Restorative justice cases in Scotland: Factors related to participation, the restorative process, agreement rates and forms of reparation
| Date | 01 March 2010 |
| Published date | 01 March 2010 |
| DOI | 10.1177/1477370809343036 |
| Author | Steve Kirkwood |
| Subject Matter | Articles |
Article
Corresponding author:
Steve Kirkwood, 14/2 Caledonian Place, Edinburgh EH11 2AS, UK.
Email: steven.kirkwood@gmail.com
Restorative justice cases in
Scotland: Factors related to
participation, the restorative
process, agreement rates and
forms of reparation
Steve Kirkwood
University of Edinburgh, UK
Abstract
This research draws on four years of data from three restorative justice services in Scotland
to explore the factors associated with service user participation, agreement rates, the use of
direct or indirect restorative processes, and different forms of reparation. Among other things,
the results show that participation is more likely if the accused is contacted before the victim,
if the alleged offence involves vandalism, and if the accused is male or young or does not have
a recorded histor y of offending. The results suggest that, given appropriate ethical and safety
considerations, the default practice should be to approach the accused first. The implications of
the results are discussed within a theoretical framework.
Keywords
mediation, participation, reparation, restorative justice
Introduction
Restorative justice is generally understood as ‘a process whereby parties with a stake in a
specific offence collectively resolve how to deal with the aftermath of the offence and its
implications for the future’ (Marshall, 1999: 5). The use of restorative justice has in part
grown out of dissatisfaction with the formal criminal justice system in meeting the needs
of victims of crime and the wider community (United Nations, 2006). Restorative justice
services generally facilitate safe communication with the intention of addressing the needs
of victims, ensuring the offender is fully aware of the harm they have caused, agreeing a
way in which the offender can make amends for the crime and often taking steps to reduce
the likelihood of further offending (Johnstone, 2002). Internationally, restorative justice
services vary in terms of their practices, aims and links with the legal system (Miers, 2001).
European Journal of Criminology
7(2) 107–122
© The Author(s) 2010
Reprints and permission: http://www.
sagepub.co.uk/journalsPermission.nav
DOI: 10.1177/1477370809343036
http://euc.sagepub.com
108 European Journal of Criminology 7(2)
In Scotland, restorative justice services are available to all victims of youth crime
dealt with through the Children’s Hearings System (Scottish Executive, 2005). In 2008
the Scottish Government published guidance intended to increase consistency in practice
and enable referrals of young people to restorative justice services from a wider range of
agencies (Scottish Government, 2008a, 2008b). However, with regard to crimes commit-
ted by adults, restorative justice services are available in only 5 of Scotland’s 32 local
authorities, and generally only as diversion from prosecution in cases of minor crime.1
These services developed from pilot ‘reparation and mediation’ projects first initiated in
the 1980s (MacKay, 1988; Warner, 1992). In rare cases, restorative justice has been used
in pre-sentencing with referrals from court and in post-sentencing in cases of severe
crime (Kearney, 2005; Kearney et al., 2006). The present article focuses on the factors
related to various outcomes from cases referred to the three diversion services that cover
the five local authority areas.2
The main aims of the services are:
1. To provide an alternative to prosecution in cases where it is not necessarily in the
public interest to prosecute;
2. To provide the opportunity for a person responsible for a crime to engage (either
directly or indirectly) in a restorative process and to make amends for their actions
to the person harmed by their crime;
3. To offer, through early intervention, a more immediate and effective means to
prevent the reoccurrence of the alleged offending behaviour.
Cases are referred to the services by the local Procurators Fiscal (PFs; elsewhere known
as Crown Prosecutors). The services then contact the accused and the victim of the
offence to offer the option of participation. If either the accused or the victim does not
want to participate, the case is returned to the PF, who would then begin prosecution,
unless there were reasons not to prosecute. If the victim and the accused agree to par-
ticipate, a restorative process is begun. Depending on the wishes of the service users, the
process can take the form of ‘shuttle dialogue’ (where the victim and accused do not
actually meet and the restorative justice facilitator takes information between the two
parties – also known as ‘indirect mediation’) or a face-to-face meeting between the
victim and the accused. If an agreement is reached regarding how the offence is to be
dealt with, a report is sent to the PF and the case does not go to court; if an agreement
cannot be reached or is not completed, the case is returned to the PF for prosecution. The
services are run by a mix of paid and volunteer staff.
Participation
International research has shown that the participation rates of persons harmed vary
between restorative justice services, and are generally around 40–60 percent (Gehm,
1998). For instance, for Restorative Youth Justice Services in Scotland, the average
participation rates among victims have been 42 percent (Nicol et al., 2006) and 43 percent
(Dutton and Whyte, 2006). The average participation rate in similar services in England
and Wales has been 53 percent, although these ranged from 0 percent to 100 percent
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