The Sustainability of Restorative Justice 9781783507542, 9781783507535

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THE SUSTAINABILITY OF RESTORATIVE JUSTICE

ADVANCES IN SUSTAINABILITY AND ENVIRONMENTAL JUSTICE Previously ADVANCES IN ECOPOLITICS Series Editor: Liam Leonard PUBLISHED UNDER SERIES TITLE ‘ADVANCES IN ECOPOLITICS’ Sustainable Justice and the Community Volume 6 Edited by Liam Leonard and Paula Kenny Community Campaigns for Sustainable Living: Health, Waste & Protest in Civil Society Volume 7 Edited by Liam Leonard Sustainable Politics and the Crisis of the Peripheries: Ireland and Greece Volume 8 Edited by Liam Leonard and Iosif Botetzagias Enterprising Communities: Grassroots Sustainability Innovations Volume 9 Edited by Anna Davies Transnational Migration, Gender and Rights Volume 10 Volume Editor: Ragnhild Sollund Series Editor: Liam Leonard PUBLISHED UNDER SERIES TITLE ‘ADVANCES IN SUSTAINABILITY AND ENVIRONMENTAL JUSTICE’ International Business, Sustainability and Corporate Social Responsibility Volume 11 Edited by Maria Alejandra Gonzalez-Perez and Liam Leonard Principles and Strategies to Balance Ethical, Social and Environmental Concerns with Corporate Requirements Volume 12 Edited by Liam Leonard and Maria Alejandra Gonzalez-Perez Environmental Philosophy: The Art of Life in a World of Limits Volume 13 Edited by Liam Leonard, John Barry, Marius De Geus, Peter Doran and Graham Parkes

ADVANCES IN SUSTAINABILITY AND ENVIRONMENTAL JUSTICE VOLUME 14

THE SUSTAINABILITY OF RESTORATIVE JUSTICE PAULA KENNY School of Business and Humanities, Institute of Technology, Sligo, Republic of Ireland

LIAM LEONARD School of Business and Humanities, Institute of Technology, Sligo, Republic of Ireland

United Kingdom North America India Malaysia China

Japan

Emerald Group Publishing Limited Howard House, Wagon Lane, Bingley BD16 1WA, UK First edition 2014 Copyright r 2014 Emerald Group Publishing Limited Reprints and permission service Contact: [email protected] No part of this book may be reproduced, stored in a retrieval system, transmitted in any form or by any means electronic, mechanical, photocopying, recording or otherwise without either the prior written permission of the publisher or a licence permitting restricted copying issued in the UK by The Copyright Licensing Agency and in the USA by The Copyright Clearance Center. Any opinions expressed in the chapters are those of the authors. Whilst Emerald makes every effort to ensure the quality and accuracy of its content, Emerald makes no representation implied or otherwise, as to the chapters’ suitability and application and disclaims any warranties, express or implied, to their use. British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library ISBN: 978-1-78350-753-5 ISSN: 2051-5030 (Series)

ISOQAR certified Management System, awarded to Emerald for adherence to Environmental standard ISO 14001:2004. Certificate Number 1985 ISO 14001

CONTENTS ACKNOWLEDGEMENTS

vii

PREFACE

ix

CHAPTER 1 INTRODUCTION

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CHAPTER 2 THEORIES OF REGULATION AND SOCIAL CONTROL

19

CHAPTER 3 RESTORATIVE JUSTICE: PHILOSOPHY, THEORY AND PRACTICE

43

CHAPTER 4 YOUTH JUSTICE IN THE REPUBLIC OF IRELAND

67

CHAPTER 5 RESTORATIVE JUSTICE IN PRACTICE: THE IRISH CASE

85

CHAPTER 6 RESTORATIVE JUSTICE IN PRACTICE

105

CHAPTER 7 RESTORATIVE PROCESS AND CASE STUDIES IN RESTORATIVE CONFERENCING

149

CHAPTER 8 DISCUSSION AND RECOMMENDATIONS 201 ABBREVIATIONS

233

REFERENCES

235

ABOUT THE AUTHORS

249

SUBJECT INDEX

251 v

ACKNOWLEDGEMENTS The authors wish to thank An Garda Sı´ ocha´na, in particular the National Juvenile Office, the Garda Research Unit and the Garda College Templemore, as well as family and friends for their support.

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PREFACE This book examines restorative justice in the Republic of Ireland. It does so in three main areas: theory, policy and practice. This provides the framework to address the salient question which is How does restorative conferencing for young offenders facilitate an exchange process whereby forms of reparation and social regulation may be achieved? The book outlines the historical background to restorative justice from first the British and then the Irish perspective. It should be understood from the outset that at the time this research was conducted the restorative justice conferencing events observed were the only one of their type in operation in the Republic of Ireland. Unlike England and Wales and other parts of the world restorative justice came late to criminal justice in Ireland. This book provides an insight into the first introduction of restorative justice to the criminal justice system in the Republic of Ireland. The book then applies these understandings to six case studies of restorative conferencing events that were observed by the researcher in the Greater Dublin Region. From this a wider understanding of restorative justice theory, philosophies, practices and policies is achieved. The book addresses its main research question through this analysis and provides a fuller understanding of the significance of combining restorative philosophies and practices to actual restorative conferencing events. The researcher personally sees restorative justice as an opportunity to achieve a fairer and more satisfactory criminal justice system for all members of society. Restorative justice principles are making slow but steady progress in Ireland. There is a growing acknowledgement among professionals and academics that we need to develop other responses to crime. The restorative justice ‘process’ has much to offer and the researcher believes that this concept particularly as it centres on the greater use of non custodial sentences will bring about changes not only in the law but will have significant implications for social regulation.

ix

CHAPTER 1 INTRODUCTION

This book examines concepts of restorative justice within the areas of theory, policy and practice. In so doing, this book highlights the importance of each element within an overall understanding of the potential of restorative justice as a sustainable form of justice. However, this book mainly focuses on providing an understanding of the benefits of restorative conferencing for young offenders, social regulation, reducing fear of crime, restoring communities and as a framework for understanding similar schemes for the future in the criminal justice system. This chapter introduces the key concepts of the book, restorative justice and youth justice, and examines and explores their relevance in contemporary society. The potential contribution of the book is outlined, stressing the importance of restorative justice as an alternative to purely punitive measures in modern life. The book then applies these themes to the various functionalist elements within society, such as the individual, the family, the group and the community. The aims and objectives of this study and how they are addressed are outlined in this chapter. The chapter provides an overview of restorative justice in the context of youth justice and children’s rights. In addition, this book introduces an understanding of sustainable restorative justice as a bridging element between civil society and the state. Finally, the chapter outlines the structure of the book and provides an understanding of the key elements explored both in the field and through the relevant literature surrounding the substantive subject of restorative justice in society.

1.1. AIMS AND OBJECTIVES Taking into account the evolution of youth justice in conjunction with recent youth justice policy responses by the state sector including the 1

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THE SUSTAINABILITY OF RESTORATIVE JUSTICE

adoption of restorative justice as a response to children, young people and crime, a number of key issues have been identified for the purpose of conducting this research. These issues are addressed in the form of approaches which stem from varied areas, including from the researcher’s personal experience, observations of restorative conferencing events, theoretical perspectives, research literature, contemporary debates, recent youth justice reform internationally and more broadly the social problem posed by youth offending. Informed by these issues, debates and experiences, the study seeks to produce findings to the following salient question: How does restorative conferencing for young offenders facilitate an exchange process whereby forms of reparation and social regulation may be achieved?

The following aims and objectives allow the researcher to address the research question and to develop a framework of functionalist exchange by which further understandings of the processes of reparation and social regulation can be provided: • Examine and explore policy developments in the areas of restorative justice and responses to youth offending. • Examine and explore theoretical ideas, models, issues and debates within the field of restorative justice and youth offending. • Examine and explore practice and practical developments both nationally and internationally in the areas of restorative practices and restorative justice training and initiatives. • Utilise a case study methodological approach to observe and document the processes, which take place during restorative conferencing events. • Explore the evolution of responses to youth offending and the introduction of restorative principles and practices. • Produce findings, which provide an understanding of the virtues of restorative conferencing by explaining the process of exchange that takes place during the events. This framework is also devised from the researcher’s observations and use of participant observation and case study methodologies of the six case studies, which are discussed and outlined in Chapter 7. The methodology employed to achieve this is a case study methodology, which is introduced and outlined later in this chapter. A critical analysis based on theory, policy and practice is derived from this case study methodology. Details of the six cases studies are included in

Introduction

3

Chapter 7 in their entirety to demonstrate the fullest extent of the roles and functions of conference participants. This allows the book to offer new insights on restorative justice through six cases studies of restorative conferencing events. Practitioner, policy and theory perspectives are combined to demonstrate the importance of functions and roles within restorative conferencing. This book is intended to provide an understanding of restorative conferencing for researchers, academics, practitioners and policy makers. Thereby, making a contribution to wider academic understandings of restorative justice.

1.2. DEFINING RESTORATIVE JUSTICE IN THEORY, PRACTICE The main argument made by advocates of restorative justice is that sentences should move away from punishment of the offender towards restitution and reparation, aimed at restoring the harm done to the victim and to the community. Restorative justice is not a new idea in criminology or in crime control; most traditional systems of justice in continents such as Africa and Asia have been based on restorative justice (Maguire, Morgan, & Reiner, 1997). Celtic, Aboriginal and Native American forms of justice are just three examples of systems that operate on the basis of restoration and reparation. Unlike modern societies, traditional forms of justice were inextricably linked to the religious and cultural make-up of the people whose lives criminal behaviour affects. The philosophy of restorative justice embraces a wide range of human attributes including healing, compassion, forgiveness, mercy, mediation, reconciliation and, where appropriate, sanctions (Consedine, 1995). In contemporary society, justice has become the presence of state and supra-state agencies. The United Nations defines restorative justice as follows: Restorative Justice is an alternative measure in the criminal justice system that is not punitive in nature but rather seeks to render justice to victims and offenders alike, instead of tilting the balance heavily in favour of one of the other stakeholders to the disadvantage of another. It seeks to re-establish social relationships that are the end

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THE SUSTAINABILITY OF RESTORATIVE JUSTICE point of restorative justice and seeks to address the wrongs in the doing and the suffering of a wrong that is also the goal of corrective justice. (2002, p. 3)

The Friends World Committee for Consultation provides the following definition: Restorative Justice seeks to balance the concerns of the victim and the community with the need to reintegrate the offender into society. It seeks to assist the recovery of the victim and to enable all parties with a stake in the justice process to participate fruitfully in it (United Nations, 2002, p. 3). The concept of restorative justice dates back over centuries. It is recognised worldwide as having potential benefits for all those affected by crime. Restorative justice seeks to repair the harm done to the victim by an offender. It concentrates on the harm done and who has been affected by the harm. The victim gets an opportunity to express to the offender how he/she has been affected by the offender’s behaviour (Graef, 2001). It allows the offender to realise how his/her behaviour has affected the victim and the community. It gives the offender an opportunity to take responsibility for his/her actions (Graef, 2001). Although a universal definition of restorative justice remains elusive, the most frequently quoted definition is provided by Tony Marshall, who sees it as A process whereby all 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 (1996, p. 37). An alternative definition is provided by Paul McCold and Ted Watchel, who describe restorative justice as a process where those primarily affected by an incident of wrong-doing come together to share their feelings, describe how they were affected and develop a plan to repair the harm done or prevent reoccurrence (2002, p. 113). In the Republic of Ireland understandings of the process of restorative justice is defined by An Garda Sı´ ocha´na: Restorative Justice seeks to balance the legitimate concerns of the victim, the community, and the need to reintegrate the offender into society. The Restorative Justice process does not concern itself with judging or blaming. Restorative Justice is not a judicial process. (Garda Restorative Justice Information Leaflet, 2001b) Restorative Justice is a process whereby the victim of a crime and the young person responsible for it, provided they are freely present, are enabled to participate actively in resolution of matters arising from the crime. Restorative Justice takes place with the help of an impartial third party. (Garda Restorative Justice Information Leaflet, 2001b)

A more detailed set of definitions and discussion can be found in Sections 3.1, 3.3 and 3.4. Subsequent developments in restorative justice are dealt with in Chapter 8.

Introduction

5

1.3. RESTORATIVE JUSTICE AND YOUTH JUSTICE: RECENT DEVELOPMENTS IN THE REPUBLIC OF IRELAND This section provides a detailed profile of the parameters of the youth justice system in the Republic of Ireland. In addition an understanding of the paucity of literature in the Irish case is also provided. This gives the reader an understanding of the context of the difficulties facing the researcher at the outset of this study. Since the early 1990s, the Irish State has been subject to repeated criticism for failing to provide adequate responses to youth offending and for being archaic and out of tune with contemporary developments in youth justice policy (O’Mahony, 2000; O’Sullivan, 1996; Quinn, 2002). Despite a plethora of committees and reports that set out specific recommendations for the reform of child care and youth justice policy from the 1970s onwards (Kennedy Report, 1970; Task Force on Child Care Services, 1980; Whittaker Report, 1985), there has been little or no response from the Irish State until relatively recently (Kilkelly, 2006a; Seymour, 2004; Walsh, 2005). Unlike England and Wales, the impetus for reform only gained momentum in the mid-1990s, when a government select committee entitled Juvenile Crime Its Causes and Its Remedies (1992) made specific recommendations for the development of a framework for youth justice reform. The ‘Children Bill’ (1996) reflects this framework and subsequent reforms to policy that came to be enshrined in the Children Act 2001. It is the intention of the state that the Act, will, when fully implemented, update Irish youth justice policy by replacing the Children Act 1908, and in doing so, bring Ireland into line with international youth justice standards (Kilkelly, 2006a; Walsh, 2005). The study is motivated by the severe lack of readily available research on the Irish youth justice system and the development of youth justice policy. Unlike England and Wales, Ireland has a very poor record in regard to researching and evaluating the circumstances surrounding youth crime. This situation has severely hampered attempts to bring about change in the Irish juvenile justice system. The lack of published material has led to limited debate about the issues, influences and direction of the system. This in turn has significantly contributed to the lack of political interest and desire to reform the system (Mulcahy, 2007; O’Donnell, 2008; Seymour, 2004). At present, there is no centralised system of data collection in the area and according to Walsh (2005), it would not be an exaggeration to

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THE SUSTAINABILITY OF RESTORATIVE JUSTICE

conclude that Irish criminal justice statistics are in a bit of a mess. Statistics available have been criticised as outdated, partial, limited, non-integrated and poorly explained (O’Dwyer, 2002, p. 182). The absence of verifiable data not only impedes research but also makes the development and implementation of policy extremely and unnecessarily arduous. The lack of available research has resulted in any policy being developed in a ‘research vacuum’ (O’Sullivan, 1996, p. 5). Today, the only data available on youth offending patterns and behaviour are compiled by An Garda Sı´ocha´na (Irish Police Force), which in itself is problematic, as it does not provide a detailed breakdown of the total number of convictions or the demographics of youth offenders. Data on prisons and places of detention are inconsistent and cease to exist after 1994 (McCullagh, 1996; Tovey & Share, 2003; Walsh, 2005). In contrast, research produced in England and Wales by the Home Office has indicated that there are a number of key factors that impact and increase the risk of a youth offending. The limited data that exist in Ireland suggests that young people have much in common with their English and Welsh counterparts. Ireland ratified the United Nations (UN) Convention on the Rights of the Child in 1992. This was later criticised by the UN committee, who expressed concern regarding the treatment of children deprived of their liberty in light of the principles of the UN Convention and other international standards (Children’s Rights Alliance, 1998).1 This international pressure alongside calls from independent civil society, non-governmental organisations, lobby groups and members of the academic community played a major role in forcing the state to take action and deal with decades of youth justice neglect. Furthermore, in a country like Ireland, with a population of just 4.5 million according to Central Statistics Office (2006), extensive media reporting and coverage of certain isolated but serious events involving youthful offending often serve to swing the political pendulum towards reactionary punitiveness rather than strategic crime prevention in order to calm public concern about crime (Seymour, 2004).2 Over the past decade, there has been a significant change in focus, which has gradually shifted towards considering children’s rights, with developments in the National Children’s Strategy (2000), the creation of a Junior Ministry with special responsibility for children (2002), the appointment of an Ombudsman for Children (2003) and the establishment of National Children’s Office (2005). The ministry uniquely encompasses the Departments of Health, Education and Justice and has enabled/necessitated

Introduction

7

inter-departmental co-operation. These incentives have served to elevate the status and profile of preventative work with children and their families and are hoped to augment the possibilities for positive developments for the future (Quinn, 2002). However, while recent developments in the area of youth justice are encouraging and long overdue, there still are major gaps in the programme for reform. The Children Act 2001 has only partly been enacted. Change at governmental level and the establishment of a designated Irish Youth Justice Service (IYJS) in 2006 have not achieved sufficient results, which would improve the plight of young people who are in conflict with the law. The service is intended to bring together services for young offenders under one governance and management structure (Youth Justice Review, 2005). The review (which received submissions from a wide spectrum) was the first extensive official enquiry into the operation of the youth justice system in Ireland. While it was noted by the committee that it would sit most comfortably within a care and social services environment, reflecting on practices in other countries, the fact that no existing social service structure seems appropriate for the incorporation of a youth care and justice service at this time persuaded it to recommend placing the body as an executive office of the Department of Justice, Equality and Law Reform (DJELR) on an interim basis. The objectives of the office, whose position is to be reviewed in five years, includes the development of a single unified youth justice policy, implementation of youth justice strategies, assumption of responsibility for detention orders for all offenders under 18 years of age, implementation of the provisions of the Children Act 2001 in relation to community sanctions, restorative justice conferencing and diversion and finally co-ordination of service delivery at national and local level (Youth Justice Review, 2005). The recommendations for reform and the establishment of the Youth Justice Service (YJS) have the potential to radically reform and overhaul the youth justice system as well as successfully oversee the implementation of the Children Act 2001. It can be said that the YJS has a greater potential than the Act to bring about reform as it can directly impact the operation and administration of youth justice (Kilkelly, 2006a, 2006b, 2007). However, the bilocation of the service in the DJELR causes unnecessary confusion. Despite a commitment to bring about change, there appears to be a lack of clarity as to how it is going to be achieved.

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THE SUSTAINABILITY OF RESTORATIVE JUSTICE

Youth justice in Ireland according to the Director of the service3 is at a ‘crossroads … in a sense we have begun on a new path … leaving behind an old 1908 Act which got us here … all of the disparate responsibilities are being gathered under our banner’ (Shannon, 2006). On the challenges of bringing about change, the Director of the IYJS believes ‘(that) our task is a little bit of a paradox (as) we have to keep what is in place while we change it’ (Shannon, 2006). While the key challenges faced by the YJS are clear, there appears to be no explanation as to how this is going to be achieved. In fact, up until very recently this was still the case. In March 2008, nearly three years after its inception, IYJS published a National Youth Justice Strategy to cover the period 2008 2010. Prior to this, there was not one piece of information available from the DJELR, the YJS itself or any other governmental department on how reform was going to be implemented despite the existence of various other strategies, reviews and legislation. This situation was very unsatisfactory and placed unnecessary pressure on a service which is to have a very significant role to play in determining the future of the youth justice system and how it responds to child and youth offending. The National Youth Justice Strategy 2008 2010 outlines some of the priorities that the service has identified and according to the Director, this has brought focus to the work of the service in achieving its mission, which is to create a safer society by working in partnership to reduce youth offending through appropriate interventions and linkages into services (Shannon, 2010). However, much of the work which has been carried out to date has been focused on raising the profile of youth justice work among a number of agencies, rather than providing an effective response to youth crime youth crime prevention. In fact much of what is set out in the 2008 2010 strategy will be carried over into a new strategy for 2011, which is in the process of being finalised. Some of the areas which the service wishes to progress according to the director include (Shannon, 2010): • The use of restorative practices by a greater number of practitioners in the youth justice system, • The dissemination of good practice, • Translating national policy to local levels through the establishment of local youth justice teams and targeted intervention, • Continuing to promote alternatives to custody and the work of young people’s probation,

Introduction

9

• Delivering more effective programmes for children and young people in detention to assist their re-integration to the community on release, • Improving the quality and availability of data on children who come in contact with the criminal justice system.

1.3.1. A Critical Analysis of An Garda Sı´ocha´na and Policing in the Republic of Ireland Organised policing commenced in Ireland in 1822 with the foundation of the Irish Constabulary. The title Royal Irish Constabulary was applied in 1867. In 1922 the Royal Irish Constabulary was disbanded with the foundation of the Irish State. An Garda Sı´ ocha´na was formed in 1922. The Dublin Metropolitan Police, which had been founded in 1836, was amalgamated with the Garda Sı´ ocha´na in 1925. The strength of the service according to figures published in the Commissioners Annual Report for 2008 is approximately 15,355 men and women, serving throughout the country at 702 locations. Since its inception in 1922, the Garda service has continually reflected the vision of its founding fathers as expressed by the first Commissioner Michael Staines: The Garda Sı´ ocha´na will succeed, not by force of arms or numbers, but by their moral authority as servants of the people. (P1)

This moral authority was in some ways challenged by the revelations of corruption among individual members of the Garda force. These wrongdoings came to light and were addressed through the Morris Tribunal, which was established as a public inquiry into complaints concerning some Gardaı´ in the Donegal Division. The tribunal ran from March 2002 until December 2007. A subsequent hearing into Garda conduct during the May Day Reclaim the Streets demonstration by the Garda Complaints Board in 2002 also gained public attention.4 These processes of inquiry provided the guards with the opportunity to ‘get their house in order’ and reclaim their moral authority as a community-based police force. One of the outcomes of these inquiries was the Garda Sı´ ocha´na Act, 2005, which established the Garda Inspectorate and the Garda Sı´ ocha´na Ombudsman Commission. The Garda Ombudsman is responsible for receiving and dealing with all complaints made by members of the public concerning the conduct of members of the Garda Sı´ ocha´na.

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THE SUSTAINABILITY OF RESTORATIVE JUSTICE

The Garda Ombudsman’s mission is to provide the public with an independent and effective oversight of policing, and to deal with the public’s complaints concerning Gardaı´ fairly and efficiently so that everyone can have confidence in the complaints system (www.gsoc.ie). The Garda Sı´ ocha´na Inspectorate has responsibility to ensure that the resources available to the Garda Sı´ocha´na are used so as to achieve and maintain the highest levels of efficiency and effectiveness in its operation and administration, as measured by reference to the best standards of comparable police services (s. 117 of the Garda Sı´ ocha´na Act, 2005). These bodies set out the statutory provisions requiring members of An Garda Sı´ ocha´na to account for their actions on or off duty. Unlike many other non-departmental public bodies (Walsh, 1999), the Guards are a values-driven organisation. This focus on values cannot be jettisoned for the expediency of political or economic goals. The judiciary has not maintained these noble goals. In recent years, the Irish public has lost faith in most of the main institutions that governed the state; the political sector, the religious sector, the financial sector and the wider legal sector etc. It is within this context of the de-legitimisation of these institutions that the Garda Sı´ ocha´na has been seen to undergo a process of inquiry and renewal. This process has shaped the public perception of the Garda Sı´ ocha´na as one of the few non-departmental public bodies that has successfully reorganised itself on a basis of public confidence5 in the Garda Sı´ ocha´na, public safety in communities and public accountability.6 This newly reformed, modernised and accountable police service was entrusted with the provision of restorative justice conferencing on a statutory basis through the Children Act 2001. An Garda Sı´ ocha´na is of the view that the prosecution of a juvenile should not be taken without full consideration. They are of the belief that the child’s and the public interest are often best served by dealing with the matter under the provisions of the Garda Juvenile Diversion Programme. This philosophy is set out in the following citations: It is recognised that the delay in entry of a young person into the formal criminal justice system may help prevent entry into that system altogether. (An Garda Sı´ ocha´na H.Q. Directive 91/1991) An Garda Sı´ ocha´na is committed to the delivery of a quality policing service designed to ensure the protection of children and young people in our community and will do so in a fair and effective manner. An Garda Sı´ ocha´na will be particularly sensitive to the needs and rights of children and will endeavor to maintain the highest recognised

Introduction

11

international standards of behaviour and best practices when dealing with children and young people. (Garda Youth Strategy, 2009 2011, p. 6)

1.4. CONTRIBUTION OF PROPOSED RESEARCH This research provides a greater insight into experiences of those engaged in the process with a view to producing findings that can be utilised to pinpoint existing problems and contribute to policy development in the Republic of Ireland and Internationally. The use of observation studies and informal discussions gives a comprehensive insight not only into how recent legislation has been implemented but also into how it is being administered. In recent years, the media and as a direct result, political attention has focused on the level of youth crime in Ireland, serving to inform the public on the social problems caused by delinquency and youth offending. The proposed research could in part serve to educate the public about the benefits of restorative justice in a diverse range of settings including transitional societies, residential care, schools and in the workplace. This study provides an understanding of the potential for ‘Blueprints for the Future’ (Johnstone, 2011; Zehr, 2005), which may provide a more caring form of youth justice in the Republic of Ireland. Restorative justice has grown from a few scattered experimental projects into a social movement and identifiable field of practice and study (Haverty, 2009). Restorative justice has been enshrined in law and put on a statutory footing as a result of the Children Act 2001. Restorative justice has also been included in An Garda Sı´ ocha´na Policing Plan 2002. The implications for the organisation of the Children Act 2001 will continue to be monitored by the Director of the National Juvenile Office with a view to ensuring a smooth transition. The concept of ‘Restorative Justice’ as envisaged by the Children Act 2001 will be positively developed. This will be achieved by specially trained Garda Juvenile Liaison Officers covering conferences, where appropriate, whereby the victim and the young offender are brought together for discussion and, where necessary, formulate a plan of action in respect of the young offenders behaviour. (pp. 23 24) We will continue to commit to the victim of crime through Restorative Justice Process. (An Garda Sı´ocha´na Policing Plan, 2002, pp. 20 24)

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THE SUSTAINABILITY OF RESTORATIVE JUSTICE

In recent years, relevant actors in civil society such as practitioners, academics and policy makers have given restorative justice considerable attention as an alternative approach to existing criminal justice practices. With the passing of legislation in Ireland, restorative justice has been enshrined in law and is enacted through Garda policy and more specifically the National Juvenile Office. It is an important area of the Irish Criminal Justice system especially in the area of juvenile crime. Since its introduction in Ireland, little study or research has been carried to examine the challenges restorative justices practices will pose to society. While restorative justice is provided for within the Irish criminal justice system, its application is limited under statute to juvenile offenders. This study examines the potential for restorative justice to develop as an essential part of the criminal justice system both nationally and internationally. This study also explores existing provisions that cater for restorative justice in the Republic of Ireland and it discusses the core principles, values and theories underpinning restorative justice. One of the main aims of this study is to explore and investigate the relevant concepts, philosophies, arguments and theories that underpin restorative justice policies and practice. In addition, the study examines how existing understandings of restorative justice in policy and practice can be better understood through an analysis of community governance, social control and restorative practices. The findings of this study set out an understanding of the potential for restorative justice to be utilised in a significant manner across society as a facet of reparation and social regulation. In so doing, this book provides a fresh understanding of the potential for restorative justice in both theory and practice. To be truly ‘restorative’, the theories of restorative justice are shown to require a further level of analysis from the practitioners’ perspective, which this book provides. By examining the concepts such as Tomkins’ Affect Theory alongside the practitioner-based perspective of Morris and Maxwell (2004), this study has constructed further understanding of the significance of the functionalist roles of participants during restorative events. This knowledge is derived from observations of six case studies, which are presented and examined in detail. The analysis of each of the six restorative events is presented in the summary of each case. The functionalist element sheds light on the key emotional exchange and symbolic reparation (Johnstone, 2011) frameworks surrounding the expressions of responsibility, regret, guilt, remorse and restoration that are expressed as part of the conferencing process.

Introduction

13

This wider understanding of restorative processes and outcomes provides an increased understanding of Braithwaite’s (1989, 2003) Reintegrative Shaming concepts.

1.5. METHODOLOGY, ACCESS AND SIGNIFICANCE OF THE RESEARCHER’S EXPERIENCE The researcher’s experience as a qualified restorative facilitator with the International Institute for Restorative Practices (Distinction) and as an experienced observer of restorative events at both masters and doctoral levels are combined to provide a deeper understanding and analysis of the transformative processes that takes place during restorative events. These are examined in detail in Chapter 7. Although the researcher undertook a course in restorative facilitation after the initial cases were observed. This allowed for the inclusion of a further theoretical framework based on the ‘practitioner perspective’. This perspective is derived from the practitioner as facilitator, which is outlined by O’Connell, Wachtel, and Watchel (1999). The facilitation of restorative conferencing events provides another perspective on restorative justice, developed from a combination of the perspectives of counsellor, advocate and participant. Restorative facilitators have only begun to be trained in the Republic of Ireland in recent years. This enhances the unique perspective of the research in the Irish context. The methodological framework for this study is presented in the following manner: • The unit of analysis for the study is the observation by the researcher of six restorative justice conferencing events based on the An Garda Sı´ ocha´na model of conferencing. • In addition, a literature review on restorative justice, youth justice, theory, policy and practice in the Republic of Ireland, United Kingdom and internationally is provided (Chapters, 3, 4, 5 and 6). • In relation to access the researcher gained access through the Head of Research, Garda Research Unit, Garda College, Templemore, Co. Tipperary and Republic of Ireland. • There are ethical considerations to be considered about the understandings the participants had of the researchers role, the need to protect the

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identities of participants, details of incidents and familial. These are discussed in more detail in Chapter 7. • The context of the study and evaluation of the scheme by the research unit, limited amount of restorative conferencing events taking place in the Dublin area and across the country during the time frame of the study. • Participants in all cases were Irish.

1.6. CHAPTER PLAN OUTLINE Chapter 1: Introduction This chapter sets out the structure of the book, including the methodologies and the relevant research strategies that were employed during the course of the study. Following on from this, an understanding of the study is established by applying the research focus, How do existing theories, policy and practice of restorative justice influence the process of restorative conferencing events? The chapter also presents the contribution and the significance of the research.

Chapter 2: Theories of Regulation and Social Control This chapter provides a framework for understanding the key theories of functionalism, social control, crime and deviance, which surround the issue of restorative justice. This framework is used to define key themes such as crime, deviance and delinquency. This understanding is achieved by applying a sociological understanding and perspective to existing criminological inquiry. The chapter begins by setting out the functionalist perspective. The following section examines the perspective of Durkheim, Foucault and Merton on crime. Functionalist exchange is a process of social control, which gives participants in restorative events responsibility and binds them together through a process, which facilitates integration, maintenance and motivation of group goals (Parsons, 1965). The chapter examines the concepts of the ‘civilising process’ and ‘anomie’ as understood through Merton and Elias. It also examines the Chicago School’s contextualisation of crime and delinquency moving on through Matza. The chapter then goes to examine the concept of governmentality through Foucault and Dean. This is

Introduction

15

presented to frame the book within the context of locating restorative justice as a facet of governmental civil society. Furthermore the chapter analyses contemporary sociological and criminological understandings of delinquency, deviance and juvenile justice. The chapter concludes with an outline of the significance of the functionalist socialisation in the context of youth crime and restorative justice. Chapter 3: Restorative Justice: Philosophy, Theory and Practice This chapter begins with an overview of restorative justice. It sets out the definitions and principles of restorative justice. It also discusses the myths and realities of restorative justice from the perspective of Braithwaite and Daly. In addition, the chapter develops an understanding of restorative justice by introducing a practitioner’s perspective and using a critique of Braithwaite’s theory of Reintegrative Shaming. This is achieved by applying Tomkins’ Affect Theory and Nathanson’s Compass of Shame to Braithwaite’s own understanding of Braithwaite’s Reintegrative Shaming. By critiquing Braithwaite’s understanding of Reintegrative Shaming through the practitioner’s perspective, this chapter provides a fuller understanding of the potential for restorative justice to provide a meaningful framework of mediation in policy and practice. Chapter 4: Youth Justice in the Republic of Ireland This chapter explores the provision of youth justice in the Republic of Ireland. It begins with an examination of the origins of youth justice from the emergence of the Irish State. The birth of the Irish welfare state is then outlined. The 1970s and 1980s are examined in the context of a policy vacuum. This is followed by a discussion of the change and transformation of youth justice undertaken in the 1990s, in the context of the emergence of a law and order agenda. Following from this, the significance of the Children Act 2001 as a blueprint for reform is set out. The chapter concludes with a discussion of the introduction of restorative conferencing and the Garda Juvenile Diversion Programme. Chapter 5: Restorative Justice in Practice: The Irish Case This chapter examines the links between civil society and the state that are provided through the restorative justice programmes of An Garda

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Sı´ ocha´na, and the Probation and Welfare Service. The first section begins with an examination of the restorative justice programmes led by the National Juvenile Office and An Garda Sı´ ocha´na. Following on from this, the Garda Youth Diversion Projects are examined. The chapter goes on to outline the functions of the National Commission on Restorative Justice. Next, the Garda Youth and Children Strategy is explored. In addition, the chapter looks at new initiatives in law reform and restorative justice in the Republic of Ireland, such as Garda Sı´ ocha´na Adult Cautioning Scheme and Probation and Welfare Family Group Conferencing. The chapter concludes with an outline of Restorative Justice Services, Victim Offender Mediation, Offender Reparation and the Nenagh Community Reparation Project. Chapter 6: Restorative Justice in Practice This chapter examines restorative justice from a practitioner’s perspective. This is achieved through an examination of the theories and practices surrounding restorative justice in both a national and international context. This application of a practitioner’s perspective is contextualised within the wider significance of restorative justice in real terms. It also provides an important element for understanding the key case studies, which is discussed in later chapters. The first section of the chapter examines restorative justice practice and programmes from around the world. It goes on to outline the various restorative conferencing methods. It then examines restorative justice and its application to youth justice. In addition, restorative cautioning and the international aspects of restorative justice in relation to family conferencing are explored. The chapter then provides an understanding of restorative justice in Northern Ireland. An examination of the development of youth justice policy and, subsequently, restorative justice policy in England and Wales is outlined and discussed. The chapter concludes with an evaluation of the effectiveness of restorative justice alongside a study of the significance of evidence-led training for restorative practitioners in the context of multiculturalism. Chapter 7: Restorative Process and Case Studies in Restorative Conferencing This chapter examines the methods and processes surrounding the operation of restorative events. It presents and explores the methodology of family conferencing and provides an understanding of how such conferences

17

Introduction

operate from a functionalist perspective. The chapter then introduces the six case studies of restorative events in the Dublin region and provides an understanding of the significance of the functionalist exchange that occurs as a part of these processes. The chapter also analyses the six case studies of restorative events. The key theoretical perspective is a functionalist one that allows the six case studies to provide a further degree of understanding of some of the limits of existing restorative literature by applying an analysis of the functionalist roles within each case. The six case studies outline the extent to which restoration occurs within the functionalist exchange that takes place between participants. In each case, the names of the participants, the details of incidents along with the dates/times of the events have been changed for ethical purposes and to protect the identity of the participants. Chapter 8: Discussion and Recommendations This chapter presents the conclusion of the book in full, and in so doing it addresses the research question How does restorative conferencing for young offenders facilitate an exchange process whereby forms of reparation and social regulation maybe achieved? within the framework of functionalist exchange. It also provides a list of recommendations and for further research on restorative justice and its processes.

1.7. CHAPTER SUMMARY This chapter sets out the structure of the book including making reference to the methodologies and the relevant research strategies employed during the course of this study. In addition, the key focus of the book, restorative justice and youth justice, is defined in both national and international contexts. Following on from this book, the study established the research focus, How does restorative conferencing for young offenders facilitate an exchange process whereby forms of reparation and social regulation may be achieved? The chapter also sets out the potential contribution of this research, which is established in the following manner. That restorative justice addresses the concerns about justice for the individual, the group and the community; this is achieved through policy, practice and theory. The

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chapter also establishes that it is this combination of outcomes that provides a significant understanding of the contribution to academics in this field. Liam Leonard Paula Kenny

NOTES 1. For example, the United Nations Standard of the Minimum Rules for the Administration of Juvenile Justice (Beijing Rules), the United Nations Guidelines on the Prevention of Juvenile Delinquency (Riyadh Guidelines) and the United Nations Rules for the Protection of Juveniles Deprived of their Liberty. 2. In April 2002, following the death of two Gardaı´ as a result of an incident involving car theft and joyriding by juveniles, the Minister for Justice proposed plans for a temporary children’s prison wing for 14 and 15 year olds in St Patrick’s Institution. This plan would have been feasible under the 1908 Children Act but the Children Act 2001 when fully enacted prohibits the detention of children less than 16 years of age in any place of detention. 3. Michelle Shannon was appointed National Director of the Irish Youth Justice Service on 28 April 2006. 4. Arising out of a judicial intervention and a tribunal of inquiry, the Barr Tribunal was established in 2002 to inquire inter alia into a fatal shooting of an individual involving the Emergency Response Unit of An Garda Sı´ ocha´na. 5. The Garda Public Attitudes Survey 2008 reports an 81% satisfaction with overall Garda service to the community, 82% satisfaction with ‘how good a job the Gardaı´ do in the locality’ and 79% satisfaction with ‘overall contact with the Gardaı´ ’. 6. Public service, professionalism, ethical leadership, community engagement, nondiscrimination, respect for the dignity and rights of others, transparent public accountability and quality assured Garda services are core underpinning values and standards of this policing strategy. In pursuing our values and standards, we will work earnestly and purposefully with the Garda Ombudsman Commission, the Garda Sı´ocha´na Inspectorate and local Joint Policing Committees (Garda Sı´ ocha´na Corporate Strategy, 2007 2009, p. 2).

CHAPTER 2 THEORIES OF REGULATION AND SOCIAL CONTROL

2.1. INTRODUCTION This chapter provides a theoretical framework for exploring the key theories of functionalism, social control, crime and deviance, which surround the issue of restorative justice. The functionalist basis for the theoretical framework outlined in this chapter provides a fuller understanding of the processes of exchange based on the functions and roles of participants in the six case studies of restorative conferencing events, which are presented in Chapter 7. The functionalist perspective utilised in this study is based on a sociological understanding of norms, values, rights and social facts. This provides a blueprint for an improved analysis of phenomenon of changes in behaviour in civil society. By understanding social norms through human functions, a better comprehension of human exchange, reciprocity and reparation, which occurs during particular events in society such as restorative conferencing, is provided. From a sociological perspective the processes of exchange examined in this book are better understood through the application of the theories of writers such as Durkheim, Merton, Elias and Dean. The functionalist exchange devised from the theoretical perspectives presented in this chapter are applied to the six case studies presented in Chapter 7. For instance Durkheim’s understanding of social exchange is seen in his theory of organic and social solidarity. In addition Merton’s theory of anomie can be used to pinpoint the significance of dysfunction as a facet of contemporary society and social regulation. Elias provides us with a fuller understanding of the civilising and decivilising processes which surround behaviour in civil society. Dean’s theory of governmentality allows for a greater insight into 19

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both the behaviour of offenders during the transitionary phases of restorative conferencing events and how shifts in behaviour can bring about reparation and social regulation. This understanding of functionalist exchange provides us with further insights into how participant’s adaptation and motivation from particular roles and functions influences relationships before, during and after restorative conferencing events. Furthermore, the chapter analyses contemporary sociological and criminological understandings of crime, delinquency, deviance and juvenile justice. It concludes with an outline of functionalist socialisation in the context of youth crime and justice.

2.2. DEFINING CRIME It is generally accepted in society that crime is any act which breaks criminal law. In addition to breaking criminal law, a crime can be followed by criminal proceedings including a court appearance and punishment in the form of a prison sentence. The phrase ‘can be followed by indicates’ that not all crime does actually result in arrest and prosecution. Some of the reasons for this are, firstly not all crimes committed are reported and secondly the police are not always aware of occurrence of criminal activity. Criminal law is not fixed and static; it varies over time and from region to region. Crime is a relative concept which can only be defined in relation to particular criminal laws which are effective at particular times and in particular societies (Marsh, 1991, p. 1). Therefore actions, which are defined as criminal, will vary in different social settings, in different societies and over different periods of time. For example the consumption of alcohol is legal and a socially accepted practice in most countries yet in certain Moslem countries it is illegal and results in severe punishments. The definition of crime as an act, which breaks the criminal law of a particular society, is not affected by variation in what is seen as constituting crime in different societies. Definitions of crime are based on criminal laws, which are made by particular governments and enforced by established criminal procedures. Crime therefore has to been seen as a social phenomenon which is subject to variation depending on the type of society and government at particular times, including their criminal laws and practices.

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2.3. UNDERSTANDING DEVIANCE AND DELINQUENCY Deviance is a term, which is used to describe persons or persons who deviate, digress and stray from normal behaviour. In sociology deviance is applied to situations where the behaviour is disapproved of and subject to some form of punishment. Deviance is thus used to describe behaviour that is outside the rules of society, and these rules can be legal rules or social and moral rules, rules about the conventional way to dress or to speak to other people (Marsh, 1991). Deviant behaviour is also behaviour that can result in some form of punishment and this punishment can either be formal, legal punishment or take the form of social and moral disapproval. Deviance according to Marsh is behaviour, which does not follow the expectations or norms of the majority in society and it leads to hostile and critical reaction from the majority (1991). Delinquents can be defined as persons under some specified age that commit acts, which constitute crime if carried out by adults. The age of criminal responsibility in Ireland is 7; in Britain it is 10 years of age. The term delinquency covers a wide variety of violations of social and legal norms, from behaviour that is merely a nuisance to criminal acts such as theft and larceny. In criminology the term juvenile delinquent is typically used to indicate the high level of offences committed by young males between the ages of 12 and 20. The typical crimes of younger males are larceny and breaking and entering, while violent crimes are more common in the age groups of 17 and over. Most sociological theories of juvenile delinquency attempt to explain crimes such as larceny and breaking and entering in terms of the organisation of urban gangs, delinquent subcultures and the limitations on the opportunities for working class males and deprived social groups. The Chicago School had been analytically to the fore in studies of criminology by putting forward routine activities theory and control theory which both describe convergence in space in society. The Chicago School defined juvenile delinquency in terms of the social structures of local neighbourhoods and the role of peer groups in the socialisation of adult generations. David Matza in his book Delinquency and Drift (1964) argues that delinquency did not emerge as a result of strongly determined forces but rather

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through a ‘gentle weakening of the moral ties of society’ which allowed some young people to drift into delinquency. Matza (1964) further argues that delinquents often ‘neutralise’ legal and moral norms by defining them as non-applicable, irrelevant or unimportant to their being. He states that once a person feels indifferent towards the law then he or she may commit unlawful acts without feeling any strong sense of guilt or shame. Matza believes that a delinquent who neutralises his or her behaviour towards legal and moral norms may be said to drift into a subculture of delinquency, which makes them subject to committing criminal acts (1964). Delinquents can be defined as ‘persons under some specified age that commit acts, which constitute crime if carried out by adults’ (Gibbons, 1981). Contemporary programs of delinquency control can be traced back to the child savers of the nineteenth century who helped to establish special judicial and correctional facilities such as reformatories for the management, processing and labelling of troublesome youth (Platt, 1969). The term delinquency covers a wide variety of violations of social and legal norms; from behaviour that is merely a nuisance to criminal acts such as theft and larceny (see Goldson, 1997a, 1997b, 1997c; Hagall & Newburn, 1994; Hendrick, 2006). In criminology the term juvenile delinquent is typically used to indicate the high level of offences committed by young males between the ages of 12 and 20. However Platt (1969, citing Bloch, 1958) argues that the ‘delinquency problem’ is linked to more specific factors such as youth parent conflict, changes in the structure of modern families and the lack of sustained primary relationships, the lure of the peer group, the increased professionalism of the police and a growing acceptance of what he calls middle-class ideals of normality.

2.4. ANOMIE AND JUVENILE DELINQUENCY Significant theoretical interest in the nature and origins of delinquency was fuelled by Albert Cohen (1955), who suggests that lower class boys become involved in delinquent behaviour through a process of reactions, where norms are taken from what he calls larger subcultures and turned upside down within a delinquent subculture. Cohen (1955) discovered that by middle-class standards a great deal of delinquent behaviour is negative,

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malicious, non-utilitarian, versatile and free from adult restraint. Merton on the other hand explored how social structures exert pressure on youth to engage in nonconforming, non-regulatory behaviour. Merton (1965) contends that delinquency can be viewed as a symptom of strain (anomie) caused by a gap between culturally prescribed expectations of economic success and socially structured aspirations of achieving this success in a fair and legitimate process. Similarly Parsons (1965) suggests that children tend to suffer from The fact that the major agents for initiating processes of change lie in other sectors or society, above all, in large-scale organization, in the developments of science and technology, in the higher ranges of culture … This would suggest that the adult agencies on which the youth most depends tend to some extent to be ‘out of tune’ with what he senses to be the most advanced development of the time. He senses that he is put in an unfair dilemma by having to be so subject to their control. (pp. 171 172)

Platt (1969) observes that sociologists have what he calls a tendency to base theoretical findings on official rates of delinquency without any cause for concern for how the label of ‘delinquency’ gets applied to ‘troublesome’ youth (p. 7). He cites Tappan (1947, pp. 96 102) as having recognised this deficiency through recommending for analytical purposes that criminals are a sociologically distinct group of violators of specific norms, subjected to official state treatment. The norms, their violation, the mechanics of dealing with the breach constitute major provinces of legal sociology. (p. 7)

While sociologists such as Merton (1956), Cohen (1955), Parsons (1965), Matza (1964) and Platt (1969) have all contributed to the understanding and the social context of delinquency there is still not enough known about the social processes which define persons as delinquent. Becker (2003) observes that delinquency and deviance are not inherent in human behaviour but rather are ascribed labels, which are attached to individuals and/ or groups in particular social settings. Social groups create deviance by making rules whose infraction constitutes deviance, and by applying those rules to particular people and labelling them as outsiders. From this point of view, deviance is not a quality of the act the person commits, but rather a consequence of the application of rules and sanctions to ‘an offender’. The deviant is one to whom that label has successfully been applied; deviant behaviour is behaviour that people so label. (p. 243)

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Hendrick (2002) argues that juvenile delinquency in common with crime can only be understood if the meaning of the term is considered within a broad socio-political context. The argument he is making is that youth crime and youth justice should be approached historically in relation to social, political, economic and personal change, cultural, social and political order, the influence of professional and administrative class agendas, party political programmes for the content and management of governance and finally age and generational relations. These ideas are not meant to fit into any hierarchically format but rather are integrated within and across his argument (Goldson, 1997a; Hendrick, 2002) (make a similar argument in relation to the study of childhood and social order). The latter (the delinquent) is a little stunted man already he knows much and a great deal too much of what is called life he can take care of his own immediate interests. He is self-reliant, he has long directed or misdirected his own actions and has so little trust in those about him that he submits to no control and asks for no protection. He has consequently much to unlearn he has to be turned again into a child … (Hendrick, 2002). At the beginning of the nineteenth century few distinctions were drawn between the offence, the mode of trial or punishment of children and adults, however limited concessions were made for infants (May, 2002). The age of criminal responsibility or doli incapax, defined as the capacity of doing ill, or contracting guilt is not so much measured by years and days, as by the strength of the delinquent’s understanding and judgement (Blackstone, 1796, cited in May 2002, p. 99).

2.5. JUSTICE AND GOVERNMENTALITY In his 1999 text Governmentality, Mitchell Dean sets out a critique of the pastoral state by way of an exploration of Foucault’s concept of governmentality as a framework for understanding three key themes: the neo-liberal critique of the welfare state, the collapse of ‘existing socialism’ in Eastern Europe and the eroding of rights won by the new Left in the 1960s. The welfare state has come to be diminished at the same time as the New Right agenda for social control has emerged as a central plank of the ‘law and order’ agenda. For Dean, any Foucauldian account of ‘governmentality’ in contemporary society must retain this realisation of the existence of

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the nodes of governance which lie within the ‘particular mentalities, arts and regimes … the conduct of conduct’ (Dean, 1999, p. 2) of the administrative process. This form of governmentality provides a valid context for the role of state in the globalised era; therefore as the power of nation-state is restricted the meanings surrounding governance have altered. ‘Government’ now involves layers of bureaucracy with power retained by a coterie at the heart of the ruling elite. As globalisation has come to challenge the wider influence of the state, power has been retained at the core of the administrative process. The combination of this regrouping of power within the hands of core elites has occurred alongside the prevailing ideological assault on the welfare state, leading to extensive marginalisation within an increasingly fractious society. Authority (as opposed to power) is then derived from the various agencies and bodies who recreate the language of governmentality, ‘invoking particular forms of truth, and using definite resources, means and techniques’ (Dean, 1999, p. 3). Furthermore, the emergence of corporate and civil society sectors as active participants in the multi-layered field of governance has led to the creation of new forms of governance identities, which alongside the welfare state include a myriad of interest-driven entities in civil society including the economic (both wealth and poverty orientated), legal, gendered or feminist, trade union, ethnic/religious, youth or ageing, environmental and pastoral/care sectors. Additional administrative and bureaucratic elements augment these entities, adding to the array of governmental forces. New discourses of governmentality have subsequently emerged from each of these sectors; policy is then rewritten accordingly to suit each particularistic agenda as identities are re-branded as varying ideological groups attain degrees of power. Therefore, as Foucault has established, ‘governmentality’ becomes the evolutionary process by which the behaviours and meanings of government become established and legitimated. This aspect of legitimation is comparable with Elias’s ‘Civilisation Process’; essentially the etiquette of government is born of this transformative development. Furthermore, the process of establishing modes of governmentality is profoundly sociological; therefore cultural and pluralistic forms of expression vie with established political understandings in the creation of the norms and patterns of this multi-agency form of administrative rule. Consequentially, this network of relevant agencies creates competition within policy frameworks despite these agencies having shared interests and goals.

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Therefore, a new form of governance for these competing levels of government is required, one which attempts to rationalise the variety of discourses emerging from the processes of a dichotomous and sometimes adversarial method of policy formation. It is the all-consuming calculation of this etiquette of rules which has come to embody the problems facing contemporary forms of governance. If we also include supra-state directives from bodies such as the European Union, it soon becomes clear that a veritable constellation of entities and agencies all vie for a share of the processes and outcomes of existing governance models. All forms of ethical and value-driven conduct is then validated by the competing sectors and interests involved in governance. In the following section, we examine two such sectional interests: the ‘pastoral’ sector and their creation of a governmental approach to the role of the police within the context of the workings of the state.

2.6. PUNISHMENT AND SOCIAL CONTROL In their article From the Panopticon to Disney World, Shearing and Stenning (2003) examine the development of discipline through the use of public and private examples of non-carceral disciplinary social control. This they argue represents an important indication of what the social control apparatus of society is actually getting up to. The authors examine the structures and procedures of discipline and control that are embedded and dispersed through micro relations in modern society. Shearing and Stenning (2003) argue that we as active members of society rarely query these forms of control as we are trained whether it is by moral or instrumental language to be disciplined and maintain social order. Similarly, Foucault (1977) defines discipline as a type of power comprising a whole set of instruments, techniques, procedures, levels of application and targets which may be identified with an institution or an apparatus. The panopticon epitomises the embedded nature of Foucault’s theory of discipline as it is a mechanism which ‘automises and disindividualises power’. Power has its principle not so much in a person as in a certain concerted distribution of bodies, surfaces, lights, gazes and in an arrangement whose internal mechanisms produce the relation in which the individuals are caught up (1977, p. 210). Therefore, it does not matter who exercises power, any individual at random can operate a machine.

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Shearing and Stenning (2003) employ a series of examples to show how relevant Foucault’s theory is in modern society. The ‘Disney World’ example is characterised, as an exemplar of instrumental discipline as it displays an embedded nature of discipline, which is suitable as a means of preventive control as surveillance in the park becomes part of the very relations to be controlled. There is no definite presence of security personnel (such as the example given in the article); everything fits in with the environment. However, if the norms of control are violated, morality is called into play; if the child hadn’t put her shoe back on she would have been asked to leave the park (Shearing & Stenning, 2003). Discipline because of its embedded character varies according to the context in which it is applied. It is for this reason argues Foucault (1977) that when discipline is applied in the case of carceral punishment that its distinctive element is that of individualised soul training or the ‘docile body’. Shearing and Stenning (2003) use Foucault’s theory regarding discipline and punishment to show the development and evolution of discipline. They state that what makes private control different from traditional forms of control is not just its disciplinary character which shares with carceral control but the challenge it offers to the moral foundation of the order maintenance process. The focus of discipline primarily surveillance in their article had shifted from the culpable employee or individual to the categories of people who create the opportunity for disorder. The examples Shearing and Stenning (2003) utilise, of private methods of control, display a clear rejection of traditional moral conceptions of order and control process. Executives reject the idea of moral reform as a basis for control. Order is seen as the most conductive way to achieving fundamental community objectives; therefore, order is controlled by whatever maximises profit.

2.6.1. Social Control, Socialisation and Functionalist Roles This section demonstrates how the social control shown in Elias’s understanding of civilising and decivilising processes can be applied to the family. In order to do this Parsons and Marx’s theories of the organisational role of the role family will be explored. This section also examines the significance of what this research defines the ‘functionalist exchange’, which underpins the socialisation process surrounding crime and deviance. This functionalist exchange can be understood by applying a functionalist theoretical perspective to the various roles that are taken on during the socialisation process.

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Parsons has provided one of the most enduring and comprehensive analyses of that key functionalist group the family. In his view the family is seen as a unit that performs various functions within the wider pattern of the social organisation of society. The functions associated with marriage and the family are often described as sexual, reproductive, economic and socialisation functions. Firstly, socialisation, when children learn the cultural norms of the society into which they are born, the process is referred to as primary socialisation. Because this process happens during a child’s early years, the family is considered hugely important for the development of human personality. Secondly, the family assumes responsibility for the regulation of sexual activity. Every culture regulates the sexual activity in the interest of maintaining kinship organisation and property rights. One universal regulation is the incest taboo, a cultural norm that forbids sexual relations or marriage between certain kin. Different societies have various rules regarding who can marry who but they usually apply the incest taboo to close relatives. Apart from the fact that reproduction could have negative mental and physical effects on offspring, it also minimises sexual competition between families. By restricting sexual relations it forces people to marry outside their immediate families to form broader alliances and keeps kinship intact. Thirdly, the family provides the social placement for its members. A child is socialised by race, ethnicity, religion and social class that is ascribed at birth through the family. Families permit the transmission of wealth and status from parent to children. According to the functionalist perspective the family also provides material and emotional security. Family members are dependent on each other economically and emotionally. This was specially the case when there was no social welfare system when the state did not provide support. According to Parsons (1965) men performed an instrumental role, that of economic provider (breadwinner) while women’s role was an expressive one, as nurturer and emotional provider. This is contentious from a feminist perspective. From a Marxist standpoint the family is seen as an institution that is involved in ‘promoting dominant societal values and perpetuating the exploitation of subordinate groups by upholding the norms and values of capitalist society’. The Marxist perspective views the role of the family as one that is routed in the social reproduction of inequality. This occurs through the socialisation of children, where the family is seen as reproducing both labour and power, and a false ideology, which

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keeps the capitalist system going. ‘Families thus support the concentration of wealth and reproduce the class structure in each succeeding generation’. Functionalist and Marxist theories have a certain amount in common. They share the structuralist assumption that social institutions are inter related and see the family as having to adapt to some degree to other institutions. They also agree that the family plays an important role in biological reproduction and also in social reproduction (i.e. maintaining, replenishing and transmitting social values and structures from one generation to another). However they have different starting points, focus on different aspects of the social world and contain very different perspectives on the family. Functionalist uses the modern industrial order as the frame of reference and sees the family as meeting important social needs. Marxists start from the idea of class struggle and division and see the family as reproducing capitalist values and relations. Whereas functionalist theory has provided support for conventional family values, Marxist theories have developed critical analysis and lent support to demands for change.

2.7. DURKHEIM AND FUNCTIONALISM This section outlines the key theoretical framework which underpins this book, that of functionalism. As a theory functionalism emerged from Durkheim’s sociological positivism, which sought to identify and explain the social facts that come to define the structures of society. For Durkheim society’s attempt to build cohesion and solidarity during periods of transformation was based on the members of that society’s ability to explain and apply understandings of social functions that in turn produce social order and control. In relation to crime and deviance, the importance of functionalism can be seen on two levels. For Durkheim (1964) crime and deviance are everyday phenomenon that in turn can be seen as ‘social facts’. This functionality stems from the collective response of society to criminal and deviant acts. This collective rejection of deviant behaviour in turn creates the norms, mores and laws by which society is governed. Durkheim sees elements within the response to crime from the wider society as functional because these responses create a

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sense of community and they allow for the rituals of punishment and restitution. Therefore a functionalist perspective of crime understands that crime and deviance allow for the creation of rules, consensus, conformity and restraint. These functional elements come to define the values inherent in that particular society. Secondly Durkheim establishes an understanding of anomie in society. For Durkheim anomie indicates the breakdown of the rules and norms of society. His understanding of anomie or anomic society was presented through his study of suicide. His understanding of the functionalist of anomie in society in turn influenced Robert Merton in his own studies on dysfunctionality (Muncie & McLaughlin, 2005). Evidence of the functionalist perspective in restorative justice practices can be seen in the work of Durkheim. Durkheim recognised that crime and criminal behaviour is universal, normal functional for all societies. He saw crime as a normal occurrence and believed that it is impossible to have a society totally devoid of crime, it is a factor in public health and integral part of all societies, crime, is, then, necessary (Durkheim, 1964, p. 46). Durkheim believes that the presence of the criminal allows the rest of society to draw together and reaffirm their values. Therefore through opposition to criminal behaviour, the social group or society is strengthened. Durkheim regards the criminal as someone who provides the community with an opportunity to reassert standards, which he or she had broken or opposed. His pioneering study of the production of order and cohesion in modern industrial society had noted that, as societies become more advanced and complex, punishments become less severe (Durkheim, 1964). He cited imprisonment replacing death and mutilation as the sanction for most crimes. Durkheim argues that repressive forms of law, such as criminal law, tend to diminish, with conformity being secured more and more by restorative law, which is law concerned with complaints between individuals rather than crimes against the state/society.

2.8. ELIAS: CIVILISING PROCESS Elias theory of the civilising process is important for the study of social control as he puts forward valuable explanations of society’s level of tolerance towards criminal behaviour. The two concepts, which are prevalent for criminology, are what Elias calls ‘development’ and the ‘immanent

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dynamics of figurations’. The term figuration as employed by Elias refers to a web of interdependent human beings who like all other aspects of known reality figurations are inherently processual (Dunning & Rojek, 1992). What Elias means by ‘immanent dynamics’ is that the dynamics of a social figuration are embedded in its structure and furthermore in the make-up and actions of the people who comprise it. Dunning and Rojek (1992) states that human beings always live together and that their patterns of interdependency as well as the ways in which their actions intertwine as they attempt to secure their ‘shared and conflicting ends’ is the structure of figuration that they form. He contends that struggles with and among such groups for the control over such examples as the economy, the state, goods and services, production, are all crucial connections for Elias concepts of the ‘immanent dynamics of figurations’ and ‘development’. These struggles are largely influenced by developmental factors such as the length and shape of the chains of interdependency within a particular society and with other societies, the balance between the pressures of society in order for security, control and stability. The central observation which Elias makes through his theory of the civilising process is that Western societies since the Middle Ages have experienced a growth in the refinement of manners and social constraints. The refinement of manners is self-explanatory but by social constraints Elias is referring to the increase in the amount of social pressure on people to exercise a more even self-control over their feelings in the field of social relations. This has important implications for the study of social control and restorative justice, as it can provide a valuable insight into the habitus of victims and offenders can explain why they may behave or react in a particular manner at a conference/caution.

