JOURNAL ISSUE 4
2001/2002

table of contents | abstracts

Dr. Brian Williams
Community and Criminal Justice Unit
School of Health and Applied Social Sciences

Definitions:
Reparation: "The process of making good, returning things to their original state or making amends...Some workers in the justice system perceive reparation as a key component to genuine reform because it entails understanding the effects of criminal behaviour on victims and the wish to make amends" (Thomas and Pierson, 1995: 321). Direct reparation: the offender apologises to the victim (sometimes through an intermediary such as the youth justice worker), or repairs the damage done or voluntarily pays compensation Indirect reparation: the offender makes symbolic reparation to the community - for example carrying out unpaid work to benefit the community in general rather than the victim in particular Restorative justice: "Restorative justice seeks to balance the concern of the victim and the community with the need to re-integrate the offender into society. It seeks to assist the recovery of the victim, and [to] enable all parties with a stake in the justice process to participate fruitfully in it" (Restorative justice Consortium, 1999: 3). Reintegration: restoring offenders to full citizenship Reintegrative shaming: Reintegrative shaming "is disapproval dispensed within an ongoing relationship with the offender that is based on respect. It is shaming which focuses on the evil of the deed rather than on the offender as irredeemably evil. Stigmatisation, by contrast, is shaming where bonds of respect with the offender are not sustained. The result is to create outcasts..." (Schluter, 1994: 25). The concept of reintegrative shaming was formulated by John Braithwaite (Braithwaite, 1989). Pre-Sentence Report (PSR): A Pre-Sentence Report outlines the background, present circumstances and attitude of an offender. It usually includes a proposal as to how the court might deal with the person concerned and some information about the effect of the offence upon the victim(s). Introduction A new law was passed in 1998, the Crime and Disorder Act. It reformed the way in which we work with young offenders in England and Wales. In my paper at Dubrovnik last year, I examined some of the implications of the new law for human rights. Today, I intend to look in greater depth at the new law's approach to reparation by offenders to victims. If a young person is made the subject of a Reparation Order under the new law, it means that they must make direct or indirect reparation for up to 24 hours over a three-month period. If they do not do what they have been ordered, they can be fined or given another community sentence. The Orders cannot be made without the consent of the victim, and the court must first obtain a written Pre-Sentence Report. In other countries (such as Austria, New Zealand, Sweden and Spain: see Schelkens, 1998), reparation is used without compulsion. In England and Wales, it can be arranged on a voluntary basis, but with the introduction of this law it will normally be done under a court order. This raises a number of ethical and practical issues that are discussed below. Reparation Orders were introduced in a small number of pilot areas in 1998, and became available to courts throughout England and Wales on June 1t, 2000. I am involved, with colleagues, in evaluating the new Orders in ten areas in the North West of England. However, this research is at a very early stage. Reparation: the Principle Reparation is not a new idea, even in the UK. It was part of the philosophical basis for the introduction of Community Service Orders in the adult courts of the 1970s: these Orders provided offenders with an opportunity to make indirect, symbolic reparation. Reparation was also an important principle underlying the new youth justice system introduced in New Zealand in the 1980s. The success of the Family Group Conference system in New Zealand encouraged other countries to look at the possibility of introducing similar arrangements (1). The basic principle of reparation is a simple one. It provides a framework in which offenders have an opportunity to think about their offending, gain an understanding of victims' perspectives and make amends. It satisfies victims for a number of reasons: 1.) it can be reassuring, giving them facts to replace any fantasies they may have about "their" offender and what motivated the offence; 2.) it can lead to emotional closure as well as financial or other compensation; 3.) some find it satisfying to help offenders get back on the right track; 4.) it can be a less emotionally bruising process than court appearance. Problems in Principle with Reparation in England and Wales The new arrangements may be challenged under the Human Rights Act (2) on the grounds that the young people concerned will have no legal representation before some orders requiring reparation are made (Justice, 2000) (3). There is a tension between dealing with young offenders less formally, as the new arrangements allow, and safeguarding their legal rights. Compulsory reparation also raises other issues. Courts may assume that when reparation has been tried once, and the young person has reoffended, it has not been effective. This is likely to have a net-widening effect (Muncie, 1999). In other words, young offenders who have failed to take advantage of the reparation provisions will be dealt with more severely than they otherwise might have been when they subsequently appear before the Youth Court. This is the kind of "unintended consequence" of legislation that has frequently frustrated attempts to reform the law relating to young offenders in the past. Victims may also be "persuaded" to take part in reparation in order to assist individual young offenders and prevent further offending. These are laudable aims, but only if the decision to pursue them through the formal criminal justice is relatively spontaneous and unforced. There is some evidence from research on similar provisions in Australia that suggests that victims need to be given formal rights if they are to be protected from arm-twisting by youth justice workers anxious to protect the