Institutionalising restorative justice for adults in Scotland: An empirical study of criminal justice practitioners’ perspectives

Defining restorative justice

There seemed to be consensus on ‘what RJ is’ across interviewees. Participants described it as a process involving some form of communication between the person harmed and the person who has harmed, in an effort to repair the consequences of the offence:

It’s almost a dialogue between the person who has been harmed and the person that’s harmed, so that actually they can have that two-way ⁷ conversation around the impact and the feelings that – on both sides – to reduce anxiety and reduce harm. (P16 Police Officer)

The inclusion of the victim’s experience was highlighted as a feature of RJ, echoing the Directive 2012/29/EU and its emphasis on a ‘victim-centred’ RJ:

. . . it is trying to hear about a situation that has affected you, from the other person’s point of view. Whether it’s affected you because you’ve committed it, or it’s affected you because you’ve been a victim of it [. . .] with the hopes that positive change can come out of it for both people. (P9 Justice Social Worker)

Although participants were open to RJ for any type of offence, they felt that the psychological harm resulting from certain offences (i.e. domestic abuse and sexual offences) requires specific caution, in line with Directive 2012/29/EU (s.46):

I think there are obvious challenges with anything involving the likes of domestic abuse [. . .] Or that sort of thing where the process would run the risk of becoming an opportunity for control or oppression of some kind. But having said that, I think there is a growing recognition that the idea of a restorative justice process with sexual or domestic abuse cases is no longer the taboo it used to be. (P17 Sheriff)

Restorative justice and criminal justice

Participants often defined RJ in contrast to a conventional criminal justice system run by out-of-touch elites and prone to reproducing stigma and inequality:

Sheriffs [. . .] are from a particular class of society, they’re probably white, they’re probably men, that being lectured in the dock by somebody wearing a wig, versus a process taking place in a community setting facilitated by people who are at your level? Looking you in the eye, it’s a less – I think, I would hope – stigmatising process. (P14 Young People’s Services Manager)

The absence of coercion was raised as a significant difference between RJ and criminal justice:

I don’t think restorative justice should be something that’s ever forced on people because I think they should come to it – both sides – as a voluntary, informed decision. (P9 Justice Social Worker)

Although participants advocated a non-coercive model of RJ, and saw its benefits as inhering in its being something other than criminal justice, there was unanimity in favour of integrating RJ into the current criminal justice system. Participants shared a vision of RJ improving criminal justice, rather than developing as a separate entity:

I think [restorative justice] it’s something which could be a useful tool as part of our arsenal, when I say, I mean the justice system overall, not just the confines, or the remit of criminal justice social work. (P10 Justice Social Work Manager)

I can’t imagine any way in which a restorative justice programme which deals with the consequences of criminal acts could exist completely independently of the police and the Procurator Fiscal service. [. . .] And if it’s to be a diversion from prosecution, if it’s to be a sentencing option, then it can’t exist independently of the criminal courts either, because only the criminal courts can impose sentences. (P7 Sheriff)

Alongside, and not entirely separate from, these conceptual questions over what RJ is or should be, there were significant concerns about the Scottish RJ policy and how it would be implemented.

Symbolic support, factual scepticism

There were mixed feelings around the Scottish Government’s overall commitment to RJ, and significant scepticism around the plan to ‘roll out’ RJ nationwide. Participants stated that the Guidance may perform a symbolical function:

. . . What is then said in the guidance about what an RJ process is and the different types of restorative justice process [is] very instructive, it’s a fantastic essay summary of what it’s all about. (P17 Sheriff)

However, more experienced practitioners were unconvinced by the Scottish Government’s recent engagement with RJ, highlighting that the vulnerability to political/economic pressures had decimated previous efforts to ‘roll out’ the service:

RJ just wasn’t politically sexy [. . .] There just wasn’t any political will around it I think for years [. . .] pockets of it continued certainly for young people, people kind of under 18, but [sigh] not a lot was around then for adults, it just wasn’t popular for lots of reasons that people perceive RJ to be, who don’t know much about it. (P1 Justice Social Work Manager)

One participant recounted that, originally, the Scottish Government had actively not included RJ within the 2014 Victims and Witnesses Act, possibly under the influence of victim support organisations:

. . . It was the EU guidelines [Directive 2012/29/EU] that had basically encouraged people to offer restorative justice to their citizens, that in the Victims and Witnesses Act that had just been messed up [. . .] They didn’t just willingly miss it, they actively hadn’t included it. [. . .] Justice was blocked on restorative justice and I do think that quite a significant feature of that was the extent to which [pause] Rape Crisis, Women’s Aid, Victim Support Scotland had the ear of gotten around all that was bad about restorative justice. (P14 Young People’s Services Manager)

Looking at the future, participants felt sceptical of the likelihood of achieving the 2023 goal:

There’s definitely a want to do it and I think that [Action Plan] probably has helped that want. [. . .] BUT it is just guidelines [. . .] Cause the odds of everybody being done by 2023, yeah, no, it’s a nightmare to set up [laughs]. (P16 Police Officer)