2.8.1. Foucault and Punishment Hudson (2003) contends that the prisons, which were built in the nineteenth century in the major industrial cities, were designed to reform as well as to incarcerate. By combining elements of work and contemplation the modern prison was built on the model of a monastery. One of the most famous prisons designs at the time was that of Jeremy Bentham, the ‘panopticon’ which allowed the prison guard positioned in a central watch tower to observe each and every cell without the prisoner necessarily being able to know exactly if they were being surveilled or not.

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Foucault in Discipline and Punish (1977) describes the utilisation of the ‘panopticon’ in great detail and also gives an insight into the workings of the so-called modern prison with examples of the prisoner’s timetable, which is practically identical to that of a monk or nun. While the individual cells allowed for reflection and penance they also served as a measure of punishment along with the work ethic within the prison. However, the panopticon was never build to Bentham’s exact specifications. Victorian prisons such as Strangeways and Pentonville give a clear idea of the strategy envisaged by Bentham. Foucault in Discipline and Punish sees discipline as the fundamental principle of modern punishments. He opens the work by contrasting a public torture and execution in 1757, with a timetable and rules for a ‘house for the reform of young prisoners’. Eighty years later the first punishment is aimed primarily at demonstrating the absolute power of a sovereign over his subjects; the second demonstrates a new kind of governance, which utilises sovereign power, new social science and techniques of observation and regulation to produce the docile, productive body needed by capitalist industrialism. Foucault’s analysis of punishment is part of a wider analysis of power in modern society. For him, discipline is both object and mechanism of punishment and is first and foremost a technology of power (Foucault, 1977).

2.9. MERTON: IDENTITY AND RESISTANCE Merton suggests that criminal and rule breaking behaviour results from ‘differential access to the success goals of society by legitimate means’ (1938, p. 216). By this he is referring to societies where a strong emphasis is placed on certain goals but where the means to attaining them are unavailable to most of its members, the result Merton believes is anomie, a situation where the rules and standards governing behaviour have lost their influence and are liable to be ignored and where shared norms or rules no longer determine and direct behaviour. According to Merton (1938) a situation of ‘anomie’ exists where people strive for goals of material success but do not possess the opportunities to reach them by legitimate means. Merton theory of criminal behaviour can also be called a ‘strain theory’. According to Merton this is a ‘working class’ phenomenon. Merton believes that young people from working class

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backgrounds share the same cultural goals and values of the middle class, but that they do not have the opportunity and means to achieve these goals and hence are motivated to lead a life of crime. Merton (1994) and Merry (1995) in their studies both discuss resistance in the form of social structures, law and culture. Merton’s (1994) theory explores the nature of the relationship between social structures and the individual whereas Merry (1995) uses data, which she collected to examine a range of forms or resistance and the impact on cultural meaning as well as political mobilisation by legal institutions. Both authors argue that actions, which seem to be individual, emerge from distinctive cultural understandings embedded in particular social worlds. Merry’s (1995) research highlights through reference to particular cases how powerless groups reconstruct the social identities that define their lives. Merton furthers this belief by using culturally defined goals, purposes and interests. He argues that these goals are ‘more or less integrated and involve varying degrees of prestige and sentiment’ (Merton, 1994). The social structure in his belief performs the second stage by defining, regulating and controlling acceptable modes of achieving such goals. However Merton (1994) adds that the attainment of cultural goals is limited by institutional norms. The cultural goals of the cases, which Merry (1995) refers to, were limited in some form by the legal institutions, which upheld the norms of the institution. Merry (1995) further argues that cultural understandings inform all actions including those that are labelled resistance. She states that to speak of isolated acts of resistance carried out by individuals denies the social world that constructs the individual and their ‘sphere of action’. Merton (1994) acknowledges that there is no group in society where there is an absence of regulatory codes of governing conduct. However these groups do vary in the way in which institutional norms are integrated with the goals, which are part of the culture make up. Emotional convictions Merton (1994) argues may have an important role in governing the conduct of such groups. He further contends that certain aspects of the social structure may generate resistance and antisocial or deviant behaviour as a result of differential emphases on goals and regulations. Merton (1994) uses the example of a poker place to provide context for his theory. He describes the uneasiness experienced by the players shows an awareness of the institutional rules of the game in order to evade them, but the emotional supports of these rules argues Merton (1994) are ‘largely vitiated by cultural exaggeration of the success goal’.

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2.10. PASTORALISM AND COMMUNITY JUSTICE The manner in which the state has established power over societies through the ages has been influenced by the religious sector, from the ‘Ancient Regime’ of feudalism through to the advent of Liberalism and neoLiberalism. The existence of a Divine Order with a Benevolent God and ruling elite at the top was a characteristic of the feudal state. Liberalism’s incorporation of certain religious values was reflected in Weber’s ‘Protestant Work Ethic’, while the concept of meritocracy, which underpinned modern neo-Liberal democracy, has a pastoral concern with just rewards at its core. While secularism emerged as a challenge to the links between the state and religion, the state was so infused with religiosity and hierarchical values that secularism was never a complete project. In addition, once the frameworks of governance through pastoral values came to be established under the original form of Liberalism, the relationship between the state and the poor came to be understood through its pastoral terms of reference; charity, virtue, hard work and chastity were the essence of Victorian ideology. The significance of Marx’s empowering concept of ‘species being’ as the embodiment of community-based resilience based on the shared praxis of craft as opposed to the pursuit of personal aggrandisement was not yet realised in the Victorian age. Essentially, we can understand the emergence of pastoral power as an element of the traditional conservative understanding of the ‘Divine Order’, with God and the monarchy on the top and the ever-suffering poor on the bottom. This conservative pastoral perspective leaves little room for those at the bottom to move upward, as the social mobility of neo-Liberal meritocracy at least provides a space for. In the truest understanding of Victorian Pastoralism, the poor are suffering for their inadequacies and their sins, and the pastoral mind-set is to provide a degree of respite from this suffering rather than to provide the means to end it or to allow for an improvement in the life chances of the poorest sectors of the population. Instead, the care and welfare of the poor affords those with merit to improve their own lives through the rewards of providing charity for those who cannot provide for themselves. For Dean, this understanding provides us with an understanding of the ‘paradox of contemporary liberal welfare states’ (1999, p. 75) as ‘charity, philanthropy and voluntary activity’ challenge the concept of universal provision, which is held at the core of the welfare state. This division shifts between the idea of welfare as a right and

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the somewhat more benign understanding of welfare as the meritous shepherd tending to their obedient and compliant flock, who must display both gratitude and an impulse towards a humble poverty. This Foucauldian ‘shepherd-flock game’ is a far cry from the context of a citizen’s rights and obligations, and indicates the tensions between the notions of the citizen, and the living individual who is the target of pastoral power, a being who is both obedient and needful (Dean, 1999, p. 76). Therefore, Pastoralism can be seen to be an exercise in extending power over those in need of welfare by maintaining and reinforcing the dependency and disenfranchisement of the poor, rather than provision of rights for the citizenry. Under this pastoral model, the state takes on the role of benefactor to those in need, rather than acting as a facilitator for citizen’s rights. The recent neo-Liberal and neo-Conservative assault on the welfare state, which combines religious fundamentalism with a desire to ‘roll back the state’ can be seen as an example of the politics of the ‘new right’ which emerged in response to the welfare state of the 1960s. However, the Left’s reliance on the welfare state as a means of maintaining power can also be seen as an aspect of pastoral power. Under these two competing agendas, pastoralism as welfare has become embedded within the political system that contemporary politics can be understood through an examination of the positions taken for or against the welfare state by modern political parties. Again, the recognition of the potential of the creative impulse of humanity as extolled by Marx’s concept of ‘species being’ (Marx, K. The Early Works, cited in Coletti, 1996) is denied, to be replaced by a form of pastoral welfarism which ‘proposed solidarity between rich and poor as a potent analogue of the relation between God and sinner, and penitents giving alms for venial sins’ (Dean, 1999, p. 80). This extent of religious or pastoral influence exercised on the evolution of political power over the centuries is also problematic due to the traditional religious reductionism which maintained authority while marginalising large sectors of society such as women, children and the poor from the structures of power which churches developed from their pastoral agendas. In many ways, the development of modern welfarism has underpinned the marginalisation of these groups in the guise of maintaining welfare provision for those ‘in need’. This reinforcement of marginalisation and exclusion is characteristic of the contemporary approach to welfare, while ideological debates about the

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nature of provision rarely include agendas of empowerment, which would address this exclusion. Dean sets out Foucault’s perspective on the issue of the welfare state by dividing the wider populace into the following categories: Shepherd-Flock: ‘the living being’ with individual needs which must be ‘integrated within complex forms of social solidarity. City-Citizenry: ‘the individual as citizen’ with ‘freedoms and rights within the legal and political structure of the political community’ on an equal basis with all other citizens (Dean, 1999, p. 82). In many ways, these distinctions create the foundation for what was once the central ideological debate in Western democracies: the view that the public constituted a citizenry with rights which were then reflected in the provisions of the welfare state as held by the Left as opposed to the Right’s perspective that markets were sacrosanct and that welfarism could unbalance the moral and political order of society. This distinction was blurred by the rise of neo-Liberal and ‘New Right’ thinking and the subsequent emergence of ‘Third Way’ politics, which revised traditional understandings of welfarism by introducing public/ private partnerships into the equation. By introducing the corporate sector into the welfare debate, contemporary politics has established a further category to Foucault’s ‘Shepherd-Citizen’ equation as a form of Corporate Welfarism. This corporate approach further marginalises non-economic actors and creates a multi-tiered society. Moreover, this multi-tiered society begets further layers of bureaucracy as a Weberian rationalisation process emerges from the cycles of governance. One area of rationalised governance, which Dean describes as impacting on the ‘pastorate’, is policing. As bureaucratic rationalisation creates a ‘reason of state’ (Dean, 1999, p. 86), this governmental rationale manifests itself through political expediency. Reason of state is invoked and attributed to issues of state security when normal laws or rights are suspended in the event of political crisis. Thus, when policing strategies are called into question, it is sometimes defended or excused by reason of state security. Therefore, affairs of state and strength of state (security) is augmented by a layer of governance, which in contemporary society is represented by the police. However, the origins of policing are found in the twin projects of keeping the peace and the protection of private property both of which are central to the preservation of law and order within the state. This concern with state control of the activities of its citizenry is an element of multi-layered and multi-agency governance.

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Policing plays a role in the maintenance of good governance within the state, something which can be understood by the following quotes: The object of police is to keep a community thriving, so that its subjects may prosper, and to prevent anything hindering the common good. (Dean, 1999, p. 90) At first police ordinances dealt primarily with ‘sumptuary’ problems of the blurring of distinctions between the estates, such as the wearing of extravagant clothing … and the behaviour of servants and journeymen towards their masters. (Knemeyer, 1980, p. 174)

As municipalities and sovereign city-states emerged, so too did the elements of local governance which dealt with the mechanisms of an emergent legal system with its inherent policing infrastructure. This devolution of power from the central ruling elite of the state through to the police represents a process of civilisation as understood by Elias; however this process is also a form of governmentality, and its devolved nature lends itself to legitimised regional forms of control.

2.11. RESTORATION AS PART OF THE ‘CIVILISING PROCESS’ This section discusses Elias and Dunning’s contention that restoration emerges as part of a ‘civilising process’. Elias presents two key concepts, which are important in order to understand his theory of the ‘civilising process’. The two concepts are what he calls ‘development’ and the ‘immanent dynamics of figurations’. The term figuration as employed by Elias refers to a web of interdependent human beings who like all other aspects of known reality figurations are inherently processual (Dunning & Rojek, 1992). Elias views life itself as a process and it is human beings who form figurations and they are not only interdependent with each other but have to act and interact not only with themselves but also with the rest of nature to secure their own survival and furthermore the production and reproduction of life itself. Elias believes that over time the actions of human beings become intertwined and this unintentionally produces change. Dunning and Rojek contends that the concept of development refers in a minimum sense to a change towards higher levels of differentiation and integration (1992). Essentially, we can apply these understandings of the

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civilising process to the area of restorative conferencing. In so doing, a wider understanding of the significance of Elias’s ‘web of interdependent human beings’ in both the ‘development’ and ‘immanent dynamics’ categories is created. The meaning Elias attributes to his concept of ‘immanent dynamics’ is that the dynamics of a social figuration are embedded in any social structure such as restorative conferencing and furthermore immanent dynamics appear in the make-up and actions of the people who participate in events such as restorative conferencing events. However structures and processes are different in each of the six cases but on the other hand each of the participants is not separate from each other and they each ‘affect’ the other in the manner that Tomkins (1962) outlines. In the same way, the social figurations, which occur in the conferencing process, are not separate or detached from the participants who comprise the six conferences detailed in the research. Dunning and Rojek states that human beings co-exist through their patterns of interdependency as they attempt to secure their ‘shared and conflicting ends’ through the structure of figuration that they form (1992). Again, this process is reflected in the six conferencing studies, as the group works to deal with conflict issues. This study demonstrates Dunning’s contention that the existence of what he calls the ‘functionalist exchange’ between individuals and groups in social situations such as restorative conferencing creates ‘social facilitation’ (Hogg & Vaughan, 2005). The creation of the functional exchange between participants creates the crucial connections for this process of social facilitation and restoration. This social facilitation process is further underpinned by Elias concepts of the ‘immanent dynamics of figurations’ and ‘development’. These struggles are largely influenced by factors such as the numbers of conference participants, or through the strengths of the chains of interdependency within a particular individual group or family of the offender in relation to their interaction and relationship with those of the victim’s family or support group. Finally, the degree of self-control that participants exercise over themselves affects the balance within the conference. By applying these concepts to the conferencing process, this research demonstrates that Dunning’s understanding of Elias’s theory of civilising process forms the cornerstone for understanding social facilitation processes and the functionalist exchange, which takes place as a result. The central observation, which Elias makes through his theory of the civilising process, is that Western societies have experienced a growth in the

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refinement of manners and social constraints. The refinement of manners is self-explanatory but by social constraints Elias is referring to the increase in the amount of social pressure on people to exercise a more even selfcontrol over their feelings in the field of social relations. Mennell (1998, p. 14) contends that Elias through his theory sought to show how the people in advanced contemporary societies have been able to maintain a fairly even and stable control over their ‘more spontaneous libidinal, affective and emotional impulses and over their fluctuating moods’. This would also explain the process of social facilitation and the reduction of social inhibition, which results in the elucidation of remorse, guilt and shame during the conferencing process. From the perspective of Elias’s ‘civilising process’, this applies to the functionalist roles but also to both the individual and family relationships, which emerge as a result of the ‘functionalist exchange’ during the restorative conference. In these situations, such a functionalist exchange can become inhibited or enhanced according to the size of the group. ‘of course, the presence of the victim can leave people in an emotive state; ‘People who are strongly in the grip of feelings that they cannot control are cases for the hospital or prison’ (Elias & Dunning, 1986, p. 41). In addition, remorse must also be elucidated from the offender as part of the process of restoration. The production of sorrow, remorse, acceptance or other aspects of social facilitation involve some risks on behalf of all participants. This reduction in the participant’s social inhibitions is described by Elias in the following quote: Different moods are evoked and perhaps contrasted, such as sorrow and elation, agitation and piece of mind. Thus the feelings aroused in imaginary situation of human leisure activity are the siblings of those aroused in real life, situations, that is what the expression ‘mimetic’ means but the latter are linked to the never ending risks and perils of fragile human life, while the former momentarily lift the burden of risks and threats, great or small, surrounding human existence. (1986, p. 42)

This expression of emotion is for many participants in restorative conferencing a liberating experience because many in society are more isolated and have very few opportunities for collective manifestations of strong feelings (Elias & Dunning, 1986, p. 43). Within the conferencing process, there is the sense that the participants have to exercise different levels of selfcontrol and self-constraint, in order to achieve full restoration within the group. The points made by Dunning and Elias on emotions are relevant in relation to the social facilitation of the conferencing process. Pressures and restraints have always and possibly will always exist in social facilitation

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processes such as restoration conferencing, and the six case studies demonstrate that restorative events provide the participants with the opportunity to loosen the controls and constraints they place on themselves in relation to expressing their emotions. However, at the same time Elias acknowledges that an overall feature of the long-term civilising process is reflected in the way that emotional exchanges occur. In order to provide a more fulfilling sense of restoration for participants, it is important that the restorative conference allows for the fullest expression of anger from the victims and remorse from offenders that is socially tolerable for participants, which in turn is a part of the recivilising process itself. Elias and Dunning also contend that a realistic level of feelings be maintained throughout the re-civilising process: If tensions arise in the wider society, if restraints on strong feelings become weakened there … the level of hostility and hatred between different groups rises in good earnest. (Elias & Dunning, 1986, p. 43)

Punishment according to Garland is a phenomenon commonly regarded as a uniform object or event rather than, he states, as a complex set of interlinked processes and institutions (1999). Punishment he suggests is not a singular entity but rather in its self a social institution, which embodies and condenses a range of purposes and has a wealth of historical meaning (Garland, 1999). Early sociological and criminological theorists such as Durkheim (1904/ 1950), Merton (1956), Foucault (1977) and in lesser terms Elias (2000), move back and forth between the different areas in the penal process, rather than producing different interpretations of the same thing. With the exception of studies of the ‘institutions of imprisonment’ (see Goffman, 1961; Morris & Morris, 1963) the body of work is uneven and disparate in quality, resulting in a diverse range of sociological explanations, characterisations and intellectual traditions that adopt different angles of approach to the study of punishment. However while there is little coherence when all of these works are put together, the common thread between them is that they all accept that certain social forces can cause or influence criminal behaviour (Garland, 1999). As a social construction changes, so does the nature and patterns of control over it (Qvortrup et al., 1994). This statement is particularly apt in the case of charting the history and course which the juvenile justice system in England and Wales and to some extent Scotland and the Republic of Ireland have taken since the nineteenth century.

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As previously stated from the sixteenth and seventeenth centuries onwards childhood emerged as a social construction distinctly different from adulthood. As a result of the institutionalisation of childhood (Aries, 1996; James, Jenks, & Prout, 1998; Qvortrup et al., 1994) it is not surprising that there has been adverse affects in the juvenile justice system where complex and at times controversial changes have occurred down through the years (Muncie, 2002).

2.12. CHAPTER SUMMARY This chapter provided a framework for understanding the key theories of functionalism, social control, crime and deviance, which surround the issue of restorative justice. The chapter defined key themes such as crime, deviance and delinquency. This was achieved by applying a sociological understanding and perspective to existing criminological inquiry. The chapter began with setting out the functionalist perspective. The next section examined the perspective of Durkheim, Foucault and Merton on crime. It then presented the Chicago School’s contextualisation of crime and delinquency moving on through Matza. The chapter then went on to examine governmentality through Foucault and Dean. Furthermore the chapter analysed contemporary sociological and criminological understandings of delinquency, deviance and juvenile justice. The chapter also examined the civilising process and anomie through Merton and Elias. The chapter concluded with an outline of the significance of the functionalist socialisation in the context of youth crime and justice.

CHAPTER 3 RESTORATIVE JUSTICE: PHILOSOPHY, THEORY AND PRACTICE

3.1. INTRODUCTION This chapter begins with an overview of restorative justice. It sets out the definitions and principles of restorative justice. It discusses the myths and realities of restorative justice from the perspective of Braithwaite and Daly. The chapter further develops understanding of restorative justice by introducing a practitioner’s perspective and using this to further critique Braithwaite’s theory of Reintegrative shaming. This is achieved by applying Tomkins’ Affect Theory and Nathanson’s Compass of Shame to Braithwaite’s own understanding of Braithwaite’s Reintegrative shaming. By critiquing Braithwaite’s understanding of Reintegrative shaming through the practitioner’s perspective, the chapter provides a fuller understanding of the potential for restorative justice to provide a meaningful framework of mediation in policy and practice.

3.2. WHY RESTORATIVE JUSTICE? Like the crime it is supposed to deal with, punishment is nowadays seen as a chronic problem (Garland, 1999). The renewed interest in restorative justice in America and in Europe has arisen out of a growing recognition that a reliance on traditional forms of punishment such as detention and incarceration is failing to deliver a sense of fairness, satisfaction and 43

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security from the justice system. It can be argued that our criminal justice system • Excludes the victim from the system • Is centrally concerned with punishment This does not produce fairness or invoke empowerment to either the victim or the offender. Restorative justice operates within the framework of the law and is overseen by the courts to ensure that the outcome is reasonable. It allows the victim and the offender to meet face to face and discuss the harm they have suffered as a result of the offence. It empowers victims and offenders and provides them with the opportunity to take action to restore one another to their pre-offence state. This gives both parties the opportunity to reintegrate into society with lower rates of stigmatisation for the offender. An important point to note is that the offender or offenders are made aware at the beginning of the restorative event that if they fail to co-operate with the proceedings, they may be subject to a more adversarial response from the courts. The primary goal of the restorative justice process is not punishment but making good the harm done by offending for the victim, the community and the offender. Offenders have to take responsibility for their actions as a precondition to addressing the harm that they have caused. Offenders become aware that a crime is committed, not against an abstraction, but against someone real, a person like themselves and against their community, who are directly and indirectly affected by what has happened. Crime and conflict affect relationships between individuals who are left outside the court system altogether by conventional justice. Proceed-ings and arguments of the restorative process are voluntary for all parties. People are given the opportunity to partake in mediation, or to accept reparation. The process is always confidential however; outcomes and agreements can be made public, depending on the authorisation by participants.

3.3. THE ORIGINS AND MEANING OF RESTORATIVE JUSTICE The concept of restorative justice dates back centuries in tribal traditions. Aboriginal and Native American forms of justice are just two examples of systems that operate on the basis of restoration and reparation. Maori tribes in New Zealand have been using the restorative justice model for

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hundreds of years to deal with crimes and offences committed against members of the same tribe. The process operates as follows, if a member of the tribe commits an offence or inflicts harm on another member of the tribe they are required to meet with their victim face to face, in front of other members of the tribe, discuss the incident and offer some form of reparation for the harm that they have caused (Consedine, 1995). Restorative justice is a distinct philosophy of justice, which focuses on making amends for harm done (Edgar & Newell, 2006; Wright, 1999). The fundamental principle of this philosophy is that when a person has harmed another, the most useful response is to try to repair the harm (Consedine, 1995; Johnstone & Van Ness, 2007). Restorative justice stretches far beyond ideas about criminal justice to encompass civil renewal, individual responsibility, conflict resolution, empowerment, shaming and forgiveness (Braithwaite, 1999; Hudson, 2003). While the term ‘restorative justice’ in itself is relatively recent, when reviewed in the context of its historical development, it becomes apparent that key terms of restitution, reparation, compensation, reconciliation, atonement, redress, community service, mediation, are all used interchangeably in the literature (Weitekamp & Kerner, 2002). These key terms have collectively been united under the umbrella of what is now known as restorative justice. Restorative justice operates within and outside of the criminal justice process (Morris & Maxwell, 2002; Roche, 2004). While it may have only come to prominence in Western societies in the 1980s, the concept is far from new and can be linked to traditions of the Celts, Maori, Samoans, other indigenous peoples, as well as having roots in various religious communities (Consedine, 1995; Gelsthorpe & Morris, 2002). For some commentators, it is not a new form of justice but rather dates back and returns society to pre-modern forms of justice (Zehr, 1990). In this context, restorative justice is seen as timeless, with the modern criminal justice system as an abnormal development requiring explanation (Crawford & Newburn, 2002; Daly, 2002; Johnstone, 2003). The modern state is considered to have ‘stolen the conflict’ from communities, victims and offenders, and in the process buried longstanding traditions of restorative justice (Christie, 1977). Some go as far to suggest that restorative justice has been the dominant model of criminal justice throughout most of human history for all of the world’s people (Braithwaite, 1998). Furthermore, its re-emergence in recent decades is connected to a number of social, political and cultural changes; for example, the re-articulation

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of rights and responsibilities between the state and civil society particularly inspired by neo-liberal assaults on the welfare state, and the increasing salience given to victims of crime (Crawford & Newburn, 2003). According to advocates, the revival of restorative justice has been borne out of a critique of traditional criminal justice (Johnstone, 2002). They claim that it offers a distinct and unique response to crime that can clearly be differentiated from retributive and rehabilitative responses (the latter may show some similarities to restorative concerns but their purpose is quite different) (Weitekamp, 1999). According to Walgrave (1994), the retributive response to crime takes place in a societal context of state power, focuses on the offence, inflicts harm, seeks just deserts and ignores the victim. The rehabilitative response to crime takes place in the context of a welfare state, focuses on the offender, provides treatment to him or her, seeks conforming behaviour and also ignores the victim. Restorative justice, on the other hand takes place in the societal context of empowering the victim, focuses on losses, repairs the damage inflicted, seeks satisfied parties and views the victim as the central person of the whole process (Hoyle & Young, 2002; Hudson, 2003). It is the most significant development in criminal justice and criminology over the past two decades (Bazemore & Schiff, 2005; Crawford & Newburn, 2003; Hudson, 2003). According to some commentators, restorative justice became the global social movement for criminal justice reform in the 1990s and into the new millennium (Braithwaite, 1998). It is most commonly characterised by what it is an alternative to, and gives new focus to the concept of informal justice (Braithwaite, 2002; Roche, 2004). Broadly speaking, its goal is to transform the way in which contemporary societies view and respond to crime and associated forms of problematic behaviour (Johnstone & Van Ness, 2007). For example, juvenile justice as alluded to earlier can be regarded as swinging back and forth during the past century between a justice and a welfare model, between retribution and rehabilitation (Goldson, 2006; Muncie, 2002). Restorative justice is heralded as a long overdue third model or a new ‘lens’ in which to perceive crime (Zehr, 1995) a means of avoiding the sway and heading more consistently in a new direction, at the same time enlisting the support of both liberal politicians who advocate the welfare model and conservative politicians who propose the justice model (Daly, 2002; Braithwaite, 2002). The appeal of restorative justice to liberals is a less punitive justice system. The appeal to conservatives is that restorative justice strongly

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emphasises victim empowerment, empowers families and communities, takes account of home responsibilities and saves money as a result of the minimum use of punishment. Specifically, it seeks to replace existing professionalised systems of punitive justice and control with communitybased reparative justice and moralising social control (Johnstone & Van Ness, 2007).

3.4. THEORY/PRINCIPLES OF RESTORATIVE JUSTICE Tony Marshall, of the Restorative Justice Consortium, has defined restorative justice as the following: A process whereby all 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. (1999, p. 18)

Marshall contends that restorative justice should aim to achieve the following six outcomes (Marshall, 1999, p. 18): • • • • • •

Denunciating crime Reforming individual offenders Preventing crime Helping victim Making good the suffering caused by crime Keeping the costs of administering justice to a minimum

Restorative justice essentially views the criminal conflict foremost as a breakdown in relationships between individuals and only secondly, as a violation of the law (Zehr, 1990). Its seeks to repair the relationship through a healing process designed to meet the ends of the victims on the one hand, for example, elimination of the fear of re-victimisation, and on the other hand, reintegration of the offender into society. The traditional retributive focus of the formal criminal justice system, incorporating the notions of punishment and ‘just deserts’, are not the goals of the restorative justice process and are viewed as ineffective, undesirable and counterproductive to prevent the offender from re-offending. The restorative justice process looks to the needs of parties: reparation of injuries, relationships and physical damage to the victim as well as

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attending to the needs of the offender who brought about the crime in the first place. Restorative justice in very simple terms is another way of dealing with offenders. Many see it as an alternative to traditional approaches. The central focus of restorative justice is the harm caused by the offence. The offender has to redress this balance voluntarily. This is achieved by acknowledging the harm caused and by righting the wrong by engaging in reparation. In the current retributive system, crime is considered a violation against the state. The aim of justice will be to establish guilt and hand out a punishment. It is an adversarial system with the central component of punishment. Restorative justice sees crime as a violation on people and their relationships. The aim of restorative justice, therefore, is to recognise the harm caused to victims, the community and offenders. It endeavours to repair the damage caused. The paradigms of criminal justice processes, restorative justice versus retributive justice put forward by Zehr (1990), provides an in-depth comparison of what both processes stand for in simple terms.

3.5. DEFINITIONS AND PRINCIPLES Restorative justice is a process whereby all of 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. (Marshall, 1996, p. 37)

This proposed definition of restorative justice by Tony Marshall is increasingly used internationally (Morris & Maxwell, 2002). While it is helpful, it fails to specify who or what is restored and to define core values of restorative justice (Braithwaite, 1999). Some argue that it is too restrictive (Bazemore & Walgrave, 1999; McCold, 2000). Others suggest that restorative justice embraces a creative range of potential solutions with one of its main hopes being that there is reconciliation, rapprochement or greater mutual understanding between the parties (Johnstone & Van Ness, 2007). The reintegration of the offenders into the community is also a desired outcome. A further definition which states the aims of restorative justice clearly as well as describing the process by which they are to be achieved is Van Ness’s explanation that the purpose of restorative justice is ‘the restoration into safe communities of victims and offenders who have resolved their conflicts’ (Van Ness, 1993, p. 258).

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Overall, in terms of what is to be restored, Braithwaite states whatever dimensions matter to the victims, offenders and communities affected by the crime (1999, p. 6). The collective concern of all of those with an interest in restorative justice is to provide a robust definition of what restorative justice and its central components are in order to make it possible to measure empirically and to clarify the central values underlying restorative practices against counter claims (Crawford & Newburn, 2003). While there is considerable debate in the literature regarding the nature of restorative justice and Marshall’s definition, it does identify some of the main principles of restorative justice: the notion of stakeholder inclusion, the importance of participatory and deliberative processes and the emphasis upon restorative outcomes. Firstly, the notion of stakeholders seeks to recognise that crime is more than an offence against the state as stakeholders, and they are considered to be more directly affected by acts of harm rather than the state (Hudson, 2003). Stakeholders include not only the victim and the offender but also the families and supporters of each and other members of their respective communities who may be affected or who may be able to contribute to the prevention of further offending (Roche, 2004). The practical aim of restorative justice is to consider the impact on victims and others involved, be they family, friends, peers or members of the wider community (Sharpe, 1998). It also endeavours to explore the impact upon the community and implicitly seeks to limit the role of legal professionals. Advocating Christie’s call, ‘let’s have as few experts as we dare’ (1977, p. 12), restorative justice prefers to empower victims, offenders, family members and others as partners in the justice process. According to Crawford and Newburn (2003, p. 22) these are the new stakeholders of a revised vision of justice, which seeks to recognise and bring into play, through their active involvement, a broader conceptualisation of the appropriate key actors in dispute processing and resolution. Therefore restorative justice relocates authority in responses to crime away from the state to stakeholders themselves who are afforded the maximum degree of control over deliberation and decision-making (Hudson, 2003). In the case of the Republic of Ireland, the relocation of authority from the state to the community is an issue, which the empirical findings will critically examine. Secondly, the importance of participatory and deliberative processes emphasises the value of participation, empowerment, communication, dialogue and negotiated agreements. Informal environments in which

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stakeholders are comfortable are conducive to good communication between parties. At the heart of the restorative justice philosophy lies a concern with a particular mode of participatory conflict resolution that centres on consensus building through a problem-solving approach to crime that is grounded in local knowledge and local capacity (Johnstone & Van Ness, 2007). Restorative processes emphasise the importance of offender and victim participation choice and control in the process of face to face encounters and decision-making. Restoring a sense of control to the central parties is a key aspect of the restorative process (Wright, 1999). One intended consequence of party-centred control and participation is to restore responsibility to participants, in the belief that this will encourage offenders to be more accountable for their actions and to encourage others to take responsibility for ensuring the successful implementation of any agreement reached (Maxwell & Morris, 2002). Discussing the consequences of offences is seen to be a more powerful way of communicating the gravity of their offence to offenders in a way that brings home the impact on victims (Morris, 2002). It is believed that a process that treats people with respect and encourages their empowerment is more legitimate in the eyes of those participating and, furthermore, that it encourages a general respect for the law and understanding of the consequences of individual action on others (McCold, 2001). Similarly, the primary research will seek to examine if Irish restorative justice programmes encourage participation, empowerment, communication, dialogue and negotiated agreements between parties. Thirdly, restorative justice maintains and appeals to particular restorative outcomes or resolutions. Repairing the harm caused by the crime to all of those directly and indirectly affected is the ultimate aim of restorative interventions. Reparation may be symbolic as well as material, the intention being that outcomes should seek to heal relationships (Braithwaite, 1998). In practice, these often include verbal or written apologies, compensation or direct reparation to the victim for the harm and indirect reparation to the community, which may take a variety of forms (Hudson, 2003). It is suggested that restorative outcomes should be flexible and partycentred as well as problem-oriented (Johnstone, 2002). The outcomes of restorative justice processes will be a key area of research analysis in the context of the Republic of Ireland. In addition, restorative justice can be

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used to settle community disputes. One area where this may be possible is in the area of ethnic disputes and this will examined in later sections of this chapter.

3.6. BRAITHWAITE AND DALY: MYTHS AND REALITIES OF RESTORATIVE JUSTICE Braithwaite contends that restorative justice involves a different way of thinking about traditional notions such as deterrence, rehabilitation, incapacitation and crime prevention. He believes that restorative justice is about restoring victims; a more victim-centred criminal justice system as well as restoring offenders and the community (Braithwaite cited in Johnstone, 2003, p. 86). He states that the task of restorative justice is to confront the shame of the offender, make them responsible for the bad consequences suffered by the victim and apologise with sincerity, essentially it aims to restore dignity for offenders. Braithwaite (1989) states for victims, restorative justice aims to restore social support through institutionalising the gathering around of friends during a time of crisis. He believes that by removing the sense of insecurity and disempowerment of both victims and offenders, through a process of deliberative democracy, society can design institutions so that concerns about issues like unemployment have a channel through which they can flow from discussions about local injustices up into national economic policy making debate (Braithwaite cited in Johnstone, 2003). Braithwaite doesn’t advocate that society abolishes the concept of crime or the key elements of state criminal justice systems which have been globalised, rather he believes in shifting power from them to civil society, keeping key elements of state systems but shifting power away from central institutions and checking power that remains by deliberative democracy from below, for example self-regulatory practice which restorative justice enables (Braithwaite cited in Tonry, 1998). Braithwaite has been at the forefront in the study of restorative justice, especially through the means of his concept of reintegrative shaming. He contends that there are many reasons for the criminal justice system failing in its efforts to control levels of crime such as the stigmatisation of criminals. Braithwaite’s theory of Reintegrative shaming claims that it is the

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societies with the lowest crime rates that have the ability to shame criminal conduct most effectively (Braithwaite in Johnstone, 2003). He believes that there is an important difference between shaming a person and stigmatising them. For Braithwaite, reintegrative shaming prevents crime, while stigmatisation is a form of shaming which makes crime problems worse. Reintegrative shaming means disapproving of the wrongness of the act, while at the same time treating the person who committed the act as essentially a good human being. Reintegrative shaming in summary relates to a strong disapproval of the act but conveying and articulating a response that is seen to respect the offender (Braithwaite, 1989). Daly (2003), in her article Restorative Justice: The Real Story, addresses the problem of defining restorative justice. She states that this is not easily done as it encompasses a variety of practices at different stages of the criminal justice process. She also points out that in most legal issues involving individual criminal matters, restorative justice practices have only been applied to those offenders who have admitted to an offence. Therefore, it deals with the penalty phase of the criminal process for admitted offenders, not the fact-finding phase. Daly’s work differs greatly from Braithwaite’s largely due to the fact that she deals with myths of restorative justice and, furthermore, she uses data obtained from observing conferences to achieve her objective. Daly (2000, 2002, 2003, 2005) discovered that participants engaged in a flexible incorporation of multiple justice aims which included some elements of retributive justice, censure for past offences, some elements of rehabilitative justice in the form of asking questions such as what could be done to encourage future law-abiding behaviour and some elements of restorative justice, such as how the offender make up for what they had done to the victim (Daly cited in Johnstone, 2003). As a result of her findings, Daly was provoked to consider the relationship between restorative and retributive justice and the role of punishment in restorative justice. She states that because the terms ‘retributive justice’ and ‘restorative justice’ have such strong meanings and are largely used by advocates as metaphors for the bad and the good justice, perhaps they should be analysed in a way which explains current and future justice practices (Daly cited in Johnstone, 2003). Daly does not concur that the practices of restorative justice, which are in operation in some jurisdictions are replicas of pre-modern forms of justice, rather they are new justice practices, which have many bits of ‘old’ in them. By the old justice, Daly refers to modern practices of

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courthouse justice which permit no interaction between victim and offender, where legal actors and other experts do the talking and make decisions, whose stated aim is to punish or at times reform an offender. By the new justice, she refers to a variety of recent practices which bring victims and offenders as well as others together in a process where both lay and legal actors make decisions, whose aim is to repair harm for victims, offenders and other members of the ‘community’ in ways that matter to them. Therefore, as Braithwaite and Petit contend, restorative justice has a better chance than ‘just deserts’ of being made equally available to both rich and poor (Braithwaite & Petit, 1990). The story of Sam (an offender), which both authors refer to in their work, depicts the practice of restorative justice in operation. In the alienated urban context where the existence of a community is not apparent in a satisfactory way, a criminal justice system aimed at restoration can construct a community of care around a specific victim or offender. Both state that it is the empowerment principle of restorative justice that makes this possible. It is a form of empowerment, which permits process control (Daly, Braithwaite cited in Johnstone, 2003). Braithwaite (1989) further states that restorative justice must be a culturally diverse social movement that accommodates a rich plurality of strategies in pursuit of the truths it holds to be universal. We can achieve this he believes by carrying out a culturally specific investigation into how to save and revive restorative justice practices that remain in all societies and how to transform state criminal justice by making it both more restorative and by rendering such abuses of power less likely through restorative justice. Daly agrees with Braithwaite’s ideal of a culturally diverse social movement and states that the real story of restorative justice offers hope not only for a better way to do justice but also for strengthening mechanisms of informal social control and as a means to minimise reliance on formal aspects of social control, primarily the machinery and institutions of criminal justice.

3.7. RESTORATIVE PHILOSOPHY ‘IN THE PUBLIC INTEREST’ In the past, the formal criminal justice system has been overly focused on what O’Mahony (2001, p. 11) calls, ‘public interest’ which effectively

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amounted to the state overriding the interests of the other stakeholders. Restorative justice on the other hand is also perceived as a philosophy that embraces a wide range of human emotions including healing, mediation, compassion, forgiveness, mercy, reconciliation as well as sanction when appropriate (Consedine, 1995, p. 183). According to Consedine (1995), the restorative approach to crime came about following mounting concern over the exclusion of the victim from the criminal justice system and also through the belief that there was a lack of participation by the offender. He believes that the restorative justice process recognises a worldview that says we are all interconnected and that what we do, be it for good or evil, has an impact on others. Restorative justice in Consedine’s view offers a process whereby those affected by criminal behaviour, be they victims, offenders, the families involved or the wider community, all have a part to play in resolving the issues that flow from the offending. Under restorative justice, victims and offenders assume central roles and the state takes a back seat. The process does not focus on vengeance and punishment but seeks to heal both the community and the individuals involved. This is achieved by a process that puts the notion of reparation, not punishment, at its centre (Consedine, 1995). Essentially, this understanding of restorative justice philosophy is based on three beliefs that crime results in harm to victims, offenders and communities. Not only government, but victims, offenders and communities should be actively involved in the criminal justice process. In promoting justice, the government should be responsible for preserving order (Van Ness, 1996). These general beliefs lead to a number of common elements among restorative justice programmes. The key features of the concept of restorative justice can therefore be outlined as follows: It is a process whereby parties with a stake in a specific offence resolve collectively how to deal with the aftermath of the offence and its implications for the future. It is a problem-solving approach to crime, which involves the parties themselves, and the community generally in an active relationship with statutory agencies. It is not a particular practice, but a set of principles, which may guide the general practice of any agency or group in relation to crime. It seeks to balance the concerns of the victim and the community with the need to reintegrate the offender into society. It seeks to assist recovery of the victim and enable all parties with a stake in the justice process to participate in it. Restorative Justice is not a movement alongside or against the current criminal justice system but must be seen as a fully integrated approach with the existing criminal justice system in order to modify the foundations of the system itself. (Aerston, 1997, p. 14)

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This does not necessarily produce fairness or invoke empowerment to either the victim or the offender. Restorative justice operates within the framework of the law and is overseen by the courts to ensure that the outcome is reasonable. It allows the victim and the offender to meet face to face and discuss the harm they have suffered as a result of the offence. Restorative justice empowers victims and offenders and provides them with the opportunity to take action to restore one another to their preoffence state. It gives both parties the opportunity to reintegrate into society and lower rates of stigmatisation for the offender. An important point to note is that the offender or offenders at the beginning of the restorative event are made aware that if they fail to co-operate with the proceedings they may be subject to a more adversarial response from the courts.

3.8. AFFECT THEORY IN RESTORATIVE PRACTICES While Braithwaite’s theory of Reintegrative shaming1 has been at the forefront within the field of restorative justice, Sylvan Tomkins’ (1962) theory provides a greater understanding of the benefits of the restorative conferencing process for diverse groups. Tomkins’ Affect Theory is based on a psychological theory of human affect. The term Affect which Tomkins uses specifically refers to the biological portion of emotion or what he calls the hard-wired, pre-programmed, genetically transmitted mechanisms that are present in each human being. These mechanisms when triggered precipitate a known pattern of biological events. However, it is also acknowledged that in adults, the affective experience is a result of both the innate mechanism and a complex system of nested and interacting ideo-affective formations. Tomkins’ theory has been analysed and presented in more detail through the work of Nathanson (1992). Affect Theory is a very effective tool in explaining the success of the scripted conference. The conferencing process encourages free expression of affect, which is the biological basis for emotion and feeling. The conference provides an opportunity for participants to express true feelings while minimising negative affects and maximising positive affects. According to Tomkins’ theory, this kind of environment is the ideal setting for healthy human relationships.

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The restorative-based conference script utilises open-ended questions, which allow for the expression of the nine basic affects that Tomkins identifies as being present in every human being. These nine affects are listed as Enjoyment-Joy, Interest-Excitement, Surprise-Startle, Shame-Humiliation, Distress-Anguish, Disgust, Fear-Terror, Anger-Rage and ‘Dissmell’.2 Tomkins presents most of these affects as word pairs which name the least and the most intensive expressions of that affect. When a conference begins, participants are usually feeling disgust, dissmell (which originally originated as a response to offensive odour), anger-rage, distress-anguish, fear-terror and shame-humiliation. These six negative affects are the most obvious when participants take their seat in the circle and when the conference itself begins. When participants respond to the scripted questions such as, ‘What happened?’ ‘What have your thoughts been since?’ ‘How has this affected/harmed/hurt you and others?’ and ‘What has been the hardest/ worst thing?’ they may express all or some of the negative affects and feelings. Anger, distress fear and shame are diminished throughout the sharing process among participants. Their expression helps to reduce the intensity of the affects, and may be applied with relevant cultural sensitivity. As a restorative conference proceeds, participants experience a transition, which is characterised by the neutral affect of surprise-startle (Nathanson, 1992). Victims, offenders and their supporters are usually surprised by what people say during the conference and how much better they begin to feel as a result of the expressions of affect by others. This may also reduce ethnic tensions. When the conference reaches the agreement phase, participants are usually expressing positive affects of interest-excitement and enjoymentjoy. This is particularly evident when participants are asked to respond to the following scripted questions ‘What do you think/feel about what has been said?’ ‘What do you think about what had happened here?’ ‘What would you like to come out of the meeting?’ People recognise the affects seen on others’ faces and tend to respond to the same affect. When one is angry, others become angry. For instance, when one feels better and smiles, so do others. Tomkins refers to this as ‘affective resonance’ or empathy. Through this ‘affective resonance’ conference, participants make the emotional journey together, feeling each other’s feelings as they move from anger, distress and shame to interest and enjoyment.

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For the conference, the prospective facilitator can take comfort and gain confidence in understanding that Tomkins’ (1962) Affect Theory is reliably demonstrated by the scripted conference process. Participants consistently move from negative to positive feelings in the safe and structured environment created by the script (O’Connell, Wachtel, & Wachtel, 1999). Nathanson’s (1992) Compass of Shame makes it very clear how people from diverse backgrounds react to each other and express their shame. Nathanson argues that people usually react with one or more of four general patterns or ‘scripts’ which depict as directions on a compass: attack other, attack self, withdrawal and avoidance. For example, when parents of their offending children blame and criticise the school or the police officer, when confronted with an offence, they demonstrate the attack other response. These parents of offenders try to avoid shame by putting the responsibility on others. This is the most common response to shame demonstrated in today’s society. Another contemporary response is avoidance through alcohol, drug abuse or thrill-seeking behaviour such as joy riding in a stolen car. However, several decades ago, the common responses to shame were attack self and withdrawal. In attack self, the shamed individuals are selfpunishing and unreasonably hard on themselves. In withdrawal, the shamed individuals hide as a result of being overwhelmed by the shame. These responses to shame are normal; however, they are harmful and need to be addressed (O’Connell et al., 1999). Conferences can help people move beyond the compass of shame through acknowledgement and expression of shame and through subsequent reintegration. Due to the fact that the restorative conference affirms the intrinsic worth of the wrongdoer and condemns only the objectionable behaviour, parents and offenders feel less threatened and more equipped to acknowledge responsibility. O’Connell et al. (1999) also argue along with other theorists such as Braithwaite (1989) and Daly (2003) that victims also experience shame. Victims may blame themselves for the incident, withdraw and hide their feelings and sometimes distract themselves. Victim may also ‘lash out’ at others close to them who are not responsible for the offence. In providing an outlet for expressing feelings and moving beyond shame to resolution, restitution and reintegration, the restorative conference is as important to victims as it is to offenders (O’Connell et al., 1999). This process paves the way for improved cultural understandings in place of mistrust and misunderstandings from poorly informed cultural assumptions.

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3.9. THEORETICAL CRITIQUES OF RESTORATIVE JUSTICE The relationship between restorative justice and the wider criminal justice system remains a central issue in implementing restorative practices (Braithwaite, 2002; Dignan, 1999). As has been the case in England and Wales, securing referrals has been an enduring problem and as a consequence, many initiatives have remained on the boundaries of criminal justice, both in terms of low referrals and the relatively minor nature of the cases being referred (Miers et al., 2001). This has often left restorative justice as a marginal, irregular and highly localised activity (Dignan & Lowey, 2000). It also creates a situation where programmes are reliant upon other criminal justice organisations such as the police, prosecution service, courts or probation and the prison service for appropriate referrals. Very often, these organisations may not share a restorative justice philosophy; make have different priorities or simply may not have a sufficient framework in place for such programmes to work. The referral problem raises further difficulties for evaluation on the effectiveness of restorative interventions as it introduces elements of bias and self-selection (Crawford & Newburn, 2003; Hoyle & Young, 2002). There is also the issue that programmes, which rely on voluntary choice by offenders, will run the risk that those who choose to partake are those who are most likely not to re-offend. A common experience of restorative justice is that the criminal justice system presents structural, organisational and cultural barriers to its implementation (Walgrave, 2002). This issue is particularly relevant in the Irish case as at present there are a number of structural, organisational and cultural barriers affecting the successful implementation of the Children Act 2001 and restorative justice provisions (Kilkelly, 2006a, 2007, 2008; Seymour, 2004; Walsh, 2005). This is a key concern of the book and will be examined later, in detail, by the primary analysis. There is much debate regarding the merits of different models of restorative justice. However, an understanding of the relationships between the implementation of different models and the mechanics of the societies into which they are being located is rather limited (Maxwell & Morris, 2002). As a consequence of the experiences of restorative justice in other countries, the debate surrounding restorative values and principles is a contested area with many commentators arguing for and against certain standards and ethics (Restorative Justice Consortium, 1999).

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Walgrave (2002) argues that for restorative justice to realise its full potential it needs to transcend the focus on small crimes, juvenile and first time offenders, to actualise its potential fully, a maximinalist version of restorative justice must be developed, with the aim of providing restorative outcomes to a maximum number of crimes in a maximum number of possible situations and contexts, including those whose voluntary agreements are not possible and coercion is needed (p. 34). Hoyle and Young (2002) state that it is crucial, if restorative justice is to fulfil its potential, that its virtues are not exaggerated and that the pitfalls are not ignored. They argue that the greatest tension in restorative justice is to be found in the question of whether it should or should not be integrated into the mainstream state justice system, and if this is the case, to what extent. Some such as Marshall (1999) make the case that restorative justice programmes should be kept separate from mainstream criminal justice because their aims and values are different. Others, including Walgrave (1997, 2002), argue that restorative justice should be an integral part of criminal justice. Any attempts to separate restorative justice from the state is considered to be risky business as it involves rejecting due process protections and other checks and balances that accompany state-administered justice (Roche, 2004). Both critics and advocates of restorative justice have equally expressed concern regarding the limited scope for protecting the rights of defendants in restorative processes (Kilkelly, 2007; Van Ness, 1999). Braithwaite has also highlighted the point that restorative practices can trample rights because of impoverished articulation of procedural safeguards (1999, p. 101). According to Hoyle and Young (2002, p. 540) few would argue ‘that there is no legitimate role for the state in restorative justice’. What is of concern within the context of restorative processes and mainstream criminal justice, however, are issues surrounding the facilitation of conferences, legal advice, proportionality and the influence of state agendas in restorative justice (Ball, 1999, 2004; Fionda, 1999; Gray, 2005; Jantzi, 2004; Roche, 2004). In terms of who should facilitate conferences, there is concern, particularly in the case of those led by the police, that it puts too much power into their hands. The fear is that officers will investigate, arrest, judge, and punish someone without there being sufficient legal safeguards in place against the abuse of power (Ashworth, 2001; Kilkelly, 2007). This has further implications in that the police play contradictory roles; insofar as it creates conflict between police and some young people, with the most obvious result that the police will not be considered neutral facilitators (White, 1994).

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Cunneen (1997) raises a similar point in relation to the situation in Australia, where research evidence has shown that it has been particularly problematic for a police service, which is not seen by indigenous people as legitimate, to try and bring about reintegrative shaming. In the case of New Zealand, Maxwell and Morris (2002) have found that many families have had negative experiences with social work led conferencing. They argue that restorative justice values and those of social work are not reconcilable and where conferences have met restorative objectives and reflected restorative values, this has happened despite it taking place in a welfare setting, rather than because of it. Restorative cautioning in Thames Valley and similarly in the Republic of Ireland is police-led. All facilitators are trained to deliver conferences in a fair way that requires them to follow a script, which charts a path towards a restorative process that is genuine (Maxwell & Morris, 2002). Facilitators are trained to be neutral and the purpose of the conference is to empower the participants and not the police. However, according to observational studies conducted by Young (2001) police facilitators utilised their power in unacceptable ways (there is no research available in the context of police led conferencing in the Republic of Ireland to support or deny this). Hoyle and Young (2002) argue that strategies must be devised to protect against facilitators allowing agendas of the agencies within which they are based to dominate the restorative process. Such strategies, they suggest, should include monitoring by peers or supervisors to safeguard standards, top up training and independent research into practice. Another possibility is for legal advice and representations to be made available to participants as a check and balance to unfairness or abuses of power. However, similar to issues surrounding the facilitation of conferences, the availability of legal advice is a contentious issue within restorative justice. Most people concerned about police and powers of prosecution are in favour of a legal system that promotes fairness and equality. However, some restorative justice advocates such as Wright (1999) do not agree with lawyers or legal representatives, having a role in the restorative justice process or at the very least if there is involvement, that it is severely restricted. The fear lies in the perception that lawyers will monopolise the process, affect the offender taking responsibility for the offence and not be in the interest of the parties (Crawford & Newburn, 2003). Despite this, Hoyle and Young (2002) argue that if restorative justice is to be used effectively to sentence people, then legal representation should be encouraged; otherwise, if it’s not made subject to state scrutiny it will

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remain outside the rule of law. In England and Wales and similarly in the Republic of Ireland, there is no requirement for young people who are offered a warning or reprimand to have access to legal advice (Crawford & Newburn, 2002; Kilkelly, 2006b, 2007; O’Dwyer, 2006). Similarly, offenders who are given referral orders by the courts will rarely be legally represented with youth offender panels (Gelsthorpe & Morris, 2002). Furthermore, support for offenders having legal representation during a conference or other restorative process has been met with hostility (Fionda, 1999). Ball (1999) in her article on the Crime and Disorder Act 1998 and the Youth Justice and Criminal Evidence Act 1999 argues that the legislation is not in compliance with the European Convention on Human Rights in terms of supplying a lawyer at each stage of the criminal justice process, with free legal assistance where necessary. Once again, there are links with the Republic of Ireland as Kilkelly (2006a) argues that these concerns did result in a change in attitude by youth-offending teams in terms of allowing legal representatives to attend panel meetings. However, as Crawford and Newburn (2002) argue, there is no legal aid available for panels so this change has little impact in practice. In addition to concerns regarding the facilitation of conferences and the availability of legal representation, the issue of offender reparation arrangements can have a disproportionate effect on restorative justice processes (Hudson, 2003). Just desert theories are concerned that the influence of victims or the wider community could result in disproportionate reparation agreements (Crawford & Newburn, 2003). For these theorists, it is important that the punishment should always be proportionate to the offence, bearing in mind the seriousness of the harm and responsibility (Von Hirsch, 1993). Fears over such agreements might be ignored if restorative justice was being used only for diverting minor cases from court, but the fact that reparation is part of a referral order, the nature of it as a form sentencing cannot be ignored (Hoyle & Young, 2002). Cavadino and Dignan (1998, p. 351), as advocates of restorative justice, recognise the need for these considerations to be taken into account when responding to an offence: the protection of human rights of potential victims via crime reduction gives us the ‘general justification’ for having a system of punishment; while the desirability of conveying correct moral messages about relative wrongfulness of different actions that affect human rights argues for a general principle of proportionality in the amount of punishment imposed on individual offenders’.

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However, they argue that proportionality does not need to be rigid and can give way at times to other aims such as restoration of the victim. This model allows for reparation agreement to be of a material and symbolic nature and allows victims to play a role in the decision-making process regarding reparation (Cavadino & Dignan, 1998). Morris and Maxwell (2002) argue that proportionality may be better thought of as a form of bounding mechanism that limits the scope of restorative outcomes through maximum or upper limits. However, others, such as Braithwaite and Petit (1990), hold the view that restorative justice and proportionality are incompatible and they have explicitly developed theories of reintegrative shaming and restorative justice in opposition to the just deserts model. According to Hoyle and Young (2002) and Crawford and Newburn (2003), restorative justice cannot be judged by levels of proportionality alone but rather reflect core values of restorative justice including mutual respect and empowerment. Offenders should not be asked to take part in acts as part of reparation agreements that degrade or cause stigma to them. The infamous example from Canberra restorative conferencing of participants agreeing to wear a t-shirt printed ‘I am a thief’ contradicts the fundamental principle and values of restorative justice (Newburn, 2007). The enabling role of the state, in which it provides legal frameworks for restorative justice alternatives and structures to transfer a certain level of responsibility to communities for addressing wrongdoing, constitutes one of the most significant roles for restorative justice (Jantzi, 2004). The state operates in a number of capacities including resourcer, implementer, guarantor of quality practice and often time as offending party. The incorporation of restorative justice as part of mainstream criminal justice attracts concerns about state control and the limited nature of community involvement (Dignan, 2000). There is nothing wrong with the state shaping the agenda of restorative justice but in the context of local and individualised justice, the process must be safe and accountable to protect the rights of all participants (Hoyle & Young, 2002). The issue of accountability is of particular significance in any process that claims to change behaviour and to facilitate agreements between people who in ordinary circumstances may not get on (Cook, 2006; Roche, 2004). In the context of the Republic of Ireland, the research findings later in the book will specifically inform the debate and issues surrounding levels of accountability within restorative justice programmes.

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As has been alluded to in earlier sections, an institutionalised response to criminal offences requires some level of input from criminal justice agencies; otherwise, purely community-based schemes with no statutory basis receive only a small amount of non-serious referrals (Hudson, 2003). If there is not a public dimension to the response to offending, providing legitimacy to the criminal justice process, it runs the risk of becoming vigilantism more than criminal law (Hoyle & Young, 2002; Johnstone & Van Ness, 2007). Furthermore, courts are required for offenders who do not plead guilty and who do not wish to accept the outcome proposed by other parties during a restorative intervention (Jantzi, 2004). There remain considerable tensions in the relationship between restorative justice and established systems of criminal justice. When restorative justice is included into mainstream criminal justice, as is the case in many countries, it must coincide with the general aims of the criminal justice system. In general, the current managerialist thinking behind restorative policies can be seen in the establishment of the Youth Justice Services and Youth Offending teams, and these have been expressed in terms of a speeding up of the process of youth justice, in order to reduce delays, the risk of re-offending and to meet the needs of the victim (Ball, 1999; Fionda, 1999; Gelsthorpe & Morris, 2002; Gray, 2005; Zernova, 2007). However, as Dignan’s (2000) research demonstrates, the Youth Justice Pilot Projects may have the opposite effect on victims and diminish the prospects for them to receive direct reparation or take part in mediation. This is an issue of huge concern to many advocates of restorative justice who recognise that any attempt to bring together all parties affected by an offence takes time and preparation (Crawford & Newburn, 2003; Lalor, de Ro´iste, & Devlin, 2007; O’Dwyer, 2006). Often victims may not be prepared to meet offenders until some time has elapsed. The fast tracking of meetings at orders at this stage is not conducive to achieving a restorative outcome for all parties involved (Field, 2007; Hudson, 2003). Hoyle and Young (2002) argue that for the state to effectively administer restorative justice processes there needs to be a balance between holding a meeting, to ensure that people’s memories have not faded, but also to allow adequate time for the co-ordinator to prepare all participants sufficiently. If the emphasis remains on fast tracking, co-ordinators are under pressure to ‘deliver justice’ as quickly as possible and the balance is put into jeopardy (Fergusson, 2007). According to various commentators, these tensions are unsurprising in the context of the mix of criminal justice aims in England and Wales

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(Ball, 1999; Brown, 2005; Dignan, 1999; Fionda, 1999; Gelsthorpe & Morris, 2002). However, many would argue that it is better for restorative justice advocates to seek to engage with and transform certain aspects of established criminal justice, at least in the short term than to insist on an independent and marginalised setting for restorative interventions (Crawford & Newburn, 2003; Hoyle & Young, 2002; Hudson, 2003; Jantzi, 2004). A number of difficulties at both the practical and theoretical level were highlighted in reconciling tensions between models. However, it is argued that the inherent differences and potential difficulties do not prevent them from being reconciled. In short, it is contended that restorative justice and criminal justice, while they may be competing paradigms, they are not as some commentators suggest irreconcilable (von Hirsch, 2003; Walgrave, 2002; Zehr & Toews, 2004). It is acknowledged, however, that given the level of conflict and debate further integration of restorative forms of justice is far from being without difficulties and complexities. If restorative justice is to be meaningful and effective, there are a number of tensions that need to be resolved. As Hudson (2003) has argued the key to reconciling the problems and possibilities of restorative justice lies in creative consideration of its relationship to formal law. Problems of how to deal with recalcitrant offenders; how to ensure that restorative procedures are not seen as second class justice; how to balance expressive and instrumental functions of justice; and above all, how to ensure that the voice of any party does not become submerged in an emergent unitary consensus all turn on the relationship between discursive processes of restorative approaches and role of formal law in modern societies in relation to defining relationships and allocating rights. (Hudson, 1998, pp. 255 256).

