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Article

The Delivery of Restorative Justice in Youth Offending Teams in England and Wales: Examining Disparities and Highlighting Best Practice

School of Sociology and Social Policy, University of Nottingham, Nottingham NG7 2RD, UK
Laws 2022, 11(4), 60; https://doi.org/10.3390/laws11040060
Submission received: 7 June 2022 / Revised: 14 July 2022 / Accepted: 15 July 2022 / Published: 28 July 2022

Abstract

:
Since the establishment of Youth Offending Teams (YOTs) in England and Wales in 1999, all victims of youth crime, must, in accordance with national instruments, be consulted by YOTs as to their wishes and provided with the opportunity to get involved in a restorative justice (RJ) initiative. RJ should be the underlying principle for all youth justice disposals and victims must be invited to be part of the process. If, as evidenced and consistently outlined in guidance, policy and research, the fundamental principle of inclusivity and victim participation are imperative to RJ, then to what extent are YOTs in England and Wales ‘fully’ restorative? Drawing upon the findings of a larger empirical study, this article specifically examines the use of RJ in seven YOTs in England and Wales to demonstrate that RJ has not been fully integrated into practice nor widely embedded into YOT culture. Victims of youth crime, continue to be systematically excluded from RJ. This paper outlines the disparities in the delivery of RJ amongst YOTs, demonstrates the reasons for service delivery disparities and concludes by evidencing best practice.

1. Introduction

In England and Wales, the ‘populist punitive’ stance of the 1990’s—whereby the public call for increased ‘law and order’ and punitive sanctions (Bottoms 1995)—included a demand to be tough on young ‘offenders’. The ‘populist punitive’ political response to public concerns vis-à-vis youth crime was evidenced in the significant rise in the number of youths entering the criminal justice system (CJS) and large incremental increases in the number of young people sentenced for indictable offences (House of Commons 1998). In 1997, the number of young people sentenced to immediate custody had risen by over 60% since the beginning of the decade and there was a record high number of youths (10,810) serving custodial sentences (Home Office 1997a, p. 161). Yet, England and Wales’ ‘populist punitive’ approach to youth justice was not being replicated in other jurisdictions, which were instead adopting a more welfare-focused, restorative approach to youth crime.
In Scotland, a far more welfare-focused approach to youth justice was being taken through the use of the welfare tribunal system of Children’s Hearings (established in the 1970s and 1980s), based upon the principles of communitarianism, participation and diversion to divert young offenders away from the formal court system (Bottoms and Dignan 2004). Whilst not truly restorative (as hearings did not involve the victim), the hearings were out-of-court, community-led hearing panels that can be loosely classed as ‘partly restorative’ (McCold 2000) as they incorporate and bring together both the offender and the community to deal with the offence (community involvement through the use of lay members of the public as panel members). The Children’s Hearings were hailed as actively contributing to the reduction in the number of youths being formally processed through the youth court system (in comparison, the numbers in England and Wales rose, as stated above) (Bottoms and Dignan 2004).
Further afield in New Zealand, a more welfare-oriented approach to youth justice was being taken during the early 1990s and RJ was implemented as a response to youth crime. Family Group Conferences (FGCs), in which offenders, victims and supporters meet together with an impartial facilitator and representatives of the CJS, were statutorily introduced to the youth justice system (YJS) in New Zealand through the Children, Young Persons and Families Act 1989. The success of RJ as a youth justice approach in New Zealand steered the rise of RJ in Australia, where FGCs were adapted as a youth ‘restorative community policing’ strategy (widely known as a restorative conference or the ‘Wagga process’) (Shapland et al. 2011). The ‘Wagga’ restorative community policing process was expanded upon and a large scale RJ reintegrative shaming experiment (RISE) was embarked upon in Canberra, Australia (Dignan and Lowey 2000). Closer to home (and with direct links to New Zealand’s use of RJ within youth justice), Northern Ireland statutorily introduced RJ into youth justice within the Justice (Northern Ireland) Act 2002, by which all young offenders whose cases reach the youth court are mandatorily referred (if the young offender is in agreement) to a RJ conference.
Whilst England and Wales’s national approach to youth justice during the 1990’s was punitive in nature, at ground level, RJ was beginning to be used as an alternative justice process; for example, in 1994, Thames Valley Police adopted an experimental restorative youth conferencing programme based upon Australia’s ‘Wagga Wagga’ policing initiative (the programme was subsequently formally rolled out in 1998). In 1997, the white paper No More Excuses—A New Approach to Dealing with Crime highlighted a lack of focus on youth offending and a lack of co-ordination amongst the agencies involved (Rix et al. 2011). A pivotal turning point for youth justice in England and Wales occurred in 1998, when, in response to the growing youth crime problem, the YJS was overhauled within the Crime and Disorder Act 1998 and the Youth Justice and Evidence Act 1999. Youth Offending Teams (YOTs) were established in the Crime and Disorder Act 1998 and RJ was integrated (in policy) within youth justice practice in England and Wales. YOTs were meant to be based on restorative principles and the main aim of YOTs was to ‘prevent offending by children and young persons’ (Crime and Disorder Act 1998, sec. 37) through coordinated provision of youth justice services and multi-agency intervention (Crawford and Newburn 2003). Furthermore, the 1998 and 1999 Acts introduced an array of new community sentences which were intended to be restorative in nature and to ensure that the victims’ views were sought, including the youth court Referral Order (RO) sentence (Home Office 1997b).
Since the Youth Justice and Evidence Act 1999, all first-time offenders who plead guilty (this restriction of use to first-time offenders was subsequently retracted in the Legal Aid Sentencing and Punishment of Offenders Act 2012) are sentenced to a mandatory RO. The RO is a court order that refers the young offender to a Referral Order Panel (ROP). Within the Youth Justice and Criminal Evidence Act (1999), YOTs were given statutory responsibility to administer ROPs and ROPs should be based on the underlying principles of RJ: restoration, reintegration and responsibility; the overall youth justice approach should also be based on these three RJ principles (Home Office 1997a). The ROP is a mandatory panel that must take place within 20 days of the order being passed. The panel is comprised of one YOT worker, (at least) two community members and the young offender and the young offender’s ‘parents or carers where relevant’; moreover, the victim ‘(where appropriate)’may be present (Ministry of Justice/Youth Justice Board 2018, p. 2). The RO contract that is constructed, agreed and signed in the ROP meeting must always contain some form of reparation which should be directed to the victim, the wider community or ‘any person who appears to the panel to be a victim of, or otherwise affected by, the offence, or any of the offences, for which the offender was referred to the panel’ (Youth Justice and Criminal Evidence Act 1999, p. 7). Victims should ‘be offered information about the Referral Order, consulted as to their wishes and invited to be involved in a restorative process’ (including attending the ROP and subsequent panel meetings or having their views represented to the panel), being given the opportunity to engage ‘in victim offender mediation […] or shuttle mediation’ (Ministry of Justice/Youth Justice Board 2018, p. 8). The RO is the main sentence used within youth justice (60% of total community sentencing and 41% of total juvenile sentencing: Ministry of Justice/Youth Justice Board 2016) and is where the integration of RJ within youth justice is most evident.
In 2008, the new generic community order, the ‘Youth Rehabilitation Order’ (YRO), was introduced in the Criminal Justice and Immigration Act 2008. Whilst there is no specific referral to RJ, reparation is in the statute—the young offender makes reparation to the persons affected by the offence and this can be through a specified activity ‘whose purpose is that of reparation […] involving contact between an offender and persons affected’ (Criminal Justice and Immigration Act 2008, s7, p. 123). The YRO is the main community sentence (after ROs) used with young offenders (Ministry of Justice/Youth Justice Board, 2016). In 2014–2015 ROs and YROs accounted for 99% of all community sentences and 68.5% of sentencing outcomes for young offenders found guilty (Ministry of Justice/Youth Justice Board 2016).
Further support of the implementation of RJ within youth justice was provided in 2010 in the ‘Independent Commission on Youth Crime and Antisocial Behaviour’) ‘Time for a fresh start’ report and also in the Youth Justice Board’s 2013 ‘National Standards for Youth Justice Services’ publication. The 2010 Independent Commission on Youth Crime and Antisocial Behaviour report (Independent Commission 2010, pp. 5, 90) concluded that a ‘fresh start’ in responding to youth crime was required and RJ should be ‘placed at the heart of the youth justice system’ and ‘become the standard means of resolving the majority of cases either pre-trial where prosecution is an alternative option, or when children and young people are convicted by a court’. The subsequent 2013 Youth Justice Board’s National Standards for Youth Justice Services publication outlined that RJ should be ‘an underlying principle for all youth justice disposals, from out of court disposals and Referral Orders to Youth Rehabilitation Orders, and within custody’ (Youth Justice Board 2013).
The embodiment of RJ as a key youth justice process was further evidenced in the Code of Practice for Victims (VCOP) (Ministry of Justice 2015) which stipulated that YOTs should provide services to victims including RJ. The VCOP outlined that victims’ views should be sought ‘prior to sentencing and the YOT should explore whether the victim ‘want[s] to get involved in any RJ initiatives’; victims ‘are entitled to be offered the opportunity’ by their local Youth Offending Team ‘to participate in RJ where appropriate and available’ (Ministry of Justice 2015, p. 35). The latest VCOP iteration published in 2020, states that victims now have a ‘right’ to ‘receive information’ about RJ from the YOT (Ministry of Justice 2020, p. 16).
The most recent youth justice guidance on the use of RJ was provided within the Ministry of Justice and the Youth Justice Boards’ Referral Order Guidance. The 2018 guidance reiterated that ‘youth offender panels operate on RJ principles’ and that they should be ‘conducted restoratively and in accord with the principles and ethos of restorative practice’ (Ministry of Justice/Youth Justice Board 2018, p. 19). Furthermore, the guidance states that it ‘is essential that victims are invited and welcomed to be part of the RO process and that victims should have the ‘opportunity, as a matter of course, for a face to face meeting with the YOT RJ or Victim Liaison Worker’ (Ministry of Justice/Youth Justice Board 2018, p. 31).

