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Restorative Justice: A discussion paper Ministry of Justice [1995] NZPenalPP 1 (30 November 1995)

Last Updated: 21 September 2020

Restorative justice: A discussion paper

New Zealand. Ministry of Justice.

ISBN 0478201028 (pbk.)

Foreword

In recent years there has been interest in new ways of doing justice. Part of this has stemmed from a belief that the existing justice system may not be working to prevent crime and reduce the numbers imprisoned. There has also been some desire to return to more traditional systems of justice which give greater prominence to the victim and emphasise redress.

The Ministry (formerly the Department) of Justice has been given the task of providing advice to the Government on the options and implications of a system of restorative justice in New Zealand. The new Ministry's role is to lead the development of an integrated and co-ordinated response to crime across government, and to provide advice on the range of appropriate responses to crime beginning with prevention. Consultation will be a central element in the way the Ministry does business. Accordingly, we are committed to seeking and taking account of the views of others in developing advice for the Government on restorative justice.

The criminal justice system is influenced by a diverse range of interests.

The judiciary, state agencies, professional and community groups and individuals all have views of value to contribute to the debate and the consultation exercise is intended to draw these out. Given the very nature of restorative justice with its focus on the direct involvement of the victim and community participation in the administration of justice, there must be the opportunity for views from these groups and particularly victims to be heard.

There has been some general liaison with groups and individuals interested in restorative justice. This has complemented research into New Zealand and international approaches. While restorative justice has generated considerable interest in New Zealand, it is a very broad concept encompassing a wide, potentially conflicting, range of objectives. This paper has been developed to clarify the objectives associated with restorative justice and to identify the wide range of issues and options to be addressed in assessing the implications of restorative justice in New Zealand.

The consultation phase will enable people and groups to comment on the issues raised. It will also enable the Ministry to develop policy advice about whether any changes should be considered following this consultation and, if so, what changes may be most effective.

Four major questions will need to be addressed in considering public comments and in the subsequent analysis:

· To what extent are the objectives of restorative justice consistent with each other and the way New Zealand should best respond to offending?;

· What is the evidence or potential for the effectiveness of restorative justice in achieving those objectives?;

· In what ways might restorative justice enhance the cultural responsiveness of the criminal justice system?;

· What are the cost implications of any such approach taking account of any savings that might be created and any benefits that might be realised?

Public input will add value to the policy development process. I therefore encourage those who have an interest to make their views known to the Ministry. Submissions should be forwarded by 31 May 1996 to:

The Project Manager

Restorative Justice Project

Ministry of Justice

Private Box 180

WELLINGTON

Chapter 1 : Introduction
1.1 Background

The criminal justice system has been a significant focus for social reformers in many parts of the world in recent decades. While resulting action has largely involved the constitution, structure and jurisdiction of existing institutions of government, there have also been innovations in the way that disputes are handled. For example, there was a move to establish neighbourhood justice centres in some countries from the 1970s (including New Zealand briefly). A further community-related development was the concept of victim-offender reconciliation which originated in Canada in 1974 (Zehr, 1990). These alternative programmes arose for a variety of reasons, including the belief that the legal system had become too complex, that community needs were not being met and that the control of disputes was more appropriately placed with communities rather than "the centralised organs of the state" (Merry, 1982: 172).

The notion of community has appealed as a social ideal to a range of disciplines across the centuries. It has attained even greater significance in the second half of the 20th century and has formed the platform for social policy development across a broad spectrum. During the 1980s there was also a resurgence of communitarian ideas including that being part of a community or society entails both entitlements and obligations, and that the rights of the individual should not be at the expense of responsibility to the community (Morrell, 1993). The development of informal processes for conflict resolution, including restorative justice programmes, can therefore be seen within this wider context. While their aims and emphases vary, programmes involving victim-offender meetings are now operating in more than 250 locations throughout the world, including in the juvenile jurisdiction in New Zealand (Fisher, 1994).

Family group conferences, introduced in New Zealand under the Children, Young Persons and Their Families Act 1989, and applying to those under 17 years have been the subject of ongoing interest in the intervening years and there have been a number of calls for the extension of this concept, or a variation of it, to adult offenders. The Courts Consultative Committee in responding to a recommendation for cultural remedies to be incorporated into the range of criminal sanctions (Jackson, 1988) proposed that the provisions relating to family group conferences should be extended to the 17-20 age group (Courts Consultative Committee, 1991).

The Crime Prevention Action Group (1992) raised the prospect of increased diversion for casual offenders and, in this context, the Crime Prevention Action Group II (1993) proposed further analysis of the appropriateness of raising to 18 the age at which young offenders are covered by family group conferences. The development of a new option for non-threatening offenders has also been suggested. This would involve community panels sitting alongside victims and offenders to agree on a contract to make good as an alternative to a prison sentence (Gibbs, 1994). In 1994, a member of the judiciary suggested community group conferences in the adult jurisdiction (McElrea, 1994). This latter proposal was referred to the Minister of Justice by the Chief District Court Judge and has been the catalyst for broader policy consideration.

1.2 Definitions

Some words or terms used throughout the text may be unfamiliar to readers and an explanation at this point may assist understanding.

Conciliation "implies easing of friction and agreement or understandings" (Butterworth's Family Law Service, 1993: 2005). It sometimes involves the use of therapy to resolve emotional or psychological issues and to adjust to changed circumstances. Conciliation may include counselling and involve mediation. In conciliation, the third party has a relatively high substantive input into discussions and is not limited to the facilitating role of mediator (Chart, 1985).

Diversion in its simplest form involves channelling an offender or suspect away from any particular outcome at any stage of the criminal justice process. The term can refer to a variety of programmes - complete diversion from the criminal justice system, screening a case out of the system with a decision to caution or warn rather than prosecute, diversion at the pre-trial stage for resolution of the case by some informal procedure, and post-trial alternatives to conviction or sentence (Young & Cameron, 1992).

Mediation is a form of dispute resolution in which an impartial third-party facilitates negotiations between people in dispute. It is a process in which the parties can retain control over their dispute and develop a solution that is acceptable to all parties. It often uses problem-solving techniques to provide a forum in which the parties can reconcile, if they consider that is in their best interests. In general, mediators do not give advice or make suggestions. Mediation is generally both voluntary and confidential. Agreements reached may be legally binding depending on the context in which the technique is used.

Net-widening is the term used to describe the impact of measures which cast the net of the criminal justice system more widely. This may be an unintentional outcome. It can be seen in measures which result in more offenders entering the criminal justice system when they previously would not have done so, and in the deeper involvement of offenders with the system either through more intrusive processes or outcomes than would have been expected otherwise.

Reconciliation can involve the settlement of a quarrel or the re-establishment of friendly relations with someone after an estrangement. The term is frequently used in relation to North American victim-offender mediation programmes, particularly as a goal of such programmes, and according to Zehr (1990) it signifies that the victim-offender relationship is the primary focus of the process.

Reparation involves the offender giving something back to the victim as compensation for the loss or damage caused. The reparation may be a payment, or it may take some other form, such as work for the victim or a charity nominated by the victim. It may also take the form of an apology. Although, in New Zealand, there is also a sentence of reparation (described in chapter 3), most references to reparation in this paper are in the general sense of the offender making some return to the victim, not necessarily in the context of the formal sentence of reparation.

Victim-offender mediation is the model used in initiatives such as the Victim-Offender Reconciliation Program (VORP) in the United States and Canada and in Victim-Offender Reparation Programmes operating in the United Kingdom. It generally involves only the victim and offender meeting in the presence of a mediator to resolve the issues between them. If others such as a family member attends in support, their role is as observer only. This model contrasts with the conferencing model where a range of others both attend and actively participate in the meeting.

The term victim-offender mediation has been used in a general sense throughout the text of this paper since these meetings are the main vehicle for restorative processes and the victim and offender are the principal participants. These references should not however be taken to indicate that this model is favoured over the conferencing model.

1.3 Purpose of the Paper

The Minister of Justice has asked the Ministry of Justice to provide advice on the options and implications of a system of restorative justice in New Zealand.

Various groups have indicated an interest in the concept and their desire to contribute to any debate. The adoption of a restorative focus in the adult jurisdiction could constitute major new public policy and it is important that a wide range of views feed into the consideration of this issue. This paper endeavours to set out the main options that the ministry has identified as a result of its investigations without reaching a conclusion, so that those who wish to participate in the consultation know the issues on which the ministry is particularly seeking input. As is stated later in the paper, the options are not regarded as mutually exclusive and nor are they necessarily the only options. Different proposals may well emerge in the course of the consultations.

Two qualifications to the paper need to be noted. First, the issue of whether or not restoration should be a major focus in the sentencing process has not been explored. This is because the rationales, goals and guiding principles of sentencing will be addressed in a paper on sentencing policy which is currently being prepared for public consultation later in the year.

Secondly, restorative practices have their roots in many traditional societies, including Maori and Pacific Island cultures. While there have been discussions with representatives of some groups and reference has been made to cultural issues in the paper, this aspect has not been addressed in detail. It was considered more appropriate for cultural perspectives to be further explored as part of the consultation process.

1.4 Overview of the Paper

The first chapter provides the necessary background material. It describes how the discussion paper came about and defines some of the terms that are commonly used in the paper.

Chapter 2 focuses on restorative justice, describes how the concept is commonly translated into practice in some overseas jurisdictions and seeks to arrive at a common understanding of the key elements it incorporates.

Chapter 3 discusses the New Zealand situation. The system of family group conferences in the juvenile jurisdiction is often described as a restorative system although it was not designed as such and may not always operate with such a focus. This is considered. Additionally, components of the criminal justice system which have a restorative element, and which are currently being applied to adult offenders are also described, and the extent of their use is considered.

Chapter 4 considers public opinion on restorative justice. The Department of Justice has undertaken research both to gauge public opinion on the concept of restorative justice generally, and also to obtain feedback on specific elements. The results of this research are reported, and other studies of public attitudes to reparation and restoration are considered.

Chapter 5 considers some of the advantages and disadvantages of restorative programmes, and assesses available evidence about their efficacy. It draws on the results of research on victim-offender reconciliation programmes in the United States and victim-offender mediation programmes in the United Kingdom. Reference is also made to the implications of research on the New Zealand youth justice system.

Chapter 6 presents and discusses the options identified for New Zealand, and on which comments and submissions are invited.

Chapter 2 : Defining Restorative Justice
2.1 General Definitions

The term restorative justice appears to have developed out of the

victim-offender mediation or reconciliation movement which began in Canada and North America in the early 1970s. Many restorative justice writers use the terms restorative justice and victim-offender mediation interchangeably (Marshall, 1992 ; Umbreit and Coates, 1992). Associated terms include relational justice and a technique called reintegrative shaming.

Marshall (1995: 1) defines restorative justice as

...a way of dealing with victims and offenders by focusing on the settlement of conflicts arising from crime and resolving the underlying problems which cause it. It is also, more widely, a way of dealing with crime generally in a rational problem solving way. Central to restorative justice is recognition of the community, rather than criminal justice agencies, as the prime site of crime control...

Conflict resolution is informed by a well tested body of theory and practice of which mediation is a core technique.

Restorative justice is a form of criminal justice based on reparation, that is, actions which attempt to repair the damage caused by the crime, either materially (at least in part) or symbolically. Howard Zehr (1990: 197) points out that "[v]iolations create obligations" and that "[w]hen someone wrongs another, he or she has an obligation to make things right." Marshall (1992) observes that an opportunity to make reparation should be offered to the offender at the earliest stage possible and that payment at this stage may be irrespective of how, or whether, any criminal charges are dealt with. He also argues that greater emphasis should be placed on expecting reparation of offenders. Apart from the payment of money, reparation may include demonstrations of the offender's willingness to co-operate in counselling, therapy or training (Wright, 1991).

Restoration of those affected by the offence is the underlying theme in restorative justice. "The goal of the process is to heal the wounds of every person affected by the offence, including the victim and offender." (Consedine, 1994: 158). In this context, reparation to the victim by the offender is considered a duty or obligation on the offender (Marshall, 1990) and restoration of community peace is an important objective.

Howard Zehr (1990: 194-5) points out that :

Communities feel violated as well ... and they have needs too. Since one cannot ignore the public dimension of crime, the justice process in many cases cannot be fully private. Crime undermines the sense of wholeness in a community. For a community, reparation often requires some sort of symbolic action that contains elements of denunciation of the offence, vindication, reassurance and repair.

Restorative justice seeks to redefine crime, interpreting it not so much as breaking the law, or offending against the state, but as an injury or wrong done to another person or persons. It encourages the victim and the offender to be directly involved in resolving any conflict through dialogue and negotiation. Thereby, the victim and offender become central to the process with the state and legal professionals becoming facilitators, supporting a system which aims at offender accountability; full participation of both victim and offender; and making good, or putting right, the wrong (Zehr, 1990 & 1994).

There is a sense in which restorative justice is neither a practice nor a group of practices. Rather it is a philosophy, a way of looking at crime and the response to crime. John Braithwaite (1989: 6) observes that :

To the extent that the community genuinely comes to believe that the `experts' can scientifically prescribe solutions to the crime problem, there is a risk that citizens cease to look to the preventative obligations which are fundamentally in their own hands. Thus if I observe an offense, or if I come to know that my next-door neighbour is breaking the law, I should mind my own business, because there are professionals called police officers to deal with this problem.

He proposes instead that:

Crime is best controlled when members of the community are the primary controllers through active participation in shaming offenders, and, having shamed them, through concerted participation in ways of reintegrating the offender back into the community of law abiding citizens. Low crime societies are societies where people do not mind their own business, where tolerance of deviance has definite limits, where communities prefer to handle their own crime problems rather than hand them over to professionals. The rule of law will amount to a meaningless set of formal sanctioning proceedings which will be perceived as arbitrary unless there is community involvement in moralizing about and helping with the crime problem.

2.2 Common Features of Restorative Justice

In general, the restorative justice philosophy is based on three beliefs. These are that:

1. Crime results in harm to victims, offenders and communities;

2. Not only government, but victims, offenders and communities should be actively involved in the criminal justice process; and

3. In promoting justice, the government should be responsible for preserving order, and the community should be responsible for establishing peace (Van Ness, 1990).

These general beliefs lead to a number of common elements among restorative justice programmes. These elements include:

· A definition of crime as injury to victims and the community peace;

· A focus on putting right the wrong;

· A view that both the victim and the offender are active players in responding to and resolving the criminal conflict;

· Compensating victims for their losses through restitution by the offender;

· Empowering victims in their search for closure through direct involvement in the justice process;

· Assisting victims to regain a sense of control in the areas of their lives affected by the offence;

· An objective of holding offenders accountable for their actions;

· Impressing on offenders the real human impact of their behaviour;

· Encouraging offenders to accept responsibility for their behaviour in a way that will aid them to develop in a socially acceptable way;

· Seeking to address the personal and relationship injuries experienced by the victim, offender and the community as a consequence of the

offending; and

· A commitment to include all affected parties in the response to crime.

Marshall (1995 & 1995b) considers that restorative justice should aim to achieve six outcomes. These are:

· The denunciation of crime. The action taken in response to crime will define the boundaries of behaviour beyond which citizens should not stray. Often the expression of denunciation will take the form of punishment or some burden placed upon the offender.

· The reform of individual offenders.

· The prevention of crime in a general way. Restorative principles would promote the role of the community in controlling and reducing crime.

Restorative interventions would aim to enhance the ability of communities to take on this role or expand their capacities.

· Helping victims.

· Making good the suffering caused by crime.

· Keeping the costs of administering justice to a minimum. Money spent on responding to crime is not available to be used in the provision of education, health or welfare services. Consequently, it is important that thecost, both financial and social, of resolving the problems associated with crime is not greater than the consequences of taking no action.

The emphasis in restorative justice is on crime as a violation of one or more person(s) by another, rather than as an offence against the state. Problem-solving for the future is seen as more important than establishing blame for past behaviour. Zehr (1990) suggests that three questions should be asked. These are:

· What is the harm done by the offence?

· What can be done to put right the harm?

· Whose responsibility is that?

It follows that in looking for solutions to the problems arising from, and associated with crime, not all of the responsibility rests with the offender. Under a common law system the responsibility for crime is held to be the offender's, proportional to his or her culpability. However, somewhat perversely, the offender often has few resources to contribute to remedying the harm or rehabilitating him or herself, let alone the insight and knowledge to appreciate how to achieve these ends.

Restorative justice considers that issues such as prejudice, social injustice and inequity support an environment in which crime and victimisation are more likely. Zehr (1990) and Marshall (1995) suggest respect is an important dimension of crime. Offending, in their view, stems from a lack of respect for others and community values. Such disrespect is more likely from those who are alienated from the benefits of community membership, or who are themselves subjected to disrespect because of prejudice (for example concerning race, colour, or educational achievement). According to Marshall (1995: 6):

People who feel unfairly devalued and lacking respect, who feel cut off from mainstream society, are likely to have little respect for society, its laws and values. If community does not extend to such people, then informal control does not affect them, and restorative outcomes will not be possible. The introduction of restorative practices can only take place if there is, at the same time, a real effort to combat institutionalised injustice. Without this, new initiatives are doomed to having only a marginal effect on the overall problem of crime.

2.3 How Does Restorative Justice Operate?

A survey of the initiatives that claim a restorative foundation suggests that the term is expressive of a range of principles and objectives for criminal justice.

These inform and guide practice, rather than define a particular model of practice.

In some programmes, victims, offenders and the community work in repairing the damage of crime as an integral part of the criminal justice system under the authority of the state. Other initiatives are separate from the justice system, operate on different timetables to those of court processes and may act as an alternative to the justice system in resolving disputes about offences. Where restorative processes form an unbroken tradition of society, such as in Samoa, they may exist independent of the formal criminal justice system, provide a culturally-oriented alternative and deal with disputes other than those legislated as offences.

Restorative justice initiatives that seek to influence the disposal of cases within the criminal justice system tend to be part of formal programmes, and involve the approval of authority figures such as judges, lawyers and probation managers. These integrated programmes have systems and processes linked with those of the criminal justice system. Their aims often include the general aims of the criminal justice system in addition to those specifically related to restorative justice. There are three stages at which formal restorative justice programmes are generally applied. They are:

1. PRE-CONVICTION: These programmes operate where the defendant does not deny guilt or has indicated that they do not intend to defend the case. As a procedural safeguard it is usually expected that the prosecuting agency has formed an intention to prosecute the case. Outcomes may include a recommendation or report to a court, or else the case may be finalised by agreement between the victim, the offender and the prosecuting agency without proceeding to a court.

2. PRE-SENTENCE: Once guilt has been admitted or proven, a court may refer the case for a victim-offender mediation.

3. POST-SENTENCE: Some victim-offender mediation programmes work with offenders who have been sentenced, either to community-based sentences (Shadbolt, 1994) or to imprisonment (Green & Gray, 1994 ; Immarigeon, 1994). They may operate between victims and offenders who have a direct relationship, or between groups of victims and offenders who are not connected by a specific offence. Mediation between an inmate and the community into which he or she will be released has also been used to assist integration.

Generally, programmes either adopt an individual or collective approach.

The various forms are further explored in paragraph 6.4.

There is a range of restorative programmes operating internationally and these are now described.

Victim-offender reconciliation programmes [United States and Canada]:

The Victim-Offender Reconciliation Program (VORP) concept originated in Kitchener, Ontario in 1974 as a joint project of the Waterloo Region Probation Department's volunteer programme and the Mennonite Central Committee, Ontario. By 1990, of the 100 programmes in the United States involving victim-offender mediation about 60 could be traced directly to the VORP tradition. Since 1989, programmes formed under this model have tended to call themselves victim-offender mediation programmes. VORP are community-initiated programmes, they seek to mediate between the victim and the offender and are often church-based. Although they may employ

co-ordinators, most of the mediation is done by trained volunteers.

Referrals come mainly from the courts and probation services. Co-ordinators record and screen a referred case for appropriateness then pass it to a volunteer. The volunteer contacts and meets with the offender and victim separately and, assuming that both agree to proceed, makes arrangements for the VORP meeting. About 50-60% of referred cases move to a victim-offender meeting. Meetings are held in neutral places such as the VORP office, a church or school. Meetings seek to review the facts, provide for the expression of feelings and discuss an agreement. Care is taken to give all parties a chance to tell their story. Following the mediation a report is prepared advising whether agreement was reached, the details of any agreement and any other matters the mediator considers relevant (Stutzman Amstutz & Zehr 1990; Zehr, 1990b).

Victim-offender mediation programmes [England and Australia]: Programmes of this nature tend to be referred to as reparation schemes and there are two general types.

In the first, victim-offender mediation is used in cases where the offender has been cautioned instead of prosecuted or where that course of action is being considered. Use is often restricted to juveniles and schemes are generally agency-based or administered, and involve collaboration between police, probation and social service departments. Most referrals are made by the police. In the English schemes about three hours is spent per case negotiating reparation agreements and most of this is spent with the offender. Meetings between victim and offender are offered in about 70% of cases. Where they occur, they typically take less than an hour, and involve single victims and offenders, although occasionally the parent of an offender or a relative of the victim may also be involved.

The second type of scheme uses victim-offender mediation for cases proceeding through the court process. This process occurs between conviction and sentence although a small number of defendants are involved prior to conviction, but after an admission of guilt. Many of the schemes are either probation service initiatives or are administered by probation with an advisory group of court users and voluntary organisation representatives. Some schemes are run by voluntary groups and a number, including the government agency schemes, use volunteers to conduct the mediations. Referrals are from a range of sources, including defence solicitors, probation officers and magistrates. In the English schemes between three to seven hours per case is spent in negotiating with the parties prior to any meeting, a direct meeting is offered in about 85% of the cases and actually occurs in 34% of cases referred.

Parties other than the victim and the offender are seldom present at a mediation meeting which usually lasts between 30 minutes and an hour (Marshall & Merry, 1990).

Western Australia additionally operates a protective mediation service through which violent offenders can negotiate with the victim while still in custody, or on their release. The programme is administered by the Department of Corrective Services and negotiations are normally carried out through shuttle mediation (the mediator acting as an intermediary passing messages between parties who do not communicate directly) or through telephone conferencing.

In New Zealand, the administration of the sentence of reparation, which can be ordered by the court (see paragraph 3.3.3), provides in theory for the victim and offender to meet in the presence of a probation officer (Department of Justice: 1987). This option is not utilised much for a variety of reasons - a recent report indicated that face-to-face meetings occurred in only 4% of cases referred for reparation reports (Jervis, 1995).