Furthermore, as evaluations and research studies on the effectiveness of restorative justice processes have shown there is a great need for further research, particularly in identifying why restorative justice works in reducing re-offending and providing long-term reintegrative results. These issues stress the point that it is virtually impossible to understand both the possibilities and limitations of restorative justice responses without engaging in political, philosophical and practical debates regarding both the meaning of restorative justice and the role of victims, offenders and communities in the process (Brownlie, 2003; McAlinden, 2007). In the case of state adoption of restorative justice as a response to young people and crime, there is much to be learned and observed from taking stock of the difficulties in defining restorative justice and its administration as part of mainstream criminal justice.

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Furthermore, this combined with the three key stages outlined by Van Ness and Strong (1997/2002) of encounter, reparation and reintegration will give focus and strength to the empirical research findings presented later in the book on the emergence of restorative justice in the Republic of Ireland.

3.10. CHAPTER SUMMARY This chapter begins with an overview of restorative justice. It set out the definitions and principles of restorative justice. It discussed the myths and realities of restorative justice from the perspective of Braithwaite and Daly. The chapter further developed understanding of restorative justice by introducing a practitioner’s perspective and using this to further critique Braithwaite’s theory of Reintegrative shaming. This was achieved by applying Tomkins’ Affect Theory and Nathanson’s Compass of Shame to Braithwaite’s own understanding of Braithwaite’s Reintegrative shaming. By critiquing Braithwaite’s understanding of Reintegrative shaming through the practitioner’s perspective, the chapter provided a fuller understanding of the potential for restorative justice to provide a meaningful framework of mediation in policy and practice.

NOTES 1. Braithwaite (2004) also acknowledges the significance of Tomkin’s Affect Theory and Nathanson’s Compass of Shame in his article The Evolution of Restorative Justice. 2. ‘Dissmell’ is a reflex that indicates disapproval.

CHAPTER 4 YOUTH JUSTICE IN THE REPUBLIC OF IRELAND

4.1. INTRODUCTION This chapter examines the provision of youth justice in the Republic of Ireland. The chapter begins with an examination of the origins of youth justice from the emergence of the Irish State. The birth of the Irish welfare state is then outlined. The 1970s and 1980s are examined in the context of a policy vacuum. This is followed by a discussion of the change and transformation of youth justice undertaken in the 1990s, in the context of the emergence of a law and order agenda. Following from this the significance of the Children Act 2001 as a blueprint for reform is set out. In addition, the introduction of restorative conferencing and the Garda Juvenile Diversion Programme are presented.

4.2. IRELAND: ORIGINS OF JUVENILE JUSTICE Similar to England and Wales, recent changes to the Irish youth justice system have been profound. However, unlike England and Wales, the changes, which have occurred in Ireland in recent years, have not been sustained over the same period of time. While it is unfair to say that Ireland’s history of juvenile justice is more complex than England and Wales, it is fair to acknowledge that while both systems are complex in their own right, they both need to be examined separately in order to adequately understand the course of events, which have occurred. England, Wales and Ireland, until recent reforms to both systems, shared similar pieces of legislation governing juvenile justice, in 67

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particular the Children Act 1908, which has already been discussed in the previous chapter. For almost a century, the Children Act 1908 provided the statutory framework for juvenile justice in Ireland, and it, also, identical to England and Wales was the first major legislative provision governing juvenile justice. The primary significance of the Act for Ireland was the establishment of borstal institutions and the provision of judicial powers to pass sentences of detention in such institutions (Kilcommins, O’Donnell, O’Sullivan, & Vaughan, 2004). The Act, which has been described as an exceptionally liberal and innovative measure for its time, provided in Ireland the primary statutory basis for juvenile justice (Kilkelly, 2006b; Walsh, 2005). Unlike the volume of amendments and supplements to the Act, in England and Wales, Ireland added to the Act in piecemeal fashion from time to time, through means of statutory enactments (will be discussed in more detail later). Despite the Act’s inability, as the course of events England and Wales over the last century have shown, to keep pace with modern social and legal conditions, the Children Act 1908 is widely accepted to have served Ireland well (Kilkelly, 2006). Yet, various commentators including O’Sullivan (1996), Coghlan (2000), O’Mahony (2000), Quinn (2002) and Seymour (2004) argue that while the Act was seen as progressive for its day, not surprisingly given that its foundations are rooted at the beginning of the last century, they criticise it on the basis of being archaic and out of keeping with current thinking on juvenile justice. Prior to Independence in 1922, there was only one borstal located in Clonmel, County Tipperary. The borstal suffered the same problem as reformatories in England and Wales, during the same period; namely, that judges were reluctant to commit children and young people. The establishment of industrial schools is worth noting, particularly in the case of Ireland, as at the time, in the words of the manager of the largest industrial school in the British Isles, located in North Dublin, here in Ireland, we have, comparatively, very little juvenile crime, but we have much poverty and destitution, hence we require few reformatories but many industrial schools (T. J. Butler, Manager of Artane Industrial School, cited in Raftery & O’Sullivan, 1999, p. 66). This problem, along with the agitated political environment in Ireland after the 1916 Easter uprising against British rule and the subsequent War of Independence and Civil War, undercut any notions of rehabilitation the juvenile justice in Ireland may have had at the time. Essentially, it can be

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argued that due to the situation at the time and the relatively low incidences of juvenile crime, there was in fact no need to reform or amend problems with legislation. Kilcommins et al. (2004) argue that it is practically impossible to rehabilitate people if the very society into which they are to be reintegrated is fundamentally divided. Hence as a result, unlike the situation in England and Wales, the extent to which a penal-welfare complex could have existed in Ireland before Independence is doubtful, most obviously due to efforts to break away from Britain. However there were other difficulties that were not unique to Ireland, see England and Wales. In Ireland the major reason why penal welfarism failed to make much headway was that the crime rate did not require a change in penal strategies (Kilcommins et al., 2004). According to Kilkelly (2006), Ireland has a relatively punitive approach to young offenders; prosecution is the norm for those for whom diversion is not appropriate or successful, tying in with ‘justice’ imperatives. At the same time, ‘welfare’ imperatives are not completely ignored, the Health Service Executive (HSE) may be involved where a young offender has unmet needs. Under the Children Act 2001, which replaces the Children Act 1908, there are a number of community sanctions, which are designed to ensure that the response to the child’s crime meets some constructive objectives (Kilkelly, 2006). However, the Irish juvenile justice system is not married exclusively to either ‘welfare’ imperatives or ‘justice’ imperatives, and it is this situation, which makes the Irish experience more complex than others. In light of recent changes to Irish juvenile justice, the question now being asked is what principles should guide its development and implementation. The political order, established in Ireland in the aftermath of the war of Independence (1919 1921), partition (1920) and the civil war (1922 1923) embodied both liberal democratic and authoritarian features (Garvin, 1996; McLaughlin, 2003). The ideologies of Catholicism and nationalism fused to shape the nature of the state and the relationship between the state and society. In no other European state, with the exception of Poland, was such a close relationship established between the Catholic Church and national identity and it played a key role in providing legitimacy and authority to the new nation state (Clancy, Drudy, Lynch, & O’Dowd, 1995; Inglis, 1998; McLaughlin, 2000). The Church provided the institutional links between the new political, economic and social elites and the masses. It was able to perform this role of shaping the state, largely due to the fact that aspirations of Irish nationhood were inextricably linked to the Church.

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During the course of the nineteenth century, it was allowed by British colonial administration to broaden the influence that it had over the social infrastructure, resulting in over 90% of the population presenting themselves as Catholic. The Church was able as both a ‘state in waiting’ and the moral guardian of constitutional nationalism to ensure that post-colonial Ireland made the transition to Catholic nationhood (see Clancy et al., 1995; Inglis, 1998; Keogh, 1996; Tovey & Share, 2000; Tovey, Share, & Corcoran, 2007). As a major consequence for the development of ‘modern’ Ireland in later decades, the Catholic hierarchy assumed a major role in determining the social and moral climate within which the Free State was to be governed (Cooney, 1986, p. 42). The influence of the Catholic Church, legally, morally, socially and economically can be seen clearly from the 1937 Irish Constitution, Bunreacht na hE´ireann, which put in place a number of measures that would affect the development and shaping of Irish society for decades to come. In terms of children and young people, the Constitution does not adequately provide for them directly, in particular, issues surrounding the protection and rights of children and young people. This in recent years has proven to be problematic and plans are afoot to amend the legislation by means of a constitutional referendum.1

4.3. THE 1960s: BIRTH OF THE IRISH WELFARE STATE Ireland according to McLaughlin (2000) missed out on the first period of economic prosperity experienced by Western societies in the 1950s and early 1960s, such was the depth of economic crisis that large numbers of people emigrated each year from the late 1950s onwards reminiscent of numbers during the famine (1845 1849) (Lyons, 1979; McLaughlin, 2000). The depth of this economic crisis and the nature of post-war international policy resulted in a radical rethink by the Irish government at the time. The state through various plans and strategies acquired interests in energy, steel, transport, communication, as well as ownership of banking and insurance companies. State and semi-state ownership was achieved not through nationalisation but by creating new ‘partnership’ enterprises (Chubb, 1982). Coughlan (1984) argues that the welfare state in Ireland could not be said to have been moulded by politically powerful social democratic movements as in Britain but rather unlike other countries, Ireland did not go

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through a war time period when the requirements for social solidarity encouraged radically redistributive social policies (Coughlan, 1984). From this perspective, the Irish state took the lead organising role as part of its programme to promote and institutionalise economic development (Goldthorpe & Whelan, 1994). Prior to the 1960s, there were only three enactments to the Children Act 1908, the first, the Children Act 1941, the second the Children (Amendment) Act 1957 and the third the Criminal Justice Act 1960. The first two acts made provision for the management of certified schools, the grounds for admission of children to the schools, the maximum and minimum period of detention orders, conditions for release on licence, post-release supervision, individuals unlawfully at large from the schools, the funding of the schools and an increase in the respective ages of children and young persons for parts of the 1908 Act (Walsh, 2005). The Criminal Justice Act 1960 makes provision for the establishment of institutions of detention such as a substitute prison for young offenders, so far only one such institution has been designated, St Patrick’s Institution where young offenders between the ages of 17 and 21 are incarcerated (Kilkelly, 2006; Seymour, 2004). In terms of the crime and criminal justice, Ireland in the 1960s witnessed a growing concern about the growth of crime and the prison population. However, there is a serious lack of official data and statistics (National Crime Council, 2003) and it is extremely difficult to adequately document and chart the course which the criminal justice system and in particular juvenile justice has charted since Independence. What is available has been criticised by O’Dwyer (2002, p. 182) as sub-standard in quality and usually outdated, partial, limited, non-integrated and poorly explained. Not only is there a severe shortage and lack of official statistics, there is also a lack of reporting and hence a shortfall in attempts to reform the system. The lack of published material on juvenile justice in the Republic of Ireland has resulted in any policies, which have been developed being done so in a ‘research vacuum’ (O’Sullivan, 1996, p. 5). John Kelly a member of the Oireachtais (Irish Parliament) and a law professor in University College Dublin in the early 1970s noted that if you were to put on a shelf the entire literature of criminology in Ireland it would barely occupy as much space as a single volume of the Official Report (Kelly, cited in Kilcommins et al., 2004, p. 87). Furthermore, according to Seymour (2004), Ireland, until relatively recently experienced minimal immigration resulting in a large homogenous population, which she argues is likely to have created fewer opportunities

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to question the approach used in dealing with juvenile offenders in the jurisdiction or to explore the diversity of approaches used in others. Various commentators including McCullagh (1991 in Kenny, 2000; Kilcommins et al., 2004; Kilkelly, 2006; O’Dwyer, 2002; O’Mahony, 2000; O’Sullivan, 1996; O’Sullivan, 1998, p. 339; Quinn, 2002; Seymour, 2004) have added their voices to highlight the distinct lack of political interest in juvenile justice as a resounding reason for the lack of change. They collectively argue that a range of social partners including the trade unions movement failure in not aligning, associating or lobbying with the issue of juvenile justice resulted in a lack of political pressure being placed on the government to reform. In 1964, the first signs that change maybe occurring within the criminal justice system came as a result of a Da´il debate concerning estimates of public expenditure on the criminal justice system. Then Minister for Justice, Charles J. Haughey reported that he had set up in 1962 a committee to inquire into the present methods for the prevention of crime and for the treatment of offenders giving, in particular attention to the following: (i) juvenile delinquency, (ii) the probation service (at the time there were only 5 probation officers based only in Dublin with a caseload of less than 250) (Da´il Debates, 29 May 1963, cited in Kilcommins et al., 2004, p. 52), (iii) the institutional treatment of offenders and their aftercare and to recommend such changes in the law and practice as the committee considers desirable and practical (C. J. Haughey, 1964, cited in Kilcommins et al., 2004, p. 68; Walsh, 2005). However, while the committee succeeded in bringing about reforms and adding ‘welfare’ imperatives to the mix of the criminal justice, due to the problems cited earlier in terms of research and statistics, little in fact is actually known about the extent of the work the committee carried out. In 1970, in a debate on the Prison Act, Des O’Malley, then Minister for Justice, claimed that the most notable reforms made by the Inter Departmental Committee (comprised of a member from each of the following departments: Education, Health, Industry and Commerce and Justice) were the appointment of prison welfare officers and the setting up of the corrective training unit in Mountjoy prison. However, none of these measures had a direct impact on the workings of the juvenile justice system. The first formal programme to divert young offenders from custody was established by An Garda Sı´ ocha´na (Irish Police Force), although it is not clear if the programme emerged as a result of the Inter Departmental Committee. The scheme known as the Juvenile Liaison Officer Scheme has existed in Ireland since 1963. Under this

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programme, young people under 18 years of age maybe cautioned by the Garda Sı´ ocha´na without proceedings being entered before the courts. The Garda Juvenile Liaison Officer Scheme operated until 2002. It provided an opportunity for An Garda Sı´ ocha´na to divert juvenile offenders from criminal activity. The philosophy behind the Juvenile Liaison Officer Scheme was that if a young person made a mistake in life, they did not suffer the consequences for the rest of their lives. It served to protect the juvenile offender from being brought through the Criminal Justice System, which could lead to a court conviction. Essentially, the Garda Juvenile Liaison Officer Scheme gave the juvenile offender a second chance. During the 1990s, in order to come into line with international minimum standards for children and young people who came into conflict with the law, the age limit for inclusion in the programme was increased from 17 to 18 years of age. Prior to the passing and enactment of the Children Act of 2001 the Juvenile Liaison Officer Scheme was merely a Garda policy, which had no standing in law. The scheme operated on the basis of a common law principle of police discretion to caution for certain offences. It operated with the approval of the Attorney General and the Director of Public Prosecutions (An Garda Sı´ ocha´na Headquarters Directive 91/1991). Such cautions are not recorded as a criminal conviction. The primary purpose of the Juvenile Diversion Programme is to prevent re-offending and to divert young people away from the criminal justice system. The programme is operated throughout the country by a network of specially trained Juvenile Liaison Officers (JLOs) under the guidance of the National Juvenile Office. The Director of the National Juvenile Office, a Garda Superintendent takes the decision with regard to the action taken against a child. The Director has the option of recommending prosecution, in which case a file is sent to the Director of Public Prosecutions, or the option of a formal caution, an informal caution or no further action. Conditions of entry to the programme include that the child accepts responsibility for his or her offending behaviour and gives their consent to being cautioned, with all cautions administered in the presence of a parent or legal guardian. A child receives an informal caution when the criminal behaviour is not deemed to warrant a formal caution and is given by the JLO. The formal caution is carried out by a senior member of the Garda Sı´ ocha´na, usually a Garda Superintendent, or a JLO trained in mediation

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skills. A formal caution is followed by supervision by a JLO for a one-year period. The level of supervision is at the discretion of the JLO subject to a number of guidelines including the seriousness of criminal behaviour, the level of care and control provided by parents or guardians, the officer’s perception of risk of re-offending and any directions from the Director of the Juvenile Diversion Programme (Kenny, 2003; O’Dwyer, 2002; Seymour, 2004). There have been a number of criticisms levelled at the Juvenile Diversion Programme including net widening (O’Malley, 1994) and preferential selection for the programme (O’Mahony, 2001). The main criticisms relate to concerns about the absence of due process associated with court convictions (O’Malley, 1994) and therefore concerns about the lack of protection for a child’s procedural rights. The child is required to decide whether to plead guilty as a condition of entry to the Juvenile Diversion Programme or risk the possibility of a sentence of detention if found guilty in the court. As a result, it is argued by some commentators including Griffin (2004, p. 5) that in consenting to the cautioning programme, the offender relinquishes the rights implicit in the formal criminal justice system such as the right to a fair trial, the presumption of innocence, the right to silence and the right to have the prosecution prove its case beyond reasonable doubt. However, despite the criticisms of the programme, it is seen as one of the main diversionary initiatives in the Irish juvenile justice system, one which acknowledges the limited role of formal intervention in the lives of young people (Duncan, 1982) and which diverts young people from custody (Griffin, 2004). With the exception of one study (O’Dwyer, 1998) little research has been undertaken to follow-up programme participants beyond the age of 18 years; therefore, it is difficult to ascertain the overall success of the programme in the long term.

4.4. 1970s 1980s POLICY VACUUM In the words of Walsh (2005) and Kilkelly (2006), there has never been an official direct enquiry into juvenile crime or the juvenile justice system as a whole in Ireland. Much of the focus has centred on the industrial and reformatory school system, which was reviewed by the Cussen Report in 1936 (see Walsh, 2005).

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The recommendations in this report concern the wider issue of delinquency and addressed its casual factors. In 1970, the Kennedy Report made a number of relevant recommendations that were still in place until quite recently. The report recommended that the age of criminal responsibility be raised from 7 to 12 years (became effective on the 16 October 2006) and also stressed the desire to bring a case involving a young offender before the court as soon as possible so that he or she could be dealt with while the offence was still clear in his or her mind. It identified the need to specially constitute the Circuit Courts when hearing appeals from the Children’s Court to extend the power of the Court to order the presence of both parents of the child in court, and bring all aspects of child care within a composite Children Act, placing it under the remit of the Department of Health (Kilkelly, 2006). All children and juveniles coming before the court should be properly assessed and observed so that the courts can fulfil their obligation to consider the ‘welfare’ of the child or young offender (Walsh, 2005). As eluded to earlier a lack of political and governmental interest in juvenile justice essentially meant that recommendations made by the Kennedy Report (1970), Henchy Committee (1974), Task Force on Child Care Services (1980), the Whitaker Report (1985), with a small number of exceptions were collectively ignored by successive governments (Seymour, 2004). The Henchy Committee in 1974 considered the theme of governmental responsibility and they recommended that an interdepartmental committee should be established to co-ordinate the activities of children and young people. Its aim would be to keep abreast of the changing needs and any further provisions which would need to be made in relation to children and young persons who come in conflict with the law (Kilkelly, 2006; Walsh, 2005). The committee’s second interim report also recommended that high priority be given to the provision of resources for the treatment of young offenders in the community, including educational facilities, day child psychiatric services and day centres (Walsh, 2005). However, according to Kilkelly (2006), it was the publication of the Report of the Task Force on Child Services in 1980, which emerged as the most comprehensive official publication on the subject of the treatment and care of children at risk in Ireland. While it did not add to earlier recommendations for the raising of the age of criminal responsibility, nor was it, according to Kilkelly (2006), persuaded by the ‘welfare’ approach to juvenile offending, it did make a number of significant recommendations

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regarding the operation of the juvenile justice system and in particular the juvenile court. It recommended that the adjudication on the child or young person should be informed by the child’s ‘welfare’ and the public interest, that it should promote relations between the child and his or her family and that detention should only be used when no other alternative means could be found. To achieve these objectives, the committee recommended that a wide range of disposal options be made available to the court. The report places great emphasis throughout on the importance of making available facilities to cater for the particular needs of different categories of children and young people (Kilkelly, 2006; Walsh, 2005). The Whitaker Report (1985), while it was not charged with directly looking at the juvenile justice system, nonetheless, it put forward a series of recommendations which if implemented had the potential to reform the penal system as a whole. Some of the main conclusions and recommendations made concerning children and young people included the extension of cautioning procedures used by the Director of Public Prosecutions and administered by a Superintendent of An Garda Sı´ ocha´na to include young persons in the 18 21 category. The committee recommended that compulsory intervention in the form of detention should only be considered after voluntary intervention had either been rejected or failed. Ultimately, imprisonment should be a last resort for children and young people, to be implemented only after every alternative route has been exhausted. Like the Kennedy Report before it, the Whitaker Committee mirrored the view of a need for continuing research, analysis, discussion and deeper understanding of juvenile offenders (Walsh, 2005). However, despite the dynamic and pragmatic nature of these recommendations, further political disinterest followed and juvenile justice was in effect ‘left out to dry in no man’s land’.

4.5. 1990s CHANGE AND TRANSFORMATION The impetus for change to the existing Children Act 1908 only began in the early 1990s with a report by the Government Select Committee entitled Juvenile Crime Its Causes and its Remedies (1992). The Da´il Committee considered the matter of juvenile crime, it causes and its remedies’ having

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decided that it was a social problem, which needed urgent attention (Kilkelly, 2006). Despite widespread consultation, Walsh (2005) concludes that the need for reform was not seriously questioned, rather the only argument was over the shape, which the reforms should take, and how they should be introduced. The recommendations made by the committee did not reflect any new measure, which had not been highlighted by previous committees, but due to, and from what had become apparent from previous sections; there was not the political will to drive through reforms. Juvenile justice was not seen to be a vote winner and it was not until a series of events in the 1990s, when juvenile justice started to take more of a centre stage. Many of the recommendations emerging from the 1992 report formed the basis of the 1996 Children Bill, which subsequently became the Children Act (2001). Pressure from the international community about the government’s approach to young offenders was another factor in driving forward change to the juvenile justice system as well as a misconceived fear among the public fuelled by media sensationalism that juvenile crime was out of control. The Irish government ratified the UN Convention on the Rights of the Child in 1992 and was later criticised by the UN committee who expressed concern about the treatment of children deprived of their liberty in light of the principles of the UN Convention and other international standards, for example, the United Nations Standard of Minimum Rules for the Administration of Juvenile Justice (Beijing Rules), the United Nations Guidelines on the Prevention of Juvenile Delinquency (Riyadh Guidelines) and the United Nations Rules for the Protection of Juveniles Deprived of their Liberty (Children’s Right Alliance, 1998). Independent and non-statutory organisations, lobbying groups and members of the academic community played a role in the move for change by highlighting the neglect of juvenile justice; however, they were often lone voices between an uninformed public and political neglect. In a country the size of the Republic of Ireland extensive media reporting of an isolated but serious incident of youthful offending can serve to swing the political pendulum towards reactionary punitiveness rather than strategic crime prevention in efforts to still public concern about crime. In April 2002, following the death of two Gardaı´ as a result of a car theft and joyriding incident by juveniles, the Minister for Justice proposed plans for a temporary children’s prison wing for 14 and 15 year olds at St. Patrick’s Institution.

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Such a plan would have only been possible under the Children Act (1908) as the Children Act (2001), when it becomes fully enacted, prohibits the detention of children under 16 years in a place of detention such as St. Patrick’s Institution. Over the last number of years, there has been a gradual shift in Ireland towards a focus on children’s rights, with developments such as the National Children’s Strategy (2000) aimed at redressing the balance between current laws and the UNCRC. The appointment of an Ombudsman for Children and the creation of a Junior Ministry for Children and Young people based in the Department of Health, which has raised the status and profile of preventative work with children (Quinn, 2002). Such developments coupled with the necessity of updating outdated legislation and international pressure on the government has created the context in which change has begun. The reason why it took so long for this change to come about has been examined in detail in the above sections; however, there were further reasons for changes to the system, which occurred outside the realm of juvenile justice. In 1996, a journalist and crime reporter, Veronica Guerin and Garda Gerry McCabe, were shot dead in two separate incidents. This resulted in a rapid significant shift in criminal justice policy, with a policy of ‘zero tolerance’ resulting in a raft of legislation dealing in particular with proceeds of crime and gangland crime. This, coupled with a Minister for Justice, Equality and Law Reform at the end of the 1990s who had a preoccupation with incarceration (Kenny, 2003), served not only to heighten political interest in crime and criminal justice but set up an interesting paradox, as the Children Act 2001, in itself a significant piece of legislation, is extremely restorative in its stance on dealing with children and young people who come in conflict with the law.

4.6. THE CHILDREN ACT 2001: A BLUEPRINT FOR REFORM The most significant development for restorative justice in Ireland has been the passing of the Children Act (2001). The Bill, which was debated in 1999 and in 2001, was strongly advocated by the then Minister for Justice, Equality and Law Reform, John O’Donoghue, when he coined the phrase that the Children Act 2001 would serve to be a blueprint for reform of the

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juvenile justice system in Ireland, which will charter the course of that system for many years to come. Referring to it as a balanced, comprehensive, innovative and imaginative, its provisions were, he stated, a distillation of the accumulated wisdom and best practice worldwide in the area of juvenile justice (Minister for Justice, Equality and Law Reform, John O’Donoghue, cited in Kilkelly, 2006, pp. 32 33). The Children Bill 1999 became law as the Children Act 2001 when it was signed by the President on the 8 July 2001. The purpose of the Act is to replace the Children’s Act of 1908, to implement further enactments relating to juvenile offenders and to amend the childcare act of 1991. The Act allows for close co-operation between An Garda Sı´ ocha´na, social services and the court system as well as bringing into effect up-todate measures for dealing with juveniles. Significantly, the Act establishes the Juvenile Liaison Officer Scheme on a statutory legislative footing; it also changed the name of the scheme to the Garda Juvenile Diversion Programme. Additionally, it brings many significant changes to the existing legislation, such as Sections 52 54, which raises the age of criminal responsibility from 7 to 12 years. This means that a child under 12 cannot be prosecuted for a criminal offence or cannot be cautioned under the Juvenile Diversion Scheme. The Children Act 2001 provides for a number of Restorative Justice Initiatives. Two of these concern the Gardaı´ and take place within the framework of the Juvenile Diversion Programme. Section 26 Restorative Cautioning The Director of the National Juvenile Office (Superintendent) will invite victims to be present at the administration of the formal caution so that their views can be considered. At this formal caution, the victim will be able to take part in a discussion about the child’s behaviour. The offender will then be invited to: • Apologise to the victim • Where appropriate make reparation to the victim Section 29 Restorative Conference To bring the child, his or her parents or guardians etc., together with a view to establishing why the child became involved in the criminal behaviour. To discuss how the parents/guardians can help the child from becoming involved in such behaviour again. Formulate a plan, which will seek to repair the harm caused to the victim. Potential participants include the victim and anyone whom it is thought can make a positive contribution (Children Act, 2001).

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4.7. THE GARDA JUVENILE DIVERSION PROGRAMME Following the introduction of Part 4 of the Children Act 2001, the Juvenile Liaison Officer Scheme came to an end and was replaced by the Diversion Programme, which could be described as a package of measures for dealing with children under the age of 18 who commit an offence or offences. The Diversion Programme retained many of the tried and tested methods for dealing with children who commit offences, as well as introducing a number of new options. A Garda Superintendent appointed by the Commissioner and known as the Director of the Programme manages the Programme (Section 20). The Director must consider all cases and decide on the suitability or otherwise of each child for inclusion in the Programme. In order to be admitted to the programme: • A child must be over the age of criminal responsibility and under 18 years of age accept responsibility for the offence(s) committed consent to being cautioned and supervised. • If the child is deemed suitable for admission to the programme then s/he is given either a formal or an informal caution. In certain circumstances the victim of the offence may be invited to attend the caution or the JLO may recommend that a family conference be held in relation to the child. • A child given a formal caution is placed under Garda supervision for a period of 12 months. This period of supervision may, in certain circumstances be varied by the Director. • The caution will be administered either by a Garda not below the rank of Inspector or a JLO who has received mediation training. A JLO administers an informal caution and the child is not normally placed under supervision. In practice, both cautions are formal processes one accompanied by a period of supervision and the other without supervision. The above initiatives (S26/29) as outlined in the Children Act 2001 are governed by the principles and concepts of Restorative Justice. All those taking part do so on a voluntary basis. A Garda JLO, who has been trained in mediation skills, facilitates restorative events. During the process, the JLO will ensure that all parties get the opportunity to speak. Restorative conferencing focuses on the incident, not the offender or the victim.

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The objective is to make an ‘agreement’ or ‘plan of action’ between all parties; this may include reparation. This gives the victim an opportunity to play a more central role in the judicial process. Various commentators including Seymour (2004), Walsh (2005), Kilkelly (2006) and the author remain sceptical whether it lives up to the high praise bestowed upon it by its proud author. The Act, when fully implemented is said to put in place a modern statutory framework for the juvenile justice system and in doing so both repackages and replaces the provisions of the Children Act 1908 giving them a modern makeover (Walsh, 2005). Consistent with the UNCRC, the Act recognises the child as a person under 18 years of age, bringing all those who commit minor offences under the age of 18 within the youth justice system (Kilkelly, 2006). Perhaps most significantly, Section 52 of the Act raises the age of criminal responsibility from 7 to 12 years of age, meaning that children under that age will be deemed not to have the capacity to commit a criminal offence. The presumption of doli incapax in part 5 of the Act is placed on a statutory basis with the effect being that children between 12 and 14 years are presumed to be incapable of committing an offence because they did not know what they were doing was wrong, a rebuttable presumption states Kilkelly (2006). The Children Act 2001 places the Garda Juvenile Liaison Scheme established in 1963 on a statutory footing and following the administration of a formal caution, the supervising Garda JLO can recommend that a conference be held, however, it is the Programme Director’s decision as to whether it proceeds; furthermore it can only be held if a parent or guardian is willing to attend. Participants at the conference include the facilitator (a member of the Garda Sı´ ocha´na), the child, the parent or guardian, the victim, representatives from agencies that have contact with the child, or any others perceived to be of benefit to the conference and requested by the child or the child’s family. The purpose of the conference is to formulate an action plan for the child which can include a range of provisions including an apology either verbal, written or both to the victim, financial reparation, participation by the child in pro-social activities, attendance of the child at school or work, restrictions on the child’s movements and associations and other initiatives which may help to prevent re-offending such as alcohol and drug rehabilitation. While there is provision for reconvening the conference on a number of occasions, the Act gives little guidance on the consequences of

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non-compliance. O’Dwyer (2004, p. v) argues that while this may in the first instance appear as a weakness, it is the caution under the Juvenile Diversion Programme which has been deemed the appropriate sanction, any subsequent action is voluntary and therefore non-compliance cannot be punished. Should the child appear before the Children Court which replaced the juvenile court (Seymour, 2004), the child’s parents are required to attend the proceedings which must be held in private in order to protect the child’s identity. At this stage the Act offers a range of approaches and sanctions designed to address and also to punish a child’s offending behaviour. Kilkelly (2006) states that Section 77 is a key provision of the Act, which aims to bridge the gap between ‘justice’ imperative and ‘welfare’ imperatives for children and young people before the Children court who are found to be at risk. In this case, the HSE is required to undertake a family welfare conference with a view to deciding the best course of action to be taken to address the child’s needs. If the child or young person accepts criminal responsibility for his or her behaviour, they may be directed to the Probation and Welfare Service for the purposes of a family conference similar to the Garda Programme. If the court finds the child or young person guilty of an offence it may order a Probation and Welfare report or a Victim Impact Report to assist in choosing the most appropriate sanction for the child or young person (Kilkelly, 2006; Seymour, 2004). Section 9 of the Act makes provisions for a wide range of sanctions including on order for fines, costs of compensation and order imposed on parents, for example parental supervision, community sanction such as probation a day centre order, an order restricting movement or one requiring suitable supervision and an order placing a child or young person in detention or combining detention with supervision in the community (Kilkelly, 2006; Seymour, 2004). When choosing the appropriate sanction, the court is bound to take into account factors such as the child’s or young person’s age, level of maturity and it must ensure that it interferes as little as possible with education and training or any employment (Kilkelly, 2006). The Act prohibits the detention of a child or young person in prison and instead provides a Children Detention School (the industrial and reformatory schools) under the auspices of the Department of Education and Science for children and young people under 16 years of age, while those over 16 years of age must be detained in a Children Detention Centre under the auspices of the Department of Justice, Equality and Law Reform (Kilkelly, 2006; Seymour, 2004).

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4.8. CHAPTER SUMMARY This chapter examined the provision of youth justice in the Republic of Ireland. It began with an examination of the origins of youth justice from the emergence of the Irish State. The birth of the Irish welfare state was then outlined. The 1970s and 1980s were then examined in the context of a policy vacuum. This was followed by a discussion of the change and transformation of youth justice undertaken in the 1990s, in the context of the emergence of a law and order agenda. Following from this, the significance of the Children Act 2001 as a blueprint for reform was set out. The chapter concluded with a discussion of the introduction of restorative conferencing and the Garda Juvenile Diversion Programme.

NOTE 1. The Review Group considers that notwithstanding the above legislative provisions, it is desirable to put into the Constitution an express obligation to treat the best interests of the child as a paramount consideration in any actions relating to children. Any such provision might be modeled, with the appropriate changes to suit an Irish context, on Article 3.1 of the CRC which provides: In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child should be of paramount consideration. The existence of such a provision would oblige those making decisions in relation to children to take into account not only the child’s right to be cared for by his or her parents (which the Review Group suggests should now be constitutionally protected) but also such matters as the desirability of continuity in a child’s upbringing.

CHAPTER 5 RESTORATIVE JUSTICE IN PRACTICE: THE IRISH CASE

5.1. INTRODUCTION This chapter examines the links between civil society and the state that are provided through the restorative justice programmes of An Garda Sı´ ocha´na, Probation and Welfare Service. The chapter begins by examining the restorative justice programmes by the National Juvenile Office (NJO) and An Garda Sı´ ocha´na. Following on from this, Garda youth diversion projects are examined. The chapter then outlines the functions of the National Commission on Restorative Justice. Continuing, the Garda Youth and Children Strategy are detailed. In addition, the chapter looks at new initiatives in law reform and restorative justice in the Republic of Ireland, such as Garda Sı´ ocha´na Adult Cautioning Scheme and Probation and Welfare Family Group Conferencing. The chapter concludes by examining Restorative Justice Services (RJS), Victim Offender Mediation (VOM), Offender Reparation and the Nenagh Community Reparation Project.

5.2. GARDA SI´OCHA´NA RESTORATIVE JUSTICE: PILOT PROGRAMME The first event under the Garda Sı´ ocha´na pilot programme was held on the 9 February 1999. In total, 68 events are reported to have been convened between this time and 31 August 2001. The 68 events dealt with a total of 96 offenders, all from different regions in Ireland and different socioeconomic groups. 85

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The pilot programme examines how the process of restorative justice operates and focuses on the happenings and outcomes of each conference. The findings are based mainly on observations of restorative events and on the completion of observation and record sheets by independent observers and Juvenile Liaison Officers (JLOs). The restorative approach was used in connection with a wide variety of offences ranging from serious assault and burglary to underage drinking and minor criminal damage. The number of participants in the conferences or cautions varied considerably, ranging from 3 to 17, while a high number of cases involved two or more offenders. The report states that in 14 of the 68 cases no victim was present. According to the report, these cases can be shown as follows, four of the cases represented ‘victimless’ crime, while a further two cases related to large companies. In the other cases the views of the victim were expressed by a family member or by a representative. In relation to performance, the report states that the restorative events scored highly with all participants including victims and offenders, engaging actively in the process. The level of understanding at the conferences or cautions was high, with little indication that decisions were not agreed upon by all participants. The report shows that rankings were highest as regards opportunity for all participants to express their views and have their say. The report notes that most offenders experienced a change in their outlook as part of the process. The extent of change was assessed in terms of feeling defiant, ashamed, confident, remorseful, sullen, uninterested, selfconscious or apologetic. Offenders were also assessed as to the extent to which they accepted responsibility and whether they treated the process seriously. The greatest changes reported were in relation to the offenders feeling remorseful, accepting responsibility, being apologetic and in feeling self-conscious. Individual offenders were sometimes greatly affected by the process, with a small number showing no change. The report states that a significant reduction was achieved in the levels of awkwardness between offender and victim and between their families. Recorded levels of victim satisfaction are high in the report as a result of strongly supported evidence. Satisfaction rates were influenced by the expectations victims had going into the restorative event. Support for an acceptance of the young person/offender are key elements of the restorative process, it is critical to the overall success that offenders realise that they are accepted and reintegrated. (Garda Sı´ ocha´na Research Unit, 2001, p. iii)

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The report cites verbal apologies as the element most frequently utilised in action plans for offenders, followed by ‘making promises’ usually not to re-offend, compensation, written apology, restrictions on liberty, educational training and rehabilitation programmes. Drawing up the plan is a matter for the parties directly involved. The report states that the outcome of the conferences and cautions were classified as genuine in 84% of the cases in respect of the 43 cases, for which this information was available. In the majority of cases, the JLO was designated to monitor compliance. Just over a quarter (28%) of the young offenders re-offended within the time scale of the study (end October, 2001). Re-offending occurred in just over a third of cases (35%). Half of the re-offenders, 13 out of 26, re-offended only once, nine re-offended more than twice. Eight were cautioned again, most having re-offended just once. Prosecution was recommended in 12 cases (Garda Sı´ ocha´na Research Unit, 2001, p. v). The report stated that the early evidence of restorative justice in operation suggests that the initiative should be expanded through additional resources, support and encouragement for JLOs. It states that guidelines should be formulated to produce support for the JLOs in the areas of case selection, determining choice of conference or caution and the involvement of other professionals such as health board social workers. The report suggests that every encouragement should be given to victims in order to get them to participate in restorative events. Where the victim does not want to attend, the report states that consideration should be given to alternatives such as a family representative. It states that attempts to organise a conference should not be abandoned solely due to victim absence. On a final point, the report notes that any evaluation of the next phase of restorative justice should include a direct examination of views and experiences. It should take a much closer look at offender compliance with the actions plans and more importantly recidivism.

5.3. AN GARDA SI´OCHA´NA AND RESTORATIVE JUSTICE PROGRAMMES In October 2007, the NJO introduced a new training programme for JLOs. The training programme was developed by a working group comprised of JLOs, staff of the NJO and staff of the Garda College.

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The programme consists of five modules delivered over an 18-month period. 1. Introduction to the work of a JLO and appointment of a mentor. Familiarisation visit to the NJO and presentation of training pack and reading material. 2. One-week training programme that includes presentations and discussion on The Children Act 2001, Youth Offending, Sexual Offending, Communication Skills, Garda Procedures, Ethics and Best Practices in Youth Justice. 3. Restorative Justice Training; three days training in the REAL JUSTICE model of cautioning and the principles of Restorative Justice. 4. Eighty hours mediation training delivered over a four-month period. Training is certified by the Mediation Institute of Ireland. 5. A revision module covering all aspects of learning to date. The Committee acknowledges the efforts by the NJO in continuing to attain a third-level accreditation for JLOs on completion of their training. The Committee lends its full support to the endeavours of the NJO. An Garda Sı´ ocha´na, aware of the international developments in restorative justice and conscious of the potential of the restorative approach, initiated a programme of restorative cautions and conferences on a pilot basis in 1999. The Children Act of 2001 provides for a number of restorative justice initiatives. In the case of the Garda Sı´ ocha´na, two types of initiative arise, both of which operate within the framework of the Juvenile Diversion Programme. The first initiative provides for attendance by the victim at formal cautions with the offender making a direct apology and possibly reparation. A discussion about the child’s criminal behaviour may also take place. The second initiative provides for a conference to address the underlying reasons for the offender’s behaviour and to draw up an action plan to avoid a re-occurrence. Potential participants include the offender and his or her parents, the victim and anyone whom it is thought can make a positive contribution. It is the responsibility of the JLO dealing with a case to recommend a restorative approach in each instance.

5.4. GARDA YOUTH DIVERSION PROJECTS In addition to the Garda Juvenile Diversion Programme, there are now over 100 Garda Youth Diversion Projects nationwide (www.iyjs.ie). The

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projects are local community-based activities which work with children and young people; they are multi-agency crime prevention initiatives which seek to divert young people from becoming involved (or further involved) in anti-social and/or criminal behaviour (Centre for Social and Educational Research (CSER), 2003; Lalor et al., 2007). This is achieved through the provision of suitable activities to facilitate personal development and promote civic responsibility. The projects are staffed by professional youth workers or community workers and are funded by the Department of Justice, Equality and Law Reform and administered through the Garda Community Relations Section (CSER, 2003). The aim of these projects is to help children and young people to move away from behaving in a way that might bring them or their friends into conflict with the law. The Youth Diversion Projects help children and young people to develop their sense of community and their social skills through different activities. The projects offer opportunities for education, employment training, sport, art, music and other activities. Most of the projects operate outside of school hours. However, in areas with a high proportion of early school-leavers, activities may also be planned during the daytime. The main purpose of these projects is to encourage a better quality of life for everyone in the community and to support good relations between the Gardaı´ and the community (Kilkelly, 2006b; Lalor et al., 2007). The first two Garda Youth Diversion Projects (previously known as Garda Special Projects) were established in 1991, and by 2001, the number of Garda Youth Diversion Projects had reached 64. Many of these projects were established in recent years facilitated by the allocation of funding under the National Development Plan 2000 2006. There is an annual budget provision to fund Garda Youth Diversion Projects. The guidelines for the Garda Youth Diversion Projects specify that the primary target group is children and young people who entered the Garda Juvenile Diversion Programme and are considered at risk of remaining within the criminal justice system. A secondary target group is children and young people who have come to the attention of the Gardaı´ , the local community or local agencies as a result of their behaviour and are considered at risk of entering the criminal justice system at a future date (CSER, 2003). The guidelines for the operation of the Garda Youth Diversion Projects identify the following criteria for admission (CSER, 2003): • Poor school attendance or early school leaving • Offending behaviour or offending peer group

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Known to the JLO or Gardaı´ Alcohol or drug use Family involvement in crime Difficult relationship with parents or authority figures Type of Programmes and Activities:

• • • • • • • • •

Individual and intensive group work Life-skills, mentoring, peer education Youth information, family support In-schools programmes Drugs education Teenage health initiatives Personal development programmes Community-based programmes Health and fitness

Apart from the research carried out by CSER (2003) and a baseline analysis of the Garda Youth Diversion Projects by the Garda Office for Children and Youth Affairs in 2008, there has been little or no other analysis of the operation and effectiveness of these projects in achieving their strategic goals. Some commentators such as McCullagh (2006) have suggested that the emergence of community-based projects may be offering services to children who do not really need them. McCullagh (2006) further argues that attention and resources may be directed at what he terms ‘soft offenders’, those whose initial offences are relatively minor and whose prospects of re-offending are slight.

5.5. NATIONAL COMMISSION ON RESTORATIVE JUSTICE At parliamentary level, the concept of restorative justice gained momentum in January 2007 when the Joint Oireachtas Committee on Justice, Equality, Defence, and Women’s rights issued a report with 12 recommendations for strengthening restorative justice in the Republic of Ireland. Among these, a recommendation was made that a cross-sectoral working group be created to develop a national strategy based on international best practices. Following on from this, the National Commission on Restorative Justice was established in March 2007. The Commission is made up of

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seven individuals representing various sections of society but mainly from a criminal justice background. The Commission is required by its terms of reference to conduct inter alia and examination of restorative justice both domestically and internationally and to make recommendations as to the future direction of restorative justice in the Republic of Ireland. In terms of developing broader implementation of restorative justice, the Commission made 66 recommendations in its final report published in December 2009. These recommendations are made on a numbers of levels including generally, where it advocates ‘restorative justice (as) an invaluable cost effective option for the criminal justice system in responding to and combating crime in Irish society’. From the point of serving the public interest and the community, the Commission recommends that ‘society benefits greatly from the involvement of communities in the provision of restorative justice and in their efforts to support the efforts of victims and offenders. Such involvement enhances the effectiveness of restorative justice measures and the criminal justice system generally’. In relation to the criminal justice system, the Commission concludes that ‘restorative justice can be applied at various stages’. It recommends that priority be given to wider application of restorative justice by means of court referral at pre-sanction stage and when a court referral system is established on a national basis, they suggest that consideration should be given to the wider application of restorative justice at other stages within the criminal justice system, including at a post-court stage. In addition, the Commission recommends that the option of restorative justice should not be applied as part of a court sanction in the case of most-serious crimes such as murder and rape. The Commission is very specific in terms of its discussion of the benefits of restorative justice for participants, including the victim, the offender and the community. It argues that restorative justice has much to offer participants in terms of addressing the harm caused and avoiding further harm in the future. Local communities, they conclude, play a significant role in restorative programmes. The impact of community disapproval and support they contend is potent. It can they suggest prompt genuine remorse and form the basis of a determined commitment not to re-offend. Furthermore the Commission argues that the fundamental component of restorative justice is the extent to which the community has the capacity to integrate offenders.

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Collaborative efforts between community members and criminal justice agencies, they suggest, have the potential to produce an effective mechanism for such reintegration. The Commission strongly recommends that a multi-agency approach is necessary if restorative justice is to be implemented successfully on a wider basis in the Republic in Ireland. It suggests that such an approach should involve a statutory base and advocates that restorative justice legislation should be flexible to allow for the adoption of different models to suit the circumstances of individual cases. Such a statutory base it argues should ensure close co-operation between the State and other agencies concerned as regards criminal justice and relevant health, education, employment, training and welfare services as well as other community-based agencies. In relation to models of restorative justice, the Commission considers conferencing, VOM and reparation panels as the three models that warrant further attention in the Irish case. They suggest that the choice of model should be based on the circumstances of each individual case, and following an assessment, by the restorative justice provider to which the court has referred the case. In developing a model, they state that it is important that the underlying assumptions of the process are clearly enshrined so as to allow for appropriate cases to be included. The model should ensure that • The response to the crime is aimed at repairing the harm suffered by victims • Offenders accept responsibility for their behaviour and are brought to understand that the act they committed was wrong and that it has consequences for others • Victims are given the opportunity to express their needs and participate in the process • Finally that the wider community has a stake in the process (National Restorative Justice Commission, 2009) The Commission projects that 5,000 10,000 cases be referred annually by the Courts to restorative justice. It projects that 625 1,250 mediation or conferencing cases and 3,000 6,000 reparation panel cases could be progressed to a completed restorative outcome. It considers that between 3,625 and 7,250 criminal case disposals before the courts could be dealt with by means of a restorative justice option (National Commission on Restorative Justice, 2009). Finally, the Commission recommends that early implementation should be progressed through a series of preparatory steps, which involve the early provision of RJS at new venues. The Commission

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recommends that these RJS should be subject to detailed and ongoing monitoring and evaluation with a view to preparing for nationwide implementation not later than 2015 (National Restorative Justice Commission Final Report, 2009).

5.6. GARDA YOUTH AND CHILDREN STRATEGY The Garda Sı´ ocha´na outline their commitment to ensuring that the provisions of the United Nations Convention on the Rights of the Child are upheld at all times when members of An Garda Sı´ ocha´na interact with children in their youth justice strategy which covers the period between 2009 and 2011. The strategy sets out An Garda Sı´ ocha´na’s commitment to ensuring that the highest level of international best practices are adhered to when dealing with children in conflict with the law and in particular by ensuring that the provisions of the Beijing Rules1 are adhered to at all times in the administration of juvenile justice. The strategy also states that An Garda Sı´ ocha´na is committed to a multi-agency approach when addressing the needs of children and young people and to working with other service providers to develop protocols to facilitate the more effective delivery of services (Garda Youth Justice Strategy, 2009). The three-year strategy outlines how An Garda Sı´ ocha´na hopes to deliver a quality service to children and young people in the community. The strategy reflects the fact that the majority of young people do not come into conflict with the law and that young people are often the victims of crime and/or in need of Garda assistance. The strategy is inclusive rather than exclusive, in so far as it recognises the special place held by children and young people in the community and particularly the challenges that children and young people face in a modern society. The Garda Youth Justice Strategy sets out three high-level goals relating to the following (An Garda Sı´ ocha´na, 2009, p. 7): • All children in society, children who come in conflict with the law, children who are at risk of harm or in need of assistance. • An Garda Sı´ ocha´na will deliver these high level goals through improved service delivery to children and young people, ensuring this strategy is adapted within the Garda organisation, embracing a multi-agency approach.

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• This strategy is designed to evolve and respond to the many changes taking place in society and in particular in the area of youth justice. The Juvenile Diversion Programme allows juvenile offenders to enter the Garda Juvenile Liaison Scheme. In this way, the offender is diverted from the formal criminal justice system by way of an official caution. If after two years the offender has not re-offended, the record of the caution is deleted. The conditions for inclusion in the Juvenile Liaison Scheme are as follows: • The offender is under 18 years of age • He/she admits the offence • Have not been previously cautioned, or having been cautioned, the circumstances are such that it would be deemed inappropriate to administer a further caution (An Garda Sı´ ocha´na, 1991) Parents or guardians are required to agree to co-operate with the Gardaı´ by accepting any help or advice concerning the juvenile’s future, or in the circumstances pertaining to the particular case, where the parents/ guardians fail to co-operate, and the juvenile deserves the opportunity of availing the benefits of the scheme (An Garda Sı´ ocha´na, 1991). The consent of the injured party, although not a condition for inclusion of the juvenile offender into the Diversion Programme, should where possible be attained and given due consideration. Juvenile Offenders who are admitted to the programme will be dealt with in one of two ways: • Formal Caution • Informal Caution An Informal Caution will be appropriate in cases where the juvenile is involved in minor crimes and it is given by the JLO in the presence of parents or guardians. A Formal Caution will be appropriate where the offender is made amenable for a serious crime or offence and an informal caution is inadequate. A formal caution may also be administered for a less serious crime or offence, where the offender has already been included in the Juvenile Diversion Programme, by way of an informal caution and the JLO deems it appropriate that a formal caution be administered. The District Officer, Superintendent in uniform will administer the formal caution at a Garda Station. The following will be present at the cautioning: the offender, parents or guardians of the offender, JLO and Cautioning Officer. At this meeting, the benefits of a caution are explained in terms of not having a

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‘criminal conviction’, although attitude and indication of future behaviour are discussed. Following the Formal Caution, a supervisory period of 12 months is imposed (An Garda Sı´ ocha´na, 1991). The local JLO in the presence of the parents or guardian will administer the Informal Caution. This will be appropriate in cases where the offender has been involved in minor crimes or summary offences. There will be no official record of caution. The aim in this case is to bring awareness to the parents or guardians of their son or daughter’s behaviour. Experience and research has shown that in many cases the parents or guardians are not aware of the anti-social behaviour of the child and this informal caution may in many cases be sufficient to ensure a trouble-free future for the child, depending on the level of parental support. In both cases of formal and informal cautioning, the young offender is advised of the implications for further criminal behaviour, they are encouraged to ‘steer clear of crime’ and in most cases the JLO will supervise the offender. The caution remains active until the juvenile reaches 18 years of age or for a period of two years from the date of detection if the juvenile was cautioned between the age of 16 and 18 years. If a juvenile continues to commit offences after informal or formal cautions have been administered, the NJO may grant ‘blanket approval’ in respect of the offending juvenile. This means that if the juvenile is caught committing an offence, there is in existence approval or sanction from the NJO to proceed with normal prosecution through the Criminal Justice System. In other words, he or she is to be charged or summoned for their offending behaviour (An Garda Sı´ ocha´na H.Q. Directive 91/1991).

5.7. LAW REFORM AND NEW APPROACHES TO RESTORATIVE JUSTICE IN THE REPUBLIC OF IRELAND While the Children Act 2001 can be viewed similar to its predecessor as comprising a piece of legislation, which is liberal and innovative for its time, the old problems within Ireland remain. While there was a heightening in both public and political interest during the late 1990s and the early part of this decade, there still lacks a considerable amount of political backing and support for the full implementation of the legislation.

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There are considerable logistical problems such as training and staffing with the agencies charged with the responsibility of the various aspects of the youth justice system. A first major review of youth justice conducted by the Department of Justice, Equality and Law Reform was published in December 2005. This raised the age of criminal responsibility from 10 to 12. The second and perhaps most important recommendation for the juvenile justice system was the establishment of the Irish Youth Justice Service (YJS), as an executive office of the Department of Justice, Equality and Law Reform. The Irish YJS has a remit to develop a unified youth justice policy. This policy includes crime prevention, the devising and implementation of a national youth justice strategy with links to other children-related strategies. The service will also assume responsibility for detention orders for all offenders under 18 years of age, while the service will also implement the provisions of the Children Act 2001 in relation to community sanctions, restorative justice conferencing and diversion projects. The service will also finally co-ordinate service delivery at national and local level (Youth Justice Review, 2005). The report states that the YJS should be established on an interim basis subject to review within 5 years. The key element of the report is the establishment of a service, which would act as an umbrella for a multi-agency approach to youth justice. However, while the Department of Justice, Equality and Law Reform (DJELR) has appointed a director to head up the service, the progress in terms of achieving the terms of reference seems to be muddy. The director of the IYJS at a recent Child Law conference stated that some of the tasks ahead included the development and delivery of an effective youth justice strategy based on the Children Act 2001 and to ensure that the objectives meet up with other child-related strategies. The director has stated in 2006 that she believed that youth justice in Ireland was at a ‘crossroads’, in a sense we have begun on a new path with the amendments and Children Act, leaving behind an old 1908 Act, which got us here to the crossroads. All of the disparate responsibilities are being gathered under our banner (Michelle Shannon, Director IYJS, Irish Human Rights Commission (IHRC) Child Law Conference, 14 October 2006). She alludes to some of the key challenges faced by the YJS, including the implementation of legislation, ensuring that programmes provided are effective and achieving the best possible outcomes for children who come into contact with the YJS.

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She acknowledged that her task ‘is a little bit of a paradox as (we) have to keep what is in place while we change it’. There is no piece of information available from either the Department of Justice, Equality and Law Reform, the YJS or any other governmental department on how they are actually going to reform the youth justice system and fully enact the Children Act 2001. An Garda Sı´ ocha´na and the Probation and Welfare Service, on the other hand, have been more successful in working with the sections of the legislation, which deals with their roles in the youth justice system. The research unit of An Garda Sı´ ocha´na, based in the Garda College in Templemore, have been very active in reviewing and evaluating the pilot programmes of restorative-based initiatives within the organisation. The report, which was published in 2001, states that 79% were judged to be highly or very highly successful. Only two cases were ranked poorly; four cases were ranked low on optimism about re-offending (Garda Research Unit). Recommendations of the report include the need to produce guidelines to support JLOs in the selection of cases, determining the choice of restorative caution or conference and perhaps most importantly the involvement of other professionals such as social workers.

5.8. AN GARDA SI´OCHA´NA ADULT CAUTIONING SCHEME The Garda Adult Cautioning Scheme began in February 2006 and operates on a non-statutory basis. Similar to the Garda Juvenile Liaison Officer Scheme when it was first establish in 1963, the adult cautioning scheme adopts a diversionary approach where it is not considered necessary in the public interest to prosecute adults against whom there is evidence of a criminal offence. When deciding to administer a caution the following range of issues must be considered by the Gardaı´ (An Garda Sı´ ocha´na, 2006): • The Public Interest: If the public interest does not require that the accused is prosecuted then the offence maybe considered for caution. If the accused has had a recent conviction or previous convictions, they may be considered unsuitable for the scheme.

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• The Decision to Caution: There must be at ‘first sight’ (prima facie) evidence of the guilt of the accused, the accused must admit the offence, they must understand the significance of the caution and they must be given informed consent to being cautioned. • Views of the Victim: Before the offence and the offender are considered for application for a caution, the views of the victim must be sought. The consideration of their views is an important element of restorative justice. • The Effects on the Victim and any views put forward by them as to why a caution should not be applied are carefully considered before a decision is made. However, a caution may be deemed suitable even if the victim opposes it. • Suitability: If there is any doubt as to the suitability of the accused, the matter is forwarded to the local Superintendent who will make a decision as to whether or not a caution or prosecution is appropriate. In 2008, there were 6,246 adult cautions issued by the Gardaı´ . This marked an increase from 5,292 in 2007 and 2,771 in 2006. The range of offences cautioned under the adult cautioning scheme, include minor assault, criminal damage (excluding arson), public order and being drunk and disorderly (An Garda Sı´ ocha´na, 2006).

5.9. COURT REFERRED PROBATION AND WELFARE SERVICE FAMILY GROUP CONFERENCES The Probation and Welfare Service operate their own family group conferences but also fund and support two community projects. However, the operation is still in its infancy and the number of cases being dealt with is relatively small, in total 173 family conferences were referred to the Probation Service between October 2004 and January 2009 (National Restorative Justice Commission, 2009). The Probations and Welfare Service Director, Mr Michael Donnellan, is keen to expand restorative cautioning within the probation service and represents a considerable voice at civil service level calling for the full implementation of the restorative element of the Children Act 2001. He stated that the Irish justice family must take on the challenge of Restorative Justice because it gives an effective, defined and articulate role to the victims of crime and enables a more structured comprehensive response

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to the needs of victims (Michael Donnellan, Director Probation and Welfare Service, 18 November 2006, Restorative Justice Services, National Conference, 2006). Court-referred family conferences only take place when there are criminal charges against the child or young person. For this to happen, they must take responsibility for their behaviour and where the court considers it desirable that an action plan is formulated in the case. At the conference, the child or young people’s criminal actions are discussed with regard to the consequences of the action and the effect it has had on the victim, the child or young person’s family and the community. The family group conference involves the young offender, supporters for his or her family, the victim, their supporters and other relevant participants. The family group conferences, which the probation service organises, are set out in Section 78 of the Children Act 2001. There are four stages involved in a family group conference (Probation and Welfare Service, Family Conference Information Pack): • Information Giving: Introductions are made, the format of the meeting is outlined and the information sharing process begins • Restorative: The victim explains the effect that the incident has had on them and how this has affected them • The child/young person is facilitated in accounting for their criminal behaviour • Family Time: The child/young person and their family supporters meet in private to draft an action plan to make amends to the victim and help the child/young person avoid re-offending and further criminal activity • Action Plan: An action plan made as a result of the Family Conference may include: an apology to the victim financial or other reparation to any victim any initiatives within the child/young person’s family and community that might help to prevent re-offending. • The draft plan is brought back to the conference for discussion and agreement • The agreement is then submitted to the court for approval The Court can order the young person to comply with the action plan and be supervised by the Probation and Welfare Service. The Court then adjourns the case for a period of up to six months, when a review takes place. If the Court is satisfied that the child or young person has complied with the plan, then the charge may be dismissed. If the child fails to comply

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with the plan, the probation officer can apply to have the case returned to Court and the Court can resume proceedings and progress to the next stage. Of the 145 conferences that have taken place, 97 were successful leading to a completion of 86 action plans and the disposal of the cases concerned. The remaining 11 action plans are in the course of being implemented. In the 48 unsuccessful cases, the criminal proceedings in court have been reactivated (National Restorative Justice Commission, 2009). Unlike the Garda Juvenile Diversion Programme, the Probation and Welfare Service court-referred family conferences have not been subject to evaluation and review. However, the National Restorative Justice Commission state in their final report that the experiences of Probation and Welfare staff actively engaged in the preparation and facilitation of family conferences mirror those of other restorative justice measures in the Republic of Ireland and elsewhere (NRJC, 2009).