1.1. Benefits of RJ to Victims

Research (that has included victims of youth offenders) has found that victim satisfaction levels are higher for victims who have participated in a RJ process than for victims who have only been through the mainstream criminal justice process (Shapland et al. 2011). Informational justice is key to victims’ perceptions of justice (Kernan and Hanges 2002). Victims perceive the RJ process to be ‘procedurally just’, which therefore improves victim satisfaction and wellbeing (Tyler 2000). Numerous studies over the past few decades have highlighted the psychological benefits to victims of participating in a RJ process and how these benefits are far higher than the benefits experienced through the conventional court process (see Poulson 2003; Umbreit et al. 1994; Angel 2005; Strang et al. 2006; Shapland et al. 2011). Victims who participated in RJ (indirectly and directly) were significantly more likely to believe that the offender had been held accountable and to say that the process and the outcome had been fair, that through communicating (directly or indirectly) with their offender their voice had been heard, and that they had been able to get answers to their questions and had the opportunity to be involved in the decision-making process (see Hoyle 2002; Van Camp and Wemmers 2013; Shapland et al. 2011). Moreover, victims who participate in RJ report inter alia an increased sense of empowerment in relation to keeping themselves safe, increased feelings of self-worth and increased awareness of self and situational context (Brathay Trust 2017).