Family/Community Group Conferencing : In New Zealand, the youth justice system has adopted the family group conference as its central focus for dealing with juvenile offenders. This is described more fully in paragraph 3.2.

Conferencing is used for juveniles in a number of Australian states. For instance, New South Wales has instituted a cautioning programme for juveniles in Wagga Wagga based on the concept of family group conferences. It is administered by the police and aims to maximise the impact of juvenile cautions by helping the offender to better understand the seriousness of his or her offence and to accept responsibility for it, by providing input opportunities for the victim, by bringing in family members and significant others and by encouraging victim restitution or compensation (Fisher, 1994). This particular programme has been extended to eight other communities in New South Wales and has been adopted by the Australian Capital Territory (Connolly, 1994).

Reintegrative Shaming: John Braithwaite (1989; 1993; Braithwaite & Mugford, 1994) has proposed a theory of reintegrative shaming to describe how conferencing models may contribute to reducing offending.

Reintegrative shaming requires that an offender is involved in a group process with those interested in or affected by the offence, and persons likely to have an emotional influence on that offender. A conference might include the offender, supporters and family of the offender, the victim(s) and their supporters, community representatives, the police, and a co-ordinator.

The relationship of respect and affection between the offender and his or her family and friends is said to promote a sense of shame in the offender for his or her actions, but the supporters also provide affirmation of the non-criminal aspects of the offender so that the experience is reintegrative rather than degrading.

Victims are also encouraged to seek resolution of their own interests during the process. The presence of the victim, however, also plays an important role in confronting the offender with their crime in order to precipitate shame. Although an offender may be able to insulate themselves from the statements of a victim who is a stranger, they are less likely to be able to cut themselves off emotionally from the impact of this on their parents or friends. According to Braithwaite (cited in Findlay, 1994: 36) :

Shame is more deterring when administered by persons who continue to be of importance to us; when we become outcasts we can reject our rejecters and the shame no longer matters to us.

Leibrich (1995) observes that the experience of some forms of shame may challenge an offender's personal morality, and consequently affect their attitude to similar future offending.

Braithwaite's model (Braithwaite & Mugford, 1994: 142) proposes that :

..reintegration ceremonies are about the sequence disapproval - nondegredation - inclusion. In a reintegration ceremony, disapproval of a bad act is communicated while sustaining the identity of the actor as good. Shame is transmitted through a continuum of respect for the wrongdoer. Repair work is directed at ensuring that a deviant identity (one of the actor's multiple identities) does not become a master status trait that overwhelms other identities.

The offender's positive attributes, such as family member, student or promising sportsperson, are emphasised to avoid permanent and damaging labels such as delinquent or offender which might isolate the person. Reintegrative shaming aims to have the offender appreciate the effect of their actions and take responsibility for them, while strengthening the social controls and relationships likely to promote good citizenship.

Victim types: Marshall and Merry (1990: 92-93) observe that the question of what sort of victims are most suitable for victim-offender meetings has not been resolved outside the practice of individual schemes. Corporate bodies tend to feature strongly as victims in North American programmes: some with between half and two-thirds of their cases involving businesses. Most of the victims in police-based (pre-trial) programmes in Britain have been corporate bodies which included businesses, local authorities and other agencies, while in court-based projects 33% of victims were corporate bodies. In New Zealand, corporate bodies and businesses, including insurance companies, who have incurred losses through or by means of an offence may be involved in victim-offender mediation as part of the process involved in preparing a reparation report. Conversely, some North American and British programmes do not recognise insurers as victims for the purposes of mediation, perhaps being concerned that the involvement of insurers or those with purely financial needs may be at the expense of addressing the emotional needs of the direct victim.

No general rules are available to guide practice regarding child victims or their parents or guardians; corporate, community and local body victims; or those who are inarticulate or unable, for whatever reason, to fully participate in mediation. Some programmes operate with the intention of addressing the needs of all those affected by an offence which suggests a broad definition of who is considered a victim.

It is common for victim-offender mediations to involve multiple victims and, at times more than one offender. Marshall and Merry (1990) note that some schemes avoid taking such cases but the Ontario Victim Offender Reconciliation Program, for example, dealt with multiple victims in a third of its cases. In such cases the needs among the victims may differ or be in conflict. Where there are multiple victims decisions may need to be made about the amount an offender is able to pay respective victims, issues of privacy may arise and mediators may be concerned about their ability to control very large meetings. In instances of multiple victims or offenders, the mediator must consider whether mediation is appropriate and, if so, whether to hold one or a series of meetings.

Range of restorative initiatives: Marshall (1995) identifies a range of initiatives that also contribute to the restorative justice movement. These include:

· Reparation schemes;

· The use of mediation between offenders and their own families or communities to improve social integration and support, or to heal serious rifts;

· General community mediation and dispute resolution services;

· Conflict resolution training;

· Providing mediation to respond to or resolve public order and other major social conflicts;

· Training in handling violence constructively (both one's own and other's violence); and

· Prejudice reduction workshops.

2.4 Is Restorative Justice a System of Justice?

The criminal justice system was not constructed to a pre-designed plan, its parts smoothly articulating with one another, with a clear objective towards which each of its elements is geared. Rather it is an evolutionary accretion of institutions and functions (Marshall, 1992b).

Restorative justice is sometimes presented as a new paradigm of justice (Consedine, 1995; McElrea, 1994; Zehr, 1990). If it is, it is not, as yet, a complete model because restorative justice literature and practice do not resolve major issues such as disputes over guilt or the identification of a defendant, nor do they suggest principles and rules of evidence that would apply in such disputes. Despite this limitation, many cases can still be considered for restorative interventions.

The majority of offences in the criminal justice system are dealt with on the basis of an admission of guilt. In 1993, fewer than 13% of New Zealand district court matters went to trial because of a `not guilty' plea (Spier, 1994b).

There is no consensus in the restorative justice literature as to what should happen if the parties cannot reach agreement. Some suggest that cases should be referred back to the court system or referral source (Stutzman Amstutz & Zehr, 1990), while others note that the scope of restorative interventions extends beyond victim-offender agreements so that the principles of restorative justice could have emphasis in any judge's sentencing decision (Mediation UK, 1992).

Overseas restorative justice programmes operate in, or in association with, a number of criminal justice systems (Morrell, 1993). These include: Victim-Offender Reconciliation [VORP] and Victim-Offender Mediation [VOM] programmes (United States, Canada, England and Australia), reintegrative shaming (New South Wales), and local community mediation centres. Norway has a national policy and most other European countries have used mediation between victims and offenders in small-scale programmes. Austria and the Netherlands have introduced victim-offender mediation into their legislation.

Restorative proponents (Consedine, 1994 ; Zehr, 1990) note historical and cultural precedents for restorative justice. However, restorative justice became a theme in Western systems of criminal justice only relatively recently. Consequently, there has not been much opportunity for research and the knowledge-base concerning restorative justice is incomplete.

It cannot, as yet, be considered a tested model or theory of justice.

Some of the restorative models of practice are unable to encompass all of the objectives of a system of justice. Marshall (1990) argues that victim-offender mediation should be free of any criminal justice agency, free of any reliance on any particular point in the criminal justice process, and able to time interventions according to the interests of the victim. Clearly, society has interests in justice beyond the provision of a forum for mediation. However, having made provision for mediation, actively considering the resulting recommendations and outcomes may influence the judgements and process of other segments of the criminal justice system.

The discussion above suggests that restorative justice is a movement rather than a particular practice. It is a way of thinking about crime and informing or reforming systems for achieving justice. To the degree to which it describes the outcomes of a criminal justice system in a coherent and publicly accepted way, restorative justice redefines what is justice. This is discussed in paragraph 2.5.

2.5 Key Differences Between the Current Court-Based System and Restorative Justice

The following section discusses four themes - guilt, emotion, process and relationships - and analyses how these differ between New Zealand's current court-based system of justice and restorative models of justice.

2.5.1 Guilt

The focus in restorative justice is on offenders taking responsibility for their actions, while the court system focuses upon defining those actions so as to identify, beyond reasonable doubt, the elements which constitute a criminal offence. In doing so the court system uses rules of procedure and evidence to shape proceedings which also influence the actions of police, defence and prosecution counsel prior to the defendant making a plea. During mediation, some restorative programmes ask defendants whether they accept responsibility for the harm done. This is different from asking whether they are guilty.

The distinction between `accepting responsibility' and `guilt' is important in understanding how restorative justice might fit with, or compare to, existing justice processes. While defendants may accept responsibility for what they have done, the criminal courts have generally been interested in their intention in doing it.

A defendant may admit responsibility for the outcome of his or her actions and wish to make reparation, but also deny guilt because there was no criminal intent or because the prosecution's description of what happened may not describe what the defendant believes happened.

Restorative justice programmes commonly envisage that others may share with the offender some responsibility for putting right the harm. Currently, for example, in youth or juvenile jurisdictions parents are often noted as being responsible for their children. Similarly, in a restorative process, the principals of a firm whose employee defrauded clients (Braithwaite, 1995 ; Braithwaite and Mugford, 1994), or representatives of a defendant's professional association might be involved.

Consistent with a series of international covenants associated with civil and political rights, the New Zealand criminal justice system emphasises protections against convicting the innocent. Most systems like New Zealand's respond to crime proportionally to the seriousness attributed to the category of offence, the actual or risked harm and the culpability of the offender (Ashworth, 1993). Restorative justice focuses on responsibility for the outcome of an act, for example, a death as a result of a traffic offence. Consequently, in victim-offender mediation, the needs of the victim and the degree to which the victim desires retribution or recompense may be more influential on the outcome of the process than either the category of offence or the culpability of the offender. The response of the current court-based system of justice would be tempered by considerations such as the contribution of inattention or drunkenness to the death. Additionally, in using restorative models quite similar offences might result in quite different outcomes. For example, "two offenders acting with equal culpability and causing similar consequences could find themselves confronted by two differently disposed victims, one forgiving and the other vindictive" (Ashworth, 1993: 291). On the other hand, the involvement of community members and consideration of the objectives of the process could moderate these effects.

2.5.2 Emotion

The criminal justice system seeks to deal with crime dispassionately.

It attempts to manage any public demand for retribution and revenge by reference to principles and precedents, on the basis of which considered responses are made. In criminal courts the expression of strong emotion is closely managed. The opportunities for emotional displays are limited by the protocols of representation through counsel and the presentation of written reports and statements to describe the emotional, physical and financial effects of the offence on the victim.

Restorative justice recognises the emotional effect of crime on victims, offenders and the community. This can adversely impact on people's functioning, their rehabilitation and their enjoyment of life. Restorative justice seeks healing of the emotional effects of crime as an important part of putting right the wrong. Hearing the emotional, physical and financial effects of crime is also an important component in holding the offender accountable. Without understanding the effects of their behaviour it is unlikely that an offender could genuinely take responsibility for the offence and its consequences.

2.5.3 Process

In the current court-based system much of the focus is on procedures to establish criminal intent (the guilty mind) either by admission or trial.

By changing the focus from guilt to responsibility, restorative justice provides a basis on which to establish an alternative procedure for disposing of cases.

There appears to be little discussion of procedural safeguards in literature promoting restorative justice. Some writers assume that restorative programmes which influence sentencing would be offered only after guilt is admitted or proven in an adversarial or inquisitive process. Van Ness (1990) recommends a "two track system" with mediation being one track and the formal court setting being the other. In this model, either party could, at any time, have recourse to the court-based system of justice, and formal proof of matters. Safeguards need to be established if attempts at restorative outcomes are not to jeopardise that opportunity.

2.5.4 Relationships

Court-based justice systems give predominance to the state's role.

The victim's primary roles are complainant and witness. Some cases proceed without any involvement of the victim.

In addition, a large part of the court's work deals with crime where there is no direct victim. For example, offences where the general public has been put at risk, or where public morality has been offended such as drink-driving offences and drug offences. [Approximately 40% of informations dealt with in district courts are for traffic offences, although a proportion of these will include offenders apprehended following collisions involving other people; 7% are drug offences(Department of Justice, 1995)].

Some changes have been made in the last decade to enable better access and involvement for victims in the criminal justice system. These include the introduction of the sentence of reparation and the provision of victim impact statements. However, there is no provision for victims to address or assist the court as of right (Victims Task Force, 1993).

In the court system, the state represents both the victim and the community.

In New Zealand, the biggest proportion of cases are dealt with in the summary jurisdiction - 135,988 cases in the year to 14 February 1995 (Department of Justice, 1995). There the state's prosecutor is usually a police officer. Consequently, the interests of the victim and community are reflected indirectly through the agents and agencies of the state. (Victim impact statements are written documents prepared by the police in consultation with the victim, victim's views on bail are represented through the prosecutor, and the prosecution represents the interests of the community in obtaining a conviction). In a recent survey of prosecutors, most respondents reported that they saw the Crown as their client: with the Crown being interpreted as the public or community interest. Some considered that, at times, the interest of the victim and the Crown were similar but others thought it "...dangerous to view themselves as representing the interests of the victim" (Dunstan et al, 1995: 102).

In restorative programmes, wherever possible, people present their views, feelings and positions in person, whether as victim, offender, community member or representative of the state. Van Ness (1990) suggests that the state would then be responsible for providing fair procedures to hold offenders accountable for making amends while the content of that process would be provided by the victim, offender and members of the community. Restorative justice does not consider that the formal state criminal justice system should ideally be the first response to crime.

Where a restorative intervention involves mediation, each participant may have several points of view. The victim is a member of a community, as are the victim's and offender's supporters. They may represent minority groups within the wider community. The police, social workers and professionals who attend as representatives of the state may live in the local area.

Representatives of the community (for example, professional, ethnic or interest group representatives) may have an interest in supporting the victim or the offender and in providing longer-term rehabilitation. People's multiple roles often mean they have some interests in common. These might include restoring the community peace, reducing the risk of further offending against the current victim or other citizens and the resumption of productive roles in society by both the offender and the victim.

A proportion of crime does not have a direct victim. With drink-driving and similar offences how can restorative justice interventions be applied? Internationally, mediation-based programmes, such as victim-offender reconciliation programmes, have tended to deal with clear victim-offender relationships. Reintegrative shaming and family group conferences can, however, operate despite the absence of any individual victim (Braithwaite, 1989 ; Braithwaite & Mugford, 1994).

Reintegrative shaming models allow crime to be generalised to consider both the actual effects and the potential risks or effects of an offence.

For example, a drunk-driver apprehended through a random check might be confronted by the likelihood of an accident or the consequences of a child running onto the street in front of them. Alternatively, the victim of another drunk-driver, or an alcohol counsellor might be used to promote a shaming experience and provide a means for the offender to understand the potential impact of their behaviour. This experience is said to be an important step towards accepting responsibility.

2.6 Central Principles

A review of the literature about restorative justice, discussions with criminal justice professionals and meetings with mediation practitioners suggest a number of common principles among restorative justice programmes.

Of concern were observations that many programmes had trouble maintaining these principles in practice (Marshall, 1990 ; Umbreit and Coates, 1992).

2.6.1 Emphasis On Addressing Victims' Needs

The restorative justice programmes reviewed stress the importance of addressing victims' needs. Restorative justice is a system in which victims:

· Are assisted to regain a sense of control;

· Are actively involved in the criminal justice system;

· Have their personal and relational needs met.

The emphasis on victims' needs is weakened when there are processes or systems of eligibility based on generalisations about the offence type or the characteristics of the offender (see paragraph 6.5). At best, these can address the needs of some victims.

Programme designers cannot know the needs of a particular victim since people's responses to crime are individual. The structure of restorative processes and the focus of any agency administering them would need to emphasise meeting individual needs. Restorative justice recognises that similar criminal offences may have dissimilar effects on victims and offenders, and hence a different or unique response may be necessary to put right the wrong. A victim's desire for vindication, reparation or satisfaction may also be influenced by the degree to which they consider the offender culpable for the crime.

2.6.2 Involvement of Victim, Offender and Community

Restorative justice programmes commonly note that the victim, offender and community should be actively involved in the response to the offence.

A forum for communication between the victim, offender and community is a prerequisite to active involvement. Such involvement is difficult to achieve if the parties are represented through counsel. Occasionally distance, emotions, disability or injuries make it difficult for victims to attend restorative justice processes. If the victim is unable to attend personally, the principle of meeting victims' needs suggests the possibility of involvement through intermediaries or representatives. This is reported as having been successfully tried in at least one initiative in New Zealand (Mansell, 1994).

Not all members of the community affected by the offence are usually actively involved in the restorative justice process. Some system of selecting representatives is likely in restorative justice programmes which desire community involvement. In a modern, urbanised society, however, the idea of community may be more romantic than pragmatic. Urbanisation, mobility and the increased size and complexity of society have influenced the development of communities, whether based in hapu and iwi or village traditions. Merry (1993), studying the phenomena of private neighbourhoods in the United States, found people chose to move from urban ethnic neighbourhoods to suburbs where they were insulated from the gossip of neighbours and the authority of community leaders. Americans were seen to pursue individual opportunity at the expense of community ties. In working class and poor neighbourhoods Merry (1993: 71) found that:

Good fences made good neighbours here because they diminished the opportunity for conflict.

In private neighbourhoods order and belonging came from a stable class identity rather than from enduring social relationships.

Concepts such as community values may represent the values of only a part of society, such as the middle class, who are articulate and have the power and influence to assert their values on others. A victim and offender may be members of different communities and cultures, posing issues about whose community to involve.

At times, the interests of the victim may conflict with those of the general community and state. Even within societies described as having traditional restorative processes, very serious offending may lead to actions that emphasise meeting the needs of the village/community rather than those of any individual victim or offender. Some offending may be so detrimental to the values upon which a society is based that denunciation, and thereby reinforcement of societal values, is more important to the community than actual restoration of either the victim or offender.

Neither the community nor the state can afford to give effect to the victim's wishes or the needs of the offender for rehabilitation irrespective of human rights or cost.

For example, imprisonment may be recommended as an outcome of a restorative process, perhaps as a token of victim vindication or as a means for the offender to expiate guilt. However, the cost of imprisonment is borne by the community and state. If the costs of imprisoning an offender were greater than the costs of taking other action of similar or greater efficacy, then the state and community ought not to be obliged to expend their resources inefficiently or to the detriment of their own interests. That having been said, concerns with efficiency and effectiveness are not irreconcilable with victim and community interests. Restorative justice programmes may be a forum where communication of these issues is possible, where information can be exchanged and where a managed and principled resolution can be achieved.

2.6.3 A Consensus Approach to Justice

Restorative justice aims at a consensus approach to justice.

Rarely do the parties to an offence (victim, community, state, offender) have only one interest in seeking justice. Practice suggests that, once a victim and offender have decided that they have something to gain by seeking a mediated process, a consensus is usually possible on at least some issues. The parties often have interests in common or interests that can be achieved without significant compromise. Agreement on matters in which there is little conflict provides an incentive for the parties to find agreement on more contentious issues.

Nonetheless, uncooperative offenders may make restorative justice difficult to achieve and the achievement of redress an unlikely outcome. Zehr (1990: 198) has suggested:

Forced encounters are unlikely to be good for either offender or victim, and may well backfire. We can require offenders to make right, but they cannot be fully responsible without some degree of voluntarism.

In this regard, the offender who is held most accountable is one who understands the consequences of their behaviour, accepts that the behaviour was wrong and is then prepared to act to remedy that wrong. These are all stages that require the intellectual and emotional involvement of the offender. According to Leibrich (1995: 28):

It may not be possible to make a person analyse the costs and benefits of offending nor to change their personal morality, but it is possible to give them information and feed-back which they can at least consider.

Programmes that are separate from the criminal justice system must rely on voluntary involvement. They proceed irrespective of what happens in the court. While offenders may be subject to some compulsion to attend court or

police-initiated processes, in the end the success of the restorative intervention depends on the offender's preparedness to participate and to adhere to any agreements reached. In effect, restorative justice interventions can proceed only if the offender does not actively resist. In processes such as family group conferences, the offender who elects not to deny guilt can attempt a restorative solution with the victims, community and state, but still retain the option of having the matter dealt with in the court system if they are unhappy with proceedings and are unable to reach an agreement.

Several programmes offer restorative processes as a voluntary option within the larger criminal justice system. Nonetheless, Wright (1989) observes that participating offenders usually believed that they had to be involved. Once guilt has been admitted or proved, an offender might be required to be involved in a restorative process. This is the situation with some reports and assessments requested by New Zealand courts. For example, in reparation investigations (sections 22-23 of the Criminal Justice Act 1985) considerable persuasion is used to involve offenders in reparation processes and the court may draw negative inferences about offenders who fail to assist with such procedures and enquiries. However, even in cases where the offender is uncooperative, sentencing judges may be able to achieve some restorative elements such as reparation and vindication for the victim.

2.7 Summary

Restorative justice is a movement which promotes the settlement of conflicts arising from crime through the application of rational problem-solving techniques. Mediation and reparation are major themes and restorative justice seeks to empower victims, hold offenders accountable and encourage them to accept responsibility for their behaviour as a means to healing the wounds caused by crime.

The community, rather than the state, is perceived as the setting within which crime occurs and, hence, the prime site for crime control. Crime is believed to arise out of disrespect and, in the long-term, meaningful crime reduction is expected to be achieved through strengthening the community's ability and readiness to respond to crime and the diminution of factors such as prejudice and inequity that foster disrespect for the community and its values.

There is no definitive restorative programme. Rather, programmes across a wide range of community and state functions may contribute towards a restorative orientation in criminal justice. Some programmes, such as

victim-offender mediation and reparation schemes, place great emphasis on their restorative aims.

Other initiatives, such as violence management and community mediation programmes, are seen as having important contributions to make towards the achievement of the core objectives of restorative justice. Many restorative projects are integrated with the existing criminal justice system. Access to mediation, rehabilitation and reparation may replace or occur at several stages of criminal proceedings. Restorative programmes may also operate outside or independently of the criminal justice system.

This complexity poses some challenges in analysing restorative justice.

Definitions of restorative justice tend to be inclusive rather than exclusive of programmes which might not share one or more common objectives.

There is also occasional disparity between what some projects claim as their objectives and their actual achievements. Thus comparison of the relative merits of projects is difficult. Some proponents of restorative justice consider that it should be considered within the context of the wider aims of the criminal justice system ( as noted at paragraph 2.2), or that there needs to be recourse to adjudication or punishment or incapacitation when restorative techniques fail or are rejected (Braithwaite, 1995).

Practices that are restorative by intent and design may be constrained by their confinement within a larger court-based system and its traditions or processes. Conversely, without direct access to the authority of the court or the resources of the state, the ability of informal restorative justice programmes to influence the response to offending may also be significantly constrained.

