Review: Regulating restorative justice: A comparative study of legislative provision in European countries

The book highlights some of the philosophical differences between conceptions of RJ, and its relationship to conventional criminal law and procedure. For JiÅ™i PÅ™ibáň, in his chapter on the social theory of justice, RJ ‘represents the informal living law whose main job is to reclaim the legitimacy of the failing system of punitive justice’ (p. 23), but in some countries it is evidently not seen in that way. Lawyers and legislators (many of whom are themselves lawyers) want to shoe-horn it into their familiar way of thinking, for example by prescribing lists of which types of offence or offender may be referred, or who may be mediators (only professionals in some countries, only trained lay mediators in Finland – and Norway, which is unfortunately not included). 

In Turkey, mediation is to be carried out by lawyers, prosecutors or judges, and the authors criticize the fact that there is no requirement for them to be trained. In Austria, white-collar crime can be referred: criminality is not necessarily the result of the offender’s marginalization. Some countries exclude domestic violence, while for others this type of crime forms a large part of their case-load. The United Kingdom chapter includes (in considerable detail) a number of measures which are not fully restorative, such as cautions and reparation with no victim-offender dialogue; but there will be great interest in the Northern Ireland model for juveniles: prosecutors are required to consider referral to a youth conference, and courts (with few exceptions) must do so, and a youth conferencing service has been established to implement this. 

In some countries, such as Hungary, prosecutors are the main source of referrals to RJ: if it is completed successfully, they can discontinue the case. Unsurprisingly, several of the countries in the vanguard are those with state funding; in Belgium, for example, the Ministry of Justice funds private non-profit organizations. In Finland, funding is from the Ministry of Social Affairs and Health, which distances mediation from criminal justice; it is considered that state funding is essential to ensure equality before the law and quality of mediation. Legal aid is available to guide clients through mediation; this should help to overcome resistance from lawyers, but it is important that they should understand restorative principles, for example that mediation requires acknowledgement of responsibility but not formal confession, and consequently does not infringe the rights of defendants. 

There is hope that restorative values are spreading from the justice system to the wider society. In former Soviet-bloc countries, trust has been eroded by the ‘transition’ to competition and individualism; the Hungarian contributors suggest that RJ could help to build cohesion. In Israel, it is said that ‘[t]he concept of “peace” in Judaism (among many others) is a fundamental concept that expresses the wish to reach conciliation and proper relationships within the community’; Jewish law is seen as ‘a law that emphasizes dialogue and supports a process that is educational and conciliatory in its nature’ (p. 255). The Arab tradition of Sulcha, a form of mediation, is assisted by the (Israeli) authorities because ‘the agreed arrangement, and not the punishment levied in the criminal proceedings, is the best tool, and often the only one, to stop the vicious cycle of violence’ (p. 256). It is a little surprising that the Israeli chapter makes no mention to the possibility of applying similar principles to the larger, and even more vicious, cycle of violence that bedevils the communities who claim that piece of land. 

It is encouraging to see in Bulgaria a move towards ‘acceptance that the classical penal process should be the exception rather than the rule’ (p. 103); but in some countries, such as France, there is ‘a hard fight against penal logic’ (p. 146). Mediation faces a danger of ‘incomplete and ill-fitting regulation’, as the Polish chapter says (p. 269); ‘[i]n practice mediation flourishes only where there are groups strong and determined enough to act in the absence of the state’s support’ (p. 281); yet in some countries there seems to be a wish for the government to regulate in some detail. In Turkey, for example, the victim-offender mediation report must be signed and stamped by the prosecutor. There is a risk that the regulations will be too restrictive or even non-restorative; ‘strong and determined’ NGOs would be preferable in many ways. 

There are examples of the need to clarify the relationship of RJ to the criminal justice process: in Romania mediation before trial precludes prosecution or trial on the same facts, but in Slovenia the court can suspend cases for six months to allow for mediation. In some places there is even pressure for mediation: in Spain, in the case of complainant-initiated offences, a conciliatory act must be attempted before the prosecution can proceed, and the Turkish Code, as applied by the Court of Cassation, even states that a prosecution without prior referral to victim-offender mediation can be a ground for appeal. 

The British, who have set the age of criminal responsibility at 10 years, have much to learn from continental neighbours: in Spain, for example, the response to offenders up to 18 years of age is ‘not merely punitive but is also clearly pedagogical’ (p. 344). The Spanish chapter also mentions the principle of minimum intervention, which ought to be displayed in every court room. 

Sometimes an appeal can be made to old-established customs, to show that RJ has precedents, for example the ‘good man’ or juez de paz in Spain; the German chapter doesn’t mention the somewhat comparable Schiedsmann. Many of these traditions are closer to arbitration than to mediation, but they do provide some informality and citizen-involvement. There is concern that national stereotypes may be an obstacle, for examples because ‘Bulgarians are bellicose’ ‘unmanageable’ and ‘punitive’ (p. 115), or Turks may criticize victim-offender mediation as ‘an American practice’ that is ‘not in line with the Turkish culture of punitiveness’ (p. 405). Those characteristics can be seen in many other countries, even those where RJ has gained a foothold!

The book ends with a comparative analysis by the editors, drawing attention to some key issues: whether self-referral is allowed, the need to involve practitioners in legislation, the importance of addressing the legal culture, and of course funding. There may need to be a fundamental change in philosophy, from punitive to reparative (which can include rehabilitative), as well as clarification of the difference (if any) between mediation and restorative justice (pp. 537-8). 

A reviewer must regretfully point to two serious defects: the absence of an index – vital in a book of this kind – and the fact that it is updated only to 2008 but not published until 2012. It does not, for example, include major British research showing a significant reduction in the frequency of re-offending after a restorative intervention (Shapland et al. 2008, 2011). Despite this, it should be acknowledged as a valuable product of the European COST research programme, providing an analysis of the state of restorative justice in Europe which will be indispensable to those who are developing the theory of restorative justice and those who are designing (or revising) a structure for putting it into practice.

References:

Shapland, J, et al. (2008) Does restorative justice affect reconviction? The fourth report from the evaluation of three schemes. Ministry of Justice Research Series 10/08. London: Ministry of Justice. http:/www.justice.gov.uk/restorative-justice-report_06-08.pdf

Shapland, J. et al. (2011) Restorative justice in practice: evaluating what works for victims and offenders. Abingdon and New York: Routledge.