1.2. Benefits of RJ for Youth Offenders

Notwithstanding the benefits of RJ for victims, many of the psychological benefits outlined above are not exclusive to victims; a review of empirical studies on the psychological outcomes of RJ conducted by Poulson 2003 determined that young offenders who participate in RJ are more likely to: perceive the process and outcome to be fair; to be satisfied with the way that their case has been handled; feel that their opinion has been considered; and to have better understanding of the impact of their behaviour on their victims. Young offenders who have been through a restorative conference process are more likely to show feelings of repentance (Kim and Gerber 2012) and significantly more likely to spontaneously apologise to the victim (Poulson 2003).
Many young offenders have repeatedly been exposed to violence throughout their childhood, and this exposure is a ‘significant proximate cause of youth crime, which may desensitise them to violence’ and ‘impair their ability to appreciate and understand how their own violent behavior affects and impacts their victims’ (Clark 2012, p. 87). RJ is a justice mechanism that focuses on repairing the harm and addressing the needs of both the victim and the offender (Zehr 1990). RJ therefore has the potential to be transformative (Johnstone and Van Ness 2007) and facilitate ‘a process of resensitization’ (Clark 2012, p. 87). RJ interventions enable young offenders to reflect on their use of violence, reconsider the use of violence (Wallis et al. 2013) and to change their perspective on offending (Criminal Justice Joint Inspection 2012).
Furthermore, RJ has the potential to reduce reoffending (by up to 14%) (Shapland et al. 2011) and substantially reduce reoffending offence severity (Wallis et al. 2013), more so than through the application of ‘normal’ retributive youth justice sanctions (see Daly 2006).

1.3. YOT and RJ in Practice

Despite the outlined benefits of RJ to victims and young offenders alike and the proliferation of legislation and policy ‘committed to widening the use of RJ’ (Hoyle and Rosenblatt 2016, p. 43), there is extant literature over the past two decades that demonstrates that RJ has not been fully integrated into practice nor widely embedded into YOT culture and has instead remained an ‘optional extra’ (see Hoyle 2002; Rosenblatt 2014; Banwell-Moore 2022). An 18 month evaluation of the ROP pilots, conducted by Holdaway et al. (2001), found that there was no consistent approach to the delivery of RJ and that victim participation levels were low; only 7% of victims participated either directly or indirectly. A further evaluation of the introduction of ROPs conducted by Newburn et al. (2002) also highlighted that victim involvement, ‘and in particular their attendance at panel meetings’, was ‘both lower than was originally anticipated and significantly lower than comparative experiences from RJ initiatives around the world’ (Newburn et al. 2002, p. viii). Victims attended an ROP in only 13 per cent of cases, and in only 28 per cent of appropriate cases was there any form of victim involvement (Newburn et al. 2002, p. viii).
Between 2001–2004, the government funded a £7m RJ pilot study to determine whether RJ was a feasible justice mechanism for adult offenders and in the case of serious offences. The active research conducted by Shapland and her team (2011) included youth offending, and it is this evaluation that provides a ray of hope. Shapland et al.’s (2011) evaluation illustrated that, when embedded and implemented correctly, high levels of victim participation increased victim satisfaction levels and reduced re-offending rates, and cost-savings were achieved. In the cases that involved youth offenders, 89% victim participation was achieved. The key contributory factors to these high levels of victim participation and victim satisfaction were the ‘presumption in favour’ that was given to the RJ scheme, the high levels of ‘rigorous training, the expectations of high quality and an internalisation of restorative values’ (Shapland et al. 2011, p. 61).
In 2012, a joint thematic inspection of the use of RJ in the criminal justice and YJS identified that whilst almost all the YOT RO cases reviewed were at least ‘partly’ restorative, ‘sufficient efforts were made to meet the restorative objectives in only half […] the cases’ (Criminal Justice Joint Inspection 2012, p. 39). Too few victims engaged directly with youth offender panels, and YOT staff failed, in many cases, to ‘engage effectively to help the young person take full responsibility for the offence’ (Criminal Justice Joint Inspection 2012, p. 40). Furthermore, when asked to provide examples of RJ in youth rehabilitation orders (and custodial cases), ‘some YOTs struggled to identify many, or sometimes any, of these’, and ‘much less priority was given to such cases compared to referral orders’, resulting in ‘the potential of RJ in serious or complex cases […] [being] overlooked’ (Criminal Justice Joint Inspection 2012, p. 38).
A more recent study conducted by Rosenblatt (2014) evaluated community involvement in ROPs and found that, despite international and national instruments, government support and good practice guidance policy, there continued to be ‘recurring shortcomings of the practical application of RJ in England and Wales’ (Hoyle and Rosenblatt 2016, p. 32). Very few victims are given the opportunity to be involved in the youth RO process and very few RJ conferences take place between victims and youth offenders (Rosenblatt 2014; HM Inspectorate of Probation 2016).
Victim engagement and inclusion appears to still not be a priority in youth justice. It would seem that RJ is only truly embedded in principle and not in practice (Newburn et al. 2002; Hoyle and Rosenblatt 2016; HM Inspectorate of Probation 2016). The provision of RJ remains patchy and subject to postcode lottery (Criminal Justice Joint Inspection 2012). Despite the proliferation of legislation and policy ‘committed to widening the use of RJ’, there is ‘no evidence of a paradigm shift’ in youth justice, and a ‘concentrated effort toward change’ is required to ‘realise the potential of RJ’ (Hoyle and Rosenblatt 2016, pp. 45, 46).
A final and important point of consideration in regard to the lack of victim participation in the RO process is the conflict and tensions found between two key objectives of the Crime and Disorder Act 1998. One of the objectives of the Crime and Disorder Act 1998 was to speed up the process of youth justice through ‘fast-tracking’. In practice, the objective of ‘fast-tracking’ has had ‘the unintended consequence of jeopardising the attainment of other important objectives’ (Holdaway et al. 2001, p. 25) including the RJ principles of restoration, responsibility and reintegration (which were outlined in the Crime and Disorder Act 1998 as underlying principles of youth justice). The process of fast-tracking also conflicts with the requirement to consult victims and for victims to be directly involved in acts of reparation or RJ. Securing victim participation takes time and preparation, which conflicts with the objective of ‘fast-tracking’. The initial RO panel meeting must be held within 20 days of the court issuing the order, but RJ takes time, preparation and support (victims are less likely to participate without these), and the insufficient availability of these key components impedes the ability for RJ to be fully adopted and results in low use of RJ and low victim participation (Holdaway et al. 2001).
The question is, then, whether the proliferation of RJ policy and guidance have actually been used as envisaged. To what extent is the YJS actually restorative? If, as evidenced and consistently outlined in guidance, policy and research, the fundamental principle of inclusivity and victim participation are imperative to RJ, then is the YJS in England and Wales ‘fully’ restorative or just ‘partly’ restorative?
Drawing upon the findings of a larger empirical study across criminal justice organisations, including YOTs, that examined the barriers and enablers to victim participation in RJ, this article specifically examines the use of RJ in YOTs in England and Wales and (i) evidences the disparities in the delivery of RJ amongst youth offending teams, (ii) demonstrates the reasons for service delivery disparities and (iii) evidences best practice. The findings presented contribute to the limited literature on the implementation and delivery of RJ within YOTs in England and Wales.