How the elements of a restorative system are represented and co-ordinated in relation to a system of justice may greatly influence their efficacy and the opportunity that they have for meaningful influence on outcomes for victims and offenders. Chapter 3 focuses on the New Zealand criminal justice system, and describes elements within it which may be considered restorative.

Chapter 3 : The New Zealand Criminal Justice System And Restoration
3.1 Introduction

Some restorative elements (or opportunities for them) can be identified in the current criminal justice process and in existing sentences. Collectively, they provide considerable opportunity for a restorative approach. On the other hand, it may be argued that the full benefit of individual restorative elements cannot be realised if they are encapsulated within a non-restorative process.

Restorative justice programmes in overseas jurisdictions are varied. However, common features include victim-offender meetings and the idea of reparation, either to individual victims or to the community. Until recently in New Zealand, the victim's part in the court process was little more than that of a witness. It was through the advocacy of victims themselves that their vital interest in criminal proceedings has come to be more fully recognised in legislation and practice (Graham, 1993).

The Victims of Offences Act 1987 established a set of principles relating to victims of crime. These principles cover the way that victims should be treated; the assistance, information and protection that should be provided to them; and the involvement of victims in the criminal justice system. Through these principles, victims have become more integrated into the court process. In particular, the victim is to be fully informed about the court process, and the victim's views are to be taken into account in some cases when bail for the offender is being considered.

The harm done to victims is communicated to the court using victim impact statements. There is some debate as to how effective increased victim involvement in the criminal justice system has been in meeting the needs of victims of offences, or whether changes which have increased their involvement can be considered restorative.

3.2 The Youth Justice System

The New Zealand youth justice system applies to children and young people under 17 years of age. It has a variety of goals, a number of which accord with a restorative approach. These include: an emphasis on young offenders paying for their wrongdoing in an appropriate way; the involvement of families and offenders in decision-making arising from the offending; the participation of victims in finding solutions; and consensus decision-making (Children, Young Persons and Their Families Act 1989).

There is both an informal and formal system, with the family group conference having a central role in both systems. In the informal process, once the police have established an intention to charge, they are able to direct a youth justice co-ordinator to convene a family group conference without reference to the court.

If this family group conference achieves agreement about what should be done and the young offender completes the plan, then the matter will not proceed to court. Where agreement is not reached, or when the members of the family group conference agree that the young offender should appear in court, the police are able to refer the case to the court.

If a young offender is arrested, the formal youth justice process operates.

The young offender will appear in court without entering a plea. If the charge is not denied, the judge will direct a youth justice co-ordinator to convene a family group conference. If the charge is denied, then the case will proceed to a defended court hearing. If the charge is proved, the court must order a family group conference and consider the outcome prior to imposing an order on the young offender (section 279, Children, Young Persons and Their Families Act 1989).

A family group conference involves the victim (or their representative), the offender and members of the offender's family. It is attended by the police and facilitated by a youth justice co-ordinator who is employed by the Department of Social Welfare. Others, such as a social worker and a legal advocate for the young offender, may attend the conference at the request of the co-ordinator. Maxwell and Morris (1993: 117) described it thus:

The theory underlying the bringing together of the victims, the young offenders and their families is to effect a reconciliation between the parties. The offender should accept responsibility for the wrongdoing done to the victim and should offer to make amends to the victim. In particular it is intended that attendance at the family group conference should be in part a healing experience for victims.

The legislation envisages considerable variation in practice at family group conferences with the family of the offender applying the procedures they wish.

In practice, youth justice co-ordinators have played a key role in advising families about how to proceed. They inform those entitled to attend of the conference details, discuss the process with the family and invite other interested parties, such as social workers, sports coaches or teachers.

In their review of youth justice practice, Maxwell and Morris (1993) suggested that the conferences followed a typical pattern. The process generally involves:

· Introductions;

· An explanation of the procedure by the co-ordinator;

· The presentation of the summary of facts of the offence by the police;

· An opportunity for the offender to comment on the accuracy of the police statement;

· An opportunity for the victim (or representative) to present their view if the offender admits the offence;

· A general discussion of possible outcomes;

· A discussion of options among the offender's family;

· The formulation of a plan, response or outcome by the offender's family;

· General negotiation;

· Agreement from the enforcement agency and victim;

· Recording of the agreed plan and closure of the meeting.

A family group conference may proceed even if some participants who are entitled to be there decline to attend. Victims do not have to attend. Offenders do not have to attend either, although conferences rarely proceed without their attendance.

Only two outcomes are permitted. All of those who attend the family group conference have to agree to the plan or recommendation. If there is no agreement, the matter must be referred back to the youth court.

The proceedings of family group conferences are confidential. Neither the enforcement agency (usually the police) nor the court may use information from the conference, even if there is no agreement and the matter goes on to a defended trial.

The Children, Young Persons and Their Families Act has moved significantly towards providing for the personal involvement of victims in the youth justice process. The guiding principles for youth justice contained in the legislation require that any measures for dealing with offending by children or young persons should have due regard to the interests of any victims of that offending (section 208).

Victims (or their representatives) are also legally entitled to be present at any family group conference called to deal with alleged offending against them (section 251). As entitled members, victims are able to disagree with any plan proposed. This power is considerable since all members of family group conferences must agree in order for a plan to be presented to the court or prosecuting authority (section 264).

While the youth justice process gives a more prominent and direct involvement to victims, less than half of the family group conferences in the Maxwell and Morris sample had victims or victims' representatives attending. While this was in the first year of operation of the new procedures, three years later it was still the case that fewer than half of youth justice family group conferences involved victim attendance (Department of Social Welfare, 1993).

Maxwell and Morris also found that although 95% of the family group conference cases in their sample were recorded as having an agreed outcome, a high level of victims (40%) were recorded as dissatisfied with the outcome (Maxwell & Morris :1993). A number of possible reasons for this result were suggested, including that:

· Victims may not have realised that they could have effectively vetoed any proposal put forward by the family;

· It was relatively common that family group conferences did not ascertain whether or not the victim agreed; and

· The victim's agreement was not sought with the same emphasis as other parties.

Family group conferences can be either a positive or re-victimising experience for victims. In a 1993 survey of groups and individuals who provided services to victims of crime, about half the respondents were critical of family group conferences.

It was suggested that the venue and timing of conferences can be inconvenient for victims, that victims can be intimidated at family group conferences and that the balance favours the offender. There were also a number of complaints about the lack of consideration given to victims by youth justice co-ordinators.

Difficulties mentioned with reparation agreed through family group conferences included slow payment and the lack of follow-up (Lee & Searle, 1993).

In 1994, the Children, Young Persons and Their Families Act was amended to address criticisms raised in a number of reports. The changes emphasised requirements to involve victims and to consult with them as to the time and venue for a family group conference. Victims are now entitled to bring supporters to the family group conference, although these people are not entitled to have a say in decisions.

It has been suggested that the victim is at the heart of the youth justice process (Brown cited in Maxwell and Morris, 1993: 172). However, there is an inherent conflict between this view and the provisions of the Children, Young Persons and Their Families Act, which has as its primary focus offenders and their families and which, while providing for involvement of victims, require only that due regard be given to their interests.

3.3 The System for Adult Offenders

The criminal justice system for adults operates in the district and high courts and applies to those aged 17 years or over, although it also deals with the most serious offending committed by those under this age. There are a number of provisions in the adult system which have a restorative focus or would allow for this focus to be introduced. These provide the opportunity for victim involvement in decision-making, individual or community reparation and in some cases victim-offender meetings.

3.3.1 The Police Adult Pre-Trial Diversion Scheme

The police pre-trial diversion scheme for adult offenders was first developed in 1988. The scheme involves offenders who would otherwise be prosecuted being diverted to a programme after their first court appearance and before the charge is formally heard. Where this diversion programme is satisfactorily completed, the charge is ultimately withdrawn or no evidence is offered. Judicial agreement is sought for the initial remand for diversion and to the later withdrawal of the charge if that is the preferred method of case disposal. Diversion is usually also accompanied by a police warning that further offending will result in action through the court system (Young & Cameron, 1992).

Guidelines were developed when the scheme was initially set up and these have since been revised and formalised into national police policy

(New Zealand Police, 1994). Selection of cases is based on the following:

· The offender should have no previous convictions, or where there are previous convictions there should be special circumstances which make diversion appropriate;

· The offence must not be serious;

· The offender must admit guilt, show remorse and be prepared to make full reparation to the victim;

· The victim must always be consulted about the proposal to divert the offender and serious consideration given to their views; and

· The police officer in charge of the case must also be consulted and account taken of their views and

· The offender must agree to diversion.

The nature of diversion differs between police districts. Common elements with a restorative focus include an apology delivered personally or by letter to the victim, full reparation to the victim, a donation to charity, community work and a course of counselling. Some police districts allow community groups to determine diversion programmes and supervise offenders' completion of them. This introduces an element of informal community justice and its focus on community responsiveness to and responsibility for offending differs from the general focus of the diversion scheme (Young & Cameron, 1992).

In 1994, there were 144,575 cases prosecuted, and 2,637 adult offenders were diverted through the police scheme (New Zealand Police, 1995).

3.3.2 Pre-Sentence Investigations

The Criminal Justice Act 1985 included a provision allowing any offer of compensation made by or on behalf of the offender to the victim to be taken into account in sentencing (section 12). An amendment in 1993, permits the court to consider any offer by an offender for compensation in a financial sense or by means of work or service for the victim. This allows the court to recognise a variety of cultural practices for the resolution of disputes involving criminal offending.

There are no records of the number of offers made and considered by the court. However, court practitioners suggest that there has been little use of this provision. The Act does not impose an obligation on any officials or officers of the court to investigate or monitor offers to make amends. The implication is that offenders must either approach victims directly which is generally otherwise discouraged, have their counsel make the approach, or make the offer to the court without reference to the victim.

Section 14 of the Criminal Justice Act 1985 empowers the court to adjourn proceedings in any case where an offender has been found guilty or has pleaded guilty, before sentence, to allow inquiries to be made or to determine the most suitable method of dealing with the case. This provision has been used by judges of the district and high court to arrange victim-offender meetings in appropriate cases and to consider the outcome of that meeting in the sentencing process (Mansell, 1994; Tompkins J, 1995).

Probation officers may present pre-sentence reports on their own initiative, but must prepare them if requested by the court (section 15, Criminal Justice Act). These reports may include recommendations relating to the disposition of the case and the officer's opinion of how the offender would respond to any sentence. A victim-offender meeting could be initiated by a probation officer under this provision in appropriate cases, and the outcome included in the recommendations to the court on the disposition of the case.

Section 16 of the Criminal Justice Act provides for an offender to call a witness as to how matters associated with ethnic or cultural background may relate to the commission of the offence or help to avoid further offending.

This could be an opportunity for the offender or counsel to present the outcome of a restorative process to the court for it to consider in reaching any sentencing decision.

3.3.3 Sentencing Options

REPARATION [sections 22-25 of the Criminal Justice Act 1985] This is a relatively new sentence, having been introduced in 1985. It involves the payment of money by an offender to the victim of an offence through the court as recompense for emotional harm or loss of or damage to property. Reparation is not available in respect of physical injuries.

In theory, the process for determining reparation provides for the victim and offender to meet with a probation officer whose role includes facilitating communication between the parties and regulating the interaction. Where the amount of recompense is under $500, reparation can be ordered without specific reference to the victim. In other cases, where a reparation report is requested, a variety of factors combine to reduce the likelihood of meetings between the victim and offender.

A survey in 1992 found that face-to-face meetings occurred in only 4% of cases referred for reparation reports and the reality was that probation officers were largely acting as intermediaries with most victim contact by telephone rather than in person (Jervis, 1995).

Court orders for reparation were made in approximately 17% of all cases each year between 1991 and 1993 (Jervis, 1995). This represents a significant increase over earlier use of the sentence (6% of cases in 1987). While the proportion of cases to which reparation has been applied has been relatively stable in recent years, the amount of reparation ordered has been increasing. In the 1991/92 financial year, $10.4 million was ordered, with $4.6 million paid to victims. By 1993/94, the amount ordered had risen to $13 million, with $6.5 million paid to victims. The difference between the two amounts represents reparation that is due to be collected as a result of time payment arrangements, enforcement action and reparation not due for payment (Department of Justice, 1994).

Reparation can be imposed in combination with other sentences including imprisonment and community-based penalties. Legislative provision was strengthened in 1993 and Judges are now required to consider reparation in all cases and impose such a sentence unless "it would be clearly inappropriate to do so" (section 11). Additionally, amendments in 1993 gave priority to the payment of reparation to individual victims over the remittance of fines to the state. Where an offender has insufficient means to pay both a fine and reparation, although both would be appropriate, then reparation alone may be ordered. The satisfaction of reparation obligations is also to have priority in respect of any payments made by an offender subject to both fines and a reparation order.

FINES [section 28 of the Criminal Justice Act 1985] Where an unprovoked offence causes emotional or physical harm to a victim and the court imposes a fine, it is required to consider whether all or part of the fine should be awarded to the victim. This only applies where a fine is to be imposed and is, therefore, not a general requirement that the court consider compensating victims. There is no standard means of establishing appropriate levels of compensation and the imposition of this penalty does not directly involve the parties other than in payment and receipt through the medium of the court. In 1993/94 a total of $77.6 million in fines was imposed (Department of Justice, 1994). It is unfortunately not possible to identify how much of this was ordered to be paid to victims.

This system of restitution to victims has many of the faults attributed to the British system of compensation orders. These include insufficient information for judges, impoverished defendants and the potential for disputes over the size of loss (Marshall, 1990). In New Zealand, it is possible that provisions for criminal compensation, and later accident compensation have shifted attention away from fines as a means of restitution to victims.

COMMUNITY SERVICE [sections 29-36 of the Criminal Justice Act 1985] Where convicted offenders consent, the court may impose an order requiring that they complete between 20 and 200 hours of service for certain types of community organisations. Offenders generally undertake the service on an individual basis but may be working alongside other offenders. They are supervised by representatives of the organisation receiving the service, while the sentence is monitored and enforced by a probation officer. The imposition of this sentence is limited by the suitability of the offender and the availability of suitable work.

This sentence is in the nature of symbolic reparation to the community for the offending behaviour. It may provide direct reparation to the victim where the community organisation concerned was the victim of the offending but this is less usual. In 1993, 9,953 offenders were sentenced to undertake community service - almost 10% of total cases sentenced (Spier, 1994).

PERIODIC DETENTION [sections 37-45 of the Criminal Justice Act 1985] Periodic detainees carry out community work in small groups supervised by a Department of Justice employee. They are in day-custody and required to undertake the work which is in the nature of symbolic reparation. A total of 23,279 offenders received this sentence in 1993 - 23% of total sentenced cases (Spier, 1994).

COMMUNITY PROGRAMME [sections 53-57 of the Criminal Justice Act]

This sentence seeks to have offenders comply with programmes which address the individual causes of their offending. Where a programme involves components aimed at integrating an offender back into their community, community or family members may be involved in

decision-making about the programme presented to the court.

A total of 1,177 offenders received this sentence in 1993 - 1.2% of all sentenced cases (Spier, 1994).

3.3.4 Element of a Sentence

PRISON WORK [sections 20-21 of the Penal Institutions Act 1954] While serving sentences of imprisonment, prison inmates are required to undertake work as directed by the superintendent. The objectives of prison work include reparation to society for the offending behaviour and an increasing number of inmate hours have been devoted to community work projects. In 1993/94, 143,740 inmate hours were spent on community work. This is the equivalent of 75 full-time workers.

Another employment option taken up by a small number of inmates nearing release provides the opportunity to recompense individual victims of offences. Section 21A of the Penal Institutions Act permits the daily release of inmates to engage in employment in the community. Earnings are paid by the employer to the Chief Executive of the Department of Corrections who is empowered to pay, among other things, any fine or reparation. A factor in work parole decisions is whether release would enable contributions to be made to reparation or other, lawfully directed or authorised, compensation.

Only 11,868 inmate hours were spent in work under this scheme in 1993/94 - the equivalent of six full-time workers. The extent to which reparation or compensation was paid through the release to work scheme is not known.

3.4 Summary

There are a number of opportunities for using restorative processes and achieving restorative outcomes within the scope of existing schemes, current legislation and sentencing options. In terms of the involvement of individual victims, the youth justice system and the procedures for the preparation of reparation reports in the adult system come closest to achieving a mandated mediation process.

However, there are qualifications regarding each. The youth justice system is primarily concerned with offenders and their families while reparation sentences seldom involve face-to-face mediations and deal only with financial issues. Nonetheless, there is nothing in the existing law which would preclude the judiciary from initiating victim-offender meetings either for their own sake or to contribute to the sentencing process and some judges have done so. None of the sentencing options satisfies all three of the principles of restorative justice noted in paragraph 2.6. Additionally, the restorative elements within the current criminal justice system are fragmented.

For example, the restitution provisions for property loss, emotional harm and physical injuries are divided between reparation and fines provisions.

This fragmentation contributes to an environment in which victim-oriented restoration is difficult to achieve and often assumes less importance in relation to other criminal justice objectives.

Whether or not it was the intent of legislators to introduce restorative elements for adult offenders, players within the current criminal justice system have authority to initiate some restorative solutions to the problem of crime. Where these have been attempted, they have been characterised by a lack of adequate resources, follow-up or evaluation. With the exception of reparation reports, they have tended to be ad hoc rather than part of formal programmes.

The experience of family group conferences highlights that, whatever the intent of legislation, it is actual practice which impacts upon victims, offenders and the community. For example, although the Children, Young Persons and Their Families Act gave victims the entitlement to attend family group conferences, this means very little if in practice they are not informed of this right nor provided with sufficient opportunity to exercise it.

Legislative restrictions do not inhibit the development of a restorative approach in the existing criminal justice system. Accordingly, practice and the views and behaviour of those who have a key interest and power may be strong influences on directional change within the system.

Jackson (1988: 180) suggested that actors in the criminal justice system "...apply judgements which reflect the concerns of the conforming public". Public opinion influences the system through its impact on legislators, enforcement and administration agencies. The following chapter deals with current research about the New Zealand public's attitude to the criminal justice system in general, and restorative justice in particular, and also considers other studies about public attitudes to reparation.

Chapter 4 : Public Attitudes Towards Restorative Justice
4.1 Introduction

If restorative justice is to be introduced, or maintained, in any country as a substantial part of the way crime is dealt with it will be important to know how acceptable restorative justice is to the general public. If the public find the concept unacceptable, governments will be cautious about supporting its development.

This chapter attempts to summarise the current state of knowledge about the public's attitudes towards restorative justice. It focuses on research findings that have been published in the last decade and places special emphasis on work that has been undertaken in New Zealand, and in particular a recently completed focus group discussion study. The review concentrates on the attitudes of the general public although research specifically on the views of victims of crime has been included.

4.2 Crime, Criminals and the Justice System

Before examining the findings of research on public attitudes towards restorative justice it is useful to first consider the public's views on crime, criminals and the operation of the criminal justice system, as it is these attitudes which will shape the public response to restorative justice. It should be noted that most of this research has been undertaken overseas.

Research on the causes of crime has tended to show that the public think the underlying causes are social rather than individual. Unemployment, poverty and lack of education are frequently cited as important causes, and improvements in these areas promoted as solutions to crime (Canadian Sentencing Commission, 1987; Doble, 1987; Newport & Saad, 1992; Umbreit, 1994).

The public's attitude towards restorative justice will also be influenced by their conception of criminals and their degree of knowledge about crime and sentencing. The public's image of an offender tends to be that of a violent offender who is often a recidivist (Brillon, 1988; Doob and Roberts, 1988; Saladin, Saper, & Breen, 1988; Thomson & Ragona; 1987). In the light of this, it is not surprising that the public also overestimate the amount of violent crime and recidivism (Doob & Roberts, 1988).

People appear primarily to want the justice system to prevent crime and to provide safety from offenders (Brillon, 1988; Doble, 1987) and imprisonment can appeal as being a way to achieve this goal (MRL, 1995). The general desire for harsher sentencing which has consistently been found by public opinion polls (see Doob and Roberts, 1988; Innes, 1993; Roberts, 1992) may be, in part, a reflection of this need for security. Research using more sophisticated methods which provide those surveyed with more information on the offender and the offence has tended to find less punitive attitudes (see Lee, 1994; Roberts, 1992). Research has also tended to find that victims are no more punitive than non-victims (Boers and Sessar, 1991; Hough and Moxon, 1985).

4.3 Research on Public Opinion and Restorative Justice

Key themes within descriptions of restorative justice are reparation or restitution to the victim and victim-offender mediation or conciliation.

In addition, the aim of reducing the use of custodial sanctions is often explicitly or implicitly associated with restorative justice.

4.3.1 Reparation or restitution

Reparation or restitution are usually in the form of financial recompense by the offender to the victim or, less frequently, they may involve the provision of services to the victim. The undertaking of some form of community service can also be regarded as a form of reparation. There is now a large body of research from many parts of the world looking at public opinion on restitution and reparation, particularly in relation to assessing reaction to their use as an alternative to imprisonment.

Canadians appear to favour alternatives to imprisonment such as probation, restitution, community service and fines rather than spending money on building more prisons in order to overcome prison crowding. Also, when the public are asked about the most appropriate sentence for breaking and entering, there is support for offenders undertaking work which is beneficial to the community or the victim, or for offenders paying back the victim in some other way (Doob and Roberts, 1988).

Later research has also found support for alternatives to incarceration for non-violent offenders with the most popular alternative being properly supervised community service (Adams, 1990).

Research in several US states has shown support for the use of reparation. Just under three-quarters of a survey sample of Ohio residents indicated that victim compensation was acceptable as an alternative to imprisonment (Knowles, 1984) and a subsequent survey showed strong support for restitution as an alternative to custodial sanctions for juvenile offenders (Knowles, 1987). In Minnesota, Bae (1991) found considerable approval of restitution as an alternative to imprisonment for property offenders, although victims were less likely to accept restitution than were non-victims.

The endorsement of restitution by the general public was confirmed by a later survey which found that most people liked the idea of the offender paying compensation rather than receiving a short prison sentence for burglary (Umbreit, 1994). A survey in Illinois indicated acceptance of probation plus volunteer work as a sentence for burglary with the level of acceptance increasing if all the property from the burglary was recovered (Thomson and Ragona, 1987).