5.10. RESTORATIVE JUSTICE SERVICES Apart from the Probation and Welfare Services family group conferencing and the Garda initiatives, there are two other initiatives in operation. Both of these programmes follow the framework of fundamental rights of both the victim and the offender prepared by the United Nations Commission on Crime Prevention and Criminal Justice. The first is a pre-sentence model, which receives referrals from the Courts Service. It was established in 2000 and is managed by an independent board representing the main stakeholders in the criminal justice system including Tallaght District Court, An Garda Sı´ ocha´na, the Probation and Welfare Service as well as victim support and community sectors volunteers. It operates under the heading of Restorative Justice Services (RJS). RJS operate two restorative programmes, offender reparation and VOM. All cases are court-referred at pre-sanction stage at the discretion of the Judge and the court remains in charge of the process at all times (RJS, 2007). An Garda Sı´ ocha´na, the Probation and Welfare Service, legal representatives and victim support interests may request the court to consider the appropriateness of mediation or reparation in a particular case. VOM makes up a significant proportion of the work, which RJS perform. RJS victim offender mediation focuses on the needs of victims

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and also seeks to raise understanding and awareness of offenders of the impact of their criminal behaviour. For victims, the process provides them with an opportunity to engage directly or, indirectly, address their needs. The intended outcome is that the offender apologises, makes some form of reparation and seeks to take steps to help avoid future re-offending. VOM referrals to the RJS to date have been received by a number of different courts. Cases dealt with include relatively serious offences such as criminal damage, theft, assault and public order (RJS, 2007). During the period of 2004 2007, the VOM programme received a total of 51 referrals arising from 55 offences. Of the 51 referrals, the process was completed and there was an agreed outcome in 45% of cases. This reflects according to the RJS an informed choice of victims not to participate in the process (RJS, 2007). Types of agreements or outcomes achieved using VOM include a verbal or written apology, financial compensation or donations to charity. RJS conclude in their Annual Report (2007) that they have experienced more cases being referred to the Offender Reparation Panel and that offences which are of a more serious nature which are more suitable for VOM have not been referred with the same frequency. The Offender Reparation Panel programme has been in effect since 2004 and provides an opportunity, according to the RJS, for offenders to accept responsibility for their behaviour, to look at its effects on others and on the wider community, to address the consequences of their actions, to make positive changes within their lifestyles and to make some form of reparation to the community (RJS, 2007). The Offender Reparation Panel focuses on public order offences, low-level assaults and criminal damage. The RJS advocate that participation in the programme allows offenders, who come before the courts to take responsibility for their behaviours, repair the harm caused and make positive choices and changes for the future. The programme gives offenders, their families, the victim and the community the opportunity to gain an understanding of the consequences of the offending behaviour and for the offender a chance to learn how to avoid situations that could lead to further offences in the future. The programme focuses on accountability, responsibility, reparation and commitment to good behaviour by offenders in the future (RJS, 2007). More importantly, the programme delivers a considered and measured response from the State to offenders before the court for the first time. According to the RJS Annual Report (2007), 81 referrals to the Offender Reparation Panel were successful and 75 offenders successfully completed their contracts.

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Some 66% were between the ages of 18 and 25 years of age. Alcohol consumption was a notable factor in many cases and 85% of offenders undertook some form of alcohol awareness programme. Over 95% referred to the Offender Reparation Panel were male (RJS, 2007).

5.11. NENAGH COMMUNITY REPARATION PROJECT The second initiative operates in Nenagh, County Tipperary and is a Community Reparation Project. It began in 1999 as a 12-month pilot project managed by a local committee, which represents different community interests in conjunction with the Probation and Welfare Service. The initiative was established by a local judge, Judge Michael Reilly (current Inspector of Prisons), who had visited Timaru, New Zealand in 1998 and was so impressed by how the initiative operated there that he decided to set up a similar project in Nenagh. The Board of Directors consists of 15 members who are representative of the voluntary, statutory and community organisations in the Nenagh district. The Management Sub-Committee of the project is involved in the general administration of the project. While six director members regularly attend a monthly meeting to review progress and carry out administrative duties, these meetings are open to any of the directors to attend. The panel members are a group of volunteers who represent different community interests. They meet with offenders and victims in an effort to enable both parties to come to an agreement on reparation for the crime committed. At present, there are 14 people on the panel, all of whom received introductory training locally and most have attended an ‘Introduction to Mediation’ course run by the Tallaght Mediation Bureau. According to the project’s website, further training is planned for the near future (www. nenaghreparationproject.org). A Probation Officer acts as a co-coordinator for the project and works with the offender, once they have been, referred to the project by a judge. The initiative is also available as an additional option for the court at pre-sanction stage for offenders who plead guilty. The project aims to • Provide community reparation for adult offenders by use of alternative means to that of the present justice system. • Minimise repeat offending by confronting the offender with the impact of the crime on others.

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• Provide the community with an input into ways of dealing with offenders. • Ensure that the offenders accept responsibility for their actions and that they make reparation to their victims. • Reduce crime and to minimise repeat offending. (www.nenaghreparation project.org) The co-coordinator or probation officer arranges the meeting between the panel, offender and the victim, once the offender has been referred to the project by the courts. Usually, the judge will adjourn the case for up to a month to allow the offender to meet with the panel. The panel is made up of representatives from the community, local Gardaı´ as well as the project co-ordinator. The victim and their supporters may also be present at the meeting. During the meeting, the offender is encouraged to accept responsibility for their actions. The main purpose of the meeting is to draw up a contract or agreement in where the offender agrees to any changes that he or she needs to make to their life (Lockhart citied in O’Mahony, Chapman, & Doak, 2002). If a contract of reparation is agreed, it is then presented to the judge for approval on the adjourned date. If the contract is forthcoming, the judge will usually adjourn the case further to allow the contract to be implemented. On returning to court, a report is presented on the offender’s performance of the contract to the judge, who, depending on the outcome, will either dismiss the charge or go ahead and deal with the matter by appropriate means. The types of offences dealt with include public order, assaults, criminal damage, theft, possession of drugs and possession of an offensive weapon. The majority of referrals are for first-time offences which would not normally attract a custodial sentence but which could result in a conviction and/or a referral to the Probation and Welfare Service (www.nenagh reparationproject.org). Findings from a baseline undertaken in 2002 indicate that 75% of all contracts were completed. The study also shows that the most common offences were public order offences (45%), possession of drugs (35%), assault, (10%), criminal damage (5%) and possession of an offensive weapon (5%). Statistics on the project’s website indicate that of the 105 referrals between 1999 and 2007, contracts of reparation were completed in 86%. Only one in four offenders was found to have re-offended in a review of PULSE records by An Garda Sı´ ocha´na in 2009 at the request of the National Restorative Justice Commission.

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The initiatives currently in operation by the Probation and Welfare Service, RJS in Tallaght and the Community Reparation Project in Nenagh, have not been subject to independent evaluation, monitoring and review. This is extremely problematic, not only for those involved in service delivery, but also wider society. As the following chapters will demonstrate, there are a number of potential pitfalls along the path to delivering restorative justice programmes. Conducting research and the evaluation of these programmes are vital to ensuring the success for all parties involved in these processes.

5.12. CHAPTER SUMMARY This chapter examined the links between civil society and the state that are provided through the restorative justice programmes of An Garda Sı´ ocha´na, Probation and Welfare Service. The chapter began with an examination of the restorative justice programmes led by the NJO and An Garda Sı´ ocha´na. Following on from this, the Garda Youth Diversion Projects were examined. The chapter then outlined the functions of the National Commission on Restorative Justice. Next, the Garda Youth and Children Strategy were explored. In addition, the chapter looked at new initiatives in law reform and restorative justice in the Republic of Ireland, such as Garda Sı´ ocha´na Adult Cautioning Scheme and Probation and Welfare Family Group Conferencing. The chapter concluded by outlining the RJS, VOM, Offender Reparation and the Nenagh Community Reparation Project.

NOTE 1. United Nations Standard Minimum Rules for the Administration of Juvenile Justice.

CHAPTER 6 RESTORATIVE JUSTICE IN PRACTICE

6.1. INTRODUCTION This chapter examines restorative justice from a practitioner’s perspective. It does so by examining the theories and practices surrounding restorative justice in both a national and international context. This application of a practitioner’s perspective contextualises the wider significance of restorative justice in real terms. This context provides an important element for understanding the key case studies, which are provided in later chapters. In the first section, the chapter examines restorative justice practice and programmes from around the world. The chapter goes on to outline the various restorative conferencing methods. The chapter then goes on to examine restorative justice in relation to youth justice. In addition, restorative cautioning and the international aspects of restorative justice in relation to family conferencing are examined. The chapter then outlines an understanding of restorative justice in Northern Ireland. An examination of the development of youth justice policy and, subsequently, restorative justice policy in England and Wales will then be outlined and discussed. The chapter concludes with an evaluation of the effectiveness of restorative justice alongside a study of the significance of evidence-led training for restorative practitioners in the context of multiculturalism.

6.2. RESTORATIVE JUSTICE PRACTICES There has been an expansion in restorative practices over the past 30 years. As a result, a range of approaches have been applied to different problems, 105

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including family relationships, school bullying, training programmes, industrial relations and complaints against police in addition to all types of crime. However, the range of practices and programmes of restorative justice are too diverse for there to be an agreed definition (Daly, 2002). While some place emphasis on core values and principles, others focus on aims and outcomes or make reference to specific programmes or practices (Hoyle & Young, 2002; Hudson, 2003). Despite this difficulty, its widely accepted that restorative justice is a face to face process that involves offenders, victims, their representatives and representatives of the community coming together to agree to a response to a crime (Bazemore & Walgrave, 1999; Braithwaite, 1999; Zehr, 1990).

6.3. RESTORATIVE JUSTICE PROGRAMMES This chapter cannot claim to describe all of the existing models that come under the restorative justice umbrella. However, the main examples of restorative justice processes, mediation, conferencing and circles will be outlined (McCold, 2001; Newburn, 2007). The first contemporary restorative process examined is victim offender mediation (VOM). This can take place before or after formal processes or in place of such processes. VOM involves bringing together the victim and their offenders along with a mediator who co-ordinates and facilitates the group meeting (Gelsthorpe & Morris, 2002). During the meeting, victims describe their experiences with the crime, in addition to the effect it had on them. Furthermore, offenders explain what they did and why, answering any questions the victim may have. When both the victim and the offender have had their say, the mediator will help them consider ways to make amends (Umbreit, 1998). VOM emphasises building relationships between parties, while establishing trust with the mediator and also seeks to enhance the problem-solving skills of the parties so that they can resolve further disputes through direct negotiations, if possible. VOM has been used in North America, the United Kingdom and more recently in Germany, Austria and the Republic of Ireland (Hudson, 2003; McCold, 2001; O’Dwyer, 2002; Weitekamp & Kerner, 2003). Family group conferencing was first developed in New Zealand and is, in part, a reflection of aspects of the traditional processes of the indigenous people of New Zealand, the Maori people (Consedine, 1995; Johnstone, 2002).

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There are now several versions of conferencing due to wider adaptation and utilisation in other countries including Australia, Asia, South Africa, North America and Europe. However, the two most influential versions are those in operation in New Zealand and Australia. The New Zealand model of family group conferencing not only involves participation by the victim, offender, and family members, but also a police representative, a youth advocate and anyone else whom the family wishes to be present (Hudson, 2003). The conference is arranged by a Youth Justice co-ordinator who acts as a facilitator and mediator. The co-ordinator arranges the meeting and ensures that everyone present is able to fully participate. However, the facilitator does not play a role in the substantive discussions (Gelsthorpe & Morris, 2002). Usually, the police representative outlines the offence and if the offender agrees, the basic facts and admits involvement, while the victim outlines the impact of the offence. Subsequently, opinions are put forward in relation to how the offence should be dealt with (Crawford & Newburn, 2003). The family then holds further discussions in private, after which the conference is reconvened to see if recommendations and plans for reparation can be agreed to help reduce the likelihood of re-offending (White, 1994). The Australian Wagga Wagga model involves meetings of families, friends and other supporters of the victim and the offender and any other community members that may have been affected by the offence, who hold discussions together (Hoyle & Young, 2002). Like the New Zealand model, the offence must be admitted and the basic details agreed before a conference can be held as an alternative to criminal justice proceedings. Under the Wagga Wagga model, the facilitator or co-coordinator is a police officer or someone appointed by the police, and the discussions follow a prescribed script (Young & Goold, 1999). Typically, the discussion begins with the offender explaining what had happened and how they think others were affected by their actions. The victims then describe their experience and the harm that resulted. The victim’s supporters may speak next, followed by the offenders’ families and supporters (Crawford & Newburn, 2003). Together, the group decide what the offender needs to do to repair the harm and what assistance the offender needs in doing so. The agreement is put into writing and sent to the appropriate criminal justice officials. This model has been adopted in Canberra where conferences can proceed without victims or with community representatives standing in for victims, particularly if the victim does not want to be

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involved (Morris & Maxwell, 2002). Offenders who fully admit responsibility for their crime can be diverted from the court if they agree to attend a restorative conference. The police facilitate a discussion about the offence, the harm caused, how it might be repaired with all parties affected by the offence. The conference is ‘scripted’ and heavily influenced by Braithwaite’s (1989) theory of reintegrative shaming. Family, friends and other members of the offender’s community of care are figures in offender reintegration. The family is seen as a shaming agent by denouncing the wrongfulness of the act. In addition, the family’s is the most important agency for reintegration, in supporting and assisting the offender as a worthy and valuable person beyond his or her momentary status as an offender (Braithwaite, 2002). This model, through its scripted approach, prompts the shaming of the offender’s behaviour in ways that the New Zealand model does not (Young, 2001). An outcome is reached, which may or may not involve an apology to the victim or victims, or entail material or financial reparation (Hoyle & Young, 2002). In the Republic of Ireland, the Children Act 2001 provides for formal cautions to include elements of VOM, referred to as a restorative caution or family conferencing. The programmes in operation in Ireland at present including the Garda initiative, the probation and welfare service and the community-based project in Nenagh have been replicated from the New Zealand model. Circles are similar to conferencing in that they expand participation beyond the victim and the offender. Families and supporters may attend, as well as criminal justice personnel. In addition to this, any member of the community who has an interest in the case may also participate (Hudson, 2002). Participants seek forms of consensus-led decision-making and offer a process and structure to enhance local community involvement in matters of justice (Crawford & Newburn, 2003). Circles were first adapted from indigenous practices of the First Nation people in Canada, and the expansion of circles is the result of the re-emergence of tribal sovereignty in North American reservations (McCold, 2001). Within the Canadian system, there are two types of circles, sentencing circles and healing circles. These terms are often used interchangeably but are not in fact synonymous (Johnstone, 2002). Sentencing circles are part of and replace sentencing in the criminal justice system. Healing circles focus in particular on the reintegration of high-risk sex offenders and other problems within indigenous communities such as domestic violence and incest (La Prairie, 1995).

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Circles seek to connect with and allow space for the spiritual and emotional aspect of aboriginal and indigenous cultures and involve multiple meetings in relation to a particular offender. Essentially, these are concerned with community capacity building and community empowerment. The value of the circle derives not as much from its impact upon the offender or upon the victim but its impact on the community (Stuart, 1996). Restorative justice has become a worldwide movement, and in many countries, it is one of several competing approaches regularly considered by the legal system (Johnstone & Van Ness, 2007). VOM takes place in prisons, while being used in post sentencing programmes and with sexual assault cases in various countries (including the United States, Canada, England, Belgium, Netherlands). Circles of support are being utilised with serious sexual offenders, often paedophiles in Canada, including pilots in England and Wales and Northern Ireland. Furthermore, restorative processes are being used to resolve conflicts between governments and citizens such as human rights abuses including Truth and Reconciliation Commissions of South Africa deals with the injustices of the apartheid years (Rwelamira, 2000). In other countries, legislative action is being taken to expand the use of restorative programmes, guide and structure such programmes and provide protection for victims and offenders (Van Ness & Strong, 2002). In other areas, the funding and support for restorative programmes has been expanded. Most countries including the Republic of Ireland started out with pilot programmes that are now being given more funding as a result of their effectiveness and the worldwide increase in governments providing resources for development (Crawford & Newburn, 2003). Impromptu conferencing can provide an opportunity for a wider engagement between the police, civil society, local businesses and risk children, young people and their families. From a practitioner perspective, this would involve the practical use of the ‘restorative practices continuum’ (O’Connell et al., 1999), which allows the involvement of more people from the community in restorative practices moving from the formal to the informal freely. As alluded to earlier, restorative justice may operate either within or outside the traditional criminal justice system (Zehr, 1990). It may be introduced in places where traditional justice is thought to lack legitimacy or is associated with oppressive and discredited regimes (Hudson, 2003). Examples include the introduction of restorative justice projects to replace paramilitary punishments of members of their communities in Northern Ireland (Dignan & Lowey, 1999; McEvoy & Mika, 2002).

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6.4. RESTORATIVE JUSTICE AS YOUTH JUSTICE According to Morris and Maxwell (2002), restorative justice is having a significant influence because of its demonstrated ability to operate within all aspects of the justice process to address serious offences and offenders. As alluded to in previous sections restorative justice programmes are expanding worldwide at speed, with youth justice systems acting as the starting point in most countries The reasons for this can be attributed to the fact that youth justice systems have been under pressure due to the ongoing debate about balancing treatment and punishment in the response to crime (Walgrave, 2005). Conferencing in England and Wales developed in the 1990s outside of any statutory framework (Young, 2001). As a result, family group conferencing along the lines of the New Zealand model has been restricted to a small number of initiatives working in both the criminal justice and youth welfare contexts (Dignan & Marsh, 2001). Four of the best known family group conferencing projects for young offenders in England and Wales are the London-based Victim Offender Conference Service, the Hampshire Youth Justice Family Group Conference Pilot Project, the Sheffield/Kirklees project and the Kent intensive support and supervision programme (Dignan & Marsh, 2001).

6.5. RESTORATIVE CAUTIONING By contrast, the model of ‘restorative cautioning’ introduced by the Thames Valley Police has had greater impact in England and Wales (Crawford & Newburn, 2003). Thames Valley has actively championed the use of restorative cautioning since 1998, both prior to and since the implementation of the Crime and Disorder Act 1998. The Thames Valley approach approximates closely the Canberra model in that its police led, although there is some debate regarding whether it is actually restorative justice or ‘cautioning plus’ (Hudson, 2003, p. 31). This is because the process is used for offenders who would otherwise be cautioned (a formal warning administered by a police officer as an alternative to prosecution), and who are given some form of reparation (anything from an apology to some work for the victim or the community) to make amends for the offence (Walgrave, 1994).

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However, there is some concern that the existence of this option is encouraging more use of cautioning as an alternative to prosecution that would otherwise be the case, fears of net widening using the scheme for young people who would otherwise have no formal recorded action taken against them and net strengthening some form of or reparation imposition accompanying the caution for those who would have been cautioned in any event (Crawford & Newburn, 2003; Roche, 2004; Young, 2001). From the limited body of literature in the Republic of Ireland that focuses specifically on restorative justice, concerns have been raised regarding net widening (Griffin, 2005; Lalor et al., 2007; O’Dwyer, 2006). However, due to a lack of empirical data on the operation of restorative justice in Ireland, the true extent of this is difficult to assess. The research findings presented later in the book will address this issue. As mentioned above, the Crime and Disorder Act 1998 established certain elements of a restorative justice approach as part of a mainstream response to juvenile offending, with conferencing largely acting as a supplement to specific orders such as a reparation order or final warning (Ball, 1999; Fionda, 1999; Gelsthorpe & Morris, 2002). However, the measures introduced are located firmly at the narrow end of the restorative justice spectrum, since the emphasis is on making offenders accountable for what they have done by requiring them to undertake some form of reparation for either their victim or the community (Gelsthorpe & Morris, 2002). Another important element of the restorative justice approach that the 1998 Act introduces relates to the scope for victims’ involvement in the sentencing process. The Act stipulates that before any reparative intervention is imposed, the view of the victim should be sought and relayed to the court and, where possible, direct reparation should be made to the victim (Home Office, 1997). The perceived success of the Thames Valley initiative stimulated by changes to the cautioning system for young people by the Crime and Disorder Act 1998 resulted in the government advocating that police and Youth Offending Teams use the final warning as an appropriate referral point for restorative conferences. Furthermore, the outcome of the Thames Valley initiative encouraged other countries such as the Republic of Ireland and police forces such as An Garda Sı´ ocha´na (Irish Police Force) to follow their example (Wilcox & Young, 2007). In the Republic of Ireland, the Children Act 2001 places the Garda Juvenile Liaison Scheme (established in 1963) on a statutory footing and

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offers a range of approaches and sanctions designed to address and punish offending behaviour (Seymour, 2004). Similar to the Thames Valley police led cautioning programme, the Garda programme is police led, scripted and deals with minor offences without exposing young people to the criminal justice system. Its goal is to ‘divert’ young people from further offending that may lead to a criminal lifestyle (Lalor et al., 2007; Quinn, 2002; Walsh, 2005). If a young person accepts responsibility for crime and agrees to be cautioned, he or she can be admitted to the Programme. Should the child be prosecuted this is carried out by the District Court, sitting as the Children Court (Kilkelly, 2006a). The Garda conferences have been evaluated by the Garda Research Unit (Garda Sı´ ocha´na Research Unit, 2001). The findings of the pilot of restorative justice initiatives in the Garda Sı´ ocha´na were collected between 1999 and late 2000. The report presents findings from an examination of 147 restorative events, 134 restorative cautions and 13 Garda conferences. It is the only data available to date on the use of restorative cautioning in An Garda Sı´ ocha´na. Overall, the report concludes that the number of restorative events needs to be increased significantly to have an impact and that restorative justice remains a marginal activity in the Irish youth justice system. Garda restorative events currently represent only a small percentage of potential cases processed under the Juvenile Diversion Programme. Figures available show an increase from 118 in 2003, to 177 in 2004, to 262 in 2005 (Garda Sı´ ocha´na Annual Reports, 2003, 2004, 2005). While these increases may seem significant, when they are viewed in light of the approximate number of 17,500 young people who are referred to the Garda Juvenile Diversion Programme each year, it is a very low figure. Further discussion of these issues will be presented in later chapters and in the empirical analysis.

6.6. INTERNATIONAL ASPECTS OF RESTORATIVE JUSTICE Internationally, one of the first legal changes made to incorporate restorative justice into law came in New Zealand in 1989. New Zealand and Canada have chosen different routes to restorative justice from the United States and Britain, rediscovering ancient practices and using them in their criminal justice systems (Maguire et al., 1997).

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According to Graef (2001), after some experimentation, the New Zealand Government passed the Children, Young Persons and their Families Act, which introduced an intermediate stage between arrest and sentence for serious cases for a Family Group conference to take place. This is a procedure based on the principles of restorative justice. It was developed and then extended to deal with juvenile offenders. In Family Group Conferencing, juvenile offenders and their extended families are invited to attend, as are the victims and their supporters. The professionals who take part include a police youth aid officer, the offender’s teacher or social worker. The group guided by a facilitator explores the factors that led to the offence, and the effects that it had on the victims. The conference concentrating on repairing the damage and preventing further offending, seeks to produce a plan that will see appropriate measures are taken to make good the harm and assist the juvenile offender. An important part of this process is that the offender and his or her family are given time in private to formulate a plan that is then discussed by the whole Conference. Graef (2001, p. 25) states that: Eighty per cent of less serious cases are diverted from court to informal measures, often restorative in nature. The remaining twenty per cent Family Group Conferencing is used instead of the court process, or in more serious cases, the conferencing model is used to develop recommendations made to court during in the pre-sentencing report. If the judge accepts the plan it will normally form the basis for a three-month court order. If all conditions of the plan are completed, the case is discharged. Justice is deemed to have been done.

Recent legislation in the England and Wales is providing a new opportunity for restorative justice. The Crime and Disorder Act 1998 provides for Reparation Orders to be carried out by juvenile offenders to benefit their victims, or if the victims do not want to be involved, to benefit the community. Although the act does not specify victim/offender mediation (it must be voluntary to be meaningful), it is seen as an appropriate means of arranging reparation (McLaughlin, 2003). Throughout Europe in the last decade, there has been an increasing surge of interest in restorative justice. Several countries have now passed restorative legislation. Others including Ireland are introducing victim/ offender mediation alongside their criminal justice system. At the present time, the most prominent example of restorative justice processes in operation internationally, is in New South Wales in Australia. The New Zealand model, based around family group conferencing has been revised and replicated in Wagga Wagga, New South Wales as a community policing technique (Moore & McDonald, 1995). In the first instance, the offenders were

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brought together with their family and friends to decide how to respond to the offence, as in the New Zealand model, however the scheme has been extended to include victims and their supporters. This scheme has also been adopted by police forces in other parts of Australia. The first use of police-based conferencing outside of Australia occurred in 1995 when police officers in Minnesota and Pennsylvania conducted a series of training sessions. They set up REAL JUSTICE, which has made a significant contribution to the development and promotion of restorative justice in North America. The scheme was confined to misdemeanours with strict controls on the type of offences that could be referred, only minor offences were eligible and it only applied to first time offenders by the Bethlehem Police Department (McCold & Wachtel, 1998). The Bethlehem project has been replicated by at least five other police departments in the United States as well as the Royal Canadian Mounted Police and a number of police forces in the United Kingdom, for example Thames Valley and the Police Service of Northern Ireland. The projects in operation in Ireland at present include the Garda initiative and the community-based project in Nenagh has been replicated from the New Zealand model (Miers, 2001).

6.7. RESTORATIVE JUSTICE IN NORTHERN IRELAND The Police Service of Northern Ireland, formerly the Royal Ulster Constabulary, ran two pilot restorative cautioning schemes in Ballymena and in Mountpottinger, Belfast. Research findings are available for the period from mid-1999 to mid-2001. The schemes utilised a restorative approach for dealing with juveniles who committed an offence, but were diverted away from prosecution by way of a formal caution, delivered using a restorative framework. Two types of restorative approaches were used in both areas: firstly, a restorative conference directly involving the victim and, secondly, a restorative caution which did not directly involve the victim. The schemes in both areas differ from one another. In Ballymena, it was operated as part of a retail theft initiative and dealt mostly with shop lifting cases. In Mountpottinger, it was used as an alternative for cases that were thought to be suitable for formal cautioning (O’Mahony, Chapman, & Doak, 2002).

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The data summarise the Juvenile Liaison outcomes for the period May 1999 September 2000. Some data are missing as there were a number of cases that either had no outcome or a decision was pending at the time the research was being conducted. The report states that the profile of those who were dealt with by means of no further police action were younger than the general age group of those who came to the attention of Juvenile Liaison Officers in both areas. Only a very small minority had ever been previously cautioned or prosecuted. In respect of offenders given advice and warnings, the report states that a high proportion was for non-criminal incidents or general misbehaviour. Similar to no further police action, over half had never had previous contact with the police. In relation to the normal caution, the report notes that all offences related to theft, disorderly behaviour violence and motoring-related offences. Most of the people cautioned had previous contacts with the police though most of these had resulted in no further action or advice and warning. Restorative conferences took place predominantly in Ballymena and, as a result, the report notes that the vast majority of the cases were for thefts through shoplifting. It is reported that 95% of those given a restorative conference had never been previously cautioned and/or prosecuted, making them similar to those given advice and warning than those cautioned or prosecuted. By contrast to restorative conferencing, the vast majority of restorative cautions took place in Mountpottinger. The cautions were given for a wide range of offences including burglary, criminal damage and drug-related offences. The age profile of the offenders was generally higher than those dealt with through restorative conferencing. Furthermore, the report states that the vast majority of offenders had previous contact with the police. The differences between the conferences and the cautions show how the different programmes operated in Ballymena and Mountpottinger and also the different approaches adopted in the two areas to dealing with juvenile offending. In relation to prosecution, the report notes that the young people prosecuted were very different to the other types of offenders. The ranges of offences leading to prosecution is associated with more serious crimes such as burglary, violent offences, theft and criminal damage. Those prosecuted were also different from the other offenders due to the fact that only 11% had never had any previous contact with the police while the remainder had six or more previous encounters with the police (O’Mahony et al., 2002). Overall, with respect to the restorative conferences and cautions, the report states that the police intention was to position the scheme within

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their caution policy. It is clear that they were not using the restorative approach as an alternative to prosecution or instead of prosecution. In respect of restorative conferences, the report states that they were used at the low end of the criteria for official cautions. The profile of those given restorative cautions, on the other hand, was closer to those given official cautions (O’Mahony et al., 2002). The report concludes by stating that the police restorative conferencing and caution scheme is a substantive improvement in the quality on previous cautioning practice. In this it represents significant progress towards a balanced, humane and effective juvenile justice system (O’Mahony et al., 2002, p. 10). The report contends that in order for the process to advance further, greater efforts need to be made in order to encourage victims to take part and to take greater risks in engaging more serious and persistent offenders. The report also mentions that facilitators must strive on an ongoing basis to improve the quality of the practice for victims, offenders, the community and society as a whole (O’Mahony et al., 2002). The Youth Conference Scheme in Northern Ireland was introduced in response to recommendations made in the Criminal Justice Review (2000) that a statutory model of restorative justice should be integrated into the juvenile justice system in Northern Ireland. It is modelled on the New Zealand system of family group conferencing and was placed on a statutory footing by the Justice (Northern Ireland) Act 2002. The service was established in 2003 and the Youth Conference Rules (Northern Ireland) set out the procedures to be followed when convening and facilitating a conference. Initially, the service operated on a pilot basis in the greater Belfast area and was available to deal with children and young people aged 10 16 years. In 2004, it was expanded to cover more rural areas, including Fermanagh and Tyrone, and eventually it was extended to all 17 year olds within the jurisdiction of the youth courts of Northern Ireland. There are two avenues by which a child or young person can be referred to a youth conference: either via the Public Prosecution Service or via the court. In either instance, the referral is dependent on an admission of guilt (in the case of court a finding of guilt) and voluntary consent (Beckett, Campbell, O’Mahony, & Doak, 2004). The mandatory nature of referral highlights the deliberate centrality of conferencing to the youth justice system. The youth conference encourages the child or young person to reflect upon their behaviour and to offer some form of reparation to the victim. The victim whose attendance is voluntary can explain how the offence has

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affected them. Following a group discussion on the harm caused by the incident, a ‘conference plan’ is devised (Shapland et al., 2004). Unlike the New Zealand model, the plan is usually drawn up with the involvement of all participants including the victim. It takes the form of a negotiated agreement and there are consequences if the child or young person does not fulfil the terms of the plan (Beckett et al., 2004). Restorative youth conferencing in Northern Ireland was the subject of major evaluation between 2003 and 2005. The evaluation was commissioned by the Northern Ireland Office and was conducted by researchers based in the Institute of Criminology and Criminal Justice, School of Law, Queen’s University Belfast. The evaluation was conducted on a number of levels. In relation to the conference process, the research measured participant involvement and satisfaction at various stages of the proceedings. This included the extent to which facilitators introduced participants and explained the process and the involvement of participants when discussing the impact of the crime. Observations conducted also recorded the presence or absence of an apology, shame and remorse, and how the expression of this, was received, by the victim if present and other participants. Researchers then considered the involvement of participants in devising and agreeing the conference plan (Campbell et al., 2006, p. v). • Most victims appeared calm and relaxed at the start of the conference, and did not report feeling nervous. By contrast, 71% of young people displayed some degree of nervousness and avoidance or discomfort. • Overall, facilitators were observed to introduce participants and the process very well. On some occasions, however, the confidential and voluntary nature of the process was not explained in adequate detail. • Young people generally engaged well when discussing the offence, and were given the opportunity to explain it from their perspective (93%). Almost all young people (98%) felt that they were listened to when they did so. • The vast majority (97%) of young people accepted responsibility for their actions, either ‘a lot’ (61%) or ‘a bit’ (36%). • Victims were generally very engaged in the conference process. All victims felt that conference gave them the opportunity to explain to the young person how the crime affected them. • Both victim and young people’s supporters were generally observed to feed positively into the restorative atmosphere of the conference. The vast majority of young people (93%) and all victims said that they found their presence ‘helpful’.

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• The majority of conferences considered contributory factors when discussing the crime. The most common were substance misuse, peer pressure and family difficulties. • In the majority (87%) of conferences, the young person apologised or agreed to apologise. The majority of conferences without an apology involved a victim representative and not a personal victim. Young people were observed to display some level of shame (77%) and remorse (92%) in most conferences. • Both young people and victims were involved in devising the conference plan. In total, 89% of young people and 96% of victims were either ‘a lot’ or ‘a bit’ engaged when deciding the plan. • During the period of the research, 95% of conferences reached agreement on a plan. The majority of young people (74%) and victims (87%) were ‘happy to agree’ to the plan. • Both young people (93%) and victims (79%) believed the plan to be either ‘very fair’ or ‘fair’. Similarly, 71% of young people and 79% of victims were ‘very satisfied’ or ‘satisfied’ with the plan. • In terms of proportionality, young people (72%) and victims (69%) believed the plan to be ‘neither too hard nor too soft’. Overall evaluation of conferences The overall levels of participation within conferences and the facilitation provided by facilitators were also measured (Campbell et al., 2006). The research considered the overall input when analysing the crime and agreeing the conference plan, participants’ evaluation of their conference experience and observations in relation to the skills of conference co-coordinators. • In the majority of conferences, participants were involved when discussing the crime. Sixty-two per cent of young people and 80% of victims were involved ‘a lot’ at this point. • The majority of young people (91%), and victims (81%) preferred the conference over court. • Eighty-one per cent of young people and 48% of victims felt better following the conference. Of the 52% of remaining victims, the majority felt no different. • Ninety-two per cent of young people and 78% of victims believed the conference had helped the child or young person realise the harm caused by the offence. • The vast majority of young people (86%) and victims (88%) would recommend a conference to a person in a similar situation.

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• Of the family members who provided their views on the conference process, the majority welcomed the opportunity to attend and believed the conference to have a positive impact on the young person. • In 77% of conferences, the co-coordinator was either ‘very good’ or ‘good’ at involving others and in 84% of cases, ‘very good’ or ‘good’ at progressing the conference towards agreement. Overall, co-coordinators displayed particular skill in their ability to be inclusive and to treat everyone in a respectful manner. (Campbell et al., 2006, p. v) After an examination of both the referral and convening of youth conferences, an evaluation of the return of conference plans to the court or the Public Prosecution Service was then reviewed. The numbers of plans returned and their varying outcomes were examined in the report as was the legislation governing the process and key issues arising with respect to it. The findings were as follows; • Two-thirds of plans (67%) returned to the court or Public Prosecution Service were passed in their original form. • All conference plans (100%) returned to the Public Prosecution service were passed, while just under two-thirds of plans were accepted by the court (63%). • Difference in decision making between magistrates was evident between the Fermanagh and Tyrone and Greater Belfast regions, with plans much more likely to be passed in Fermanagh and Tyrone. • When making youth conference orders, observations found that legislative requirements are generally being met within the courts. • In most cases, reasons given by the court for the rejection of plans related to the nature of the offence. While on some occasions the offence was believed to be too serious for the imposition of an order, in others the offence was deemed not serious enough. • Of those referred to a youth conference by the court, but did not receive a youth conference order, the most common alternative disposals were a conditional discharge or a period of custody. • Just under half (47%) of plans passed were completed within the period of the research. On average, plans were completed within 67 working days, well within the year afforded by the legislation. • Only a small minority (6%) of plans were subsequently revoked due to non-compliance. (Campbell et al., 2006, p. v) Overall, the evaluation advocates an extension of restorative processes and conferencing throughout the criminal justice system in Northern

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Ireland and states that the youth conferencing service has marked a ‘radical departure’ (Campbell et al., 2006) from previous approaches to youth offending in Northern Ireland. The researchers, Campbell et al., state that it is hoped that youth conferencing will significantly alter how victims, children and young people experience the criminal justice system (2006, p. 2). Referring to the work of Christie (1977) and Shapland, Willmore, and Duff (1985), Campbell et al. (2006) advocate that the theory of restorative justice offers all parties increased involvement in the process and the opportunity to reclaim their case from a professionalised, often alienating system.

6.8. RESTORATIVE JUSTICE AND YOUTH JUSTICE IN ENGLAND AND WALES 6.8.1. Background Youth Justice Policy in England and Wales until recently has remained focused on the ‘welfare’ of young offenders and the ‘treatment’ necessary to ‘reclaim or reform them’ (Crawford & Newburn, 2003, p. 7). Hendrick (2006) concludes that ‘welfare’ became grounded as a legitimate feature through the growing acceptance of a social conception of juvenile delinquency, which understood offending as merely a symptom of a delinquent’s social and personal (including economic) condition and viewed juvenile crime, as but one inseparable portion of the larger enterprise of child welfare. The continuing focus on ‘welfarism’ overcame both Goldson’s (2002a) and Hendrick’s (2006) concept of victim-threat dualism (relates to interventions made in the nineteenth century, which became legitimised in policy to maintain social order, by empowering society to protect children, especially the increasing number of street children, and in turn to be protected from them). The shift from victim-threat dualism empowered the juvenile justice system to either reclaim the deprived child who was seen as the victim and/ or reform the deprived child who was seen as the threat (Goldson, 2002; Hendrick, 2006). A further, more underlying shift, which had a profound effect on maintaining principles of ‘welfarism’, occurred during this period, as there was a departure from emphasising economic factors, to matters concerning

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the family, for which provision was made in the 1908 Act (see Goldson & Muncie, 2006a) and psychological conditions produced at home, to account for delinquency (see Goldson, 1997a; Hendrick, 2006; Muncie, 2004). This view of the ‘responsible family’ became enshrined in subsequent policy and legislation, the Children and Young Persons Act 1933, and reaffirmed both the principle of a separate juvenile justice system and the assumption that the system should work in a way that promoted the ‘welfare’ of children and young people (Clarke, 2002; Crawford & Newburn, 2003; Goldson, 2002, 2006; Muncie, 2004). However, these measures resulted in conflict within the juvenile court and, in particular, tensions between ‘welfare’ imperatives and ‘justice’ imperatives, as the act allowed the court to play the part of the responsible parent by having to regard the ‘welfare of the child’ as the primary principle in the disposition of the child (Clarke, 2002). This approach remained controversial with the police and magistrates, as the increased emphasis on ‘welfare’ resulted in an increase in recorded delinquency rates (Hendrick, 2002), which predominantly stressed civil jurisdiction over needy children, rather than criminal jurisdiction over offending children. Muncie (2004) is very critical, in fact more critical than others, of this situation. He contends that the two philosophies of criminal ‘justice’ and ‘welfare’ are incompatible due to the fact that one stresses full criminal responsibility and the other stresses ‘welfare’ and ‘treatment’ to meet the needs of each individual child. Paradoxically, ‘welfarism’ is just as capable of drawing more children and young people into the net of juvenile justice as it is to offering them care and protection. According to Muncie (2004), a system legitimised by ‘welfare’ is likely to come under attack by those seeking a more punitive and retributive response to youth offending. This is exactly what happened, as shifts in policy and administrative changes, by means of legislation, which supplemented the Children Act 1908, up until this period, had only served to polarise the relationship between ‘welfare’ imperatives and ‘justice’ imperatives further. The principles of a separate juvenile justice system and the assumptions that the system should promote the ‘welfare’ of children and young people continued during the 1940s and 1950s. As alluded to earlier, the juvenile justice system followed the pattern, which had been established by the 1908 Act. Delinquency during this period became further subject to ‘welfarisation and juridicisation of need’ (Harris & Webb, 1987, p. 9). It began to feature in various academic and

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professional discourses and perhaps, most importantly, was enshrined in the 1948 Criminal Justice Act, which was made into law by the post-war labour government under the leadership of Clement Atlee (see Clarke, 2002; Crawford & Newburn, 2003; Goldson, 2002; Harris & Webb, 1987; Hendrick, 2002; Muncie, 2004). The Act again brought ‘welfare’ imperatives and ‘justice’ imperatives into conflict with each other, as it, on the one hand, placed a number of restrictions on the use of custodial detention for children, and, on the other, bowing to pressure from magistrates, allowed for them, through means of the Detention Centre Order, to place needy children and young people, who were too challenging for approved schools in detention centres with young offenders (Goldson, 2006). While the Act placed restrictions on the use of imprisonment, it was not until the Ingleby Committee, established in 1956, that the wheels were set in motion to decriminalise juvenile justice (Crawford & Newburn, 2003). The committee, which was established to inquire into the operation of the juvenile court, favoured the development of a local authority-based system of social services, as a method of decriminalising juvenile crime (Crawford & Newburn, 2003; Smith, 2005). The committee recommended, perhaps more importantly, raising the age of criminal responsibility from 8 to 12, ‘with the possibility of it later becoming 13 or 14’ (Morris & Giller, 1987), and below that age, only welfare proceedings could be brought. The Children and Young Person’s Act 1963 raised the age of criminal responsibility to a compromise 10, though Bottoms (1974, cited in Crawford & Newburn, 2003, p. 7) suggests that this measure had considerable importance to later events. The ‘high point’ of welfarism in juvenile justice was reached during the 1960s, and similar to changes in penal politics in previous decades, the shift was rapid (Gelsthorpe & Morris, 2002; Crawford & Newburn, 2003). The reforms of the 1960s, driven forward by an ambitious Labour government, were based on the belief made by the Longford Committee (1964), which succeeded the Ingleby Committee in inquiring on making reforms to the juvenile justice system. The most notable recommendation made by the Committee was the abolition of the juvenile court on the basis that ‘no child in early adolescence should have to face criminal proceedings’. Secondly, it concluded that much offending by young people could be accounted for by the social conditions, which they experienced (Smith, 2005). This again can be seen to follow on from similar conclusions drawn by previous inquiries into making reforms to the juvenile justice system in

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previous decades. However, the Longford Committee put forward fresh proposals for the establishment of a family service, based on family councils and family courts, where discussions could take place about what had gone wrong and what steps could be taken to make things right. Smith (2005) concludes that this was a logical approach, which allowed mechanisms for addressing the causes of crime, and he notes, along with a similar conclusion drawn by Gelsthorpe and Morris (2002) that elements of ‘restorative justice’ were being promoted by the Labour government in the mid-1960s, as part of a wider programme of reform. During this period, there was considerable optimism when faith was placed in the twin columns of state welfare and professional expertise to bring about reforms. It was believed that means could be found to treat the problems, which led to young people committing offences and that the role of welfare services was to develop effective systems for taking action to address the underlying needs of children and their families. The ideas and the recommendations made by the Longford Committee formed the basis for the White Papers, 1965 and 1968, respectively, The Child, the Family, and the Young Offender and Children in Trouble, which by contrast to the earlier paper, was enshrined in legislation through means of the Children and Young Persons Act 1969. However, proposals made in The Child, the Family and the Young Offender were considered to be too radical for the time, and they were not met with the same levels of optimism. Rather, they were undermined and sparked interagency power struggles, particularly among magistrates, legal professionals, social workers and the police (see Cavadino & Dignan, 2004; Hagall & Newburn, 1994; Harris & Webb, 1987; Hendrick, 2002; Gelsthorpe & Morris, 2002; Goldson, 2002; Muncie, 2004; Smith, 2005). The 1968 Children in Trouble White Paper Bill diluted and modified key elements of the previous proposals and was successful in gaining the consensus of political, administrative and professional agencies. The juvenile court was to remain unchanged, forming the ‘justice’ element of the legislation, but the power and influence of social workers, the ‘welfare’ element of the legislation, was extended quite substantially (Gelsthorpe & Morris, 2002). The Labour party, responsible for the legislation, promoted ideas to blur the distinction between the deprived and the depraved child to deal with young offenders, by way of care and protection rather than criminal proceedings. The general aim, tying in with recommendations made by the Longford Committee, was to divert young offenders from the juvenile justice system, or where it was absolutely necessary, to send them to court, to care for and

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treat young offenders rather than punish them (Gelsthorpe & Morris, 2002). Blagg, Pearson, Sampson, Smith, and Stubbs (1988, p. 99, cited in Goldson, 2002, p. 125) argue that the late 1960s have been seen as the ‘high water mark’ for reform in the field of juvenile delinquency; they contend that it represented the triumph of ‘welfare’ over ‘justice’ as the dominant ideology within the juvenile justice system. However, the compound effect of the legislation, argues Smith (2005), was to overlay a series of new welfare measures over the existing justice system. Muncie (2004) states that in practice, traditional principles of punitive justice were never seriously undermined by the 1969 Act. ‘Justice’ imperatives remained largely intact, with ‘welfare’ imperatives merely being added to the range of interventions and disposals available to the juvenile court. Muncie (2004) notes that the new ‘welfare’ elements of the system were generally employed in line with the recommendations made by the Longford Committee, applied to a younger age group of, for example, ‘low school achievers, ‘wayward girls’, and truants from ‘problem’ families designated as ‘pre-delinquents’, while the juvenile court remained intact in its old policy of punishing offenders (Muncie, 2004, p. 255). Taking a somewhat more decisive course, Scotland, through the means of the Kilbrandon Report (1964) and the subsequent 1968 Social Work Act, abolished the juvenile court and replaced it with welfare tribunals staffed by lay people, which came into effect in 1971. As a result of these changes to the Scottish juvenile justice system, the path, which it took form this time onwards, was very different to that of England and Wales (Crawford & Newburn, 2003; Goldson, 2002; Goldson & Muncie, 2006b; Muncie, 2004). In part, this can be attributed to the stance which was taken in order to give power and responsibility to local authorities, to ensure the ‘welfare’ of children and young people, through the workings of the tribunals, and in the case of England and Wales, of the failure for the full recommendations, made by the Longford Committee to be made into policy. A detailed analysis of the operation of the Scottish juvenile justice system, along with an exploration of the how Scotland was able to implement a hearings system while England and Wales quickly retreated from the 1969 Act, is beyond the remit of this chapter (please see Muncie (2004) and in particular Smith (2005) for a more detailed discussion). The 1969 Act provided for a series of alternative means for dealing with youth offending, and it paved the way for Intermediate Treatment and the use of Care Orders in criminal proceedings (Smith, 2005). Apart from these measures, the Act did not, as some have suggested, represent a ‘high water

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mark’ (Gelsthorpe & Morris, 2002) in terms of reforms, as there was a swift shift and retreat from some of its key principles, with very little of the legislation actually being implemented. The Act, which was progressive for its time, became the ‘scapegoat for all the perceived ills of juvenile crime from then on in England and Wales’ (Crawford & Newburn, 2003, p. 9), not surprisingly as it was a disastrous attempt to replace the 1908 Children Act, rather than reforming the juvenile justice system to strike a balance between ‘welfare’ imperatives and ‘justice’ imperatives. It only served to polarise both imperatives and create further conflict and confusion, particularly as the 1970s have shown. Thorpe, Smith, Green, and Paley (1980, pp. 2 3, cited in Goldson, 2002, pp. 22 23) aptly make the comparison that if sections of the Act, which were implemented and those which were not, are compared, the answer is according to them obvious, ‘a new system came in but the old one did not go out … the two systems came to some form of accommodation … the two systems have in effect, become vertically integrated (with) additional clients identified in order to ensure that both systems have plenty of work to do’. Rutherford (1986) suggests that it was the ideas and attitudes, which culminated in the 1969 Act that provided the basis for the mounting of a counter-reform campaign. The Act was attacked from all sides, particularly by the failure of liberalism to protect the ‘welfare’ element in juvenile policy. This was caused by a complex set of factors, the most crucial being not only the technical, but also the innate difficulty of pairing ‘punishment’ and ‘welfare’ approaches into a single piece of legislation, which would have at the time reassured political feeling (Crawford & Newburn, 2003; Hendrick, 2006; Morris & Giller, 1987). Juvenile justice policy at the end of the 1970s bore little or no resemblance to that proposed in the 1969 Act. As Jones (1984) and Goldson (2002) note, informed by academics, the ‘new orthodoxy’ of ‘justice’ imperatives began to take hold from the mid-1970s, further serving to polarise and put ‘welfare’ and ‘justice’ at odds with each other. ‘Welfare’ imperatives were criticised, firstly, on the grounds that treatment-oriented interventions were ineffective; secondly, evidence suggested that care could, intentionally or otherwise, become more coercive and less just than punishment. Thirdly, it was believed that professional expertise was seen to be less important than originally believed. Finally, ‘welfare’ imperatives were alleged to be ineffective in controlling delinquency.

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At the core of the emergence of ‘justice’ imperatives was a retributive requirement to impose punishment through intensifying formal intervention that would be proportionate to the severity/gravity of the offence, rather than the perceived ‘need’ (Crawford & Newburn, 2003; Goldson, 2006; Goldson & Muncie, 2006a; Muncie, 2004; Pratt, 1989). The criticisms of ‘welfare’ imperatives, combined with an increased heightening of issues surrounding governance by a disillusioned electorate with the post-war welfare state, set the scene for further conflict and confusion between ‘welfare’ imperatives and ‘justice’ imperatives. The Conservative general election manifesto summed up this belief when they referred to the need for ‘law and order’, for the permissiveness of the 1960s, when they contend that Britain had become the most liberal nation in Europe (Downes & Morgan, 1994, pp. 183 184, 187 188; Pugh, 1999, pp. 297 310, cited in Hendrick, 2006, p. 12). The election of the Conservative government with a ‘law and order’ agenda reinforced the move towards ‘justice’ imperatives and added to further developments. The new theme for the 1970s was essentially that the appropriate response to the delinquent in the courtroom was correction through discipline and punishment, retreating from ‘welfare’ imperatives by shifting techniques for controlling the family and its troublesome offspring (Gelsthorpe & Morris, 1994). The use of custody for juveniles under the Conservative government increased, and there was a paradoxical decline in the use of welfare-oriented dispositions such as care orders despite the intentions underlying the 1969 Act. A less obvious outcome saw a move away from the family, who had been projected since the 1950s as a therapeutic agent in a programme of rehabilitative interventionism (Goldson & Muncie, 2006a). The shift can be explained, at least partially, by the impact of diversionary programmes such as cautioning and the increased use of fines and compensation, by emerging intermediate treatment and by the introduction of criteria used to restrict the custody as well as increased legal representation of young offenders, which led to a reduction in the use of custody (Muncie, 2004). However, Smith (2005) argues that while the number of children and young people in care increased throughout the 1970s from 90,000 in 1972 to 101,000 in 1977, there was a parallel increase in the use of custody with detention centre orders up from 2,228 in 1969 to 5,757 in 1977 (Smith, 1989, cited in Smith, 2005). Goldson (2002) further comments that throughout the 1970s there was a massive increase in the number of

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children confined to either a residential placements in care home or periods of custodial detention within penal institutions (Cavadino & Dignan, 2004; Goldson, 2002). The recommitment to custody apart from the focus on ‘justice’ imperatives rather than ‘welfare’ imperatives was based on three main factors. Firstly, there was a popular belief that the 1970s had witnessed a rapid growth in juvenile crime, which was characterised by a hard core of vicious young criminals. Secondly, there was a tendency on the part of all magistrates to give custodial sentences for all types of sentences, particularly if the offender had already been subject to ‘welfare’-based care or a supervision order. The third factor was the role that welfarism played in engaging juveniles into a system at an increasingly early age (Muncie, 2004). The very institutions that were charged with the responsibility of reforming children and young people, instead, created new categories of delinquency. This in part relates back to the conclusion drawn by Bottoms regarding the considerable importance of the Children and Young Person’s Act 1963 which raised the age of criminal responsibility to a compromise 10 (1974, cited in Crawford & Newburn, 2003, p. 7). According to Thorpe et al. (1980, p. 8, cited in Muncie, 2004), the course the juvenile justice system charted in the 1970s, was a ‘tragedy… (That) can be best described as a situation in which the worst of all possible worlds came into existence’, they contend that people had persistently been led to believe that the juvenile justice system had become ‘softer and softer’, when in ‘reality it has become harder and harder’. By the end of the 1970s, the notions of ‘welfare’ and treatment in respect of juvenile justice had become identifiable with excessive intervention and intensified control (Goldson, 2002). At the time of the election of a Conservative government under the steerage of Margaret Thatcher, there once again marked a shift, not only in the juvenile justice system, but also in the wider criminal justice system the shift from ‘welfare’ imperatives of rehabilitation towards more ‘justice’-based imperatives of ‘law and order’ and in particular measures to deal with ‘young criminals’ (Cavadino & Dignan, 2004). The ‘need to stand firm against crime’ was especially apparent in the electoral campaigns of the Conservative party in 1979, where it presented itself as a party, which could and would take a strong stand against crime in contrast to the Labour party who were presented as excusing crime and as being too sympathetic towards offenders (Gelsthorpe & Morris, 2002).

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The campaign message focused on the need to protect victims from offenders and the need to reduce the high level of recorded crime and the alleged increased seriousness of crime, particularly among juveniles. These measures formed the major policy drive in the general election campaign of the Conservative party, which culminated in the revived idea from the 1948 Criminal Justice Act of ‘justice’ imperatives over ‘welfare’ imperatives, which would serve to provide ‘short, sharp, shock’ (Conservative Party, 1979, pp. 19 20, cited in Cavadino & Dignan, 2004) (see also Goldson, 2002). William Whitelaw, the Home Secretary at the time, warned that the children and young people ‘who attend them will not ever want to go back’ (cited in Newburn, 2007, p. 642). This marked shift can also be regarded as paradoxical; the 1948 Criminal Justice Act reintroduced by the Conservative government was in essence a return to legislation, which was developed and implemented by a Labour government. The result of the 1948 Act as previously mentioned and as history has shown, only served to pinpoint the beginnings of the polarisation of ‘welfare’ imperatives and ‘justice’ imperatives. The 1980s marked one of the most remarkable progressive periods of juvenile justice policy. It was against the antagonistic backdrop of the tension and conflict between ‘welfare’ imperatives and ‘justice’ imperatives of the 1970s that paved the way for support to develop for an approach to juvenile crime which, according to Goldson (2002), was informed by a classical ‘justice’ model which emphasised that the intensity of intervention and punishment should be proportionate to the seriousness of the crime and that the same intervention and punishment should be determined in accordance with sentences fixed by the court. That administrative and professional discretion based upon spurious assessments and needs should be curtailed and that equality of treatment should prevail within the justice process, with children’s and young people’s rights protected by proper legal representation and due process (Goldson, 2002; Muncie, 2004). Such an approach according to theorists, including Goldson (2002), Hendrick (2002), Crawford and Newburn (2003) and Muncie, (2004), consolidates around three fundamental principles, diversion, decriminalisation and decarceration, which, states Rutherford (1995, p. 7), formed the cornerstones of innovatory and unified practice, which was supported by ‘one of the most remarkable progressive periods of juvenile justice policy’. Despite the tough talking of the Conservative government, the policy responses were relatively liberal and the period has been described as a

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‘time of optimism’ in youth justice (Hendrick, 2006), reminiscent of a similar feeling in the 1960s when attempts were made to reform the juvenile justice system. While the Conservative government were elected on the basis of a policy on ‘law and order’, what actually happened in practice is far more complex (Crawford & Newburn, 2003). The use of custody declined, and there was a fall in recorded juvenile delinquency and the ‘youth justice system’ itself seemed to be in decline (Gelsthorpe & Morris, 2002). Crawford and Newburn (2003), Goldson, (2006) and Hendrick (2006), in particular, argue that the decade of ‘law and order’ marked a paradoxical merging of number of disparate factors, including academic research, social work with juvenile offenders, certain neo-liberalist objectives of Thatcherism and the interest of the police and the courts to reduce all forms of delinquency. Paradoxically, this period in the history of juvenile justice of so-called ‘law and order’ policies in actual fact can be described as a period of ‘successful revolution’ in juvenile justice (Jones, 1984). The keystone of this ‘successful revolution’ was the practices of multi-agency working and diversion which saw a huge expansion in the use of both informal and formal cautioning and increased separated system that sought to distinguish the serious, the dangerous and the persistent from the rest. Consequently, according to Goldson (2002), fragile consensus developed hinging as it did on the three principles of diversion, decriminalisation and decarceration. In terms of policy responses from the Conservative government to these principles, the response constituted ‘minimum necessary intervention, systems management, effective monitoring, intra agency strategies, systematic diversionary approaches, community supervision and alternatives to custody’ (Goldson, 1999, p. 4, cited in Hendrick, 2006). Not only did the Conservatives echo academic researchers in proclaiming that juveniles grow out of crime but the courts were also reminded that they had to regard for the ‘welfare’ of those persons brought before them. The 1980s did not witness, however, an ideological conversion to welfarism but, rather, states Muncie (2004), there was a re-emergence of a ‘justice’-based philosophy which supported a rehabilitative ideal that sought for the most effective and efficient ways of delivering punishment in the community. Pratt (1989), on the other hand, disagrees with Muncie’s observations, arguing that the 1980s saw a move away from the ‘welfare’ ‘justice’ debates. He argues that they merely served as a ‘sideshow’ to a newly apparent

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penological discourse and practice, referred to as a form of corporatism emerging in juvenile justice (Pratt, 1989). The efficient and effective management of the offending population was now to the fore. The efficiency of the police and the courts in reducing criminal activity was called into question and keeping young people out of penal custody was one means of meeting a key objective of Thatcherism, reducing overall expenditure (Hendrick, 2006). Given the onset of neo-liberal styles of governing, increasing attention was being given to ‘unofficial’ forms of discipline and control. From the mid-1980s, the numbers being sent to prison were dramatically reduced while the use of informal cautioning and intensive supervision grew steadily (Muncie, 2004). The effective and efficient management of offending population was legitimated by the discovery of ‘something works’, namely the infliction of a ‘just measure of community-based pain’. For Pratt (1989), this form of corporatism involved a set of strategies based on centralised managerial control with the aim of efficiently managing the offending population. It preceded the later emergence of what Feeley and Smith (1994) termed the new penology in which techniques of risk assessment and classification came to dominate much of the penal decisionmaking and administration. Between 1989 and 1992, Britain experienced a major economic recession, which started to signal that the electorate were violently opposed to the Conservatives, reductionist agenda, as demonstrated in the poll tax riots of that time. Margaret Thatcher was replaced by John Major, who set about restoring the party’s more traditional ‘law and order’ stance (Goldson, 2006). The first significant events of the 1990s were the implementation of the 1989 Children Act and the introduction of the 1991 Criminal Justice Act, which had the combined effect of separating the systems for dealing with children perceived to be in need of care, to be dealt with in the family courts and those charged with criminal offences, to be dealt with in the newly named Youth Court (Gelsthorpe & Morris, 2002). This in effect marked a definite shift away from dealing with ‘welfare’ imperatives and ‘justice’ imperatives within the juvenile court. However, the legislation, which can be said to be progressive in terms of removing the conflict and tensions between ‘welfare’ imperatives and ‘justice’ imperatives by dealing with them by separate means, was not a soft measure. The subsequent Criminal Justice and Public Order Act 1994 introduced secure training orders for 12 14 year olds and longer custodial sentences which had particularly unfavourable consequences for child offenders

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(Goldson, 2006). The Conservative government, following the traditional ‘law and order’ stance, also considered the reintroduction of high impact incarceration programmes most commonly referred to as boot camps (Goldson, 2006; Muncie, 2004; Scraton, 1997). The idea was that a tougher more physically demanding regime might have an impact on the young offender’s criminal propensities, echoing William Whitelaw’s comments in the early 1980s. At the same time, Labour party was keen to jump on the authoritarian bandwagon. In their first statement with regard to juvenile justice, they observed that punishment is an important means of expressing society’s condemnation of misbehaviour. Young offenders need to be held accountable for their actions. The ‘welfare’ needs of the young offender should not outweigh the needs of the community and, in turn, the community should be protected from the adverse consequences of offending behaviour. The Labour party at the time believed that the Conservative government appeared to have lost sight of this guiding principle. The Labour party concluded that there was a need to restore it by changing the law if necessary (Goldson, 1999, cited in Goldson, 2006). By 1993, juvenile crime had come into sharp focus, particularly through media increasing and developing force and attention to car crime, children and youth offending while on bail and those to whom they described as ‘persistent young offenders’ (Cavadino & Dignan, 2002; Goldson, 2006; Hendrick, 2006). There was an increasing developing feeling that ‘childhood’ was in ‘crisis’ (Scraton, 1997). Any doubts, which may have been present regarding this feeling evaporated in February 1993 when two children aged 10, were charged with the murder of two-year-old James Bulger (see Haydon & Scraton, 2000; Muncie, 2004; Scraton, 1997; Scraton & Haydon, 2002). The death of James Bulger triggered widespread moral outrage, and the public, through means of widespread and sensationalist press coverage both nationally and internationally, began to view troublesome children as ‘the other’ and an ‘ecology of fear was awakened and mobilised’ (Goldson, 2006; Muncie, 2004). It also unleashed an unprecedented level of adult vindictiveness which saw children suspected of murder, despite their innocence, being taken away from their families into custody for questioning (Scraton, 1997). The government response, which maintained the stance of ‘law and order’, was that the time had come for society ‘to condemn a little more and understand a little less’ (Prime Minister John Major). Michael Howard, Home Secretary at the time, proclaimed that ‘prison works’ and at the

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Conservative Party’s Annual Conference in October 1993 unveiled his 27 steps for cracking crime to rapturous applause and support. Scraton (1997) comments that within months, James Bulger’s death had ‘become a catalyst for the consolidation of an authoritarian justice’ (Scraton, 1997, p. 170). A shift in legal reform and policy initiatives was replicated in all institutional responses to children and young people. This shift not only carried media approval and popular (adult) consent, but also Thatcher’s established agenda of the 1980s was embraced by ‘populist punitiveness’ by politicians of all colours (Crawford & Newburn, 2003; Scraton, 1997). In 1993 after a visit to the United States to meet then President Bill Clinton, Tony Blair, in opposition, coined the phrase that was to become a famous New Labour sound bite in declaring his intention to be ‘tough on crime and tough on the causes of crime’, Clinton had repoliticised crime to positive electoral effect and Blair intended to do the same in Britain (Goldson, 2006; Pitts, 2000).

