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An Evaluation of Restorative Justice in the Youth Justice Framework – Integration or Accommodation within Criminal Justice Policy

Written by Mike H.

 

1.0 Introduction:

Over the past two decades society has developed an attitude of intolerance and hostility towards law-breakers leaning towards an exclusionary approach to dealing with criminals.[1]  In political circles criminals have been presented as an ‘external’ threat to be dealt with harshly and removed from society until they have realised the errors of their ways.[2]  Many election campaigns including Labour’s historic victory in 1997 and Conservative-Liberal Democrat election campaigns in 2010 were premised on delivering a stern criminal justice framework to tackle the prevalent social ills.  The former election campaign masterminded by Labour developed policies which sought to deliver criminal policy that was ‘tough on crime and tough on the causes of crime’.  Whilst the Conservative Party sought to establish criminal justice policy which would ‘mend the broken society’ encroached in the political rhetoric of a broken system in need of reform and development to deliver the ‘big society’ programme.  The net effect of this type of politics and the media depiction of politics on the criminal justice system has been to awaken society’s intolerance to criminal behaviour demanding policies designed to deliver tougher laws sending law-breakers to prison for longer periods in tougher conditions as a deterrence mechanism and to incapacitate them from future criminal behaviour.

The core goal of the thesis is to evaluate the restorative justice reforms introduced by the Labour government throughout its tenure of office, and to establish whether restorative justice values have been imported into the criminal justice context within youth criminal justice.

Chapter two of the thesis will focus on the development of the theoretical underpinnings of the concept of restorative justice; of central importance will be the discussion of the definitional tensions within the restorative justice movement and the impact of the inability of practitioners, policy makers and academics to arrive at a common definition in the development of restorative justice within criminal justice.  The core question chapter one investigates is what are the theoretical foundations of restorative justice and what is the context of restorative justice within youth justice.  A core aspect to examining where restorative justice fits within the criminal justice context is linked to understanding the conceptual fault lines in arriving at an agreed common definition.  The polarisation of standpoints within the restorative justice movement has been crucial to the manner in which it has been developed into practice within the youth justice framework.

Chapter three presents an analysis of the development of restorative justice values within the youth justice framework in the UK.  Initially the chapter discusses the context of youth reform emergent from the nineteenth and twentieth century and then focus on the Labour government’s youth justice framework established throughout its tenure of office.  By examining the pre-existing strategies employed by the various governments over time allows an understanding of why Labour’s new approach to youth justice sought to centre itself within restorative justice.  The core question chapter three asks is: what is the impact of restorative justice within the youth justice framework and to determine has this approach to crime worked at dealing with youth offending in the past ten years.

Chapter four presents an analysis of the development of restorative justice in other key jurisdictions such as Canada and New Zealand.  In examining the approach the UK implemented in relation to restorative justice within the youth justice framework it is essential to evaluate it against other platforms of youth justice innovation in other jurisdictions.  New Zealand and Canada provide an excellent platform to compare and contrast the UK’s development of youth justice and restorative justice in that both countries have went further and deeper in allowing their criminal justice system the flexibility of incorporating a wide concept of restorative justice values.  The core question chapter four will ask is: what is the impact of restorative justice schemes which are wider and deeper in their reach to the development of restorative justice within criminal justice?

Chapter five presents a conclusion based on the analysis presented throughout chapters two to four. It allows for an identification of the emergent gaps within the current framework and practice.

Chapter Two:

Restorative Justice and Youth Justice

2.0 Introduction – Restorative Justice within Criminal Justice:

Restorative justice occupies an increasing space within criminological literature.  Over the past three decades and in recent years it has gained momentum due to the dissatisfaction with mainstream criminal justice theory and practice, as well as a reaction to what is perceived as a failure of our criminal justice systems to significantly manage crime and to meet the needs of the individuals and communities affected by crime.[3]  The practice of restorative justice is not new and has a long pedigree in history.[4]  It is a phenomenon that re-emerged in the 1970s and 1980s amid the claim that it was rooted in the philosophy of indigenous cultures and thus employed a less punitive approach to justice that radically reduced recidivism.  Crime and the measures designed to control and reduce crime provides a major challenge to national authorities within almost every country of the world.[5] 

The mantra of the ‘prison works’ debate within criminal justice policy is less convincing in the light of the UK’s and America’s over populated prisons.[6]  Successive governments have responded to crime in various ways throughout the last three decades in particular the latest strategy employed has leaned heavily on the use of prisons as a suitable form of punishment of crime.  This has led not only to an increased workload within the administration of criminal justice but has left the prison system at near crisis point when in May 2006 prisons almost reached full capacity.[7] The process of punishment for those who break the law has been grounded in the western world as a matter of social necessity to regulate citizen behaviour, promote their security, preserve the common interest of peaceful co-existence and prohibit the commission of acts that cause harm and danger to others.[8]  A central focus for criminologists has been on the complex relationship between the power of the state, the judicial structure and the individual citizen in relation to crime and its punishment.  It is the evolution over time of this complex relationship and the imbalance of power in addition to underlying political influence which has led to a system leaning towards delivering retribution, punishment and ‘justice’ placing restorative values at the fringe. 

Mainstream criminal justice is the statutory response to crime engaging the police, prosecution, defence lawyers, the courts, the prisons and probation and management offender agencies.[9]  It deals with crime from the theoretical standpoint of punishing citizen actions in cases where those citizens have transgressed the laws of the state, sanctioning their behaviour causing them pain.  From a restorative justice perspective, it is argued by Hoyle that mainstream criminal justice is backward looking in that it aims to punish transgressions rather than heal the transgressor, victim and community involved.[10]

The politicalisation of crime has resulted in criminal policy being dominated by the twin themes of penal crisis and institutional transformation which is reflected throughout the literature.[11]  Garland claims that the western penal systems, particularly the UK and the USA, are undergoing profound change in response to a number of features which have become endemic within late modern societies, consisting of high crime rates, a crisis of criminal governance, fracturing communities, increasing levels of social exclusion and economic marginalisation.[12]  Added to this is the media coverage of sensationalising crime and party political responses to crime where political parties position their rhetoric within a ‘tough’ stance on criminal behaviour.  The problem with this approach is that tough responses to crime are perceived to be removing criminals from society and sending them to prison for lengthy sentences making restorative values a side issue within criminal justice, representing it as not being capable of dealing with criminal offending.  The process of differential governmental policies over the past half century has resulted in a swing from twentieth century penal welfare programmes to a dissected mix of penal strategies embracing punitive and preventative measures.[13]  Whilst Garland’s work argues a general criminal policy embedded within a ‘culture of control’, Johnstone identifies a differential policy of restorative justice emerging within youth justice policy which has appealed to policy makers as an alternative to traditional criminal justice.[14]

Restorative justice appeals because it offers an alternative method for tackling crime without increasing repression and exclusion delivered by traditional justice.[15]  Central to presenting an understanding of the evolving literature on restorative justice this section will firstly examine the various debates engaged by what is restorative justice and how it connects to contemporary criminal justice, and understanding the impact of the tensions inherent within restorative justice in coming to an agreed definition.  By examining the literature on the tensions inherent within restorative justice it will provide a framework to analyse the current manifestation of restorative justice within the youth justice system in future chapters.  The inability of academics, practitioners and policy makers of advocating a common ground definition has resulted in a varied literature and a varied debate on where restorative justice should sit within criminal justice policy. 

The central question this chapter will ask is: what are the theoretical and conceptual foundations of restorative justice within the context of youth justice?  To provide a rich account of the literature in the field of restorative justice this section selects the starting point of analysis with the tensions within restorative justice as the concept embraces and embodies a diverse range of competing principles which have played a central role in its development within criminal justice.  The inability of practitioners and policy makers to reach common ground on its definition within criminal justice affected not just the way restorative justice was presented and analysed by academics but had profound implications on how restorative justice has been adopted within criminal justice in the UK.

2.1 Restorative Justice – A Conceptual Fault Line in the Search of a Definition:

The concept of restorative justice is the subject of intense debate particularly over the past two decades; whilst there is some agreement within the literature on the principles of restorative justice there are many tensions about the meanings to be associated with these principles.[16]  Its early advocates, such as Zehr, argued that it provided a new ‘lens’ to adjudicate crime and identify the appropriate and just responses to it.[17]  Early writings on restorative justice are firmly rooted in the critiquing of mainstream criminal justice, with many proponents of restorative justice emphasising the short comings of criminal justice policy offering restorative justice as a bold alternative for crime control.[18]  By presenting restorative justice in this context, the literature established restorative justice as a polar opposite to mainstream criminal justice.  A core defect in presenting restorative justice in this manner, argued by Daly, is the difficulty of finding a commonly agreed definition across all parties involved in the restorative justice process.[19]  Additionally, the early proponents were almost aspirational, seeking to promote restorative justice by outright rejecting traditional criminal justice as “victim-insensitive, state sponsored vengeance”.[20]  Promoting restorative justice as the answer to society’s criminal ills with its promise to bring together victims, offenders and their communities whilst keeping the state at arm’s length curing the imbalance of power between victim, state and offender, is couched in dramatic overtones of a radical overhaul of existing accepted theoretical underpinnings of the administration of criminal justice.[21]  This approach created a difficulty in creating a common ground between policy makers and academics in advancing a policy marrying elements of both ‘good’ restorative practices with ‘good’ criminal justice practices.  It created a reaction were a dual system of justice was presented with restorative justice being presented as ‘good’ alternative departure from the ‘broken’ or ‘bad’ mainstream criminal justice, consequently entrenched views emerged highlighting the criminal justice policy failings of the latter half of the twentieth century.

Although there lacks an agreed definition of restoration justice a review of the literature reveals a number of consistent themes, encompassing a variety of practices at different stages of the criminal process, including diversion from court prosecution and actions taken in parallel with court decisions and meetings between victims and offenders at any stage of the criminal process.[22]  The most commonly quoted definition of restorative justice is set out by Marshall:

“... a process whereby all the parties with a stake in a particular offence come together to resolve collectively how to deal with the aftermath of the offence and its implications for the future.”[23]

An alternative definition but similar in principle to Marshall is presented by McCold and Wachtel:

“... as a process where those primarily affected by an incident of wrongdoing come together to share their feelings, describe how they were affected and develop a plan to repair the harm done or prevent reoccurrence.”[24]

Restorative justice has emerged in various guises with different names and in many countries springing from the sites of activism, academia and justice system workplaces.[25]  Therefore the term restorative justice can be taken to be a concept that embraces an alternative collaborative process for resolving disputes, to alternative sanctioning options, or to a distinctively different new model of criminal justice organised around principles of restoration to victims, offenders and the communities in which they live.[26] 

To optimise the practice of restorative justice, it is argued by Doolin that it is essential to reach agreement about the meanings to be associated with the core values utilised in the process and in the outcomes to be achieved.[27]  Bazemore and Walgrove argue that Marshall’s definition limits the characteristics of restorative justice by implying that if the stakeholders involved in a restorative conference do not collectively resolve the criminal wrongdoings then no restorative outcome is possible.[28]  They argue that if the victim chooses not to be involved or an offender cannot be found, the restorative conference should still be attempted as some degree of restoration may be achieved for the other stakeholders present.[29]  However, it is correctly identified by Doolin that the residual benefit of having a definition leaning towards ‘outcomes’ is that it is possible to have a wider variety of processes considered ‘restorative’ provided they are aimed for restoration, which allows greater flexibility in determining the restorative justice scheme.[30]

2.1.1 Definitional tensions:

Due to the complexity of the nature of defining restorative justice within a statutory framework Doolin suggests that there are two key issues to resolve in the literature to determine the legal significance and nature of the restorative justice process.[31]  Firstly whether restorative justice should be defined in terms of the process to be used or rather the outcomes to be achieved?  Secondly, a clear distinction needs to be drawn between restorative justice and other forms of justice in order to distinguish the fundamental differences.[32]  Much of the academic literature attempts to facilitate a consensual understanding for restorative justice but in essence it has not yet been possible for restorative justice proponents to formulate a definition to which all would subscribe.[33]  It can be argued that the only agreement that exists in the literature is that there is no consensus as to its exact meaning.[34]

The tension between whether restorative justice should be defined in a way that emphasises the process to be used or the outcomes to be achieved is a key dynamic creating division within the literature. Marshall’s definition places emphasis on the process whereby stakeholders come together to collectively resolve how to deal with the aftermath of the offence.[35]  This approach for restorative justice presents a number of questions including: who should be involved in collective resolution and to what degree of participation?  How do the involved parties arrive at ‘collective resolution’ and what if a ‘collective resolution’ is not possible?  What is meant by dealing with the aftermath of an offence and its implications for the future?[36]  Against this, Robinson and Shapland argue that restorative justice represents a balanced approach to dealing with offending and its consequences.[37] Other definitions emphasise the values and goals of restorative justice rather than the process, with core values centring on healing relationships between all the parties involved, community deliberation rather than state-centred control of decision making and non-denomination.[38]

The conceptual tension with developing a clear contemporary definition of restorative justice appears from the literature to originate from the development of Eglash’s theory of three distinct types of criminal justice: retributive, distributive and restorative.[39]  The centre piece of Eglash’s theories of retributive and distributive justice involved focusing on the criminal act, denying the victim participation in the justice process and requiring only the passive participation of offenders.[40]  Traditional criminal justice delivered an elaborate process of inquiry, classification and judgement by police, lawyers and judges by means of which they are translated to fit the legal categories of crime.[41]  Eglash’s third theory of justice focused on restoring the harmful effects of the criminal actions and actively involved all parties in the criminal process.[42]  The theories were used by academics in the 1970s to critically evaluate the administration of mainstream criminal justice which concentrated on using his theory to identify the flaws of criminal justice becoming wedded to the punitive elements of criminal punishment.  It became a tool for analysis which enabled academics to evaluate the practice of criminal justice policy from a different standpoint.