interests of young offenders (Maxwell and Morris, 1996). From the offender's point of view, there is a danger that they will receive different treatment from the Youth Court depending upon the characteristics and attitudes of the victim(s). It is easy to envisage situations where two similar offences might result in very different sentences because of the availability of information about the victim(s) in one case and not the other. Likewise, it is conceivable that two identical offences might have widely differing levels of impact upon their victims for reasons of which the offender was unaware. One can also imagine situations in which the victim's reluctance to participate in reparative discussions might be interpreted as putting the defendant in a bad light. The legislation simply asserts that reparation requires the consent of a victim, leaving these questions unresolved. Compelling young offenders to undertake reparation may not work. There is a body of evidence showing that some approaches to rehabilitative work with offenders are ineffective: "Interventions that focus on worker goals rather than achievable client goals or goals agreed on between worker and client do not seem to work....Poor outcomes have been achieved in situations where there is uncertainty by the client or the worker about the purpose of the intervention, about the role of the worker as social controller or helper, or about how authority should be used" (Trotter, 1999: 40). All these negative indicators would appear to apply to a greater or lesser extent to coerced reparation. One common defence against compulsory "treatment" is superficial compliance: service users know they will be punished if they do not comply, so they go through the motions without committing themselves inwardly to change. In the psychotherapeutic jargon, this prevents the formation of an effective therapeutic alliance, and thus coercion defeats its own objects. There seems to be a real danger that some young offenders will display this kind of resistance when ordered to make reparation to their victims. Effective Practice in Implementing the New Orders The research findings provide some limited pointers towards good practice in implementing the new law in England and Wales. This section draws out some of the implications of the research for practice under the new arrangements. Staff training seems likely to be a key issue, as it was in the probation service when its responsibilities for work with victims of crime suddenly increased in the early 1990s (Williams, 1999; HMIP, 2000). Both professional and administrative staff require preparation and training for work with victims. They need to be aware of the feelings aroused by victimisation and brief victim awareness courses are useful for this purpose. There is a case for providing such training to all who may come into contact with the victims or refer young offenders for reparative interventions. Once there is a basic level of victim awareness within agencies, more specialised training can usefully be provided. Staff directly involved in work with offenders and victims need an understanding of the underlying principles of restorative justice (as set out, for example, by the Restorative Justice Consortium; see RJC, undated, and Marshall and Merry, 1990) (4). Then they can begin to get to grips with the range of models of restorative justice currently operating here and overseas. Without this understanding, there is a danger that different projects around the country re-invent the wheel in slightly differing ways, and that practice fails to follow the basic principles and standards developed as a result of experience elsewhere. A number of issues for the management and practice of work with the victims are closely linked to questions of training, and there is to be a need for further training as this area of work develops. Proper preparation before victims and offenders are invited to become involved in reparative work is essential. Staff training needs to emphasise the importance of such preparatory work. Victims must always be fully consulted before reparative interventions are set up, and in many cases this will take time and require more than one meeting. The procedural rights of both victims and offenders must be respected if constructive outcomes are to be achieved. In the context of the Human Rights Act, this becomes even more important. It may be necessary to negotiate with the courts in order to ensure that the need for preparatory work is understood and respected. Local victims' organisations may be of assistance in the process. In some areas, Youth Offending Teams (YOTs) have arranged joint training sessions for their own staff and Youth Court magistrates, and this would appear to be a useful model. YOT managers will find it helpful to involve a range of local victim support agencies in the development of work with victims. While Victim Support is often the most professionalised and accessible, it cannot be assumed to speak for all victims of crime and there is a strong case for opening channels of communication with other groups such as Women's Aid, Rape Crisis, interagency domestic violence forums, racial harassment groups and other self-help organisations (see Williams, 1999b, chapter five). Appropriate priority will need to be given to work with victims of racial harassment and abuse. This requires good relationships with other agencies and the appointment of an appropriate range of staff, as well as ready access to interpreters where required. On the level of individual practice, a number of pointers to good practice emerge from the literature and the experience of the pilot YOTs. Where reparative interventions are designed to elicit shame on the part of young offenders, it is vital that this is done in a context of reintegrative shaming. This suggests that Reparation Orders, for example, should not normally be used where there is no personal victim: the evidence is that institutional victims may not always be sympathetic to the principles of restorative justice. Young people will not change their attitudes if they are humiliated as part of a reparation project (Marshall and Merry, 1990; Young and