6.8.2. New Labour, New Approaches to Justice In opposition against the backdrop of the Bulger case, New Labour sought to redefine itself in the law and order scene, by drawing on the manageralism of the justice model and added its own potent blend of communitarianism and populism (Newburn, 1998). The consequence was the emergence of a ‘new youth justice’ (Goldson, 2000), the broad contours of which according to Pitts (2000) are easy to describe. Throughout the 1993 1997 period, Labour policy makers published a raft of wide-ranging documents, which focused on youth justice. It became increasingly evident that they were of a punitive nature. However, it was not until the election of the first New Labour government in 1997 that the extent of the toughness agenda was felt, and they were quick to tackle the issue of youth crime and justice. A white paper published in 1997 entitled, ‘No More Excuses’, contained the framework for improving the effectiveness of the youth justice system by introducing prevention, deterrence and punishment of youth offending. The Crime and Disorder Act, which followed in 1998 was described by the Home Office, as a comprehensive and wide-ranging reform programme. It served to completely restructure the youth justice system in England and Wales by establishing a new national and local infrastructure (Goldson, 2006). Many of its provisions were aimed at young people not only young offenders.

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The New Labour government, however, did manage to remain faithful to its commitment to be tough on crime and tough on the causes of crime by referring at various times to the social factors which contribute to crime and by proposing orders to prevent offending (Gelsthorpe & Morris, 2002). Although some of these proposals were not new, they were reminiscent of measures taken in the 1960s. However, the dynamics in the 1990s were very different as there was a shift away from basing the juvenile justice system on welfare imperatives and justice imperatives to a new youth justice based on the managed of offenders. (Crawford & Newburn, 2003; Goldson, 2006; Muncie, 2004). New Labour’s youth justice policies are, as Crawford and Newburn (2003) argue, ‘somewhat tricky’ to characterise, largely as a result of the sheer volume of legislation which the Labour government have undertaken in criminal justice and, in particular, in the area of youth justice. Much of the talk has been on taking a tough stance when it comes to crime, but as can be seen in the above section, there have been substantial provisions made for principles of restorative justice through the provision of processes which focus on prevention rather than processing and the increased use of non-custodial policies (Crawford & Newburn, 2003; Goldson & Muncie, 2006a; Haines, 2000). The key elements of the Crime and Disorder Act 1998 included the establishment of the Youth Justice Board (YJB), the creation of Youth Offending Teams (YOTs) and the restructuring of the non-custodial penalties available to the Youth Court. New Labour criminal justice policy and, in particular, youth justice reforms were influenced by the ‘what works’ paradigm and the language of risk factors (Crawford & Newburn, 2003; Goldson & Muncie, 2006a; Hendrick, 2002; Muncie, 2004). They introduced a range of new orders covering both criminal and civil penalties that not only focused on criminal activity but also on ‘anti-social behaviour’ and ‘poor parenting’ (Crawford & Newburn, 2003). In these orders there is no necessity for either the prosecution or commission of a criminal offence. According to Haines (2000), an important source of conflict within and around the current youth justice system is that between a legal/ administrative perception of the problems to which the system is a response and those proffered by the social sciences. New Labour’s new youth justice strategy has been careful and striven to drive to erase the distinctions between the different agencies and bodies which make up the system in order to reduce the number of ideas and theories which are developed and utilised. .

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Haines (2000) concludes that these theories and approaches appeal to New Labour at a time when politicians are unwilling to employ economic and social intervention to combat social problems and prefer to take the stance of being ‘tough on crime’. By showing that they are eager to demonstrate that they are tough on crime, they partake in analysis of poor parenting skills and inadequate child rearing which targets families and the classroom and which, on a mass scale as Haines notes, is a political godsend for politicians campaigning for votes in New Labour constituencies in middle England (Haines, 2000). Another significant change in this period which affected the criminal justice system was the passage of the Human Rights Act 1998 which introduced the European Convention on Human Rights into English law (Crawford & Newburn, 2003). The Human Rights Act focuses particular attention on the safeguards afforded to young offenders who are subject to criminal sanctions. This measure, along with the UN Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules), include that the best interests of children are paramount, that judicial proceedings should be avoided where possible, with any intervention to be kept to a minimum, and that agencies involved in the criminal justice process should be able to dispose off cases at their discretion. The criminalising and penalising of young people should be avoided unless there is serious damage or harm to themselves or others and, finally, legal assistance should be prompt and free of charge (Crawford & Newburn, 2003; Goldson & Muncie, 2006a). The implementation of the Human Rights Act coincided with the referral orders pilots causing, state Crawford and Newburn (2003), practitioners to consider the implications of the two. The mandatory nature of the referral orders and the possibility of diversion that resulted from this raised potential questions about compliance with human rights. To date, there has been no change to the referral orders, and Crawford and Newburn (2003) argue that there remains a tension between individual rights discourse and the communitarian appeal to collective responsibilities that informs key aspects of the Crime and Disorder Act such as Anti-Social Behaviour Orders, youth justice reforms and curfew orders (Crawford & Newburn, 2003). Much of the New Labour legislation, argues Pitts (2000), has sought to engender a greater emphasis upon individuals responsibilities towards their communities, rather than rights over the community. The HRA initiative, argue Straw and Boateng (1997), has ambiguous implications for restorative

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justice, given the emphasis that it places upon legal formal rights over and above negotiation. While restorative justice has been one of the most significant developments in criminal justice over the past two decades, the concept is not a new one. According to some advocates including Braithwaite (1998), restorative justice has become the social movement for criminal justice reform in the 1990s and into the New Millennium. It also offers a philosophy of conflict resolution and a model of justice, which has grown as a reform movement at an international level. Johnstone (2002) states that this growth has been witnessed by the development of restorative justice debates within different national jurisdictions and within international treaties and protocols, for example the United Nations. The area has spawned particular academic interest, but the term itself means different things to different people, and as a result, contends Crawford and Newburn (2003, p. 19), it has become an ambitious but ambiguous project. This criticism of restorative justice has been applied by many theorists who feel that restorative justice has become a ‘catch all’ and is viewed in too optimistic a manner. In 1997 after the general election and the publication of subsequent New Labour Home Office documents, it became apparent that restorative justice was an idea whose time had come. In the first instance, it was most visible in the place given to reparation in the Crime and Disorder Act (Gelsthorpe & Morris, 2002) and the support given to experiments such as that with restorative cautioning in the Thames Valley (Young & Goold, 1999). The elements of the Crime and Disorder Act that were most obviously based on, at least in part, ideas influenced by restorative justice were reformed cautioning system, action plan orders and reparation orders. All of these measures sought to promote the idea of reparation and wherever possible to include a requirement to seek the victims’ view (Crawford & Newburn, 2003). According to No More Excuses (Home Office, 1997), the action plan order was designed to be the first option for young offenders whose offending was serious enough to warrant a community sentence and it is described as a ‘short, intensive, programme of community intervention, combining punishment, rehabilitation and reparation to change offending behaviour and prevent further crime’ (Home Office, 1997, p. 7). Crawford and Newburn (2003) state that the evaluation of crime and disorder pilots found that many YOTs developed standard programmes in order to meet the reparative requirements of the order, and that it was

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common for the same reparation activity to be built into final warning programmes, reparation orders, action plan orders and supervision orders. The reparation order requires young offenders to make reparation to either an identified person, or persons or to the community at large (Crawford & Newburn, 2003). According to the Minister of State at the time, with the restorative approach there is no way for youngsters or their parents to hide from their personal responsibilities (Michael, 1998, cited in Crawford & Newburn, 2003, p. 18). However, as Dignan (1999) argues, the concerted effort by New Labour to make reforms to the youth justice system hardly amounts to a restorative revolution, let alone the paradigm shift which some restorative justice advocates have called for. Various commentators including Gelsthorpe and Morris (2002), Crawford and Newburn (2003) and Goldson and Muncie (2006a) argue that of all New Labour’s restorative youth justice policies, the most significant has been the creation of a referral order as part of the Youth Justice and Criminal Evidence Act 1999. In the words Wines in the late nineteenth century It is a maxim trite but true, that the prevention of evil is easier and better than its cure; and in nothing is this maxim more true than in relation to crime. To destroy the seeds of crime, to dry up its sources, to kill it in the egg, is better than repression better even than the reformation of a criminal. But after all that the best organized and best administered system of public instruction can accomplish, there will remain a considerable residuum of children whom these systems will not reach. Their destitution, their vagrant life, their depraved habits, their ragged filthy condition forbid their reception into the ordinary schools of the people. It is from this class that the ranks of crime are continually recruited, and will be so long as it is permitted to exist. They are born to crime, brought up for it. They must be saved. (1880, cited in Platt, 1969, p. vi)

The juvenile justice system has existed largely as a function of what Harris and Webb (1987) believe to be a broad nexus of State control over the deviant which incorporates also on either side of it, as it were the adult criminal justice system and the child care systems (pp. 7 9). Secondly, they believe that juvenile justice in itself is an ‘element in and a means of, steady expansion of State control’. Harris and Webb (1987) further content that the juvenile justice system exists as a function of child care and criminal justice systems on either side of it, a meeting place of two otherwise separate worlds (pp. 7 9). However, like all social action and changes in society, these responses do not follow a neat pattern of progress, development and reform. Goldson

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(2002) in this respect agrees with Aries (1996) in his view that any analysis of childhood (in this context juvenile crime policy) must take into account the social origins and, in particular, the economic and political interests behind change and in the case of Goldson the nature of its appeal in respect of social control. Prior to the Children Act 1908, no administrative separation existed between the adult and the juvenile criminal justice systems, in spite of a process of what Harris and Webb (1987) call ‘sporadic unyoking’. One of the plausible reasons for this is that the construction of childhood as a separate and independent social group or ‘hood’ from adulthood had yet to become institutionalised (Goldson, 1997, 2006; Hagall & Newburn, 1994; Hendrick, 2006; Magarey, 2002; Muncie, 2002; Shore, 2002). The last hundred years of juvenile justice have been characterised by what Hagall and Newburn (1994) describe as dual tendencies best described as ‘punishment’ and ‘welfare’ (p. 6). They contend that you do not need to look back any further than 150 years to find a time where children were not only punished with imprisonment but also with transportation and the death penalty. Muncie (2002) contends from the early nineteenth century when the troubled and troublesome among the youth population were seen to require a different response to that afforded to adults, the history of youth justice has been riddled with ambiguity and unintended consequences (p. 249). However Day (1858, p. 36, cited in Harris & Webb, 1987) believes that to say that the child was a free agent would be saying simply what was untrue he is quite the child of circumstances which, just as much as the unconscious seedling which cannot help shooting up when the sun’s rays are concentrated upon it. (p. 9)

While there appears to be some dispute about the extent to which children and adults were treated during the nineteenth century by authors including Muncie (2002), Goldson (1997), Hendrick (2006), Harris and Webb (1987), Hagall and Newburn (1994) and Shore (2002), they all agree that along with the development of childhood, there was also an increasing concern about the welfare of children and the emergence of the notion of delinquency.

6.9. EFFECTIVENESS OF RESTORATIVE JUSTICE Bazemore and Elis (2007, p. 397) argue that little more than a decade ago, when advocates of restorative justice were asked about the effectiveness of

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restorative justice, they would say that it looks promising or makes sense theoretically. In recent times, studies have demonstrated the positive impact at multiple levels, with case types ranging from first time offences to serious and violent offences (Braithwaite, 2002; Gray, 2005; Hayes, 2006). However, despite the proliferation of restorative justice programmes there is a general lack of evaluation research (Harris, 2003; McAlinden, 2007). Current evaluations on restorative justice address the following general issues: participant satisfaction, procedural justice, ‘restorativeness’ and outcomes (Bazemore & Elis, 2007; Kurki, 2003). Most of the empirical research that has been carried out to date has concentrated on the two main models of VOM and family group conferencing (Bazemore & Schiff, 2005; Mutter & Dugmore, 2008; Rodriguez, 2007; Shapland et al., 2007; Strang et al., 2006; Zernova, 2007). Recent evaluations of VOM and conferencing models in England and Wales, Australia, New Zealand and the United States suggest that these models achieve positive results in terms of altering the perceptions of young people in relation to their own offending behaviour (Bazemore & Schiff, 2005; Daly, 2005; Hoyle & Young, 2002; Morris & Maxwell, 2002). This can be seen as an example of successful ‘reintegrative shaming’ (Braithwaite, 1989; Hayes, 2006; Mutter & Dugmore, 2008). In England and Wales, there have been a number of successful evaluative studies on the impact of family group conferencing and, in particular, restorative police cautioning in Thames Valley (Hoyle & Young, 2002; Mutter & Dugmore, 2008; Wilcox & Young, 2007; Young, 2001; Zernova, 2007). All studies report the benefits of the initiatives for victims and offenders in terms of understanding the impact of the offence and formal reparation agreements. Gray (2005, p. 945) in her research findings indicates that the programme achieved its aims to ‘responsibilise young offenders’, ‘enable reparation to victims’ and ‘facilitate victim reparation and empowerment’. Yet, these positive findings are not replicated in research from New Zealand where conferences tended to be largely offender-centred with low levels of victim attendance and satisfaction (Morris & Maxwell, 2002). In Australia and the United States, levels of participation and satisfaction are high on both the part of the victim and the offender with processes and outcomes (Bazemore & Schiff, 2005; Daly, 2002; Rodriguez, 2007; Strang, 2005). A key element of all research findings was the levels of doubt raised about the extent to which the outcomes of interventions were truly ‘restorative’.

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The RISE project in Canberra (police facilitated) found high levels of restorative as well as procedural justice (Luki, 2003; Strang, 2005), whereas South Australian Juvenile Justice (SAJJ) (not facilitated by the police) achieved high levels of victim participation and a strong sense of procedural justice among participants, but lower levels of understanding of the conferencing process and less evidence of the restorative nature of the process (Daly, 2002). Although some of the studies that have been carried out demonstrate a slight reduction in re-offending and in the seriousness of re-offending, it is perhaps too early, according to Dignan (1999), to draw conclusions on the effect of restorative justice processes as a whole on recidivism rates. It has also been suggested by Hoyle and Young (2002) that given the range of factors that contribute and sustain criminal behaviour, it is unrealistic to assume that restorative justice will have a major impact on re-offending and overall crime rates. Maxwell and Morris (2002), along with other commentators (Johnstone & Van Ness, 2007; Luki, 2003; McAlinden, 2007; Shapland et al., 2006), argue that both VOM and family group conferencing have been reasonably evaluated, including the process itself, implementation and re-conviction. However, the evaluations have not yet examined the cost effectiveness of the programmes in comparison with traditional criminal justice processes and their preventative potential. These are elements that need to be addressed by further research to pinpoint exactly what it is about restorative justice that works in reducing re-offending and ensuring successful outcomes leading to healing and reintegrative outcomes (Crawford & Newburn, 2003; Johnstone & Van Ness, 2007; Luki, 2003; Maxwell & Morris, 2002; McAlinden, 2007).

6.10. RESTORATIVE JUSTICE’S POTENTIAL FOR MEDIATING CULTURAL DISPUTES The emergence of a multicultural and diverse society in the Republic of Ireland should be reflected in the nation’s justice system, to provide more transparency. Community policing and restorative justice policy and practice can be developed to reflect these new cultural realities. There are many challenges faced by those training to participate in frontline services in the justice system with an increasingly diverse population. These issues can be understood in the context of trends towards participation, community

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volunteerism and restorative justice initiatives, with a focus on the challenges facing those in the justice system and civil society who must provide a form of training, which is cognisant of increased diversity and multiculturalism. The legal system of any state provides the framework for the legislation, which shapes the understandings of how that state legislates for equality and diversity.1 Moreover, and perhaps just as importantly, the legislative framework of the state provides a wider sense of the state’s ethos towards multiculturalism, the promotion of equality and perspectives on diversity. In the Republic of Ireland, the legal system remains independent of direct political interference within the contexts of the pluralistic guidelines set out in the Irish Constitution. The Irish state has also published a National Action Plan against Racism (NPAR): Planning for Diversity (2005). This action plan sets out the parameters of an intercultural society in Ireland. In addition, the rights of all citizens are also constitutionally protected. Therefore, while the authority of the state is legitimised through the legal frameworks which establish certain rights, the rights of its citizens to participate in politics and civil society in the protection and promotion of these indelible rights is also secured by these legislative structures. Furthermore, the legislative structure, which legitimises the state and protects the rights of its citizens, contains a comprehensive set of guidelines to protect against discrimination, intolerance and bigotry. This encoding of an egalitarian ethos, which opposes discrimination, is further supplanted by agencies of the Equality Authority. Institutional racism has been defined as ‘the collective failure of an organisation to provide an appropriate and professional service to people because of their colour, culture or ethnic origin’. It can be seen or depicted in processes, attitudes and behaviour which amount to discrimination through unwitting prejudice, ignorance, thoughtlessness and racist stereotyping which disadvantage minority ethic people’ (National Advisory Committee on Drugs (NACD), 2007; Sangster, Shiner, Patel, & Sheikh, 2002). In relation to restorative justice, there are many areas within Irish society where evidence-led research and training by qualified instructors can prepare the ground for a more inclusive society. One such area is the instruction of front-line practitioners, the preparation of ordinary citizens within wider society and the training of facilitators within the context of restorative justice conferencing. Such training should

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include analysis of research on the issue of alienation and marginalisation of marginal groups exposed to drug addiction included within the NACD submission. The second area for those involved in the training of citizens to understand is multiculturalism. The final area of potential in the training and of restorative justice facilitators in conferencing can be seen in the area of reducing community tensions.

6.11. TRAINING PRACTITIONERS FOR MULTICULTURALISM Another issue, which identifies the intersections of justice and diversity, is seen in the complexities of dealing with minorities in relation to the issue of drug abuse. The agency established to deal with this issue, the NACD, set out its strategy in their submission to the Health Service Executive’s (HSE) National Intercultural Strategy in 2007. The NACD submission acknowledges the vulnerable status of those sections of the population that comprise different cultural and ethnic groups to the majority in Ireland. The NACD document recognises the particular risks of social exclusion faced by travellers (Corr, 2004; D’Avanzo, Frye, & Forman, 1994; Fountain, 2006; National Drugs Strategy 2001 2008, 2001; O’Connell, 1998; Sangster et al., 2002), asylum seekers, refugees and migrant workers. Minority groups face heightened economic and social disadvantages, increasing the risks of drug abuse due to problems in nine key areas: ‘education, health, crime, employment, housing, previous and current drug use, family, social networks and the environment’ (Fountain, 2004; cf. National Advisory Committee on Drugs (NACD), 2007). Highlighting these risks should not be used to label or stigmatise minority groups, but the difficulties associated with the social marginalisation and exclusion resulting from underdeveloped infrastructure for multiculturalism needs to be acknowledged, and dealt with further. The National Drugs Strategy 2001 2008 represents one response to the recognition of a requirement for an integrated approach to issues such as drug addiction within the context of the marginalisation of some ethnic groups. The success of any such approach will be contingent on the ability of state bodies and civil society to deal with the marginalisation of minority groups, as well as dealing with the wider issues surrounding drugs abuse nationally.

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Further understandings through engagement and research are recommended by NACD in their HSE submission, in order to give voice to those who experience the dualistic challenges of marginalisation due to discrimination and drug addiction itself. The state and civil society must seek out such groups, as the NACD reports a low level of engagement by these groups with the relevant agencies of the state or civil society, which might offer necessary supports to those in need. Another method of coping with the disconnect would be the development of enhanced training programmes for all relevant state and civil society agencies in the areas of dealing with equality, diversity and the problems associated with social exclusion based on the lack of effective multicultural policies and practices across the services. In order for such training to be effective, a multi-agency approach would be required to train and support frontline services dealing with social problems within the context of diverse and marginal groupings. Stereotyping and negative profiling of ethnic groups would have to be challenged and replaced with better understandings of the requirements of a range of ethnic groups within the Irish context.2 For instance, racism in Ireland may take the form of ‘white versus white’ intolerance, in addition to the ‘white versus black’ model associated with the Anglo-American experience, according to Martin Mac Ghreil in his study on Prejudice and Tolerance in Ireland (1996). Clearly, these arguments highlight the importance of training of frontline services as a key aspect of creating effective responses and restoration based on the requirements of minorities. Effective evidence-based training, drawn from research and expertise, would lead to increased professionalisation of services, agencies and branches with civil society and the formal justice system. By taking a research-based approach to the creation of understandings about both cultural issues and the required competencies of service providers or justice agencies, a more effective and professional response to both the problems of drug abuse and ethnic-based marginalisation can be established. This holistic approach will improve institutional understandings, and therefore practitioner responses, through the provision of evidence-based expertise and qualifications throughout the relevant sectors. In addition, a form of ‘cultural competence’ is established, reflecting the ability of the state and civil society to address the requirements of an increasingly ethnically diverse society. Furthermore, cultural awareness and sensitivity is created and becomes embedded in society. This, in turn,

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creates further confidence in minority groups of the competency of state and civil society sector to effectively and sensitively deal with the requirements of a diverse and multicultural society (Sangster et al., 2002). Therefore, according to NACD, the provision of culturally competent services is dependent on the establishment of the following criteria: ‘(a) cultural ownership and leadership, (b) symbols of accessibility, (c) familiarity with and ability to meet the distinct needs of communities, (d) holistic, therapeutic and social help, (e) a range of services, (f) ethnic/minority workers, (g) community attachment and ownership and (h) capacity building’.3

6.12. PREPARING RESTORATIVE PRACTITIONERS FOR MULTICULTURALISM Another area where further education for multiculturalism can be introduced is in the training of citizens who volunteer within the wider frontline service which involve restorative justice. Watt (2006) outlines the four main approaches to the promotion of understandings of diversity in society. These include ‘Interculturalism, Multiculturalism, Assimilation and Integration’. Watt (2006) acknowledges a wider context to the issue of citizen training on the issue of multiculturalism, citing issues such as ‘the management of new approaches to inward migration flows, responses to security and economic concerns, prevailing political ideologies and historical legacies, including colonialism and access to citizenship’. This contextualisation of multiculturalism provides a pragmatic template to the issues, which emerge during processes of integration. The manifestation of prejudice from misunderstandings about different cultures can therefore be challenged by a more comprehensive method to informing citizens about diversity. Watt’s discussion of the four main approaches to a societal understanding diversity provides a further underpinning of this pragmatic and holistic methodology. Interculturalism (the model utilised in Ireland) is based in the creation of a mutualism derived from ‘interaction, equality, understanding and respect’ (ibid.). Multiculturalism was the approach taken in the United Kingdom over the last 40 years. However, there has been gradual erosion in confidence in the potential outcomes of a multicultural society. Assimilation came to the fore in France after the 9/11 attacks, reflecting the simmering post-colonial tensions, which exist between the French authorities and the large Muslim section of French society, characterised

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by the ‘headscarves (hijab) in schools’ controversy.4 Integration is the model favoured by the European Union. Watt highlights the difficulties presented by the European Commission’s definition of ‘migrants’ within an understanding of recent arrivals into the EU; this definition excludes traditional ethnic groups who may still be experiencing difficulties with integrating with the dominant culture. Both Garland (1999) and Tonry (1988) share similar assessments of how social control and a diverse cultural are interlinked. However, Garland (1999) questions how public opinion came to be exercised about crime and why criminal justice professionals lost their capacity to control the public’s impact on policy. Both Tonry (1988) and Garland (1999) agree that timing has been important. Tonry (1988) notes that during periods of tolerance, traditional American notions of individualism and personal autonomy allow individuals to make their own choices such as in the case of drug use. Whereas in periods of intolerance, drug use is widely viewed as deviant and few people of any culture feel comfortable risking moral disapproval or stigmatisation by arguing in favour of drug use or tolerance of drug users. Garland (1999) cements this view by arguing that the widespread expression of punitive sentiments by legislatures and the emergence of penal laws and policies that express these sentiments do not correlate directly with increasing crime rates among minorities. The peaks of punitive reaction, he contends, lag well behind the peaks of criminal victimisation in this area. In addition, such cultural understandings come to be shaped by an ethnic group’s context and perspective on how the forces of law and order deal with them as a social group. Crime was seen as a social problem linked to poor social conditions for minorities susceptible to marginalisation and social breakdown. The current perception of crime in the context of demographic change was created in relation to levels of victimisation for any particular ethnic group at a time when the emergence of ‘expert’ knowledge and welfare state ideologies through which the middle class attempted to quantify ethnic tensions as part of the ‘New Labour’ agendas of the 1990s in the United Kingdom. Tonry (1988) states that the existence and force of public opinion was acknowledged but not seen as something to be respected, but rather something which needed to be managed or ‘spun’. Garland (1999) argues that since 1970, legislatures have increasingly reclaimed the power to punish that had previously been left to experts. Tonry (1988) believes that this has reversed the pattern of maintaining sensitivity towards diverse cultural sensibilities and beliefs throughout the justice system, both in the United Kingdom and Ireland.

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Both Garland (1999) and Tonry (1988) believe that the move to punitive segregation is due to political reasons, with the exception of a few categories. Social and demographic changes have given rise to high crime rates since the 1960s, transforming the middle-class experience of crime mainly due to the fact that victimisation had become unevenly distributed and the fear of crime had been established on a daily basis (Garland, 1999). Lifestyle, policy changes and the mass media have been instrumental in raising collective consciousness of crime, which in turn has led to it becoming institutionalised.5 The implication of this focus on cultural sensibilities and beliefs is that we are failing to recognise the need and value of evidence-based training and development within society. In the past, the formal criminal justice system has been overly focused on what O’Mahony (2001, p. 11) calls ‘public interest’, which effectively amounted to the state overriding the interests of the other stakeholders, including ethnic groups. Restorative justice, on the other hand, is as Consedine (1995) advocates, a ‘philosophy that embraces a wide range of human emotions including healing, mediation, compassion, forgiveness, mercy, reconciliation as well as sanction when appropriate’ (p. 183). Restorative justice in Consedine’s (1995) view offers a process whereby those affected by criminal behaviour, be they victims, offenders, the families involved or the wider community, all have a part to play in resolving the issues that flow from the offending. Under restorative justice, victims and offenders assume central roles and the state takes a back seat. The process does not focus on vengeance and punishment but seeks to heal both the community and the individuals involved. This is achieved by a process, which puts the notion of reparation, not punishment at its centre (Consedine, 1995).6 In general, the restorative justice philosophy is based on three beliefs: crime results in harm to victims, offenders and communities. Not only government, but victims, offenders and communities should be actively involved in the criminal justice process. In promoting justice, the government should be responsible for preserving order (Van Ness, 1996). These general beliefs lead to a number of common elements among restorative justice programmes. The key features of the concept of restorative justice can be outlined as follows: It is a process whereby parties with a stake in a specific offence resolve collectively how to deal with the aftermath of the offence and its implications for the future. It is a problem-solving approach to crime, which involves the parties themselves, and the community generally in an active relationship with statutory agencies.

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It seeks to balance the concerns of the victim and the community with the need to reintegrate the offender into society. It seeks to assist recovery of the victim and enable all parties with a stake in the justice process to participate in it. (Aertson, 2000, p. 14)

6.13. THE IMPORTANCE OF EXPERTISE IN TRAINING FOR DIVERSITY IN RESTORATIVE CONFERENCING Braithwaite (1989) has been to the forefront in the study of restorative justice, especially through the means of his concept of reintegrative shaming. He contends that there are many reasons for the criminal justice system failing in its efforts to control levels of crime such as the stigmatisation of criminals. Braithwaite’s theory of reintegrative shaming holds that it is the societies with the lowest crime rates that have the ability to shame criminal conduct most effectively (Braithwaite in Johnstone, 2003), as there is an important difference between shaming a person and stigmatising them.7 Training practitioners to deal with ‘reintegrative shaming’ includes preparing councillors to understand that disapproving of the wrong of the act while treating the person as essentially good is a significant aspect of restorative practice. Reintegrative shaming, in summary, relates to a strong disapproval of the act but conveying and articulating a response that is seen to respect the offender (Braithwaite, 1989). Practitioners must also be prepared to deal with victims of different ethnic backgrounds and cultures, and restorative justice aims to restore social support through institutionalising the gathering around familiar cultural mores during a time of crisis (Braithwaite, 1989). This can reduce racial tensions by removing the sense of insecurity and disempowerment of both victims and offenders through a process of deliberative democracy society. Proper training for racial integration through restorative justice can design institutions so that concerns about issues like unemployment have a channel through which they can flow from discussions about local injustices up into national economic policy making debate (Braithwaite citied in Johnstone, 2003). Braithwaite (2003) doesn’t advocate that society abolishes the concept of crime or the key elements of state criminal justice systems which have been globalised, rather he believes in shifting power from them to civil society,

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keeping key elements of state systems but shifting power away from central institutions and checking power that remains by deliberative democracy from below, for example self-regulatory practice which restorative justice enables (Braithwaite, cited in Tonry, 1988). In the alienated urban context where the existence of an ethnic community is not always recognised in a satisfactory way, a criminal justice system aimed at restoration can construct a community of care around a specific victim or offender from diverse backgrounds. It is a form of social and cultural empowerment which permits a wider process of social control (Daly & Braithwaite, citied in Johnstone, 2003), Braithwaite (1989) further states that restorative justice must be a culturally diverse social movement that accommodates a rich plurality of strategies in pursuit of the truths it holds to be universal. Daly agrees with Braithwaite’s ideal of a culturally diverse social movement and states that the real story of restorative justice offers hope not only for a better way to do justice but also for strengthening mechanisms of informal social control and as a means to minimise reliance on formal aspects of social control, primarily the machinery and institutions of criminal justice. Victims, offenders and their respective supporters often make gestures of reconciliation during this period, talking, sharing refreshments, shaking hands and sometimes embracing (O’Connell et al., 1999).

6.14. CHAPTER SUMMARY This chapter examined restorative justice from a practitioner’s perspective. It did so by examining the theories and practices surrounding restorative justice in both a national and international context. This application of a practitioner’s perspective contextualised the wider significance of restorative justice in real terms. This context provided an important element for understanding the key case studies, which are discussed in later chapters. In the first section, the chapter looked at restorative justice practice and programmes from around the world. It went on to outline the various restorative conferencing methods. It then examined restorative justice and its application to youth justice. In addition, restorative cautioning and the international aspects of restorative justice in relation to family conferencing were examined. The chapter then provided an understanding of restorative justice in Northern Ireland. An examination of the development of youth justice policy and subsequently

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restorative justice policy in England and Wales was also outlined and discussed. The chapter concluded with an evaluation of the effectiveness of restorative justice alongside a study of the significance of evidence-led training for restorative practitioners in the context of multiculturalism.

NOTES 1. Baker, Lynch, Cantillon, and Walsh (2004) outline the role of the state’s legal framework in positively highlighting (or sometimes negatively reinforcing) inequality in society. 2. Other barriers to effective dealings with minorities in the area of drug abuse set out by NACD (2007) include ‘lack of awareness and denial of drug use due to cultural stigmas, and a lack of knowledge and relevant training in the area of drug abuse among minorities. 3. The National Advisory Committee on Drugs (NACD), submission to the Health Service Executive’s (HSE) National Intercultural Strategy, 2007. 4. French secular law on the ban on the wearing of religious symbols in public or state schools, due to requirements that separate state and religious activities. 5. Both Tonry (1988) and Garland (1999) agree that attitudes to crime, fears and resentments (sensibilities and beliefs) and our common sense narratives have become settled cultural facts that are sustained and reproduced by cultural scripts and not by criminological research and official data. 6. According to Consedine (1995) the restorative approach to crime came about following mounting concern over the exclusion of the victim from the criminal justice system and also through the belief that there was a lack of participation by the offender. He believes that the restorative justice process recognises a worldview that says we are all interconnected and that what we do, be it for good or evil, has an impact on others. 7. For Braithwaite, reintegrative shaming prevents crime, while stigmatisation is a form of shaming which makes crime problems worse.

CHAPTER 7 RESTORATIVE PROCESS AND CASE STUDIES IN RESTORATIVE CONFERENCING

7.1. INTRODUCTION This chapter examines the methods and processes surrounding the operation of restorative conferencing events. The process of functionalist exchange is outlined. The chapter then explores the methodology of family conferencing and provides an understanding of how such conferences operate from a functionalist perspective. The chapter then goes on to introduce the six case studies of restorative events in the Dublin region and provides an understanding of the significance of the functionalist exchange that occurs as a part of these processes. In each case, the names of the participants and the details of incidents along with the dates/times of the events have been changed for ethical purposes and to protect the identity of the participants. These case studies include the full field notes gathered by the researcher on each of the cases presented in this chapter. A profile of the participants in each of the case studies is as follows: all participants were ethnically White, Irish, urban dwellers from the greater Dublin region. The wider demographic changes to the population of the Republic of Ireland had not yet occurred and therefore are not seen in these cases. The range of offences was as follows: assault, criminal damage, trespassing, and theft with an element of anti-social behaviour in each case. Further information on the identities and age ranges of participants has not been provided to protect the identity of participants for ethical reasons. Ireland is a small, close-knit society and identities can be deciphered more easily in the Irish case; therefore, further care and consideration has to be 149

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given to participants. The ages of offenders ranged from mid to late teens. The majority of restorative conferences took place in Garda stations usually in the evening.

7.2. RESTORATIVE PRACTICE: CASE STUDY METHODOLOGY This research will utilise a case study methodology in order to ‘give voice’, in the manner of the Chicago School, to those who participated in the six restorative conferencing events presented in this chapter. In each case, the names of the participants and the details of incidents along with the dates/ times of the events have been changed for ethical purposes and to protect the identity of the participants. The case study method will focus on the processes surrounding these restorative events, rather than focusing on the psychology of individuals. This will be derived from a sociological perspective, emanating from Merton and Giddens, who developed the concept of the ‘Sociological Imagination’. A model of functionalist exchange will be developed from key theorists such as Durkheim, Merton, Elias and Dean. The social processes which occur as part of human interaction create changes in humans, and it is the process, not the individual, that is the focus of this study. Case study methods include the collection and presentation of detailed information about a particular participant or small group and how they operate (process), which frequently included the accounts of subjects themselves. Process/system is the focus rather than just group analysis. A case study approach provides a framework for participant observation and material analysis of issue within a set time frame.

7.2.1. Origins of the Method The origins of the case study method can be found in medical case studies developed to trace histories of patients and their illness. Sociological development: during the period 1900 1930 the case study approach becomes associated with the ‘Chicago School’. Cases built on ‘issues of poverty, unemployment, and other conditions deriving from immigration’ were ideally suited to the case study methodology. From the Chicago School,

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actors were given voice through the case study approach, adding validity and avoiding ‘elitist perspectives’ when studying marginal groups. According to Yin (2008), case study method can ‘satisfy the three tenets of the qualitative method: describing, understanding, and explaining’. General understandings emerge from these three tenets, which are supported by rigorous findings derived from the focus on individual cases. In recent years, the use of case studies has grown in relation to Youth/Risk Studies, and is very much applicable to applied research of this nature: The unit of analysis is central to the case study, which is usually a system or process rather than individual or groups. This approach allows the study to be developed into wider comparative research, building on local detail and applying data to global cases: Case studies provide multi-perspective analyses. This means that the researcher considers not just the voice and perspective of the actors, but also of the relevant groups of actors and the interaction between them. This one aspect is a salient point in the characteristic that case studies possess. They give a voice to the powerless and voiceless. When sociological studies present many studies of the homeless and powerless, they do so from the viewpoint of the ‘elite’. (Feagin, Orum, & Sjoberg, 1991; Leonard, 2005)

7.2.2. Forms of Case Study Methods This book applies relevant theoretical arguments to six case studies of restorative conferencing in the Republic of Ireland. These case studies were primarily conducted in Dublin and Wicklow with observations in other locations, also informing the researcher understanding of the conferencing process. This is done by applying various forms of case study analysis to episodes of restorative practice. These forms include ‘exploratory’, ‘explanatory’ and ‘descriptive’ (Yin, 2008), or ‘intrinsic’, ‘instrumental’ or ‘collective’ (Leonard, 2005; Stake, 1995) case study methods. Exploratory case studies provide holistic examinations of the background to salient cases of restorative justice, by way of a preface to a more extensive examination of studies of the subject matter, which is the six episodes of restorative conferencing witnessed by the researcher. Explanatory case studies provide an understanding of the significant criteria surrounding restorative justice’s process of ‘cause and effect’. In this method Field observations are combined with the documentary evidence to provide a deeper understanding of restorative justice in theory and in practice.

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7.2.3. Generalisability of Case Studies Selected These six cases of restorative conferencing apply descriptive forms of theory, which is then developed further to contextualise existing understandings of restorative justice into an Irish framework. They are in-depth investigations, as opposed to sampling research, according to Yin (2008) and Stake (1995). However, these six particular cases were chosen to allow for the maximum analysis of restorative practices in Ireland within the particular time frame of the research, and within the context of the access achieved by the researcher. Yin (2008) has identified six sources of evidence available to the case study researcher. These include ‘documentation’; ‘the use of archival records’; ‘interviews’; ‘direct observation’; ‘participant observation’ and ‘physical artefacts’. The researcher was able to use these during the fieldwork on the six case studies, combining the data and findings of each source of information to address wider understandings of restorative justice in policy and practice. This research sets out to identify the key unit of analysis (restorative conferencing) and in so doing creates further understanding of the links between restorative justice theories and philosophies and the realities of restorative policy and practice, through the six case studies being analysed. In so doing, this research provides grounded findings on restorative practices that may challenge the ‘elite perspectives’ (Feagin et al., 1991) that are sometimes characteristic in some academic studies of restorative justice. This case approach ‘gives voice’ to the various participants and practitioners involved with restorative justice.

7.2.4. Triangulation of Research The six case studies are used to present triangulated research, combining theoretical concepts with investigative data to create more informed understandings and findings on the benefits of restorative justice, both theoretically from the perspective of writers such as Braithwaite (1989, 2003), Zehr (2005a, 2005b), Miers (2001), Daly (2003), Johnstone (2010), Shapland (2008), or from a practitioner’s viewpoint, as presented by O’Connell et al. (1999). The triangulated research strategies provided in this book explain the relevance of events before, during and after the conferencing process.

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This is achieved using multiple data sources, including relevant files, Acts, literature and artefacts, which provide validity and meaning for the research that had been undertaken. In this research, the researcher has combined data, theory and methodological triangulation with the investigative approach of fieldwork and analysis over five years. The initial collection and analysis of field data on restorative conferencing took place over a three-year period, between January 2002 and August 2005.

7.2.5. Ethical Considerations and Potential Bias In doing research the researcher must be aware of ethical considerations. These can be defined as engaging with the study in a responsible, legal and moral manner. This is particularly true when dealing with vulnerable subjects. While ethical issues can be quite complex, the researcher must provide a balance between achieving research goals and maintaining civil rights. Ethical considerations need to be approached from a variety of perspectives. These are shaped by the researcher’s sensitivity, value system and the location of the researcher within the research field. In relation to potential biases the researcher must not allow their perceived perspectives to influence their approach to the subject. This allows the researcher to maintain objectivity. In regard to the ethical considerations surrounding access, the researcher must weight up the potential risks, privacy issues and ethical ramifications of the participants involved. Ultimately the researcher must protect confidentiality and maintain the integrity of the subject at all times. However, the researcher’s involvement in conferencing may have led to some degree of researcher bias, although a conscious attempt was made to avoid any outright bias in the course of undertaking the field research. The researcher will devise the field research into a fourfold structuring for the application of a case study (Yin, 2008). This fourfold model of restorative practice includes the explanation of the links and background to restorative events; the description of the contexts of restorative conferences; an account of the restorative event itself; and the evaluation of the outcomes of this restorative conferencing event. This research will apply these four approaches to the six case studies of restorative conferencing events in the Irish case. A review of these six cases and a comparative study with UK and US approaches to restorative justice provide wider understandings and contexts of restorative justice, both

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nationally and internationally. The outcome and implications of the six cases on Irish policy and practice will also be analysed. The value of research in the field and of participant observation is demonstrated throughout this study. This observational approach provides first-hand accounts of the key events of the six restorative conferences covered in the book. Through participant observation, the study develops a comprehensive understanding of key aspects of the six restorative conferences that may not have otherwise become evident. These aspects include the extent to which remorse or regret was expressed or acknowledged, the response of victims, the functional roles of offender, chair and family members, and the degree of reconciliation or restoration that was achieved.

7.2.6. Access The researcher was provided with a good degree of access to restorative conferences during this time via gatekeepers in the Garda Research Unit and the National Juvenile Office. The relationship between these practices and restorative justice theory was then analysed during the second period of the study, between 2007 and 2010. Relevant patterns and responses of participants in restorative practices were analysed through the key theories and philosophies surrounding restorative justice in both the Irish framework and within an international context. Field research on restorative practices was undertaken in three main stages. The first of these was data collection through participant observation at the six restorative conferences, where the researcher was an invited observer. This stage of the research included attending conferences in the counties surrounding Dublin. The second stage included discussions with participants in the restorative process, as well as the gathering of secondary sources such as Department of Justice, Equality and Law Reform (DJELR) reports on restorative policy. This knowledge provided a good insight into the politics behind restorative justice, which also informed this study. By combining this, the researcher provided further information through discussions and casual conversations with practitioners or participants. The book develops a comprehensive understanding of restorative justice in policy and practice.

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7.2.7. Framework of Observations Access to restorative justice conferences run by the Gardaı´ was secured through initial contact with the Head of Research of the Garda Research Unit who was engaged in conducting an evaluation of the operation of the pilot scheme of restorative justice conferencing for young offenders in the Republic of Ireland. Subsequently the researcher was put in contact with Juvenile Liaison Officers in the Dublin area who were conducting restorative conferencing during the time of data collection. This established the extent of access and the number of cases that the researcher could observe in so much that the access achieved was limited to the pilot scheme. The researcher was informed about individual cases and conferences via the research unit and subsequently contacted the relevant Juvenile Liaison Officer to confirm the dates and times of conferences. The basis on which the researcher was allowed to observe the restorative conferences was as follows: the researcher was required to document the events which took place during the conference in a report to the Garda Research Unit and fill out a copy of ‘An Garda Sı´ocha´na Family Group Conference/Restorative Caution Observation Sheet’. The researcher was allowed to make and keep a copy of her notes. The role the researcher played in the conference event was of an Independent Observer. The independence of the researcher was crucial in order to satisfy concerns that participants may have had about the impartiality of the researcher as an observer. This is also important in relation to the ethical framework of the research. None of the participants in any of the six cases observed by the researcher raised any objections to an observer being present. In fact a number of participants complimented the Gardaı´ on the fact that they were conducting research in this area. It must be stated that no other research was being conducted in this area in the Republic of Ireland at this time. In regard to wider information the participants were informed that the role of the independent observer was to record and document the events, which took place during the conference for a research report that was being prepared by the Garda research unit on restorative conferencing for young offenders in the Republic of Ireland. This is at variance with the experience in England and Wales where research into these areas has been ongoing for a number of years. The researcher was given very little information regarding individual cases aside from the type of offence, the number of offenders and the date, time and location of the restorative conference.

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The methods adopted in recording what was happening during the restorative conference were threefold: firstly, there was an element of participant observation as the researcher mingled with the participants prior to the conference, observing their behaviour and demeanour. Secondly, there was non-participant observation as the researcher sat back and observed the process as the conference unfolded. Thirdly, the researcher reverted to participant observation and mingled with participants during the postconference social meeting in cases where it was held. Where this did occur the researcher was provided with further insights into the process of exchange, restitution and social regulation that took place in the final stage of the conference. In observing the conferences in this manner the researcher developed a framework for linking theoretical understandings of restorative justice with the practice of restorative practice conference events in Ireland. Johnstone (2011) has outlined the manner in which international studies have been undertaken, allowing for cultural insights into restorative conferences in different jurisdictions. By observing the six cases through a combination of participant and non-participant observation, the researcher has provided cultural insights into the manner in which conferencing events take place within the Republic of Ireland. This approach allowed the researcher to document and analyse the process of exchange, which occurred between participants. This process began in the pre-conference phase where participants expressed their initial feelings and emotions on having to participate in the conference. The shift in positions taken by participants as the conference unfolded was observed and further analysed in the second phase, which was the conferencing event itself. Finally the outcome of this shift in roles and perspectives was informally observed where post-conference social engagement among participants took place. Therefore it can be said that the manner in which the conferences took place that combined formal and informal interactions shaped the approach and the findings of the researcher and permitted the researcher to develop a framework with which to understand changes in behaviours and emotions during the course of the restorative conferencing events. The researcher was not confined to the Garda Observation Sheet as she was not conducting quantitative analysis on the case studies, rather she was analysing the shifts in human behaviour, which occurred during the conferencing events. The researcher felt that rather than using statistical analysis to provide statistically derived findings, these case studies allow her to present rich findings on the human behaviour and social processes surrounding the restorative conferencing events.

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The researcher had no prior knowledge or access to participants before or after events took place. In addition the researcher had no information regarding how the conferences would unfold or whether they would have a post-conference social meeting as this was done in an ad hoc manner. The researcher was not privy to any wider Garda practices in dealing with the public in any other scheme or project. The research was initially presented to Queen’s University Belfast as part of a differentiation process and therefore met with the ethical requirements of the Institute of Criminology and Criminal Justice Studies, School of Law as they existed at that time. Furthermore, the research was also subject to the ethical requirements of the Institute of Technology, Sligo. The effect of the process by which the researcher achieved access, observed, documented and later analysed the processes within the six case studies covered was shaped by the nature of the researcher’s engagement with An Garda Sı´ ocha´na. This in turn not only shaped the researcher’s approach to observing the conferences and those who participated in the conferences but also provided a good level of access from which rich findings could be achieved. The generalisability of the sample is achieved through a framework, which allows for the study of the unit of analysis, as research gives voice to participants in the process and provides a greater understanding of the exchange that takes place during the conference itself. However, by adopting this method other methods, which could have been employed, were not utilised mainly due to limitations of time and access. Since the researcher wanted to examine social exchange as part of the wider conferencing process, other methodological approaches like putting wider emphasis on statistics, interviews or surveys were avoided. While this in some way may limit the methodological approach of the researcher, the approach undertaken allowed for deeper understandings of functionalist exchange to be achieved.

7.2.8. Validity Validity and reliability will be established by using multiple sources from the six cases as evidence within a case study approach as suggested by Yin (2008) and Leonard (2005). External validity is provided by an interpretation of these findings within a theoretical framework based on relevant sociological, criminological and restorative justice theories.

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The use of six case studies provided both positive and negative aspects to the study, and these became apparent throughout the period of research. Yin (2008) argues that the strengths and weaknesses of using this type of evidence may be used to underpin field research. For instance, this documentation provides a stable and repeated review of data (Yin, 2008), with precise coverage over a particular time frame. Direct and participant observation allowed coverage of the events as they happened, and placed these restorative events within a wider context. However, these observations took time to develop and were dependent on the researcher’s ability to contextualise events over time. Ultimately, the observations of the six restorative conferences conducted in this study provide greater insights into restorative justice events that over reliance on restorative theory alone might not have provided. The combination of both observational and documentary evidence establishes ‘a chain of evidence’ (Yin, 2008) of restorative processes.

7.2.9. Participant and Non-Participant Observation in Theory and Practice Participant observation provides a grounded type of research methodology. It allows for close observations of a given focus group. Participant observation allows for a more intensive engagement with people in a particular environment. The documentation of participant observation is provided through an ethnography. What is significant in participant observation is that the observation must find a role within the group whether as an insider or as an outsider. Non-participant observation allows the researcher to observe their study with permission but without the researcher becoming actively involved in the situation being studied. Concerns regarding observation influencing the behaviour of participants are overcome by the researcher introducing themselves to the participants beforehand and observing a number of similar situations over time (Dantzker & Hunter, 2012). The researcher’s observation of the six restorative conferencing events represents a dualistic form of participant observation; both in theory and practice. The researcher will utilise participant observation as part of the methodology. This includes the researcher’s connection with key participants in order to gain access to the restorative events; and their relationship with participants during these events. However this participant observation is made innovative due to the researcher’s formal role as an independent observer as part of these restorative events. By embedding in

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the process both through the use of participant observation as a theory and through actual participation as an observer, the researcher will be able to formulate new insights into restorative justice conferencing events in the Irish case.

7.3. PROCESSES OF RESTORATIVE JUSTICE: PROCEDURES AND PRACTICES The most common method of implementing a restorative philosophy is through programmes of victim/offender mediation where all parties meet in a structured environment with a volunteer or professional mediator. Victim/offender mediation is believed to have originated in Canada in 1974; it is heavily influenced by the Mennonite Christian Denomination, which promotes peace building and conflict resolution (Warner, 1994). It aims to reconcile the victim and the offender through a process of dialogue between both parties in the presence of a trained mediator. It gives the victim the opportunity to tell offenders about the physical, mental, emotional and financial impact that the offence may have caused and gives them the chance to put unanswered questions to the offender. Outcomes may include an apology to the victim for the harm caused, reparation of various forms including financial, work for or on behalf of the victim and the victim may commit themselves to specific undertakings in relation to behaviour for example to avail of counselling or treatment. Family group conferencing emerged in New Zealand and Australia in the late 1980s and early 1990s. It has a number of differences compared to victim/offender mediation. Firstly, in victim/offender mediation, participation is usually limited to the victim and the offender; conferencing encourages the participation of a much wider group, including those who are concerned for the welfare of the victim or the offender and those who may be able to contribute to a solution or resolve the problem presented by the offence (Bazemore & Umbreit cited in Johnstone et al., 2003). Police/Garda-based conferencing provides a forum for the Police/ Gardaı´ to bring together young offenders and their victims with their respective families, friends and supporters. Many such conferences take place at the level of a restorative caution for the offender. The conference will then proceed to explore the effects of the harm on the victim, as well as the potential ways of providing redress, which will

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mostly be through an apology, some form of reparation as well as the reintegration of the offender. The police/garda facilitator does not impose solutions, but rather they are a result of interaction, dialogue and agreement between parties.

7.3.1. Mediation (i) Mediation offers the possibility for the victim to (Restorative Justice Services, 2001, p. 95): • Tell the offender his story and how the crime has affected him. • Find out why he was chosen and hear the offender’s side of the story. • Receive an apology and some form of amends or reparation from the offender. (ii) Mediation offers the offender the possibility to (Keeley, 2001): • Hear the victim’s story and apologise to him. • Make some form of amends to the victim or the community and show genuine remorse to the victim and the community for the offence. • Address and take responsibility for his actions.

7.3.2. Methodology of Family Conference Stage 1: (Juvenile Liaison Officer Training) • With this style of conference the offender and his/her group sit together and the victim and his/her group sit together. Both groups are separated perhaps by the investigating officer or the facilitator. • Facilitator introduces himself and each participant stating their involvement in the incident or their connection to the offender/ victim, to inform why they are here. Facilitator advises the participants that they are free to leave at any stage during the conference. • It is very important that the offender acknowledges this. • Co-ordinator focuses the conference on the offender’s behaviour. Establishment of respect for those present is stressed and everyone is allowed to speak. Stage 2: (Offender’s Account of Events) • The offender is asked for a full account of what happened. • Remain focused on the offender until he begins to show some ‘Remorse’.

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• He/she must accept that others have been affected and to what extent. • The victim should then be asked to indicate how this incident impacted on his/her family and friends. • This shows the offender how his/her actions have had a much wider impact than perhaps initially realised. The victim should show very rash anger, fear and disgust at the behaviour of the offender (O’Connell et al., 1999; Treacy, 2000, pp. 12 13). Stage 3: (Expressing Remorse) • Focus then turns to the offender who is asked to comment on what has been said and express remorse. • Focus on behaviour not the character of the offender. • Supporters of victim and offender(s) are then asked to contribute. • The Detective Police Officer if present is asked to contribute. • The conference then experiences a ‘closure’ even though no great emphasis on a plan of action has been agreed upon. • Emphasis is on making ‘reparation’ to the victim. • Formulating a plan of action for the offender. This conference should now formulate an action plan for the offender, reflecting on the principles and concepts of restorative justice: The plan may provide for such matters as an apology and reparation to the victim, participation by the offender in appropriate sporting or recreational activities, attendance at school, or work or educational courses. The conference should also consider where the child’s period of supervision should be varied (O’Connell et al., 1999; Treacy, 2000, pp. 12 13).

7.3.3. The Process of Functionalist Exchange Functionalist exchange emerges from the processes of social engagement between participants in restorative conferencing events. It is important to understand restorative justice as a ‘process’, rather than as an end result itself. The functionalist exchange is facilitated by the adaptation of functionalist roles by the different participants, according to their relationships therein. For instance, the analysis of the six cases in this study presents an understanding of the component functions of the offenders, victims and family members in each case.

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In many ways the process of restorative justice provides a functionalist structure, which mirrors the internal and external understandings of socialised agency, such as the victim’s family unit itself (internal), and the offender (external). In cases where the offender’s family are present the functions of the family may differ. Moreover, this understanding of functionalist exchange allows for a greater flexibility in understandings of this restorative process, as the role of parent or the absence of a parent, or even a victim in certain conferencing events in this study indicates. For instance, the parents can take on a wider social representation, and the victim’s grievance can be recognised and respected even if they are absent from the event.

7.4. CASE STUDY 1: RESTORATIVE CAUTION, SWORDS, CO DUBLIN This case involved an assault by a young male on another young male, which occurred without motive in a parkland area in Co. Dublin. The participants comprised the offender, his mother, the victim’s parents, the facilitator and the Juvenile Liaison Officer. Two participants were absent, firstly the victim who felt too uncomfortable to attend and secondly the offender’s aunt who was unable to attend the meeting. The victim’s parents decided to come as they felt that they could still get something out of the conference. The facilitator commenced the meeting by thanking everyone for being present. He made all the participants aware that the proceedings were confidential and that he was keeping no record. Each person was informed that the process was of a voluntary nature. Due to the fact that the victim was not present, the facilitator called upon the JLO to read out his statement. Before he did this, the JLO informed all present that the purpose of the meeting was not to blame, but rather to listen and repair the harm. The victim, Pearse in his statement outlined the events, which occurred before the assault took place. At 8.30pm, he met up with his friend, Eoin and four others. From 9pm to 9.30pm, they were ‘just hanging around’ the parkland area. At 9.30pm, they started walking towards a friend’s house via a bridge in the park. On reaching the bridge, they came across two people on the ground fighting. Pearse thought that one of those fighting was a friend of his and tried to help. It was at this stage that he was assaulted, by a ‘blow to the face’.

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He remembered being covered in blood and dazed. He rang his sister Ann from a friend of his sister, Mary’s house to inform his parents what happened. His father, Paddy met him at Church Lane at 10.15pm. They then proceeded to the Garda station to report the assault and from there they went to the local hospital. The following morning they went to the Dentist and were told that his two front teeth would have to be replaced. For the duration that the JLO read out the victim’s statement, the offender remained very still in his seat with his face down and his gaze directed at the floor. The facilitator called upon the offender, David, to give his account of events. David stated that he and a few of his friends had been in town and on returning to the park, they saw a fight taking place involving one of his friends. David said he ran over and hit the victim, Pearse thinking that he was hitting his friend. He stated that ‘he didn’t mean to hurt Pearse as much as he did but that he did think Pearse was kicking his friend. It is important to point out at this stage that neither the victim nor the offender knew one another before the assault took place. They both attend different schools and are in different years. David stated that a couple of weeks after the assault, he apologised to Pearse for the damage caused. He was not surprised when Pearse didn’t respond, as he didn’t expect him to say much. A friend of his also present told David on this occasion that Pearse was the one whom he had assaulted. The facilitator at this point asked Martina, the victim’s mother how she was affected on the night. Martina began by stating that her husband Paddy and she had just been out for a drink and were due to be home at 10.30pm. They received a phone call just after 10pm from their daughter Mary, who told them that their other daughter Ann had phoned to say that something had happened to Pearse. Paddy then went to meet Pearse and Martina stated that she stayed with friends as she was in shock. She didn’t want to see Pearse as she was told that he ‘looked bad’, was cut and bleeding. Martina stated that she didn’t expect it to happen but that it could have been worse. At this stage David interrupted Martina by saying that ‘no one pulled me off’. Martina responded by saying to David that he ‘didn’t care who you hit, you dived in, you didn’t think, his face is horrible and the work on his teeth is not finished, his nerves are gone and they are never going to come back’. Martina then informed the conference participants that a minor operation, which Pearse was supposed to have on Tuesday following the assault, had to be cancelled, as he would have been at risk from the anaesthetic as a result of nerve damage and loose teeth.