The theory facilitated a division within criminal justice which allowed academics, practitioners and policy makers to align their support to either a punishment focus or to a ‘restoring’ focus.  For example Barnett, building on Eglash’s theory, was one of the first contemporary writers to identify a differentiation between the ‘old paradigm’ of punishment to the new ‘paradigm’ of restorative justice, where he presented Eglash’s restorative theory as a way to deal with the ‘crisis of the old paradigm’.[43]  Academics by advocating a ‘crisis’ in traditional criminal justice policy, allowed the development of the restorative justice framework to evaluate established criminal justice practice.

Zehr argued in the early 1990s that the criminal justice system had become focused on lawbreaking and viewed justice as allocating blame and punishment.[44]  Zehr developed his theory that ‘crime’ was a ‘wound in human relationships’ and that action ‘creates an obligation to restore and repair’ – a void which could be filled by restorative justice.[45]   This interpretation of crime and its link to restorative justice was supported by contrasting it with the definition of crime under Eglash’s theory of retributive justice, presenting ‘crime’ under retributive justice as ‘a violation of the State’.[46]  Effectively Zehr allowed a link between mainstream criminal justice and restorative justice in that, he used Eglash’s theory to identify a gap which restorative justice could be accommodated within mainstream criminal justice as opposed to advancing restorative justice as a standalone polar opposite system.  It is identifiable that the early literature on restorative justice sought to locate and situate the debate by presenting it as an alternative to the existing system which in theory would rectify the problems emergent from criminal justice prevalent at the time.  Some academics such as Barnett sought to establish a framework in which the ideals of restoration and restitution would replace outright the traditional criminal justice ideals of deterrence, retribution and rehabilitation.[47]  This approach, taken by the various other academics, limited their scope and had a ‘hemming-in’ effect which restricted their debate on restorative justice as new alternative paradigm against an old paradigm with the effect of polarising academic debate to supporting one side or the other.[48]  Additionally the effect of presenting restorative justice as a complete departure from mainstream criminal justice values as a means of addressing offending left the theory open for accusations of exaggeration and overstatements.[49] 

2.1.2 Braithwaite’s ‘Crime Shame and Reintegration’ Theory:

Braithwaite’s theory of ‘crime, shame and reintegration’ moved the restorative justice away from the polar opposites of justice.[50]  Braithwaite sought to establish restorative justice as a complementary pragmatic approach to the current model of justice, capable of existing within contemporary criminal justice structures.  Braithwaite argued that traditional retributive punishment of removing offenders to prison had a disintegrative and exiling effect on offenders in way that ensured they never reintegrated back into the community.[51]  His theory argued for a ‘third way’ which incorporated restorative justice values. This approach of developing the concept of restorative justice sought to break down the barriers that became prevalent by focusing on restorative justice as an alternative to the established mainstream criminal justice system.[52]  Additionally Braithwaite moved the debate away from the language of ‘paradigm shifts’ to a more pragmatic approach of finding the position for restorative values within criminal justice structures.  The central question emerging from Braithwaite’s work was whether to situate restorative justice within a complementary model to the existing model or disregard it in favour of the 1970s model as a complete alternative.  Braithwaite moved the restorative justice debate forward by arguing that the criminal justice system needed to integrate restorative values and practices within existing traditions of criminal practice and philosophy.[53]   It emerged as way in which criminal justice could be developed to allow restorative values be imported into traditional justice policy, with the potential positive effect of bringing restorative values within mainstream criminal justice practice. 

The literature presents two different schools of thought on Braithwaite’s integrationist theory; firstly Davis argued that a model of restorative justice could function outside of the traditional criminal justice system as an ‘add-on’ to the existing structures.[54]  It was argued by Davis, that traditional criminal justice could benefit from the existence of the values and practices of restorative justice and that a fusion of practices would benefit and serve ‘justice’.[55]  Alternatively, proponents of the 1970s theory argued that Braithwaite was wrong to suggest integrating restorative justice within the existing system because integrating punitive philosophy with restorative philosophy would result in a gradual drift of punitive policy into restorative philosophy destroying it very core of restoration.[56]

2.1.3 Integration or Accommodation – the impact of a definition:

The impact of the tensions emergent within restorative justice has left an indelible mark in the way in which restorative justice literature has been developed in recent years.  Due to the difficulty in arriving at a commonly agreed definition there remains a divergence in the literature as to whether restorative justice goals should be orientated towards the process to be used or the outcomes to be achieved.[57]  Dignan argues that there are two distinct groups of academic thought: firstly one group that identifies restorative justice as a distinctive type of decision-making process and secondly a group that identifies the ‘process based’ definition of restorative justice is, at its highest incomplete because it has nothing to say on the restorative outcomes or how these might be defined or evaluated.[58]  Much of the literature that adopts a process based definition, limits the scope of restorative justice programmes to cases that are considered appropriate for a restorative justice intervention or those incidences that have consent from both the offender and victim to participate in a restorative justice scheme.[59]  Additionally this approach restricts the benefiting factors inherent within the restorative justice as a philosophy of conflict resolution and as a model of justice in that restorative justice can have benefiting factors for offenders even where the victim does not participate by allowing offenders the space to consider the consequences of their offence.[60]  It also risks turning restorative justice into a diversionary scheme premised towards non-restorative ends by focusing simply upon punishment or other disposal of the offender.[61] 

The net result of academic challenges to the definitional parameters of restorative justice has resulted in it becoming a contested point restricting and limiting debates amongst its proponents and its critics.  A richer analysis of restorative justice is found in a definition that embodies restorative justice as ‘every action that is primarily oriented towards doing justice by repairing the harm that has been caused by a crime.’[62]  The role of facilitating a definition that encompasses both a process based definition with importance given to the aims and outcomes of that process, embodies the philosophy of conflict resolution and a model of justice.  Gavrielides identifies that this approach to a definition reduces the risks of stretching the concept to include programmes, which though in the end result with restorative outcomes, they might not be carried out respecting restorative justice procedural rules including non-violent communication, effective and honest dialogue, repentance and forgiveness.[63] 

It is only by taking elements of both definitional constructs that a definition can emerge which does not include stretching restorative justice to fit elements that are not restorative in nature or is narrowed down to a notion that cannot take in all the essential features that characterises its thought.[64]   McCold identifies through a construction of a Venn diagram the practices to distinguish what that he considered to be fully, mostly or only partly restorative.[65]  He argues that fully restorative practices occur at the intersection of the three circles of ‘victim reparation’, ‘offender responsibility’ and ‘communities of care reconciliation’.[66]  In concluding the literature on a definition, it is submitted that McCold captures the essence of a fusion first articulated by Braithwaite in 1989 with an integrationist approach to situating restorative justice within criminal justice.  It is also important to point out that Zedner’s work also establishes that traditional penal policy and restorative values are two reconcilable paradigms in which both elements contain restorative and penal elements.[67]  Zedner by examining the history and philosophy of punitive punishment and restorative justice establishes certain core elements such as deterrence, punishment and responsibility are inherent concepts within both restorative justice and punitive justice.[68]

2.2 Beyond Definitional Constraints and Ambiguity:

Hoyle argues that the early literature on restorative justice restricted academic thought which limited imagination not only on the use of restorative justice but more importantly in understanding the relationship between restorative justice and traditional criminal justice as to its potential to tackle the harm caused by crime and disorder.[69]  Moving beyond the strict definitional boundary issues restorative justice can be considered a fluid and flexible approach to criminal wrongdoing where all the stakeholders in a particular crime come together to make amends allowing the victim, offender and the community to have a say in the decision making process.[70]  Restorative justice schemes developed by policy makers have taken a victim-centred approach to crime, a philosophy that resolves criminal conflict using a different set of principles to traditional criminal justice taking a more holistic approach in the way justice is administered.[71]  This section will focus specifically on what is restorative justice and how it has manifested itself within criminal justice.

2.2.1 What is Restorative Justice?

Many academics start with what restorative justice is not and draw attention to potential shortcomings of the approach of mainstream criminal justice in dealing with crime. Pranis identifies restorative justice as a concept that flows back and forth between the practice that informs philosophy and philosophy that informs the practice, where core values and concepts are weaved out of individual practice.[72]  Central to the idea of restorative justice is the notion that all stakeholders in the offence getting a platform to voice their opinions.[73]   From the literature Van Ness argues that there are three kinds of restorative justice ‘encounters’ which have emerged in different parts of the world consisting of ‘victim offender mediation’, ‘conferencing’ and ‘sentencing circles’.[74]  Victim offender mediation schemes was one of the first restorative justice schemes to emerge which involved bringing the victim and offender together using a trained facilitator to coordinate a ‘reconciliation’ meeting.  The central ideology of this approach was to develop a framework which allowed the victim and confront the offender, allowing them to take responsibility for their actions.  The second approach developed consisted of ‘Conferencing’ which began as an alternative to Youth Courts in New Zealand.  Many schemes since New Zealand’s adaptation of ‘conferencing’ have evolved to principally involve bringing all the stakeholders of crime together consisting of friends and family of the victim and offender and the community in which the crime takes place to deal with the criminal wrongdoing.  It brings all stakeholders together to participate in reconciliation and to deal with the criminal behaviour.  The third manifestation of restorative justice encounters is ‘Sentencing Circles’, which have developed primarily in Canada.  It operates on a similar basis to New Zealand’s approach in allowing all stakeholders to sit in a circle and discuss the criminal behaviour in the presence of the offender moving from person to person in a clockwise position around the circle. 

2.2.2 Restorative Justice Themes and Issues

It is possible to identify a number of core common themes and issues underpinning the concept of restorative justice in many of the contemporary manifestations of restorative justice schemes.  As restorative justice is a fluid concept capable of taking many forms it does not start from the premise of criminal law that a transgression of the law involves a distinct species of wrong deserving of a distinct process to determine and deliver punishment.[75]   Therefore Johnstone identifies that a core theme in restorative justice is the manner in which it views and responds to crime and law breaking, taking a much more inclusive view of the act, those who are affected and the wider community.[76]  Each practice of restorative justice is tailored to the actual offence of addressing the harm from all perspectives within an offence including the victim, the offender and the community.  Van Ness argues that there are four key components of each restorative justice system:[77]

  • An Encounter:

Restorative justice schemes invariably involve some element of ‘an encounter’ which brings together the victim, the offender and the community involved.[78]  The make-up of an encounter will depend on the individual circumstances of each offence but there are five core elements to each encounter:[79]

  • Meeting – where all the parties meet either together or individually through a third party to discuss the offence.
  • Narrative – All parties which are affected by the offence talk about the impact of the crime and how to deal with the harm. It is core to restorative justice values to allow the platform for the exchange of dialogue which is premised on finding a resolution to the wrongdoing.[80]
  • Emotion – the interaction between the parties is markedly different from court in that understanding the emotion flowing from an offence is key to contributing to the understanding of the harm done.
  • Understanding – the scheme will be primarily tasked with understanding the harm done to the victim and community with a special focus on repairing that harm.
  • Agreement – when all the parties have been able to explore the harm and the circumstances of the fractured relationships between victim, offender and the community, an agreement can be reached about the situation with a view to repairing the harm by the offender taking responsibility.

