Using Restorative Justice in Cases of Domestic Violence
We were recently asked our views on whether now is the right time to engage with the National Police Chiefs' Council to review their guidance on the use of the restorative justice in cases of domestic violence. Members' were concerned that the existing guidance, originally produced by the Association of Chief Police Officers (ACPO), is not consistently being implemented which has, understandably, created confusion amongst practitioners. Given that this guidance is now 9 years old and, in light of the amount of successful restorative justice cases being reported, is now the time for policy review?
The use of restorative justice for cases of domestic violence has been widely debated over the past 10 years and yet we are no further forward in ensuring policy reflects current practice. Decisions on whether or not restorative justice can be offered for cases of this nature are being made based on policy which reflected the thinking at the time; our practice and available evidence base has changed considerably since the publication of (ACPO) Restorative Justice Guidance in 2011.
This guidance clearly states:
- At present, ACPO policy for domestic abuse/domestic violence does not support the use of RJ in determining outcomes in this area. DA/DV represents serious risk to the victims of such offences and is often subject to a complex and protracted investigation. As such there will be little opportunity for the use of RJ in the vast majority of such offences.
- We do recognise that RJ is a customer focussed methodology and if a victim of such an offence demands RJ then it is for the individual officer to consider, in line with their respective force policy and the guidance already issued by ACPO DV as to whether furtherance under RJ is appropriate.
It is this policy statement that Chief Constables will base their decision making regarding the use of restorative justice in case involving domestic abuse/domestic violence. Some RJC members have expressed concern that this is the case. It has been highlighted that some force areas have said that it is definitive no for considering restorative justice in such cases and that it is clear within the ACPO Restorative Justice Guidance (2011) that the use of restorative justice in cases of domestic abuse/domestic violence is not supported. We are aware that this is not consistently applied across all force areas; indeed there are some extremely positive examples of where restorative justice is successfully being used with cases of this nature.
The position that restorative justice should be available regardless of the type of offence (subject to risk assessment) has proved controversial, particularly for domestic abuse and sexual offences. This was highlighted within the Justice Committee's Fourth Report of Session 2016 - 2017 which focused on Restorative Justice.
Evidence presented during this inquiry by organisations working with survivors of domestic raised concerns that restorative justice could be potentially harmful for victims of domestic abuse and, in some cases, be another way for perpetrator to continue their control and abuse. The then Home Secretary, Rt Hon Theresa May MP, stated 'it does not follow common sense to sit vulnerable victims in the same room as the perpetrator.' Other witnesses expressed concern that in some cases, police officers were using street-level restorative justice or community resolutions in cases of domestic violence. This, of course, is not acceptable and risks bringing restorative justice into disrepute.
Whilst acknowledging the risks, other witnesses at the inquiry argued that the use of restorative justice had potentially significant benefits to victims. The RJC representative quoted a victim of domestic abuse who had engaged in restorative justice as saying:
'When I walked out of that meeting, I felt as if I could knock out Mike Tyson. I could have taken on anything or anyone. In the days and weeks afterwards, it was as if a massive weight had been lifted off my shoulders. I had been carrying it for so long that I did not even notice it anymore, so when it disappeared it was amazing. I felt completely empowered.'
The Justice Committee's final report stated:
It is a matter of great concern to us that “Level One” restorative justice is being used by police forces in cases of domestic abuse. This risks bringing restorative justice into disrepute. It is crucial that frontline police officers are fully informed of the risks for vulnerable victims in such cases. We recommend that it be reaffirmed that “Level One” restorative justice is not appropriate for cases of domestic abuse and the Ministry of Justice work with police forces to ensure officers have proper guidance to avoid using restorative justice in inappropriate circumstances.
We agree in principle that restorative justice should be available for all types of offence. While restorative justice will not be appropriate in every case, a brightline exclusion rule is contrary to the aims of the Restorative Justice Action Plan. Despite this, given the clear risks of restorative justice for certain types of offence, we understand why some service providers have restricted use of restorative justice for certain types of offence, particularly domestic violence and sexual offences. In order to help promote the use of safe restorative justice in such cases, we recommend the Ministry of Justice work with the Restorative Justice Council to create and fund training and promote guidelines of best practice for facilitators in such cases. (Paragraph 36)
In its response to the Justice Committee’s Fourth Report of Session 2016-17: Restorative Justice the Government stated:
The Government’s position is that adult perpetrators of domestic abuse should, wherever possible, be prosecuted. Alongside that, victims have a right to access restorative justice services to help them address their needs. As stated above we have always been clear that the police should not use level one (also known as ‘street’) restorative justice in cases of intimate partner domestic abuse. In cases involving young people, the principal aim of the youth justice system is to prevent reoffending. A range of statutory obligations and international conventions emphasise the importance of considering young people’s welfare and avoiding ‘criminalisation’ of young people. Prosecution may not be appropriate and responses should be both individualistic and proportionate, restorative justice may form part of this response. The safety of the victim is always paramount when taking a decision to proceed with a restorative justice process, irrespective of the offence committed. However, particular care is needed in relation to domestic abuse. It is essential to preserve the physical safety of the victim and for service providers to be alert to the potential risk and signs of coercive and controlling behaviour by the perpetrator. We are in the process of producing a paper which sets out the issues that need to be addressed (including consideration of any guidance or training) before restorative justice is taken forward in such cases.