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The facilitator thanked Martina for her input and then moved to Eileen, David’s mother for her reaction to the incident. Eileen began by stating that she was away when the incident took place and that her mother was looking after David. She only found out the complete story when she went with David to the Garda station to make a statement. In making eye contact with the victim’s parents, Martina and Paddy, Eileen stated that she understood the pain they had been put through. She added that David had suffered pain that he had deserved it. David had to be taken to the hospital in an ambulance with a swollen knee. She reiterated that he deserved it and further commented that he didn’t think what he was doing when he got involved in the fight. She also mentioned that there was alcohol involved and that David and his peers were too young and immature. Again, by means of eye contact with the victim’s parents, Eileen stated that she felt that David genuinely regretted what he did to Pearse. She concluded by acknowledging that the meeting was a good idea but that it would have been better if Pearse had been present. She briefly mentioned at this point that David had been ‘beaten up’ a few weeks previously; however, Paddy was the only participant to pick up on this. The facilitator thanked Eileen for her contribution and then turned to Paddy and asked him how he felt about the incident. Paddy began by explaining that on the night of the incident Martina and himself were in the local pub having a ‘few drinks’. He stated that he is away during the week working and that Friday night is the time when Martina and he go out. After receiving a phone call from his daughter he went straight to meet Pearse who was coming from a friend’s house. From there they went to the ‘barracks’ as Paddy felt that there was little point in going to the hospital and then to the Guards station. Paddy informed the conference that Pearse had sustained two broken teeth, two other teeth were pushed back and that he had facial bruising as a result of the assault. The facilitator then asked Paddy ‘what was the worst thing about something like this?’ Paddy replied that he wanted to do something himself but couldn’t; he prayed that everything would be okay. David responded to Paddy by stating that he didn’t think, he apologised and also muttered a number of things but it was difficult to hear him. His mother Eileen at this point called her son a ‘thug’ and a ‘scumbag’. The facilitator interjected by stating to Eileen that the purpose of the meeting was not about shaming people but rather it was to understand the consequences for both sides. Paddy then asked David if he had

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learned his lesson from when he was beaten up. These things happen, Paddy said, but that you cannot turn a blind eye to them. At this point the facilitator asked the participants if there was anything else that they would like to add and if there were any suggestions to make good the harm caused. He reiterated that he couldn’t make anyone do anything. Eileen suggested giving financial assistance due to the fact that David was unable to get a job as he was in the process of studying for his leaving certificate. Martina acknowledged that this was a good idea as the medical and dental bills they incurred as a result of the assault were very expensive. Also, she added that there would be further expenses when Pearse goes to have crowns placed on his front teeth. David said to his mother that she ‘shouldn’t have to pay’ for something that he had done. Eileen responded by assuring David that it was not a case of ‘all sorted’ when the money had been paid. She stated that he would have to do work at home and was ‘good at making dinners’. David nodded in agreement. The facilitator asked the victim’s parents Martina and Paddy did they want anything in writing, both replied that it wasn’t necessary as they accepted David’s apology. The JLO stated that David had been cautioned and that the purpose as JLO was to ‘keep to an eye’ out for David in an advisory capacity. Martina then gave the facilitator all of Pearse’s medical receipts, which were then copied and given to Eileen. The facilitator concluded the conference by thanking everyone for attending and for his or her participation. He then invited everyone to partake in some post-conference refreshments. All participants remained for a cup of tea/coffee and an informal discussion.

7.4.1. Case Summary This case study provided an example of functionalist exchange in the following way; from a parental perspective, the parents assumed an authoritative role expressing dissatisfaction in their child’s behaviour. The victim’s parents also expressed disappointment and dissatisfaction in the behaviour, extending the functionalist role of the parent, from parent-child to parentcommunity. From the perspective of the offender, their role was to express some level of remorse and amends, and in so doing, this allows both victim and offender (and all other participants) to achieve restoration. The dual roles of the facilitator and the JLO were fulfilled through their provision of a neutral context for this restoration. They also support the authoritarian

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role of the parents. In this way, a wider extent of community restoration is achieved.

7.5. CASE STUDY 2: RESTORATIVE CONFERENCE, STEPASIDE, CO DUBLIN This case involved larceny and damage to several motor vehicles in a residential area in South County Dublin. The offender (aged 15) had been cautioned along with another juvenile for the same offence on a previous occasion. The Juvenile Liaison Officer (hereafter JLO) felt that the victim and the offender, in this instance, would benefit from a restorative conference. The JLO met with the offender and his parents, earlier in the week prior to the conference, to explain the rationale behind restorative conferencing, and to outline what they should expect from the conference. The JLO also met with one of the victims willing to participate, separately to discuss same. It became clear during the course of the conference that the second offender was experiencing family difficulties and for this reason was unable to attend. The issue of financial reparation is not relevant here, as both offenders had fully remunerated the victims for the damage caused. The facilitator introduced the participants present and informed them that there was ‘no hidden agenda’ to the conference. He proceeded to thank everyone for attending and outlined the principles behind the restorative conference, namely in this case to help the people who had been affected by the offence and to repair harm. The facilitator made it clear to the victim that the offender present at the conference was not the only one involved in carrying out the offence. The facilitator called upon Jamie, the offender, to give his explanation of what had taken place on the night that the offence was committed. Jamie began by explaining that he was in his friend Cian’s house. His mother Clara had dropped him to the house. Jamie told the conference that Cian’s parents were away and that there were three other friends present that night. He explained that they were playing video games on an ‘Xbox’ for a while and then they left the house to walk to the Kidston (a public house). On reaching the Kidston he stated that they met two girls whom they knew from school. Jamie explained that the main purpose of going to the Kidston was to try and get an adult to purchase alcohol for them from a nearby off licence.

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Eventually, according to Jamie, they found a person willing to buy alcohol for them and after ‘getting the cans’ they returned to Cian’s house to consume the alcohol. Both girls went to the house with them and after a period of time, (Jamie was unsure how long they had spent in the house) himself and his friend Harry left the house to walk the girls home. After returning the girls home, Jamie stated that on the way back to Cian’s house, when they were passing by some cars, Harry asked him had he ever taken the ‘sign off a merc before?’. Jamie stated that he had not. The facilitator asked him at this point ‘what was going through your head at the time?’. Jamie replied that he and Harry had just been ‘talking about stuff’ and that it had been Harry who had taken the first badge off a car. After that Jamie explained that they alternated taking badges off other cars between them. Jamie explained that it was while Harry was ‘pulling a sign off a Volvo’ that the Guards came on the scene. He stated that they started to run and that they were eventually caught and brought to the local Garda Station. The facilitator asked Jamie how he had felt the next morning. Jamie replied that he had felt ‘annoyed and embarrassed’ by what he had done. He elaborated on this by stating that he was annoyed at himself for lying to his mother and for committing the offence without thinking and finally that he was worried. At this point in the conference, Jamie started to cry and the facilitator reassured him that it was ‘no harm to cry’. Jamie continued by stating that he was shocked and sad for his family and that he realised that he had annoyed other people especially the victims. The facilitator thanked Jamie and stated that he would return to him at a later stage in the conference. The facilitator then turned to Shay, one of the victims, to get his reaction. Shay began by stating that the area he lived in was usually very quiet and safe. He explained that on the night of the incident he had parked his car out on the road as his daughter’s car was parked in the driveway. He stated that he first noticed that the badge was missing from the bonnet of his car when he sat into it the following morning. He stated that his initial reaction was ‘what the bloody hell is after happening now’. Shay continued by explaining to the conference his annoyance at the fact that he paid tax and insurance, and that he still ‘couldn’t park the car out on the road’. Shay added that after the initial shock of seeing the damage caused to his car, he realised that it wasn’t too bad but he felt disappointed that he could not park his car out on the road, and that having to get the car repaired was a ‘nuisance and involved hassle’.

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It is important to note that at no stage during the conference did the victim raise his voice or appear to be angry with the offender or his mother. The facilitator then asked Shay ‘what was the hardest thing’ for him in relation to what had happened? Shay replied that he felt disappointed that the incident took place outside his own house (he informed the conference that he had a similar experience a number of years ago, his car had been damaged outside his place of work rather than outside his home) and that he thought that it would not be possible for him to park his car on the road in future. Shay stated that ‘twenty years ago you could leave the front door open’ but now things were very different. Shay concluded by stating that he felt that people in the area had responded better to the damage caused to their cars when they knew that someone had been caught. Jamie interjected at this point by agreeing with the victim that the area he lived in was a ‘safe place’. The facilitator thanked Shay for his contribution and moved to Clara (Jamie’s mother), to get her reaction to the events that had taken place on the night of the incident. Clara began by stating that she found it difficult to be present at the conference, but on the other hand explained that she felt it was important to ‘see it all through’. She recalled that initially she felt upset after learning what had happened. She said that she was disappointed with Jamie for lying to her about what was going to happen for the evening at his friend’s house. Furthermore, the fact that his parents were away after Jamie had assured her that they would be in the house. Clara added that Jamie had broken her trust and that she was disappointed with him as usually he was a ‘kind, good and thoughtful person’. Clara stated that it would take time to restore the trust that had been broken with Jamie. She expressed her concern at this point in relation to Jamie’s consumption of alcohol. She stated that he was ‘very young to be drinking’ and that it ‘interfered with a person’s judgement to a serious degree’. The facilitator asked Clara if this was the first time she was made aware of the fact that her son was drinking alcohol underage? She replied that it wasn’t the first time; she explained that on a previous occasion, after she had picked Jamie up from a friend’s house, she was suspicious. However she stated that there was ‘no smell’ and when she asked Jamie he told her that he was just very tired. Clara further added that ‘it was a bit of a shock’ when she learned of Jamie’s drinking and that it was a ‘silly thing to do’. The facilitator then asked Clara ‘what was the most difficult part’ for her? Clara stated that the phone call she received between 1am and 2am on the

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night of the incident from the Gardaı´ was a phone call that any parent ‘dreads’. She said that initially she thought that Jamie had been in an accident, was in hospital or something along those lines. Clara commended Jamie on the fact that he admitted everything to the Gardaı´ on the night of the incident and for offering to return to the scene with them to show them the cars that Harry and himself had removed badges from. Both the Juvenile Liaison Officer and the facilitator stated that it was important that the Gardaı´ were able to contact the victims rather than vice versa. The facilitator then asked Clara what she thought were the main issues in relation to Jamie. She stated that the issue of trust was important and that it would take time to restore. She affirmed that there would be no ‘staying with friends overnight for a while yet’. Clara informed the conference that Jamie had ‘gone along with everything so far’ and that he had not challenged anything and that she felt he had an appreciation of what he had done. However, she added that she felt that the alcohol issue needed to be tackled. The facilitator turned the attention of the conference back to Jamie at this point and asked him was there anything that he would like to say to Clara. Jamie responded that he did not ‘think it was a big deal to help the guards’. The facilitator replied that the guards ‘appreciated it’. The facilitator then asked Jamie had he anything to add. Jamie said ‘no’. The JLO then spoke to Jamie and expressed his curiosity in relation to how Harry and Jamie managed to get the badges, which are usually secure, off the cars. He then asked how did they get them off. Jamie stated that they ‘did not use anything’ and that they just ‘pulled them down’. The JLO explained to the participants, at this point in the conference, that he had met Jamie and his parents earlier in the week to explain to them what had happened so far, the reason for the conference and what their expectations in relation to the outcome should be. The JLO commended James on the fact that he was willing to listen, he was upset and most of all the fact that he was very apologetic for what he had done. The JLO reminded Jamie that he had very supportive parents. He then explained the principles behind restorative conferencing, he stated that it was a new concept, which sought to repair harm by meeting with the injured party, and that it was not about the damage done to the car but rather about real people and real feelings. The JLO stated that he felt that the offence committed by Jamie was a ‘one off’ and that he would be keeping in contact with Jamie and his family, just as is the case with all serious offences. The JLO, making direct eye contact with Jamie, told him that

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certain issues relating to the offence would have to be dealt with and ‘whatever agreement is reached, Jamie, you must do it for yourself rather than for others’. The facilitator once again focused on Jamie by asking him if he had anything to say to Shay. Jamie apologised to Shay for the ‘harm and hassle’ he had caused him on the night of the offence. At this point in the conference, Jamie withdrew a letter in a sealed envelope and handed it to Shay. Jamie said that he was ‘sorry’ and Shay responded by thanking Jamie for the letter, he also stated that he would be a better person as a result of the experience. Shay advised Jamie to ‘respect your mother. Be guided by her, she will be the best friend you ever have’. Jamie turned to Clara and tearfully apologised to her for breaking her trust and for causing her to be shocked and embarrassed. Clara responded by stating that she agreed with what Shay had said, and added that she did not want Jamie to feel like he was ‘carrying a cross for the rest of his life’. She stated that she hoped Jamie had learned from the experience and that he now realised how ‘silly things could happen with drink’. Clara also added that she was only aware of the letter for Shay in the car on the way to the conference. She stated that it had been Jamie’s idea to write the letter. The JLO commended Jamie and said that it was better for him to take action rather than just talk. He also acknowledged that it had been Jamie’s idea to write the letter. The facilitator reassured Jamie that he would receive guidance after the conference and turning the focus to Clara, he asked her what would she like to ‘see coming from the conference’. Clara stated that she wanted to see ‘change’ and that any agreement reached would have to include something about honesty, and she also asked if an agreement could be reached in relation to alcohol. The facilitator asked Jamie how he felt about reaching an agreement in relation to his drinking. Jamie replied that any agreement would have to ‘help’ him and be ‘realistic’. The JLO asked Jamie could he stop drinking and stated that he would have to stick to the agreement reached. He then asked Jamie what could he do about drinking alcohol, Jamie replied that it would be ‘very hard not drink until 18’. The JLO told Jamie at this point that he should try not to consume alcohol for a year and a half and try as hard to ‘keep it going’. The JLO asked Jamie if he was going to ‘take a drink, what was he going to do, and what limits was he going to put on himself in relation to what he drinks and where he drinks it?’. The JLO kept asking Jamie the question until he felt

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that he understood how strong he needed to be, to stay away from alcohol. Furthermore, the JLO stated that his parents should know at all times where he was, what he was doing and who he was with. Clara acknowledged the difficulties that Jamie would face by stating that it would be a struggle for Jamie to ‘stop drinking’ as many of his friend’s parents allowed their children to drink. She also stated that she felt that Jamie was too young and that she was not sure about ‘the alcohol situation’. Clara was genuinely concerned about her son’s consumption of alcohol and she expressed a strong desire to reach some form of agreement with the conference participants in relation to Jamie’s ‘drinking’. She then asked Jamie if he played any sport. Jamie told the conference that he played rugby, hockey and cricket both at club level and for his school. However, he stated that he had to cut back on his sporting activities as he was sitting in Junior Certificate Examinations in June. Shay advised Jamie to take up ‘pitch and putt’ for the summer as he would be better off, in Shay’s opinion to ‘go and hit off a few balls rather than drink cans in the field’. Both Jamie and his mother interjected at this point and told the conference that Jamie also played golf. Shay went on to tell Jamie that drinking at 15 was not going to help his sport and that it would be better for him to ‘go off’ with the ‘fellas who don’t drink’. Clara nodded her head in agreement and stated that Jamie did not drink very often but that he was still too young to be ‘only drinking once in a blue moon’. She added that Jamie should agree not to consume alcohol for a minimum of a year and a half. Jamie turned to Clara at this point and told her that he now realised that there are more ‘repercussions than you could think possible’. Clara asked Jamie what he was going to do on the night of the Junior Certificate results. Jamie replied that he would go to an event that was supervised, where he would be dropped off and collected by his parents. Clara appeared to be satisfied with this. The JLO informed the conference that a new ‘Bicycle Unit’ was being brought into operation in the area with the specific aim of tackling underage drinking. Jamie remarked that the unit would have a ‘lot of work’ to do. The JLO retorted that this would not affect Jamie as he won’t be drinking. The JLO asked Clara were there problems with Jamie in relation to time and his friends? He made it clear that he did not want to be too hard on Jamie but due to the serious nature of the offence that these issues were important. Clara and Jamie stated that Jamie did not go out very often, that there was nowhere for him to go unless he was dropped off at a friend’s house. If he

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was going to a friend’s house he was usually dropped off and collected by one of his parents. Jamie stated that if he went into town, he usually got the bus and was home for dinner at 6 pm. On the subject of friends, the JLO asked were there any friends that Jamie should not be ‘hanging around with?’. Clara stated that Jamie was still friendly with Harry, that they there were in the same class in school and played sport together. She mentioned that Harry’s family situation at the moment was difficult and that as a result he was ‘vulnerable’. Clara added that they had not decided anything about Jamie ‘hanging around with Harry’. The JLO asked Clara if ‘no overnight stays’ should be included in the agreement. The facilitator asked did Jamie agree with his parents having a final say on weekends. Jamie replied that yes, he did agree that he would only be allowed to go on overnight stays at the weekends with his parents’ permission. At this point in the conference the facilitator and the JLO finalised the agreement and the plan of action for Jamie. All parties agreed that Jamie needed to be honest with his parents, that he was not to consume any type of alcohol for at least a year and a half, that he should concentrate on his sporting activities rather than ‘hang around with friends who drink’ and finally Jamie agreed that he would not argue with his parents regarding overnight stays on weekends. Jamie then asked the JLO if the bicycle unit would breathalyse people before bringing them to the Garda station. The JLO explained that it is difficult to get a large group to move on and if they fail to do so they will be committing an offence and will be arrested, whether they are drinking or not. The JLO told Jamie that he should be responsible for his actions and ‘hanging around’ with a group of friends that drink alcohol would only tempt him to drink alcohol. The JLO stated that if Jamie’s friends ‘slagged’ him about not drinking alcohol then they were not friends. He advised Jamie that instead of getting himself into trouble that he should just ‘walk away’. The facilitator informed Jamie and Clara that there was a two-way relationship between Jamie and the JLO and that if they needed the JLO, he was available to help as much as to monitor Jamie’s progress after the conference. The facilitator concluded the conference by thanking all the participants for attending and commented that the conference had been very productive. Clara thanked Shay for coming and Shay wished Clara and Jamie the best for the future. Tea and coffee were offered to the participants by the facilitator and the JLO; however, both parties declined.

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7.5.1. Case Summary In this restorative conferencing event, the role of the victim was more significant as they provided the main example of functionalist exchange by assuming the authoritative role, which the other adult participants at the event followed. The victim assumed the role of the offender’s father by expressing dissatisfaction at the offender’s behaviour and encouraged restoration through greater involvement in sporting activities. It was very interesting to observe the victim assuming the role of the offender’s father. From the perspective of the offender, they were able to fulfil their role by expressing some level of remorse and amends, and in so doing, this allows both the victim and the offender (and all other participants) to achieve restoration. Similarly, the dual roles of the facilitator and the JLO were fulfilled through their provision of a neutral context for this restoration. They also supported the authoritarian role of the parent in this case. In this way, a wider extent of community restoration is achieved.

7.6. CASE STUDY 3: RESTORATIVE CAUTION, SHANKILL 1, CO DUBLIN This case involved an assault on an elderly lady as well as trespassing on the grounds of a DART (Dublin Area Rapid Transit) railway station. The participants present included the facilitator, the Juvenile Liaison Officer, the offender, his father, a Garda who was involved in arresting the young offender and a security manager from Iarnrod Eireann (Irish Rail). The victim was not present as she was advised not to attend by her solicitor, as she was taking a civil case against Irish Rail. The facilitator began the conference by thanking all the participants for attending. He acknowledged how difficult it may have been for some of the participants to be present. He stated that the purpose of the conference was to help to deal with the offence and to repair the harm. The facilitator described the nature of the offence at this point and informed those present that the offence had taken place in the local DART station between 11pm and 11.30pm. He added that Alan (the offender) had admitted involvement but that his behaviour on the night was unacceptable and that the purpose of the conference for him would be to repair the harm caused. The facilitator asked Alan if he was present at the

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conference of his ‘own free will’, Alan stated that ‘yes’ he was. The facilitator informed the conference, including Alan, that he was free to leave at any stage, but that if he did the case would be referred to the courts. He added that if Alan co-operated with the conference that the matter would be finalised. The facilitator asked Alan to take himself back to the day of the offence. Alan told the conference that he was bored and that there was ‘nothing else to do’, so he decided to throw stones at signs in the DART station. He explained that he had been there twenty minutes and had thrown seven or eight stones, prior to hitting the victim on the side of her head with a stone. Alan said that he ‘didn’t think that the stones might hit someone’ and that he was ‘very sorry that she got hit’. He added that he ‘didn’t think anyone would be hurt’ and that it was his first time throwing stones in the DART station. The facilitator asked Alan ‘who do you think had been affected?’ Alan replied that the victim and her family had been harmed by his actions and that he didn’t ‘know how people had been affected’. (The offender at this point in the conference was shaking in his chair and was tapping his runners off the floor; he also appeared to be close to tears). The facilitator asked Alan how he had personally been affected by the incident and his actions. Alan informed the conference that he was in trouble at home and that his parents had ‘gone mad’ when they learned of what he had done. The facilitator asked Declan (the arresting Garda, who attended the conference as a representative of the community) how he came to be involved with Alan’s case. Declan explained to the conference that he had spoken to the injured party, the victim the day after the incident occurred. He stated that the victim was afraid to leave her house as a result of what had happened in the DART station. Declan also confirmed that he had spoken to Alan’s grandfather (Alan lives with his grandfather as his parents were separated and were living with new partners) about the incident and that Alan had admitted to throwing stones in the DART station, but that he had denied that anyone had been injured. Declan told the conference that Alan had called to the victim’s house to apologise for his actions, but he felt that Alan had not been sincere in his apology. Declan stated that the reason for this was due to that fact that he believed that Alan felt that he was not directly involved in injuring the victim. The facilitator then asked Declan what he thought was the ‘hardest

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thing’ in relation to the offence. Declan explained that the DART station was a ‘public place where people were going about their business’, that the attack was ‘unprovoked’ and that it had ‘instilled fear in the victim, who is 60 years of age’. Declan, while making eye contact with Alan stated that he had caused injury to the victim, that she had to go to hospital and that his actions had serious consequences for her and her family. Adam (Alan’s father) interjected at this point and informed the conference that the victim’s son had threatened him; however, he explained that he would do something similar if his mother had been ‘hit by a stone’. (It became apparent during the conference that Adam was acquainted with one of the victim’s daughters.) He stated that the main issue for him was that ‘throwing stones was a serious matter’. Adam told the conference that Alan’s behaviour was reckless and that more people could have been injured. The facilitator, at this point asked the JLO to speak on behalf of the victim, and present her statement of events to the conference. The JLO began by stating that he had contact with the injured party on an ongoing basis. He explained that on the night the incident took place, the victim and her husband were arriving back from a holiday in Spain. The victim’s mother had died from a stroke and the JLO told the conference that the victim felt that she was having a stroke when the stone hit her. The JLO explained that the victim had been hit at the front and at the back of her head. Her family, and herself had been affected ‘enormously’ by the assault. He added that the family were especially upset, as they feared losing both of their parents, as the victim’s husband was suffering from Alzheimer’s disease. The JLO told the conference that the victim expressed an interest in participating in the conference, but that as time when on she ‘had no confidence’ in the process. In the JLO’s view, the victim is a ‘completely different’ person since the incident. He stated that she is afraid to use the DART, is suffering from panic attacks, her head is still quite sore and that she is weary of leaving the house for any reason. Most of all she is fearful of meeting Alan again. The JLO added that the victim had told him that she was uncomfortable in participating in the conference, as she felt that she would be reliving the incident and that her family were still very shocked and angry after receiving a phone call from the hospital when they had expected her to be arriving back from holidays. The JLO further added that the victim was still upset, and that her friends had encouraged her to participate and that she had been a ‘very outgoing person’, but that her life had changed since the incident. The facilitator at this point asked the JLO

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what he thought were the main issues in the case. The JLO informed the conference that ‘Mrs McCabe could have been killed’. He added that ‘rock throwing’ was something, which occurred regularly in the DART station and that ‘anyone who would throw a rock at a DART station was trespassing’. The facilitator turned the attention of the participants to Ollie a security manager with Irish Rail, by asking him what he thought were the main issues with this particular case. Ollie began by stating that Irish Rail take ‘rock throwing’ very seriously by having a policy of zero tolerance, which meant that anyone caught throwing rocks would be prosecuted. He added that Alan’s behaviour on the night of the incident was anti-social, that he was underage and that loitering in a DART station was an offence according to the by-laws. Ollie informed the conference that Alan was trespassing on the line, that he was a danger to himself as well as a danger and an inconvenience to passengers. He also mentioned that incidents of rock throwing in the station had doubled in the previous few months. He explained that he was in regular contact with local Gardaı´ regarding similar cases to Alan’s. The facilitator asked Ollie, ‘have many people been injured’, Ollie replied that some people had been injured and that it was company policy that ‘offenders be taken to court and prosecuted’. He also stated that anything could have happened to ‘that poor woman’ and that she ‘was doing no harm’ and that her family were given cause to worry. (The JLO left the conference at this point to arrange the post-conference social.) The facilitator thanked Ollie for his contribution and moved the focus of the conference to Adam (Alan’s father). The facilitator asked him how he felt when he heard what had happened. Adam told the conference that it made him feel sick and that it had caused a strain on his home life, as he was constantly worrying about Alan, where he was and whom he was with. He explained that Alan had never been in trouble before and that the incident could affect his whole life. He stated that Alan could lose his job and that he may not be able to travel as a result of having a criminal record. Adam told the participants that he knew the victim and her daughter. He also added that his own father used the DART on a daily basis. The facilitator at this point asked Adam how he had come to hear about the incident. Adam explained that his father had telephoned him. The facilitator then asked him ‘what was the hardest thing about this incident for you’. Adam replied that Mrs McCabe could have died and that if that had been the case Alan would not ‘be sitting here today’.

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The facilitator asked Adam what was the main issue for him. Adam replied that Alan was very upset by the incident and again that Mrs McCabe could have been killed. The facilitator then turned to Alan and asked him if he had anything to say. Alan stated that he was ‘sorry that (he) didn’t mean it’. Adam, while making eye contact with all the participants around the table, stated that this incident was the first and the last for Alan. The facilitator returned to Declan at this point and asked him ‘what would you like to come out of the meeting’. Declan replied that he would like to see Alan taking steps to not involve himself in similar incidents in the future. Declan also stated that he hoped that Alan understood the serious nature of what could have happened and the consequences of his actions. He concluded that the incident ‘could have been much worse’. The facilitator asked Ollie the same questions, to which Ollie replied that Alan should not attempt to go near a DART station unless he intended to travel and that people loitering around stations only create and instil fear in people. Adam interjected at this point and voiced his agreement with what Ollie had said. He added that Alan needed to be able to use the DART in order to get to work. Adam turned to Alan at this point and told him that he hoped that he ‘takes what is given’ to him and that he had attended to conference, not to back Alan up but rather to support him. He also stated that he hoped that Alan had learnt his lesson. Alan replied that he agreed with what his father had said. Adam then told Alan that he could not live his life for him. The facilitator thanked Adam and Alan for their contributions and directed the conference towards formulating a plan of action for Alan. Ollie interjected at this point and requested that no trespassing in the DART station be included as one of the terms of any agreement made. (The JLO returned to the conference at this point.) The JLO requested that Mrs McCabe had requested a written apology from Alan. Alan stated that this was ‘alright’ with him. The JLO at this point asked Alan where he had picked up the stone from. Alan replied that he had found a stone on the track and that he was not thinking when he had picked it up. The JLO stated that the victim was particularly upset by the fact that the stone had come from the track. He added that the victim had told him that she felt as though she had been specifically targeted and that she had been assaulted as a result of being elderly. The JLO stated that the conference was an opportunity for Alan to reflect on what had happened, and he

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added that Alan should not be in a DART station unless he had business there. The facilitator at this point asked Alan how he felt about what he was being asked to do. Alan replied that it was ‘grand that (he) won’t be around DART stations’. The JLO told the conference that if young people had nothing to do then they would get into trouble. He stated that he believed that Alan’s involvement in an apprenticeship was ‘great’ and that it had given Alan ‘a focus in life’, and that he had support from his Dad (Adam). Adam agreed with the JLO and stated that it was a ‘waste of time’ for Alan to be in school and that Alan had been missing days because he had no interest. Adam told the conference that Alan’s apprenticeship had made him realise that he was accountable, and he hoped that Alan had learned his lesson from the incident. The JLO then asked Alan if he drank. Alan replied that he did drink ‘in the fields’ with some of his friends but that on the night of the offence he had not had anything to drink. He added that he was no longer drinking and stated that he had ‘no problem’ with limiting his consumption of alcohol. Declan at this point asked Alan what was he ‘going to do when your friends are drinking’. Alan replied that he would go off with his other friends, but agreed that this would not be easy. The facilitator then decided to address the issue of supervision for Alan. He stated that Alan should meet with the JLO both in his home and in the Garda station. The JLO added that Alan needed to take responsibility for himself and for his actions. Taking this into account the facilitator stated that Alan should go to the Garda station to meet the JLO rather than the JLO going to his home. Adam asked both the facilitator and the JLO at this point ‘what is the story with appointments as Alan will be working with Fa´s from the summer’. The facilitator replied that arrangements could be made with the JLO after the conference and nearer the time of the meetings. The facilitator brought the conference to a close by asking all the participants to agree on the plan of action for Alan. It was agreed that Alan would carry out/adhere to the following; • A written apology would be sent to the victim and the District Manager of Irish Rail. • Trespassing in any DART station prohibited. • Stay out of trouble both at home and with the Gardaı´ .

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• Abstain from consuming alcohol until eighteen years of age. • Supervision by JLO for a set period of time. • Alan asked the JLO at this point ‘how long will the supervision last’. The JLO replied that Alan would be under JLO supervision until he was eighteen years of age. The facilitator then asked the participants if they had anything further to add before the close of the conference. The JLO took the opportunity to thank everyone for coming, especially because it was a bad day and the traffic had been heavy. He added that if Alan complied with the agreement, he ‘will do well’. Alan told the conference again that he was sorry for the trouble he had caused. Declan told Alan that he was the only one who could make amends and that he did not expect to come across him drinking at the weekends. Adam added that Alan should not have been in the DART station in the first place. The post-conference social lasted for ten minutes. During this time the facilitator prepared the plan of action for Alan and all parties signed the agreement. The facilitator provided Adam with a copy and told him that he felt it was important for him to have a copy, in case the agreement was broken in the future.

7.6.1. Case Summary This case study provides an example of functionalist exchange in a different context to previous cases. This distinction was due to the absence of the victim in this case. The victim who was elderly felt too afraid to attend. From a parental perspective, the offender’s father assumed a functional and authoritative role by expressing dissatisfaction in their child’s behaviour. From the perspective of the offender, their role was to express some level of remorse and amends, and in so doing, this allowed the offender (and all other participants) to achieve restoration. The dual roles of the facilitator and the JLO were fulfilled through their provision of a neutral context for this restoration. They also supported the authoritarian role of the father. The most interesting aspect in this case was that the father assumed the role of the victim after the JLO had read out their statement. The context of assuming the victims role had to be created by the JLO. The offender’s father conveyed the victim’s pain and suffering

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when given the opportunity to take on the victim’s role. In this way a wider extent of community restoration is achieved.

7.7. CASE STUDY 4: RESTORATIVE CAUTION, BLACKROCK, CO DUBLIN This case involved two youths’ breaking and entering a vehicle causing damage to the vehicle, with intent to steal same in the early hours of the morning of 6th April 2003. The victim and her partner arrived half an hour before the conference was due to start. This gave both the facilitator and the Juvenile Liaison Officer the opportunity to gain a better understanding of how the victim felt about the incident and the purpose of the conference. The JLO received a phone call on her mobile phone ten minutes before the conference was due to start from one of the offenders stating that they were having problems getting to the conference. The JLO after receiving information that the other offender and her mother were waiting in another room left the garda station to go and collect the offender and his mother. It became apparent at the close of the conference that the reason why the offender had problems getting to the conference was due to family problems. The JLO commenced the conference by introducing the participants to one another and thanked everyone for being present. The facilitator reiterated this and added that the conference was voluntary for all and he hoped that if the outcome was successful for all, then they could move forward. The facilitator asked Andrew (offender 1) how he had come to be in the cul de sac where the victim’s car was parked. Andrew stated that he was cold, so he got into the car. The facilitator asked him at what time did this happen? Andrew stated that they got into the car at around 4am. The facilitator then asked him what had he been doing before he got into the car. Andrew stated that he had gone up to Sarah’s (offender 2) house at 3am and ‘tipped her window’. He stated that they then went to the 24 hour garage down the road to buy cigarettes. The facilitator continued to question Andrew by asking him how he had broken into the car. Andrew stated that he had ‘bent’ the door. The facilitator asked him how he did this and Andrew responded that he had ‘bent’ the door with his ‘hands’. The facilitator asked Andrew why he picked that particular car. Andrew stated that he did not know why he had picked the car and that he had

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never broken into a car before. (The facilitator in order to get any response from either offenders had to continually ask them questions at every stage of the conference.) The facilitator then asked Andrew what had happened after they had got into the car. Andrew stated that when he saw the guards coming he ‘just got out of the car’. The facilitator asked him what he felt like after he had been arrested and when he was in the garda station. Andrew said that he ‘didn’t know’ and when he was asked further how he felt at the time he said that he was ‘sorry’. The facilitator then turned the focus of the conference to Sarah (offender 2). The facilitator began by asking Sarah how she came to be involved in the incident. Sarah stated that she helped Andrew to break into the car. (Sarah’s mother shook her head violently at her daughter at this point.) The facilitator asked Sarah why had herself and Andrew pulled the wires in the car. Sarah stated that Andrew had out his foot on the dashboard of the car, and this is why the wires were put because his foot had gone through the dashboard. At this point Sarah’s mother interjected stating that she was ‘really annoyed’ and ‘perhaps (I) should go’. The facilitator called upon Deirdre, the victim, to express her feelings about the incident. Deirdre began by stating that she did not think that the offenders opened the door of the car with their hands as there was a mark on the door where damage has been done to the bodywork and paint had been chipped away. She informed the conference that repair work had to be carried out on the ignition as part of it had been released; also blood was visible on the steering wheel and the ignition of the car. Deirdre stated that she was shocked and panicked when she saw her car the morning after the incident. She added that she did not know that her car had been broken into until she found a card on the windscreen asking her to contact her local garda station. Deirdre stated that being without her car was a great inconvenience to her as she had firstly, to telephone her employer to let him know that she would be late for work, and secondly she had to walk to the DART station to travel to work. Walking to the station caused her to be in pain, as she informed the conference that she had a bad hip. Deirdre stated that she was further inconvenienced due to the fact that it took a week to repair her car. The cost of not having a car and the repair work, which was required, was very expensive. She added that as a result of the ignition wires being pulled down, she had to get the car towed to the garage.

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This cost h100. Deirdre stated that she was able to cut the cost of the repairs by getting second-hand parts. At this point Cian (Deirdre’s partner) informed the conference that the ignition wires at the back of the ignition switch were ready to ‘hot wire’. He added that the total cost of repairs was h204. Deirdre reiterated this and added that for her it meant the loss of two and half days pay for a random act of vandalism. She stated that it had upset her, as she had to walk everywhere and was unable to bring her sons to football practice. Deirdre told the participants that she did not understand why the incident had happened to her and why she was inconvenienced. Cian informed the conference that Deirdre’s car was the only car without an immobiliser in the cul de sac on the night of the offence. He stated that there were far more comfortable cars parked on the road that they could have broken into if they were cold. Cian added that finding blood in the car the following morning was ‘very frightening’. The facilitator at this point asked both Sarah and Andrew’s mothers for their feelings about the incident. Andrew’s mother stated that she was very shocked and that she did not think that ‘Andrew would do anything like that’. Sarah’s mother stated that she was ‘very disappointed, disgusted and very annoyed’. She also stated that she had suffered as a result of the incident as the tyres on her car had been slashed. (It was implied before the conference by the JLO that there were two other individuals involved in the offence, it is believed that the offenders present at the conference may have been reluctant to tell the full version of events as they may be the subject to intimidation by the other individuals.) Sarah responded to her mother by stating that she was sorry that she did not think. The facilitator then asked Andrew had he anything to say? Andrew told the conference that he was sorry. At this point the facilitator addressed the issue of the extent of the damage to the car. He produced a docket form the garage where the victim’s car had been repaired. (The victim had given the docket to the facilitator before the conference began.) The facilitator informed the conference that h204.30 worth of damage had been done to the vehicle. Sarah stated that she had h100 to give to the victim. Andrew’s mother added that he also had a h100 for the victim. At this point, Sarah’s mother apologised to Deirdre and Cian for the damage and upset that her daughter had caused. Cian stated that it was important for Sarah and Andrew to tell what really had happened and to clarify events that occurred on the night of the incident. Cian asked Andrew had he been cut on the hand trying to open the door and to

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explain where the blood had come from. Andrew stated that they were not trying to take the car and that they would not have been able to get it started. Deirdre stated that she appreciated him telling her that. Sarah’s mother informed the conference that neither of them could drive. Sarah muttered that she had not gone out since the night of the incident. She added that the offence had been committed at 5.15am. The facilitator asked both offenders what time they had met up and what had they been doing for the two hours prior to the offence. Sarah admitted at this point that she had been drinking. The facilitator asked Andrew had he been drinking and he stated that he had not. The facilitator then asked him if he was smoking hash. Again, Andrew stated that he had not. The facilitator asked the offender’s why did they do it, was there anyone else with them? He stated that the participants of the conference needed to know the truth in order to formulate a plan of action for them. The facilitator further commented that he respected Sarah and Andrew for coming to the conference but added that their version of events ‘did not add up’. He then asked them ‘who had got cut’. Andrew stated that he could not remember who had got cut. At this point, Deirdre mentioned that one of the arresting Gardaı´ had caught another young man hiding in the bushes with Sarah. Neither the offenders nor their mothers paid any attention to this statement, giving the impression that they didn’t want to talk about it. The facilitator asked both offenders had they been ‘hanging around together for long?’. Sarah stated that Andrew and her were ‘good mates’ and that they knew one another for years. The facilitator asked Sarah who made the decision to break into the car. Sarah stated that she did not know. The facilitator then asked her how much she had had to drink on the night of the incident. Sarah stated that she had eight or nine bottles of ‘Smirnoff Ice’; she also stated that Andrew and she had arranged to meet at her house in the early hours of the morning to go and buy cigarettes. At this point her mother warned Sarah that she ‘better not catch Andrew at that window again’ (Sarah and her family live in a bungalow). The JLO informed the conference that both Sarah and Andrew had been in employment since the incident. Sarah is working as a hairdresser and Andrew is working in FA´S. The JLO stated that they did not have the same freedom they once had since they began working. The JLO stated that she would be able to work with them and that they would not get themselves into trouble again.

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The facilitator asked both of them did they agree with this? Both replied yes they did. The facilitator stated that a curfew would need to be included in the agreement that was made, he stated that it was ‘dangerous’ for Sarah and Andrew to ‘be out at that time of night’. He asked both of their mothers how they would feel about arranging curfew times with their children. Sarah’s mother stated that she felt like ‘strangling the pair of them’. She told her daughter that she never wanted to hear if Sarah did ‘something like that again’. She stated that if she did that she should not ‘bother her family’. She added that the time for understanding was over and that if it ever happened again that ‘there would be hell to pay’. She concluded that the money was not important and that she hoped both Andrew and Sarah would tell the truth about the incident. The facilitator asked Andrew’s mother for her feelings. She began by stating that ‘Andrew will never do anything like this again’. She added that he had put the money together himself. At this point both Sarah and Andrew handed the money to Deirdre. Deirdre thanked both of them for the money. Sarah’s mother told Sarah that she was not allowed to go out after midnight. The facilitator brought the conference to a close by thanking everyone for being present. Deirdre stated that she was happy with the outcome. She stated that Andrew and Sarah had let themselves down as well as their parents. She told them that they did not need to be going out at night and breaking into other people’s cars. Andrew and his mother left without saying a word to anyone apart from thanking the facilitator and the JLO. Sarah’s mother stated that she couldn’t wait to get out of the room as the whole experience had made her feel like she was back at school. There was no post-conference social and the offenders and the JLO agreed that the plan of action and the issue of supervision would be dealt with at a later date.

7.7.1. Case Summary This case study was interesting as the offenders’ mothers assumed the authoritative role, as the fathers were absent on this case. In assuming the authoritative role, the offenders’ mothers strongly expressed their dissatisfaction and disgust in their children’s actions. From their perspective, the children’s roles were fulfilled through their expression of remorse and

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regret. They also made financial reparation directly to the victim, which enabled restoration to occur. Another interesting aspect of this case was that the victim’s partner assumed the role of victim on behalf of their partner who was more subdued. The dual roles of the facilitator and the JLO were fulfilled; in this way a wider extent of community restoration was achieved.

7.8. CASE STUDY 5: RESTORATIVE CONFERENCE, SHANKILL 2, CO DUBLIN This case involved bullying, culminating in assault by five girls in the grounds of a Church. The participants present at the conference were two facilitators, the Juvenile Liaison Officer, the victim, her parents and boyfriend, the five offenders. Four of the offenders had a parent each with them. The facilitator began the conference by introducing herself and the JLO. She informed the participants as to the purpose of the conference and that they had gathered together to try and get everyone’s views and talk about the incident. She went on to thank everyone for their attendance and stated that the purpose of restorative justice and the meeting was not to judge people but rather to ‘work on a solution to help rid problems’. The facilitator added that everyone present had acknowledged that there were problems. The facilitator began the process of finding out what had happened on the night of the incident by asking Sue (offender 1) how she had come to be involved. Sue explained that as she was walking towards the church on the night she heard ‘everyone arguing’. She added that it was Nora (offender 4) and Laura (the victim) that had started the argument. Sue stated that because of the arguing she had left the church grounds after a while to move on to another place where some of her friends were ‘hanging out’. The facilitator asked Sue what she was thinking at the time when Nora was arguing with Laura. Sue said that she could not remember. The facilitator then asked her what she felt was the impact of the incident. Sue replied that she felt that ‘it wasn’t worth it’. The facilitator asked her how she thought the incident had affected others. Sue replied that she ‘didn’t know’. The facilitator thanked Sue for her contribution and moved on to Lenore (offender 2) (Lenore had travelled to the conference with Sue and

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Sue’s father, she had no parent/supporter with her as her family were in the process of moving to the country). The facilitator asked Lenore what she was doing before the incident. Lenore stated that she was ‘sitting on the green making phone calls’. She stated that after a period of time she went up to the church where she heard ‘people shouting names, making smart comments and fighting’. The facilitator asked her how this had affected her. Lenore told the conference that she was not thinking about what she was doing and that she never thought that things would go this far and that she would not make the same mistake twice. The facilitator thanked Lenore for her contribution and moved on to Natalie (offender 3). (Before the conference began, the JLO told me that Natalie had ‘gone out’ with the victim’s boyfriend before the victim starting ‘going out’ with him). The facilitator asked Natalie the same question as she had asked the previous participants. Natalie stated that she was at the church on the night the same as Sue and Lenore and that there had been a fight between Laura and the others and then everyone left. The facilitator asked Natalie what was her part. Natalie told the conference that she had nothing to do with the fight and that she did not know why the fight happened and that she did not touch Laura. She added that nothing had changed between Laura and herself. Laura interjected at this point and told the conference that she had not seen Natalie since the incident. The facilitator thanked Natalie for her contribution and moved on to Nora (offender 4). Nora stated that she was at the church with Natalie and Lenore and agreed with their version of what had happened. When the facilitator asked her what had been happening since the incident, Nora replied that nothing had happened but the experience had made her realise that she will not do anything like that again. The facilitator asked her how she thought the incident had affected Laura. Nora replied that she did not know. The facilitator thanked Nora for her contribution and moved on to Joy (offender 5). The facilitator asked Joy what part had she played on the night and how she had been affected by the incident. Joy told the conference that she was not with the others on the night. She explained that she was with some other friends and that it was a friend from work that told her that a fight was going on between Laura and some of the other girls up at the church. Joy added that she went up to the church but that she did not take part in the fight. Joy told the conference that she did not know why Laura felt threatened by her, as they do

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not ‘hang around with the same people’. She added that Laura was making herself feel more threatened than she actually was by walking past ‘the group’. The facilitator thanked Joy for her contribution and the other offenders for giving their statements of the events on the night of the incident. She then moved the focus of the conference to the victim and her supporters. The facilitator began by asking Laura, how she had been affected by the incident and whether or not she was still being affected by the events that happened on the night. Laura told the conference that on the night of the incident Natalie had phoned her on her mobile phone asking her to come down to the church to meet up before going to the cinema as they were planning to do. On arriving at the church Laura stated that she saw Nora and Lenore and they started to argue, Laura added that before she knew what was happening that she was pulled up off the ground by her boyfriend Mark who thought her nose was broken as it was bleeding. Laura told the participants that she knew from the Wednesday before that a fight was going to happen between herself, Nora and Lenore but that she did not know when it was going to happen. When the facilitator asked Laura what the fight was about, she told the conference that it happened because she had called Lenore names. Laura stated that she was terrified from Wednesday to Saturday about the fight and when it was going to happen. She added that she went to school with Joy and that she only came into contact with the other girls when she crossed ‘the green to go to the shops’ and that since the incident she has been too afraid to go to the shops or meet her friends outside the house. Laura’s father Liam interjected at this point and stated that his daughter was feeling so intimidated by the offenders that she would not ‘even go to Tesco’s the normal way but via Super Valu’. Joy’s mother, Jackie asked Liam how intimidated was Laura. Liam replied that since Christmas, Laura had changed her mobile phone number three times, as she kept getting threatening and nuisance phone calls from private telephone numbers. Laura added that she was being stared at and that she wanted it to stop, as it was upsetting her and making her feel very uncomfortable. Liam stated that while his daughter was being intimidated and receiving nuisance calls she also had been physically harmed. Nora’s mother Pauline asked Laura at this point who was staring and pointing at her. Joy’s mother interjected before Laura was able to respond, stating that she should get on with her life and stop being afraid to go out.

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Liam explained that he had spoken to the girls on the night of the incident and that in his view people take things such as staring and pointing in different ways. The facilitator interjected at this point and explained to the participants, especially Joy’s mother that the purpose of the conference was to deal with the events that had occurred on the night that Laura had been assaulted and not any other incident. (Laura’s boyfriend Mark had been assaulted the night after the incident but it is not thought that the same people were involved in both assaults.) The facilitator thanked Liam for his contribution and then moved to Michael (Sue’s father). Michael told the conference that it was difficult for him to give an accurate idea of the truth behind the matter. He added that the issue between the girls had to be resolved and that Laura should not be too terrified to leave her house and walk to the shops. Michael making eye contact with each of the offenders, especially his daughter, told them that they needed to reassure Laura that she should not be terrified of them. Natalie’s father added to what Michael had said by telling the participants that the girls should encourage Laura that there was nothing to fear if she met them at the shops or anywhere else. He added that the conference was a ‘good way of dealing with incidents like these’. The facilitator then asked Pauline, Nora’s mother how she felt when she heard about the incident. Pauline told the conference that it had given her nightmares and ‘hot flushes’. She explained that you could not make the girls be friends with each other but that instead of letting other people get to them they should try to ignore one another. She added that as ‘they get older they should grow out of this type of thing and get on with their lives’. The facilitator thanked everyone for giving their feelings about the incident and how it impacted their lives. The facilitator told the conference that it was good for the girls and their parents to share each other’s feelings. Jackie (Joy’s mother) told the conference that the incident was a once off for the girls and generally they were ‘good girls’. She added that she would not like her daughter to feel intimidated or threatened by others and she agreed with Pauline that she could not make her daughter be friends with Laura. Paul, Natalie’s father hoped that the incident would help them to mature. Laura’s mother, Ann stated that she would like the girls to be able ‘to nod at each other if they met in the street or in a nightclub when they are older’. She also told the conference that she hoped that talking about the incident would help Laura to overcome the fear of going out. The

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facilitator at this point asked Mark, Laura’s boyfriend how he had been affected by the incident and how it affected his relationship with Laura. Mark explained that on the night of the incident he had received a phone call from Laura asking him to come up and meet her at the church. Mark told the conference that it was not his intention to go up to the church and fight. He stated that when he arrived at the church he saw thirty people or more standing around watching Nora and Laura arguing. He added that they ‘hopped on one another’ and that when he tried to pull Laura away the girls kept coming. Mark explained that when he pulled Laura up off the ground and over to the car park that he thought Laura’s nose had been broken. He added that Joy had come over to ask if Laura was okay and after that he had telephoned Liam. The facilitator asked Mark if he could see an end to the matter. Mark replied that yes he could. The facilitator then asked him if Laura’s nose had been broken. Both Laura and Mark responded that it had not been broken and that she had no other physical injuries. Liam interjected at this point and told the conference that he hoped that the girls would grow up and learn from the experience and that hurting and intimidating others over boyfriends because of jealousy was a ‘bad road to go down’. He added that it was a ‘silly thing to be fighting over’ because the girls all looked to be very sensible. He told the conference that he hoped that Laura could also learn from the experience and get her confidence back. Liam added that ‘life was too short to be fighting over boyfriends’ and that you ‘never know what could happen tomorrow’. At this point, Jackie raised the issue of whether or not Mark had a knife on the night of the incident. She appeared to be quite annoyed and demanded that she was given a response from either Mark or Laura. Liam told the conference that no knife had been ‘pulled out’ on the night. Mark explained that he had given the knife to his friend Greg before they had gone up to the church; he added that there was no blade in the knife and that it had not been in use. The facilitator thanked Liam for his explanation of events and moved on to the JLO. The facilitator stated that the purpose of the conference was not to make the girls be friends with one another but rather to make it easier for them to live together. The JLO continued in this vane and explained that Laura had been assaulted and the underlying cause had been bullying. He added that Laura was still being hurt and that he hoped that the bullying would stop after the conference.

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The JLO said that if anyone at the conference knew who was making the telephone calls to Laura should ‘get it stopped’. He made it clear that he was not accusing anyone, but added that it would be the one thing that would stop everyone from moving on from the incident. The JLO stated that it was great for everyone at the conference to have acknowledged what had occurred on the night of the offence. He hoped that Laura would not be put into a situation where she would have to come back to him and say that the bullying and intimidation was still going on. The facilitator at this point asked if the offenders had anything more to say. Joy stated that she was regretted what she had done to Laura and that she had nothing against her and that she was sorry. Nora stated that she also regretted what happened on the night but that she did not look or stare at Laura. Pauline asked her daughter did she want things to stay like that always. Nora replied that she did not, and proceeded to apologise to Laura again. Natalie told Laura that she did not intend to do anything that would hurt or upset Laura. She said that she was sorry and that she hoped that they would be able to talk to one another in the future. Lenore told the conference that she was also sorry for what had happened on the night of the offence. She added that she did not know what to do when she saw Laura after the incident. Sue also stated that she did not know what to do when she saw Laura. She told the conference that she was embarrassed with what she had done to Laura and that she was very sorry. (At this point Sue started to cry.) Laura acknowledged that stares can go both ways and apologised to the offenders for the hardship that she may have caused them. The facilitator reiterated that it was the incident that had brought them all together at the conference. Michael told the conference that Sue had wanted to apologise to Laura and her family before the conference but that the guards had told her that contacting Laura was not advisable before the meeting. He added that perhaps the people who were intimidating Laura were not at the conference. Lenore told the conference that she had also received nuisance calls to her phone and that she ‘knew what it was like’. The facilitator explained to Laura that perhaps the girls appeared to be staring at her not because of who she was but out of embarrassment. She told her that she did not have to say ‘hello’ to the girls, but that now she should be able to walk past them without feeling intimidated. Laura said that she felt that she would be able to do this in future and thanked everyone for coming to the conference. She also told the participants that she was happy with the outcome. The facilitator asked the

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offenders if they were happy with the outcome and stated that yes they were happy. At this point the JLO asked each of the girls that if anything similar happened to any of them in the future to contact him. He stated that the proceedings of the conference were not being recorded and that none of the girls had been in trouble before or had incurred a criminal record as a result of the incident. He acknowledged that it was difficult for all the parties to attend the conference especially for Laura and her parents. The JLO concluded by thanking everyone for participating in the conference and stated that he hoped that some good had come out of the meeting. Paul stated that he had drawn strength from the conference and that beforehand he had not understood what had happened on the night of the incident. He told the participants that Natalie was sorry to have been involved in something, which had brought harm to others, and that in his opinion it meant a lot for the girls to acknowledge each other. The facilitator concluded the conference by thanking the girls and their parents for being present; she wished everyone well for the future and invited everyone to partake in tea and coffee. She stressed that no one was obliged to stay. Natalie and her father left straight after the conference, as they were due to be somewhere else. They indicated that they would have stayed if the conference had started a little earlier. On vacating the room Natalie hugged Laura and once again apologised to her. The post-conference social lasted for more than half an hour and everyone partook in refreshments. The participants talked freely among themselves about various issues. They all acknowledged that restorative justice was a good way of dealing with offences committed by juveniles. As the remaining offenders departed they all apologised to Laura and gave her a hug. They promised one another that if they came across one another in the street that they would smile/nod and walk on.

7.8.1. Case Summary This case is unusual as both offenders and the victim were female. In addition, a much wider number of people were involved as most of the parents of the offenders were present. Also, some of those involved were absent. The functionalist roles of the victim were adopted by the young female victim and her boyfriend. This created another interesting dynamic as there were wider issues involved. Attempts at both offering and receiving

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restoration were mixed. The parents attempted to provide an authoritarian backdrop; however, there was no consistency in their contributions. Finally the JLO and the facilitator provided a neutral context for this larger group.

7.9. CASE STUDY 6: RESTORATIVE CAUTION, BRAY, CO WICKLOW This case involved three youths (one of them the victim’s brother) taking a car without permission and driving it to a local viewing point. The driver did not have a drivers licence nor was he covered by any insurance. Present at the conference were the facilitator, the JLO, the three offenders, their parents, the victim and her parents. It was clear before the conference began that the parents of the offenders were friends with each other. This created a less formal atmosphere than is normally experienced at restorative events. It also became clear that the parents of the victim and the offender who was driving were present to support both of their children. The facilitator began the conference by thanking all of the participants for being present. He introduced the JLO and informed the participants that he was also a JLO but for a different area. The facilitator stated that the purpose of the conference was to focus on the offenders in relation to the car and not on their good or bad points. He added that none of the participants were present to make judgements about the offenders but to discuss the events, which occurred on the night of the incident. The facilitator told the conference that the offenders had willingly admitted involvement and that they were ‘all free to leave but the matter maybe referred to the courts and dealt with in a very different way’. He stated that if the offenders co-operated then the matter could be resolved by the end of the conference. The facilitator began the process of finding out what occurred on the night of the offence by asking Glen, the driver of the car and the brother of the victim, under what circumstances had he taken the car without asking. Glen explained that it was ‘a spur of the minute thing’ and that the other two offenders and he had ‘all been thinking about it for a while’ and that when they had mentioned it to one another and that it had ‘just happened’. The facilitator asked Glen for what reason had he taken the car out.

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Glen replied that he had just ‘wanted to take it out’. The facilitator then asked him had he ever driven before. Glen replied that he had driven his father’s car ‘up and down the lane’. When Glen was asked how he felt now about what he had done. Glen said that he felt that it was ‘stupid and very dangerous to drive without a licence’. The facilitator asked him who had been affected by his actions. Glen stated while looking at his sister Anna, that it was Anna who had been the most affected by his actions. When Glen was asked what he thought would have happened if the car had been crashed, he stated that he did not think that he would be at home but would probably be in hospital having to eat hospital food. Glen’s mother Joan interjected at this point and stated that as far as she was concerned trust had been broken with Glen and that she believed that he should have been more responsible. Joan explained to the participants that Glen suffers from Hyperactivity and that since he has been put on new medication that his concentration is better and that he is less impulsive. The facilitator asked her was there any negative effect from the new drugs. Joan replied that there were no side effects; she added that with the new medication Glen could ‘control his emotions better and has now realised that taking his sister’s car without asking was the most stupidest thing to do and that he could have killed someone’. The facilitator moved on to Noel a friend of Glen who was also in the car on the night of the offence sitting in the back. The facilitator asked Noel how he had become involved in taking the car. Noel stated that the car had been ‘just there’ and they had ‘decided to take it out’. The facilitator asked him what he thought were the consequences of his actions. Noel replied that he had not thought about what could have happened when they took the car. The facilitator asked him had he thought about it since. Noel replied that he thought about what could have happened and said that they were lucky that they were not involved in an accident or crashed the car. Noel added that his actions on the night of the incident had affected his relationships with his parents, family and friends. He stated that since the incident there was tension in his house and he felt under pressure as a result of having to be home earlier. The facilitator thanked Noel for his contribution and told him that he would return to him at a later stage in the conference. The facilitator then asked Aaron the third offender what part he had played in taking the car. Aaron explained that he ‘was out with the lads’ and that they had been talking about taking the car for a day or so beforehand.

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Aaron stated that when Glen had pulled up beside him in Anna’s car he just got in. He added that he knew that the car was stolen and who owned it. The facilitator asked Aaron at this point what he had thought after they had taken the car. Aaron stated that he felt stupid for not realising what could have happened, that his actions had affected his whole family as well as Glen and Noel. Aaron told the conference that since the incident he felt that his own family and Noel and Glen’s families did not think much of him and he was sorry because they had all known one another for years. The facilitator asked Aaron what he had learned from the incident. Aaron replied that he had ‘learned to stay out of trouble, not to do something stupid like that again and to learn from (his) mistakes’. The facilitator thanked Aaron for his contribution and then moved on to Anna, the victim. He began by asking Anna what was her reaction when she became aware that her car was gone and that it was her brother and his friends who had taken it. Anna stated that her first reaction was how Glen had got the keys. She stated that she had hidden the keys from him and the only way he could have started the car was by ‘hot wiring’ it. Anna added that she found it difficult to comprehend how Glen had driven off in the car without being seen by her as she was in the house at the time he took the car. She told the conference that she was shocked and disappointed that her brother took the car and that the car was her first, and she was very proud of it. The facilitator asked Anna was the hardest part for her the fact that a member of her own family had taken the car. Anna stated that this was the case and mentioned that even though she and Glen may fight that she would still trust him but that since the incident that trust had not been restored between them. Anna also stated that for her that it was not the fact that the car had been taken that was upsetting, but that the boys could have hurt or seriously injured themselves. The facilitator thanked Anna for her contribution and moved on to her and Glen’s mother Joan. Joan began by explaining to the conference that she was there to support both Glen and Anna. She stated that on the night of the incident that she had been trying to call Glen on his mobile phone, as she could not see him outside the house and that he was out later than usual. She told the participants that when she heard that Glen had been arrested that she nearly had been arrested herself when she went to the Garda station. She stated that on the night she ‘could have killed him for being so stupid’.

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Joan explained that Glen often sat in Anna’s car listening to music and that the first thing Glen was likely to do when he got some money together was buy a car. Joan stated that on the night of the incident that she was so annoyed with Glen that she could have ‘boxed his head off’. She said that if anything had happened to the car that Anna would have had to pay for the damage. She added that this was the first time that Glen had done anything of a criminal nature and that in her view it would be his last as it is important for children to be brought up well especially in current society. She reiterated that she could not believe that Glen had taken Anna’s car. She said that she was very embarrassed that her own son had stolen his sister’s car and brought two of his friends out with him. The facilitator thanked Joan and then asked Joe, Glen and Anna’s father to give his views on the incident. Joe explained that he had served for years in the army with Noel and Aaron’s fathers. He stated that he ‘thought the lads were good lads’ but that they had let them down. He said that he was very disappointed when he first heard about the incident and he ‘thought that the lads would have had more sense and maturity’. He said that what particularly disappointed him was the fact that the three lads used to hang around his garage and he thought that he knew them better. He told the conference that the hardest thing for him was the fact that Glen had stolen the car, driven it without insurance and without his sister’s permission. And that if anything had happened to the car that she would have had to pay for it. Joe told Glen that he was lucky that the guards had caught them before anything serious had happened as he was applying for a position in the army. Joe concluded that the three offenders were too immature to take the car and that they should realise this and also the consequences of their actions on the night of the incident. The facilitator thanked Joe and asked Pat, Noel’s father how he felt after hearing about the incident. Pat explained that at first he thought that it was a joke and when he heard that it was true he could not believe it. He mentioned two Gardaı´ who had been killed by joy riders on the Stillorgan dual carriageway. Pat told the conference that he was disappointed with Noel that he had been involved in something so dangerous that had serious consequences. At this point, Pat looked at Noel with some disgust and told the conference ‘trust Noel to let the family down’. The facilitator then asked Pat what were the main issues for him. Pat replied that getting over the shock of incident was difficult and the fact that the boys could have killed someone and/or themselves.

