Restorative justice: policy and practice framework

17. The restorative justice process

17.1 The National Strategy for Community Justice[xvii], published by the Scottish Government, includes a priority action that community justice partners should, “Ensure restorative justice is available across Scotland to all those who wish to access it by promoting and supporting the appropriate and safe provision of available services.”

17.2 For adult RJ services, this should be achieved through collaboration across the Community Justice Partnership (CJP) within the local authority area. In particular, by: raising awareness of restorative justice services which are available locally; ensuring that staff in relevant services are attending national awareness and facilitation training; and, that any restorative justice service within the area is supported to make contact with relevant local support services to help address the needs of those accessing (or wishing to access) restorative justice.

17.3 The work of local community justice partners can be monitored within the Outcome Activity Annual Report returns to Community Justice Scotland (CJS) and their own statutory annual reports under Section 23 of the Community Justice (Scotland) Act 2016[xviii]. The CJP should also enable other organisations, including the third sector, to promote and support RJ.

17.4 For children, there is no equivalent strategy which explicitly sets out expectations in relation to RJ delivery. However, referral to RJ should be regarded as an important element of responses to, and support for, children in conflict with the law. It should therefore be given due regard in Children’s Services planning and delivery. Clearly it is essential that any RJ service must be fully child-centred, be grounded in GIRFEC principles, and delivered by appropriately trained and supported workers.

17.5 In cases defined as ‘gender based violence’ by Public Health Scotland[xix], referrals for RJ will only be accepted from persons harmed and not persons who have caused harm. In such cases, extensive investigation must be undertaken by the RJ service provider to ensure that the person who has caused harm is not considered to pose a risk to either the person harmed or any other person involved in the RJ process. This will require collaborative working with criminal and community justice stakeholders, alongside the use of appropriate risk assessment, strengths-based approaches, and risk mitigation practices to reduce the likelihood of RJ being misused to further abuse or cause re-traumatisation.

17.6 As previously stated, RJ is not appropriate where a person who has caused harm does not accept any responsibility for that harm. Where a case has been reported to the Crown Office and Procurator Fiscal Service (COPFS), forms of RJ which support any direct engagement between a person harmed and the person who caused the harm (e.g. conference, shuttle dialogue) should only take place once the criminal justice process has concluded either with a disposal, conviction, or acquittal, or if the prosecutor does not take action in the case. Prior to this, only indirect forms of RJ (e.g. “no-send” letter writing, healing circles – see also section 8) should be accessible if either party wishes to explore those.

17.7 Where the person who has caused the harm is a child, and the case is going through the Children’s Hearing process, there should be no restrictions on when RJ can be accessed and implemented, irrespective of the age of the person who has been harmed. It should not be delayed by, or dependent upon, a Children’s Reporter decision making process, or the establishment of offence grounds. However, where the person who has caused the harm (whether a child or an adult) is going through the criminal justice process, some restrictions on commencing an RJ process might be required prior to a case being concluded.