In Alabama, restitution is acceptable to the public particularly when it is combined with strict probation and there is also support for the use of community service (Doble & Klein, 1989). The proposition that non-violent offenders should be forced to work to earn money to pay restitution to their victims was endorsed by most respondents to a North Carolina survey (Hickman-Maslin Research, 1986). A study using focus group discussions in ten locations throughout America found that respondents favoured the use of alternatives including restitution and community service, and support for this increased after respondents were informed about the cost of incarceration. However, these alternatives were not seen as suitable for violent or repeat offenders or drug dealers (Doble, 1987).

Support for reparation is also evident in Britain. Results from the 1984 British Crime Survey indicated that most people approved of making some

non-violent offenders pay compensation to their victims instead of going to prison, and also supported making some non-violent offenders do community service instead of going to prison (Hough and Mayhew, 1985).

Respondents to the survey who had been victims of burglaries or car thefts were more enthusiastic about reparation than were non-victims. A 1986 British public opinion poll found that three-quarters of respondents favoured more convicted adult offenders being made to perform community service as an alternative to imprisonment (Morgan, 1986, cited in Wright, 1989).

The International Crime Surveys which have been undertaken in 1989 and 1992 have confirmed the widespread acceptance of sentences with a reparative element.

In most countries in the industrial world, community service was selected as the most suitable sentence for a recidivist burglar (van Dijk, 1992). The New Zealand Department of Justice took part in the second International Crime Survey, and in response to the question about the most appropriate sentence for a recidivist burglar, community service was chosen as being more suitable than a fine, prison, a suspended sentence or "any other sentence". Of the countries in the industrial world, New Zealand had the second highest level of support for this sentence.

The survey also found that New Zealand victims were no more punitive than non-victims (Lee, 1994).

Burt Galaway has undertaken two major investigations of public opinion towards reparation in New Zealand (Galaway, 1984; Galaway and Spier, 1992). Both studies used substantially the same methods and questions. Two random samples of 1,200 people drawn from the electoral rolls were presented with identical descriptions of property crimes and asked to indicate whether imprisonment or some other penalty would be appropriate.

The alternative penalties consisted of a fine, probation, community service and periodic detention (community work in day custody). The list of alternative sanctions provided to respondents in one of the random samples (the experimental group) included reparation to the victim.

The earlier study indicated the public would be likely to accept a reduction in the use of imprisonment for property crimes if offenders had to pay reparation to their victims. However, the results of the later survey showed some moderating of the public's support for using reparation instead of imprisonment. With regard to the views of victims, in the first survey victims were slightly more likely to favour imprisonment than were non-victims, and in the second study there was little difference between the responses of victims and non-victims. The second study of reparation also included a mail survey of victims who had been awarded reparation. When asked what single or combination of sentences would have been suitable for their offender most nominated reparation.

Interestingly, an opinion poll undertaken by Listener/Heylen in 1994 (Lee, 1994), repeating questions which had been used in a 1985 survey, found a slight increase (from 79% to 83%) in the proportion of respondents agreeing with periodically detaining offenders to do community work of a public or charitable nature.

When considering research from different countries it is important to bear in mind that countries have criminal justice systems which operate differently from each other. This is relevant when looking at the findings in relation to alternatives to imprisonment. Information on prison populations, such as that provided in Table 4.1, can give some indication of punitiveness in the various jurisdictions.

Although it is recognised that the use of such international comparisons is fraught with problems (Pease, 1994), the data does indicate that some countries, including New Zealand, have a high rate of imprisonment and therefore there may be more scope for the use of alternatives to imprisonment than in other countries where the rate is lower.

Table 4.1

Prison populations per 100,000 for selected jurisdictions

in 1992-93
Country Rate

Australia 91

Canada 116

England/Wales 93

Germany 80

Italy 80

New Zealand 135

Northern Ireland 126

United States 519

Note: From Americans Behind Bars : The International Use of Incarceration, 1992-93, The Sentencing Project, 1994, referred to in Overcrowded Times : Solving the Prison Problem, October 1994.

4.3.2 Mediation and restitution

A number of studies have examined public acceptance of victim-offender mediation or conciliation as a process for redressing the wrong done by an offender.

A public opinion survey of 825 adults conducted in Minnesota assessed support for victim-offender mediation (Umbreit, 1994). The survey asked participants what their response would be to a programme where the victim and the offender meet in the presence of a trained mediator, the offender learns how the offence affected the victim and a plan is worked out for compensating the victim for losses. Just over half of those surveyed said that if they had been the victim of a non-violent property crime committed by a juvenile or young adult they would be very likely to participate in the programme and a further 31% said that they would be somewhat likely to participate.

Umbreit (1991; 1994) has undertaken two studies which examine victim satisfaction with victim-offender mediation although both studies deal with juvenile rather than adult offenders.

The first study consisted of post-mediation interviews with victims and juvenile offenders. The victims had a positive reaction to the mediation and nearly all felt that the agreement about restitution reached at the meeting was a fair one. The second study was much larger and consisted of interviews with victims and offenders at four different sites. At three sites, victims with three types of involvement were interviewed: those who participated in mediation; those who were referred but did not participate; and victims who were never referred to mediation. The cases dealt with by the schemes involved juvenile offenders who had committed mainly property offences and were referred to the schemes by the local courts and probation staff. Crime victims reported being less upset about the crime and less fearful of revictimisation after they met the offender in mediation. Involvement in mediation significantly increased victims' satisfaction with how the juvenile justice system dealt with their case compared to victims who did not participate. Mediation also increased perceptions of fairness.

Another study which focused on juvenile offenders and the views of victims was incorporated into the British Crime Survey (Maguire and Corbett, 1987). All respondents to that survey who had been a victim were asked whether they would have accepted the chance of meeting the offender in order "to agree a way in which the offender could make a repayment for what he had done". About half of the respondents said that they would have accepted. Victims of violent crime or threats were less likely to favour the idea than were victims of theft and burglary.

In Hamburg, Germany a mail survey of a random sample of 1,799 people selected from the central residents' register was undertaken in 1984 and 1985 (Boers & Sessar, 1991). The survey assessed attitudes toward restitution in relation to various types of offences. Restitution instead of punishment was favoured for most of the hypothetical criminal incidents. In 24% of the cases the respondents said they would accept private settlement of the case (which included restitution or reconciliation) with or without a mediator, and in a further 18% of cases there was acceptance of restitution or reconciliation mediated by an officially appointed person. Agreements on restitution initiated and supervised by the criminal justice system were acceptable in an additional 17% of cases. However, mediation and restitution or reconciliation were much more likely to be accepted in relation to the minor crimes than in the case of more serious offending.

In New Zealand, the results of the 1985 and 1994 opinion polls mentioned earlier indicated a reasonable level of acceptance of mediation linked to restitution (Lee, 1994). Just over half of the respondents to the 1994 poll agreed that offenders should meet with their victims and where possible put things right: in 1985 only 41% favoured this proposition.

The only substantive New Zealand research on victim-offender mediation in practice is a study of family group conferences (Maxwell and Morris, 1993). However, these conferences deal with juvenile rather than adult offenders.

A total of 149 victims involved in cases which resulted in a family group conference were interviewed. Fifty nine per cent of the victims found participating in the family group conference "helpful, positive and rewarding". These positive views related to 39% of the family group conferences that were attended by the victims who were interviewed. Satisfaction was linked with careful briefing prior to the conference, satisfaction with outcomes, and the victims' reasons for attending the conference. However, a quarter of the victims reported that they felt worse after attending a conference and this was linked to dissatisfactions with the outcome of the conference and the victims' reasons for attending the conference. Victims were also found to be dissatisfied with the lack of follow-up of agreements reached at conferences.

4.4 Focus Group Discussion Study

In order to obtain information to assist in policy development, the New Zealand Department of Justice commissioned the MRL Research Group (1995) to carry out research investigating public opinion towards restorative justice. Sixteen focus group discussions were held in four centres (three urban and one urban/rural) in October and November 1994. In order to facilitate a free expression of views, the participants were allocated to different groups according to their ethnic origin, gender and age as is set out in Table 4.2. Overall, the groups had a representative spread of income.

Table 4.2

The composition of the 16 focus groups
Maori Non-Maori

Female Age group 17-24 25-44 Age group 17-24 25-44

45-60 over 60 45-60 over 60

Male 17-24 25-44 45-60 over 60 17-24 25-44 45-60 over 60

A maximum of seven people participated in each group which lasted approximately three and a half to four hours. The groups with Maori participants were facilitated by Maori moderators living in the region.

The first part of the focus discussion was concerned with attitudes towards the current justice system and what the participants thought the ideal justice system would be like. The ideal justice system which emerged in the discussions contained elements of restorative justice, that is, more participation by the victim including victim-offender meetings. However, this discussion was usually in the context of making the justice system more strict. The participants wanted the justice system to do somewhat contradictory things. They wanted to feel safe and secure through knowing that offenders were locked away or deterred from offending because of the threat of harsh sentencing, and yet, at the same time, they wanted a fairer society and a focus on preventive and rehabilitative measures.

After discussing the ideal justice system, participants were given a very brief description of the concept of restorative justice and asked about their initial reaction. The groups were then given a fuller description of restorative justice. This description mentioned victim-offender meetings after an admission or finding of guilt, the aim of putting things right and points of difference between the current system and restorative justice. Finally, after broad discussion about restorative justice, the participants were asked what they thought about specific aspects of restorative justice.

In general, participants expressed the view that restorative justice would be a move in the right direction and would improve the current system, although there were reservations about how restorative justice would work in practice.

(Interested?) Yes we are running out of alternatives. The prisons are full. The Justice system is choking. The time is right.

Maori, male, 25 to 44 years

Idea sounds excellent but the victim might not want to see offender. I think the community needs healing and so do offenders.

Non-Maori, female, 17 to 24 years

Approval of restorative justice reflected the desire expressed by many participants for a society which is concerned about people and emphasises healing and caring. Female participants tended to accept the idea of restorative justice more readily than did male participants. Three of the Maori groups rejected the idea of restorative justice because they perceived it as maintaining a European justice system.

A number of benefits and concerns were raised during the discussion about restorative justice. All the participants perceived that it would change the position of the victim. The importance of victims' rights in any restorative process was constantly referred to by participants.

Victims having more input into the outcome of a case and being given an opportunity to express their feelings were generally seen as positive aspects.

I'm interested because you have got a meeting between two people with a mediator. It is vital each know and understand the process. Peace of mind for victim and also offender achieves something. Equality on both sides. Everyone has their say.

Maori, male, over 60 years

Under the present system the victim has very little input. This is more balanced between the two. People get upset about the system at present time. I'm in favour of this more balanced approach.

Non-Maori, male, 45 to 60 years

However, there were some concerns about the victim meeting the offender. Participants questioned whether it is reasonable to expect the victim to invest their time, energy and resources in a system that they thought would assist the offender.

Depends on the victim, but if (the) offender (is) angry or hardened, then nothing really comes out of it, just frustration for the victim.

Non-Maori, female, 17 to 24 years

The participants considered that hearing about the impact of their behaviour should have a rehabilitative effect on offenders. However, there was also concern that some offenders, particularly repeat offenders, might not be affected by the process and might also pretend to feel remorse in order to get a lighter sentence. Participants were especially likely to raise this concern if they viewed the causes of offending to be individual rather than social.

He would only be there because he was only forced, or to get a more lenient sentence.

Non-Maori, female, over 60 years

Timing was an issue raised by women participants in particular. They felt that the timing of the meeting should be decided by the victim.

Reconciliation, which is a goal of restorative justice, has been said to involve the establishing or re-establishing of a positive relationship between the victim and offender (Zehr, 1990). The participants tended to get very concerned if this idea of victim and offender (re)establishing a relationship was included in the description of restorative justice.

They either interpreted it as referring to a loving affiliation and found it repugnant to suggest that the victim should establish such a relationship with an offender, or they thought that the use of the word relationship implied that restorative justice would only be used where the victim and offender know each other.

The last thing they'd (the victim) want to do is establish (a) relationship with the offender

Non-Maori, female, 25 to 44 years

The majority of participants indicated that all types of offences and offenders could be dealt with appropriately in a restorative system as long as the victim freely wanted this to happen.

I feel if it is going to be part of our system, and if the victim requested it, I would say give it a go for all crimes. It's the victim's right to want to face that person.

Non-Maori, female, over 60 years

When presented with a list of specific types of offences, property crimes were selected most frequently as being appropriate for restorative justice than crimes against the person or drug offences.

From a list of possible mediators the participants most frequently chose the independent moderator as the type of person they thought should facilitate victim/offender meetings although a wide range of other possible mediators were also selected or rejected by some participants.

Concerns about personal safety and the role of the state were also raised in the groups. The question of personal safety worried some participants who feared that victims might be subjected to retribution from disgruntled offenders or their associates. Many participants did not want restorative justice to replace the present system. Non-Maori participants were particularly concerned that the State should retain an overview capacity to ensure fairness. There were also concerns about the potential costs to the taxpayer of adding another layer to the justice system.

Despite the concerns raised within the groups there was support for restorative justice programmes being introduced on a trial basis and evaluated.

4.5 Summary

Any expansion of the use of restorative justice will need to be planned with regard to the current knowledge about public attitudes towards criminal justice in general and restorative justice in particular.

A considerable amount of research has now been undertaken to ascertain public attitudes towards reparation or restitution, but less research assesses attitudes towards a process which uses both reparation and mediation.

It seems clear from the research that the public finds attractive the idea of offenders paying restitution to victims. However, there are obviously limits to its use as an alternative to imprisonment. Generally, the public favours the use of reparation or restitution for less serious offences and offenders.

There appears to be considerable support for its use in relation to property offenders. With regard to a process which involves both reparation and victim-offender mediation, the studies also indicated public acceptance of its use in relation to less serious offending and offenders. However, the focus group discussion research carried out in New Zealand indicated that there may be a level of support for using the process for a wider range of offences provided the victim was happy for this to occur.

To be acceptable to the public it appears that restorative justice schemes would need to be viewed as both holding offenders accountable for their actions, and leading to what the public would consider to be appropriate outcomes. With regard to violent offenders, the public would need to feel confident that the offender would not pose a threat to people's safety and that the victim was satisfied with the outcome of the restorative process.

If restorative justice can reconcile the public's desire for safety and rehabilitation then it is likely to receive public support.

Chapter 5 : The Benefits And Risks Of Restorative Justice
5.1 Introduction

Marshall and Merry (1990) suggest that, with competition for limited funding, supporters of new approaches are liable to be forced into claiming more for their ideas than can be attained, particularly in small-scale trials.

This chapter looks at some of the suggested benefits and risks of restorative programmes and assesses what evidence there is for some of the claims made about their efficacy.

5.2 Direct Involvement of the Parties

5.2.1 Victims

Restorative justice, whatever particular focus programmes may have in different locations, gives victims the opportunity for direct involvement in the process of dealing with the incident that has affected them. They have the opportunity to express their feelings about the offence and its impact to the person who has offended against them, and they can also contribute their views about what is required to put things right.

Restorative processes may thus offer the prospect of better meeting victims' needs and increasing victim satisfaction with the criminal justice system. Some schemes even include specific objectives of this nature. For instance, the British schemes reviewed by Marshall and Merry (1990) all had objectives of increasing victim satisfaction or meeting victims' needs and British Government funding of four pilot schemes was associated with better serving victims.

Studies of restorative programmes in the United States and Britain report varying levels of victim satisfaction. Coates and Gehm (1985), cited in Marshall and Merry (1990) found that 59% of victims involved in American Victim-Offender Reconciliation Programmes were very satisfied while a further 30% of victims were somewhat satisfied. Umbreit (1994) reported that 79% of victims were satisfied in four US mediation programmes involving juvenile offenders. Results from British schemes were limited because the schemes were in their infancy and involved only small numbers of participants.

However, in two schemes more than half of the victims who participated found the project helpful or described the experience in positive terms.

Marshall and Merry (1990) suggest that corporate victims who represent a high proportion of victims in these programmes (see paragraph 2.3), were more likely to agree to mediate than were individual victims

...perhaps because excessive emotions were less likely to be involved, or because corporate bodies were more likely to see participation as a matter of social responsibility.

A review of the New Zealand youth justice system (Maxwell & Morris, 1993: xvii) found that although there was a low attendance at family group conferences by victims (41%),

When they did come, some felt very pleased with what happened : about half said they were satisfied and a third went away feeling better.

The levels of victim satisfaction associated with restorative justice programmes are said to result from the process better addressing the personal needs of the victim. These needs include: compensation; answers and information so that victims can regain a sense of security; expression and validation of their experience of the offence and their emotional response to it; and empowerment in terms of a sense of personal power over their environment and the resolution of their own cases (Zehr, 1990).

Mediation appears to increase the likelihood of reparation being agreed and completed. Marshall and Merry (1990) report the results of a number of reviews. A 1985 study of American programmes found that 82% of financial contracts and 90% of reparative work agreements were completed. Similarly, other programmes reviewed had more than 80% compliance with restitution orders. Victims who participated in court-administered programmes without mediation were found to receive all reparation payments in only 58% of cases, compared to 81% who did so after being involved in mediation (Umbreit, 1994).

Mediated agreements take account of the ability of the offender to make reparation. Hence reparation orders following mediation may be for smaller amounts than would otherwise be ordered. The completion rate may therefore have been a function of payment levels which offenders could meet and/or the criteria by which offenders, offences and victims were selected for mediation in the first place. In the United States, court-ordered restitution for juveniles is said to have low compliance rates because it is often perceived to be in the nature of a fine paid to the court rather than an obligation to the victim (Umbreit, 1994).

It is suggested however, that mediation contributes to compliance. This is because the parties involved in developing the agreement (and particularly the offender) have a greater commitment to it than to an imposed order.

They also develop more positive attitudes towards each other in the process (Marshall & Merry, 1990).

Anecdotal accounts from New Zealand practitioners suggest that offender agreement is associated with a high rate of completion and, in reparation following family group conferences, the involvement of families in reparation decision-making both increases the resources which the offender can make available to compensate the victim and assists the enforcement of agreements. However, the ability of families involved in the youth justice system to afford reparation is limited. In 1990, it was agreed to in less than one-third of family group conferences nationally (Morris, Maxwell & Robertson, 1992).

Through the process of mediation, victims may gain some insight into the personal situation of the offender. Victims may hold stereotypical views of offenders and harbour unrealistic fears about them. Studies have suggested that mediation has assisted in reducing victims' fears and in helping them to see the offender as less threatening (Marshall & Merry, 1990). In his review of a number of juvenile programmes in the United States, Umbreit (1994) found that fear of revictimisation was present in only 10% of victims after mediation, compared to 25% beforehand.

However, restorative processes may have disadvantages for victims.

Many victims may find the thought of meeting the offender threatening, and not feel able to face them directly for a very long time, if at all. While the current court process with its formality and courtroom rituals may be foreign to them, it may be a more comfortable environment for victims who desire minimal involvement in the criminal justice system and distance from the offender. Such victims, especially if they are emotionally vulnerable, may prefer the courtroom role of witness to being a central focus in a mediation meeting at which they will be required to look beyond their own needs to what should happen to the offender.

There may also be issues of personal safety for victims in respect of some offending or offenders. Victims may fear retaliation from the offender or the offender's supporters at the meeting or after the event. This may increase their anxiety and affect their desire to take part, or cause them to curtail their participation. Some of the British schemes involved mediation at the victim's home or workplace to suit the victim. Marshall and Merry (1990) found that a small number of victims were concerned that this might have placed them in danger of further offending. They suggested that security issues should be a consideration where the victim's details are not known to the offender.

Restorative processes should culminate in agreements about appropriate outcomes. This involves the victim in contributing to decisions about suitable penalties for the offender. In a review of a number of international studies, Shapland (1985) found that victims did not necessarily desire

decision-making powers as such. However, they did want to be consulted on important issues, including decisions to prosecute or divert offenders, and whether charges should be changed or dropped, but not necessarily decisions about sentencing. State-centred systems of justice have traditionally distanced victims from the sentencing process. While some victims may derive satisfaction from having input into sentencing, it is possible that others may feel uncomfortable about this role, may experience conflict based on spiritual or cultural beliefs, or may have personal regrets at a later stage about decisions to which they contributed.

While restorative justice proponents argue that victims' needs can be better met through such a system, particularly because of the centrality of the victim's role, there is a risk that victims will be revictimised by the process and actually end up feeling worse. In a New Zealand study, 25% of victims involved in family group conferences felt worse after the conference.

This was related to dissatisfaction with outcomes and a failure to meet the needs which had led to the victims' attendance in the first place (Maxwell & Morris, 1993).

Finally, restorative processes take time (see paragraph 5.9) and may cause inconvenience to victims, particularly where programmes operate during work hours, and when victim participation is in addition to attendance at court hearings.

5.2.2 Offenders

Like victims, offenders are directly involved in restorative processes.

This gives them the opportunity to learn first-hand what impact their offending has had on the victim.

The direct interaction means that it is harder for offenders to distance themselves from the harm they have caused and for them to attempt to neutralise either their own behaviour or its effects. Direct contact also reduces the likelihood of offenders viewing victims in stereotypical terms.

Contact with victims also provides an opportunity for offenders who feel genuine regret and contrition for their offending and want to express this. Such expressions may be more meaningful to both parties when made directly and informally to the victim, rather than delivered through intermediaries, such as defence counsel, within the formal trappings of the court system.

As well as providing the opportunity for meaningful participation, involvement in restorative processes may also make offenders feel they have a measure of control. They are consulted over their participation and the arrangements for the meeting, and through the dialogue that is established assist in determining what is an appropriate outcome in their case. As discussed in paragraph 5.2.1, offenders' involvement may also result in a greater level of commitment to the outcome in comparison to a sentence imposed by the court. Presumably this is because of the part they have played in developing the response. Offender participants in the British and American schemes were found to take the process seriously (Marshall & Merry, 1990).

However, there are potential disadvantages for offenders. There is the risk of coercing offenders into guilty pleas if they perceive that they might be treated more lightly. Where restorative processes are associated with an admission of guilt and diversion, offenders may be disinclined to seek legal advice, may see an incentive to plead guilty and thus forego the opportunity to put a legitimate defence to criminal charges. Other risks include direct exposure to vengeful victims, as well as the prospect of receiving a more intrusive penalty than might have otherwise been imposed. Sentencing issues are discussed more fully in paragraph 5.5.