Criticisms predominantly centred around a lack of clarity from the Scottish Government on certain issues essential to any criminal justice innovation, while questioning policymakers’ understanding of the issues ‘on the ground’:

Who is going to facilitate it? Who’s going to fund it? And where is it going to sit? (P8 Justice Social Worker)

For me, it’s people in suits that aren’t in the real world that make these decisions. [. . .] You don’t know anything about them other than the odd legislation or sometimes that gets pinged down to you in an email. (P13 Justice Social Worker)

Other criticisms centred on the lack of statutory responsibility placed on any services or organisations to develop, provide or even refer cases to RJ services:

I guess [. . .] it’s a standalone sort of and there’s no statutory duty placed on anybody to provide restorative justice, so what’s that guidance for? Who’s it for? (P1 Justice Social Work Manager)

Participants also identified a range of systemic challenges which affect criminal justice generally and have particular implications for the ‘rolling out’ of RJ.

Referrals and partnerships

The highly local nature of non-custodial penalties in Scotland places a particular onus of coordination on local services to provide, commission and/or refer cases to RJ services.

Information sharing was frequently cited as an operational challenge, specifically the introduction of GDPR (implemented in the United Kingdom by the 2018 Data Protection Act).

I think that that legislation [GDPR] has just caused massive inconvenience [. . .] And actually it’s stopped the sharing of information between agencies that are trying to respond to crime. (P14 Young People’s Services Manager)

A related issue was the lack of sharing best practice among services and between local authorities, in the context of very patchy and local-centred provision of RJ, with participants suggesting some form of coordination across providers and referrers:

. . . Whether it’d be to some kind of forum, and meeting the different staff in different councils and [. . .] having linkups [. . .] I would probably get more out of linking up with criminal justice workers but in different councils to see what they are trying and what they are doing. (P13 Justice Social Worker)

In general, the ‘siloed’ nature of partner services was considered highly detrimental for the development of RJ in Scotland:

I think it’s the silo working, there needs to be a broader perspective on some of the issues that we address and face. (P6 Justice Social Worker)

It comes across like nobody really talks to each other? Even like councils when you go on training, different councils are doing different things and it’s like we’re not helping each other. (P13 Justice Social Worker)

Lack of knowledge and funding

The lack of solid knowledge around RJ, even among criminal justice professionals, was highlighted as a crucial barrier to the development of Scottish RJ:

[. . .] there was only about four people in the whole team that said they really knew what restorative justice was. (P9 Justice Social Worker)

Recalling the discussions around the 2014 Victims and Witnesses Act, and wider debates about offender versus victim-centred RJ, participants also shared difficulties they had encountered when working with relevant organisations who are not currently involved in (or not fully aware of the benefits of) RJ:

They [Victim Support Scotland] have been a bit of a block I think because they’ve perceived RJ as being all about the offender and there’s been a bit of resistance on their part to contributing to the development of it. (P17 Sheriff)

The atmosphere of uncertainty around the referral process, alongside participants’ reports of feeling both under-resourced and overworked, has led to some local authorities disregarding entirely the notion of implementing RJ, for the time being:

And at that point I think they’d only had one case and it hadn’t gone particularly well [. . .] and when you’ve got people sitting in a room who’ve got competing priorities for funding, they’re going to think, ‘Well, you know what, let’s wait until this gets better established’. (P11 Justice Social Worker)

Participants stated that it is difficult to envisage how RJ could currently be justified as a resource priority over other statutory services, given the requirement of voluntary participation:

I mean it needs to be properly funded, there needs to be a kind of a national strategy, so that there’s not just pockets of practice ‘cause I think it’s a bit of a postcode lottery at the moment’. (P11 Justice Social Worker)

One participant warned that the lack of funding could lead to RJ being provided by a third-sector organisation commissioned by a local authority on a short-term contract, which they felt had been an issue with other new services they had observed:

So I would imagine that restorative justice, if it was being rolled out, it would probably start off as pilot areas. [. . .] And it would be short-term funding. And you’re really then hostage to fortune. (P10 Justice Social Work Manager)

Short-term, inconsistent funding is not just a concern within RJ but more widely with third-sector provision of services, particularly in the context of highly locally organised Scottish criminal justice. This represents a crucial systemic challenge for Scottish RJ policy as well.

Risks of mainstreaming restorative justice

Participants were also aware of the risks involved in mainstreaming RJ, as promised by the Scottish Government’s recent policy. One risk of integrating RJ with the criminal justice system is net-widening, particularly apparent when RJ is placed in the context of diversion from prosecution:

I suppose one issue that would have to be considered is about kind of net widening [. . .] Are you going to then get people put forward for it who if we didn’t have that service, wouldn’t have been progressed through the criminal justice system anyway? So, you have to be very clear about who you’re targeting . . . I could see if information isn’t managed properly, you would get people pulled into it for the wrong reasons. (P10 Justice Social Work Manager)

Participants seemed to support a separation between service providers and state agencies (e.g. JSW):