Goold, 199). However, there are more constructive and informal ways of approaching reparation to institutional victims, as the Milton Keynes Retail Theft Initiative has shown (Justice, 2000) (5). Keeping victims informed may sometimes be the responsibility of other agencies. The research evidence is that they have not made a very good job of it (Macpherson, 1999; Williams, 1999, 1999b; HMIP, 2000). Where it is the responsibility of a YOT, it should be given a very high priority and administrative systems should be designed to ensure that victims are told what progress is being made once they have been offered services. Lack of information contributes significantly to a sense of being revictimised by the system. Individual staff working with victims should go out of their way to avoid this (and victim awareness training should emphasise the information issues). Practitioners should recognise the overlapping nature of the categories of "victim" and "offender." We know from the research that many victims have previously offended and many offenders are former victims. This should influence staff attitudes to health and safety (leading them to be as circumspect about visiting previously unknown victims at home as they are in the case of offenders: see HMIP, 2000). It should also influence the design of services: for example, it may be necessary to provide individual support for young people involved in group work, in case they have previously been victimised themselves. Finally, practitioners need to be critical of what they are told about research evidence and "what works." Reading much of the Home Office "what works" literature, one could be forgiven for thinking that the successes of youth justice in the 1980s and early 1990s had never happened (Haines and Drakeford, 1998). As recently as 1996, the Audit Commission was quoting research that showed the cautioning was effective (Audit Commissions, 1996). The reason for the sudden change of direction over the succeeding two years was political, not research-driven. Similarly, it is simplistic to argue that young people no longer grow out of crime: the research evidence is that it now takes longer than it once did. That does not necessarily imply, as some have argued, that it is indefensible not to intervene intensively in young people's lives at an early stage. It certainly does not mean that incarcerating more young people will improve matters. Indeed, a central message of the "what works" literature is that incarceration should be a last resort because it is so destructive. Practitioners will do well to remember what has been learned over the last decades. Conclusion The design and delivery of appropriate services to victims of crime creates a huge workload, at the very time when local Youth Offending Teams have the least time to give to it. Other priorities are just as pressing. YOT managers can only keep so many different plates spinning at a time. However, it is crucial that his part of the jigsaw of new disposals and new ways of working is in place at an early stage and that it fits smoothly with other parts of the system. The importance of making a good job of work with victims is obvious and the victim movement has shown enormous interest in and good will towards the new reparative approach. Staff in all parts of the youth justice system need proper preparation and training for their new responsibilities in respect of victims of crime. This should include an understanding of the messages of research, which are nuanced and complex, and an appreciation of the wide range of possible ways of delivering reparative work. We should also build on what we know about "what works," but with due modesty. The process of building up that knowledge base is at a very early stage. The new Orders need to be implemented with an awareness of previous research and practice knowledge, and with due respect to the rights of all involved. The way the law is framed does not make that easy. Footnotes 1.) Family Group Conferences (FGCs) were introduced in New Zealand with young offenders in 1989. Family Group Conferences largely replaced the youth courts. Young offenders were encouraged during the conferences to explain why they had offended, offer their victims an apology and reach agreement with them about how they would put matters right. FGCs were extremely successful. Rates of victim satisfaction with outcomes were high. Young offenders were diverted from the formal criminal justice system, and institutional care was used much less often in the years following the introduction of the new system (see Jackson, 1999; Williams, 2000). 2.) The Human Rights Act 1998, which came into force on October 2nd, 2000, incorporates the European Convention on Human Rights into the law of England and Wales. Separate legislation will have a similar effect in Scotland and Northern Ireland. 3.) This possibility was mentioned, for example, by Rob Allen, Director of Policy and Information at NACRO (also a member of the Youth Justice Board) at a NACRO policy seminar on "Youth Justice: What Does the Future Hold?" in London in April 2000. 4.) Marshall and Merry provide a succinct summary of the main principles of victim/offender mediation: offenders should be held accountable for the harm they cause and do as much as they can to put things right with the victim, victims "should be empowered to take an active role in the criminal process" and citizens should "play an active role in crime prevention and local social control" (1990: 6). 5.) Note, however, the concerns raised in the Justice Report about the lack of procedural safeguards in the MKRTI as originally implemented (Justice, 2000: 58). References Braithwaite, J. (1989). Crime, Shame and Reintegration. Cambridge: Cambridge University Press. Haines, K. and Drakeford, M. (1998). Young People and Youth Justice. Macmillan. 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Victims of Crime and the New Youth Justice System. In B. Goldson (Ed.), The New Youth Justice. Lyme Regis: Russell House. Young, R. and Goold, B. (1999). Restorative Police Cautioning in Aylesbury - from degrading to reintegrative shaming ceremonies. Criminal Law Review. 126-138.