What does accessible Restorative Justice look like?

‘Restorative Justice is real justice,’ someone said to me this year. That person was speaking after a presentation we made to the Learning Disability and Autism Advocacy Group last month. I felt proud and pleased that we had made such an impact and got our message across. At the same time, I was concerned about the accessibility of the Why me? Restorative Justice service and the wider sector. My concern was not just for people with a disability but those with other protected characteristics, including those who end up being victims of hate crime or those who are discriminated against because of who they are. I was also concerned for people with language barriers who might have difficulties accessing the criminal justice system.

I write as a white woman living in the UK and my own life experience shapes my view of these issues. I acknowledge my privilege in the world and this writing is one part of my commitment to create change and make the world a more equal place.

This article will focus on what inclusive looks like for service users, practitioners and organisations in restorative justice (including those who could benefit but are not accessing it). I will also address the challenges of working restoratively when our fundamental values are in opposition to those in our criminal justice systems. And finally it is imperative to acknowledge structural inequalities which exist in society and how they inform what we do, as well as what we might do next to make a change.

As practitioners, managers, academics and change-makers, we urgently need to acknowledge the wider harm and violence which plays out through every aspect of our lives.

As people who understand that restorative justice offers a positive way to live alongside each other, we may also assume that by simply ‘doing restorative’ we are doing good. As long as we stick to the processes, we will maintain standards and give everyone a fair chance to participate. However, this assumes that restorative justice is somehow immune to the structural inequalities which inform discrimination across all spheres; this is simply not true.

As practitioners, managers, academics and change-makers, we urgently need to acknowledge the wider harm and violence which plays out through every aspect of our lives. When a young person who has committed a crime comes to us, the context in which they have committed that crime is paramount. In Northern Ireland, for example, where Tim Chapman has undertaken restorative processes with people who have committed acts of terror, the predominant context is sectarian conflict. It is only safe to proceed in these circumstances by acknowledging the lived experience and characteristics of all parties, including the facilitators, and how historical and contemporary politics informs what is happening.

This should be no different for a young black Muslim man who comes from a deprived area in a European city who has been arrested for drug dealing.

This should be no different for a young black Muslim man who comes from a deprived area in a European city who has been arrested for drug dealing. If they are lucky enough to be referred to a restorative service, then does it feel to them like another part of the same system? Delivered predominantly by white people from wealthier backgrounds? Certainly in the UK, leadership of the criminal justice system and indeed of the restorative justice (RJ) sector is majority white, and yet disproportionate numbers of black and minority ethnic people are ‘using’ the system. So we have to ask ourselves, are we fit for purpose as a sector and what can we do to address it? Guilt does not work, it paralyses. Listening to people with protected characteristics is a good start.

At Why me? in the UK we have been making some inroads to this question through our work on the use of RJ for Hate Crime over the last three years.

Hate crime usually affects the most marginalised people in society, has very poor prosecution rates and low victim satisfaction. The criminal justice system is a blunt tool to address the complexities of hatred and also the impact on an individual when their identity becomes the object of attack. During the course of this work, we have identified a number of features of well-functioning RJ services which have the potential truly to address hate crime. These include engaged leadership, well-managed data and referral processes, a diverse staff team that has had up-to-date equality and diversity training and strong community partnerships. In one region, we found that the multi-agency leadership team, including Police and Youth and RJ Services, regularly reviewed outcomes for hate crime in their area, including restorative interventions. This process enabled adjustment of frontline services to meet more people’s needs rather than delegating everything down to the frontline and most junior staff.

What we have to be alert to is the needs we can’t see or perceive ourselves because of our own perspective and knowledge.

We also identified details about what made a service more accessible, for example,

• not using police numbers or unknown numbers to contact victims;
• contacting people during weekends when they may have more time to talk;
• using appropriate pronouns (ask them!);
• not ‘dead’ naming a transperson (use their birth name);
• providing interpreters;
• providing accessible meeting places or alternative online meeting places.

These lists can be overwhelming, but if we take a more structural approach, we will enable ourselves to make systematic change within our organisations and services from which the details will flow. Well-trained RJ facilitators make preparatory plans for meetings anyway; so they will understand the need for attention to detail in meeting people’s needs. What we have to be alert to is the needs we can’t see or perceive ourselves because of our own perspective and knowledge. The experts are the participants; so listening and asking questions play a key role here in equipping us with the essential information to be as effective as we possibly can.

Here I look at three groups of people with protected characteristics and their access to RJ which we have worked on at Why me? These are by no means exclusive and we acknowledge gaps both here and in our work, which we will be addressing.