2. Methodology

The findings drawn upon in this article are from doctoral empirical research conducted by the author in 2017. This paper specifically analyses the ethnographic and official data collected from seven YOTs from across two police force areas in England and Wales which comprised the main study (Banwell-Moore 2019). Semi-structured interviews were conducted with a total of n = 13 YOT staff, including RJ and victim liaison staff (hereafter RJ workers) n = 9, YOT managers, n = 4. Semi-structured interviews were transcribed and thematically coded using the qualitative data software analysis tool NVivo. A thematic framework was constructed using both an inductive and deductive content analysis approach which drew upon deductive theoretical a priori issues (which informed the original research aims and questions and interview schedule) and inductive emergent and analytical themes (raised by the research participants and arising from patterning of views and experiences) to map the nature of the phenomena, find associations and provide explanations (Ritchie and Spencer 2002, p. 313) as to whether YOTs were ‘fully’ restorative (McCold 2000).
Analysis of official data was also undertaken to determine how victims’ wishes were sought and to what extent victims were given the opportunity to participate in RJ, the ROP and the RO process, in accordance with policy and guidance. Official data included the written communication sent to victims seeking their wishes and inviting them to participate in RJ, the RO process, or attend an ROP. Analysis of the victim correspondence documents used by the YOTs enabled the researcher to gain an understanding of the differences in how victims were provided with information on RJ and the disparities between YOTs integration of restorative policy (Bryman 2012, pp. 550–51).
Analysing the victim correspondence documents and interviews conducted with YOT staff enhanced triangulation and the quality and reliability of the study’s findings (Jupp 2012). A number of themes emerged from the ethnographic research conducted with YOT staff and from the analysis of victim communication documents. These themes, developed through the process of the thematic analysis (Braun and Clarke 2006), included: the organisational culture and ethos of individual YOTs; the method of invitation, namely, opt-in versus opt-out processes; the ‘routinisation’ and embedding of RJ policies, procedures and practice; reparation as RJ, dedicated RJ/victim staff; funding cuts and staff shortages.

3. Findings

3.1. Organisational Culture

The organisational culture of the individual YOTs in this study appeared to affect the extent to which RJ was embedded within the ethos of the YOTs. At an organisational level, the majority of YOT managers expressed their commitment to RJ:
RJ is everything we do [and] […] we always push it here.
[YOT manager, YOT 3]
However, this commitment was not universal across the YOTs. One YOT manager did not perceive RJ to be a staple YOT process and expressed that:
this whole RJ thing is based on a fallacy that the victim wants to get involved and I don’t think they do. I’m not persuaded by that emotive need and trying to get all victims involved.
(YOT manager, YOT 1)
This manager’s view of RJ seemed to have a negative impact on the implementation of RJ within the YOT. RJ was not embedded within the organisational culture of YOT 1. This resulted in victims rarely being involved in RJ in this YOT.
Within the YOTs, where the managers supported and endorsed RJ, RJ was to a large extent embedded into the cultural ethos of the YOTs, with RJ being “part of everyone’s job” (YOT manager, YOT 2). Embedding a restorative culture within the organisational culture of the YOTs appeared to have a direct positive affect on victim involvement:
more victims interested in [RJ] than other YOTs I have worked with.
(RJ worker, YOT 3)
I don’t struggle with getting the victims involved […] 33 conferences in this area versus the other YOT who have only had 2 conferences.
(RJ worker, YOT 4)
Whilst each of the seven YOTs in this study adopted a different approach to delivering RJ, several YOTs actively promoted a ‘whole system’ approach to RJ. YOT managers employed a number of processes to implement a ‘whole system’ approach, including dedicated RJ workers, a virtual team of RJ workers (who sat in the teams), monthly team meetings), training all new staff and providing refresher training, and training ROP volunteers and victim liaison volunteers. This led to the victims, in one YOT taking (in principle):
priority […]. [The] very first time they [the young offenders] come up from court or from OOCD [out of court disposal] […] the very first time we see them, we say we will be contacting the victim […] from the very first time […] I go straight out and see the victim.
(RJ worker, YOT 3)
YOT 2 had developed a ‘buddy system’ whereby every YOT worker, and not just the RJ worker, was responsible for contacting victims as well as working with the young offender. The ‘buddy system’ ensured that the YOT case workers did not conduct the victim contact work for the direct victims of the young person they were working with due to ”conflict of interest” (YOT manager, YOT 2), whilst also ensuring that RJ was embedded into the YOTs ethos through a ‘whole-system’ approach. This YOT also had a dedicated RJ worker who oversaw the delivery of RJ across the YOT. If a victim expressed interest to a case worker, the RJ worker would “take it on […] as it’s quicker and I have the experience” (RJ worker, YOT 2).
Several of the YOTs had also trained their ROP volunteers in RJ and utilised these volunteers to undertake either victim contact work or facilitate RJ conferences. This appeared to further embed RJ into the organisational culture. In addition to ROP volunteers being RJ trained, YOT 7 also had a team of victim liaison volunteers, and “all […] volunteers, so all panel [ROP] members and victim liaison volunteers […] go through the RJ training with the aim that there is a high restorative practice through the team” (YOT manager, YOT 7).
However, notwithstanding the commitment of the majority of YOT managers to adopt and implement a ‘whole system’ approach, many found that embedding RJ into the cultural organisation was “a challenge” (YOT manager, YOT 7). This challenge was due to the overarching offender focus of YOTs, funding cuts and staffing issues, all of which impacted on YOTs ability to deliver RJ ‘fully’.