It is argued by Braithwaite and Pettit in their republican theory of justice that the criminal justice system when dealing with criminal behaviour should allow the victim to regain their ‘control’ over their personal liberty which they enjoyed prior to the offence.[81]  It is further argued by Miers, Morris and Strang that restorative justice is an effective method of achieving victim emancipation after an attack.[82]  Therefore restorative justice can account for better practice in allowing the victim to face the realities of what happened to them in the criminal attack and to restore confidence within them.

  • An attempt to make ‘amends’:

Whilst the key objective of any restorative scheme will be to allow the offender to make an amends for the harm caused both to the victim and the community.   The core components, as identified by Van Ness, for an offender to make amends consists of:[83]

  • An Apology: this is where the offender is given the opportunity to give a genuine apology to the victim for the harm and distressed caused by their actions which allows the offender to take responsibility for their actions and become accountable to the victim. Schneider suggests that a genuine apology has three elements: firstly an acknowledgement of the wrong committed, an acknowledgement of the affect of the wrong on the victim and an acknowledgement of having no excuse for the harm caused.[84]
  • Change in Behaviour: this is where the offender will take steps to ensure the behaviour will not happen again, including steps such as getting a job, returning to education or receiving counselling.
  • Restitution: this is where the offender makes some financial contribution to the victim and includes examples of paying to repair any physical damage to property or by the offender completing some voluntary work for the offender.
  • Generosity: this is where the offender is willing to go beyond the strict confines of the actual damage done to doing some voluntary work over and beyond that of repairing the harm. It would involve the offender ‘paying back’ socially the harm done by doing some work outside of the offence, for example voluntary community work.
  • Reintegration:

A fundamental cornerstone of restorative justice is to facilitate the reintegration of both the offender and the victim back into society to allow both sides to put the behaviour behind them.  Van Ness identifies three core aspects:[85]

  • Respect: after a restorative justice scheme all sides who emerge after dealing with the criminal wrong doing should be allowed the respect of taking responsibility for the behaviour.
  • Material assistance: after some criminal behaviour victims and offenders may require some element of material assistance which may include the physical repair to property or the assistance of finding a new home after coming out of prison.
  • Moral/spiritual direction: after a criminal wrong doing the offender may need the assistance of spiritual direction to allow them to get their life back on track. Some evidence has emerged from the US that those offenders who engage with spirituality during restorative justice schemes have lower recidivism rates than those who do not.[86] 
  • Inclusion:

The most significant aspect of restorative justice schemes in comparison to criminal justice is its inclusion in every aspect of the process.  Unlike criminal justice, it allows for input and valuable participation from all stakeholders affected by the criminal behaviour.  Van Ness identifies three core aspects in restorative schemes which make them inclusive:[87]

  • Invitation: all stakeholders to criminal behaviour is invited to attend and participate and therefore each stakeholder will have the opportunity to voluntarily input and feed into dealing with the offence.
  • Acknowledgement of interests: in difference to the criminal trial procedure each witness will serve the interests of either the prosecution or the defence. In restorative schemes there is no triumphing of interests, all parties have an equal amount to contribute to dealing with the offence.
  • Acceptance of alternative approaches: the flexibility of restorative justice allows for schemes to be tailored to suit individual needs for dealing with specific offences. It is unlike criminal law in that all trials are straight-jacketed into criminal procedure and takes account of approaches including: mediation, conferencing, circles to other forms of restorative justice.

2.2.3 Linkage between Restorative Justice and Youth Justice:

Restorative justice initiatives dealing with offending and offending behaviour operate in many western countries but little experience exists with running restorative justice schemes in the context of criminal justice.[88]  Shapland et al argues that restorative justice schemes have been principally established within the context of youth justice for low levels of crime and law breaking that is viewed as being less serious.[89]  The relationship between restorative justice, within the criminal justice context, is that the participatory roles are predetermined in comparison to other manifestations of restorative justice.  The roles of offender and victim are already assigned by the act of wrongdoing under review and the purpose of the scheme is not to establish the fact of a particular offence but rather to establish a framework to deal with the wrongdoing, taking all the circumstances into account.[90] 

The momentum for restorative justice within criminal justice is centred on it being presented as an innovative and flexible way of dealing with lower level crime, advanced as an alternative to responding to crime with potential for successfully reducing recidivism.[91]  Doolin argues that the proliferation of legal and extra legal restorative schemes aiming to restore the victim, encourage offenders to take responsibility of the harm caused, reintegrate offenders into communities represents a collaborative decision making process within which restorative justice can be situated within criminal justice.[92]  A key influence assisting the development of restorative justice within criminal justice has been the continuous changing relationship between victims of crime and the criminal justice system.[93]  The emancipation of victim’s rights and human rights generally in the latter half of the twentieth century has been the breeding ground for the advancement of restorative justice within criminal offending.[94]  It is arguable that less serious crimes committed by young offenders is more amenable to restorative justice than adult offending in that the public perception of young offending is viewed at a lower ranking of seriousness.  Additionally, the young offender can be seen to be more open to correction in comparison to an adult offender in that restorative schemes may be able to easily correct the criminal behaviour.  It is also more likely that a young offender will have less criminal experience and behaviour than adult offenders due to their age, leaving restorative justice as an accessible option for criminal correction.

Restorative justice has been surfaced in many different guises but it has become used within criminal justice context in two ways:

  • Firstly in an historical context developed across the literature to evaluate existing criminal justice structures which has been an unhelpful dichotomy in the development of restorative justice restricting its application within criminal justice.[95] It can serve as tool for analysis for highlighting the defects of the current system and where restorative values may be imported into criminal justice which could help deal with criminal behaviour.  It becomes unhelpful when academic literature focuses entirely upon establishing two distinct systems of justice, whereas a more comprehensive approach is to position restorative values within mainstream criminal justice.
  • Secondly, restorative justice has acted as a diversionary process for young offenders whose crimes are less serious and can be dealt with more adequately through a restorative justice process rather than criminal proceedings. The restorative justice process allows the young offender to take responsibility for their actions and make some form of reparation towards the victims and communities in which the offending took place.  It is an express recognition of the discrete ways in which contemporary criminal justice has been unable to address adequately some elements of criminal behaviour and where a restorative response yields a more productive outcome.[96]

It is important to point out that some academics identify a number of concerns about the compatibility of the underlying philosophy of restorative justice schemes within the current criminal justice system with many suggesting that restorative justice’s philosophy of restoration against the criminal justice system’s retribution cornerstone.  A common thread criticism of restorative justice has been that it tends to grind down the procedural safeguards designed to give the criminal justice framework legitimacy.[97]  This criticism is grounded in the belief that restorative justice is too flexible to provide a consistent approach to crime in that each restorative justice scheme will be unique depending on all the circumstances of the case.  However, it is arguable that in considering restorative justice within criminal justice in this way by characterising their aims is an over simplification and is not entirely accurate or justified.[98] 

2.2.4 Restorative Justice – A rescue remedy in the administration of justice?

Van Ness identifies four principal reasons for the development of restorative justice schemes within mainstream criminal.[99]  Firstly criminal justice has evolved in the past fifty years with an increasing move towards new penal policies with greater reliance on formal court processes leading towards a greater number of offenders being sanctioned with imprisonment and supervision in the community.[100]  It has become a common feature of the Western criminal justice systems to become overloaded with cases resulting in prison overcrowding becoming endemic.  Economically allowing the criminal justice system to become heavily loaded with criminal cases has cost governments vast sums of money to administer justice and within the current economic climate of recession, many governments are turning to restorative practices as one means of taking cases outside the criminal justice system opting for lower cost models of justice.  As a response to overcrowded prisons and clogged criminal justice systems, governments are seeking alternative mechanisms to administrate justice especially in the area of low level crime.  Therefore restorative justice can augment existing structures of criminal justice to assist the delivery of justice.

Secondly, Cunneen argues that the rise of social movements in the 1960s and 1970s including the development of feminist campaigns against male violence, the absence of effective criminal justice responses, civil rights campaigns, indigenous political demands for greater self-determination rights coupled with the rise of victim rights groups and advocacy campaigners and the problem of over representation in the criminal justice system has fuelled demand for reform of the existing structures of the criminal justice system.[101]   Van Ness argues that restorative processes bring more parties into the justice process helping governments to address the lack of public confidence in the administration of justice.[102] 

Thirdly, Van Ness argues that restorative justice can allow for a dual track system within criminal justice where restorative justice can be the first option and if it fails to deal with the criminal behaviour there is the alternative of falling back on the mainstream criminal justice.[103]  This will allow an administratively overburdened court to hear fewer cases where a system would allow for alternative approaches before reaching the court stage, thereby making the option of prosecution through the courts as an option of last resorts.  The fourth suggestion by Van Ness is to allow cases to progress initially to court and provide a mechanism in which judges can divert cases away from the legal system where they feel restorative justice may provide a better process of sanction.[104]  This would allow the criminal justice system to adopt a ‘hybrid’ approach with a mix of mainstream criminal justice and restorative justice where restorative process and traditional criminal processes operates consecutively as opposed to a restorative justice becoming a multiple of alternatives.

2.3 Conclusion:

The early dichotomy of restorative justice being placed against retributive mainstream criminal justice restricted the advancement of restorative justice within the practice of mainstream criminal justice.  The effect of Zehr presenting restorative justice as a ‘new lens’ and paradigm to challenge the traditional failings of criminal justice dealing with crime and disorder presented many pitfalls including a polarisation of viewpoints on the benefits of restorative justice values.  The tensions at the heart of restorative justice has been conceived in two ways, firstly as a change of process by which courts deal with offenders and secondly as a shift in values that underpin criminal justice interventions, instead of being guided by retribution and penal policy restorative justice is guided by reconciliation and healing.[105]   The resulting lack of common ground amongst practitioners, academics and policy makers resulted in two schools of thought, first those that seek to integrate restorative justice within criminal justice and secondly those that still seek to present it as a ‘bold’ alternative to challenge existing structures.  Many of the proponents of restorative justice fail to recognise that in the pursuit of ‘justice’ for offenders, victims and communities harmed by crime and disorder, core components consist of restorative and retributive values.[106]  Hoyle establishes that where offenders have damaged their relationship with victims and local communities the appropriate response is to confront those offenders with their wrongdoing encouraging them to repent and make amends to the wronged victims.[107]  This inevitably involves retributive elements of censure engaged with citizens coming together to discuss the wrongdoing in a restorative conference.[108]  This process of restorative justice can place significant burdens on the offender containing the punitive elements of having to face up to the crime by completing works for the community or victim, or having to make compensation payments to the victim.

Central to the debate on how best to deal with crime is the western ideology and conception of what constitutes crime and how to punish offenders.  Current criminal practices and the public perception of crime and punishment originate from the Reformation, principles of humanism, proportionality, natural justice, judicial independence and the rule of law.[109]   It is this impression that has left an indelible mark on the current criminal justice system which places offending as a violation of the interests of the State which only concern the offender and the State.  By virtue of the way the restorative justice debate has emerged within the UK has left policy makers placing restorative justice at the fringes within criminal justice policy in fear of appearing weak on criminal behaviour.  It is agreed by many commentators that an appropriate use for restorative justice, which has become its most common starting point, is within youth justice.[110]  This type of crime is relatively uncontroversial, allowing restorative justice to become viewed as a way in which less serious offences can be taken outside mainstream criminal justice into a more accountable framework by dealing with crime by restoring the victim’s security, dignity and self control.

Chapter Three:

Youth Justice and Restorative Justice within the UK

3.0 Introduction – Youth Justice and Restorative Justice in the UK:

For over a decade Labour’s three successive administrations from 1997 to 2010 has left the youth justice system in a state of near permanent reform.[111]  Their approach to crime and its prevention redefined not only youth criminal justice policy but it also set out Labour’s vision for its tenure of office.  With almost two decades prior to 1997 in opposition Labour had the opportunity to implement ready-made polices on criminal justice which started with the youth justice system by adopting a ‘root and branch reform’ agenda.[112]  The literature on youth offending and the youth justice system has focused on the varied and shifting approaches of the different Governments in the last six decades which have influenced the current youth justice strategy.  This chapter will examine Labour’s approach to integrate restorative justice values within youth justice policy, therefore the core question this chapter will ask is: what is the impact of restorative justice within the youth justice framework and to determine has this approach to crime worked over the past ten years? 

The starting point will focus on the pre-existing strategies adopted by various governments employed to deal with youth crime, and then the chapter will present an understanding of why youth justice became ripe for development in latter part of the twentieth century.  Following this the chapter will progress to deal with Labour’s approach in establishing a new framework for the operation of the youth justice framework.  At this point the thesis will focus on Labour’s punitive rhetoric of ‘tough on crime and tough on the causes of crime’ to present an understanding of Labour’s twin pronged approach of restorative justice values on one side with ever increasing punitive strategies on the other.

