Requirements for successful operation of restorative justice programmes

Requirements for Successful Operation of Restorative Justice Programmes

Although there are many types of restorative justice programmes, each with their own mode of operation and experience of success, several lessons have been learned over the years about the main factors responsible for their successful implementation and operation. Key among them are the promotion of appropriate referrals to the programmes and awareness-raising about restorative options, the safe and meaningful engagement of victims, adequate preparation of participants, competent facilitation of the process, effective programme support and positive community relations.

Promoting Appropriate Referrals to a Programme

Referrals to programmes can originate from the police, prosecutors, corrections officials, non- governmental agencies and other community sources, as well as self-referrals by either the victim or the perpetrator. In many jurisdictions, the guidelines and criteria for referring cases are set out in legislation, while in others, the referral process is established in policy or inter-institutional agreements or protocols.The way the offer is made to a victim and offender to participate in a restorative justice pro- gramme is very important, whether made by a police officer familiar with the programme, a counsellor, a victim service worker or a respected community member. It is critical that victims see the restorative process as meeting their own needs rather than seeing themselves being used for the benefit of the perpetrator's rehabilitation.

Participation in restorative justice should always be based on free and informed consent of the victim and the offender, which can be withdrawn at any time during the process. No undue pressure should be placed on anyone by "selling" the process to them through unrealistic claims about its benefits or by stating that the process may take place with or without them, in which case they would be left out of it completely. The consent of victims refers to their own partici-pation in the process, not to whether or not a process can take place (e.g., with other victims, or without the participation of a victim).

The "case extraction" model, which refers to the "process of proactively selecting cases from criminal justice databases which are believed to have the greatest potential to result in a restora-tive justice activity", is often presented as the most effective approach for generating suitable referrals. Under such a model, the personnel or the office responsible for the restorative justice programme has access to police and court data on offences, offenders and victims. This model raises some issues about the protection of the privacy of individuals involved, particularly the victim or the young offenders, and the confidentiality of the information that is being accessed for the purposes of the programme. Nevertheless, protocols can be developed for the case extraction process to be managed while protecting the confidentiality of the information and the privacy of all involved.

Programmes are often built on a misguided assumption that "if we build it, they will come". However, programmes are generally only successful if attention has been given to developing strong and clear referral mechanisms and procedures, as well as clear agreements among law enforcement and criminal justice officials, about how and when they will use their discretion to refer cases to a restorative process.

When designing a new programme, one must take very seriously, and address, the legitimate concerns of officials who ultimately are accountable for these referral decisions and how they are perceived by the victims and the community. Ideally, these officials should themselves be involved in the development of the programme and the elaboration of its referral criteria and procedures so that they may develop a personal sense of ownership over the programme and its future success.

The Basic Principles identify four major criteria for designing a referral process within the criminal justice system:

• Sufficient evidence: The referral should only be made where there is sufficient evidence to charge the offender.
• Free and voluntary consent: The referral should only be made with the free and volun- tary consent of both the victim and the offender. At the time of the initial referral, however, the free and informed consent of both parties may not have been determined and securing that consent then becomes the first prerequisite to be met before pro- ceeding any further.
• Power imbalances: Disparities leading to power imbalances among the parties should be taken into consideration in referring a case to a restorative process. In cases where the referral is made despite potential power imbalances, this fact must be brought to the attention of the programme facilitators and taken into consideration in the conduct of the restorative process.
• Cultural differences: Cultural differences among the parties should also be taken into consideration in referring cases to a restorative justice process. Various strategies can be used to ensure that a restorative justice process responds to the culture of partici- pants, including using facilitators with the same ethnicity as participants, ensuring that facilitators are aware of and know how to accommodate participants' cultural practices, or ensuring that participants are aware of cultural differences and how these may or may not be accommodated. Keeping in mind that the victim's preference should normally prevail, discussion and negotiation are often necessary when the victim and offender are of different cultures or have different views about how their cultural practices should be reflected in the process.