3.2. Offender Focused

Several YOT managers and RJ workers expressed that “trying to build that culture of thought [RJ] amongst staff whose primary thought and focus is the offender” (RJ worker, YOT 5) was challenging. Despite several YOTs training all staff in an attempt to embed an ethos of RJ into the culture of their team, the predominate ‘offender-focus’ of the YOTs hindered staff buy-in:
when I first joined there was not a huge focus on RJ and there was a bit of resistance from the team […] there was more focus on the young person—who had offended […]. It was […] a challenge to get people to think in a more restorative way or think about the victim […]. We made a plan of how we can be more restorative and […] it’s work in progress as it’s high up some peoples agenda and not so high up others.
(YOT manager, YOT 7)
Despite all the YOT staff and volunteers being trained in RJ, the RJ worker in this YOT (YOT 7) described how:
when [YOT colleagues] talk about young people they are talking about young offenders not young victims […]. In team meetings I feel it’s very offender focused and everyone else seems to think that’s fine.
(RJ worker, YOT 7)
A number of YOT managers and RJ workers interviewed in this study opined how colleagues protected the young offenders and were hesitant about them meeting or communicating with their victim(s).

3.3. Method of Invitation

All the YOTs in this study adhered to the Ministry of Justice/Youth Justice Board guidance and the VCOP by providing victims with information on RJ. Victims were contacted either by telephone or through written communication (in the form of a letter, form to be completed, or by providing a leaflet outlining the menu of RJ options), whereby the YOTs outlined how victims could, if they wished, be involved in RJ (either directly or indirectly) through informing the YOT of the impact that the offence had, meeting the young person, attending an ROP, the young offender carrying out direct or indirect reparation or writing a letter of apology. The ‘menu of options’ given to victims was not standard across all the YOTs. One YOT did not use the term ‘RJ’ but instead offered a menu of options (that were restorative in nature) which, in the written communication, were described as “for people who have been affected by youth crime” (RJ worker, YOT 6).

3.3.1. The Non-Mandatory ‘Opt-Out’ Method of Invitation

The majority of YOTs (n = 6) adopted a proactive ‘opt-out’ method of invitation which included either sending a letter followed by a telephone call (n = 5) or just contacting victims by telephone (n = 1). Several (n = 3) YOTs also offered a home visit. Telephone calls and home visits appeared to yield the highest levels of victim participation for the YOTs in this study.
The RJ worker in YOT 4 (who secured high levels of victim face to face participation, with 80% of victims willing to participate in a face to face RJ conference) had moved away from sending victims letters and, in the main, made initial contact via telephone:
in the early days we used to write letters and say ‘we will call you in a few days if we don’t hear from you’ and then I thought ‘why am I writing and doing all this admin’ as no one ever responded. So, I just call. I introduce myself as from the YOT and [say] ‘the reason why I’m calling is you are a victim of this offence and your views and feelings must be considered and would you share these with me?’.
(RJ worker, YOT 4)
This move to only telephoning victims did not appear to impact on victim participation levels. In fact, this RJ worker stated that they continuously achieved high levels of victim participation, with 80% wanting (following the telephone calls) to meet the young offender face to face. The RJ worker attributed this success to the “the way I sell it” and to being a dedicated RJ worker whose sole role was to conduct all the victim work and who, unlike several other YOTs in the study, did not have to hold any young offender cases. Interestingly, this RJ worker also met with all of the young offenders to “ascertain their willingness to engage” and ” would do the preparation with them”, and it is the combination of overall responsibility for the delivery of RJ with both young offenders and victims that may well have been a contributory factor in this YOT facilitating the highest number of face to face conferences (n = 33) amongst all of the YOTs in this study.

3.3.2. Home Visits

In addition to the written communication and telephone calls made to victims, three YOTs offered home visits. These YOTs felt that offering a home visit achieved higher levels of victim engagement because it enabled them to:
speak to them [victims] and break down those barriers […] get a good rapport and really find a lot more about them. Usually when I do a home visit, I get some type of response whether it’s shuttle or something that they want […]. It’s finding the time to do that and finding the time to dedicate to the victim. It’s the only way forward, visiting them and spending the time to do that.
(RJ worker, YOT 3)
Offering home visits ensured that the YOTs were adhering to the Ministry of Justice/Youth Justice Board guidance (2018) that states it ‘is essential that victims are invited and welcomed to be part of the RO process’ and that victims should have the ‘opportunity, as a matter of course, for a face to face meeting with the YOT Restorative Justice or Victim Liaison Worker’ (Ministry of Justice/Youth Justice Board 2018, p. 31).
However, not all the YOTs in this study offered home visits, and even amongst the YOTs that did offer this service, a victim selection criterion was applied. One YOT stated that they did not have the capacity to offer every victim a home visit and therefore excluded victims whose young offenders were given an out of court disposal.

3.3.3. Opt-In Method of Invitation

Only one YOT had adopted an ‘opt in’ process, whereby victims were invited by letter to contact the YOT if they wanted any further information or wished to be involved in the process. This YOT (YOT 1) very rarely secured any type of victim involvement. YOT 1 made no telephone contact with victims, instead choosing to send victims a form to complete and return in a self-addressed envelope (SAE) selecting what type of input (if any) was desired. In addition, the written correspondence provided victims the opportunity, if they wished, to telephone the YOT to discuss their potential involvement further. However, victims could only telephone the RJ worker within a set window (a two hour period one evening a week). The YOT worker responsible for all victim statutory work including RJ (as part of their YOT young offender case worker role) discussed the process and appeared surprised that no victim had telephoned into the service in the past year and that very few victims had returned the SAE:
we don’t make any telephone contact […]. Decision made to run it in [YOT area] by writing to all people to explain what we offer and a questionnaire that is all anonymised […]. It gave the victim’s the option to opt-in […]. This felt like they had a chance to be involved or not and send SAE’s […]. When I did it, I said I would work one evening a week so that it opened up for the victim, [and gave them] the opportunity to contact me outside of their office hours […]. The uptake is not massive […] they [victim] have to opt-in to our process […]. Working one night a week waiting for the phone to ring and it doesn’t ring […]. We offer face to face but never had any […] [we] don’t get many letters back.
(RJ worker, YOT 1)
Victims in this YOT were informed (as part of the SAE victim correspondence) that they could attend the ROP or have their views represented, but victims had to opt-in within two weeks. Again, the uptake was very low.