5.2.3 General

One of the features of restorative programmes is the involvement of those directly affected, principally the victim and offender, in a mediated dialogue. Certain dispute characteristics have been identified as most likely to contribute to successful mediation (Fisher, 1994). One of these concerns the balance of power and the need for it to be shared by the parties in roughly equal terms. In the court process, balance is sought through due process and legal representation by professionals. In victim-offender mediation, the two parties are directly involved without professional representation and there may be significant imbalances between them arising from a variety of factors including upbringing, education, personality, health and age. These imbalances may place either the victim or offender at a significant disadvantage in relation to the other.

Power imbalances may be even more pertinent in particular types of offences and there is no clear consensus on whether all types of offences can be successfully mediated. For instance, Astor (1994) suggests that family disputes involving violence should not go to mediation and gives a variety of reasons for this conclusion. They include the imbalance of power created by the violence; difficulties in achieving consensus decision-making because of the nature and history of the relationship between the parties; the risk that violence against women will be removed from the public eye and existing protections threatened.

Carbonatto (1995) does not however see the issue in such sharp terms and suggests that a community or family approach based on the New Zealand youth justice model offers the opportunity to tailor interventions in spousal abuse cases according to different needs. Others, however, have raised questions about Carbonatto's proposals to use a restorative justice model in cases of family violence. Martin (1995) for instance suggests that the proposals do not have victim safety as a clear aim but instead seem to focus more on mediation and reconciliation of the parties with no concrete suggestions for how violence is to be stopped.

The informal setting of most restorative justice programmes, the expectation of disclosure by both victim and offender, and the fact that most programmes do not envisage a significant role for lawyers as advocates, may encourage or result in victims or offenders surrendering advantages or bargaining positions. For example, a victim may disclose matters which an offender can use in mitigation of sentence or an offender may reveal information which could be used to substantiate new charges. Confidentiality is a statutory requirement for New Zealand family group conferences. Some Australian states have legislated to protect community mediators from having to reveal information gained during mediations. Other programmes rely on the ethical standards of their mediators and do not provide formal protections or restrictions on disclosure.

5.3 Community and Family

Restorative processes are claimed to benefit the community by resolving relationships between individuals and placing the control of crime with the community. Where those involved are from shared communities, it is suggested that victim-offender meetings may enhance community cohesion through the direct involvement of the parties in the process and in finding the solutions. In reality, the extent to which the locus of control actually moves from state to community depends on a series of choices which are discussed in chapter 6.

With urbanisation and the social changes that have occurred in the last 50 years, there are questions about whether communities continue to exist as "stable units of shared social experience" (Fisher, 1994: 4). Marshall (1992) has suggested that modern realities require an adjustment in thinking about what constitutes a community. He suggests that communities of geography (neighbourhood, parish, suburb, or village) have largely given way to communities of association (friends, clubs, professional and work associations) and membership of these is flexible over time. A combination of members of communities of geography and association may be said to constitute a community of interest in respect of offending incidents. In the New Zealand youth justice system, the offender's family group and the victim's family or supporters principally represent the community of interest.

Other members, for example the offender's sports coach, are also on occasion involved in family group conferences. This community may be quite diverse in its composition and might never have had any intersection of interest but for the offence.

Participants may represent several points of view. For instance they may represent minority groups within the wider community as well as their particular local community. Victims may be people involved in local businesses. While most restorative programmes involve interactions between an individual offender and victim, thefts and burglaries from businesses place the livelihood of owners and employees at risk. Thus business owners have needs, emotions and legitimate claims against the offender as do individual victims. The business community is also an integral part of the wider community. Their response to crime (fortification of business premises, increased insurance premiums or relocation to less crime-prone areas) may adversely affect the services and infrastructure available to the community.

Large numbers from a community cannot usually be actively involved in a single restorative justice process. The objectives of the programme and the type of process used both influence decisions about who should participate in addition to the victim and offender. The idea of some form of general community representation raises questions about the definition of community and about "community values". Such values may in fact be only the values of the middle class, who have the power and influence to assert them on others. A victim and offender may well be members of different cultures and communities of geography and association, and it may be as difficult to represent that diversity, or achieve an appropriate balance, as it is in the formal court system.

The family and the particular community of the offender may also have contributed to the offending problem. In such cases, restorative justice programmes may place onerous demands on them which they are

ill-equipped to meet. Research into the New Zealand youth justice system found that a number of the families involved were dysfunctional and had reached the limits of their capabilities in responding to the offending situation and the needs of their offending family member (Maxwell & Morris, 1993).

The extent to which it might be desirable or useful to involve communities, the family or supporters of offenders and the family or supporters of victims in restorative processes involving adult offenders is further discussed in paragraph 6.4.

The exposure of citizens to conflict resolution through peaceful means in restorative programmes provides a model for the application of the process in other situations. Dispute resolution techniques involving the increased use of mediation and structured negotiation are being promoted in schools, to deal with bullying and aggression, and in the civil courts.

While the establishment of a community mediation service did not survive in New Zealand beyond its pilot stage (Cameron and Kirk, 1986), the adoption of such techniques in response to criminal offending could serve to reinforce the general approach and assist in promoting long-term social changes.

5.4 Cultural Relevance

The introduction of family group conferences in the juvenile jurisdiction in New Zealand came partially from pressure from Maori to restore traditional processes of conflict resolution. While the English-derived system of justice recognises the rights and responsibilities of groups who register a corporate identity, and in some instances of families, in the criminal jurisdiction it takes a singular approach based on the responsibility of individual offenders for their crimes. Such offences are perceived as having been committed against both an individual victim and society in general, with these dual interests being represented by the state. The Maori system was derived from views of kinship and obligation involving the whanau of both the offender and the victim and a real and close relationship (Jackson, 1988). Pacific Island traditional responses to crime have similarly involved a collective rather than an individual approach (Anisi, 1993) as have those of the first nation peoples in North America (Zehr, 1995). The adoption of restorative programmes as a response to adult offending in New Zealand might therefore contribute to a more culturally relevant response to offending by providing traditional decision-making models and approaches.

However, there is not necessarily any more agreement among Maori than among Pakeha or other groups that such systems are appropriate or would work in modern times. In a recent study (MRL, 1995), some Maori did not accept there was a need to move from the current criminal justice system. Alternatively, others felt that a restorative approach would address a number of the current system's inadequacies. While some would have preferred a move to marae justice, they questioned the efficacy of this because of the disassociation of young Maori from their whakapapa (cultural identity), and the consequential absence of essential elements for success. There was a number of Maori who rejected the concept of Pakeha-based justice in all its forms, including as part of a restorative approach.

In a recent small study involving Maori, Tauri and Morris (1995) identified clear support for moving towards Maori justice practices. However, it was recognised that this would not be without its difficulties. Some of these would arise when the victim and offender were from different cultures.

Other possible difficulties include the identification of communities for alienated urban Maori, the loss of cultural knowledge in many young Maori and the location of control of any Maori-based system.

5.5 Impact on Conviction and Sentencing

Zehr (1990: 5) reported one of the implications of victim-offender reconciliation programmes is that

offenders may be diverted from the harmful effects of imprisonment, for VORP is seen as an alternative solution, not to be used in addition to a normal prison sentence.

In line with this, McElrea (1994:17) suggested that

The immediate consequences of the introduction of the new Youth Court model in New Zealand were a dramatic reduction in the number of young people appearing in court, because of the diversionary nature of the system, and the closure of most of the social welfare homes to which young people had been remanded in the past, because of the community based nature of most outcomes of FGCs.

The introduction of the Children, Young Persons and Their Families Act with its emphasis on diversion from the court process certainly affected the total number of cases involving young persons which came before the courts.

The number of cases involving young persons was decreasing slowly anyway but the introduction of the Act saw the total numbers drop sharply from 7,236 in 1989 to 1,887 in 1990. In 1993, there were 2,574 cases involving young people which came before the courts. This was 77% less than in 1986, but the highest number of cases since the new Act was introduced (Spier, 1994).

While the community-based focus of family group conference outcomes may have contributed to reducing the institutionalisation of young people, this focus was not the primary reason for the closure of most social welfare homes. There had been a marked downturn in the use of Department of Social Welfare residences throughout the 1980s and the reduction in the numbers of children and young persons brought into care was attributed to a number of factors. These included a deliberate shift in emphasis and policy by the Department of Social Welfare from 1986 which sought to minimise interventions and use residential care only as a last resort (Department of Social Welfare, 1987 & 1990). This policy was matched by a closure of residences. In 1994, there were only five Department of Social Welfare residences compared to 10 in 1989 and 21 in 1984 (Department of Social Welfare, 1995).

In relation to conferencing for adults, McElrea (1994: 18) went on to state that "the proportion of custodial sentences is also likely to drop sharply if Youth Court experience is relevant." The number of cases involving a young offender which resulted in a full-time custodial sentence certainly decreased considerably when the Children, Young Persons and Their Families Act was introduced. For instance, 193 custodial sentences were imposed in 1989 compared to 74 in 1990, and the numbers have remained at the lower level in the intervening years (Spier, 1994). However, as earlier discussion in this paragraph revealed, the Department of Social Welfare made a significant policy change in terms of its reliance on residential options for young people from the mid 1980s. It is difficult to estimate the relative influence of this policy framework on family group conference outcomes and on the reduced use of custodial sanctions but at the least it seems likely to have been a contributing factor.

The extent to which restorative practices can reduce the number of convictions and the use of imprisonment for adult offenders depends on whether such practices are integrated with the criminal justice system and how and at what stage of the criminal justice process they are used. Restorative programmes which are parallel to the criminal justice system may achieve other objectives but generally cannot affect the processing of cases in that system. However, if such schemes created public confidence in their ability to resolve offending incidents, citizens might be willing to pursue this avenue in lieu of making formal complaints. Any reduction in complaints might reduce the number of criminal charges laid by the police and this could ultimately reduce convictions. This might provide the opportunity for a

small-scale impact on the number of convictions.

Where restorative practices are integrated with the criminal justice system, the framework for their operation will determine the extent to which they might influence conviction and imprisonment rates. For instance, the application of victim-offender meetings in the police adult pre-trial diversion scheme (described in paragraph 3.3.1) would have no impact on conviction or imprisonment rates since these offenders feature in neither.

The development of a diversion scheme which drew in larger numbers of adult offenders who would previously have proceeded through the criminal justice system would be required to affect conviction numbers. Such a scheme need not necessarily be associated with restorative practices.

New Zealand's imprisonment rate is higher than most other Western countries (see Table 4.1). The use of restorative processes at the post-conviction/pre-sentence stage could thus have some impact on the numbers of offenders sent to prison. However, section 5 of the Criminal Justice Act 1985 contains a presumption for the imprisonment of violent offenders, and at the time of the 1993 prison census, the major offence leading to the period of incarceration for 61% of male prisoners and 44% of females was one involving violence (Southey et al, 1995). Whether the numbers of prisoners increased or decreased as a result of restorative programmes would be dependent on the nature of the outcomes of mediation and the extent to which sentencing judges were guided by those outcomes.

Some information about the effect of restorative processes on sentencing outcomes for adult offenders is available from Britain and the United States. Sometimes the effect has amounted to "net-widening" (see paragraph 5.7). Marshall and Merry (1990: 188) noted:

As far as the court-based schemes were concerned there was evidence of altered sentence patterns, although their implication in terms of mitigation was unclear. There was probably some chance of a custodial sentence being avoided, but the most likely effect was away from a fine to probation or community service, less often to a conditional discharge. While a fine may be generally seen as less onerous than the longer-term commitments involved in the first two alternatives, with respect to impecunious offenders it may be a personal matter as to which would be the preferable disposal. On top of this was the increased likelihood of having to pay compensation. Mitigation, then, could occur, but it was uncertain. VORPs in America have similarly found only marginal effects on court decisions - Coates and Gehm (1985) found no evidence for reduced probability of imprisonment, but did find a substantial reduction in the length of sentence for participants in the schemes.

Mediated outcomes may result in wide variations in sentences for similar offending since the participants are involved in developing an outcome which is acceptable to them, and as a result will be willing to make different

trade-offs. In such a system, the basic principle of proportionality in sentencing, or like offenders receiving like sentences for like offending, is compromised unless there is judicial oversight of outcomes and the mediation results are used to inform sentencing rather than to constitute the determination of penalties.

A 1993 review of the outcomes of family group conferences indicated significant variations, and many penalties which appeared to outweigh the gravity of the offence. A tendency to "justice by geography" was also noted, with geographical variations in the components and severity of outcomes (Maxwell & Morris, 1993).

Restorative justice is based on addressing the needs of victims and offenders in the context of a community desire for peace. Experience of victim-offender mediation and family group conferences suggests that actual victims are no more punitive than non-victims. The direct involvement of victims in a process of determining appropriate outcomes for adult offenders may therefore assist in ameliorating public opinion about what are suitable penalties.

5.6 Reoffending Rates

Personal contact with the victim and confrontation with the actual consequences of an offence may promote a depth and type of emotional response in the offender that is less likely in a formal court. It is suggested that one of the outcomes of this process is reduced re-offending (Zehr, 1990) and many programmes have adopted this as the long-term objective.

Most studies of recidivism focus on reconviction data. There are limitations in using reconviction rates as accurate portrayals of reoffending rates, since not all offences may be reported and, even where they are, apprehension, prosecution and conviction may not necessarily follow. Re-conviction rates are therefore at best only an indicator of levels of criminal activity.

Evidence of the impact of restorative processes on recidivism is tentative. After an 18 month follow-up period, there was some evidence of reductions in offending ( and no evidence of increases in offending) following restorative processes in the British programmes reviewed. However, such changes were not statistically significant (Marshall and Merry, 1990). In relation to four juvenile programmes in the United States reviewed by Umbreit (1994: 6) :

Considerably fewer and less serious additional crimes were committed within a one year follow-up period by juvenile participants in mediation programmes when compared with similar offenders who did not participate.

While this result is consistent with the English result, the size of the programme samples meant that the finding was not statistically significant.

Insofar as the New Zealand experience is concerned, Maxwell and Morris (1993) noted that young offenders in their sample who were referred for family group conferences included those who had committed the most serious offences, multiple offenders and recidivists. These might reasonably be considered to be those at highest risk of further offending yet overall less than half (48%) of those referred for a family group conference in the sample period had reoffended within 6 months. While the follow-up period was short, the researchers suggested that the result indicated some cause for optimism since more than half of the sample had not reoffended.

Since then, a follow-up has been undertaken of re-offending rates for those aged 14 to 16 at the time of the original sample and now aged 18 to 20 years (Maxwell & Morris, 1995). A total of 35% had no convictions for either criminal or serious traffic offences recorded against them in either the youth court or the adult court. While 65% of the sample had been convicted, Maxwell and Morris identified differences amongst them.

The largest group (27%) were categorised as persistent recidivists as a result of the frequency and volume of their criminal offending, while 15% had offended intermittently, and sometimes seriously. Those who became the persistent recidivists had certain characteristics. At the time of the original research, they were more likely than the others to have had an offending history and to have committed a greater number and more serious offences. They were also more likely to have been dealt with severely at the family group conference. Maxwell and Morris postulate that they may thus have been well entrenched in offending behaviour and little affected by the family group conference experience. If a principal objective of restorative processes is to reduce reoffending rates, an implication of Maxwell and Morris's conclusion is that they should be targeted at less experienced offenders.

The reappearance rate of 48% after six months and 65% after four years for offenders who had been through the family group conference process (Maxwell & Morris, 1993 & 1995) can be compared in a general sense to the findings of an earlier study. Lovell and Norris (1990) traced the offending history of New Zealand males who were aged 10 in 1967 until they turned 24. This period pre-dates the Children, Young Persons and Their Families Act 1989. The overall probability that a first offender would make a reappearance during the 14 year study period was 53%. The study does not identify separately the probability of reappearance for those of the cohort aged 14 to 16 years at the time of their first appearance. However, it does provide some basis for comparison.

If the approaches set down in the Children, Young Persons and Their Families Act 1989 are effective in terms of reducing reoffending, then it might be expected that there will be a flow-on effect to the adult system, particularly for those in early adulthood. The 27% reduction in prosecutions of defendants aged 17 to 19 years between 1987 and 1992 might therefore be attributed to the new youth court producing young adults less likely to be prosecuted in the adult court (McElrea, 1994). A recent more detailed examination of prosecution figures for young adults however, has given less cause for optimism. The study found that the decrease in prosecutions for 17 to 19 year olds between 1987 and 1994 for non-traffic offences was only 6%. Also, an analysis of non-traffic prosecutions for those aged 17 to 25 for each of the years 1986 to 1994 has shown that, after decreasing strongly over the late 1980s and in 1990, prosecutions of younger adult offenders have increased in recent years. The trend in recent years is opposite to what would be expected if the new Act continued to impact on the offenders who have been through the new youth justice provisions. However, the increasing trend in prosecutions for younger adult offenders in recent years may be unrelated to the introduction of the Children, Young Persons and Their Families Act. This increasing trend may be caused by other factors, including changes in police activity, and in particular, increased clearance rates in the last few years (Spier, 1995).

If restorative processes are premised on the basis of a reduction in reoffending rates, then this failure to achieve a significant reduction in crime is problematic. Conversely, Leibrich (1995) suggests that offenders desist from particular types of offending rather than all offending. Such changes are difficult to measure and quantify. Leibrich also suggests that models of practice such as reintegrative shaming may create experiences and provide information as a result of which offenders are more likely to decide to give up particular types of offending.

5. 7 Net-Widening

Net-widening is a term used to describe the impact of measures which draw more offenders into the criminal justice system or which result in the greater involvement of those already in the system. Net-widening may be an unplanned outcome of a policy initiative with benevolent intentions, and it is a factor in the consideration of restorative justice programmes, as in most other initiatives.

Currently, a system of cautions and warnings and the police adult pre-trial diversion scheme (see paragraph 3.3.1) keep a large number of offenders out of the formal criminal justice system completely, or take them out at an early point. During 1994, there were 4,129 cautions and 30,943 warnings given by the New Zealand Police. In the same year, 2,637 adult offenders were diverted through the police diversion scheme (New Zealand Police, 1995).

If restorative programmes were implemented as part of the criminal justice system and the police saw value in offenders' participating in such processes, this might result in more cases being drawn into the system. For instance, if victim-offender meetings were introduced as part of the police adult pre-trial diversion scheme, and individual police officers thought that particular offenders might benefit from such a meeting, they might be less inclined to give cautions and warnings and more inclined to proceed with formal charges so that the offenders could be diverted subsequently through the police scheme. Young and Cameron (1992) concluded that the police diversion scheme itself had resulted in net-widening because offenders who were prosecuted, taken to court and then diverted would previously not have been prosecuted. However Spier and Norris (1993) cast doubt on the conclusion that net-widening had resulted after examining data on cleared offences, number of cases prosecuted and case outcomes.

Alternatively, if restorative processes applied at the post-conviction/pre-sentence stage, there might be fewer cautions, warnings and diversions, and more cases proceeding through the formal system. This could result in a more complex criminal justice process for minor offenders who might never previously have entered the formal criminal justice system. Consequently more people would be involved to a greater extent in the justice system. Quite aside from the possibly unmerited intrusion on individual liberties, there are consequential implications for the cost of administering the justice system.

Even when offenders would have previously gone to court, the implementation of restorative processes might result in more complex and intrusive outcomes than they would have otherwise received. There has been some indication of this in the youth justice system (see paragraph 5.5). The cost implications of this are discussed in paragraph 5.9.

The risk that restorative programmes which are integrated with the formal criminal justice system might contribute to net-widening depends to a large extent on the stage at which those processes apply, the attitudes of gate-keepers to the programme and the extent of discretion which can be applied in referrals. These issues are considered further in chapter 6.

5.8 Private Interest versus Public Interest

Public confidence in the justice system is crucial to the maintenance of order in society. There may however be inherent contradictions in public expectations of the justice system as was identified in paragraph 4.4.

Restorative processes which give priority to the needs of individual victims and offenders may result in a failure to meet wider public expectations of the criminal justice system. Under the current system of justice, the public may expect that justice will be administered openly and fairly with judicial responses reflecting society's abhorrence of certain behaviour. The New Zealand Bill of Rights Act 1990 in fact provides the right to a fair and public hearing by an independent and impartial court (section 25). Members of the public can attend court hearings, cases are reported by the media and the suppression of the names of offenders is rare. (There were 140,203 cases prosecuted during 1993 and 1,416 orders for name suppression). Fairness is pursued through formal due process and the principle of proportionality in sentencing recognises, as a starting point, the need for like offenders convicted of like offences to receive like sentences.

The nature of victim-offender mediation suggests the involvement of only those parties who have a direct interest, since there needs to be a safe and secure environment for participants to express their feelings and to make their disclosures. This has been the case in the juvenile justice system in New Zealand. Participation is limited by statute and the proceedings of family group conferences are privileged and cannot be published. The acceptability of this in respect of juveniles is largely predicated on the need to avoid criminal labelling in their developmental years.

The extent to which a similar approach for adult offenders would have public support is questionable, particularly given recent public reaction to name suppression for sex offenders. Confidential mediation meetings might generally be necessary in the interests of meeting the needs of participants. However, it appears desirable that the outcomes of any restorative processes which contribute to the operation of the formal criminal justice system are exposed to external scrutiny if public confidence in the administration of justice is to be maintained.

There is also the risk that penalties agreed through mediation, while acceptable to the two parties involved, might fail to sufficiently express public concern about particular types of offending or to provide sufficient public protection ( for example from offenders likely to commit further dangerous/sexual offences). Judicial consideration of outcomes would provide a means through which the public interest could be weighed against the private interests involved. Some form of external check is also desirable given the greater range of coercive sentencing options available for adults.

5.9 Savings and Costs

Most modern-day overseas restorative programmes in Western countries are small-scale, have been in existence less than thirty years and operate either as an adjunct to the formal criminal justice system or parallel with it.

Acceptance by the offender of responsibility for the offence or harm caused is the necessary precursor to involvement, and programmes do not have procedures for determining guilt where responsibility is denied by the accused. Many programmes operate only with juveniles or particular categories of offenders (for example property offenders). Even where they deal with cases across the spectrum of offending, some screening is undertaken and they seldom involve serious recidivists and dangerous offenders. Programmes universally recognise the right of the victim to decline to participate. Howard Zehr (1990: 5) has noted that :

Victim offender reconciliation is not a solution to all problems. It does not solve many of the basic problems of injustice that are inherent in our society and our criminal justice process. In fact, unless coupled with efforts to reduce reliance upon prisons VORP may only "widen the net," simply allowing the criminal justice process to take in more people. It may not be appropriate in all cases, at least in its present form. Nor can it be guaranteed to always work.

As a result of all of these factors, it is unlikely that restorative processes would replace the current justice system. There needs to be the alternative avenue of pursuing criminal proceedings through the court system.