The RJC, both at the time of publication and now, agree with the recommendations outlined within the Justice Select Committee's final report. In statement released by the RJC in September 2016 we stated:
'The Justice Select Committee is right to recommend that restorative justice should be available to victims of all types of crime. While some types of crime, and particularly domestic abuse, require robust risk management, wherever possible victims themselves should be able to decide whether restorative justice can help them to move on. The Restorative Justice Council are clear that Restorative Justice can, in certain circumstances, be useful in domestic abuse cases – but only if the survivor’s safety remains paramount. The survivor must feel in control of the process, and it must have no impact on the perpetrator’s criminal sanctions. Restorative Justice must never be taken as an opportunity to minimise the perpetrator’s crime, or be used as an alternative to a more serious criminal justice sanction. We strongly support the Committee’s recommendation that training should be developed to ensure that restorative justice practitioners are able to safely manage cases involving domestic abuse. Specialist training on domestic abuse – and especially coercive control – must be undertaken by all Restorative Justice practitioners.'
There has been little movement in developing policy or practice following the recommendations made by the Justice Select Committees report; this is most evident if we consider the recommendations outlined within the Sex Discrimination Law Review Report published by the Fawcett Society in January 2018. Their report makes three recommendations related to the use of restorative justice in cases of domestic violence (p.56):
- “Street level” restorative approaches should not be used in cases of domestic abuse or sexual violence; the College of Policing and National Police Chief Guidance needs to be strengthened with regard to this issue.
- There must be greater transparency about the use of restorative approaches in domestic abuse cases to enable police forces to develop best practice and share experiences – positive and negative. Data should be routinely collected and held centrally and forces should answer for any use of resolutions that are contra-indicated by College of Policing guidance.
- Restorative justice measures above street level should not be used in cases of domestic abuse until women’s organisations are confident that they are being delivered in a way which will not harm victims or survivors. Women’s organisations should be consulted in their future development.
Whilst the Fawcett Society review is welcomed, it is disappointing that the recommendations largely reflect those made by the Justice Select Committee in 2016. It is equally disappointing that 2 years on from this review there is still a lack of clarity within national guidance and, in some instances, inconsistencies in how the existing guidance is interpreted and applied in practice.
This discussion continued during our 1st Annual Conference in 2019. Dr Fernanda Foneseca Rosenblatt, Assistant Professor at the International Institute for Restorative Practices, presented her paper entitled 'Victims of domestic violence, their justice needs and the odds of a restorative way forward.' Whilst recognising the potential risks of using restorative justice in cases of domestic violence, she highlighted several potentialities:
- The potential for restorative justice to empower victims of domestic violence
- Restorative conferences have been found to reduce post-traumatic stress levels of victims (of any violent crime)
- Underlying conflicts can be discussed/considered
- Victim satisfaction rates are high (feelings of informational, interactional and procedural justice)
- Potential to prevent reoffending (at least, same offender against same victim)
- Restorative justice is feasible and may well be desirable for cases of domestic violence
Dr Rosenblatt closed her presentation stating:
We have fought so hard to make domestic violence visible and defined as a significant social issue, that is, we have fought so hard to open criminal justice system's doors to what historically was a 'banalised' private matter; it doesn't make sense that we now put obstacles to the opening of other doors that victims wish to enter.....
Dr Fernanda Foneseca Rosenblatt, 2019
To move this discussion forward, it is important that we understand the current landscape. We are aware of some examples where restorative justice has been successful in cases of domestic violence; we are also aware of specialist practitioner development courses being offered to those managing domestic violence cases but we are interested to find out more and build an evidence base to progress discussions in this area of practice.
Have you facilitated a domestic violence case? If so, could you write us a case study?
Have you attended specialist restorative justice and domestic violence training and, if so, how has this impacted on your practice?
What have been the barriers to progressing cases involving domestic violence?
Do you accept referrals for cases involving domestic violence? If not, what prevents you from doing so?
How do you ensure your practitioners have the skills, knowledge and experience to manage these cases?
Should we be widening the definition of domestic abuse to include family groups where children are the perpetrators?
Do you offer specialist training for practitioners managing domestic violence cases? If so, what additional skills and knowledge does this training provide?
How have you developed the content of specialist domestic violence courses?