3.1 Pre-Existing Strategies for Youth Offending:

Much of the twentieth-century juvenile justice system was characterised by a double taxonomy which can be best described as ‘punishment’ and ‘welfare’.[113]  The juvenile justice system emerged out of the nineteenth century from the social reform movements when juvenile offending became a recognisable form of justice meriting a differential approach to adult offending.[114]  The last fifty years have seen a bewildering complexity of shifts in the approach of the police, courts and various governmental agencies established to respond to youth offending.  It has been a dissected mix of governmental policies that alternate between punitive punishment and a welfare or care approach.  The literature presents the 1960s as a high point in the development of ‘welfarism’ in the youth justice system with a shift away from penal punishment to family councils and family courts to deal with juvenile offending.[115]  Within this approach, the ‘care’ of the young offender became a central tenant within youth offending with a view that it should be administered by lay people marking a shift away from the formalised courts for youth offending.[116] 

The coming to power of the Conservative government in the 1970s brought a shift back to punitive punishment for youth offenders with an increasing use of juvenile courts with custodial sentences rising from 3000 in 1970 to over 7000 in 1978.[117]  Alongside this shift towards a strong sharp punishment of youth offending in England and Wales, Scotland sought to introduce an alternative approach with the introduction of the Social Work (Scotland) Act 1968.  This Act placed local authorities with power for dealing with youth offending, which implemented welfare tribunals for dealing youth offenders instead of the courts system.  An underlying feature of these welfare tribunals was the use of lay people such as social workers, teachers and family representatives in coming together to manage youth offending in a collaborative way.

Pratt argues that there were four major sets of criticisms of the ‘welfare’ model of youth justice: firstly the treatment-orientated interventions were perceived to be ineffective.[118] Secondly, evidence suggested that ‘care’ could become more coercive than punishment.  Thirdly, professional expertise of the members of the tribunals was less important than it was perceived to be, in that members were serving with little experience of juvenile offending.  Fourthly, the ‘care’ model of justice was alleged to be ineffective at dealing with youth delinquency.  The election of the Conservative government during the 1980s with a ‘law and order’ agenda produced a mixed approach to youth offending yet again.[119]  The 1980s brought an introduction of a multi-agency approach to youth offending, with an increased use of formal and informal cautioning of youth offenders which distinguished first offenders from repeat offenders.  A distinctive feature of this approach to youth offending was the introduction of the concept of ‘corporatism’ into the youth justice system which allowed a system to produce ‘efficient, effective justice that worked’.[120]  The focus was on delivering a youth justice framework that worked efficiently delivering value for money for the government using cheaper alternatives than the court system.  The youth justice model of the 1980s enjoined the 1990s with a marriage of punitive sentencing of repeat offenders with an incoherent ‘cautioning’ system for first time youth offenders which the police patrolled without any consistency.[121]

3.1.1 New Labour, New Youth Justice Policy?

It is arguable that, amongst other issues, Labour won its first general election under the banner of its tough ‘talk’ on criminal justice issues.[122]  The issues of crime and the fear of crime amongst the electorate allowed Labour to plan, design and implement a range of measures carrying with it the promise of solving the country’s spiralling criminal behaviour.[123]  By effectively establishing themselves as the party capable of implementing effective measures to deal with not just youth criminal behaviour but all forms of criminal offending, they succeeded in forming government in 1997.[124]  The approach that Labour took in implementing criminal justice change is interesting especially in consideration of their ‘twin pronged’ approach with increasing criminalisation and punitive sanction on one side with restorative and reparative justice measures on the other.  By taking a mixed approach between retributive justice and restorative justice Labour sought to increase the State’s control, regulation and mangerialism of criminal behaviour.[125]  It can be established from the laws enacted under Labour’s tenure that there was a distinct differential in the approach to youth offending and adult offending, with the latter being further criminalised with the use of mandatory sentences, new gun crime laws and further drug crime law. 

Labour sought to formulate its youth justice policies around a development of pre-existing philosophies of restorative justice values and practice including responsibility, restoration and reintegration, which would draw upon the experience of the existing framework.[126]  

In order to appreciate why the youth justice system was ripe for reform attention should be focused on the high prominence of the tabloid press coverage of the abduction and murder of the two-year-old Jamie Bulger in February 1993.[127]  The press coverage of this case sparked a media spotlight on youth offending which Labour used as a platform to articulate its reform agenda on criminal justice.[128]  Additionally, youth justice has been an enduring source of anxiety in England and Wales in which the media focused its spotlight depicting it as a ‘moral panic’, when young children are involved in crimes associated with disturbed adult offending with no appropriate framework to deal with such offending.[129]  This case also occurred against the backdrop of serious problems of joy riding involving young males which had become endemic across the UK in the early 1990s invoking a fear amongst society about the effectiveness of criminal law to protect them against youth offending.[130] 

Labour presented a ‘Third way’ to deal with law and order which centred upon tackling the youth crime which were premised upon making young people ‘take responsibility’ for crime through the concepts of responsibility, restoration and reintegration.[131]  The centre piece of reform manifested itself in the Crime and Disorder Act 1998 and Youth Justice and Criminal Evidence Act 1999 which have sought to bring restorative elements and values on a formal platform within youth justice.[132]   In essence the statutory framework represented a clear attempt at modernising youth justice based on empirical evidence.[133]

The two Acts represent the vehicle and framework through which Parliament sought to reform the youth justice agenda.  The literature has tended to focus on the various elements of the reforms introduced with a contextual reference to the conceptual framework on restorative justice with reference to other jurisdictions in benchmarking the UK’s attempt at integrating restorative justice within criminal justice policy. 

The backdrop in which these reforms were carried forward also adds to analysing the literature, in that the wider criminal justice reforms introduced in the same period presented a criminal justice strategy centring around the principle of ‘tough on crime, tough on the causes of crime’.[134] Alongside these restorative reforms, the government introduced mandatory life sentences and mandatory minimum sentences in the Crime (Sentences) Act 1997.  These dual approaches in tackling crime presented a paradox: the youth offenders were criminalised with ‘welfarist’ undertones of ‘restoration, reintegration and responsibility’ but more serious adult offenders were punished through deterrence with strict punitive measures. This approach to crime strategy presented a lack of creditability for the seriousness of integrating restorative justice reforms when at the other side of the coin adult offenders were being punished punitively.[135]  Labour’s early strategy in reforming the criminal justice platform presented a ‘cherry picking’ from much of the debates of both sides of the divide in the restorative justice literature from the 1970s to the 1990s.  This strategy selected the values and principles of restorative justice in tinkering at the fringes of youth justice, leaving ‘tough talk’ for dealing with adult offending.[136]

3.1.2 The Statutory Framework and Restorative Practice:

The reform advanced by Labour effectively represented a ‘new youth justice’ system composed of a Youth Justice Board (YJB) at national level and a multi-agency Youth Offending Teams (YOTs) at local level to administer the youth justice framework.[137]  This multi-level and multi-agency approach to youth justice redefined the architecture of the youth justice apparatus by reconfiguring the lines of power, management and responsibility.[138] In addition to redefining the youth justice apparatus within the criminal justice system, Labour adopted a twin track approach with a perpetual stream of legislative reform focused on reformulating the punishment framework within criminal justice.  

The main stay of the reforms was provided in the Crime and Disorder Act 1998, which established the Youth Justice Board, Youth Offending Teams and for a restructuring of the non-custodial penalties available to the Youth Court, other reforms included: anti-social behaviour orders (ASBO) and action plans, to reparation orders and parenting orders.[139]   For offenders under 18, the system of police cautioning was replaced with a new system of ‘reprimand’ and ‘warnings’, to allow young offenders to have the opportunity of at least one reprimand and one final warning prior to prosecution.[140] 

Newburn argues that the new reforms implemented sought to allow restorative values where possible within youth justice through the development of restorative cautioning, action plans and reparation orders.[141]  The action plan represented an attempt to allow youth offenders to begin ‘a short intensive programme of community intervention combining punishment, rehabilitation and reparation to change the offending behaviour and prevent further crime.’[142]  Although Labour sought to redraw the criminal justice agenda in its first term in office many of the reforms introduced echoed and resembled the multi-agency approach of the 1980s.[143]  The crucial difference between this fresh attempt at reform was that part of the multi-agency approach this time was not to divert but rather to intervene and become involved in the process.[144]  A central driving force in Labour’s restorative reforms was the influence of ‘communitarian thinking’, particularly with the introduction of reparation orders and restorative cautioning.[145]  The Crime and Disorder Act 1998 placed local authorities with the responsibility of formulating and implementing annual youth justice plans. 

Gelsthorpe and Morris argue that the reforms introduced will allow restorative processes to occupy a marginal place within criminal justice until contradictory values and practices of blaming and punishing are given significantly less emphasis and restorative values and practices are given significantly more emphasis.[146]  A potential flaw of the Crime and Disorder Act 1998 presented in the literature is that significant elements inherent in the reforms are premised on the basis of proportionality which is characteristic of punitive punishment.  Wasik identifies that the reparation order is subjected to the normal requirements of proportionality which is linked to the retributive justice value of responsibility of the offender for the crime.[147]  The central concern among advocates of restorative justice is that this model will not operate with the full potential of restorative justice values and principles which could over time gradually become more punitive than restorative in nature.  

Much of the debate throughout the literature focuses on the various elements of the reforms which can be considered to have restorative ideals.[148]   The most significant reform was the introduction of ‘Referral Orders’ as part of the Youth Justice and Criminal Evidence Act 1999.  Dignan and Marsh argue that ‘Referral Orders’ are potentially ‘one of the most radical aspects of the entire youth justice reform agenda’ where the court can divert the young offender away from the courts system to deal with the offending behaviour through restorative approaches.[149]    Crawford and Newburn argue that the reforms implemented by Labour were heavily influenced by the ‘what works’ paradigm and the ‘language’ of risk factors.[150]   Undoubtedly there are a number of tensions within the reforms in that they cannot be considered a full representative of restorative model of justice but rather import a limited number of restorative ideals in to the traditional criminal justice system.[151] 

Field argues that evidence from the his empirical study shows that pre-charge decision making in youth justice remains a highly discretionary process within the realm of the personal judgement of the police officer.[152]  The pre-charge element of a police officer’s duty in youth offending despite the statutory framework is centred upon the narrow question of the seriousness of the offence.[153]  Field also questions whether the custody suite and custody sergeant is the correct place make a judgment call on youth offenders, he identifies police training as a key factor which suggests this approach may need to revised to take into account restorative values.[154]

3.1.3 New Labour’s Youth Justice Legacy

Goldson argues that Labour introduced an unprecedented corpus of youth justice legislation both in terms of reach and volume.[155]  The development of the youth justice framework forms part of a general policy of strengthening the control of the State within criminal justice in an attempt to manage criminal behaviour.  Fergusson argues that the approach to youth offending became a melting pot of ‘contradictions, ideas and ideologies’ where a hybrid model emerges which encompasses a dissected mix of restorative and retributive values.[156]  Fergusson correctly identifies that the way governments present policy rhetorically, how they codify it legally, and how those policies are played out in practice are critically different facets of the policy process in the management of crime.[157] 

Zernova presents empirical evidence she conducted on a number of restorative justice encounters under the statutory framework.[158]  She analyses her data from the perspective of restorative ideals in order to identify any gaps in the statutory framework.  It is interesting that she found that a large number of conference schemes, victims felt that they were there to assist the offender with their rehabilitation as opposed to their opportunity to confront their anxieties about the criminal offence.[159]  This allows a focus to be on the way in which restorative justice conferences are constructed, in that where victims are not made clear about the purpose of the conference it leaves them open to interpret their participation as a secondary to the offenders rehabilitation.  By not making the parameters of the restorative scheme clear also has ramifications for the claim that restorative justice is victim centred.[160]  The findings from Zernova’s study highlight that the degree to which crime stakeholders are empowered within the restorative justice scheme was limited.[161]  The potential failings evident in Zernova’s study highlight that unless a more fully integrated approach to restorative justice is imported into the current statutory framework, it is likely that gaps and cracks will begin to emerge which have an impact on the delivery of true restorative values within criminal justice.