Even the New Zealand youth justice system which places significant reliance on family group conferences retains the alternative of the youth court, and the district and high court for more serious cases.

The extension of restorative programmes for adults would involve new expenditure on the administration of the justice system. The extent of the cost and the source of funding would depend on the nature of any schemes which are developed.

5.9.1 Savings

Those who support restorative justice frequently claim that the widespread use of restorative programmes is likely to lead to broad savings for Government. These would involve both short-term systems savings and longer-term savings through crime reduction derived from enhanced community involvement with, and responsibility for, offenders and victims, and as a result greater social cohesion. Savings are also claimed from fewer demands on the court system because of the diversion of offenders, the less frequent use of custodial sanctions, and a reduction in offending rates.

McElrea (1994) suggested that an adult system similar to the New Zealand youth justice system was likely to result in fewer courts and fewer prisons.

It is instructive to consider the experience of the juvenile jurisdiction in this regard, before considering the potential implications for the adult system.

Direct savings will be achieved if reductions in court sitting time that derive from youth court volume reductions can be translated into court closures and/or fewer judges and court staff. Where court closures do not occur and there is no reduction in the number of judges or court staff, then any savings accrue to the court system rather than to the Government and resources are not freed up for re-allocation.

Although there is no readily available data on trends in youth court sitting times, the significant reduction in cases referred to the youth court must have resulted in the use of less court time. However, direct savings to the court system have not been realised through court closures or fewer youth court judges (Brooker's Law Directory, 1995 ; New Zealand Law Register, 1992). In smaller court districts, both judges and court facilities are generally shared among the district court divisions, although there are some dedicated youth court facilities in larger districts. It therefore seems probable that the reduction in demand in the youth court has increased the availability of judges and court-rooms for other district court business. In the case of dedicated youth court facilities, it may possibly have resulted in under-utilised assets.

It is not known to what extent the additional capacity created might have been used to offset the costs associated with volume increases or jurisdictional changes elsewhere in the system. Unless this has occurred, no savings to Government will have been realised.

Additionally, the implementation and operation of the family group conference process incurs substantial costs for the Government. The Department of Social Welfare delivered youth justice services at a cost of $30.8 million in 1993/94 (Department of Social Welfare, 1994). As the preceding discussion indicates, resources from any savings in the court system are not necessarily freed up for reallocation as a result of court work volume reductions. If such reductions are associated with new activities elsewhere, the net result may be increased expenditure for the Government.

Some savings in some aspects of the court system as a result of the introduction of restorative processes for adults might counterbalance some of the potential costs. First, if the outcome of mediation meetings was considered to sufficiently inform sentencing decisions, there might be a reduced demand for pre-sentence probation reports that would otherwise have been prepared. Additionally, in paragraph 5.2.1 it was suggested that offenders' active involvement in the process may also result in a greater level of commitment to the outcome, in comparison to a sentence imposed in the usual way by the court. Higher rates of compliance with court orders would result in a reduction in enforcement costs. The size of savings in these two areas would depend on the nature and coverage of any schemes introduced and the extent to which volume reductions could be translated into savings of the fixed and variable costs of the criminal justice system.

Paragraph 5.5 described the findings in respect of altered sentence patterns for offenders in restorative programmes. The New Zealand experience with juveniles has been a much reduced reliance on institutional sanctions. This is seen in the smaller numbers both being held in Department of Social Welfare residences and sentenced to custodial penalties. The extent to which this was influenced by the introduction of the family group conference approach or an earlier policy decision to minimise interventions with young people and to reduce the number of residential places available is a moot point.

The international studies found that restorative programmes had only marginal effects on sentencing. The English programmes found some chance of imprisonment being avoided while the American experience was a reduction in imprisonment length rather than reduced probability of custody. The impact on New Zealand imprisonment rates is likely to be influenced by the approach taken to violent offenders. In any event, many of the costs of the prison system are fixed and unable to be markedly affected by minor variations in the numbers of prisoners held. Sizeable savings cannot be realised until prison numbers reduce sufficiently to allow prisons to be closed and fixed costs to be eliminated or through reducing the rate of growth in the prison population and thereby reducing the rate and extent to which the system needs to be expanded.

There is insufficient information to sustain the argument that restorative justice practices lead to a reduction in offending (paragraph 5.6).

The international data indicates some reductions in offending over the short-term, but such changes were not statistically significant. Some studies of the reappearance rates of New Zealand juveniles have been undertaken but there is no ability to directly compare the results with rates under traditional court processes. An analysis of non-traffic prosecutions for young adults up to the age of 25 has shown that the New Zealand juvenile justice system has produced no observable flow-on effect in this age-group in terms of reducing prosecutions. It is possible however that the impact of the Children, Young Persons and Their Families Act is being masked by other factors.

Based on the foregoing, there is insufficient information to support a conclusion that the introduction of restorative programmes could be expected to result in major savings for the criminal justice system.

There would also be costs associated with introducing restorative programmes and these are now considered.

5.9.2 Costs

If mediation is to involve voluntary participation and useful outcomes, then participants need to be well-briefed on what is involved and on what their role will be. Thus, there needs to be an investment of time in preparing the parties and co-ordinating the arrangements for them to come together, even before the actual mediation encounter takes place, and time costs money. In the words of Maxwell and Morris (1993: 120) :

To assume that victims and offenders can simply be brought together and reconciled without careful briefing of the parties first and without careful training of the co-ordinators to manage such emotional and, by their nature, unpredictable meetings is a mistake...

The Volunteer Handbook for the VORP Programme (Stutzman Amstutz & Zehr, 1990: 7) reinforces the need for both preparation and follow-up:

But the VORP meeting is not all there is to it ; like all constructive interactions, both advance preparation and follow-through are absolutely essential and make the difference between a successful discussion and a hostile encounter.

In the United Kingdom, the Home Office projects operating at the post-conviction/pre-sentence stage spent between an average of three and seven hours per case in negotiation with the individual parties prior to mediation. Most of the actual mediation meetings lasted about an hour and this was similar to the time taken in the North American programmes (Marshall & Merry, 1990). The guidelines for volunteers in the latter programmes suggest that time in pre-meeting preparation would generally be around an hour, and this would be spent in separate pre-mediation meetings with victim and offender. The time taken to arrange each family group conference in New Zealand varies according to factors such as the seriousness of the offence, family size and the number of victims. However, conferences can be expected to take an average of ten hours each to set up (including preliminary discussions with the various participants), and the meetings themselves generally take two to three hours, but on occasions may take longer (Department of Social Welfare, 1995).

The potential for restorative outcomes to outweigh the gravity of the offence and for net-widening to occur was identified in paragraphs 5.5 and 5.7.

This could increase costs in a number of ways.

First, offenders who would previously have been dealt with totally outside the formal criminal justice system could be drawn into it, thus increasing the overall volume of cases to be dealt with. Secondly, cases which might have previously had an early exit might proceed further in the system thus attracting additional cost. And finally, offenders might be subjected to more intrusive penalties as a result of restorative processes.

Given the business volumes in the district court, even a small trend towards more intrusive sentences in the community-based range could significantly increase the cost of the criminal justice system. For instance, in each case where a sentence of periodic detention is imposed in addition to a supervision sentence when only the latter would have been imposed previously, on average an additional $2,300 per offender is incurred in sentence administration costs.

If victim-offender meetings were incorporated into the police diversion scheme, they would add to the time and cost of processing the cases of offenders who generally do not have extensive criminal histories and whose offending is fairly minor. The trade-off for this extra cost would therefore need to be in increased benefits for the victims involved.

A restorative system of justice could result in a more extensive use of the sentence of reparation (described in paragraph 3.3.3). The greater use of this sentence could have cost implications for the Government in terms of a reduction in fines revenue, since legislative amendments in 1993 gave priority to the ordering and payment of reparation to individual victims over fines to the state. Fines imposed in 1993/94 totalled $77.6 million compared to reparation ordered of $13 million (Department of Justice, 1994). It is noted that fines revenue could be similarly affected under the existing justice system if the legislative provisions for reparation were used more widely.

Many restorative schemes intervene at the point between conviction and sentence. This accounts for 66% of the North American schemes and most of the English court-based schemes described by Marshall and Merry (1990). In New Zealand, there are a number of statutory provisions which provide for pre-sentence enquiries to be undertaken (see paragraph 3.3.2).

These provide for a pause in criminal proceedings and the opportunity for restorative processes to occur. Although there is often an adjournment anyway, increased costs are incurred where disposition is delayed for these processes when the case would otherwise have been dealt with immediately. Further costs are incurred if the offender has been remanded in custody and must be produced by the prison for any meeting with the victim.

The youth justice system is relatively small compared to the adult system. For instance, in 1993 there were 6,559 family group conferences, and 2,574 cases involving young people came before the courts (Department of Social Welfare, 1994; Spier, 1994). During the same year, there were 60,496 cases resulting in a conviction in the adult system for offences other than traffic matters. It should be noted that cases do not necessarily equate to offenders. In general terms, charges against an offender for which proceedings start or finish around the same time are combined to form a case. One case could therefore comprise multiple charges against one offender and some charges may have victims and others will not. Where more than one charge is involved in a case, the one which received the most serious penalty is the one used to represent the case (Spier, 1994).

Costs for a post-conviction/pre-sentence scheme for adult offenders can be estimated and used to give an indication of likely costs. If property offenders are used as the eligible offender group for example, the number of cases resulting in a conviction in 1993 was 21,458 (Spier, 1994). In the United Kingdom court-based schemes reviewed by Marshall and Merry (1990), 34% of the cases referred for mediation resulted in direct victim-offender meetings. If a similar take-up rate was assumed for a New Zealand scheme, then mediation could be expected to occur in 7,296 of cases involving property offenders. Using a unit cost per family group conference of $1,133 (Department of Social Welfare, 1995), the cost of a scheme for property offenders alone is estimated at $8.3 million. Using the same methodology, a post-conviction scheme for offenders aged 17 to 20 would cost $9 million while a scheme for all adult offenders (other than traffic offenders) would amount to new expenditure of around $23.3 million. The cost implications of introducing restorative processes for adults may therefore be significant.

5.10 Summary

This chapter has discussed some of the benefits and risks of restorative programmes. Those who support restorative justice claim that major advantages derive from the direct involvement of the victim and offender in the process of addressing the issues raised for each by the offending.

Such involvement has resulted in a high level of victim satisfaction through the meeting of various needs, including those for information and compensation. Offenders also gain a more central place in the process, and are said to more readily comply with outcomes or penalties they have contributed to developing. The process may be inclusive of family and community and if so can be likened to traditional responses to crime in the South Pacific, particularly for Maori. It thus has the potential to be more culturally relevant.

There is a risk that restorative justice programmes will be promoted on utopian grounds. The value of restorative processes must, in the end, be demonstrated by their ability to deliver a better quality of justice, and to do so efficiently.

Restorative practices seek to keep offenders out of prison, and some programmes divert offenders from the court system. The extent to which programmes are integrated with the criminal justice system will determine their impact in this area. International research indicates a marginal effect on imprisonment rates but some impact on sentence length in the United States. New Zealand data on the use of custody for juveniles is also considered, but it is suggested that outcomes here must be seen in the context of earlier policy decisions.

The available data on the impact of restorative programmes on recidivism is tentative. International studies involve only small numbers of offenders and have short-term periods of follow-up. New Zealand data on the reoffending rate of juveniles is also limited. While 35% of a sample group had remained conviction-free over four years, there is only limited data available for comparisons with the rates achieved under traditional processes.

The absence of longitudinal evaluation research is particularly problematic, since an analysis of trends in prosecutions of non-traffic offences suggests that the juvenile justice system has produced no observable flow-on effect in reducing prosecutions of 17 to 25 year olds. However, it is possible that the effects of the Children, Young Persons and Their Families Act are being masked by other factors, including changes in police activity and, in particular, increased clearance rates in the last few years.

In considering any large-scale development of restorative programmes for adult offenders, there is a need to balance the public interest in the administration of justice with the interests of the private parties involved.

In particular this raises questions about open justice.

It is unlikely that restorative programmes can totally replace the current criminal justice system. The court system and other justice agencies will continue to be required. This means that the expansion of restorative programmes will incur additional expenditure on the justice system, unless savings can be achieved by changes they promote.

At this stage the potential for savings appears limited. At the same time, given the volume of cases in the adult system, the cost implications of expanding restorative processes for adult offenders are significant.

The following chapter describes the various options for New Zealand.

The main issues are identified, and public feedback is sought. This will be used to inform policy advice on the direction that should be taken regarding restorative justice in New Zealand in the future.

Chapter 6 : Restorative Justice Processes : The Main Options For New Zealand
6.1 Introduction

6.1.1 Objectives of Restorative Justice

In chapter 2, the basis of restorative justice philosophy was discussed and the features which commonly form part of restorative programmes were noted. Marshall (1995b) has suggested that restorative justice programmes should seek to achieve six outcomes:

· The denunciation of crime;

· The reform of individual offenders;

· The prevention of crime in a general way;

· Helping victims;

· Making good the suffering caused by crime; and

· Keeping the costs of administering justice to a minimum.

Many of these are also either explicit or implicit objectives of the current criminal justice system although the approach taken to achieve them may be quite different. They provide a useful check against which the utility of various options for future action can be considered.

6.1.2 Existing Provisions

Chapter 3 described the New Zealand criminal justice system and in particular identified restorative elements, or opportunities for them, in current criminal justice processes and in existing sentences. In terms of the involvement of individual victims and offenders, the youth justice system and the procedures for the preparation of reparation reports in the adult system come closest to achieving a mandated restorative process. However, there are qualifications about each. The youth justice system is primarily concerned with young offenders and their families, as opposed to the needs of victims.

Reparation is only one of a range of sentencing options and may not be considered appropriate if a prison sentence is to be imposed. Additionally, the process has a limited focus and seldom results in face-to-face meetings. While there are a variety of restorative elements in the existing system, they are fragmented and this, and competing criminal justice objectives, may impede achievement of the restoration of the parties to crime.

There are no restrictions in the current legislative framework to the development of a more restorative approach for adult offenders and, in fact the law provides a wide range of opportunities for them to occur, subject to the interest and will of those involved in the system.

6.1.3 Potential Developments

This paper has arisen because of strong interest in the topic of restorative justice. Some of this derived from the development of the youth justice system, and a desire to see what are perceived as the successes of that system applied more broadly. Other interest has come from a wish for New Zealand to adopt a more culturally responsive approach to crime, while others still want to see the current system reformed to provide greater community input and what they regard as a fairer and more humane approach to the administration of justice.

Programmes as diverse in focus as educating children in rational problem- solving techniques and victim-offender mediation with prison inmates are encompassed within the restorative movement. In spite of this diversity, those restorative programmes which deal with offending behaviour or conflict arising from offending can be categorised into two general groups.

These are:

(i) those which operate outside of and parallel to the formal criminal justice system; and

(ii) those which are integrated with the formal criminal justice system.

If the Government is to support restorative programmes, then it will wish to be assured that they are the most cost-effective ways of pursuing its long-term objectives in respect of the criminal justice system. As indicated in paragraph 5.9, it is difficult to substantiate and quantify the extent to which the widespread use of restorative programmes is likely to lead to broad savings for government. Certainly, current research results are insufficiently conclusive to predict a substantially reduced use of imprisonment and less reoffending, the principal platforms on which savings in the current criminal justice system are predicated. If compensatory savings are unlikely, a reconsideration of government priorities and reallocation of funding from other government activities would be necessary to achieve the expansion of restorative interventions.

As part of its strategic focus for the public sector (New Zealand Government, 1995), the Government is seeking

Enhanced community security through the development of policies with greater emphasis on partnerships between government agencies and the community that will better protect individuals and their communities, reduce the incidence of family violence, and reduce pressures on the criminal justice system.

In pursuit of this strategic focus, the Government has adopted a Crime Prevention Strategy (Crime Prevention Unit, 1994) and a Responses to Crime Strategy is also being developed.

Any consideration of priorities is likely to take into account the extent to which other measures might contribute to similar outcomes and should be preferred.

Other options might include:

· A focus on parenting skills and early childhood education as a general contribution to a crime prevention strategy;

· The development of a system of victim advocacy as recommended by the Victims' Task Force. The services considered necessary involved "elements of social work, legal advocacy, crisis intervention, referral to other services, provision of information, support and education" (Victims' Task Force, 1993: 86);

· Emphasis on community-based crime prevention through the Safer Community Councils and other crime prevention measures, rather than dealing with the effects of offending once it has occurred;

· The development of programmes and services for child and juvenile offenders;

· A focus on programmes and services for adult offenders which address their needs and seek to reduce the likelihood of their reoffending;

The balance of this chapter considers specific issues associated with restorative justice and identifies the issues on which input is invited.

6.2 Framework for the Development of Restorative Justice Programmes

At the broadest level, programmes can develop in two directions. Parallel programmes operate outside of the formal criminal justice system while integrated restorative programmes are intimately connected to formal criminal justice processes.

6.2.1 Parallel Programmes

These restorative programmes operate outside of the criminal justice system and there are no formal or structural links between the two. As a result, such programmes focus on community interests, and in particular the needs of those involved in the mediation. They are not concerned with the interests of the criminal justice system and do not seek to influence sentencing in individual cases, although they may be informed by criminal proceedings. Examples of parallel programmes are found in:

· Community mediation initiatives;

· [[Epsilon]]ducation projects in schools and communities teaching rational problem- solving or mediation; and

· Victim-offender mediation programmes.

The objectives of these programmes include the enhancement of the community's ability to respond to conflict or crime, meeting the needs of victims and offenders, or promoting reconciliation and healing for those associated with an offence. Programmes may include general mediation, dispute resolution or other services, and the identity of the disputants as victim and offender may have less significance to the programme than their identities as citizen, parishioner, or client.

Mediators involved in parallel processes consider the victim and offender their clients. Victim-offender mediation initiatives of this nature operate once a need for intervention becomes known to the programme and they are not bound by the time requirements of the criminal justice system.

While some referrals to these victim-offender mediation programmes come from victim support agencies or church organisations, others come through participants in the criminal justice system: police, judges, lawyers, probation officers and other corrections staff. Thus, despite their independent nature, programmes may have informal linkages with the criminal justice system. The criminal justice system may also influence the content of mediations, leading to new issues to resolve between the parties. It may also affect possible outcomes, for instance as a result of the offender's imprisonment.

By remaining outside of the criminal justice system, these programmes remain free of the risk of agency capture, and the attendant risk that their objectives may be subverted to those of the criminal justice system.

They can be developed at the grass-roots level according to local needs and with meeting community interests as the priority. By taking the responsibility for dealing with the offender informally in the community, such programmes may result in fewer offenders entering the formal criminal justice system.

This may occur if victims perceive that such programmes will provide an appropriate response to the offending behaviour without the need for them to lay formal complaints. Parallel programmes also retain maximum operating flexibility, since the timing of mediation is not dictated by the interests of the criminal justice system. This flexibility is particularly likely to serve the interests of the victim.

While paralIel programmes may ultimately achieve the diversion of some cases from the criminal justice system, they cannot influence sentencing practice, particularly the use of imprisonment. There is also the possibility that offenders will be less willing to participate in these programmes if their case is also being processed through the criminal justice system. Where a process as part of a parallel programme precedes the disposition of the case in the formal justice system, offenders may perceive they will be punished twice for the same offence. Where it follows acquittal or conviction in the court system, offenders may view the matter as resolved. Disposition in the formal criminal justice system may also affect the degree to which agreements reached in external programmes can be honoured. For instance, an offender sentenced to imprisonment may be unable to complete an informal reparation agreement.

Restorative programmes of this nature may have difficulty in attracting government funding because they may not be sufficiently aligned to any specific state activity, and would probably need to rely on private sources such as charitable institutions for their funding.

6.2.2 Integrated Programmes

Integrated restorative programmes seek to inform and influence criminal justice processes and are timed to coincide with those processes. They may be community-based programmes or located in government agencies or a combination of both. The options for provision of mediation services are further discussed in paragraph 6.6.

In many cases, participants in the criminal justice system, including the police, court and probation officials, are the referral source. As these agents pay for the mediation services and receive reports of the outcome, they are also the client of the programme. Many of the Victim-Offender Reconciliation Programmes in the United States and Canada, are predominantly integrated, taking most of their referrals from courts and probation services, though not all of their mediations are aimed at influencing court decisions. Youth justice family group conferences are entirely integrated programmes which may replace the court as the forum for deciding the case's outcome.

Integrated programmes are concerned with meeting the victim's and offender's needs within the context of the criminal justice system. Programmes often include general objectives such as reducing imprisonment and re-offending or changing the focus of the criminal justice system through the use of mediation. They seek to influence or provide an alternative to the court's sentencing decision or to use the criminal justice system to resource, monitor or enforce agreements reached through the restorative process.

Integration with the criminal justice system may assist programmes to gain access to cases and resources, provide an avenue to influence case dispositions, and present opportunities to ameliorate the effects of the criminal justice system on victims and offenders. On the other hand, the criminal justice system may gain information to better inform its operations and an assurance that issues between the parties to the offence have been, or can be resolved.

Programmes operating within the criminal justice system must be cognisant of the rights of individuals and not subvert due process. They operate within established ethical and legal systems which afford a variety of protections to participants. On the other hand, they may have to regulate their operations and the outcomes of mediations to suit the objectives, principles and resources of the criminal justice system. This may limit their ability to facilitate creative and individual outcomes.

If programmes are to be integrated with the criminal justice system, consideration needs to be given to details of their operation. These issues are now discussed.

6.3 Stages of Intervention

6.3.1 Timing

Undue delays in criminal proceedings are undesirable, both in the offender's interests or in those of justice generally (section 25, New Zealand Bill of Rights Act 1990). Some victims report that delays in court proceedings make it difficult for them to put the matter behind them while, conversely, other victims feel unable to face court proceedings, or to engage in mediation with the offender, until some physical or emotional healing has occurred.

Healing may take a short time or, in some cases, years. The victim's emotional state may influence the outcome of a restorative process and what they need from the criminal justice system may be different in the various stages of their recovery.

The apprehension of the offender, the complexity of the case and many other factors may influence the progress of criminal proceedings. The needs of the victim and the requirements of the criminal justice system may not necessarily coincide and there is unlikely to be an ideal time for justice processes.