Where a case involves multiple victims and offences, each victim should be given the choice to participate in that process and a say in whether they would prefer a joint or separate process. The fact that one victim does not agree to participate in a process should not prevent other victims from doing so to address the harms caused by the offences committed against them.

Referral criteria, procedures and forms can be designed in such a way that they facilitate the examination of these various aspects of each situation by those responsible and accountable for the referral decision. In some instances, facilitators may need to work these issues through with participants at the pre-conference stage. In other instances, it is incumbent upon the referring agency to exercise due diligence and to establish that a referral to a community-based process is not placing the victim or the offender at risk of victimization or intimidation. A careful assess- ment of the risks involved for the parties and the suitability of the programme for the individu- als involved must take place. This often requires examining, prior to contacting potential participants, all available information relevant to the risk of harm during a restorative process (e.g., relating to prior incidents, mental health needs, substance abuse issues).

Improving Referral Mechanisms

Poor referral mechanisms and poor referral rates are often responsible for the poor performance or the failure of restorative justice programmes. There are different ways in which programme managers can promote effective referrals from the community and from the various levels of the criminal justice system.

• Articulation of clear referral guidelines on procedures and criteria: The criteria and proce- dures for admission in the programme must be clear and well communicated to all those in a position to refer cases to the programme. Victims must be informed of the availability of the programme and what it can offer to them.
• Ongoing consultations: The referral process should be enhanced by ongoing consulta- tions and communication to encourage justice personnel to refer appropriate cases to the programme and to proactively identify cases via a search of agency files.
• Development of interagency cooperation protocols: Specific interagency protocols can be established, preferably in advance of launching the programme or as the latter is being implemented. These protocols can guide the selection of cases for referral and set out eligibility criteria. It will also determine the procedures to be followed in delivering the programme under various circumstances (e.g., when the consent of one of the parties cannot be obtained, when an agreement cannot be arrived at, when one of the parties decides to withdraw from the process, or when an offender fails to comply with the terms of a mediated agreement).
• Data sharing protocols: It is particularly important to develop data-sharing protocols with criminal justice agencies to facilitate the identification of potential cases and participants, while protecting confidential information. Difficulties frequently arise con- cerning the non-disclosure of confidential information concerning the victims or the offenders (particularly when they are children and youth). This can impede the fre- quency of referrals, the quality of collaboration between agencies and ultimately theoverall success of a programme. These issues ought to be resolved as much as possible during the negotiation of inter-agency agreements while the programme is being developed.
• Development of procedures for suitability assessment: There may be considerable variation in the selection criteria used across jurisdictions for the same type of restorative pro- cess. For example, eligibility for and admission to VOM may range from those in which courts or intake departments refer only first offenders, to those programmes in which crime victims themselves make a direct request for mediation to programme staff. It is important to develop a procedure for assessing the suitability and risks involved in each case under consideration for a restorative process.
• Participation by referring agencies: Members of referring agencies can sometimes be invited to observe or participate in the process or part of it. In brief, the managers or the agencies responsible for a programme must carefully cultivate their relationship with the law enforcement and criminal justice officials on whom the programme depends for referrals.
• Timely case feedback and communication to the referring agency: Another way in which referrals can be encouraged in the long term is by ensuring that referrals to the pro- gramme always lead to timely feedback and communication with the individual or agency responsible for the referral. These communications should include information about the outcome of the cases that were referred, the reasons why a particular case may not have proceeded successfully, the nature of the agreements that were reached, testimonials from the victims (and not just the positive ones) and whether compliance with the agreement was achieved.
• Ongoing information exchanges: Referring agencies can be regularly provided with case studies, statistics, analytical reports, performance indicators and programme evalu- ation findings that will raise their comfort level about referring more cases to the programme.

Some countries have chosen to encourage or increase discretionary referrals by making it com- pulsory for certain officials, at certain points in the criminal justice process, to consider refer- ring a case to a restorative programme. This may be helpful, but it is not a satisfactory substitute for the articulation of clear referral guidelines, procedures and criteria. It is also possible to increase self-referrals to restorative justice programmes by informing victims and offenders of the existence of such programmes.