3.4. Victim Selection

Not all victims were offered the opportunity to participate in RJ. Victim selection was dependent on which YOT their young offender was assigned to, the offence type and subsequent outcome i.e., a RO, a conditional caution, a custodial DTO (detention training order). This resulted in a “post-code lottery” (RJ worker, YOT 4) for victims of young offenders. Even amongst the YOTs that contacted all victims by letter or phone (or both) or offered an additional home visit, several adopted a ‘victim selection process’, whereby they decided which method of invitation to adopt based on the youth justice outcome and offence type.
The selection of victims (and array of participatory options) based upon sentence outcome appeared to affect victim participation levels. The RJ worker in YOT 7 discussed how victim participation levels differed greatly due to not actively contacting victims of young offenders sentenced to a DTO or YRO (youth rehabilitation order):
80% take-up for the referral order panel […] not all direct but some form of RJ […]. [We are] great with referral order panels and quite good with YCCs [youth conditional cautions] but fairly shit with YROs and DTOs.
(RJ worker, YOT 7)
The YOT manager in YOT 7 described how they had previously selected out certain categories of victims but had changed their policy to offer RJ to all victims:
we used to cherry—pick, wrong way […]but I think we were a bit frightened of which cases you would or wouldn’t approach […]. It’s changed since then, we […] made the decision to contact all victims irrespective of the offence […]. If we can make it safe to do so then we will consider it rather than ruling stuff out, as it’s about choice and giving people an opportunity […]. Who are we to choose who can or can’t engage?
Despite this YOT manager being an advocate of RJ who had taken a ‘whole-system’ approach to the delivery of RJ, when faced with staff shortages, this YOT manager had to ‘scale back’ and exclude certain categories of victims (see further below).

3.5. The ROP and Victim Participation

The Ministry of Justice and the Youth Justice Board 2018 Referral Order Guidance outlines that ‘youth offender panels [ROPs] [should] operate on restorative justice principles’ and be ‘conducted restoratively and in accord with the principles and ethos of restorative practice’ (Ministry of Justice/Youth Justice Board 2018, p. 19). The guidance states that it ‘is essential that victims are invited and welcomed to be part of the RO process’ (Ministry of Justice/Youth Justice Board 2018, p. 31).
In this study, as previous studies have also found (Newburn et al. 2002 and Rosenblatt 2014), only two YOTs invited the victim to the initial ROP. The YOTs that excluded the victim from the ROP cited ‘time’ and ‘concerns’ for both the victim and the offender as to why they had elected to exclude victims from the initial ROP.

3.6. Time Issues

The time span in which the initial ROP has to be held is 20 days. This short time window appeared to hinder victim participation, as it did not allow YOT staff adequate time to arrange for victims to attend or prepare the victim and young offender:
on quite a few occasions we have managed to get the victim to that panel but it’s quite a short time frame between sentencing and panel, so you need to be on it. When I started [in this] role, I was actually getting some victims to panels and getting some good outcomes but that has now fallen a bit to the wayside as it’s time constraints and being prepared. We didn’t get loads but I had more time to do the preparation.
(RJ worker, YOT 5)
RJ worker YOT 3 stated:
yes, the victims get offered the opportunity to attend the panel but […] most don’t want to do it, sometimes because of the short time lapse really, We have only had a few victims come to the panel […] sometimes that is too early as they [young offender] haven’t done any work […]. I think sometimes it is more beneficial when we have done some victim awareness work with them and they can show more empathy or understanding of the impact.

3.7. Concerns—Wrong Place

Staff across the majority of the YOTs in this study felt that it was not appropriate for victims to be present at the ROP. Despite the RJ worker in YOT 4 achieving high levels of victim participation and facilitating a large number of face-to-face conferences, they felt that the initial ROP (where the young offender and the panel draw up and agree the referral order conditions) was “the wrong place” for the victim and offender to meet: “this bit” [the RO contract] is mandatory [and] this [RJ] […] is voluntary”.
This concern was also expressed by another YOT worker, who explained that whilst:
the YJB [Youth Justice Board] say victims should be given the option for the victim to attend the initial ROP […] we have decided not to do that […] as otherwise the victim is only a very small part of it and it’s about them [the young offender] and less the victim, so we don’t think it’s appropriate.
(RJ worker, YOT 2)
This highlights that many of the YOTs in this study did not hold the victim as central to the RO process. The main focus of the ROP appeared to be the offender:
the ROP members [the] three people [two community ROP volunteers and YOT case worker] have, to me, got more interest in the offender than they have in the restorative part.
(RJ worker, YOT 6)
This RJ worker suggested that whilst they used to invite victims to attend the ROP, it had at times been an “utter disaster”, as the ROP was as “far from restorative as you could imagine”. Therefore, in this RJ worker’s opinion, it was better to “attend a purely restorative meeting” (RJ worker, YOT 6). YOT manager (YOT 2), an advocate of RJ, had also taken this approach:
we don’t allow them to attend the initial panel […] what we will do is hold a separate RJ panel with trained ROP volunteers, so we have it as a conference not an add-on. Definitely works better, they would go to the initial panel and you would be dealing with the contract stuff and then the victim would have 5 min at the end of it [and it] was not necessarily appropriate for the victim to be listening to it all and we can prepare people properly.
(YOT manager, YOT 2)
Another YOT worker discussed that they felt that it was important to be able to carry out victim awareness work with the young offender so they “can show more empathy or understanding of the impact of their offence” (RJ worker, YOT 3) when (and if) they met their victim.
These concerns regarding potential revictimisation and safety issues as a result of allowing ill-prepared victims to attend initial ‘offender=focused’ ROPs resulted in low levels of victim participation in the initial ROP process.