6.3.2 Intervention Point

The progression of a case in the criminal justice system is marked by stages. Opportunities for restorative processes can be considered to arise at each of these stages. In particular:

1. Prior to conviction;

2. After conviction and before sentence; and

3. Post-sentence.

Pre-conviction referral

Pre-conviction referrals provide the earliest opportunity for involvement. Interventions at this stage apply after charging, usually require an admission of guilt, and are often associated with offender diversion programmes which seek to minimise the involvement of minor offenders with the formal criminal justice system. Given the nature of restorative processes, offender participation would be reliant on the offender either admitting guilt or at least not denying responsibility for the offence.

Pre-trial options might reduce the number of `not guilty' pleas prompted by disputes over the definition of the offence. Where they result in an increase in the numbers of cases diverted from the court system, they will reduce the need for formal enquiries at sentencing, and affect the numbers receiving particular sentences. However, in cases where no agreement is reached, mediation may constitute an additional burden for the victim and offender, and might delay the determination of matters in the court system. There might be additional demands on counsel to provide advice regarding mediations and this might increase costs to defendants and the legal aid system.

Pre-trial options may or may not involve the diversion of the offender.

One option is to introduce mediation processes as part of the police adult

pre-trial diversion scheme. This scheme already has some restorative elements as described in paragraph 3.3.1 and mediation meetings would complement these. On the other hand, the eligibility rules for the scheme indicate that it is largely limited to first offenders or those to whom limited special circumstances apply. While a meeting might have some value for the victims of these offenders (depending on their views of the police decision to divert the offender), further offending may be regarded as unlikely, the process may result in more complex penalties and the additional cost of both the administration and the outcomes may not be warranted.

Another option is to follow the youth justice approach in general terms. Family group conferences are usually convened prior to an admission of guilt on the condition that the defendant does not deny responsibility. Approximately 60% of charges are resolved in this way (Maxwell and Morris, 1993). Where all of the parties agree, including the police representative and youth justice co-ordinator, the matter may be finalised without reference to a youth court. The penalties for the offender are limited to what can be undertaken with the offender's co-operation and comprise options like an apology to the victim and voluntary reparation. The agreements have no force in law and cannot be enforced subsequently although a further conference can be convened. Where the accused denies the charge a trial is held.

A similar system for adults would be likely to involve the replacement of the police diversion scheme for selected offenders with a diversion scheme with application to a much broader range of offenders. The scheme would provide for a wider range of inputs which could result in offenders being diverted from the criminal justice system in greater numbers. More than 2,600 adult offenders were diverted under the police scheme in 1994 (out of the 144,575 cases prosecuted) and the extent to which it might be desirable to divert larger numbers of adult offenders from the court system and who such offenders should be are clearly issues for consideration. Eligibility and referral issues are further discussed in paragraph 6.5.

A third option, not involving the diversion of the offender, is to use the outcome of restorative processes introduced at the pre-conviction stage to inform sentencing by the court after a formal conviction has been entered. This has the features of referrals at the next stage of the process and is further discussed below.

Pre-sentence referral

Restorative programmes could be introduced into the criminal justice process once a conviction has been entered. A remand would be necessary to provide the opportunity for this to occur, during which time other reports required to inform sentencing (probation, psychiatric or psychological reports) might also be prepared, if necessary. Since some offenders would be remanded in custody, programmes would need to take account of this.

Mediated agreements would give the court an opportunity to consider any plan or recommendations on aspects of sentencing. Failure to reach agreement would also be reported to the court, in which case the mediator might attempt to comply with section 23 (3) of the Criminal Justice Act 1985 by assessing for the court the value of any loss or damage to property suffered by the victim. Where there was agreement, however, the court could either:

(a) further remand the matter so that the offender could comply with the agreement, then sentence or discharge the offender at a later date;

(b) sentence the offender after giving consideration to the meeting outcome.

Post-sentence referral

Some victim-offender mediation programmes in the United States have focused on work with prisoners. This has highlighted that some victims and offenders have matters to resolve even though court proceedings have been completed. The purpose of such meetings vary. Some are initiated at the request of individual victims or offenders who are seeking closure on chapters of their lives. Post-sentence mediation may inform parole decision-making and Marshall (1995b) reports instances of British programmes mediating between inmates and the communities into which they hope to be released.

Another form of post-sentence mediation is where groups of offenders meet groups of victims who were not the victims of their offences. This has been tried in Britain and is sometimes a feature of driver-education programmes. The mediation may involve offenders undergoing community-based sentences and it has also been attempted with prison inmates (Green & Gray, 1994 ; Shadbolt, 1994).

Marshall (1995b) suggests that post-sentence programmes involving victims and offenders who do not have a direct relationship generally follow a pattern of initial success with positive experiences for victims, followed by increasing difficulty attracting victims to attend meetings. He posits that the proportion of victims who seek and would benefit from these interactions may be small.

Summary of staging options

Pre-trial, pre-sentence and post-sentence processes need not be mutually exclusive and a system of justice with a greater restorative focus might provide opportunities for mediation at all stages of proceedings. This is not dissimilar to the approach taken in the New Zealand youth justice system. The costs of implementation and operation at each stage of the criminal justice process clearly need to be weighed against the objectives of their introduction and the perceived benefits they might bring.

6.4 Type of Approach

Mediation, for which there is an extensive and tested body of practice, is a core technique of restorative justice. However, the choice of a particular mediation or practice model for application to victims and offenders influences both the appropriateness of the process and the potential of agreements. There appear to be two general types of restorative practice involving mediated agreements:

· victim-offender mediation; and

· conferencing.

6.4.1 Victim-offender mediation

Victim-offender mediation is the model used in initiatives such as the Victim-Offender Reconciliation Program (VORP) in the United States and Canada and in Victim-Offender Reparation Programmes operating in the United Kingdom (Marshall & Merry, 1990; Zehr, 1990).

In this model, the victim and offender are actively involved in seeking a resolution of the issues that concern them. Both must have agreed to mediate, and the process cannot be applied if there is no victim, for instance if the offender has been charged with possession of drugs or driving while disqualified. The role of the mediator is to provide a safe context for mediation but not to actively influence the outcome. While the victim and offender may have supporters or family attending, these others are not actively involved in the mediation. On occasions, victims may be represented by a friend or family member instead of attending in person. Where businesses or local authorities are the victims of the offending, the manager or some other staff member attends the meeting and represents the victim's interests.

It appears to be accepted generally that victims should have the right to decline to be involved in restorative processes. Since victim involvement is a prerequisite in victim-offender mediation programmes, the victim's decision not to participate effectively acts to deny the offender access to restorative justice, but it cannot be otherwise given the nature of the programme.

Most programmes also envisage the voluntary participation of the offender since attendance under compulsion is likely to limit the value of the meeting and could result in further trauma for the victim. The VORP Volunteer Handbook (Stutzman Amstutz & Zehr, 1990) recommends that mediators should first ascertain whether the offender is willing and suitable to mediate before contacting the victim, in order to protect them from false hope and pointless inconvenience.

Some New Zealand public opinion has it that offenders should be compelled to attend since they have waived their right to choose as a result of their offending. There is also the view that they might benefit from being required to face the damage they have caused. However, the need for voluntary participation tends to be accepted as the reality if the potential negative implications for the victim are to be avoided (MRL, 1995).

The parties themselves are responsible for achieving an agreed outcome from mediation. In victim-offender mediation programmes, either party can refuse to come to a final agreement and the mediator must accept the parties' decision. However, where agreement is reached, some programmes allow for mediators to report to the court or referral source on agreements which are considered ill-founded (Stutzman Amstutz & Zehr, 1990).

Victim-offender mediation is oriented to the issues of concern to the victim and offender, often focusing on reparation. However, in victim-offender mediation programmes which seek to influence criminal justice proceedings, any agreement between the victim and offender must compete with other sentencing considerations. Consequently, it may be ignored in sentencing or incorporated in an amended form in any sentence imposed.

6.4.2 Conferencing

The conference model is used in the New Zealand youth justice system and in programmes for juveniles in a number of Australian states.

The aim is to both resolve issues concerning the offence and to stop future offending. The victim and their supporters, the offender and their family and all parties affected by the offence or those who may have an interest in the outcome of the conference may attend and contribute. The New Zealand youth justice system and family group conference process were earlier described in paragraph 3.2.

In New Zealand, youth justice family group conferences may proceed without both the victim and the offender. Conferences are held for victimless offences. In cases where there is a direct victim who declines to attend, the conference may still proceed as long as the co-ordinator and the offender's family consider that it will be of value. A similar situation pertains if the offender is unable or unwilling to attend, although conferences without the offender are rare. Community expectations of adults regarding personal responsibility for offending, means it is likely to be even more unacceptable for conferences to proceed without the participation of adult offenders. The role that family members might play may be quite different from that expected in the case of juveniles, since legal and moral responsibilities no longer exist or will have changed. Power relationships will also be different, particularly where offenders are middle-aged or older or alienated from their family.

The conference co-ordinator plays an active part in facilitating an agreement and, in complex matters, a conference might be convened several times.

The consent of all parties, including the co-ordinator, is usually required for an agreement. Fisher (1994: 15) suggests that the process employed in New Zealand family group conferences "is more interventionist than appropriate for mediation and may be closer to conciliation."

In family group conferences, all those participating must consent to agreements. Parties are invited to attend because of their interest in the offence or influence on the offender and the range of interests needs to be recognised through compromises reached in the decision-making process. Conferencing therefore enables the interests of several parties to be considered in the same forum and, potentially, expressed in agreements. This may mean that outcomes may be more acceptable to the sentencing courts. On the other hand, victim interests have to compete with those of the other parties.

Family group conferences are one form of conferencing. McElrea (1994b: 12) has proposed a model of community group conferences which seeks to "tap the relationships of respect and influence that apply to the adult offender".

He suggests that families are still likely to play an important, if different, role for adults and that there might be "other, non-family based, relationships of respect, other communities to which the offender belongs" which might be a substitute for or valuable supplement to family relationships. The conference would bring together several representatives of the community to which an offender relates, so as to provide a negotiated, community response to crime. This group would seek to address the wrong and affirm the offender in remedial steps for the future. The community group conference as envisaged by McElrea (1994b:13) would involve

...the victim (and supporters, if desired), a police representative, family members if appropriate (-perhaps fewer than for an FGC but cultural factors would be relevant here), and persons representing other significant relationships for the offender - say one or two such persons, or more if there is no family involvement. Imagination and perseverance would be necessary skills in assembling a community group. If despite skilled endeavour, no such persons can be found there may be a place for voluntary associations (eg a local church group, cultural association, or service organisation) to step into the gap. Finally an agency offering assistance to address a specific need (illiteracy, alcoholism, budgeting help) might appropriately be included in a CGC...

It was also suggested that conferences could still be held where the victim declines to attend or for victimless crimes.

Research by MRL (1995:74) identified concerns that

...the meeting must be balanced and limited to a set number of people, to avoid the chaos of everyone trying to have their say.

Participants believed it essential that victims and offenders had family and support people attending, but only as observers.

Maori in particular felt that the meeting needed to be limited for reasons of confidentiality. These participants sought to restrict attendance to members of their whanau only. There was a comparatively low level of acceptance of the need for lawyers to attend mediations and conflicting opinions about the desirability of a police presence.

In comparison with family group conferences provided in the youth jurisdiction, in any application of the conferencing model in the adult jurisdiction it may be desirable to strengthen the focus on victims, place a different emphasis on the role for the family and supporters of the offender and enhance the role for the community.

The rate of victim involvement in family group conferences (Maxwell and Morris, 1993) and the poor rate of achieving direct mediations in reparation enquiries in New Zealand (Jervis, 1995) have already been noted. Programmes in Britain have achieved rates of 47% in getting victims and offenders to mediate in pre-trial programmes and 34% from court referrals (Marshall & Merry, 1990). In the United States, rates of 36% have been recorded (Dignan, 1990; Umbreit, 1994; Umbreit & Coates, 1989).

The degree to which victims perceive a benefit in their involvement and are consequently willing to participate, will effect the efficacy of any community group conference programme.

The New Zealand Law Society (1994: 2) noted that this country's youth justice system differs from victim-offender schemes in other jurisdictions where "attendance is voluntary on the part of both offender and victim.

The numbers of cases handled under such schemes tend, partly as a consequence, to be small." It is argued that in any pilot of community group conferences attendance should be compulsory, "at least for the offender". The Children, Young Persons and Their Families Act does not, however, require the attendance of either the victim or offender at the family group conference and section 252 considers instances where it is impracticable for the child or young person to attend. Rather, the Act identifies persons who are entitled to attend the family group conference and the incidence of conferences is more likely a consequence of provisions requiring judges to ensure that an attempt has been made to convene a conference.

6.5 Type of Cases to be dealt with

6.5.1 Selection Criteria

UNIVERSAL ELIGIBILITY

In 1993, there were 60,496 cases resulting in a conviction for offences excluding traffic offences (Spier, 1994). If restorative interventions for adult offenders are to be extended, one way to do so is to apply them universally. Paragraph 5.9.2 describes what constitutes a case and estimated that the cost of one type of a universal scheme (post-conviction/pre-sentence) was likely to amount to more than $23 million.

State investment in restorative programmes needs to be justified by demonstrable improvements in the quality of the criminal justice system, achievable at an acceptable price. Eligibility for restorative processes might therefore be approached on the basis of providing the `most good for the most people'. This suggests the need for some form of targeting.

Marshall (1995b) points out that for victim-offender mediation to have any prospect of success the victim has to be able to get something significant out of the process: there may be less scope for such achievements in most instances of minor offending.

If the degree of victimisation or loss is low, then the effort and inconvenience to the victim of attending a victim-offender mediation is unlikely to be compensated through any outcome. This is especially pertinent if the content of the mediation focuses on the rehabilitation and welfare of the offender. Additionally, there might need to be better evidence of reductions in reoffending than has thus far been observed to justify providing restorative justice programmes to minor offenders.

On the other hand, there do not appear to be strong arguments for excluding serious offenders from restorative programmes. If restorative processes can improve victims' satisfaction with the criminal justice process and outcomes and reduce recidivism, victims and the community may have the most to gain from restorative programmes which target more serious offenders. As noted in paragraph 4.4, although property crimes were selected most frequently as appropriate for restorative justice, the majority of participants in the MRL (1995) focus groups believed that all types of offences and offenders could be dealt with by this process so long as the victim freely wanted this to happen.

If it is accepted that restorative processes should not be universally available for efficiency and effectiveness reasons, then there needs to be some agreed basis for eligibility. If lines must be drawn, then lines relating to offenders are an obvious option in spite of the fact that victims' needs will exist across the spectrum of offences and thus offenders. Options for determining eligibility include systems based on the age of the offender, or the offence type or the seriousness of the offence, and these are now discussed in turn.

AGE OF THE OFFENDER

One option is to restrict eligibility for new restorative schemes to offenders within a certain age range. This idea has been proposed by a number of groups who have tended to focus on young adults.

Moana Jackson (1988) proposed that mutually mediated muru should be incorporated into the range of criminal sanctions. Muru is a traditional concept by which redress for wrongdoing is delivered by the offender's whanau to the whanau of the victim. In response, the Courts Consultative Committee (1991) recommended the application of family group conference arrangements (rather than youth justice procedures in general) to persons aged 17-20. The reason for selecting this particular age-range was not explicit, but it may be assumed from their comments that the committee thought the involvement of families and victims was most likely to be beneficial and influential in respect of offenders in young adulthood. While they noted that older age groups were less likely to be influenced by whanau or family, it was suggested that this extension was appropriate given the initial experiences of those involved in the youth court. Part of the long-term value in extending the process to this group may have been seen as a reduction in recidivism, although such reductions are not necessarily clearly evident (see paragraph 5.6).

The Crime Prevention Action Group (1992) raised the prospect of increased diversion for casual offenders. In this context, the Crime Prevention Action Group II (1993) proposed further analysis of the appropriateness of raising the age at which young offenders are covered by family group conferences to 18 years.

The offender target group for community group conferences is not entirely clear since although the paper refers to adult offenders, it also uses "young person" interchangeably and refers to family relationships for 17, 18 and 19 year olds (McElrea, 1994: 12). The response of the Courts Consultative Committee (1994) to this paper indicated that it "tentatively favours extending the family group conference in certain criminal offences to 17 and 18 year olds." Another response expressing a contrary view was that any idea of applying new restorative developments exclusively to young (but not necessarily youth) offenders would be unwise. This was on the grounds that many would represent the failures of the youth justice system, and that conference arrangements in the adult system would be no more likely to be successful (New Zealand Law Society, 1994).

These proposals have two aspects. The first involves extending the use of family or community group conferences to young adults as part of the court process. The second incorporates the diversionary element of the current youth justice system.

There are limitations in using chronological age to determine eligibility.

The cut-off age will always be rather arbitrary and there are different ages of majority in society for different purposes. The United Nations Convention on the Rights of the Child which New Zealand has ratified, regards those up to 18 years as children. Recent Government policy changes (for example, benefit and education study assistance and the school leaving age) have increased the age range of those who may be considered youths or the responsibility of their parents.

The desirability of extending the diversionary approach of the Children, Young Persons and Their Families Act also needs to be considered. The principles in the Act are based on the interests of young persons, and favour these over those of the victim. Further, the authority to arrest young persons is limited to the need to avoid further offending or tampering with evidence, young persons do not usually receive criminal convictions and there are prohibitions on the publication of details of offenders and cases.

The justification for extending these arrangements to older offenders would need to be considered, along with whether such changes would be in the interests of justice, or indeed congruent with restorative objectives such as denouncing the offence and holding the offender accountable.

If family group conferences were to be extended to offenders aged 17-20 years, this would be likely to involve more than 20,000 cases, based on 1994 volumes. Paragraph 5.9.2 describes what constitutes a case. During 1994, there were 30,929 cases prosecuted in this age range and 23,353 cases resulted in a conviction.

If any scheme was to apply only to 17 and 18 year olds, then the numbers affected would be smaller but still significant. In 1994, 15,120 cases involving offenders aged 17 and 18 were prosecuted, and 11,070 cases resulted in a conviction (Department of Justice, 1995c).

The coverage achieved by any scheme would be dependent on the stage at which it applied, and issues such as whether conferences were to be discretionary or compulsory and apply to all offences or just those with direct victims. On current volumes, compulsory conferences for 17 and 18 year olds at the post-conviction/pre-sentence stage alone would involve one and a half times more conferences than were held in the entire juvenile justice system in 1994 (Department of Social Welfare, 1994).

OFFENCE TYPE

A further way to limit eligibility is to restrict the application of restorative programmes to offenders charged with or convicted of certain types of offences.

The largest single category of offences for 1993 (and in preceding years) was traffic offences. There were 62,417 convictions involving 45,340 cases. Within this group, the largest number of cases (29,307 in sum) involved driving with excess alcohol and driving while disqualified. These offences do not in themselves involve victims, although related offending may do so. There were 1,095 cases of driving offences causing death or injury (Spier, 1994).

Categories of all other offences and the conviction volumes for 1993 were as follows:

Table 6.1 Number of Cases Resulting in a Conviction for All Offences Except Traffic Offences by Type of Offence 1993

Offence Type Number of Cases Convicted
Violent 9,303
Other against persons 1,378
Against property 21,458
Involving drugs 7,949
Against justice 5,869
Against good order 4,889
Miscellaneous 9,650
Total 60,496

Drawn from Spier, 1994, Table 2.12 page 38

Broad category types, such as those above, could be used to determine eligibility. However, some categories of offences, or particular offences within these categories, may not have victims.

Alternatively, particular offences (for example rape, assault, burglary, theft etc.) might be identified as the eligible group for restorative programmes. Conversely, this method might be used to exclude particular offences from mediation (also see paragraph 5.2.3).

In various discussions with New Zealand legal, victim support, correctional and police representatives, it was sometimes suggested that offences involving domestic violence, sexual crimes and murder should not be part of restorative programmes. In the case of murder, the victims were regarded in the wider sense to include the immediate family of the deceased. Concerns were that the victims of these offences were unlikely to obtain any advantage from a restorative process, that the risk of revictimisation would be too great, or that no restorative outcome could be accommodated because imprisonment was likely (or in the case of murder mandatory). Others in the same groups however, noted that victims of serious offences often have issues that they wish to resolve with the offender and that the victims' further recovery could be impaired by being denied access to restorative programmes. They observed that for some rape and incest victims the opportunity to confront the offender and experience that offender expressing guilt and responsibility could be an empowering experience. Carbonatto (1995) suggests that mediation in domestic violence cases may be an important tool in meeting the needs of the victim and offender who wish to continue living together or who share ongoing responsibilities through their role as parents. Others have emphasised that the model proposed by Carbonatto is only suitable in particular circumstances, and even then should only be used alongside other strategies such as education programmes for both offenders and victims. It has also been pointed out that mediation processes in cases of family violence have in the past been used to blame victims by defining the issue as a "couple problem" and removing responsibility for it from the offender (Martin, 1995).

The majority of participants in New Zealand public opinion research (MRL, 1995) thought that all offences should be included as long as the victim wanted to use the process. However, this research also identified a tension between the expectations of some men who felt uncomfortable with the notion of restorative justice programmes applying to offences such as child abuse, rape and murder and the views of some women who felt that restorative justice should be reserved for serious personal offences such as rape and murder rather than "wasted on more trivial offences such as car theft and burglary". Similarly, Marshall (1995) was concerned that mediation did not get marginalised to petty offences.

SERIOUSNESS OF OFFENCE

Although it is not possible to predict the impact of an offence on a particular victim, it is possible to delineate more serious offences. These are reflected in sentencing principles in section 5 of the Criminal Justice Act 1985 that create a category of violent offences for which imprisonment is the expected penalty, and by the hierarchy of maximum penalties which indicates the relative seriousness of offences.

Accordingly, eligibility for mediation might be determined by factors such as:

whether the offences are imprisonable; whether they carry a maximum penalty of a certain length; whether the judge considers that he or she would have imposed a sentence of imprisonment within a predetermined range (such as between 6 and 24 months); or whether the judge considers the offender might be required to pay more than a certain amount of reparation. Examples of similar eligibility criteria are found in the Criminal Justice Act 1985 for pre-sentence reports (section 15), revocation of deferment orders (section 21), the suspended sentence of imprisonment (section 21A) and reparation reports (section 22 (4)(b)).

If eligibility was based on fixed categories such as maximum penalties of a certain level, then no discretion need be required. Other categories such as whether a sentence of imprisonment within a predetermined range would have been imposed would involve the exercise of discretion and this could introduce a possible gate-keeping effect. Any systems involving the use of discretion are likely to result in variation around the country in the nature of cases referred.

6.5.2 Referral for Mediation

Eligibility for a restorative process will be of limited value if it is not associated with a way of advising parties of, or directing them to, that process.