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He concluded by saying that he thought he had been doing a ‘good job by raising Noel but now that obviously was not the case’. The facilitator thanked Pat for his contribution and moved on to Noel’s mother Cora. Cora told the conference that she was shocked that the boys had planned to take the car out and that it was not a ‘spur of the moment thing’. She said that one of the boys should have been mature enough to tell the others not to take the car, that there was a time and place for everything and that the boys should not be in such a hurry to grow up. The facilitator asked Cora how she felt now. Cora said that all the trust she had with Noel was gone. At this point, Joan interjected stating that she did not want ‘Glen or the others boys to be sent away’. Cora retorted that they had been joyriding and that all three boys had been responsible not just Glen. The facilitator then asked Cora what were the main issues for her. Cora replied that Noel would have to prove to her that he could be trusted again and that this could not just happen overnight. Cora stated that in order for Noel to do this he would have to put something back such as go fishing with his father or help out more around the house. When the facilitator asked Paula, Aaron’s mother how she felt when she became aware of the incident, she said that she felt like she was going to die and that she could not believe it. Paula told the conference that she did not want to be at the meeting and that she never wanted to at one again. The facilitator at this point asked Paula what she thought was the hardest part of dealing with the incident. Paula stated that she was disappointed with Aaron for taking the car, that the trust they once had was gone and that it would take a long time to restore. She added that there was tension in the house and that she was upset that she had to telephone Aaron’s father when he was on duty on the night of the incident. She reiterated that trust was broken and that she was finding it difficult to entertain Aaron at home because he was not allowed out after a certain time. The facilitator asked Paula what were the main issues for her. She stated that trusting Aaron in the future was the biggest issue for her. She said that if Aaron did anything similar again that ‘she would kill him’. Paula concluded by telling the participants that Aaron had said that ‘he felt dirty’ on the way to the conference. The facilitator thanked all the participants for their contributions and asked Anna what she would like to see come out of the conference and did she have any expectations. Anna asked the three offenders ‘not to do anything like taking someone else’s car without permission again’.

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She told them that it was a ‘stupid thing to do and you all should learn from it, cop on and take responsibility for your actions’. The facilitator asked the offenders at this point did they agree with what Anna was telling them. Glen stated that yes he did and that he would never dream of taking another car without the owner’s permission again. The facilitator told the offenders to think before they act and acknowledged that ‘life is difficult enough without inviting trouble’. Anna asked the offenders to think about the consequences of their actions and whom it was going to affect. Noel stated that he was not going to take another car out again until it was his own, taxed and insured. Anna responded that it was not only the car that was the issue but that the boys should think and learn from their mistakes. Joan agreed with Anna and told the boys that if they did not learn from their mistakes that they would not be around in the future. The facilitator thanked everyone for their input and stated that the time had come to formulate a plan of action for the offenders involving everyone present at the conference. He stated that it would give the boys the opportunity to ‘make good what they have done’. Glen, Aaron and Noel all nodded their heads in agreement. The facilitator explained that the agreement would be in writing and would require all participants’ signatures, be realistic and straightforward for all. The facilitator commented that the agreement would put ‘extra responsibility on the lads’. The facilitator asked JLO was there anything that she would like to be included in the agreement. The JLO answered that the boys should be required to apologise to Anna both verbally and in writing. The three offenders said that this was ‘okay’ with them. Aaron told Anna at this point through tears that he was very sorry. The JLO told the conference that the offenders were lucky that there were only three families that had been affected by the incident. He added that they were even more fortunate that they had been caught by the guards fourteen minutes after the car had been taken. The JLO informed the participants that the car had been taken at 11pm and that they had been caught fourteen minutes later by a Garda patrol car that was checking the car park where they had pulled in. The JLO asked the offenders; at this point what were they planning to do with the car. Glen stated that they were going straight home from the car park. He explained that they had been having a cigarette in the car and that when he went to put it out the window he saw the patrol car come through the car park and he panicked.

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The JLO stated that he would like to pay compliment to the families especially the parents of the offenders for their co-operation. The facilitator then asked the JLO what he thought should be included in the agreement. The JLO stated that the offenders should make themselves available once a month to meet with him either in their own homes or in the local Gardaı´ station. Furthermore, the JLO stated that the offenders should take responsibility for their actions and stay out of trouble in the future. Anna asked at this that the offenders’ thought about the consequences of their actions be one of the points included in the agreement. The facilitator asked the participants if they had anything more to add or any final comments to make. Joe stated that he hoped the boys would try to be a ‘little bit more mature in the future’. Also he said that they were unfortunate on one hand to have been caught but were fortunate on the other. He asked them to realise that they did not know everything and that if they behaved responsibly then others would treat them with respect. Pat stated that he hoped the boys had learned their lesson and that the incident would not be repeated in the future. Cora stated that she hoped in the future that the boys would be able to say no to themselves and others and they would realise that there was a time and a place for everything. Joan stated that she had nothing more to add. She commented that she missed the trust she had with Glen and that she hoped to rebuild it in the future but not ‘too much too soon’. Paula stated that she hoped the boys had learned a lesson from the experience. She stated that Aaron ‘would not be trusted for a while’. The JLO commented that from the first meeting with the offenders he had seen a change in their attitudes and that it was important for him to get a sense of how the parents felt about the incident. The facilitator at this point stated that it was the ‘best thing’ for the boys to have been caught. He added that they accepted responsibility and acknowledged that it was difficult for all participants to be at the conference. He brought the conference to a close by thanking all of the participants for being present and asked everyone to remain while the agreement was being prepared. The post-conference social lasted half an hour and concluded with all participants signing the agreement. There was little awkwardness during the post-conference social; this was not surprising as the participants were friendly and at ease with each other.

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7.9.1. Case Summary This case was interesting as the victim and the main offender were siblings. All the parents who participated provided a strong authoritarian role by expressing significant levels of disgust, anger and dissatisfaction at the behaviour of their children. The victim’s role in this case was a dual one, as they expressed anger but also initiated restoration. The offenders fulfilled their role by expressing remorse and offering restitution. The Juvenile Officer and facilitator in this case provided a good context for such restoration to be achieved on a neutral footing.

7.10. CHAPTER SUMMARY This chapter examined the methods and processes surrounding the operation of restorative events. It has outlined the process of functionalist exchange. It presented and explored the methodology of family conferencing and provided an understanding of how such conferences operate from a functionalist perspective. The chapter then introduced the six case studies of restorative events in the Dublin region and provided an understanding of the significance of the functionalist exchange that occurs as a part of these processes. The chapter outlines the manner in which the researcher adopted different roles as a participant or non-participant at various stages during the three phases of restorative conferencing events covered in this chapter.

CHAPTER 8 DISCUSSION AND RECOMMENDATIONS

8.1. INTRODUCTION This chapter provides the conclusion for the study. It links the practitioner’s perspective with functionalist exchange through Tomkins’ (1962) Affect theory and Nathanson’s (1992) Compass of Shame. The chapter establishes an understanding of restorative justice’s potential for resolving conflict as a community based problem-solving approach to crime. The chapter outlines key concepts in restorative justice as put forward by theorists such as Braithwaite, Daly and Johnstone. It presents an analysis of the issues that emerge when applying the theoretical and practitioner perspective to restorative conferencing events. The chapter outlines the significance of functional roles and socialisation in the creation of a framework of behaviour experienced by participants during restorative conferencing events. This socialisation process is manifested in the behaviour of the participants throughout the six cases studies observed in this study. Each case study demonstrates various responses to the context of the restorative conferencing event, the role adopted by different participants and the shifts that occur during the pre- and post-conference phases. The key findings presented in this chapter are based on the functionalist exchange, which underpins the shifts that occur in the three phases of restorative conferencing events. The chapter goes on to present findings on the significance of restorative justice as a victim-centred process within the criminal justice system as a diversion, as an alternative sentencing process or as a healing event for victims and offenders. The chapter also presents findings around the rewards and recognitions for victims and offenders, the implications for best practice 201

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in restorative justice and of restorative justice as a solution to in changes in social regulation in society. The chapter goes on to present a section on subsequent developments on restorative justice, a discussion of limitations of the cases observed, enabling and constraining factors and the benefits of restorative justice for social regulation in the Republic of Ireland. Finally, the book presents recommendations for restorative justice as a ‘blueprint’ for the future for both An Garda Sı´ ocha´na and other agencies in the Republic of Ireland.

8.2. PRACTITIONER’S PERSPECTIVE One of the key elements underpinning this study has been the application of the practitioner’s perspective. This understanding is based on the role of the conference facilitator. This study has developed a broader perspective on restorative justice conferencing in the Republic of Ireland by adding the practitioner perspective to the theoretical understanding of restorative justice theory. The key link in this bridging of theory and practice, which underpins the findings of the six case studies, is found in Tomkins’ (1962) Affect theory and Nathanson’s (1992) Compass of Shame. By examining the findings of the six case studies in relation to this perspective or from restorative justice practice, a clearer understanding of the impact and outcomes of restorative justice theory and practice’s potential is established through the study. Essentially, this triangulation of restorative theory and practice provided the research with a framework for a deeper examination of the functionalist roles of the key participants in restorative conferencing events. In order to establish this understanding of the significance of each functionalist role within the restorative justice context, an analysis of the extent of shame, remorse and restoration achieved by each participant in the case studies has been undertaken. This form of organic research is facilitated by the case study methodology employed in the study, which allows for a systematic analysis of the contributions and responses of participants in the cases outlined in the work. Theoretically, applying a functionalist theoretical perspective to the emotional intelligence on display throughout the restorative conferences

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presented through the case studies provides a better sociological understanding of the significance and importance of those roles on individuals, families and wider society. Furthermore, a ‘framework of functionalist exchange’ is established, based on the extent to which the key aspects of Tomkins’ (1962) and Nathanson’s (1992, pp. 84 88) Affect theory and Compass of Shame are displayed. These key expressions are divided into positive or negative sections, including ‘Interest Excitement’ and ‘Enjoyment Joy’ as the positive effects, ‘Surprise Startle’ as the neutral affects and ‘Shame Humiliation’, ‘Distress Anguish’, ‘Fear Terror’ and ‘Anger Rage’ (Nathanson, 1992) as the negative effects displayed during restorative conferencing events. In order to develop this framework of functionalist exchange further, Nathanson’s Compass of Shame (1992) four points on this compass ‘Withdrawal’, ‘Attack Self’, ‘Attack Other’ and ‘Avoidance’ is also utilised in the analysis of the six case studies. By applying these expressions of functionalist exchange to the six case studies undertaken as part of the book’s fieldwork, a link can be formed between the practical perspective and the concept of functionalist exchange by examining the existing literature of restorative justice; the work of Braithwaite on ‘reintegrative shaming’, in particular, is very relevant. Restorative justice is a social process and understanding the nature of functionalist exchange as a ‘blueprint’ (Johnstone, 2011; Zehr, 2005) is a key area that this book addresses. 8.2.1. Restorative Justice’s Potential for Resolving Conflict In general, the restorative justice philosophy is based on three beliefs: • Crime results in harm to victims, offenders and communities • Not only Government, but victims, offenders and communities should be actively involved in the criminal justice process • In promoting justice, the Government should be responsible for preserving order (Van Ness, 1996) These general beliefs lead to a number of common elements among restorative justice programmes. The key features of the concept of restorative justice can be outlined as follows: It is a process whereby parties with a stake in a specific offence resolve collectively how to deal with the aftermath of the offence and its implications for the future. It is a

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problem-solving approach to crime, which involves the parties themselves, and the community generally in an active relationship with statutory agencies. It seeks to balance the concerns of the victim and the community with the need to reintegrate the offender into society. It seeks to assist recovery of the victim and enable all parties with a stake in the justice process to participate in it. (Aertson, 1997, p. 14)

Braithwaite (1989) has been to the forefront in the study of restorative justice, especially through the means of his concept of ‘reintegrative shaming’. He contends that there are many reasons for the criminal justice system failing in its efforts to control levels of crime such as the stigmatisation of criminals. Braithwaite’s theory of ‘reintegrative shaming’ holds that it is the societies with the lowest crime rates that have the ability to shame criminal conduct most effectively (Braithwaite cited in Johnstone et al., 2003), as there is an important difference between shaming a person and stigmatising them.1 Training practitioners to deal with ‘reintegrative shaming’ includes preparing counsellors to understand that disapproving of the wrong of the act while treating the person as essentially good is a significant aspect of restorative practice. Reintegrative shaming in summary relates to a strong disapproval of the act but conveying and articulating a response that is seen to respect the offender (Braithwaite, 1989). Practitioners must also be prepared to deal with victims of different ethnic backgrounds and cultures, and restorative justice aims to restore social support through institutionalising the gathering around familiar cultural mores during a time of crisis (Braithwaite, 1989). This can reduce racial tensions by removing the sense of insecurity and disempowerment of both victims and offenders through a process of deliberative societal democracy. Proper training for racial integration through restorative justice can design institutions so that concerns about issues like unemployment have a channel through which they can flow from discussions about local injustices up to national economic policy making debates (Braithwaite cited in Johnstone et al., 2003). Braithwaite (2003) doesn’t advocate that society abolishes the concept of crime or the key elements of state criminal justice systems which have been globalised, rather he believes in shifting power from them to civil society, retaining key elements but shifting power away from central institutions and checking power that remains by deliberative democracy from below, for example, self-regulatory practice which restorative justice enables (Braithwaite cited in Tonry et al., 1998). Daly (2003), in her article on ‘Restorative Justice: The Real Story’, addresses the problem of defining restorative justice.

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She states that this is not easily done as it encompasses a variety of practices at different stages of the criminal justice process. She also points out that, in virtually all-legal contexts involving individual criminal matters, restorative justice practices have only been applied to those offenders who have admitted to an offence. Therefore, it deals with the penalty phase of the criminal process for admitted offenders, not the fact-finding phase. Daly’s (2003) work differs greatly from Braithwaite’s (1989) largely due to the fact that she deals with myths of restorative justice and furthermore she uses data obtained from observing conferences to achieve her objective. She discovered that participants engaged in a flexible incorporation of multiple justice aims which included some elements of retributive justice, censure for past offences, some elements of rehabilitative justice in the form of asking questions such as what could be done to encourage future law abiding behaviour and some elements of restorative justice such as how the offender might make up for what they had done to the victim (Daly cited in Johnstone et al., 2003). As a result of her findings, Daly (2003) was provoked to consider the relationship between restorative and retributive justice and the role of punishment in restorative justice. She states that because the terms ‘retributive justice’ and ‘restorative justice’ have such strong meanings and are largely used by advocates as metaphors for the bad and the good justice, perhaps they should be analysed in a way that explains current and future justice practices (Daly cited in Johnstone et al., 2003). Daly does not concur that the practices of restorative justice, which are in operation in some jurisdictions, are replicas of pre-modern forms of justice, rather they are new justice practices, which have many bits of ‘old’ in them. By the old justice, Daly refers to modern practices of courthouse justice which permit no interaction between victims and offenders, where legal actors and other experts do the talking and make decisions and whose stated aim is to punish or, at times, reform an offender. By the new justice, she refers to a variety of recent practices which bring victims and offenders, as well as others, together in a process where both lay and legal actors make decisions and whose aim is to repair harm for victims, offenders and other members of the ‘community’ in ways that matter to them. Therefore, as Braithwaite and Petit contend, restorative justice has a better chance than ‘just deserts’ of being made equally available to both rich and poor (1990). In the alienated urban context where the existence of an ethnic community is not always recognised in a satisfactory way, a criminal justice system

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aimed at restoration can construct a community of care around a specific victim or offender from diverse backgrounds. It is a form of social and cultural empowerment, which permits a wider process of social control (Daly and Braithwaite cited in Johnstone et al., 2003). Braithwaite (1989) further states that restorative justice must be a culturally diverse social movement that accommodates a rich plurality of strategies in pursuit of the truths it holds to be universal. We can achieve this, he believes, by carrying out a culturally specific investigation into how to save and revive restorative justice practices that remain in all societies and how to transform state criminal justice by making it both more restorative and by rendering its abuses of power more vulnerable to restorative justice. Daly agrees with Braithwaite’s ideal of a culturally diverse social movement, and states that the real story of restorative justice offers hope, not only for a better way to do justice, but also for the strengthening of mechanisms of informal social control and as a means of minimising reliance on formal aspects of social control, primarily the machinery and institutions of criminal justice.

8.2.2. Using ‘Affect Theory’ in Restorative Practices While Braithwaite’s theory of ‘reintegrative shaming’ has been to the fore within the field of restorative justice, Sylvan Tomkins’ (1962) theory provides a greater understanding of the benefits of the restorative conferencing process for diverse groups. Tomkins’ Affect theory is based on a psychological theory of human affect. The term ‘Affect’ which Tomkins uses specifically refers to the biological portion of emotion or, what he calls, the hard-wired, pre-programmed, genetically transmitted mechanisms that are present in each human being. These mechanisms, when triggered, precipitate a known pattern of biological events. However, it is also acknowledged that, in adults, the affective experience is a result of both the innate mechanism and a complex system of nested and interacting ideo-affective formations. Tomkins’ theory has been analysed and presented in more detail through the work of Nathanson (1992). Affect theory is a very effective tool in explaining the success of the scripted conference. The conferencing process encourages free expression of affect, which is the biological basis for emotion and feeling. The conference provides an opportunity for participants to express true feelings while

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minimising negative effects and maximising positive effects. According to Tomkins’ theory this kind of environment is the ideal setting for healthy human relationships. The restorative-based conference script utilises open-ended questions, which allow for the expression of the nine basic affects, which Tomkins identifies as being present in every human being. These nine affects are listed as Enjoyment Joy, Interest Excitement, Surprise Startle, Shame Humiliation, Distress Anguish, Disgust, Fear Terror, Anger Rage and Dissmell. Tomkins presents most of these affects as word pairs which name the least and the most intensive expressions of that affect. When a conference begins, participants are usually feeling disgust, dissmell (which originally originated as a response to offensive odour), anger rage, distress anguish, fear terror and shame humiliation. These six negative effects are the most obvious when participants take their seat in the circle and when the conference itself begins. When participants respond to the scripted questions such as, What happened? What have your thoughts been since? How has this affected/harmed/hurt you and others? and What has been the hardest/worst thing?, they may express all or some of the negative effects and feelings. Anger, distress, fear and shame are diminished throughout the sharing process among participants. Their expression helps to reduce the intensity of the affects, and may be applied with relevant cultural sensitivity. As a restorative conference proceeds, participants experience a transition, which is characterised by the neutral effect of surprise startle (Nathanson, 1992). Victims, offenders and their supporters are usually surprised by what people say during the conference and how much better they begin to feel as a result of the expressions of affect by others. This may also reduce ethnic tensions. When the conference reaches the agreement phase, participants are usually expressing positive effects of interest excitement and enjoyment joy. This is particularly evident when participants are asked to respond to the following scripted questions such as What do you think/feel about what has been said? What do you think about what has happened here? What would you like to come out of the meeting? and so on. People recognise the effects seen on others’ faces and tend to respond to the same effect. When one is angry, others become angry. When one feels better and smiles, so do others. Tomkins refers to this as ‘affective resonance’ or empathy. Through this ‘affective resonance’ conference participants make the emotional journey together feeling each other’s feelings as they move from anger, distress and shame to interest and enjoyment.

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For the conference, the prospective facilitator can take comfort and gain confidence in understanding that Tomkins’ (1962) Affect theory is reliably demonstrated by the scripted conference process. Participants consistently move from negative to positive feelings in the safe and structured environment created by the script (O’Connell, Wachtel, & Wachtel, 1999). Nathanson’s (1992) Compass of Shame makes it very clear how people from diverse backgrounds react to each other and express their shame. Nathanson argues that people usually react with one or more of four general patterns or ‘scripts’ which he depicts as directions on a compass: attack other, attack self, withdrawal and avoidance. For example, when parents of offending children blame and criticise the school or the police officer when confronted with an offence, they demonstrate the attack other response. These parents of offenders try to avoid shame by putting the responsibility on others. This is a common response to shame demonstrated in today’s society. Another contemporary response is avoidance through alcohol, drug abuse or thrill-seeking behaviour such as joy riding. Several decades ago the common responses to shame were attack self and withdrawal. In attack self, the shamed individuals are self-punishing and unreasonably hard on themselves. In withdrawal, the shamed individuals hide as a result of being overwhelmed by the shame. While these responses to shame are normal, they are harmful and need to be addressed (O’Connell et al., 1999). Conferences can help people move beyond the Compass of Shame through acknowledgement and expression of shame and through subsequent reintegration. Due to the fact that the restorative conference affirms the intrinsic worth of the wrongdoer and condemns only the objectionable behaviour, parents and offenders feel less threatened and more equipped to acknowledge responsibility. O’Connell et al. (1999) further argues, along with other theorists such as Braithwaite (1989) and Daly (2003), that victims also experience shame. Victims may blame themselves for the incident, withdraw and hide their feelings and sometimes distract themselves. Victims may also ‘lash out’ at others close to them who are not responsible for the offence. In providing an outlet for expressing feelings and moving beyond shame to resolution, restitution and reintegration, the restorative conference is as important to victims as it is to offenders (O’Connell et al., 1999). This process paves the way for improved cultural understandings in place of mistrust and misunderstandings from poorly informed cultural assumptions.

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8.3. SOCIALISATION & FUNCTIONAL ROLES IN RESTORATIVE CONFERENCING This section addresses issue of youth justice in the context of functionalist exchange. The issue of gender relations and family socialisation manifest themselves within the context of restorative events. There are implications for youth justice and restorative justice through understanding the role and functions of gender relations and family socialisation within the layers of the engagement with the restorative conferencing process. According to sociological theorists (Mead, 1934), socialisation plays a prominent role in the creation of norms, values, behaviours and social regulation in different circumstances within society. In addition, we are conditioned into gendered roles and responses. This study has demonstrated that the responses and reactions of individual family members reflect the different roles that the family assume. Many of the cases discussed in this book play themselves out according to the gendered and family responses of the individuals involved; in addition the ‘Facing the Demons’ and ‘Burning Bridges’ films provide us with interesting examples of gendered responses to restorative events. In a number of cases, the various responses were proven to have a gendered basis. For instance, the response of the offenders’ mothers assumes the role of reintegrative shaming as outlined by within the context of Braithwaite’s (1989) reintegrative shaming (see also Daly, 2002). On the other hand, the role of the father is less focused on shaming and more focused on discipline and protection of the family unit. Siblings of the offender/victim often have an important role to play. The role of siblings in restorative events is also shaped by gender. The case of an incident between siblings highlights further aspects of the gendered relationship within the context of the family. This case demonstrates an instance where the mother wanted to shame the son while the father wanted to protect the daughter. The findings of this study can be further established through the individual case studies presented in the next section, which deals with each case covered in the study. In addition, the findings present that these cases have the potential to advance the debate about restorative justice and the implications for policy and practice in the Republic of Ireland and elsewhere across a range of agencies and services. The case studies will also address the research question How does restorative conferencing for young offenders facilitate an exchange process whereby forms of reparation and social regulation maybe achieved?

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8.3.1. Restorative Caution, Swords, Co Dublin This case involved an assault by a young male on another young male, which occurred without any particular motive in a parkland area. The participants comprised the offender, the offender’s mother, the victim’s parents, the facilitator and the Juvenile Liaison Officer. Two participants were absent, the victim, who felt uncomfortable at being present, and the offender’s aunt, who was unable to attend the meeting. The victim’s parents decided to come as they felt that they could still get something out of the conference without their son being present. This case study demonstrates definite gender and family socialisation processes within the conferencing event. These are demonstrated through the initial inclusion of the Aunt, in addition the crime was not reported to the parents by the victim but rather via the victim’s sister demonstrating an example of gendered reaction from female siblings. In relation to the parents, both attended the event despite the concerns of the victim himself. Both parents demonstrated their protective familial roles. The mother’s behaviour is interesting here, as on hearing of her son’s injuries, she did not go to the hospital to see him, as, she was told by her daughter that he ‘looked bad’ and was cut and bleeding. The mother expressed her concerns by stating that she didn’t expect it to happen but that it could have been worse. Thus are demonstrated her primary concern for her child’s well-being. The fact that the offender was being looked after by his grandmother at the time reveals another layer of family and gendered roles. The role of the offender’s mother is also interesting here. The mother appealed to the victim’s parent’s that their own son was attacked a number of times previously. The mother also contextualised the incidence within the context of young adolescent male behaviour in contemporary society by stating that there was alcohol involved. In other words the mother was appealing to the conference participant’s sense of an understanding of young adolescent male potential misbehaviour. The father’s response provides an understanding of a typical male response to this type of situation. The initial response was to go the Garda Station rather than the hospital, which indicates a desire for vengeance and justice rather than a concern for the victim’s condition. In addition, the behaviour of the offender and the victim in this case reflects on their gender. In the first instance, the victim did not attend, as they were not comfortable, reflecting a concern not to face further humiliation or confrontation.

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The offender’s contributions were minimalistic and indecisive reflecting their guilt and shame within the conference. Also, his contributions and presence were met with hostility by the victim’s parents, which indicate that their perspective on the offender was not demised by their mother’s appeal for empathy. In many ways, these reactions provide a good example of the real and potential benefits of restorative conferencing, while the victim was not present, his parents were able to vent their anger and frustration while both the offender and his mother had to engage with this and present themselves with some remorse. However, the levels of remorse shown in this case were quite limited. Therefore, the entire basis of this restorative event can be said to have a family and gendered socialisation context as demonstrated by the various responses given and the roles adopted by different participants who reverted to family and gendered positions throughout the conference.

8.3.2. Restorative Conference, Stepaside, Co Dublin This case provides a clearer example of expression of remorse within a restorative event. The case involved larceny and damage to several motor vehicles in a residential area. The offender (aged 15) had been cautioned with another juvenile for the same offence on a previous occasion. The Juvenile Liaison Officer felt that the victim/offender in this instance would benefit from a restorative conference. The participants on this occasion comprised of one of the offenders (it was implied at a later stage in the conference that the other offender was experiencing family problems at present), the offender’s mother, one of the victims, the Juvenile Liaison Officer and a facilitator. The offender’s father was not present as he was attending a school reunion. In the first instance, the offender expresses full remorse for his actions early into the conference both verbally and physically. By crying, the offender displayed a more childlike response to his public shaming as opposed to the more macho posturing displayed by the offender in the first case. The family context in this case was also different as the offender’s family were more affluent. In crying, the offender demonstrates unfamiliarity with being in trouble due to his family’s background. The offender’s mother’s response is also indicative of someone expressing genuine remorse. She expressed her upset and disappointment readily

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and honestly throughout the conference. The father also expressed his sense of public shame by not attending the conference. The absence of the offenders’ fathers as an authority figure in both cases (for different reasons) highlights a similarity in the impact that a father’s absence can have on young male adolescent’s behaviour. This functionalist perspective of the father’s role is conversely understood by the absence of the father in both cases. Furthermore, within the context of social control, the father’s absence can be seen to be a contributory factor in the deviant behaviour of the young male offender. Moreover, the response of the mothers in these cases provides us with a gendered understanding of the challenges facing the mother of a young male adolescent in contemporary society. In fact from a functionalist perspective, the role is fulfilled in this case, by providing paternalistic advice. On other occasions, when the father is absent, the facilitator or Juvenile Liaison Officer fulfils the father’s role.

8.3.3. Restorative Caution, Shankill 1, Co Dublin The third case was also unusual as the victim was not in attendance. In this case, a young male adolescent hit an elderly woman with a rock as she was stepping off a train. The offender’s father in this case was also absent to a degree as the offender’s parents were separated and the offender was being looked after by his grandfather (father’s father). However, the father came to play a central role in the conferencing process. As the victim was not present, the father tried to gain empathy by addressing the wider social context of what had occurred. From a functionalist perspective, the involvement of external agencies presents us with an interesting contribution from civil society. Furthermore, it was the only case where the arresting Garda was present. The presence of the arresting Garda represents a bridge between civil society and the legal framework of the state. In the Irish case, a multi-agency approach calls for the participation from the justice system, the social care and health systems. However, not all of these were provided in the above examples. The range of emotional responses from the offenders and offenders’ supporters in each case provides and understanding of the need for further support services, for example counselling. From the perspective of the victims and their supporters, each case provides an understanding for the restoration and empowerment of the victim’s and sense of satisfaction from their participation.

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8.3.4. Restorative Caution, Blackrock, Co Dublin This case involved two youths breaking and entering a vehicle, causing damage to the vehicle with intent to steal the same in the early hours of the morning of 6 April 2003. The participants present included the Facilitator, Juvenile Liaison Officer, offenders, their mothers, the victim, and her partner. The fourth case provides further evidence of consequences of the offenders’ fathers being absent. This case is interesting due to the fact that here the offenders involve a male and a female. From the outset, it was clear that one example of socialisation was at play in this case that of peer socialisation. Both offenders were reluctant to provide further details of the case that allegedly involved other youths. The dynamic of this conference was established by two key events, firstly, a domestic incident involving the ‘barring’ of the male offender father from the family home just before the conference. Secondly, the strong response from the female offender’s mother provides a further example of the difficulties facing a single woman raising a young female in contemporary society. The contrast between the female offender’s mother and the female victim is notable in this case. While the female offender’s mother made little reference to the mother, the female victim, on the other hand, provided a degree of advice for the offenders that seemed to be lacking in their own family background. This case is a very good example of the community restorative aspect that this type of conferencing can provide.

8.3.5. Restorative Conference, Shankill 2, Co Dublin This case involved bullying culminating in an assault perpetrated by five girls in the grounds of a Church during summer break. The participants present at the conference were the facilitators, the Juvenile Liaison Officer, the victim, her parents, her boyfriend, the five offenders; four of the offenders had one parent each present. The fifth case provides an example of the benefits of restorative conferencing, where the roles of victims and offenders can be interchangeable. In this case a female victim had been subject to assault and bullying by five of her female peers. The functional roles in this instance moved beyond that of the family and into a wider peer and community context, due to the number of participants involved. The female victim was supported by her parents and her boyfriend, providing a full representation of the family unit. On the other side of the circle, one parent each represented the four female offenders two of the

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offenders were supported by their mothers and the other two were supported by their fathers except for one offender whose parents were unable to attend. This case presents an interesting example of role reversal, for example, the fathers in this case were more supportive of the conferencing process, whereas the mothers were advocating the individual daughter’s innocence. Furthermore, both of the fathers have indicated that the conferencing process was beneficial. On the other hand, the offenders’ mothers were inclined to blame the victim for not letting the incidence go. The victim’s father expressed confidence and satisfaction with the conference in a similar way to his counterparts on the offender side. The victim’s mother had little to say in this case perhaps but expressed a desire that the conference would help in her daughter’s rehabilitation. The role of the victim’s boyfriend in this case is also interesting; firstly, he was an ex-boyfriend of one of the offenders. Also, he was himself caught up in a violent incident on the same evening. He expressed no opinion on the conference itself.

8.3.6. Restorative Caution, Bray, Co Wicklow The last case in the context of the family is perhaps the most interesting. This case involved three youths (one of them the victim’s brother), taking a car without permission and driving to a nearby seafront car park during the night. Present at the conference were the facilitator, Juvenile Liaison Officer, three offenders, the victim and two sets of parents and one of the offender’s mother (father was not present as he was on duty). In this case, there was a wider social context in that that the parents of the offenders were friends with one another. This created a less formal atmosphere than is normally experienced at a restorative caution. It also became clear that the parents of the victim and the offender who was driving the car were present to support both of their children. In this way the functional role of the family is demonstrated in a holistic way. The mothers of the victim and offender in this case provided an interesting contribution in relation to the context of the case. This context included significant health factors. The wider social context was established through the fact that the offenders’ fathers had served together in the army. The second offender’s father put the crime in a very serious context (mentioning the deaths of two Gardaı´ killed by joy riders earlier that same year, in this way he assumed the role of the ‘social conscience’) once he became fully aware of son’s

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involvement in the incident. The ‘reintegrative’ shaming was underpinned by his comments that his son had ‘let the family down’. The mother of the second offender also displayed an understanding of a wider social conscience by not allowing the first offender to take the blame for the incidence. She stated that all three were responsible not just him. The third offender’s mother expressed her disappointment with her son, saying that the family and the wider social trust had been broken and that the son felt shamed as a result of the incident. Her contribution also represents an expression of reintegrative shaming. ‘Reintegrative shaming’ also features in the case of the victim. The victim expressed a wider social context through her concern that the offenders could have been injured by their actions. She also expressed a desire that the trust between her and her brother be restored. The victim was provided with assurances from the offenders that they would not do anything like that again in the future without proper motor coverage. This gendered response confirmed by the first offender’s mother, who also expressed some satisfaction in the response of the offender’s. On the other hand, the perspective of the second and third offenders’ mothers was more critical in so far as they expressed a desire for their sons to learn from the experience. There was similarity in the responses from the all the mothers that trust would have to be rebuild overtime and ‘not too much too soon’. In summary, these six cases provide a variety of indicators, which underpin understandings of the functionalist aspect of the restorative conferencing process. Furthermore, the case studies provide a fuller understanding of the significant of gender and family socialisation when it comes to restorative conferencing practice. While these cases provide some evidence that Braithwaite’s reintegrative Shaming occurs during the conference process, this study demonstrates that this process is far more complex than this theory suggests. Moreover, there are other aspects of theory revealed through the case studies, including Marx’s Alienation, Durkheim’s theory of Anomie and some aspects of Feminist theory. There are clear implications of Elias’ civilising and decivilising processes at play here. The use of these functionalist perspectives on these cases provides clear evidence of paternalistic structures, which still underpin family life in Irish society. However, where these do not suffice, it is the pastoral welfare state that fills the gap, particularly in the absence of the father. In conclusion, these cases demonstrate a significant understanding of the impact and potential contribution that restorative justice can provide for society as a whole.

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8.4. RESTORATIVE JUSTICE AND ITS USE IN THE CRIMINAL JUSTICE PROCESS The review of literature on the subject presented in Chapter 3 suggests that restorative justice, in simple terms, is about restoring victims and creating a more victim-centred criminal justice system, as well as reintegrating the offender into the community. Restorative justice has a variety of uses other than in the criminal justice systems; for example, schools could employ conferencing in response to truancy, disciplinary incidents and violence in the school environs. The police may use conferencing as a diversion, as an alternative sentencing process, or as a healing event for the victim and offenders. Juvenile and adult probation officers may respond to various probation violations with conferences. In the workplace, conferencing could address both the wrongdoing and the conflict. In Colleges or Universities, restorative conferencing could be used to resolve incidents on campus or disciplinary violations. In Correctional or Treatment centres, conferencing could be used to resolve the underlying issues and tensions in conflict and disciplinary actions.

8.5. RESTORATIVE JUSTICE DIFFERENT VIEWS FROM THE LITERATURE In the course of the research, the authors found that the principles and philosophies of restorative justice very much confirm what has already been written on the subject. However, the definition of restorative justice contained in An Garda Sı´ocha´na Restorative Justice leaflet is in direct conflict with definitions put forward by restorative justice theorists such as Daly (2003). The Garda Sı´ ocha´na states that restorative justice ‘is not a judicial process’. Daly contends that restorative justice encompasses a variety of practices at different stages of the criminal justice system; she also states that it deals with the penalty phase rather than the fact finding phase of the criminal justice system (Daly cited in Johnstone et al., 2003). Cavanagh (2001) states that restorative justice changes the judicial system by engaging the political strength of victim advocacy. Hence, proving that restorative justice is a judicial process, but it is one that is convened outside of a court environment.

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The researcher, having taken into account what has been written previously about the concept laid out in Chapter 4, has summarised the principles of restorative justice as follows: Crime is considered an act against another person rather than as an act against the state. All parties including victims, offenders, the community and professionals should be involved in the response to dealing with the crime if they wish. Participation of the victims and their perspective is necessary in deciding how to repair the harm caused by the offence. Offenders are made accountable for their actions and are required to accept responsibility and to repair the harm caused to the victims. They may compensate the victims by making reparation or apology or both. Victims are empowered to search for satisfaction through their direct involvement in the criminal justice system. Finally, victims and offenders are reintegrated into society.

8.6. REWARDS AND RECOGNITION FOR VICTIMS AND OFFENDERS In the course of the research, the authors discovered that restorative justice has a number of advantages and benefits over core traditional methods of administering criminal justice. Victims and offenders become key stakeholders in the process; they are empowered to become involved in the criminal justice system. The victim is given an opportunity to address the offender and express the pain that they have suffered as a result of the incident. They may receive an apology, reparation or, in many cases, both. Emotionally, victims receive satisfaction from actively participating in the process. The offender is given the opportunity to atone for his or her behaviour and take responsibility for their actions. It gives both the victim and the offender the opportunity to be reintegrated into society, especially the offenders as they account for their actions. The benefits of restorative practices include: victims and the community are involved in the judicial process. Practices such as restitution, community service, mediation, family group conferencing and victim impact panels are utilised consistent with restorative justice values. Victims are given choices and a sense of control, which decreases fear of revictimisation. Utilising restorative justice processes allows victims and offenders to view the system as fairer overall and also more satisfying. Court caseloads are lowered by utilising a variety of restorative justice processes. The judicial system is changed the by engaging the political strength of victim advocacy.

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8.7. GARDA CONFERENCING/CAUTIONING SERVICE DELIVERY AND QUALITY ASSURANCE The research findings presented in Chapter 8 indicate that the Garda scheme facilitates the following to be restored to the victim: property loss through reparation, injury and a sense of security, harmony based on a feeling that justice has been served, a sense of empowerment and deliberative democracy and social support. Disempowerment is part of the indignity of being a victim of crime. Disempowerment can be linked to the republican theory of criminal justice, which states that a crime should not be defined as a crime unless it involves some domination of us that reduces our freedom to lead life as we chose (Braithwaite & Petit, 1990). It follows on from this that the restorative process allows victims to restore any loss of empowerment as a result of the crime. The Garda scheme through its facilitation of restorative events allows victims, offenders and their supporters to deliberate over the consequences of crime, how to deal with crime and prevent recurrence; it restores the deliberative control of justice by its citizens. This contrasts with the professional justice of judges and lawyers who decide which rules apply to particular cases and then constraining their deliberation with technical debate over the use of those rules. It is difficult to deduce the opinion of the participants of the restorative events observed by the authors, as they, in most cases, were not aware of what restorative justice stood for before the conference/caution commenced. However, at the close of the event, all acknowledge that it was a satisfactory way of dealing with crime. The participants’ acceptance of the restorative process is in line with Consedine’s contention that restorative justice is a process whereby those affected by criminal behaviour, be they victims, offenders, the families involved or the wider community, all have a part to play in resolving the issues that flow from the offending (Consedine, 1990). The Garda Restorative Justice initiative proves that the process empowers victims and offenders to take more central roles in the criminal justice system with the state taking a backseat; it allows restoration of social support. Victims of crime need support from their loved ones during the process of restoration. As the research has shown, they sometimes need encouragement and support to engage with deliberation to restore harmony in their lives. Friends and relatives may sometimes blame the victim or

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commonly are frightened off by a victim suffering emotional from the offence. Restorative justice facilitates the gathering around of friends and relatives during this time.

8.8. IMPLICATIONS FOR BEST PRACTICE IN RESTORATIVE JUSTICE When one takes into account the processes of each restorative event, one can see that there is continuity in the structure of the events. Five out of the six restorative events were held in a Garda Station. Each event commenced with the facilitator introducing the participants to each other and stating the purpose of the meeting, a brief explanation of the principles and the history of restorative justice were given. The facilitators/Juvenile Liaison Officer then introduced the process to the participants as being a new way of dealing with juvenile crime. Following on from this, all participants were given an opportunity to have their say. The facilitators began each event by asking the offenders for their statement of events and in most cases the victims giving their statement followed this. While the facilitators explained to the participants that there were at the conference of their own free will, the offenders were informed that if they failed to co-operate, they could be subject to further proceedings from the courts. This empowered offenders to take control and responsibility for their wrongdoing. Victims and offenders showed one another respect and none of the restorative events focused heavily on the offender as essentially being a ‘bad person’. There was no typical young offender; all of the juvenile offenders came from different backgrounds and different socio-economic groups. The majority of the offenders had never had contact with members of the Garda Sı´ ocha´na or had any previous offences. Offenders appeared to respond well to the restorative cautions or conferences. Levels of remorse were generally higher at the end of the events than at the beginning; the majority appeared to give an overall clear story of the events surrounding the offence and accept responsibility for their actions. The young offenders expressed shame in the conference/cautions and apologised to the victim for the harm they had caused them. However, it is difficult to deduce if the feelings of remorse or shame were genuine or put on for effect.

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The areas from where the juvenile offenders originated are not known for their high rates of crime. When asked during the restorative events the reason for committing offences, the most direct answer given was boredom and a ‘lack of things to do’ in their area. Indirectly, these juveniles were committing offences against other members of their own community largely as a result of a lack of parental supervision and the consumption of large amounts of alcohol. The majority of offences took place on weekends, and in the majority of cases, either the parents did not know where their children were on the nights of the offences, or believed them to be somewhere else, such as staying with a friend. The alcohol was usually acquired from asking older adolescents or adults to go to an off licence for them. The predominant category of alcohol consumed was ‘Alco Pops’. The offenders, ranging in age from 14 16, are at a stage in their lives, which can be referred to, as ‘in between’, that is, they are no longer children but are not quite adults as well. They are too young to purchase alcohol legally or attend discos or nightclubs at weekends; as a result they resort to ‘hanging around’ housing estates, drinking any alcohol they may have acquired on open areas of grass or in parklands. The majority of the offenders at the restorative events were of the opinion that if they had not consumed alcohol on the night of the offence, they probably would never have committed the offence in the first place. Regarding parental supervision, parents of the offenders stated that on the night that their son or daughter committed the offence, they were either out for the evening or of the belief that their child was staying with friends or somewhere other (than where they said they were going to be). The majority of parents expressed that in the future they would be stricter over where their children went on weekends, who they were with and what they were doing. The issue of trust being broken arose in all of the cases and parents noted that this had to be rebuilt before they would allow their children the same freedom they had before the offence. In some cases, the bringing together of parents and their children in a neutral environment with people that were not well-known to them brought underlying issues to the surface made parents more aware of their child’s social behaviour, such as their child’s consumption of alcohol, problems they may have been having at school that they could not talk about, or issues relating to levels of attention given to them at home.

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8.9. RESTORATIVE JUSTICE SOLUTIONS All six of the restorative events observed by the researcher concluded with a plan of action for the offender to aid his/her reintegration into the community while lowering the chance of a reoccurrence of the offence. Firstly, a central element of these plans was supervision by the Juvenile Liaison Officer until the offender reaches 18 years of age; secondly most of the plans contained a clause relating to abstinence from alcohol until the offenders were of a legal age. Offenders were further obliged to supply the victim with a verbal and a written apology. In two of the cases observed, financial reparation was made to the victim either before or during the conference. This research into the six case studies provides a framework for understanding restorative justice as a community-based solution and alternative sanction in the system of justice and social regulation in the Republic of Ireland.

8.10. CHANGES AND CULTURE Victim satisfaction was very high in the majority of cases observed by the authors; however, it must be noted that of the six events observed only four events had the victim in attendance. The authors were impressed by the extent of reconciliation in the cases some of which involved serious crimes. It was apparent from the proceedings that the victims were sympathetic towards the offenders and appeared to be interested in reintegrating the offender into the community. Victims did not appear to be upset during the restorative events observed and appeared to leave the event satisfied with the outcome. Support for and acceptance of the young offenders was a strong element of all the restorative events. Expressions of offender support and acceptance were not explicitly sought by either the facilitator or the Juvenile Liaison Officer. Parents or guardians of the young offenders spoke up on behalf of the offenders, discussed giving the offenders another chance but noted that it would take time for them to treat the offender as being trustworthy. Victims showed that they were prepared to support the offenders during the restorative events by encouraging them to get involved in sporting

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activities and advising them to avoid a life of crime. Only in one case was it implied that the family could not cope with the offender. No victim was involved in this case and it was clear that the reason for the offender having problems was due to his living arrangements. Four out of the six restorative events observed by the authors held a post-conference or caution social. The value of the social in restorative justice is recognised symbolically and materially. Sharing refreshments can help to resolve residual tensions and mark a new beginning for victims and offenders. However, its value may be reduced if the young offenders are uncomfortable.

8.11. SUBSEQUENT DEVELOPMENTS IN RESTORATIVE JUSTICE Since this study has been completed there have been a number of developments around restorative justice. There have been no further publications on the Irish case apart from the researcher’s articles in the Irish Journal of Sociology, Translocations and the Prison Journal and a book published by emerald publishing. Four studies that are relevant to the research undertaken here are as follows Cunneen and Hoyle (2010), Johnstone (2011), Rossner (2011), and Shapland, Robinson and Sorsby (2011). Cunneen and Hoyle (2010) argues that communities and the state should be more restorative in their responses to harm caused by crime and anti-social behaviour. She also acknowledges that restorative justice appears to have much to offer in terms of criminal justice reform. Cunneen and Hoyle (2010) offers a different account and argues that the theoretical cogency of restorative ideas is limited by their lack of a coherent analysis of social and political power. He further contends that restorative justice has not produced significant change in the criminal justice system and that the attempt to establish it as a feasible alternative to dominant practices of criminal justice has failed. Johnstone (2011) in the second edition of Restorative Justice: Ideas, Values and Debates outlines the shifts, new directions and potentials that have emerged in restorative justice in recent years. He argues that restorative justice as a campaign to revolutionise criminal justice has evolved into a social movement that aspires to implant restorative values into the fabric of everyday life. In particular he highlights a number of

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‘blueprints’ for the system wide implementation of restorative justice (Johnstone, 2011, p. 134). Delahunty, Rossner, and Tait (2010) in her article ‘Emotions and Interaction Ritual: A Micro Analysis of Restorative Justice’ presents findings using video recordings of a restorative justice conference to analyse at the micro-level the emotional and interactional dynamics at work in transforming an initial situation of anger and anxiety into one marked by displays of solidarity between the victim and offender. Shapland et al. (2011) in Restorative Justice in Practice: Evaluating What Works for Victims and Offenders offers an analysis of three restorative justice schemes implemented in England and Wales. It examines the practicalities of setting up and running restorative justice schemes in connection with criminal justice, the costs and the key professional and ethical issues involved. These texts situate their discussion and findings on important aspects of restorative justice in the context of existing studies while breaking new ground in understandings of restorative justice in a theoretical and practical perspective. Thematically, the key issue raised in these important studies reflect on some of the key issues raised in this PhD book.

8.12. LIMITATIONS OF THE SIX CASE STUDIES OBSERVED The limitations of the six case studies observed are as follows: • Provided a sample of pilot scheme that had a limited number of restorative conferencing events during the data collection phase of the study. • This allowed for a limited set of findings based on those events alone. • In addition, all participants were from the same ethnic background, origin and culture. • While allowing the researcher to comprehend subtle nuances through direct observation, it did create an issue regarding dealing with diversity issues in restorative conferencing events. • There could also be an issue regarding the location of conferences and the fact that they were facilitated by members of An Garda Sı´ ocha´na. • The study was unable to critically evaluate the issue of net widening in Garda practices in the Irish case. This has become more of an issue since this study was conducted.

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The researcher is aware that other methodological approaches exist and that the research of this type could have been undertaken in a different manner. This research provides a platform for undertaking further research on this subject matter. The research examined a set number of case studies and its findings are based on analysis of those studies alone. This restricted the sample size and the involvement of An Garda Sı´ ocha´na as the host agency of the restorative conferencing events. This can be seen as constraining the perspective of the researcher; however, it also provided a rich context for the research to be undertaken. At the time the study was being conducted the scheme run by An Garda Sı´ ocha´na was the only scheme in operation in the Republic of Ireland. This contrasts greatly with the experience in England and Wales where there are numerous restorative justice conferencing schemes in operation.

8.13. BENEFITS OF RESTORATIVE JUSTICE FOR SOCIAL REGULATION The benefits for victims and offenders who engage in restorative justice processes far outweigh those offered by more traditional methods. Firstly, victims are given the opportunity to meet the offender and relate to him or her of their version of events and how the offence has affected them. Meeting with the offender also gives the victim the opportunity to understand the reason for the offence and perhaps realise that they were not singled out. The meeting may also empower them to overcome worries about possible revictimisation. As the research has shown, victims are empowered through restorative justice conferencing. They are satisfied by receiving an apology, reparation for the harm caused and an assurance that there will not be a reoccurrence. Restorative cautions or conferences provide the offenders with the opportunity to take responsibility and account for their actions. The restorative approach empowers offenders to express genuine remorse, to apologise directly to the victim and make some form of reparation, financial or otherwise. This further empowers offenders to address underlying problems, which they may be having, and provides them with the opportunity to work with their parents and authorities to fully integrate themselves back into society.

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Globally, restorative justice provides many Criminal Justice systems with an alternative means of dealing with crime control (Johnstone, 2003). However, in Ireland it is only legal at present to deal with matters relating to juvenile crime through convening restorative events. The benefit of restorative justice for society and the criminal justice system is that it has implications for social control in the form of reducing future rates of crime. The juvenile offenders of today are the major criminals of tomorrow. For offenders, restoring a sense of security and empowerment can rebuild their confidence in finding employment, achieving educational success, sporting success and of feeling confident and secure in the future. Through rehabilitation and reintegration rather than traditional punitive measures, offenders come to realise that there is nothing to be gained from leading a life of crime. The restorative justice philosophy involves all of those affected by the criminal behaviour, be it victims, offenders, the families involved or the wider community; all play their part in resolving the issues that flow from the offending. As Braithwaite contends, the restorative justice process empowers all parties to restore the deliberative control of justice by its citizens (Braithwaite, cited in Johnstone et al., 2003, p. 87). The following elements are influential in encouraging future lawabiding behaviour from offenders: Firstly, for offenders to fully partake and benefit from the restorative event, they are required to express remorse during and after the event by remembering the event, completing the tasks set down in the agreement, feeling sorry for what they have done, showing it and feeling that they have repaired the harm they have caused. Offenders should be shamed but not stigmatised; they should not be made to feel like they are bad persons and they should be forgiven and accepted by society. Offenders should fully participate in the restorative events, especially in the decision-making process, and finally meet the victim and apologise to him or her. Restorative justice provides an opportunity to achieve a fairer and more satisfactory criminal justice system for all members of society. Restorative justice principles are making slow but steady progress in Ireland. There is a growing acknowledgement among professionals and academics that we need to develop other responses to crime. The restorative justice process has much to offer as it centres on the greater use of noncustodial sentences that not only will bring about changes in the law but also will have significant implications for social control.

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8.14. RESTORATIVE PROCESSES AS A BLUEPRINT FOR THE FUTURE Furthermore this research has shown that, the most common method of implementing the restorative justice philosophy in Ireland is through Garda-based conferencing. This research has outlined an understanding of restorative conferencing as a process of functionalist exchange. This process provides community rehabilitation through what Johnstone (2011) refers to as symbolic reparation. This process provides a forum for the Gardaı´ to bring together young offenders with their respective families, friends and supporters. In the experience of the researcher, many such restorative events take place at the level of a restorative caution for the offender. The cautions explore the effects of the harm on the victim, as well as the potential ways of providing redress, which unlike the retributive system focuses on the offender apologising to the victim verbally, making some form of reparation as well as reintegrating the offender. The Garda facilitators did not impose solutions but rather suggested elements, which could be included in the agreement for offenders, such as supervision by a Juvenile Liaison Officer. The remaining terms of the agreement came about as a result of dialogue, interaction and agreement between all parties. Offenders should fully participate in the restorative events especially in the decision-making process and finally meeting with the victim and apologising to him or her. This, in some way, deviates from the established theories of academics such as Braithwaite; however, it is this understanding that provides the book with one of its key contributions to contemporary understandings of restorative justice.

8.15. AN GARDA SI´OCHA´NA/RESTORATIVE JUSTICE TRAINING AND INITIATIVES An Garda Sı´ ocha´na first introduced Restorative Justice Initiatives on a pilot basis in 1999. A total of 68 events were convened between the introduction of the Children Bill in 1999 and the subsequent Children Act in 2001. Garda-based restorative conferencing operates through the Garda Juvenile Diversion Programme. The Juvenile Diversion Programme operates under the supervision and direction of the Garda Juvenile Office.

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The Children Act 2001 placed the Diversion Programme (see Chapter 5) on a statutory footing and enshrined restorative justice into law. An Garda Sı´ ocha´na is the only body in Ireland at present that can convene restorative events legally. However, whilst the Gardaı´ are implementing restorative justice for juveniles during the present time, it is very possible that restorative justice processes could be extended to encompass adult crime and especially crime of a sensitive nature, for example, sexual and child abuse cases. As the research has shown, the Garda initiative and the training of Juvenile Liaison Officers and facilitators is very much in line with what is happening throughout the rest of the world. The Garda initiative is working well at present with more cases being dealt with by restorative conferences and cautions. According to the findings of the Garda Research Unit, Garda College, Templemore, the number of people signing up for mediation and facilitation training is on the increase. However, there appears to be scepticism among some members of the force that the process provides an ‘easy way out for the offender’. Yet, the Gardaı´ appear to be committed in continuing their efforts to develop and utilise restorative conferencing and cautions in areas of juvenile crime. This will form part of future research.

8.16. RECOMMENDATIONS • A multi-agency approach needs to be taken in order to promote the merits of restorative justice as an alternative form of justice. Education is required to enhance people’s understanding of the concept. Public awareness must be raised through information meetings and the media. • Additional resources are needed, including more trained Juvenile Liaison Officers and facilitators, support services such as mediation and counselling for victims, offenders and their families before and after conferences to address underlying issues. It should not be the responsibility of the Juvenile Liaison Officer to be a guidance counsellor and social worker to victims and offenders. • Conferences should be held in neutral venues and not in Garda Stations. Some parties participating in the process may find this setting intimidating and off-putting. • The process to encourage victims’ attendance should be made more effective without undermining the principle of voluntary participation. • More emphasis and research needs to be put into juvenile crime to discourage young people away from a life of crime.

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• All cases under the Juvenile Diversion Programme should be considered eligible for a restorative caution/conference. • All pilot programmes must evaluate their experiences. From these reports overall trends should be assessed and the important changes necessary should be implemented. This is essential for the growth and development of the system.

8.17. RECOMMENDATIONS FOR FURTHER RESEARCH This research study has achieved the aims and objectives, which were outlined in the introduction in Chapter 1. However, during the course of the research, the researcher identified a number of further research opportunities for herself and for others to conduct further studies in the area of restorative justice for young offenders. • Semi-structured interviews and follow-up meetings with previous participants of restorative events and professionals working in the criminal justice system over a set period of time could provide a greater insight into the development of restorative justice in Ireland and its implications for social control. • Observation and evaluation of participants at Restorative Justice Initiatives other than Garda-based events to ascertain attitudes to mediation and victim/offender conferencing. • Further research on the impact of gender roles on restorative conferencing. • Further research on policing attitudes to restorative justice and restorative events. • Further research is required to examine the prevalence of net widening in Garda practices in the Republic of Ireland.

8.18. CONCLUDING REMARKS Finally, the book has addressed its research focus by providing a framework of functionalist exchange, which was built from three key chapters on restorative justice, theory, policy and practice.

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The framework was devised from observations and use of participant observation and case study methodologies of the six case studies, which were discussed and outlined in Chapter 7. The methodology employed to achieve this was a case study methodology, which has been discussed in Chapter 7. A functionalist critical analysis based on theory, policy and practice was derived from this case study methodology. Details of the six cases studies were included to demonstrate the extent of the findings. This book offers new insights on restorative justice. Its contribution is made through a critical analysis of the lack of functionalist elements within existing restorative justice literature particularly Braithwaite’s theories. In order to address the practitioner, policy and theory perspectives have been combined to recognise the importance of a functionalist perspective within restorative justice. The book highlights the importance of the processes of restorative justice rather than the psychological impact of restorative conferencing events on participants. This has been achieved through an analysis of the functionalist roles of each participant, which are outlined in the summaries provided at the end of each of the cases. This research has utilised a case study methodology, in order to ‘give voice’ to those who participated in the six restorative events presented in Chapter 7. The case study method focuses on the processes surrounding these restorative events, rather than focusing on the psychology of individuals. This is derived from a sociological perspective, emanating from Merton and Giddens, who developed the concept of the ‘Sociological Imagination’. The social processes which occur as part of human interaction creates change in humans and it is the process, not the individual, that is the focus of this study. Case study methods include the collection and presentation of detailed information about a particular participant or small group and how they operate (process), which frequently included the accounts of subjects themselves. A case study approach provided the framework for participant observation and material analysis of issue within a set time frame. In addition, a wider analysis of Braithwaite’s theory of ‘reintegrative shaming’ is presented through the six cases studies. This analysis revisits Braithwaite’s concepts, something which was required due to the extensive changes that have occurred globally since he first published his study in 1989. For instance, in the post 9/11 era of fundamentalism, concepts such as ‘reintegrative shaming’ could be problematic for a multicultural society.

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This book addresses these changes in relation to the training of practitioners and the processes of restorative events themselves. The development of the concept of ‘functionalist exchange’ was derived from her own experiences in dealing with restorative justice over a number of years. Author’s experience as a qualified restorative justice facilitator and as an experienced observer of restorative events at both masters and doctoral levels were combined to produce the findings presented within this book. The concept of functionalist exchange provides the justification and validation for the core arguments of the book, which can be summed up in an understanding of restorative justice as a mediation process rather than as a solution to wider social issues of crime and punishment. By applying a meta-analysis to the processes of each restorative event, it becomes apparent that there is continuity in the structure of these events. The meta-analysis in this book takes the variables of the evaluation of the six Dublin case studies, the ‘functionalist exchange’ which occurred as part of the processes of the six case studies. It analyses the six case studies from the practitioners’ perspective, to create deeper understandings of the remorse or satisfaction expressed as a result of the roles adapted by participants during the conferences studied. ‘Victim satisfaction’ was very high in the majority of cases observed by the authors. However, it must be noted that of the six events observed, only four events had the victim in attendance. The authors were impressed by the extent of reconciliation in the cases some of which involved serious crimes. It was apparent from the proceedings that the victims were sympathetic towards the offender and appeared to be interested in reintegrating the offender into the community. Victims did not appear to be upset during the restorative events observed and appeared to leave the event satisfied with the outcome. Support for and acceptance of the young offenders was a strong element of all the restorative events. Expressions of offender support and acceptance were not explicitly sought, by either the facilitator or the Juvenile Liaison Officer. Parents or guardians of the young offenders spoke up on behalf of the offenders, discussed giving the offender another chance, but noted that it would take time for them to treat the offender as being trustworthy. Victims showed that they were prepared to support the offenders during the restorative events by encouraging them to get involved in sporting activities and advising them to avoid a life of crime. Only in one case was it implied that the family could not cope with the offender.

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No victim was involved in this case and it was clear that the reason for the offender having problems was due to his living arrangements. Four out of the six restorative events observed by the authors held a post conference or caution social. The value of the social in restorative justice is recognised symbolically and materially. Sharing refreshments can help to resolve residual tensions and mark a new beginning for victims and offenders. However, its value may be reduced if the young offenders are uncomfortable. This book has investigated the remorse expressed by offenders and the satisfaction derived by participants in six restorative conferences that were held in the greater Dublin area. The researcher’s theory of ‘functionalist exchange’ based on the role-based functional interaction that occurs at such events provides the basis for understanding the extent of remorse or satisfaction expressed by the conference participants. Further analysis was applied through the practitioners’ perspective to the findings. This practitioners’ perspective is derived from the theories of Nathanson’s Compass of Shame (1992) and Tomkins’ (1992) Affect theory. By applying the practitioners’ perspective to the meta-analysis of events at the conferences through the prism of ‘functionalist exchange’, this book has provided a deeper understanding of the restorative processes that occur at such events and has measured the extent to which remorse is expressed or satisfaction is achieved during these events. The benefits for victims and offenders who engage in restorative justice processes far outweigh those offered by more traditional methods. Firstly, victims are given the opportunity to meet the offenders and relate to him or her of their version of events and how the offence has affected them. Meeting with the offender also gives the victim the opportunity to understand the reason for the offence and perhaps realise that they were not singled out. The meeting may also empower them to overcome worries about possible revictimisation. As the research has shown, victims are empowered through restorative justice and are satisfied by receiving an apology, reparation for the harm caused, and an assurance that there will not be a reoccurrence. Restorative cautions or conferences provide the offender with the opportunity to take responsibility and account for their actions. The restorative approach empowers them to express genuine remorse, to apologise directly to the victim, and make some form of reparation financial or otherwise. It further empowers offenders to address underlying problems, which they may be having, and provides them with the opportunity to work with their parents and authorities to fully integrate themselves back into society.