3.2 Conclusion

Successive governments have responded to crime in various ways throughout the last five decades, in particular the latest strategy employed a double edged sword which leans heavily on punitive punishment for adult offenders with a more ‘welfarist’ approach in dealing with youth offenders.[162]  Restorative justice undoubtedly represents one of the most significant developments in criminal justice and criminological practice and thinking over the past two decades.[163]  It is arguably the social movement for criminal justice reform of the 1990s and into the new millennium.[164]

It is arguable that the various welfare approaches to youth justice policy throughout the 1940s and 1960s represented some element of restorative justice although it did not specifically recognise them.  The approaches adopted by the Crime and Disorder Act 1998 allow in some elements of restorative values in dealing with youth offending, although offenders, victims and their families will not be able to take charge or control of the process.  Therefore it is heavily depended upon a state led system that is still geared towards punitive values.

In various studies carried out throughout the America, Australia and New Zealand where the use of restorative justice is prevalent for young offenders has been successful at delivering fewer offenders appearing in court, fewer younger offenders receiving custodial sentences and a reduction in repeat offending resulting in greater effectiveness at dealing with crime by dealing with crime and delivering huge cost savings in the criminal justice system in taking a more integrated approach to dealing with crime.[165]

As Dignan points out in his work that the new reforms have not exactly resulted in a new paradigm shift nor could they be considered amounting to a ‘restorative justice revolution’ in criminal justice.[166]

The tensions between the ideology of restorative justice and its use in practice within a criminal justice perspective highlight the difficulties in arriving at a common base for restorative justice.  The conceptual tensions not only exist within adherents and opponents of restorative justice but also an element of confusion exists within the restorative justice movement itself.  The fact that the Crime and Disorder Act 1998 has taken firm roots within youth justice it will inevitably result in either a gradual integration of restorative values in criminal justice policy or a gradual claw back to the punitive elements of criminal law.  This will ultimately depend on the shape of the current Conservative – Liberal Democrat government in bringing forward its current manifesto of ‘the big society’ into legislation.

Chapter Five

International Perspectives on Restorative Justice

4.0 Introduction – Global Perspective on Restorative Justice:

Restorative justice has become a worldwide movement especially within criminal justice circles.[167]  On a global scale it is impossible to identify how many schemes with restorative justice values operate at any one point in time.  Restorative justice touches so many aspects of civil society in a vast array of contexts from peace building to neighbourhood disputes to criminal law contexts.  For the purposes of evaluation of restorative justice within criminal justice context this chapter will focus on emerging restorative justice practices in New Zealand, and Canada.  The core question this chapter will ask is: what is the impact of restorative justice schemes internationally in the development of restorative justice within criminal justice?  It is important to evaluate how other countries have incorporated restorative justice within criminal justice so as to allow analysis of the UK’s approach.

4.1 New Zealand:

McElrea identifies that the demand and driver of restorative justice within a New Zealand context has arisen not due to policy makers but rather out of the interest of practitioners.[168]  It is commonly agreed that New Zealand has allowed further integration of restorative justice principles within its criminal justice system.[169]   The Children, Young Persons and Their Families Act 1989 introduced a concept of establishing family group conferences for dealing with youth offending within communities and is widely acknowledged as a case study within restorative justice.[170]  It allowed the communities to take control of how to deal with cases emerging within their area that could be referred by the police or by a court where they felt that diversion from the structures of mainstream criminal justice was a better solution taking into account the nature of the offence and the offender.  McElrea identifies that there are three distinct elemental differences with this model of justice from traditional criminal justice:

  • The transfer of power from the State’s criminal law structures to the community to identify how to deal with the criminal offence.
  • It was a method that allowed a negotiated community response.
  • It involved the key participants in the criminal offences. [171]

The operation and function of the family group conference allows the victim, offender and the community to come together to deal with the specific instance of criminal behaviour with a special emphasis on arriving at a negotiated response drawing on all participants in the scheme.  Therefore, embedded within the New Zealand context is the notion that justice for all the parties involved is best negotiated amongst the parties where the focus is providing the framework in which the parties can come to such a negotiated settlement is the cornerstone of the New Zealand approach.

The development of restorative justice was further developed in New Zealand with the introduction of Sentencing Act 2002 which further placed restorative justice values at the heart of criminal justice within a statutory footing.  Key cornerstones of the act are encouraging offender accountability and responsibility for their acts, allowing a victim and family-centred approach where reparation for the harm can be agreed amongst the participants.  Unlike other restorative justice schemes, family group conferences are available for all medium-serious and serious offending by young people. 

4.1.1 Empirical Evidence from New Zealand:

The analysis of the New Zealand restorative justice scheme of family group conferences can be viewed through benefits to the offender, victim and state.  A number of empirical studies have been conducted by Maxwell and Morris in 1993 and Maxwell et al in 1999 to determine the effectiveness of the New Zealand scheme.[172]  Empirical evidence from the 1993 schemes found that offenders had a positive attitude towards conferencing and were satisfied with the outcomes reached.[173]  It is important to note those surveyed in another empirical research study applying a similar approach to Maxwell and Morris (conducted by Strang et al) who were compared against young offenders who went to court, seemed to prefer conferencing as the method to deal with criminal behaviour.[174]  Similarly, victims who were interviewed reported high levels of satisfaction with conferencing as a means for dealing with the criminal offending, with an overall feeling from both victim and offender that the system was fair and arrived at a fair response to the criminal behaviour under issue.[175]

Under the 1999 empirical research conducted by Maxwell et al on a number of studies around New Zealand reported similar statistics to the 1993 with offenders reporting that conferences allowed them to take responsibility and see the impact of their behaviour.[176]  The data presented by the empirical studies found that participation in the family group conference allowed them the space to consider the harm done and to arrive at the best response to repair the damage caused by the harm.[177]  Both studies not only highlight the potential to involve victims within the decision making process within criminal justice but also the potential to get offenders to face up to the realities of their behaviour in a way that criminal justice is unable.[178]  Additionally the studies showed that significant costs could be cut by introducing restorative justice schemes in place of traditional criminal justice for these types of offences.

4.2 Canada – Sentencing Circles and Victim Offender Reconciliation Programmes:

Canada, similarly to New Zealand, has embraced restorative justice principles within its criminal justice system in way that is a deeper and wider conceptually in comparison to the UK.  It is argued by Roberts and Roach that Canada has gone further than any other country to incorporate restorative justice values within its criminal justice system, as it has continually developed unique alternatives to criminal justice processing in addition to restorative principles within sentencing frameworks.[179]  Restorative justice has been applied in Canada at every stage of the criminal justice system including pre-charge, post-charge, sentencing and post-sentencing.[180]  The two most commonly operated restorative justice schemes in Canada are the victim-offender reconciliation programmes (VORP) as well as sentencing circles.  It is important to note that the composition and make-up of the legal system within Canada has been progressive towards allowing restorative justice principles become imported into mainstream criminal justice.[181]  Criminal law power resides with the federal government with provincial and territorial governments being charged the responsibility of administering justice.  Against this backdrop the central feature of the Canadian system of justice is the importance of the Charter of Rights and Freedoms and therefore victim rights form a core part of restorative justice practice in Canada.[182]  It was easier to import restorative justice values into the Canadian legal system because it allowed a flexible approach to a definition which the local authorities, the police and judiciary took advantage of to develop unique restorative practices in solving criminal behavioural offences.

4.2.1 Victim-Offender Reconciliation Programmes:

The most comprehensive review of VORP’s has been conducted by Dittenhoffer and Ericson whom conducted empirical research in Ontario involving a programme which had two thirds business participants where 85% did not know the offender prior to the programme.[183]   The study reported that all participants in the programme felt positive about their experience and how the criminal behaviour was managed.[184]  Additionally victims reported that getting the chance of direct dialogue with the offender increased their satisfaction getting reparation for the harm done.[185]

Similar to the UK there is no single accepted definition of what is restorative justice, rather the Canadians prefer the loose definition so that they can easily apply and mould restorative justice principles at all levels of the criminal justice system, thereby allowing it to become an approach to justice as opposed to a defined set of programmes.[186]  Initial attempts at victim offender mediation programmes consisted of a mixed range of offenders including young and adult offenders placing victim at the centre of focus in repairing the harm caused by the offender.[187]  It is interesting to note that each VORP sought not only to deal with criminal behaviour but sought to deepen the meaning of restorative justice by ensuring every possible principle of restorative justice relevant to the programme was utilised in delivering justice to the victim and community.[188]

4.2.2 Sentencing Circles:

Sentencing circles was pioneered in Canada in the early 1990s as a model of restorative justice which allows all parties to an offence to sit out in circles and discuss the criminal behaviour.  Its focus tends to be more spiritualistic than other forms of restorative justice in that many sentencing circles begin with a prayer for forgiveness and reconciliation.[189]  The central feature of sentencing circles is to allow all participants to be heard, express their views and feelings individually. 

4.2.3 The Canadian Youth Criminal Justice Act 2003 (YCJA):

It is interesting to note that Charbonneau has expressed concerns about the relatively new direction restorative justice occupies within youth criminal justice under the YCJA statutory framework.[190]  Charbonneau argues that the statutory framework, whilst centred around restorative values, encompasses a undeniably penal nature in the sanctions it provides for youth offending.[191]  The danger of mixing restorative values within a penal policy is that the penal policy may establish an enduring influence over the restorative principles and over time making watering down true restorative values.

4.3 Conclusion:

The practice of restorative justice has proved successful in New Zealand and Canada which has provided a platform for active participation within criminal sanctioning.  It is identifiable that the two differential approaches to incorporation of restorative justice values within criminal justice.  New Zealand prefers the family group conference and views it as the platform in which victim centred justice can be delivered more effectively than in comparison to mainstream criminal justice.  The empirical evidence of New Zealand’s approach to restorative justice reports significant benefits to the victim, offender and the state through reductions in the administration of justice.  Additionally, by opening criminal justice up to become more accountable in the forum of family group conferences creates gives criminal justice greater legitimacy in the administration of criminal sanctions for offending behaviour as all participants have contributed to the overall scheme.

Whilst Canada has taken a more flexible approach favouring a fluid definition which allows local authorities, the police and judiciary to come to specific tailored solutions for criminal behaviour within their regions.  It is important to note that the driver of Canadian restorative justice was the backdrop in which criminal justice is administered in that fundamental rights and freedoms in the Charter are core to administering justice fairly.  This allowed the impetus for a victim centred approach to emerge where victims’ rights are moved centre stage as opposed to the margins.

Chapter Five:

Conclusion

5.0 CONCLUSION

There is a growing realisation amongst policy makers, practitioners that penal policies based predominately on the concepts of retribution and deterrence do not result in significant levels of crime reduction and may in fact have an entirely opposite effect.[192]  It is unquestionable that the concept of restorative justice embraces a number of core principles which are far reaching in the context of criminal law in terms of the administration of justice structurally and operationally.[193] 

Throughout each chapter in this thesis there have been a number of core questions which have been answered individually within each chapter through an examination and investigation of the literature.  Chapter two establishes that the unhelpful dichotomy of polarising viewpoints within definitional constructs of restorative justice restricted the adoption of core restorative values within the criminal justice system.  Due to the arguments of polarising viewpoints, it has left policy makers placing restorative justice values at the fringes within criminal justice policy.  Chapter three establishes the momentum of restorative justice within youth offending within the UK, highlighting that the core philosophies of responsibility, restoration and reintegration carry significant restorative value.  However, the key problem in the UK is the platform in which restorative justice has become incorporated within the youth justice framework.  Unlike its counterparts in New Zealand and Canada, the UK youth justice system has limited the scope and availability of restorative justice schemes, which has become a system led by the state still geared towards punitive values placing victim interests in second place to those of the State.

Chapter four highlights the many gaps emergent in the UK framework for youth justice in comparison to the more integrated approach to youth justice in New Zealand and Canada.  The success story of New Zealand and Canada owes much to the method of integration in that by allowing restorative justice an active place on the criminal justice stage, the benefiting factors of accountable and legitimate justice can be administered.

In over all conclusion, the way in which restorative justice has been implemented in the UK forms a dissected mix of punitive and restorative values.  There is no clear strategy for the value of restorative justice and lacks the innovation of other jurisdiction such as New Zealand and Canada.  Due to the positive empirical data emerging from those countries which fully integrate restorative values within criminal justice, it is undoubted that if the UK redevelopment the criminal justice system to allow restorative values to be given credence, a solution to the penal crisis may emerge.