There are two general approaches that could be adopted for referral.

The first is to arrange for the automatic referral of all cases which meet the eligibility criteria whatever they might be. This has the advantage of precluding the introduction of bias in selecting cases. However, where the rules are broad and involve a high volume of cases, there is the risk of swamping the co-ordinating agency with referrals. Arranging and holding mediation meetings is a time-consuming process and considerable time may be lost in following-up cases which may never have been likely to result in mediation for a variety of reasons. There is also the danger of creating delays in the court system.

The alternative approach is to draw from the pool of cases which meet the broad eligibility criteria, those which are considered likely to benefit from restorative processes and those where the victim or offender seek a mediation meeting. If this approach was to be adopted, it would be desirable for the referral sources to be wide to ensure that a broad range of interests and perspectives could influence selection. Those who might be appropriate referral sources for restorative programmes include the following:

· Individual victims and offenders (self referrals);

· The police and other enforcement agencies;

· Police and crown prosecutors;

· Victims' agencies;

· Defence counsel;

· Probation officers;

· Judges.

An alternative view is that meetings could be initiated by the programme co-ordinator once guilt is established by admission or trial, while "A judge should have the power to order a community group conference in any other, appropriate, case". "...The role of the co-ordinator, who sets up the [community group conference] will be pivotal" in assessing whether a conference would be a pointless exercise, whether the cost of a conference is justified and deciding who should attend the community group conference (New Zealand Law Society, 1994: 3).

6.6 Delivery Issues

6.6.1 Provision of Mediation Services

There are two broad organisational approaches to the co-ordination of referrals and the delivery of restorative justice programmes. They are delivery by community organisations or by government agencies.

COMMUNITY ORGANISATIONS

Delivery by community organisations is consistent with the restorative movement's objective of strengthening the community's ability to respond to crime appropriately. This has largely been the model adopted by North American and British victim-offender mediation programmes. Advantages associated with community delivery include: the ability to reflect and respond to local concerns; the opportunity to provide culturally specific and other appropriate models of delivery; and the ability to attract volunteers and philanthropic involvement.

Community delivery does not preclude government involvement.

Marshall (1995) recommends a role for government in encouraging and supporting local initiatives. Some British community projects received establishment funding from central government and are provided with ongoing resources from local agencies, typically the region's probation service. Some community programmes are established under the auspices of an inter-agency committee comprising probation, police, victim services and other community agencies. In the United States, fee-for-service arrangements with courts and probation services are not uncommon, though most programmes are sponsored by private organisations, working closely with the courts (Umbreit, 1991). In any case, initiatives which seek to influence the criminal justice system usually have their greatest source of referrals from local and state government. Any system of delivery relying on community organisations would need to be adequately funded. Accountabilities and standards could be enhanced through contracts with providers.

GOVERNMENT AGENCIES

Nation-wide coverage might be more likely with state provision of services than if the development of programmes was left to local communities. However, much would depend on the resources allocated to programmes, and the priority that restorative processes were to receive in relation to the responsible agency's other functions.

Broad coverage could also be achieved by contracting for services with private sector service providers, whether profit-making or part of the voluntary sector. Existing government agencies could contribute staff experience and an infra-structure which might facilitate establishment and provide coverage in areas where full-time or stand-alone programmes would not be practicable. The Government already purchases some mediation services as part of outputs for the Departments of Social Welfare and Corrections and there is a level of expertise available within these agencies. Each, however, has a particular client group and focus which raises the issue of their independence. In Britain, despite many favourable outcomes, victim-offender mediation programmes adopted by existing agencies tended to find their objectives subsumed by and lost to the agency's other objectives.

As Marshall (1992: 15) put it:

Existing agencies tended to "take over" the new schemes and try to adapt them to their ends, whereas the greatest potential in such innovations lay in the new aims underlying them, related to reconciliation and a conflict resolution approach to crime policy.

The greatest obstacles lay in the offender-orientation and punishment focus of the existing system.

The risks of agency capture are further compounded by the need of government agencies to deliver services in an integrated and congruent way in relation to government policy and standards of accountability. As a consequence, state delivery might be more bureaucratic, less responsive to local needs and more expensive.

6.6.2 Mediator Issues

The decision as to who should mediate, co-ordinate or be the referee of a restorative process will be influenced by several factors. These are:

1. The skills of mediators/co-ordinators;

2. Their backgrounds and professional membership;

3. Issues concerning the agencies involved in mediation.

Discussions with mediation professionals suggest that the skill and aptitude of the mediator are major determinants of satisfaction for participants, once they agree to be involved in a restorative justice process.

Some assurance of quality might be obtained by using only mediators who hold a qualification or some form of practice certificate. Membership of a professional body may also provide a formal system of accountability. Conversely, the professionalisation of mediation work may be in conflict with the broader aims of restorative justice, cultural values, the greater role of the community and enhancement of informal controls.

Mediation is able to be practised by anyone. It is not the sole province of professionals. Ordinary members of the public could act as mediators.

This might involve part-time work with the voluntary sector in community-initiated programmes or draw upon particular cultural expertise. Examples include marriage guidance counsellors, kaumatua, tohunga, and matai. On the other hand, the appointment of justices of the peace provides an example of formalised provisions for lay-workers in the justice area, with access to training and administrative services. However, adherence to a code of conduct or quality standards would seem desirable if there was to be public confidence in a restorative justice system, especially one that dealt with serious offending.

It is desirable that the mediator is impartial and perceived to be so by the parties. To avoid any suggestion of bias, it would be wise to avoid drawing mediators from occupational groups or organisations that could be considered to have a particular focus or favour particular participants. For instance, a probation officer might be regarded as wanting to give priority to offenders' needs at the expense of victims. Mediators are also unlikely to be able to maintain their independence if they are expected to represent the interests of an agency or the state. As a result, a mediator who was a probation officer should not be expected to ensure that an offender received an outcome in line with the sentencing goals of the Department of Corrections. In the conference model, it is also preferable that the state's interests are represented by someone other than the mediator if the technique of mediation is to be impartially applied.

The age or seniority of the mediator may influence participants to behave in culturally determined ways, and problems may arise for members of some cultures due to the mediator's status or age in relation to the participants. Options, such as matching mediators skills' and attributes to cases or

co-mediation, can generally be used to manage some of these issues although they do require a range of potential mediators to be available.

6.7 The Status and Monitoring of Mediated Agreements

The restorative process may be therapeutic and cathartic for participants. There may be an apology, forgiveness and a resolution of matters between offender and victim. These are useful contributions to the criminal justice process but it is likely that agreements will also require the payment of reparation, the performance of tasks as a token of restitution and the offender's completion of programmes aimed at reducing the likelihood of further offending. These need to be completed after the parties have met.

The administration and supervision of agreements could require significant resources. If agreements were frequently defaulted upon, victims would be likely to feel let down by the system, and considerable additional work reviewing previous sentencing decisions might be created for courts.

Maxwell and Morris (1993) noted the dissatisfaction of parties to family group conferences in terms of the follow-up of outcomes. Often agreements were not completed and victims were seldom informed of outcomes. There was also concern that officials failed to action or enforce agreements. Marshall and Merry (1990) also noted that most studies had recorded the need for projects to monitor agreements and the satisfaction of parties, particularly the victim.

The appropriate location for monitoring mediation agreements depends to a considerable extent on the status of the agreements themselves. The main options in programmes integrated with the criminal justice system, include:

· Agreements are completed as a private contract between the victim and offender. This has the advantage that contracts might include elements which the court could not normally order as part of a sentence. Such elements might involve the offender working for the victim, cleaning graffiti or making acts of atonement. There are a number of options for monitoring under this approach. The first is that there would be no external monitoring and the completion of the contract would be a matter of honour for the offender. Disadvantages of this approach are that it is unlikely to be acceptable to the public where serious offending is involved and in the absence of formal monitoring offenders may renege on their agreements. The absence of external monitoring is likely to create considerable frustration and dissatisfaction for victims. Another approach would involve monitoring by the agency responsible for providing the mediation services. This would extend the function of this agency and a monitoring and enforcement role may call into question their impartiality as well as add to their costs. There would be few options for responding to non-compliance. Where the offender had yet to be sentenced for the offence, non-compliance could be taken into account by the court. However where contracts broke down after sentencing, victims would have to rely upon contract law for any remedy. This would impose an extra burden and costs on the victim.

· Agreements are completed under an order of the court. All elements would be provided for in legislation. These might include sentences imposed under the Criminal Justice Act 1985 with new statutory provisions to include outcomes agreed at mediation as part of a sentence. In such cases they would be monitored and enforced by the responsible public officials: probation officers, prison officers and court staff/bailiffs. The purpose and elements of the contract would need to coincide with those prescribed for the particular sentences. Failure to abide by the

terms of the agreement might constitute a new offence or lead to a review of the agreement and re-sentencing where the court considered it appropriate.

· Agreements are completed as a combination of a private contract between the offender and victims for non-sentence elements, and under the order of the court for those aspects which constitute sentences. The private contract element could be monitored by the agency providing the mediation services, but there seems little point in monitoring agreements if there is not also some power to take enforcement action when agreements are not met. Remands to complete mediation agreement undertakings might be one way of addressing this so that the judge can take the completed agreement into account at the time of sentencing, but this approach does run the risk of causing delays in the court system.

Where agreements are to be completed prior to sentencing during a court-ordered remand, the offender is not the subject of a sentence. Under current legislation, administering such agreements would be beyond the role of probation officers. Completion of the restorative process might be ordered as condition of bail but this is wider than current bail conditions would allow. Bail arrangements are usually enforced by the police, but monitoring of this sort by the police would be an extension of their current role in respect of bail.

The court might also request that counsel for the defence or prosecution, in their roles as officers of the court, report on the completion of agreements.

6.8 Legislation

The extent to which restorative processes infiltrate criminal proceedings will be affected by the authority granted to mediation in the criminal justice system. There are three options. These are that:

1. Mediation is a compulsory stage of criminal justice proceedings for some or all cases;

2. Mediation for some or all cases is a discretionary option;

3. While referral for mediation is discretionary, it has specific legislative authority.

6.8.1 Compulsory provision

Whichever options for delivery and timing were used, the compulsory provision of restorative interventions would require changes to legislation. Currently, there is no legislative requirement for the courts to obtain reports of any type before passing sentence. However it is common practice that a pre-sentence report is obtained prior to the imposition of a term of imprisonment.

Compulsory provision is not necessarily synonymous with universal coverage. Legislation might mandate mediations in particular circumstances, for example where the loss was greater than $500, or exclude categories of offences, such as traffic, non-imprisonable or violent offences.

The youth court model provides one example of a mandatory system.

There a case cannot usually be finalised without convening a family group conference, although a sentencing judge need not follow any recommendations from that conference.

In contemplating any extension of youth court practice to the adult jurisdiction, it is important to consider whether the decision to attempt a conference should be at the discretion of the court or a mandatory provision. By the time a case comes before a youth court for sentence, the offender has been considered for caution and diversion. A family group conference may have been convened (at which an option may have been to resolve the matter without reference to a court). At the least, a youth justice co-ordinator and the family of the offender will have considered whether a conference would serve any useful purpose (section 248(1)(c), Children, Young Persons and Their Families Act). Accordingly, only the more serious or complex cases are referred to the youth court.

While the victim and offender can decline to attend the family group conference it is still compulsory that the conference is convened, and this is a key and novel difference in the New Zealand system (McElrea, 1994b).

The mandatory nature of the family group conference restricts the application of judicial discretion while granting considerable influence to the co-ordinator. The co-ordinator chooses how to approach the parties, influences who is invited to the process and tempers participants' influence over the process. Whereas the court is a public venue, the ability to maintain oversight of a

co-ordinator's use of discretion is limited because of the conference's private nature.

With adult offending the power dynamics between victim and offender are likely to be different from those commonly experienced in the youth system. The adult courts deal more frequently with offences of serious violence, and some adults have had more time to become inured to the use of violence and intimidation. In this regard, the role of the co-ordinator in providing a safe and fair environment for victims and other participants becomes very important. Whereas it may be mandatory for a judge to refer for a restorative intervention, mediation may still not occur if the mediator considers they cannot safely convene a mediation, or if the process is usurped by one or more of the parties. Mandatory provisions that put victims to further trouble without the prospect of meaningful advantage may also be counter-productive to restorative aims.

In a mandatory system the state would have to ensure that there were restorative services, mediators or conference co-ordinators and resources to administer referrals. If this were not the case, lengthy delays in processing cases might be experienced. Establishing a national system where the infrastructure for contracting or delivering services would be needed in all criminal courts would impose a heavy resourcing burden. High start-up costs would be involved. Staged implementation, as occurred with the sentence of periodic detention which depends on the availability of a periodic detention centre, might be an alternative that encourages rational use of limited resources such as mediation trainers and enables a trial or pilot.

On the other hand, a compulsory system establishes a mandate for restorative solutions, and means that a larger number of eligible cases are likely to be referred for mediation. Access to restorative options would be similar across most of the country. While it may be mandatory for a judge to refer a case for mediation, as with the youth justice system, there may be no requirement for a court to give effect to a mediated agreement. In this respect, the esteem in which a programme is held may be more important in influencing sentencing than the mandatory nature of the provisions.

6.8.2 Discretionary Provision within Existing Legislation

There are no statutory barriers to the voluntary use of mediation, in whatever form is preferred in the adult jurisdiction, at any stage of proceedings. However, the widespread use of mediation would probably require the active support of criminal justice agencies, and may incur costs such as those involved in providing mediators and venues.

With the agreement of those involved, mediations could be held at any stage of proceedings and could consider any issues concerning the offence, the prosecution or any offer to make amends. Outcomes could be communicated to the court by either the prosecution, the defendants or their counsel. Recourse to mediation would probably depend upon the parties to the prosecution perceiving some benefit to be gained.

Potentially, the discretion granted to judges in ordering pre-sentence enquiries (sections 12-16 and 22-25 of the Criminal Justice Act 1985) provides scope for the advancement of restorative justice interventions. Judges currently have few guidelines as to how apparent conflicts among the principles of sentencing are to be resolved. Consequently, although there is scope for restorative processes, restoration is not a central concern of the criminal justice system and at times it is likely to be afforded less emphasis than other sentencing objectives.

From within the criminal justice system, government agencies, judges and lawyers could be encouraged to use the scope of existing legislation and procedure to obtain restorative outcomes. Similarly the courts have existing authority to remand cases and order a variety of reports and enquiries which could include restorative considerations.

Precedent and the natural conservatism of any large system may inhibit the use of discretion. The occasional use of existing authority to provide a restorative process may be largely unproblematic and achievable within existing budgets. More extensive use may have resource implications, but the effect would be gradual compared with the implementation of mandatory national programmes. Cost savings may also accrue gradually and these are likely to arise in quite different budgets. The re-allocation of public money to support a system of restorative interventions would require new national policy, even if changes were achieved within existing total budgets. In the end, however, giving effect to the potential in existing legislation would depend on the support of judges and the availability of local resources in the form of mediators and venues.

The administration of parole and community-based sentences provides several opportunities for the application of restorative interventions after sentence. Mediation and case conferences are standard practices for probation officers and social workers. Probation officers are occasionally called upon to mediate disputes involving offenders under their supervision, or to mediate between inmates and the families and communities to which they will be paroled.

If, as Leibrich (1995) suggests, decisions to desist from offending are associated with challenges to the personal value system of offenders, then victim-offender mediation may be a technique applicable to probation practice and deserving of further analysis in this regard.

6.8.3 Legislate for Discretionary Restorative Justice Procedures

As noted in chapter 3, the current scope for victim-offender mediation as part of reparation report enquiries is rarely realised. The Courts Consultative Committee (1991: 30) noted the scope in current legislation for muru to be incorporated and considered that legislation was necessary if the use of this discretion was to be "widely acknowledged as valuable." There are several discretionary reports provided for in the Criminal Justice Act 1985 (sections 14,15,16 and 22-23).

Legislation would ensure that judges are entitled to consider mediated agreements in imposing sentence and could reduce the risk that mediation outcomes will be disregarded in sentencing.

As with information provided under section 16 of the Criminal Justice Act 1985, counsel for the offender might advise the court of the opportunity for a restorative outcome. Counsel are aware of the demeanour of the offender and are responsible for obtaining the best permissible outcome for their client. The costs of such approaches in time and in the arrangements for mediation might initially fall to the legal profession but are likely to be passed on to the offender or result in calls for a change to the legal aid system. However, counsel for offenders may be reluctant to approach victims, aware, perhaps, that they can be considered partisan, or concerned that their approach may be misconstrued.

Discretionary legislative provisions are no guarantee that practices will be adopted with any consistency or regularity. Anecdotal reports indicate that section 16 of the Criminal Justice Act 1985 is rarely applied. Similarly, although there are legislative requirements for reparation to be considered in all cases (section 11 of the Criminal Justice Act), Jervis (1995: 7-8) notes that reparation reports form only 8% of all pre-sentence information provided by probation officers and that "the number of cases in which victim-offender mediation takes place is insignificant". In practice, reparation is not given a high priority among other sentencing considerations and a judge often has insufficient information to accurately assess the need for restitution or indeed to whom reparation should be paid.

6.9 Options for Comment

Proponents of restorative justice claim that it should be supported because it better meets victims' needs, provides for the direct involvement of the key parties, and reduces reoffending and the use of imprisonment. As was indicated in chapter 3, there is plenty of scope for restorative practices within existing legislation. Some of the potential benefits and risks of restorative justice programmes were considered in chapter 5.

Government funding is limited. Given that restorative programmes are likely to be expensive to introduce and cannot confidently be expected to create large compensatory savings in the criminal justice system, comments are requested on whether or not the development of restorative programmes should be supported, and if so how they should operate. The reasons for favouring particular options would be helpful in assisting understanding of the choices made and should therefore be stated.

6.9.1 More Restorative Justice ?

Which of the following should be the priority:

· Expanding restorative justice programmes for adult offenders?

· Parenting skills programmes and early childhood education as a general contribution to a crime prevention strategy ?

· A system of victim advocacy ?

· Community-based crime prevention programmes ?

· Programmes and services for child and juvenile offenders ?

· Programmes and services for adult offenders to reduce the likelihood of their reoffending ?

· Other (please specify)

For discussion on this issue see paragraph 6.1.3.

In respect of restorative justice specifically, there are a number of options on which comments are sought.

6.9.2 Primary Objective of Restorative Programmes

What should be the key objective of restorative programmes:

· Denouncing crime ?

· Reforming individual offenders ?

· Preventing crime generally ?

· Helping victims ?

· Making good the suffering caused by crime ?

· Keeping the costs of the justice system to a minimum ?

· Reducing the numbers sent to prison

· Some other objective ? (please describe)

6.9.3 Parallel or Integrated Restorative Programmes

Is it preferable that restorative justice programmes:

· Are community development initiatives which operate outside of the formal criminal justice system with no formal or structural links between the two ?

· Are integrated with the criminal justice system, seeking to inform criminal processes and timed to coincide with those processes ?

For discussion on this issue see paragraph 6.2.

If programmes are integrated with the criminal justice system, a number of questions arise about their operation on which comment is required.

6.9.4 Stages of Intervention

Where restorative programmes are integrated with the criminal justice system, is it preferable that they are provided:

· Prior to conviction ?

· After conviction and before sentence ?

· After sentence ?

· At some of these stages ?(please explain which stages)

· At all three stages ?

For discussion on this issue see paragraph 6.3.

6.9.5 Type of Approach

What type of restorative practice involving mediated agreements is most suited for use with New Zealand adult offenders:

· Victim-offender mediation ?

· Family group conferences ?

· Community group conferences ?

· Some other type ? (please provide details)

For discussion on this issue see paragraph 6.4.

6.9.6 Type of Cases to be dealt with

What selection criteria should be applied for cases to be referred to restorative justice programmes:

· Universal eligibility ?

· Age of the offender ? (what age group ?)

· Offence type ? (what type of offence ?)

· Seriousness of offence ? (please describe what you propose)

· Cases with direct victims ?

· Some other criteria ? (please state details)

· A combination of criteria ? (please state details)

For discussion on this issue see paragraph 6.5.

6.9.7 Referral of Cases to Mediation

How should eligible cases be directed to mediation:

· All eligible cases automatically referred ?

· Exercise of discretion to refer cases from eligible group ?

If discretion is to be exercised in referring cases to mediation, who are the appropriate referral sources:

· Individual victims and offenders (self referrals) ?

· The police and other enforcement agencies ?

· Police and crown prosecutors ?

· Victims' agencies ?

· Defence counsel ?

· Probation officers ?

· Judges ?

· The agency providing the mediation ?

· Some of these sources ? (please state which ones)

· All of these sources ?

For discussion on this issue see paragraph 6.5.

6.9.8 Delivery Issues

Who should co-ordinate referrals and deliver mediation services:

· Community organisations ?

· Government agencies ?

For discussion on this issue see paragraph 6.6.

6.9.9 The Status and Monitoring of Mediated Agreements

What status should mediated agreements have:

· A private contract between victim and offender ?

· All elements to be undertaken at the direction of the court ?

· Elements of the agreement which are sentences under the Criminal Justice Act to be undertaken at the direction of the court with other elements as a private agreement between the victim and offender ?

Who should be responsible for monitoring and enforcing mediated agreements:

· The victim and the offender ?

· The agency which mediated the agreement ?

· Public officials such as probation officers, prison officers, police officers and court officials?

For discussion on these issues, see paragraph 6.7.

6.9.10. Legislation

What authority should mediation have in the criminal justice system:

· A compulsory stage of criminal justice proceedings for some or all cases ?

· A discretionary option for some or all cases ?

· Discretionary but with specific legislative authority ?

For discussion on this issue, see paragraph 6.8.

6.9.11 General Comment

Further general comment is welcomed. In particular:

· What do you think of restorative justice ?

· Do you think it can work in today's society ?

· What cultural issues are important to consider ?

6.10 Conclusion

The Minister of Justice has asked for advice on the options and implications of a system of restorative justice for adult offenders in New Zealand.

The purpose of this paper has been to outline the issues that arise and invite comment, so that policy advice tendered to the Government reflects a range of opinions and informed debate becomes part of the policy development process. We are aware that there may be other ways of achieving restorative justice objectives and that the options canvassed in this paper may not be definitive. However, they represent a sound starting point. We welcome submissions from all individuals and organisations with an interest in this area.

Submissions should be forwarded by 31 May 1996 to :

The Project Manager

Restorative Justice Project

Ministry of Justice

Private Box 180

WELLINGTON

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