3.8. Reparation

It appeared, though, that all of the YOTs attempted to incorporate direct and indirect reparation into their work with the young offenders and deemed acts of reparation to be RJ: “we are obliged and committed to RJ in all our work, not necessarily RJ but reparation” (YOT manager, YOT 1).
In this study, indirect ‘community’ reparation was the main type of reparation used with the young offenders. Indirect reparation included letters of explanation or apology, and practical recompense to the wider community through litter-picking, charity shop work and food-bank work. This indirect ‘community’ reparation was the main type of reparation used by YOTs.
RJ workers described how they were “restorative in a very wide context” through communicating with the victim and informing them that the young person would be conducting indirect “community” reparation. The RJ worker in YOT 6 stated:
if I talk to a victim and they say I really don’t want anything for me [but] I’m happy for them to do some reparation work then […] that’s restorative as you’ve had a conversation with the victim, they understand that that offender is going to do some work on their behalf.
Therefore, in this study, the reparation was deemed by the YOTs to be restorative when the young offender carried out community based activities. However, for RJ to be ‘fully’ restorative, the victim must be involved in the decision-making process (McCold 2000).

3.9. YOT Structure and Personnel

Each YOT was structured differently in terms of RJ personnel; some had dedicated RJ workers whereas several of the YOTs did not have a specific RJ worker, instead choosing to incorporate RJ and victim work within individual YOT case workers roles. These organisational differences appeared to impact on the extent to which the YOTs were ‘fully’ restorative.
The YOTs that had a dedicated RJ worker appeared to achieve higher levels of victim participation. However, even in the YOTs that trained all staff and volunteers, there was still only one single individual who was responsible for the day to day delivery of RJ, and this responsibility, depending on the individual YOT, was either a dedicated role or was incorporated within a YOT worker role whereby they still held young offender cases. The only anomaly was YOT 3, where (as discussed above) each YOT worker was responsible for victim contact but there was also a dedicated RJ worker with overall responsibility for RJ.
One YOT (YOT 4), where there was a dedicated RJ worker (who also carried out the RJ work with the young offenders), achieved not only high levels of victim participation but delivered a high number of direct face-to-face conferences. However, whilst this YOT secured high levels of victim participation (according to YOT 4’s RJ worker “80% of them [victims] will do a face to face [RJ conference]”) and facilitated a high number of conferences (n = 33), the RJ worker (whose role was part-time) opined:
it could be developed so much more if I was full-time. I am a Youth Justice worker by title [but] they needed a dedicated person to do victim contact and now I just focus on that […]. Here I am the RJ team […]. I do as much as I can in the hours given.
(RJ worker, YOT 4)
It appeared that when the victim work was a component of individual YOT caseworker’s workload, the number of victims that participated in a RJ process was lower in comparison to the number of victims who participated in YOTs with a dedicated RJ worker.
However, this study found that there were negative consequences to only having just a single dedicated RJ worker who was solely responsible for the delivery of RJ. As discussed below, when the dedicated RJ worker role was cut, they left post, or went off sick, RJ was ‘scaled back’.

3.10. Funding/Staffing Levels and the ‘Reduced’ Offer

All seven YOTs lamented that they had been faced with funding cuts and that these funding cuts had impacted on staffing levels, which in turn impacted on their ability to ‘fully’ deliver RJ. When faced with funding issues and staff shortages, YOT managers made decisions regarding how they would, and to whom they should, offer RJ. Staffing levels impacted not only upon the victim selection process (largely based upon offence type and sentencing outcome) but also the method of invitation adopted. Funding issues and staff issues impacted upon professionals’ ability to deliver a restorative service in line with both Ministry of Justice/Youth Justice Board (2018) guidance and to offer a ‘fully’ restorative service to all victims.
Many YOT staff opined that “more and more cuts” (RJ worker, YOT 2) had resulted in losing dedicated RJ staff members who had invaluable RJ knowledge and training. Many of the dedicated RJ workers’ positions had been either short-term or seconded positions and when these positions or funding expired, they were not replaced:
Until recently we had a police officer who was a [RJ] victim lead and he was doing a lot of victim contact and home visits […] [but] he retired and his post was not renewed so we lost that […]. [We had a] dedicated victim team […] [but] over the last 10 years we have lost all our victim workers. We trained them all up to level 2 [RJ conferencing] and then that entire grade was made redundant, so we lost them all in a year. It’s such a shame when you have that specialist resource and you lose it […] due to significant budget cuts.
(YOT manager, YOT 2)
The impact of losing RJ trained or dedicated staff was that RJ became an additional process that was incorporated into YOT staffs existing role:
we used to have a whole victims team that would purely work with victims but with all the cuts they have all become generic.
(RJ worker, YOT 2)
In YOT 7 they were, at the time of the study, facing “significant capacity issues” (YOT manager, YOT 7) due to their dedicated RJ worker being on long-term sick:
it’s been a real hiccup as we have done little bits of interim cover but it’s not offering consistency […]. You have that discrepancy when someone is off and if you don’t have one person or more then it loses focus as people just do a bit here and there and you need one person whose main focus it is, it’s really important […].
The dedicated RJ worker in YOT 4, who had secured high levels of victim participation and delivered a large number of face-to-face conferences, disclosed that they were leaving their post imminently. This RJ worker lamented that the service would not be the same and that RJ work was to be ‘scaled back’ and incorporated within another YOT worker’s core role:
When I leave we have an [admin] that will contact the victims and [victim will] get either I want RJ, letter or nothing […] I don’t think it’s an ideal situation […] they don’t have the confidence for the conference.
This part-time YOT worker also described, how for all intents and purposes, a victim selection process was, to some extent, employed:
I don’t want to say I ‘cherry pick’ but I do what I can in the time given.
(RJ worker, YOT 4)
The direct impact of funding cuts and staffing issues resulted, to some degree, in all of the YOTs having to scale back their RJ work; this was the case even for one of the YOTs that had taken a whole-system approach and had “made a conscious decision” to “protect” their single dedicated RJ worker’s caseload (YOT manager, YOT 2). ‘Scaling back’ included no longer telephoning victims and only sending victims a letter or no longer being able offer home visits to all victims.