References:

Books:

  1. Aersten, T. Daems and L. Roberts (eds) Institutionalizing Restorative Justice (Willan Publishing, Cullompton 2006).
  2. Braithwaite, Crime, Shame and Reintegration, (Cambridge University Press, Cambridge 1997).
  3. Bazemore and M. Schiff, Restorative Justice. Repairing Harm and Transforming Communities, Anderson Publishing, Cincinnati, 2001).
  4. Bazemore and L. Walgrave (eds), Restorative Juvenile Justice: Repairing the Harm of Youth Crime, (Criminal Justice Press, New York, 1999).
  5. Cayley, The Expanding Prison: The Crisis in Crime and Punishment and the Search for Alternatives. (Pilgrim Press, Cleveland 1998).
  6. Cavadino and J. Dignan, The Penal System: An Introduction, (Sage, London 1992).
  7. Clarkeson and R. Morgan (eds) The Politics of Sentencing Reform (Oxford University Press, Oxford 1995).
  8. Cornwell, Criminal Punishment and Restorative Justice – Past, Present and Future Prerogatives, (Waterside Press, Winchester 2006).
  9. Cosedine, Restorative Justice: Healing the Effects of Crime, (Ploughshares Publications, New Zealand 1995).

 

  1. Crawford and T. Newburn, Youth offending and restorative justice, (Willan Publishing, Devon 2003).
  2. Cunneen and C. Hoyle, Debating Restorative Justice, (Hart Publishing, Oxford 2010).
  3. Davis, Making Amends: Mediation and Reparation in Criminal Justice (Routledge, London 1992).
  4. Doak, Victim Rights, Human Rights and Criminal Justice: reconceiving the role of third parties, (Hart Publishing, Oxford 2008).
  5. Garland, The Culture of Control, (Oxford University Press, Oxford 2001).
  6. Goldsmith, The New Youth Justice, (Russell House Publishing, Lyme Regis 2000).
  7. Hoyle and R. Young (eds) New visions of crime victims, (Oxford: Hart 2002).

 

  1. Hoyle (ed), Restorative Justice: Critical Concepts in Criminology, (Routledge Publishing, New York 2010).
  2. Marshall, Restorative Justice, (Home Office, London 1999).
  3. Mathews and J. Pitts (eds), Crime, Disorder and Community Safety, (Routledge, London 2001).
  4. Maxwell and A. Morris, Families, Victims and Culture: Youth Justice in New Zealand (Social Policy Agency and Institute of Criminology, Wellington 1993).
  5. Maxwell, A. Morris and T. Anderson, Community Panel Adult Pre-Trial Diversion: Supplementary Evaluation, (Crime Prevention Unit Department of Prime Minister and Cabinet and Institute of Criminology, Wellington 1999).
  6. Messmer and H. Otto (eds), Restorative Justice on Trial, (Kluwer Academic Publications, The Netherlands 1992).
  7. Morris and G. Maxwell (eds), Restorative Justice for Juveniles (Hart Publishing, Oxford 2001).
  8. Morris and H. Giller, Understanding Juvenile Justice (Croom Helm, Beckenham 1987).
  9. McCold and B. Watchel, Restorative Policing Experiment, (Community Service Foundation, Pippersville 1998).
  10. McElrea, ‘Restorative Justice – A New Zealand Perspective’ in D. Cornwell, Criminal Law and Restorative Punishment – Past, Present and Future, (Waterside Press, Winchester 2006).
  11. Newburn, Crime & Criminal Justice Policy (Pearson Education, London 2003).
  12. Pearson, Hooligans: A History of Respectable Fears (MacMillian Publishing, Basingstoke 1983).
  13. Roche, Accountability in Restorative Justice, (Oxford University Press, Oxford 2003).
  14. Rutter and H. Giller, Juvenile Deliquency: Trends and Perspectives, (Penguin Books, Harmondsworth, 1983).
  15. Savage and R. Atkinson (eds) Public Policy Under Blair (Palgrave, Basingstoke 2001).
  16. Strang, Repair or revenge: Victims and restorative justice. (Oxford University Press, Oxford 2002).
  17. Strang and J. Braithwaite (eds), Restorative Justice: Philosophy to Practice, (Darmouth Publishing, Aldershot 2000).
  18. Strang, G. Barnes, J. Braithwaite and L. Sherman, Experiments in Restorative Policing: A Progress Report on the Canberra Reintegrative Shaming Experiments, (Australian Federal Police and Australian National University, Canberra 1999).
  19. Umbreit, The Handbook of Victim Offender Mediation (Jossey-Bass Inc Publishers, San Franciso).
  20. Van Ness and K. Strong, Restoring Justice – An Introduction to Restorative Justice (Lexis Nexis Publishing, New York 2010).
  21. von Hirsch, J. Roberts, A. Bottoms, K. Roach and M. Schiff (eds) Restorative Justice and Criminal Justice: Competing or Reconcilable Paradigms? (Hart Publishing, Oxford 2003).
  22. Walgrove (ed) Restorative Justice and the Law (Willan Publications, Cullompton 2002).
  23. Weitekamp, ‘The History of Restorative Justice’, in G. Bazemore and L. Walgrave, Restorative Juvenile: Repairing the Harm of Crime, (Criminal Justice Press, New York 1999).
  24. Weitekamp and H. Kerner, Restorative Justice in Context: International practice and directions, (Willan Publishing, Devon 2003).
  25. Weitekamp and H. Kerner, Restorative Justice: Theoretical foundations, (Willan Publishing, Devon 2002).
  26. Wright, Justice for Victims and Offenders (Sage, London 1991).
  27. Zehr, Changing Lenses: A New Focus for Crime and Justice, (Hearld Press, Waterloo 1990).
  28. Zehr and B. Toews, Critical Issue in Restorative Justice, (Lynne Publishers, Boulder 2004).

Articles:

  1. Ashworth, ‘Some Doubts about Restorative Justice’, (1993) 4 Criminal Law Forum 2.
  2. Ball, ‘Youth Justice? Half a century of responses to youth offending’ [2004] Criminal Law Review 167.
  3. Barrnett, ‘Restitution: A New Paradigm of Criminal Justice’, (1977) 87 International Journal of Social, Political and Legal Philosophy 4.
  4. Brownlee, ‘New Labour – New Penology? Punitive Rhetoric and the Limits of Managerialism in Criminal Justice Policy’ (1998) 25(3) Journal of Law and Society 314.
  5. Canter ‘An End to Crime and Punishment’, (1976) 39 The Shringle, Philadelphia Bar Association 4.

Council of Europe, ‘Mediation in Penal Matters’ Recommendation R(99), adopted 15 September 1999.

  1. Crawford. ‘International Trends in Restorative Justice – Situating restorative justice in crime control and prevention’, [2007] Acta Juridica 1.
  2. Crawford and T. Newburn, ‘Recent Developments in Restorative Justice For Young People in England and Wales – Community Participation and Representation’, (2002) 42 British Journal of Criminology 476.
  3. Croft, ‘Legitimacy and Accountability in Criminal Justice’, (2006) 10 VISTA 2.
  4. Daly, ‘Restorative Justice’ (2002) 4 Punishment & Society 1.
  5. Daly and R. Immarigeon, ‘The Past, Present and Future of Restorative Justice: Some Critical Reflections’, (1998) 1 Contemporary Justice Review 1.
  6. Dignan, ‘The Crime and Disorder Act and the Prospects for Restorative Justice’, [1999] Criminal Law Review, 48.
  7. Dittenhoffer and R. Ericson, ‘The Victim-Offender Reconciliation Program: A Message to Correctional Reformers’ (1983) 33 University of Toronto Law Journal 315.
  8. Doolin, ‘But What Does It Mean? Seeking Definitional Clarity in Restorative Justice’ (2007) 71 Journal of Criminal Law 5.
  9. Earle and T. Newburn, ‘Creative Tensions? Young Offenders, Restorative Justice and the Introduction of Referral Orders’ (2002) 1 Youth Justice 3.

Howard League for Penal Reform, The Prison Population in 2002: A Statistical Review (Findings 228, London: Home Office 2004).

  1. Hudson and B. Galaway (eds) Restitution in Criminal Justice (DC Health & Company, Lexington 1977).
  2. Maguire, R. Morgan and R. Reiner (eds), The Oxford Handbook of Criminology (Clarendon Press, Oxford 2002).
  3. Elliott and R. Gordon, New Directions in Restorative Justice – Issues, Practice, Evaluation, (Willan Publishing, Devon 2005).

European Union, Council Framework Decision 2001/220/JHA of 15 March 2001 on the Standing of Victims in Criminal Proceedings, (EU, Brussels 2001).

  1. Faulker, ‘Prospects for Progress in Penal Reform’, (2007) 10 Criminology & Criminal Justice 2.
  2. Fergusson, ‘Making Sense of the Melting Pot: Multiple Discourses in Youth Policy’, (2007) 7(3) Youth Justice 179.
  3. Gavrielides, ‘Restorative Justice – the perplexing concept: Conceptual fault-lines within the restorative justice movement’ (2008) 8 Criminology & Criminal Justice 2.
  4. Gelsthorpe and A. Morris, ‘Something old, something borrowed, something blue, but something new? A comment on the prospects for restorative justice under the Crime and Disorder Act 1998’, [2000] Criminal Law Review 18.
  5. Goldson, ‘The sleep of (criminological) reason: Knowledge-policy rupture and New Labour’s youth justice legacy’, (2010) 10 Criminology & Criminal Justice 1.
  6. Gosling, ‘Another look at restorative justice’, [2007] Criminal Lawyer 174.
  7. Harris ‘Reflections of a sceptical Dreamer: Some Dilemmas in Restorative Justice Theory and Practice’, (1998) 1 Contemporary Justice Review 1.

Home Office, ‘Community Safety Order: A Consultation Paper’ (Home Office, London 1997).

Home Office, ‘Getting to Grips with Crime’  (Home Office, London 1997).

Home Office, ‘No more excuses – A new approach to tackling youth crime in England and Wales’ (Cnmd 3809, 1997).

Home Office, ‘New National and Local Focus on Youth Crime: A Consultation Paper’ (Home Office, London 1997).     

  1. Johnstone, D. Larson and T. Pitts, ‘Religious Programs, Institutional adjustment and recidivism among inmates in Prison Fellowship Programs’, (1997) 14(1) Justice Quarterly 29.
  2. Jones, ‘Questioning the New Orthodoxy’, [1984] Community Care 26.
  3. Marshall, ‘The Evolution of Restorative Justice in Britain’ (1996) 4(4) European Journal on Criminal Policy Research, 27.

 

  1. Miers, ‘Situating and researching restorative justice in Great Britain’, (2004) 6(1) Punishment and Society 23.
  2. Morris, ‘Critiquing the critics: a brief response to critics of restorative justice’, [2002] British Journal of Criminology 42.
  3. Mousourakis, ‘Understanding and Implementing Restorative Justice’, (2004) 11 Tilburg Foreign Law Review 626
  4. McAra, ‘The Cultural and Institutional Dynamics of Transformation: Youth Justice in Scotland, England and Wales’, (2004) 35 Cambrian Law Review 23.
  5. McBarnet, ‘Victims in the Witness Box – Confronting Victimology’s Stereotype’, [1988] Contemporary Crises 7.
  6. McCold, ‘Towards a holistic vision of restorative juvenile justice: A reply to the maximalist model’, (2000) 3 Contemporary Justice Review 4.
  7. McEvoy, H. Mika and B. Hudson, ‘Practice, Performance and Prospects for Restorative Justice’, (2002) 42 British Journal of Criminology 469.
  8. Newbury, ‘Youth Crime: Whose Responsibility?’, (2008) 35 Journal of Law and Society 1.
  9. Pratt, ‘Corporatism: The Third Model of Juvenile Justice’, (1989) 29 British Journal of Criminology 3.
  10. Reimund, ‘The Law and Restorative Justice: Friend or Foe? A Systematic Look at Legal Issues in Restorative Justice’, (2005) 53 Drake Law Review 667.
  11. Robinson and J. Shapland, ‘Reducing Recidivism: a task for restorative justice?’, 48 British Journal of Criminology 3.
  12. Schneider, ‘What It Means to Be Sorry: The Power of an Apology in Mediation’, (2000) 17(3) Mediation Quarterly 265
  13. Shapland, A. Atkinson, H. Atkinson, E. Colledge, J. Dignan, M. Howes, J. Johnstone and G. Robinson, ‘Situating restorative justice within criminal justice’, (2006) 10(4) Theoretical Criminology 505.
  14. Smith-Cunnien and P. Parilla, ‘Restorative Justice in the Criminal Curriculum’ (2001) 12(2) Journal of Criminal Justice Education 385.
  15. Sullivan, L. Tifft and P. Cordella, ‘The Phenomenon of Restorative Justice: Some Introductory Remarks’, (1998) 1 Contemporary Justice Review 1.
  16. Wasik, ‘Reparation: sentencing and the victim’ [1999] Criminal Law Review 470.
  17. Young and B. Goold, ‘Restorative Police Cautioning in Aylesbury: From Degrading to Reintegrative Shaming Ceremonies?’ [1999] Criminal Law Review 126.
  18. Zedner, ‘Reparation and Retribution: Are They Reconcilable?’, (1994) 57 Modern Law Review 228.

