Victim-offender mediation with juvenile offenders in ireland

Abstract

Victim-offender mediation (hereafter VOM) is not yet a significant feature of the Irish criminal justice system for either adult or juvenile cases. Until recent years, victims tended to be kept largely on the margins of the criminal justice system, with little direct involvement in proceedings apart from giving testament as witnesses when required. Various reforms have taken place aimed at improving the position of victims but these have not included generalised provision of opportunities for mediation. As at mid-2004, VOM based on a formal structure of referrals from one agency to another was confined to one local programme in Dublin. It deals predominantly with adult cases referred from court at the pre-sentence stage. Two other programmes, one in Dublin and one in a rural area, can be said to have a mediation element. They involve court referrals to a community reparation panel. They deal mainly with adult cases, often without victims, but a small number of cases have involved juveniles and victims. Mediation between juvenile offenders and their victims is much more likely to occur under provisions in the Children Act 2001. These allow for Restorative Justice (RJ) interventions by the national police and probation services. At the time of writing, most cases involving such mediation have taken place within the framework of the Garda Juvenile Diversion Programme. This is operated by the police force2 and is designed to divert young offenders3 away from criminal activity and out of the criminal justice system. Offenders who are under age 18 and are admitted to the programme can be dealt with by means of police caution, formal or informal. The mediation element arises from the provision in the Children Act for the invitation of victims to formal cautions. Where the victim attends, offenders have the opportunity to apologise direct to the victim and, where appropriate, make financial or other reparation. A family conference can also be arranged with a view to addressing the child's behaviour and its impact, with similar opportunities for victim participation and outcomes. Mediation can also arise in family conferences organised by the Probation and Welfare Service. These are provided for under the Children Act but the relevant provisions were only given legal effect on 29 July 2004 and no conferences had taken place at the time of writing. The conferences relate to offenders before the court who are aged under 184 and accept responsibility for the offence. Victims must be invited to attend, unless their attendance would not be in the best interests of the conference. These services and programmes are described in more detail in the following paragraphs. The main focus is on the Garda programme. This reflects the greater practical experience of mediation with juvenile offenders under that programme, facilitated by the earlier introduction into law of the relevant legal provisions (1 May 2002 as compared with 29 July 2004 for the probation programme) and operation of a pilot police programme from 1999. Furthermore many of the provisions in the Children Act governing the probation "family conferencing" option are based on the police "conferencing" option. VOM for juveniles is a small dimension of the other programmes mentioned. The Garda programme is therefore dealt with first and then the other programmes are presented under similar headings. The Garda programme is national in coverage and restorative interventions take place in all 25 Garda Divisions. It is possible that VOM will become a significant feature in future, with the police authorities developing the programme in a variety of ways. The emphasis has been on capacity-building, persuasion and support rather than compulsion or imposition of targets. While initial numbers were modest - 147 cases in the 20 months from commencement of the statutory provisions to end-December 2003 - the trend has been upwards, with the average in the first seven months of 2004 double that of the earlier period. The final potential is difficult to estimate since not all formal cautions involve suitable victims or offenders, but if all formal cautions were to be processed restoratively, this could entail up to 1,500 sessions per annum. Restorative justice interventions on this scale would raise awareness and stimulate interest in other arenas. The Garda model is one common to restorative cautioning by police and family conferencing in other countries. Key values include offender responsibility and accountability, victim and offender family involvement and empowerment, offender reintegrative shaming, harm repair, inclusiveness, forgiveness and support. A critical difference between the Garda model and other models is the extent to which offender participation is voluntary and the absence of any automatic sanction if an offender fails to honour any agreement made at a restorative caution or conference. Other distinguishing features include the role of police officers in selecting, organising and facilitating restorative events. © 2005 Springer.