Work pressures

Differing views

Lack of systematic guidance

Culture

Conclusion

Footnotes

Acknowledgements

Notes

References