It’s not really something that sits with statutory criminal justice social work at all because we work with people that are on orders, or we’re writing reports for them [. . .] We wouldn’t want to get involved in the kind of the mediation, the restorative justice side of things [. . .] There needs to be a kind of a clear demarcation of roles I think. (P11 Justice Social Worker)

Another possible risk when RJ is co-opted by the criminal justice system is the devaluation of RJ’s victim-centredness, contra both the 2014 Victims and Witnesses Act and the Directive 2012/29/EU. When RJ is understood simply to be a method of reducing recidivism, and the victim is viewed as integral to this process, the justice system risks ‘instrumentalising’ the victim. One participant argued for a method of monitoring outcomes more suited to RJ (as opposed to criminal justice) values:

So for starters, let’s put to bed the whole reduction in reoffending, so I think that is definitely something you would measure, but I wouldn’t make that the measure of success, right? (P14 Young People’s Services Manager)

Concerns over co-optation of RJ also related to the possible individualisation of conflicts, abstracting crimes from their social contexts. This occurs when intertwined social, political and cultural factors are downplayed:

You just need to read the papers and it’s all like, ‘The monster that did this’ and ‘The beast that did that’ and stuff – and it’s like they are actual people [. . .] And we are society, we created things, we made opportunities for trauma and people and calling them monsters means we don’t have to do anything about it. (P9 Justice Social Worker)

However, the possible professionalisation of facilitators – entailing their partial socialisation into criminal justice values – was not perceived as problematic:

So you might find there’s a [. . .] little professional body [. . .] of RJ practitioners – ‘the association of restorative justice practitioners’ might develop and they would be there as an independent body to provide practitioners who would go to different courts, different cases around the country. (P17 Sheriff)

Joined-up work at local level

Participants recognised a value in joining up related but currently disconnected services:

I’d probably follow the English model of Community Justice Boards where I’d have a sheriff, a fiscal, police officer, social worker, someone from the educational authorities, someone from housing and social work, and possibly even some of the local bar association around the table thinking about. (P4 Advocate)

Yet, participants were in favour of retaining control over RJ development at a local authority level, as opposed to a centralised model. In the years following devolution, Scotland experienced increasing centralisation and restructuring of criminal justice, which participants were critical of:

I was dismayed that just when other parts of the world [. . .] are waking up to the fact that the best justice is the justice that is delivered locally, we were going in completely the opposite direction and [. . .] we’re allowing our managers to centralise everything [. . .] which is great for management, but sadly I think the quality of justice, the quality of experience for practitioners, for court users is diminished as a result. (P17 Sheriff)

Participants in rural areas were particularly resistant to increased centralisation. Some voiced concerns that centralisation could damage the ability of public services to engage with and respond to local concerns:

So when I was a councillor, one thing that was big was community planning, was the idea that individual communities would get together and try to do things. And they do different things in different places and there was no ‘one size fits all’. (P4 Advocate)

This participant (P4) highlighted the importance of local innovation, which would allow them to develop a version of RJ which is designed with the most prevalent needs in that area in mind:

Probably what I would do is [pause] increase the power of the community justice social work teams to generate programmes, that would mean giving them more resources. (P4 Advocate)

Development of referral pathways

Participants felt that the police could and should play a vital role in informing the parties about RJ:

Somebody calls 999, and the police come, you’re interviewed, you give a statement, and at no point does somebody say, ‘Can I just check with you, in the event of the perpetrator being apprehended, and the possibility of a restorative justice intervention, would you be up for that?’ (P14 Young People’s Services Manager)

There was support for the idea of a system which allows victims to give consent to be contacted in the future, if the opportunity for RJ arises. Some also stated it would be helpful if police could provide parties with the details of RJ services, to raise awareness of the availability of RJ. The police could also inform referral authorities themselves about the suitability of a case, or whether they had provided consent to be contacted:

From the point of arrest, so the police are important, so you would want to get their view, because they write a report for the fiscal [. . .] So, they could perhaps put in their police report whether or not they think that somebody would benefit from restorative justice, which is what currently happens with young people. (P11 Justice Social Worker)

Participants also stressed the importance of the PF in this area, in their role as a conduit between victims and courts. They suggested the need for victims to be informed about RJ by the PF. This route would overcome the GDPR complications encountered by other referral authorities, as the PF is already in contact with the victim at an early stage:

So it would seem to me to be a very straightforward matter for the social workers to go to the procurator fiscal and say, ‘We’ve identified this case as suitable for a restorative justice process and we’re going to recommend to the sheriff that we do that’. And the process demands that the victim be given an opportunity of considering whether they want to become involved in it. (P17 Sheriff)

The PF was also crucial to referrals to RJ as a diversion from prosecution. As with all diversion interventions, the PF must approve the diversion team’s decision before RJ can take place. One participant outlined the PF’s role in RJ within diversion:

[When] there’s an agreement [between victim and offender] the Procurator Fiscal would then say that’s been a successful outcome, so we have an external ‘auditor’ if you want. (P2 Diversion Manager)

PFs decided not to participate in the current study, but the majority of our participants (10) spoke about the importance of their role in the referral process. Their involvement with both the victim and offender was one of the main reasons they were thought to be key to this process.