There is a requirement to examine the way we operate as organisations, in terms of both the people we employ and also the processes we deploy to continually review equality and diversity. For example, it is proven that black people are more likely to apply for jobs where there is a majority black staff. In Sheryl Wilson’s ‘Calling out Whiteness’ in Colorizing Restorative Justice (Valandra and Hokšíla, 2020), she interviews black practitioners who say they feel routinely ignored and their lived experience under-valued. This cannot be healthy for these restorative practitioners as individuals, nor for the young people they are working with. Her essay provides a highly recommended set of group discussions and workshops for organisations seeking to address racism.

How can we as restorative professionals and organisations challenge rather than replicate the unequal power structures in society? Fania Davis’ inspirational Little Book of Race and Restorative Justice (2019) explores how race and the US criminal justice system intersect and provides a beacon of hope and ideas for practitioners and policy-makers who are committed to social change.

Evidence shows that a young person may admit they did something in a restorative conversation which also acknowledges their life experience and the structural violence they live within.

Both Fania Davis and the twenty authors in Colorizing Restorative Justice challenge us to commit to building restorative settings which address racism in everyday policy and practice. This will prevent restorative justice itself from enabling discriminatory conduct, because that is the default way the justice system and society operate. One powerful example in the UK, but not unique to our situation, is the precondition of admittance of guilt for a restorative intervention to take place, which can be a barrier to many young people from black and minority ethnic (BAME) backgrounds, often called the trust deficit (Lammy, 2017). Evidence shows that a young person may admit they did something in a restorative conversation which also acknowledges their life experience and the structural violence they live within. This is not to say the restorative sector should be offering to be the instruments of the state in obtaining guilt confessions, simply that working with young people restoratively can address their needs and can potentially help them avoid getting a criminal record.

Lesbian, Gay, Bisexual and Trans (LGBT+) people suffer from acts of hate on a daily basis. One in five LGBT+ people have experienced a hate crime or incident because of their sexual orientation and/or gender identity in the past twelve months. Two in five trans people have experienced a hate crime or incident because of their gender identity in the past twelve months.

… many LGBT+ people are not confident about reporting the police or authorities for fear of being re-victimised because of their identity.

Why me?’s London LGBT project provided a restorative service to people referred to us by GALOP, a trusted LGBT specialist provider in the city. Most of the referrals were hate crime incidents which did not reach the threshold for criminal prosecution. But also many LGBT+ people are not confident about reporting to the police or authorities for fear of being re-victimised because of their identity. If you want to find out more about our LGBT project, the main findings and practice guidance can be found in my colleague Linda Millington’s chapter for the the European Safe to be handbook (Millington, 2020).

For us as a service we need more external indications that we are LGBT+ friendly, such as website and social media feeds; we need to recruit a more diverse group of facilitators, improve our own internal reflective practice and continue to build trusted partnerships with specialist organisations.

People with LDA do not see the criminal justice system as a safe and friendly place to report to and access justice.

In the UK, under 5% of disability hate crime is reported. Most people with Learning Disabilities and Autism (LDA) absorb the hate, see it as part of everyday life and just want it to go away. LDA hate crime is often repeated and can escalate to physical violence and murder. People with LDA do not see the criminal justice system as a safe and friendly place to report to and access justice. Indeed for many, reporting can add another layer of trauma. While we support higher rates of prosecution for hate crime, restorative justice can play a part in addressing the needs of people with LDA. It can help people tell their story, express their emotions, establish a personal and rehabilitative narrative, and sometimes be instrumental in achieving desistance in the person who committed the crime.

So what do people with LDA need? Simple and direct communication. A fundamental requirement is to have all the information about restorative consent, data protection and confidentiality in an easy-read format — both online and offline. However you also need the same information in long form for their carers and relatives who may be supporting them. Practitioners need a full understanding of the vulnerability of the person. They may be dependent on a carer or relative who could be the person perpetrating the crime against them and so could also be subject to coercive control. Or they may be lonely and be subject to ‘mate crime’ — where someone befriends them but may also be stealing from them or move into their accommodation without consent (known as cuckooing).

We have found that it is fundamentally important to work closely with a trusted and specialist organisation, just as we have been doing with Mencap, who also provide referrals and co-produce appropriate materials. In addition to this work, as an organisation, we need landing pages on our website, symbols which indicate our intent, such as Mencap logos, LGBT+ flags and advertised membership of our affiliation to organisations which are led by and for people who suffer discrimination.

This Covid-19 pandemic has helped me to understand more clearly the inequalities we live with and the structures which support their perpetuation. For me, this has brought home the urgency of taking action to address my own prejudices and to ensure that Why me? is fit for purpose in providing and promoting restorative justice. Now more than ever, the world needs positive solutions and remedies, and I am convinced that restorative justice is an essential and powerful part of that vision.