[1] G. Johnstone, Restorative Justice – Ideas, Values and Debates, (William Publishing, Devon 2008) at p.10.

[2] D. Cayley, The Expanding Prison: The Crisis in Crime and Punishment and the Search for Alternatives. (Pilgrim Press, Cleveland 1998) at p.32.

[3] G. Mousourakis, ‘Understanding and Implementing Restorative Justice’, (2004) 11 Tilburg Foreign Law Review 626 at p. 626.  See also: D. McBarnet, ‘Victims in the Witness Box – Confronting Victimology’s Stereotype’, [1988] Contemporary Crises 7 at p. 300.

[4] R. Corrado, I. Cohen and C. Odgers, ‘Multi-problem violent youth: a challenge for the restorative justice paradigm’ in E. Weitekamp and H. Kerner, Restorative Justice in Context: International practice and directions, (Willan Publishing, Devon 2003) at p. 1.

[5] D. Cornwell, Criminal Punishment and Restorative Justice – Past, Present and Future Prerogatives, (Waterside Press, Winchester 2006) at p. xi

[6] J. Wilson, Thinking About Crime, (Vintage Books, London 2001) at p.233.  See also: Howard League for Penal Reform, The Pris J. Cosedine, Restorative Justice: Healing the Effects of Crime, (Ploughshares Publications, New Zealand 1995). 

[7] D. Faulker, ‘Prospects for Progress in Penal Reform’, (2007) 7(2) Criminology and Criminal Justice 135. See also: J. Croft, ‘Legitimacy and Accountability in Criminal Justice’, (2006) 10(2) Vista 109.

[8] Ibid.

[9] M. Reimund, ‘The Law and Restorative Justice: Friend or Foe? A Systematic Look at Legal Issues in Restorative Justice’, (2005) 53 Drake Law Review 667 at p.668.

[10] C. Cunneen and C. Hoyle, Debating Restorative Justice, (Hart Publishing, Oxford 2010) at p. 3.

[11] L. Mc Ara, ‘The Cultural and Institutional Dynamics of Transformation: Youth Justice in Scotland, England and Wales’, (2004) 35 Cambrian Law Review 23, at p.23.

[12] D. Garland, The Culture of Control, (Oxford University Press, Oxford 2001) at p. 27 – 28.

[13] Ibid.

[14] G. Johnstone, Restorative Justice – Ideas, Values and Debates, (William Publishing, Devon 2008) at p.10.

[15] K. McEvoy, H. Mika and B. Hudson, ‘Practice, Performance and Prospects for Restorative Justice’, (2002) 42 British Journal of Criminology 469, at p.469.

[16] K. Doolin, ‘But What Does It Mean? Seeking Definitional Clarity in Restorative Justice’ (2007) 71 Journal of Criminal Law 5, at p. 427. 

[17] J. Pratt, ‘Beyond Evangelical Criminology: The Meaning and Significance of Restorative Justice’ in I. Aersten, T. Daems and L. Roberts (eds) Institutionalizing Restorative Justice (Willan Publishing, Cullompton 2006) at p.46.

[18] Hoyle (n10) at p. 1-2.

[19] K. Daly, ‘Restorative Justice’ (2002) 4 Punishment & Society 1, at p. 57.  See also: M. Gosling, ‘Another look at restorative justice’, [2007] Criminal Lawyer 174, at p.3-4.

[20] A. Morris, ‘Critiquing the critics: a brief response to critics of restorative justice’, [2002] British Journal of Criminology 42, at p. 598.

[21] A. Ashworth, ‘Some Doubts About Restorative Justice’ in C. Hoyle (ed), Restorative Justice: Critical Concepts in Criminology, (Routledge Publishing, New York 2010) at p. 65-66.

[22] S. Smith-Cunnien and P. Parilla, ‘Restorative Justice in the Criminal Curriculum’ (2001) 12(2) Journal of Criminal Justice Education 385 at p. 385-386.

[23] T. Marshall, ‘The Evolution of Restorative Justice in Britain’ (1996) 4(4) European Journal on Criminal Policy Research, 27, 31.

[24] P Mc Cold and T. Wachtel, ‘Restorative justice theory validation’ in E Weitkemp and H Kerner (eds), Restorative Justice: Theoretical Foundations, (Willan Publishing, Devon 2002) at p. 113.  Please note also that the UN has adopted a minimum threshold definition of restorative schemes to include ‘a process whereby all the parties with a stake in a particular offence come together to resolve collectively how to deal with the aftermath of the offence and its implications’.  UNESC  ‘Restorative Justice: report of the Secretary-General’ (2002) UN Doc E/CN 15/2002/5/Add.1.

[25] K. Daly and R. Immarigeon, ‘The Past, Present and Future of Restorative Justice: Some Critical Reflections’, (1998) 1 Contemporary Justice Review 1, at p.21.

[26] Ibid.

[27] Doolin (n16) at p. 430.

[28] G. Bazemore and L. Walgrave, 'Restorative Juvenile Justice: In Search of Fundamentals and an Outline for Systemic Reform' in G. Bazemore and L. Walgrave (eds), Restorative Juvenile Justice: Repairing the Harm of Youth Crime, (Criminal Justice Press, New York, 1999) at p. 55.

[29] Ibid.

[30] Doolin (n16) at p. 435.

[31] Ibid at p.428.

[32] Ibid.

[33] T. Gavrielides, ‘Restorative Justice – the perplexing concept: Conceptual fault-lines within the restorative justice movement’ (2008) 8 Criminology & Criminal Justice 2, at p. 166.

[34] K. Harris ‘Reflections of a sceptical Dreamer: Some Dilemmas in Restorative Justice Theory and Practice’, (1998) 1 Contemporary Justice Review 1.  See also: D. Sullivan, L. Tifft and P. Cordella, ‘The Phenomenon of Restorative Justice: Some Introductory Remarks’, (1998) 1 Contemporary Justice Review 1.

[35] T. Marshall, Restorative Justice, (Home Office, London 1999) at p. 5.

[36] Doolin (n16) at p. 429.

[37] G. Robinson and J. Shapland, ‘Reducing Recidivism: a task for restorative justice?’, 48 British Journal of Criminology 3, at p.340.

[38] A. Crawford, ‘The state, community and restorative justice: heresy, nostalgia and butterfly collecting’ in L. Walgrave, Restorative Justice and the Law, (Willan Publishing, Devon 2002) at p.101 – 105.

[39] A. Eglash, ‘Beyond Restitution: Creative Restitution’ in J. Hudson and B. Galaway (eds) Restitution in Criminal Justice (DC Health & Company, Lexington 1977).

[40] Gavrielides (n33) at p. 167.

[41] L. Zedner, ‘Reparation and Retribution: Are They Reconcilable?’, (1994) 57 Modern Law Review 228, at p.231.

[42] Ibid.

[43] R. Barrnett, ‘Restitution:  A New Paradigm of Criminal Justice’, (1977) 87 International Journal of Social, Political and Legal Philosophy 4, at p. 300.

[44] H. Zehr, Changing Lenses: A New Focus for Crime and Justice, (Hearld Press, Waterloo 1990).

[45] Ibid, at p. 181.

[46] Ibid.

[47] R. Barnett, ‘Restitution: A New Paradigm of Criminal Justice’, [1977] Ethics 87 at p. 285 – 287.

[48] Gavrielides (n33) at p. 167.

[49] For example, where Cantor argued in favour of full substitution of civil law for criminal law in: G. Canter ‘An End to Crime and Punishment’, (1976) 39 The Shringle, Philadelphia Bar Association 4.

[50] J. Braithwaite, Crime, Shame and Reintegration, (Cambridge University Press, Cambridge 1997).

[51] Ibid, at p. 90.

[52] M. Wright, Justice for Victims and Offenders (Sage, London 1991).

[53] J. Braithwaite ‘Principles of Restorative Justice’ in A. von Hirsch, J. Roberts, A. Bottoms, K. Roach and M. Schiff (eds) Restorative Justice and Criminal Justice: Competing or Reconcilable Paradigms? (Hart Publishing, Oxford 2003) at pp. 1-20.

[54] G. Davis, Making Amends: Mediation and Reparation in Criminal Justice (Routledge, London 1992) at p. 200 – 205.

[55] Ibid at p. 201.

[56] A. Ashworth, ‘Some Doubts about Restorative Justice’, (1993) 4 Criminal Law Forum 2.

[57] J. Dignan, ‘Restorative Justice and the Law: The Case for an Integrated Systematic approach’ in L. Walgrave (ed) Restorative Justice and the Law (Willan Publications, Cullompton 2002).

[58] Ibid, at p.172.

[59] Gavrielides (n33) at p. 173.

[60] A. Newbury, ‘Youth Crime: Whose Responsibility?’, (2008) 35 Journal of Law and Society 1 at p.133.

[61] Doolin (n16) at p.428.   A. Crawford. ‘International Trends in Restorative Justice – Situating restorative justice in crime control and prevention’, [2007] Acta Juridica 1 at p.1.

[62] G. Bazemore and L. Walgrave, 'Restorative Juvenile Justice: In Search of Fundamentals and an Outline for Systemic Reform' in Bazemore and Walgrave (n28) at p. 48.

[63] Gavrielides (n33) at p. 174.

[64] Ibid.

[65] P. McCold, ‘Towards a holistic vision of restorative juvenile justice: A reply to the maximalist model’, (2000) 3 Contemporary Justice Review 4 at p. 401.

[66] Ibid.

[67] Zedner (n41) at p. 247 – 250.

[68] Ibid at p. 239 – 244.

[69] Hoyle (n10) at p.6.

[70] D. Van Ness and K. Strong, Restoring Justice – An Introduction to Restorative Justice (Lexis Nexis Publishing, New York 2010) at p. 1-2.

[71] M. Umbreit, The Handbook of Victim Offender Mediation (Jossey-Bass Inc Publishers, San Franciso) at p. xxvii.  See also:  Braithwaite (n48) at p.1.

[72] K. Pranis, ‘Restorative Values’ in G. Johnstone and D. Van Ness, Handbook of Restorative Justice, (Willan Publishing, Devon 2007) at 59.

[73] A. Ashworth, ‘Responsibilities, Rights and Restorative Justice’, [2002] British Journal of Criminology 42.

[74] D. Van Ness, ‘Legal Issues of Restorative Justice’, in Bazemore and Walgrave (n26) at p. 263-264.

[75] Johnstone (n14) at p.11.

[76] Ibid.

[77] D. Van Ness, ‘The shape of things to come: a framework for thinking about a restorative justice system’ in E. Weitekamp and H. Kerner, Restorative Justice: Theoretical foundations, (Willan Publishing, Devon 2002) at p. 3-6.

[78] Hudson, B. (2003) ‘Victims and offenders’,  von Hirsch et al (n 47) at p.178.

[79] Van Ness (n74), at p.3.

[80] D. Roche,  Accountability in Restorative Justice (Oxford University Press, Oxford 2003) at p. 105 – 106.

[81]J. Braithwaite, and P. Pettit, ‘Republicanism and restorative justice: An explanatory and normative  connection’, in H. Strang and J. Braithwaite (eds), Restorative Justice: Philosophy to Practice, (Darmouth Publishing, Aldershot 2000).

[82] D. Miers, ‘Situating and researching restorative justice in Great Britain’, (2004) 6(1) Punishment and Society 23 at p. 24.  Morris (n20) and H. Strang, Repair or revenge: Victims and restorative justice. (Oxford University Press, Oxford 2002).

[83] Van Ness (n74), at p.4.

[84] C. Schneider, ‘What It Means to Be Sorry: The Power of an Apology in Mediation’, (2000) 17(3) Mediation Quarterly 265 at p. 269.

[85] Ibid, at p.4.

[86] B. Johnstone, D. Larson and T. Pitts, ‘Religious Programs, Institutional adjustment and recidivism among inmates in Prison Fellowship Programs’, (1997) 14(1) Justice Quarterly 29.

[87] Van Ness (n74) at p.5.

[88] Council of Europe, ‘Mediation in Penal Matters’, Recommendation R(99), adopted 15 September 1999.  See also:  European Union, Council Framework Decision 2001/220/JHA of 15 March 2001 on the Standing of Victims in Criminal Proceedings, (EU, Brussels 2001).