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Finally, the researcher has worked as a Lecturer in Sociology, Criminology, Equality and Diversity and Human Rights and has included restorative justice as a key element of her pedagogy while working with the Irish Prison Service on the Higher Certificate in Custodial Care a programme for training recruit prison officers which has been the subject of National award for excellence in teaching and research by National Academy for Integration of Research, Teaching and Learning. This book will conclude with words from Jim Consedine: History is teaching us every day that if we continue to operate a criminal justice system oriented principally towards punishment based on vengeance, and continue to reap its bitter harvest of high crime rates, fear and insecurity. The time for change is now if we are to bequeath the 21st century a criminal justice system worthy of its name. (Consedine, 1999, p. 196).

NOTE 1. For Braithwaite, reintegrative shaming prevents crime, while stigmatisation is a form of shaming which makes crime problems worse.

ABBREVIATIONS CRC CSER

Convention on the Rights of the Child Centre for Social and Educational Research

DART DJELR

Dublin Area Rapid Transit Department of Justice, Equality & Law Reform

HSE

Health Service Executive

IYJS JLO

Irish Youth Justice Service Juvenile Liaison Officer

NACD NJO

National Advance Committee on Drugs National Juvenile Office

PULSE

Police Using Leading Systems Effectively

RJS UN

Restorative Justice Services United Nations

UNCRC YJB

United Nations Convention on the Rights of the Child Youth Justice Board

YOTs

Youth Offending Teams

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REFERENCES Aerston, I. (1997). Offender mediation in Europe, making restorative justice work. Leuven: Leuven University Press. Aerston, I. (2000). Offender mediation in Europe, making restorative justice work. Leuven: Leuven University Press. Aries, P. (1996). Centuries of childhood. London: Pimlico. Ashworth, A. (2001). Is restorative justice the way forward for criminal justice? Current Legal Issues, 54, 347. Baker, J., Lynch, K., Cantillon, S., & Walsh J. (2004). Equality: From theory to practice. Ball, C. (1999). The youth justice and criminal evidence act 1999 Part I: A significant move towards restorative justice, or a recipe for unintended consequences? Criminal Law Review, 211. Ball, C. (2004). Youth justice? Half a century of responses to youth offending. Criminal Law Review, (Suppl.) (50th Anniversary). Bazemore, G., & Elis, L. (2007). Evaluation of restorative justice. In G. Johnstone & D. W. Van Ness (Eds.), Handbook of restorative justice. Devon: Willan Publishing. Bazemore, G., & Schiff, M. (2005). Juvenile justice reform and restorative justice: Building theory and policy from practice. Devon: Willan Publishing. Bazemore, G., & Walgrave, L. (Eds.). (1999). Restorative juvenile justice. Monsey, NY: Criminal Justice Press. Becker, H. (2003). He politics of presentation: Goffman and total institutions. Symbolic Interaction, 26, 659 669. Beckett, H., Campbell, C., O’Mahony, D., & Doak, J. (2004). Interim report: Evaluation of the Northern Ireland youth conferencing service. NIO Research and Statistical Belfast: NIO. Blagg, H., Pearson, G., Sampson, A., Smith, D., & Stubbs, P. (1988). Inter-agency co-operation and reality. In T. Hope & M. Shaw (Eds.), Communities and crime reduction. London: HMSO. Blagg, H., Pearson, G., Sampson, A., Smith, D., & Stubbs, P. (1988). Inter-agency co-operation and reality. In T. Hope & M. Shaw (Eds.), Communities and crime reduction. London: HMSO. Braithwaite, J. (1989). Crime, shame and reintegration. Cambridge: Cambridge University Press. Braithwaite, J., & Pettit, P. (1990). Not just desserts: A republican theory of criminal justice. Oxford, UK: Clarendon Press. Braithwaite, J. (1998). Restorative justice. In M. Tonry (Ed.), Handbook of crime and punishment. New York, NY: Oxford University Press. Braithwaite, J. (1999). Restorative justice: Assessing optimistic and pessimistic accounts. Crime and Justice: A Review of Research, 25, 1 127. Braithwaite, J. (2002). Restorative justice and responsive regulation. Oxford: Oxford University Press.

235

236

REFERENCES

Braithwaite, J. (2003). Restorative Justice and a better future. In G. Johnstone (Ed.), A restorative justice reader: Texts, sources, context. Devon: Willan Publishing. Braithwaite, J., & Petit, P. (1990). Not just deserts. Melbourne: Oxford University Press. Brown, S. (2005). Understanding youth and crime: Listening to youth? (2nd ed.). UK: Open University Press, McGraw Hill Education. Brownlie, J. (2003). An unsolvable justice problem? Punishing young people’s sexual violence. Journal of Law and Society, 30(4), 506 531. Campbell, C., Devlin, R., O’Mahony, D., Doak, J., Jackson, J., Corrigan, T., & McEvoy, K. (2006). Evaluation of the Northern Ireland Youth Conferencing Service. NIO Research and Statistical Series Report No. 12, Belfast. Retrieved from http://www.nio.gov.uk/evaluation_ of_the_northern_ireland_youth_conference_service.pdf Cavadino, M., & Dignan, J. (1998). Which model of criminal justice offers the best scope for assisting victims of crime? In E. Fattah & E. Peters (Eds.), Support for crime victims in a comparative perspective. Leuven: Leuven University Press. Cavadino, M., & Dignan, J. (2002). The penal system: An introduction (2nd ed.). London: Sage. Cavadino, M., & Dignan, J. (2004). Young offenders: Systems management or system disaster? In The penal system: An introduction. London: Sage. Centre for Social and Educational Research. (2003). Garda youth diversion project guidelines. Deparment of Justice and Law Reform. Christie, N. (1977). Conflicts as property. British Journal of Criminology, 17, 1 15. Chubb, B. (1982). The government and politics of Ireland. London: Longman. Clancy, P., Drudy, S., Lynch, K., & O’Dowd, L. (Eds.). (1995). Irish society sociological perspectives. Dublin: Institute of Public Administration. Clarke, J. (2002). The three Rs Repression, rescue and rehabilitation ideologies of control for working class youth. In J. Muncie, G. Hughes, & E. McLaughlin (Eds.), Youth justice critical readings. London: Sage. Coghlan, N. (2000). Locating young offenders in their communities in perspectives on youth crime. Dublin: Barnardos and the Irish Penal Reform Trust. Cohen, A. K. (1955). Delinquent boys, the culture of the gang. Glencoe, IL: Free Press. Coletti, L. (1975/1996). Marx’s early writings. London: Penguin. Consedine, J. (1995). Restorative justice: Healing the effects of crime. Lyttelton: Ploughshares. Consedine, T. (2010). Restorative practices in schools: Breaking the cycle of involvement in child welfare and legal systems. Protecting Children. NY: American Humane Society. Cook, K. (2006). Doing difference and accountability in restorative justice conferences. Theoretical Criminology, 10(1), 107 124. Cooney, J. (1986). The crozier and the dail. Dublin: Mercier Press. Corr, C. (2004). Drug use among new communities in Ireland: An exploratory study. Dublin: Merchant’s Quay Ireland, NACD. Coughlan, A. (1984). Ireland’s welfare state in crisis. Administration, 32(1), 31 41. Crawford, A., & Newburn, T. (2002). Recent developments in restorative justice for young people in England and Wales: Community participation and representation. British Journal of Criminology, 42, 476 495. Crawford, A., & Newburn, T. (2003). Youth offending and restorative justice, implementing reform in youth justice. Devon: Willan Publishing. Cunneen, C. (1997). Community conferencing and the fiction of indigenous control. Australian and New Zealand Journal of Criminology, 30(1).

References

237

Cunneen, C., & Hoyle, C. (2010). Debating restorative justice, debating law series (Vol. 1). UK: Hart Publishing. Da´il Select Committee on Crime. (1992). Juvenile crime Its causes and its remedies. Daly, K. (2000). Revisiting the relationship between retributive and restorative justice. In H. Strang & J. Braithwaite (Eds.), Restorative justice: Philosophy to practice. Aldershot: Ashgate. Daly, K. (2002). Restorative justice: The real story. cited. In G. Johnstone (Ed.), A restorative justice reader: Texts, sources, context. Devon: Willan Publishing. Daly, K. (2002). Conferencing in Australia and New Zealand: Variations, research findings and prospects. In A. Morris & G. Maxwell (Eds.), Restorative justice for juveniles: Conferencing, mediation and circles. Oxford: Hart Publishing. Daly, K. (2003). Mind the gap: Restorative justice in theory and practice. In A. von Hirsch, J. Roberts, A. E. Bottoms, K. Roach, & M. Schiff (Eds.), Restorative justice and criminal justice: Competing or reconcilable paradigms. Oxford: Hart Publishing. Daly, K. (2005). The limits of restorative justice. Prepared for D. Sullivan and L. Tifft (Eds.), Handbook of restorative justice: A global perspective. New York, NY: Routledge. Daly, K. (2008). Setting the record straight and a call for radical change: A reply to Annie Cossins on ‘Restorative Justice and Child Sex Offences’. British Journal of Criminology, 48, 557 566. Dantzker, M. C., & Hunter, R. D. (2012). Research methods for criminology and criminal justice (3rd ed.). MA: Jones and Bartlett Learning. D’Avanzo, C., Frye, B., & Forman, R. (1994). Culture, stress and substance use in Cambodia refugee women. Journal of Studies on Alcohol, 55(4), 420 426. Dean, M. (1999). Governmentality. London: Sage. Delahunty, J., Rossner, M., & Tait D. (2010). Simulation and dissimulation in jury research: Credibility in a live mock trial. In L. Bartels and K. Richards (Eds.), Qualitative criminology: Stories from the field. Sydney: Federation Press. Department of Justice, Equality and Law Reform. (1996). Children bill. Dublin: Stationery Office. Department of Justice, Equality and Law Reform. (2001). An Garda Sı´ocha´na-Policing plan 2002. Dublin: Stationery Office. Department of Justice, Equality and Law Reform. (2005). Report on the youth justice review. Dublin: Stationery Office. Dignan, J. (1999). The crime and disorder act and the prospects for restorative justice. Criminal Law Review, (January), 48 60. Dignan, J. (2000). Overview of current research in Restorative Justice Consortium (Ed.), Restorative Justice from Margins to Mainstream, London: Restorative Justice Consortium. Dignan, J., & Lowey, K. (1999). Restorative justice options for Northern Ireland: A comparative overview. Northern Ireland Criminal Justice Review, Research Report 10, HMSO, Belfast. Dignan, J., & Lowey (2000). Restorative justice options for Northern Ireland: A comparative review. Belfast: HMSO. Dignan, J., & Marsh, P. (2001). Restorative justice and family group conferencing in England: Current state and future prospects. In A. Morris & G. Maxwell (Eds.), Restorative justice for juveniles. Conferencing, mediation and circles. Oxford: Hart Publishing. Duncan, W. (1982). The juvenile justice system at the crossroads. In G. Cook & V. Richardson (Eds.), Juvenile justice at the crossroads. Dublin: Department of Social Administration, University College Dublin.

238

REFERENCES

Dunning, E., & Rojek, C. (Eds.). (1992). Sport and leisure in the civilizing process: Critique and counter critique. London: Macmillan. Durkheim, E. (1893/1964). The division of labour in society. New York, NY: Free Press. Durkheim, E. (1904/1950). On the normality of crime. The rules of sociological method. New York, NY: Free Press. Edgar, K., & Newell, T. (2006). Restorative justice in prisons: A guide to making it happen. Winchester, UK: Waterside Press. Elias, N. (2000). The civilizing process: Sociogenetic and psychogenetic investigations (rev. ed.). Oxford: Blackwell. Elias, N., & Dunning, E. (1986). Quest for excitement. Oxford: Blackwell. Feagin, J., Orum, A., & Sjoberg, G. (Eds.). (1991). A case study for case study. Chapel Hill, NC: University of North Caroline Press. Feeley, M., & Simon, J. (1994). Actuarial justice: The emerging new criminal law. In D. Nelken (Ed.), The futures of criminology. London: Sage. Fergusson, R. (2007). Making sense of the melting pot: Multiple discourses in youth justice policy. Youth Justice, 7(3), 179 194. Field, S. (2007). Practice cultures and the ‘New’ youth justice in (England and) Wales. British Journal of Criminology, 47, 311 330. Fionda, J. (1999). New labour, old hat: Youth justice and the crime and disorder act 1998. Criminal Law Review, (January), 36 47. Foucault, M. (1977). Discipline & punish. Harmondsworth: Penguin. Fountain, J. (Ed.). (2004). Young refugees and asylum seekers in Greater London: Vulnerability to problematic drug use. Greater London Authority. Fountain, J. (2006). An overview of the nature and extent of illicit drug use among the traveller community: An exploratory study. Centre for Ethnicity and Health, University of Central Lancashire. Dublin: NACD. Garda Sı´ ocha´na. (1991). An Garda Sı´ ocha´na Headquarters Directive 91/1991, Ireland. Garda Sı´ ocha´na. (2001a). Annual report. Dublin: Garda Sı´ ocha´na. Garda Sı´ ocha´na. (2001b). Restorative justice information leaflet. Dublin: Garda Sı´ ocha´na. Garda Sı´ ocha´na. (2002). Annual report. Dublin: Garda Sı´ ocha´na. Garda Sı´ ocha´na. (2003). Annual report. Dublin: Garda Sı´ ocha´na. Garda Sı´ ocha´na. (2004). Annual report. Dublin: Garda Sı´ ocha´na. Garda Sı´ ocha´na. (2005). Annual report. Dublin: Garda Sı´ ocha´na. Garda Sı´ ocha´na. (2006). Annual report. Dublin: Garda Sı´ ocha´na. Garda Sı´ ocha´na. (2007). Annual report of the committee appointed to monitor the effectiveness of the diversion programme. Dublin: Garda Sı´ ocha´na. Garda Sı´ ocha´na. (2009). Youth and children strategy. Dublin: Garda Sı´ ocha´na. Garda Sı´ ocha´na Research Unit. (2001). Restorative justice initiatives in the Garda Sı´ocha´na: Evaluation of the pilot programme. Templemore, Co. Tipperary: Garda Research Unit. Garland, D. (1999). Punishment and modern society: ‘A study in social theory’. Clarendon Press. Garvin, T. (1996). 1922: The birth of Irish democracy. Dublin: Gill and Macmillan. Gelsthorpe, L., & Morris, A. (1994). Juvenile justice 1945 1992. In M. Maguire, R. Morgan, & R. Reiner (Eds.), The oxford handbook of criminology. Oxford: Clarendon Press. Gelsthorpe, L., & Morris, A. (2002). Restorative youth justice the last vestiges of welfare? In J. Muncie, G. Hughes, & E. McLaughlin (Eds.), Youth justice critical readings. London: Sage. Gibbons, D. C. (1981). Changing the lawbreaker: The treatment of delinquents and criminals. Montclair, NJ: Allanheld, Osmun.

References

239

Goffman, E. (1961). Stigma: Notes on the management of spoiled identity. Englewood Cliffs, NJ: Prentice Hall. Goldson, B. (1997a). ‘Childhood’ an introduction to historical and theoretical analyses. In P. Scraton (Ed.), ‘Childhood’ in ‘crisis’? London: UCL Press. Goldson, B. (1997b). Children in trouble: State responses to juvenile crime. In P. Scraton (Ed.), ‘Childhood’ in ‘crisis’? London: UCL Press. Goldson, B. (1997c). ‘Children, crime, policy and practice: Neither welfare nor justice’: Children and society (Vol. 11). London: Sage. Goldson, B. (2000). ‘Children in need’ or ‘young offenders’? Hardening ideology, organisational change and new challenges for social work with children in trouble. In Child family and social work (Vol. 5). Blackwell Science Ltd. Goldson, B. (2006). Penal custody: Intolerance, irrationality and indifference. In B. Goldson & J. Muncie (Eds.), Youth crime and justice. London: Sage. Goldson, B., & Muncie, J. (2006a). Rethinking youth justice: Comparative analysis, international human rights and research evidence. The National Association for Youth Justice, 6(2). London: Sage. Goldson, B., & Muncie, J. (Eds.). (2006b). Youth crime and justice. London: Sage. Goldthorpe, J. H., & Whelan, C. t. (Eds.). (1994). The development of the industrial society in Ireland. Oxford: Oxford University Press. Government Select Committee. (1992). First report on the select committee on crime. In Juvenile justice: Its causes and its remedies. Dublin: Stationery Office. Graef, R. (2001). Why restorative justice? Repairing the harm caused by crime. London: Calouste Gulbenkian Foundation. Gray, P. (2005). The politics of risk and young offenders’ experiences of social exclusion and restorative justice. British Journal of Criminology, 45, 938 957. Griffin, D. (2004). The juvenile conundrum Ireland’s responses to youth offending. Cork Online Law Review (3rd ed.). Retrieved form http://colr.ucc.ie/2004xii.html. Accessed on June 21, 2004. Griffin, D. (2005). Restorative Justice- a real alternative. Irish Criminal Law Journal, 2(15). Hagall, A., & Newburn, T. (1994). Persistent young offenders. London: Falmer Press. Haines, K. (2000). Referral orders and youth offender panels: Restorative approached and new youth justice. In B. Goldson (Ed.), The new youth justice. Dorset: Russell House Publishing. Harris, M. K. (2003). Moving into the new millennium: Toward a feminist vision of justice. In E. McLaughlin, R. Ferguson, G. Hughes, & L. Westmarland (Eds.), Restorative justice: Critical issues. London: Sage. Harris, R., & Webb, D. (1987). Welfare, power and juvenile justice. London: Tavistock. Haverty, M. (2009). Integrating wholesale restorative justice within Irish society; issues and considerations facing policymakers. Retrieved from http://www.restorativejusticeonline.ie/ Download1.html. Accessed on February 12, 2010. Haydon, D., & Scraton, P. (2000). Condemn a little more, understand a little less: The political context and rights implications of the domestic and European rulings in the Venables Thompson case. Journal of Law and Society, 27(3). Hayes, H. (2006). Apologies and accounts in youth justice conferencing: Reinterpreting research outcomes. Contemporary Justice Review, 9(4), 369 385. Hendrick, H. (2002). Constructions and reconstructions of British childhood: An interpretative study 1800 to the present. In J. Muncie, G. Hughes, & E. McLaughlin (Eds.), Youth justice critical readings. London: Sage.

240

REFERENCES

Hendrick, H. (2006). Histories of youth crime and justice. In B. Goldson & J. Muncie (Eds.), Youth crime and justice. London: Sage. Hogg, M., & Vaughan, G. (2005). Introduction to social psychology. London: Pearson. Home Office. (1997). Tackling youth crime, reforming youth justice. Consultation Paper. HMSO, London. Hoyle, C., & Young, R. (2002). Restorative justice: Assessing the prospects and pitfalls. In M. McConville & G. Wilson (Eds.), The handbook of the criminal justice process. Oxford: Oxford University Press. Hudson, B. (1998). Punishment and governance. Social and Legal Studies, 7(4), 553 560. Hudson, B. (2002). Restorative justice and gendered violence: Diversion or effective justice? British Journal of Criminology, 42, 616. Hudson, B. (2003). Understanding justice an introduction to ideas, perspectives and controversies in modern penal theory (2nd ed.). Buckingham, UK: Open University Press. Inglis, T. (1998). Moral monopoly: The rise and fall of the Catholic Church in modern Ireland. Dublin: UCD Press. James, A., Jenks, C., & Prout, A. (1998). Theorizing childhood. Cambridge: Polity Press. Jantzi, V. (2004). What is the role of the state in restorative justice programmes? In H. Zehr & B. Toews (Eds.), Critical issues in restorative justice. Monsey, NY: Criminal Justice Press. Johnstone, G. (2003). A restorative justice reader: Texts, sources, context. Devon: Willan Publishing. Johnstone, G. (2002). Restorative justice: Ideas, values, debates. Cullompton: Willan Publishing. Johnstone, G. (2010). Restorative justice: Ideas, values, debates (2nd ed.). London: Routledge. Johnstone, G. (2011). Restorative justice: Ideas, values, debates (2nd ed.). London: Routledge. Johnstone, G., & Van Ness, D. W. (Eds.). (2007). Handbook of restorative justice. Devon: Willan Publishing. Jones, R. (1984). Questioning the new orthodoxy. Community Care, 11(October), 26 29. Keeley, P. (2001). Restorative justice in the community: A partnership approach. Dublin: DIT. Kennedy Report. (1970). Report of the Committee of inquiry into reformatory and industrial school systems. Dublin: Stationery Office. Kenny, B. (2000). Preventing youth crime The child care context. In Perspectives on youth crime. Dublin: Irish Penal Reform Trust and Barnardos. Kenny, P. (2003). ‘Redress or reprove’: An evaluation of the administration of restorative justice in Ireland through the operation of Garda based conferencing. MSocSc (Sociology) Study, University College Dublin (unpublished). Keogh, D. (1996). ‘The role of the catholic church in the republic of Ireland’ in building trust in Ireland: Studies commissioned by the Forum for Peace and Reconciliation. Belfast: Blackstaff Press. Kilcommins, S., O’Donnell, I., O’Sullivan, E., & Vaughan, B. (2004). Crime, punishment and the search for order in Ireland. Dublin: Institute of Public Administration. Kilkelly, U. (2006a). Youth justice in Ireland, tough lives, rough justice. Dublin: Irish Academic Press. Kilkelly, U. (2006b). Reform of youth justice in Ireland: The “New” Children Act 2001, part 1. Irish Criminal Law Journal, 16, 2. Kilkelly, U. (2007). Reform of youth justice in Ireland: The “New” Children Act 2001, part 2. Irish Criminal Law Journal, 17, 2. Kilkelly, U. (2008). Children’s rights in Ireland: Law, policy and practice. Dublin: Tottel Publishing. Knemeyer, F. L. (1980). Polizei. Economy and Society, 9(2), 172 196.

References

241

Kurki, L. (2003). Evaluating restorative justice practices. In A. von Hirsch et al. (Eds.), Restorative justice and criminal justice: Competing or reconcilable paradigms? (pp. 293 314). Oxford: Hart Publishing. Lalor, K., de Ro´iste, A´., & Devlin, M. (2007). Young people in contemporary Ireland. Dublin: Gill and Macmillan. La Prairie, C. (1995). Altering course: New directions in criminal justice. Australian and New Zealand Journal of Criminology, 78 99. Leonard, L. (2005). Politics inflamed: GSE and the campaign against incineration in Ireland. Ecopolitics Series (Vol. 1). Drogheda: Greenhouse Press. Luki, L. (2003). Evaluating restorative justice practices. In A. von Hirsch, J. A. Roberts, K. Roach, & M. Schiff (Eds.), Restorative justice and criminal justice: Competing or reconcilable paradigms? Oxford: Hart Publishing. Lyons, F. S. L. (1979). Ireland since the famine. London: Fontana. Magarey, S. (2002). The invention of juvenile delinquency in early nineteenth-century England. In J. Muncie, G. Hughes, & E. McLaughlin (Eds.), Youth justice critical readings. London: Sage. Maguire, M., Morgan, R., & Reiner, R. (Eds.). (1997). The Oxford handbook of criminology (2nd ed.). Oxford: Oxford University Press. Marsh, I. (1991). Sociology in focus: Crime. New York, NY: Longman Inc. Marshall, T. F. (1996). The evolution of restorative justice in Britain. European Journal on Criminal Policy and Research. Marshall, T. F. (1999). Restorative justice: An overview. London: Home Office. Maxwell, G., & Morris, A. (2002). The role of shame, guilt and remorse in restorative justice processes for young people. In E. Weitekamp & H.-J. Kerner (Eds.), Restorative justice: Theoretical foundations. Devon, UK: Willan Publishing. Matza, D. (1964). Delinquency and drift. New York, NY: Wiley. May, M. (2002). Innocence and experience: The evolution of the concept of juvenile delinquency in the mid nineteenth century. In J. Muncie, G. Hughes, & E. McLaughlin (Eds.), Youth justice critical readings. London: Sage. McAlinden, A. M. (2007). The shaming of sexual offenders: Risk, retribution and reintegration. Hart Publishing. McCold, P. (2000). Towards a mid-range theory of restorative juvenile justice: A reply to the maximalist model. Contemporary Justice Review, 3(4), 357 414. McCold, P. (2001). Primary restorative practices. In A. Morris & G. Maxwell (Eds.), Restorative justice for juveniles: Conferencing, mediation and circles (pp. 41 58). Oxford: Hart Publishing. McCold, P., & Wachtel, T. (2002). Restorative justice theory validation. In E. G. M. Weitekamp & H.-J. Kerner (Eds.), Restorative justice: Theoretical foundations (pp. 110 142). Devon, UK: Willan Publishing. McCold, P., & Wachtel, B. (1998). Restorative policing experiment: The Bethlehem Pennsylvania police family group conferencing project. Pipersville, PA: Community Service Foundation. McCullagh, C. (1996). Crime in Ireland: A sociological introduction. Cork: Cork University Press. McCullagh, C. (2006). Juvenile justice in Ireland: Rhetoric and reality. In T. O’Connor & M. Murphy (Eds.), Social care in Ireland: Theory, policy and practice. Cork: CIT Press. McEvoy, K., & Mika, H. (2002). Restorative justice and the critique of informalism in Northern Ireland. British Journal of Criminology, 42(3), 534 562.

242

REFERENCES

McLaughlin, E. (2000). Ireland: From catholic corporatism to social partnership. In C. Cochrane, J. Clarke, & S. Gewirtz (Eds.), Comparing welfare states (2nd ed.). London: Sage. McLaughlin, E. (2003). Restorative justice: Critical issues. Milton Keynes: Sage Publications in association with The Open University. Mead, G. H. (1934). Mind, self and society: From the standpoint of a social behaviorist. Chicago, IL: University of Chicago Press. Mennell, S. (1998). Norbert Elias: An introduction. Dublin: University College Dublin Press. Merry, S. E. (1995). Resistance and the cultural power of law: Presidential address. Law and Society Review, 29, 11 27. Merton, R. (1938). Social structure and anomie. American Sociological Review, 3, 672 682. Merton, R. (1956). The focussed interview and focus groups: Continuities and discontinuities. New York, NY: The Free Press. Merton, R. (1965). Social theory and social structure. New York, NY: The Free Press. Merton, R. (1994). Opportunity structure: The emergence, diffusion, and differentiation of a sociological concept, 19305 19505. In F. Adler & W. S. Laufer (Eds.), Advances in criminological theory: The legacy of anomie theory, volume 6 (pp. 3 78). New Brunswick, NJ: Transaction Publishers. Miers, D. (2001). An international review of restorative justice. Crime Reduction Research Series Paper 10. Home Office, London. Moore, D. B., & McDonald, J. M. (2001). Community conferencing as a special case of conflict transformation. In H. Strang & J. Braithwaite (Eds.), Restorative justice and civil society. Cambridge: Cambridge University Press. Morris, A. (2002). Critiquing the critics: A brief response to critics of restorative justice. British Journal of Criminology, 42(3), 596 615. Morris, A., & Giller, H. (1987). Understanding juvenile justice. Beckenham, UK: Croom Helm. Morris, A., & Maxwell, G. (Eds.). (2002). Restorative justice for juveniles: Conferencing, mediation and circles. Oxford: Hart Publishing. Morris, A., & Maxwell, G. (2004). Reforming criminal justice: The potential of restorative justice. Paper prepared for Seminar March 2004 in Brasilia. Morris, T., & Morris, P. (1963). Pentonville: A sociological study of an English prison. London: Routledge. Mulcahy, A. (2007). Crime policing and social control. In S. O’Sullivan (Ed.), Contemporary Ireland a sociological map. Dublin: UCD Press. Muncie, J. (2002). A new deal for youth? Early intervention and correctionalism. In G. Hughes, E. McLaughlin, & J. Muncie (Eds.), Crime prevention and community safety: New Directions. London: Sage. Muncie, J. (2004). Youth and crime (2nd ed.). London: Sage. Muncie, J., & McLaughlin, E. (2005). The Sage dictionary of criminology. London: Sage. Mutter, R., & Dugmore, P. (2008). Family group conferences in youth justice. Health and Social Care in the Community, 16(3), 262 270. Nathanson, D. (1992). Shame & pride: Affect, sex & the birth of the self. New York, NY: Norton & Company. National Advisory Committee on Drugs (NACD). (2007). Submission to the health service executive’s (HSE). National Intercultural Strategy, NCAD, Dublin. National Children’s Strategy. (2000). Dublin: Stationery Office. National Crime Council. (2003). A crime prevention strategy for Ireland Tackling the concerns of local communities. Dublin: Stationery Office.

References

243

National Drugs Strategy 2001 2008. (2001). Building on experience. Department of Tourism, Sport and Recreation. Stationery Office, Dublin. National Restorative Justice Commission. (2009). Final report. Dublin: National Restorative Justice Commission. Nenagh Community Reparation Project. Retrieved from http://www.nenaghreparation.org Newburn, T. (1998). Tackling youth crime and reforming youth justice: The origins and the nature of “New Labour” policy. Policy Studies, 19(3/4), 199 211. Newburn, T. (2002). The contemporary politics of youth crime prevention. In J. Muncie, G. Hughes, & E. McLaughlin (Eds.), Youth justice: Critical readings. London: Sage. Newburn, T. (2007). Criminology. Devon: Willan Publishing. O’Connell, J. (1998). Travellers in Ireland: An examination of discrimination and racism. Retrieved from www.paveepoint.ie/pav_ireac.html O’Connell, T., Wachtel, T., & Wachtel, B. (1999). Real justice conferencing handbook. PA: The Piper’s Press. O’Donnell, I. (2008). Stagnation and change in Irish penal policy. The Howard Journal, 47(2), 121 133. O’Dwyer, K. (1998). Juvenile diversion programme: Re-offending rates. Garda Research Unit Report 2/98. Garda Research Unit, Templemore, Tipperary. O’Dwyer, K. (2002). Juvenile crime and justice in Ireland. In N. Bala, J. Hornick, H. Snyder, & J. Paetsch (Eds.), Juvenile justice systems: An international comparison of problems and solutions. Toronto: Thompson Educational Publishing. O’Dwyer, K. (2004, June). Restorative justice initiatives in the Garda Sı´ocha´na evaluation of the pilot programme. Presentation at the Children Act 2001 Seminar, Faculty of Law, University College Cork. O’Dwyer, K. (2006). Restorative justice A response to Diarmuid Griffin. Irish Criminal Law Journal, 16, 10. O’Mahony, D., Chapman, T., & Doak, J. (2002). Restorative cautioning: A study of police based restorative cautioning pilots in Northern Ireland. Belfast: NISRA. O’Mahony, P. (2000). A brief overview of juvenile justice in Ireland. In M. Barry, O. Burke, J. Connolly, & J. Curran (Eds.), Children, young people and crime in Britain and Ireland: From exclusion to inclusion (pp. 130 145). Edinburgh: Scottish Executive Central Research Unit. O’Mahony, P. (2001). Contextualising the children bill as a response to youth crime. Paper delivered at the National Conference of Youthreach Co-ordinators. Retrieved from http:// www.youthreach.ie/aatopmenu/Library/Children/Children.html. Accessed on November 22, 2006. O’Malley, T. (1994). Juvenile justice in human rights: A European perspective. In L. Heffernan (Ed.). Dublin: Round Hall Press. O’Sullivan, E. (1996). Juvenile justice in the republic of Ireland: Future priorities. Irish Social Worker, 14(3/4), 4 7. O’Sullivan, E. (1998). Ireland in confronting youth in Europe Juvenile crime and juvenile justice. In J. Mehlbye & L. Walgrave (Eds.). Parsons, T. (1965). Social structure and personality. New York, NY: Free Press. Pitts, J. (2000). The new youth justice and the politics of electoral anxiety. In B. Goldson (Ed.), The new youth justice. Dorset: Russell House Publishing. Platt, A. (1969). The child savers. Chicago, IL: University of Chicago Press. Pratt, J. (1989). Corporatism: The third model of juvenile justice. British Journal of Criminology, 29(3), 236 254.

244

REFERENCES

Quinn, M. (2002). Youth crime prevention in criminal justice in Ireland. In P. O’Mahony (Ed.). Dublin: Institute of Public Administration. Qvortrup, J. et al. (1994). Childhood matters: Social theory, practice, politics. Aldershot: Avebury. Raftery, M., & O’Sullivan, E. (1999). Suffer the little children. Dublin: New Island Books. Ressner, M. (2010). Emotions and interaction ritual: A micro analysis of restorative justice. British Journal of Criminology, 51, 95 119. Restorative Justice Consortium. (1999). Standards for restorative justice. London. Restorative Justice Services. (2001). Annual report. Dublin Restorative Justice Services, Dublin. Restorative Justice Services. (2007). Annual report, Dublin restorative justice services. Roche, D. (2004). Accountability in restorative justice. Oxford: Oxford University Press. Rodriguez, N. (2007). Restorative justice at work: Examining the impact of restorative justice resolutions on juvenile recidivism. Crime Delinquency, 53(3), 355 379. Rossner, M. (2011). Reintegrative ritual: Restorative justice and micro-sociology. In H. Strang, S. Karstedt, and I. Loader (Eds.), Emotions, crime, and justice. Onati International Series on Law and Society, Oxford, UK: Hart Publications. Rush, P. (2002). The government of a generation: The subject of juvenile delinquency. In J. Muncie, G. Hughes, & E. McLaughlin (Eds.), Youth justice critical readings. London: Sage. Rutherford, A. (1986). Growing out of crime: Society and young people in trouble. Harmondsworth: Penguin Books. Rutherford, A. (1995). Signposting the future of juvenile justice policy in England and Wales. In Howard league for penal reform. Child offenders UK and international practice. London: Howard League for Penal Reform. Rwelamira, M. (2000, May). South Africa’s truth and reconciliation commission. Paper to the Ancillary Meeting on Restorative Justice Principles in response to State-Sanctioned Crime at the Tenth UN Crime Congress, Vienna. Sangster, D., Shiner, M., Patel, K., & Sheikh, N. (2002). Delivering drug services to black and Ethnic minority communities. DPAS Paper 16: Public Policy Research Unit, Goldsmith College, University of London and Ethnicity and Health Unit, University of Central Lancashire. Scraton, P. (1997). Whose “childhood”? What “crisis”? In P. Scraton (Ed.), ‘Childhood’ in ‘crisis’? London: UCL Press. Scraton, P., & Haydon, D. (2002). Challenging the criminalisation of children and young people securing a rights based agenda. In J. Muncie, G. Hughes, & E. McLaughlin (Eds.), Youth justice critical readings. London: Sage. Seymour, M. (2004). Juvenile justice in the republic of Ireland. Prepared for the thematic working group on juvenile justice, European society of criminology. Retrieved from http:// www.esc-eurocrim.org/files/juvenile_justice_in_the_republic_of_ireland.doc. Accessed on November 22, 2006. Shannon, M (2006). Plenary Address on the Youth Justice Agency, Irish Human Rights Commission, Law Society of Ireland in conjunction with the Ombudsman for Children, Child Law Conference, 14th October, Dublin, Blackhall Place. Shannon, M. (2010). Plenary address on the Irish youth justice services. Irish Youth Justice Services 3rd annual conference, February 25, 2010, Dublin Castle, Dublin. Shapland, J. (2008). Restorative justice: Does restorative justice affect reconviction. The fourth report from the evaluation of three schemes. Ministry of Justice Research Series 10/08. Ministry of Justice, London.

References

245

Shapland, J., Atkinson, A., Atkinson, H., Chapman, B., Dignan, J., Howes, M., … Sorsby, A. (2007). Restorative justice: The views of victims and offenders. Ministry of Justice Research Series 3/07. London: Ministry of Justice. Shapland, J., Atkinson, A., Atkinson, H., Colledge, E., Dignan, J., Howes, M., … Sorsby, A. (2006). Situating restorative justice within criminal justice. Theoretical Criminology, 10(4), 505 532. Shapland, J., Atkinson, A., Colledge, E., Dignan, J., Howes, M., Johnstone, J., … Sorsby, A. (2004). Implementing restorative justice schemes. Crime reduction programme. A report on the first year. Home Office Online Report 32/04. Shapland, J., Atkinson, A., Colledge, E., Dignan, J., Howes, M., Johnstone, J., … Stenning, P. (2003). From the Panopticon to Disney World: The development of discipline. Shapland, J., Robinson, G., & Sorsby, A. (2011). Restorative justice in practice: Evaluating what works for victims and offenders. London: Routledge. Shapland, J., Willmore, J., & Duff, P. (1985). Victims in the criminal justice system. Farnborough: Gower. Sharpe, S. (1998). Restorative justice: A vision for healing and change. Edmonton: Victim Offender Mediation Society. Shearing, C., & Stenning, P. (2003). From the Panopticon to Disney World: The development of discipline. Shore, H. (2002). Reforming the juvenile: Gender, justice and the child criminal in nineteenthcentury England. In J. Muncie, G. Hughes, & E. McLaughlin (Eds.), Youth justice critical readings. London: Sage. Smith, R. (2005). Welfare versus Justice Again! Youth Justice, 5(1). London: Sage. Stake, R. (1995). The art of case research: Design and methods. Newbury Park, CA: Sage. Strang, H. (2005). Repair or revenge: Victims and restorative justice. Oxford: Clarendon Studies in Criminology. Strang, H., Sherman, L. W., Angel, C. M., Woods, D. J., Bennett, S., Newbury-Birch, D., & Inkpen, N. (2006). Victim evaluations of face-to-face restorative justice conferences: A quasi-experimental analysis. Journal of Social Issues, 62(2), 281 306. Strang, H., & Braithwaite, J. (Eds.). (2001). Restorative justice and civil society. Cambridge: Cambridge University Press. Straw, J., & Boateng, P. (1997). Bringing rights home. European Human Rights Law Review, 2(1), 71 80. Stuart, B. (1996). Circle sentencing in Canada: A partnership of the community and the criminal justice system. International Journal of Comparative and Applied Criminal Justice, 20(2), 291 309. Tappan, P. W. (1947). Delinquent girls in court. New York, NY: Columbia University Press. Task Force on Child Care Services. (1980). Final report. Dublin: Stationery Office. The Stationery Office. (1974). First interim report of the interdepartmental committee on mentally ill and maladjusted persons. The Stationery Office, Dublin. Thorpe, D., Smith, D., Green, C., & Paley, J. (1980). Out of care. London: Allen and Unwin. Tonry, M. (1988). Structuring sentencing. In M. Tonry & N. Morris (Eds.), Crime and justice: A review of research (Vol. 12). Chicago, IL: University of Chicago Press. Tomkins, S. S. (1962). Affect imagery consciousness: The positive effects (Vol. 1). New York, NY: Springer. Tovey, H., & Share, P. (2000). A sociology of Ireland (2nd ed.). Dublin: Gill and Macmillan. Tovey, H., & Share, P. (2003). Sociology of Ireland (2nd/3rd eds.). Dublin: Gill and Macmillan.

246

REFERENCES

Tovey, H., Share, P., & Corcoran, M. (2007). A sociology of Ireland (3rd ed.). Dublin: Gill and Macmillan. Treacy, S. (2000). Principles of restorative justice. Dublin: Self. Umbreit, M. S. (1998). Restorative justice through victim-offender mediation: A multi-site assessment. Western Criminology Review, 1(1). [Online] Van Ness, D. (1993). New wine and old wineskins: Four challenges of restorative justice. Criminal Law Forum, 4, 251 276. Van Ness, D. (1996). Restorative justice and international human rights. In B. Galaway & J. Hudson (Eds.), Restorative justice: International perspectives. Monsey, NY: Criminal Justice Press. Van Ness, D. W. (1999, October 24). A restorative future for juvenile justice? Paper presented at Leuven, Belgium. Van Ness, D., & Strong, K. H. (1997/2002). Restoring justice. Cincinnati, OH: Anderson, Publishing. Van Ness, D. W., & Strong, K. H. (2002). Restoring justice (2nd ed.). Cincinnati, OH: Anderson Pub. von Hirsch, A. (1993). Censure and sanctions. Oxford: Oxford University Press. von Hirsch, A. (2003). Restorative justice and criminal justice: Competing or reconcilable paradigms? Oxford: Hart Publishing. Walgrave, L. (1994). Beyond rehabilitation: In search of a constructive alternative in the judicial response to juvenile crime. European Journal on Criminal Policy and Research, 2, 57 75. Walgrave, L. (2002). On restoration and punishment: Favourable similarities and fortunate differences. In A. Morris & G. Maxwell (Eds.), Restorative justice for juveniles: Conferencing, mediation and circles. Oxford: Hart Publishing. Walgrave, L. (2005). Towards restoration as the mainstream in youth justice. In E. Elliott & R. M. Gordon (Eds.), New directions in restorative justice: Issues, practice, evaluation (pp. 3 25). Cullompton, UK: Willan Publishing. Walsh, D. (2005). Juvenile justice. Dublin: Thomson Roundhall. Warner, S. (1994). Making amends: Justice for victims and offenders. An evaluation of the SAC. Aldershot: Avebury. Watt, P. (2006). Approaches to cultural and ethnic diversity and the role of citizenship in promoting a more inclusive intercultural society in Ireland. Dublin: TASC. Weitekamp, E. G. M. (1999). The history of restorative justice. In G. Bazemore & L. Walgrave (Eds.), Restorative juvenile justice: Repairing the harm of youth crime. Monsey, NY: Criminal Justice Press. Weitekamp, E. G. M., & Kerner, H. J. (Eds.). (2002). Restorative justice theoretical foundations. Devon: Willan Publishing. Weitekamp, E. G. M., & Kerner, H.-J. (Eds.). (2003). Community and problem oriented policing in the context of restorative justice. In Restorative justice in context: International practice and directions. Devon, UK: Willian Publishing. White, R. (1994). Shame and reintegration strategies: Individuals, state power and social interests. In C. Alder & J. Wundersitz (Eds.), Family conferencing and juvenile justice: The way forward or misplaced optimism? Canberra: Australian Institute of Criminology. Wilcox, A., & Young, R. (2007). How green was Thames valley? Policing the image of restorative justice cautions. Policing and Society, 17(2), 141 163. Wright, M. (1999). Restoring respect for justice. Winchester: Waterside Press. Yin, R. (2008). Case study research: Design and methods. Thousand Oaks, CA: Sage.

References

247

Young, R. (2001). Just cops doing “shameful” business? Police-led restorative justice and the lessons of research. In A. Morris & G. Maxwell (Eds.), Restorative justice for juveniles: Conferencing, mediation and circle. Oxford: Hart Publishing. Young, R., & Goold, B. (1999). Restorative police cautioning in Aylesbury From degrading to reiterative shaming ceremonies? Criminal Law Review, 126 138. Zehr, H. (1990). Changing lenses: A new focus for crime and justice. Scottdale, PA: Herald Press. Zehr, H. (1995). Justice paradigm shift? Values and visions in the reform process. Mediation Quarterly, 12, 207 216. Zehr, H. (2005a). Changing lenses: A new focus for crime and justice (3rd ed.). Scottdale, PA: Herald Press. Zehr, H. (2005b). Evaluation and restorative justice principles. In E. Elliott & R. M. Gordon (Eds.), New directions in restorative justice: Issues, practice and evaluation (pp. 296 303). Devon: Willan Publishing. Zehr, H., & Toews, B. (Eds.). (2004). Critical issues in restorative justice. Monsey, NY: Criminal Justice Press. Zernova, M. (2007). Aspirations of restorative justice proponents and experiences of participants in family group conferences. British Journal of Criminology, 47, 491 509.

ABOUT THE AUTHORS Dr Paula Kenny (BA, MSocSc, PhD) has worked as a College Lecturer in Custodial Care, and was a Lecturer and Programme Chair, Applied Social Studies, ITSligo, Ireland. Paula has held lectureships with the IPA, UCD and TCD in Sociology & Criminology. She has been Treasurer of the Sociology Association of Ireland, a Restorative Justice Facilitator, an Editor with Emerald UK, and CRIMSOC: Journal of Social Criminology. A NAIRTL Award winner in 2012, Dr Kenny is a regular contributor to debates and discussion surrounding penal reform and has published in a number of books and journal articles with a focus on Restorative Justice, Criminology, Policy and Sustainability. Paula completed her studies for the Kings Inns in 2013. Dr Liam Leonard (BA, MPhil, PhD) has worked as a College Lecturer at IT Sligo, & NUI Galway, Ireland, and has been President of the Sociology Association of Ireland. He lectured in modules on Human Rights, Sociology, Criminology, Professional Development and Equality and Diversity on the Custodial Care Programme. The author of 12 books, he is Editor of the Advances in Sustainability, Environmental Justice and Ecopolitics Books Series with Emerald and is Founder and Senior Editor of the CRIMSOC: Journal of Social Criminology. Dr Leonard has edited the 2010 editions of Environmental Politics and the Irish Journal of Sociology, the 2011 Irish issue of the Prison Journal, and 2013 Criminology issue of IJASS. Awarded the Sage Publishing Research Excellence Award in 2012 and the NAIRTL Award 2012, he has 10 years’ experience as an academic and lecturer in Ireland and the United States.

249

SUBJECT INDEX Benefits of restorative justice for social regulation, 224 225 Bethlehem project, 114 Blair, Tony, 132 Braithwaite, J., 43, 49,146, 147, 203, 204, 206, 215, 229 reintegrative shaming, 43, 51 52, 65, 146 Bunreacht na hE´ireann, 70

Access to restorative conferences, 154, 155 Act for Ireland, 68 Affective resonance, 56, 207 Affect Theory, 12, 15, 43, 55 57, 65, 201, 202, 206 208, 231 Africa, restorative justice in, 3 Aims and objective, of study, 1 3 Alcohol consumption, 220 Alco Pops, 220 America, restorative justice in, 43 An Garda Sı´ ochia´na, 4, 6, 9 11, 72 73, 76, 79, 85, 88, 93, 97 98, 100, 112, 157, 224, 226 227 Adult Cautioning Scheme, 97 98 pilot programme, 85 87 and restorative justice programmes, 87 88 Youth and Children Strategy, 93 95 Youth Diversion Projects, 88 90 Anger-rage, 56 Anomie and juvenile delinquency, 22 24 Asia, restorative justice in, 3 Attack other response, 57, 208 Attack self, 57, 208 Australian Wagga Wagga model, 107 108

Case study methodology, 2 3, 150 159 access, 154 ethical considerations and potential bias, 153 154 forms of, 151 framework of observations, 155 157 generalisability, 152 origins of, 150 151 participant and non-participant observation in theory and practice, 158 159 triangulation of research, 152 153 validity, 157 158 Catholic Church, 69, 70 Catholicism, 69 ‘Cause and effect’, 151 Change and transformation (1990s), 76 78 Changes and culture, 221 222 Chicago School, 21, 41, 150

Beijing Rules, 77, 93, 134 251

252

Children, Young Persons and their Families Act, 113 Children Act 1908, 5, 68, 69, 71, 76, 81, 121, 125, 137 Children Act 1941, 71 Children Act 1989, 5, 130 Children Act 2001, 5, 7, 10, 11, 15, 58, 67, 69, 73, 77 80, 81, 83, 88, 95, 96, 97, 99, 108, 111, 226, 227 Children and Young Persons Act 1933, 121 Children and Young Person’s Act 1963, 122, 127 Children and Young Persons Act 1969, 123, 124 Children Bill 1996, 5, 77 Children Bill 1999, 79, 226 Children Detention School, 82 Children in Trouble White Paper Bill (1968), 123 Circles, 108 109 Clinton, Bill, 132 Community justice, pastoralism and, 34 37 Community policing, 113, 139 140 Compass of Shame, 15, 43, 57, 65, 201, 202, 203, 208, 231 Concept of restorative justice, 54 55 Conferencing in England and Wales, 110 Court-referred family conferences, 98 100 Crime, definition of, 20 Crime and Disorder Act 1998, 61, 110, 111, 113, 132 135 Criminal Justice Act 1948, 122, 128 Criminal Justice Act 1960, 71 Criminal Justice Act 1991, 130

SUBJECT INDEX

Criminal Justice and Public Order Act 1994, 130 Criminal justice process, restorative justice and, 216 Criminal justice system, 1, 9, 12, 45, 47, 51, 53 54, 58, 63, 71 73, 89, 91, 94, 100, 108 109, 112 113, 119, 127, 134, 137, 145, 146 147, 201, 204, 216 218, 222, 225 Criminal law, 20 Criminology juvenile delinquent, 21 restorative justice in, 3 ‘Cultural competence’, 142 143 Cultural disputes, mediating, 139 141 Definitions of restorative justice, 48 51 Delinquents, 21, 22 Department of Justice, Equality and Law Reform (DJELR), 7, 8, 96 Detention Centre Order, 122 Developments in restorative justice, 222 223 Deviance, 21, 23 Discipline, 26, 27 Disempowerment, 51, 218 Disgust, 56 Dissmell, 56, 207 Distress-anguish, 56 Durkheim and functionalism, 29 30 Durkheim’s theory of Anomie, 215 Effectiveness of restorative justice, 137 139

253

Subject Index

Elias theory of civilising process, 31 foucault and punishment, 32 ‘Elite perspectives’, 152 England and Wales conferencing in, 110 restorative justice and youth justice in, 120 background, 121 132 New Labour, new approaches to justice, 132 137 Enjoyment-Joy, 56 Ethical considerations and potential bias, 153 154 Europe, restorative justice in, 43 European Convention on Human Rights, 61, 134 Explanatory case studies, 151 Family group conferencing, 98, 99, 106, 107, 113, 159 Fear-terror, 56 Feminist theory, 215 Formal caution, 73 74, 94 95 Functionalist exchange, 14, 17, 27, 28, 38, 39, 161 162, 209, 230, 231 Functionalist perspective, 19, 30, 212, 215, 228 229 Garda conferencing/cautioning, 112, 218 219 Garda Juvenile Diversion Programme, 80 82, 112, 266 Garda Juvenile Liaison Officer Scheme, 73 Garda Juvenile Liaison Scheme, 81, 94, 111 Garda Observation Sheet, 156

Garda Sı´ ochia´na, see An Garda Sı´ ochia´na Governmentality, 24 25 Healing circles, 108 Health Service Executive (HSE), 69, 141, 148 Henchy Committee in 1974, 75 Human Rights Act 1998, 134 Implications for best practice in restorative justice, 219 220 Impromptu conferencing, 109 ‘In between’ stage, 220 Independent Observer, 86, 155, 158 159 Informal caution, 94 95 Instrumental discipline, 27 Interculturalism, 143 Interest-excitement, 56 International aspects of restorative justice, 112 114 Ireland, see Republic of Ireland Irish Constitution (1937), 70, 140 Irish juvenile justice system, 5, 69, 74 Irish welfare state, birth of, 70 74 Irish Youth Justice Service (IYJS), 7, 96 Irish youth justice system, 5, 67, 112 Justice and governmentality, 25 26 Juvenile delinquency, 21, 22, 24, 72, 77, 120, 124, 129 Juvenile Diversion Programme, 10, 15, 67, 73, 74, 79, 80, 82, 89, 94, 100, 112, 227, 228 Juvenile justice, 15, 18, 20, 41, 46, 67 70, 71, 76, 77, 79, 81,

254

93, 96, 120, 121, 124, 125, 127, 129, 130, 134, 136, 137, 139 Juvenile Liaison Officers (JLOs), 73, 79, 80, 86, 87, 97, 115, 155, 160, 162, 166, 169, 173, 180, 185, 210, 211, 212, 213, 219, 221, 227, 228, 231 Juvenile Liaison Officer Scheme, 72 73, 79, 80, 97 Juvenile offenders, 12, 72, 73, 79, 94, 113, 129, 219 220, 225 Kennedy Report (1970), 5, 75, 76 ‘Law and order’ policies, 15, 25, 37, 67, 126, 129, 130, 131, 144 Liberalism, 34, 125 Literature, views from, 111, 216 217 Maori tribes, 44 45, 106 Marx’s Alienation, 28, 29, 34, 215 Meaning, of restorative justice, 44 47 Merton, identity and resistance, 14, 19, 23, 30, 32 33, 41 Methodology, of study, 2 ‘Migrants’, 144 Morris Tribunal, 9 Multiculturalism, 16, 105, preparing restorative practitioners for, 143 146 training practitioners for, 141 143 National Advisory Committee on Drugs (NACD), 140, 141, 148

SUBJECT INDEX

National Commission on Restorative Justice, 90 93, 104 National Drugs Strategy 2001 2008, 141 National Juvenile Office (NJO), 12, 16, 73, 85, 87, 154 Need, for restorative justice, 43 ‘Need to stand firm against crime’, 127 Nenagh Community Reparation Project, 102 104 New Labour, new approaches to justice, 132 137 New South Wales, 112 New Zealand, 45, 60, 102, 108, 112, 116, 138, 159 Children, Young Persons and their Families Act, 113 family group conferencing in, 106, 113 Non-participant observation in theory and practice, 158 159 Northern Ireland, 16, 109, 147 restorative justice in, 114 120 Offender Reparation Panel programme, 101 Offenders, 3, 4, 31, 38, 44, 53 55, 60, 61, 62, 63, 69, 71, 75, 77, 79, 86, 92, 101, 102, 103, 106, 108, 110, 115, 127, 133, 145, 146, 147, 159, 160, 163, 168, 173, 179, 185, 190, 191, 192, 195, 197, 203, 204, 205, 208, 209, 210, 211, 213, 214, 215, 217, 218, 219, 221, 225, 227, 228, 231, 232

Subject Index

see also juvenile offenders Origins, of restorative justice, 44 47 Participant observation in theory and practice, 150, 158 Pastoralism and community justice, 34 37 Policy vacuum, in 1970s 1980s, 74 76, 83 Practices of restorative justice, 105 106 Practitioner’s perspective, 13, 202 Affect Theory, 201, 202, 206 208 effectiveness of restorative justice, 137 139 in England and Wales, 120 background, 121 132 New Labour, new approaches to justice, 132 137 importance of expertise in training for diversity in restorative conferencing, 146 147 international aspects, 112 114 mediating cultural disputes, 139 141 in Northern Ireland, 114 120 practices, 105 106 preparing restorative practitioners for multiculturalism, 143 146 programmes, 106 109 resolving conflict, 203 206 restorative cautioning, 110 112 on restorative justice, 105 training practitioners for multiculturalism, 141 143 youth justice systems, 110 Pre-sentence model, 100

255

Primary socialisation, 28 Principles of restorative justice, 48 51 Prison Act (1970), 72 Probation and Welfare Service, 98 100 Processes of restorative justice, 159 162 functionalist exchange, 161 162 mediation, 160 methodology of family conference, 160 161 ‘Public interest’, 53 55 Punishment, 40 and social control, 26 29 Racial integration, training for, 146, 204 REAL JUSTICE scheme, 88, 114 Re-civilising process, 40 Reintegrative shaming, 13, 15, 43, 52, 55, 60, 62, 65, 108, 138, 146, 203, 206, 209, 215, 230 Republic of Ireland, 4, 140, 151, 155 Children Act 1908, 5 Children Act 2001, 5 Department of Justice, Equality and Law Reform (DJELR), 7 Garda Sı´ ocha´na, 9 11 Irish juvenile justice system, 5 Irish Youth Justice Service (IYJS), 7 Irish youth justice system, 5 relocation of authority, 49 restorative justice in, 5, 85, 100 102, 111 112, 140 Garda Sl´ochia´na pilot programme, 85 87

256

law reform in, 95 97 Probation and Welfare Service, 98 100 recent developments in, 5 9 youth justice in, 5 9, 67 83 ‘Responsible family’, 121 Restoration as part of ‘civilising process’, 37 41 Restorative caution, 16, 60, 79, 97, 105, 108 Blackrock, Co Dublin, 213 Bray, Co Wicklow, 214 215 model of, 110 112 Shankill 1, Co Dublin, 212 swords, Co Dublin (case study), 162 166, 210 211 Restorative conferencing, 149 case study methodology, 150 159 expertise in training for diversity in, 146 147 procedures and practices, 159 restorative caution Blackrock, Co Dublin, 180 185 Bray, Co Wicklow, 192 199 Shankill 1, Co Dublin, 173 180 restorative caution, Swords, Co Dublin, 162 166 Shankill 2, Co Dublin, 185 192, 213 214 Stepaside, Co Dublin, 166 173, 211 212 Restorative justice, 3 4 Restorative Justice Initiatives, 218, 226 227 Restorative Justice Services (RJS), 100 102 ‘Restorative practices continuum’, 109 Restorative processes, 50, 59, 109, 119

SUBJECT INDEX

as a blueprint for the future, 226 Rewards and recognition, for victims and offenders, 217 RISE project in Canberra, 139 Royal Irish Constabulary, 9 Secularism, 34 Sentencing circles, 108 Service delivery and quality assurance, 218 219 Shame-humiliation, 56 Social control and punishment, 26 29 and theories of regulation, 19 Social facts, 29 Socialisation and functional roles in restorative conferencing, 209 restorative caution, Blackrock, Co Dublin, 213 restorative caution, Bray, Co Wicklow, 214 215 restorative caution, Shankill 1, Co Dublin, 212 restorative caution, Swords, Co Dublin, 210 211 restorative conference, Shankill 2, Co Dublin, 213 214 restorative conference, Stepaside, Co Dublin, 211 212 Sociological theories, juvenile delinquent, 21 ‘Sporadic unyoking’, 137 Strain theory, 32 Surprise-startle, 56 Symbolic reparation, 226 Task Force on Child Services, 75 Thatcher, Margaret, 127, 130

257

Subject Index

Theoretical critiques of restorative justice, 58 65 Theories of regulation anomie and juvenile delinquency, 22 24 crime, 20 delinquents, 21 deviance, 21 Durkheim and functionalism, 29 30 Elias theory of civilising process, 31 foucault and punishment, 32 justice and governmentality, 25 26 juvenile delinquency, 21 Merton, identity and resistance, 32 33 pastoralism and community justice, 34 37 punishment and social control, 26 29 restoration as part of ‘civilising process’, 37 41 and social control, 19 Theory of organic and social solidarity, 19 Theory/principles of restorative justice, 47 48 Validity and reliability, 157 158

Verbal apologies, 87 Victim offender mediation (VOM), 100 101, 106, 109, 159 Victim satisfaction, 86, 221, 230 Victim-threat dualism, 120 Wagga Wagga model, 107 108 Welfare state in Ireland (1960s), 70 74 ‘Welfarism’, 36, 120 121, 122 Withdrawal, 203, 208 Youth Conference Scheme in Northern Ireland, 16 Youth justice, 5 9, 110 Youth Justice and Criminal Evidence Act 1999, 61 Youth justice in the Republic of Ireland, 5 9, 67 1970s 1980s policy vacuum, 74 76 1990s change and transformation, 76 78 birth of Irish welfare state (1960s), 70 74 Children Act 2001, 78 79 Garda Juvenile Diversion Programme, 80 82 juvenile justice, origins of, 67 70 Youth Justice Policy in England and Wales, 120