[89] J. Shapland, A. Atkinson, H. Atkinson, E. Colledge, J. Dignan, M. Howes, J. Johnstone and G. Robinson, ‘Situating restorative justice within criminal justice’, (2006) 10(4) Theoretical Criminology 505, at p. 506-507.

[90] Ibid, at p. 508.

[91] Doolin (n16) at p. 429.

[92] Ibid.

[93] A. Sanders, ‘Victim participation in an exclusionary criminal justice system’, in C. Hoyle and R. Young (eds) New visions of crime victims, (Oxford: Hart 2002).

[94] J. Doak, Victim Rights, Human Rights and Criminal Justice: reconceiving the role of third parties, (Hart Publishing, Oxford 2008) at p. 254 – 258. 

[95] Hoyle (n10) at p. 42.

[96] M. Wright, ‘Victim-Offender Mediation as a Step Towards a Restorative  System of Justice’ in H. Messmer and H. Otto (eds), Restorative Justice on Trial, (Kluwer Academic Publications, The Netherlands 1992) at p.535.

[97] Morris (n20) at p. 601.

[98] Daly (n19) at p. 65.

[99] Van Ness and Strong (n70) at p. 159.

[100] A. Morris and W. Young, ‘Reforming Criminal Justice: The Potential of Restorative Justice’ in H. Strang and J. Braithwaite (eds), Restorative Justice: Philosophy to Practice, (Darmouth Publishing, Aldershot 2000) at p.11.

[101] Cunneen (n10) at p.118 -119.

[102] Van Ness (n70) at p. 60.

[103] Ibid, at p. 161.

[104] Ibid, at p. 162.

[105] H. Zehr and B. Toews, Critical Issue in Restorative Justice, (Lynne Publishers,  Boulder 2004) at p. 10 – 11.

[106] R.  Duff, ‘Restorative Punishment and Punitive Restoration’ in L. Walgrave (ed), Restorative Justice and the Law (William Publication, Cullompton 2002) at p. 82.

[107] Hoyle (n10) at p. 42.

[108] Ibid.

[109] Faulker (n7) at p .144.

[110] B. Hudson, ‘Restorative Justice and Gendered Violence – Diversion or Effective Justice?’, [2002] British Journal of Criminology 42 at p. 625.

[111] B. Goldson, ‘The sleep of (criminological) reason: Knowledge-policy rupture and New Labour’s youth justice legacy’, (2010) 10 Criminology & Criminal Justice 1 at p. 155.

[112] J. Straw, ‘Preface’ in Home Office, No More Excuses: A New Approach to Tackling Youth Crime in England and Wales, (Home Office, London 1997) at p. 1.

[113] A. Crawford and T. Newburn, Youth offending and restorative justice, (Willan Publishing, Devon 2003) at p.6.

[114] T. Newburn, Crime & Criminal Justice Policy (Pearson Education, London 2003) at p.188 – 190.

[115] A. Morris and H. Giller, Understanding Juvenile Justice, (Croom Helm, Beckenham 1987) at p. 48.

[116] M. Rutter and H. Giller, Juvenile Deliquency: Trends and Perspectives, (Penguin Books, Harmondsworth, 1983).

[117] M. Cavadino and J. Dignan, The Penal System: An Introduction, (Sage, London 1992) at p.69.

[118] J. Pratt, ‘Corporatism: The Third Model of Juvenile Justice’, (1989) 29 British Journal of Criminology 3, at p 239.

[119] R. Jones, ‘Questioning the New Orthodoxy’, [1984] Community Care 26, at p. 28.

[120] Pratt (n118) at p. 241.

[121] A. Bottoms, ‘The Philosophy and Politics of Punishment and Sentencing’ in C. Clarkeson and R. Morgan (eds) The Politics of Sentencing Reform (Oxford University Press, Oxford 1995) at p.21.

[122] D. Downes and R. Morgan, ‘Dumping the hostages to fortune? The politics of law and order in post-war Britain’, in M. Maguire, R. Morgan and R. Reiner (eds), The Oxford Handbook of Criminology (Clarendon Press, Oxford 2002).

[123] I. Brownlee, ‘New Labour – New Penology? Punitive Rhetoric and the Limits of Managerialism in the Criminal Justice Policy’, (1998) 25(3) Journal of Law and Society 313 at p. 313 -314.

[124] Ibid.

[125] Ibid, at p. 316.

[126] L. Gelsthorpe and A. Morris, ‘Something old, something borrowed, something blue, but something new? A comment on the prospects for restorative justice under the Crime and Disorder Act 1998’., [2000] Criminal Law Review 18 at p 19.

[127] R. Earle and T. Newburn, ‘Creative Tensions? Young Offenders, Restorative Justice and the Introduction of Referral Orders’ (2002) 1 Youth Justice 3, at p.3.

[128] C. Ball, ‘Youth Justice? Half a century of responses to youth offending’ [2004] Criminal Law Review 167, at p.168.

[129] G. Pearson, Hooligans: A History of Respectable Fears (MacMillian Publishing, Basingstoke 1983).

[130] Newburn (n114) at p. 201 – 203.

[131] L. Gelsthorpe and A. Morris, ‘Something old, something borrowed, something blue, but something new? A comment on the prospects for restorative justice under the Crime and Disorder Act 1998’, [2000] Criminal Law Review 18 at p.18.

[132] B. Goldsmith, The New Youth Justice, (Russell House Publishing, Lyme Regis 2000).

[133] Cabinet Office, ‘Modernising Government’, White Paper, (The Cabinet Office, London 1999).

[134] I. Brownlee, ‘New Labour – New Penology? Punitive Rhetoric and the Limits of Managerialism in Criminal Justice Policy’ (1998) 25 Journal of Law and Society 3, at p.314.

[135] Ibid, at p. 315.

[136] S. Savage and M. Nash, ‘Law and Order under Blair’ in S. Savage and R. Atkinson (eds) Public Policy Under Blair (Palgrave, Basingstoke 2001), at p.105.

[137] B. Goldson, The New Youth Justice System (Russell House Publishing, Lyme Regis 2000) at p. 15 -25.

[138] Goldson (n111) at p 156.

[139] Earle and Newburn (n127) at p. 4.

[140] R. Young and B. Goold, ‘Restorative youth cautioning in Aylesbury – from degrading to reintegrative shaming ceremonies?’, [1999] Criminal Law Review 126.

[141] Newburn (n114) at p. 216.

[142] Home Office (n112) at p. 5.

[143] J. Pitts, ‘The New Correctionalism: Young People, Youth Justice and New Labour’ in R. Mathews and J. Pitts (eds), Crime, Disorder and Community Safety, (Routledge, London 2001) at p.171.

[144] Ibid.

[145] Young and Goold, ‘(n140) at p. 135.

[146] Gelsthorpe and Morris (n126) at p.18.

[147] M. Wasik, ‘Reparation: sentencing and the victim’ [1999] Criminal Law Review 470, at p .472.

[148] A. Crawford and T. Newburn, ‘Recent Developments in Restorative Justice For Young People in England and Wales – Community Participation and Representation’, (2002) 42 British Journal of Criminology 476, at p.478.

[149] J. Dignan and P. Marsh, ‘Restorative Justice and Family Group Conferences in England’ in A. Morris and G. Maxwell (eds), Restorative Justice for Juveniles (Hart Publishing, Oxford 2001) at p.99.

[150] Crawford and Newburn (n 148) at p.12.

[151] Ibid, at p. 14.

[152] S. Field, ‘Early Intervention and the ‘new’ youth justice: a study of initial decision making’, (2008) 3 Criminal Law Review 177 at p.189.

[153] Ibid.

[154] Ibid.

[155] Goldson (n111) at p. 167.

[156] R. Fergusson, ‘Making Sense of the Melting Pot: Multiple Discourses in Youth Policy’, (2007) 7(3) Youth Justice 179 at p. 179 – 180.

[157] Ibid, at p. 182.

[158] M. Zernova, Restorative Justice: Ideals and Realities, (Ashgate Publishing, Aldershot 2007) at p. 59.

[159] Ibid, at p. 102.

[160] Ibid.

[161] Ibid.

[162] D. Faulker, ‘Prospects for Progress in Penal Reform’, (2007) 10 Criminology & Criminal Justice 2.  See also: J. Croft, ‘Legitimacy and Accountability in Criminal Justice’, (2006) 10 VISTA 2.

[163] Crawford and T. Newburn (n 148) at p.19.

[164] J. Briathwaite, ‘Restorative Justice’ in M. Tonry (ed), Handbook of Crime and Punishment, (Oxford University Press, New York) at p.324.

[165] P. McCold and B. Watchel, Restorative Policing Experiment, (Community Service Foundation, Pippersville 1998).  See also: G. Maxwell, A. Morris and T. Anderson, Community Panel Adult Pre-Trial Diversion: Supplementary Evaluation, (Crime Prevention Unit Department of Prime Minister and Cabinet and Institute of Criminology, Wellington 1999).

[166] J. Dignan, ‘The Crime and Disorder Act and the Prospects for Restorative Justice’, [1999] Criminal Law Review, 48 at p. 58.

[167] G. Bazemore and M. Schiff, Restorative Justice. Repairing Harm and Transforming Communities, Anderson Publishing, Cincinnati, 2001).

[168] F. McElrea, ‘Restorative Justice – A New Zealand Perspective’ in D. Cornwell, Criminal Law and Restorative Punishment – Past, Present and Future, (Waterside Press, Winchester 2006) at p. 119.

[169] J. Cosedine, Restorative Justice: Healing the Effects of Crime, (Ploughshares Publications, New Zealand 1995). 

[170] A. Morris and G. Maxwell, ‘Restorative Justice in New Zealand’, in A. von Hirsch, J. Roberts, A. Bottoms, K. Roach and M. Schiff (eds) Restorative Justice and Criminal Justice: Competing or Reconcilable Paradigms? (Hart Publishing, Oxford 2003) at pp. 257.

[171] Ibid, at p. 120.

[172] G. Maxwell and A. Morris, Families, Victims and Culture: Youth Justice in New Zealand (Social Policy Agency and Institute of Criminology, Wellington 1993).  G. Maxell, A. Morris and T. Anderson, Community Panel Adult Pre-Trial Diversion: Supplementary evaluation, (Crime Prevention Unit Department of Prime Minister and Cabinet and Institute of Criminology Victoria University, Wellington 1999).

[173] Morris and Maxwell Ibid at p. 110.

[174]H. Strang, G. Barnes, J. Braithwaite and L. Sherman, Experiments in Restorative Policing: A Progress Report on the Canberra Reintegrative Shaming Experiments, (Australian Federal Police and Australian National University, Canberra 1999).

[175] Morris and Maxwell (n172) at p. 118.

[176] Maxwell (n170) at p.30.

[177] Morris and Maxwell (n172) at p. 269.

[178] Ibid.

[179] J. Roberts and K. Roach, ‘Restorative Justice in Canada: From Sentencing Circles to Sentencing Principles’ in Von Hirsch (n170) at p. 237.

[180] R. Cormier, ‘Where There’s a Will There’s a Way: A Canadian Perspective on Restorative Justice’ in Cornwell (n168) at p.152.

[181] Ibid at p.150.

[182] Ibid at p. 153.

[183] Ibid, at p 239.  See:  T. Dittenhoffer and R. Ericson, ‘The Victim-Offender Reconciliation Program: A Message to Correctional Reformers’ (1983) 33 University of Toronto Law Journal 315.

[184] Ibid at p.320

[185] Ibid.

[186] R. Cormier, Restorative Justice: Directions and Principles – Developments in Canada, (Solicitor-General Canada, Ottawa 2002) at p. 6.

[187] D. Van Ness, ‘North America’ in in G. Johnstone and D. Van Ness, Handbook of Restorative Justice, (Willan Publishing, Devon 2007) at 510.

[188] Ibid.

[189] M. Zernova, Restorative Justice: Ideals and Realities, (Ashgate Publishing, Aldershot 2007) at p. 16.

[190] S. Charbonneau, ‘The Canadian Youth Criminal Justice Act 2003: a step forward for advocates of restorative justice?’ in E. Elliott and R. Gordon, New Directions in Restorative Justice – Issues, Practice, Evaluation, (Willan Publishing, Devon 2005) at p.83.

[191] Ibid, at p.85.

[192] D. Cornwell, Criminal Law and Restorative Punishment – Past, Present and Future, (Waterside Press, Winchester 2006) at p. 108.

[193] Ibid.

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