4. Discussion

This article has explored the extent to which YOTs in England and Wales are ‘fully’ restorative in nature, particularly focusing on whether victims’ wishes and views are sought and whether all victims are offered the opportunity to participate in RJ. Despite RJ being statutorily embedded within youth justice, RJ was still not being routinely and systematically offered to all victims of youth crime by YOTs. The study determined that there was a lack of standardised guidance and application of RJ across the YOTs, with each YOT adopting a different method of delivering RJ. The disparities evidenced affected the extent to which victims were included. Individual YOTs were working in their “own little bubble” (RJ worker, YOT 6). As identified in Shapland et al.’s (2017, p. 52) research, YOTs ‘separate identities and preferences […] resulted in quite different rates’ of victim participation.
To enable victims of young offenders to make an ‘informed choice’ and for YOTs to be ‘fully’ restorative, all victims must be invited to be involved in a restorative intervention, yet in practice, YOTs either forgot the victim entirely or adopted a range of different methods of informing victims or victim case-management. This resulted in victims being selected due to offence type, case outcome (cases that had been sentenced to a RO only), or workload and funding pressures. When criminal justice agencies and professionals apply exclusion criterion in a discretionary and selective manner (see Wigzell and Hough 2015; Marder 2020), very few victims participate in a RJ process with their young offender.
Telephone calls or home visits conducted by a dedicated RJ worker were found to be the best methods of approaching and offering victims RJ. However, due to funding issues, many of the YOTs had ‘scaled back’ and either stopped offering this service or reduced the offer to set criteria of victims. Funding and staffing issues militates against YOTs’ ability to deliver a consistent and ‘full’ RJ service (see Miers 2001; Shapland et al. 2011).
Focusing on how YOTs adhered to their statutory obligations to include the victim in the RO process, the findings presented contribute to previous research conducted by inter alia Newburn et al. (2002); Rosenblatt (2014); Shapland et al. (2017), by identifying that, in the main, YOTs made decisions (at an individual YOT level) to exclude the victim from directly attending the ROP. Victims were systematically excluded from ROPs due to the time it takes to secure victim participation and to prepare the victim (and young offender) and victimisation and safety concerns of the participants (victims and young offenders). However, with sufficient preparation, information and support, these risks can be managed and mitigated (Daly 2006; Van Camp and Wemmers 2016).
Despite RJ being well embedded in the YJS, far too few victims attended a ROP, became involved in RJ, or benefited from RO work. Additionally, the extent to which the victim’s voice was heard in the ROP ranged from rarely to frequently. The main focus of the initial ROP remains “dealing with the contract stuff […] it’s about them [young offender] and less the victim” (RJ worker, YOT 2). Excluding victims from the ROP process altogether, or shoe-horning victims in to “5 min at the end” (RJ worker, YOT 2) of the initial ROP results in victims’ voices not being ’central to the Referral Order’ (Ministry of Justice/Youth Justice Board 2018, p. 5).
There was no standard method of invitation adopted by YOTs to offer them the opportunity to participate in RJ. Research and guidance suggest that proactive and systematic offers should be made firstly by telephone and secondly through short and specific correspondence (Victims’ Commissioner 2016; Wigzell and Hough 2015). YOTs adopted different methods of invitation, ranging from opt-in methods by letter only to telephone calls and opt-out letters. Several YOTs offered home visits and perceived home visits to be “the only way forward” as it allowed the YOT RJ workers to “break down those barriers” (YOT manager, YOT 3) and secure greater victim participation in RJ (either directly or indirectly). When an opt-in process is employed, victims rarely have any involvement in youth justice. Adopting opt-in methods passes the responsibility on to the victims themselves to opt-in to obtain further information on RJ if they wish (Wigzell and Hough 2015). The method of invitation and victim selection is subject to ‘scaling back’ from ‘opt-out’ to ‘opt-in’ methods when YOTs are faced with “significant capacity issues” (YOT manager, YOT 7) as a result of staffing issues and funding cuts.
Moreover, not all victims were provided with information on RJ. The victims of young offenders given an out of court disposal or sentenced to a YRO or DTO were, in a number of YOTs, routinely excluded. Victims are subjected to a “post-code lottery”(Criminal Justice Joint Inspection 2012, p. 5). Victim involvement remains ‘stubbornly low’ (Hoyle and Rosenblatt 2016, p. 30) due to YOTs selecting ‘certain victims […] to whom to make the offer’ (Banwell-Moore 2022, p. 9). Victims continue to be excluded and are not systematically and proactively given the opportunity to participate in a RJ intervention. The YJS is subject to the same shortcomings regarding the implementation and use of RJ as it was two decades ago (Her Majesty’s Inspectorate of Probation in 2016; Hoyle and Rosenblatt 2016).
Moreover, the organisational culture of the YOTs influenced the extent to which RJ was embedded within the ethos of individual YOTs. A ‘lack of systematic guidance […] underpin[s] the work culture of criminal justice organisations’ and ‘impact[s] on whether or not victims are offered the opportunity to participate in restorative justice’ (Banwell-Moore 2022, p. 7; Shapland et al. 2017). YOTs remain ‘offender-focused’; RJ appears to not be perceived to be a core priority. The extent to which RJ was embedded in the organisational culture of the individual YOT was influenced by managers buy-in and capacity levels. When YOTs give a higher priority to victim involvement and victim contact and have dedicated highly trained personnel who are effectively managed, higher levels of victim participation can be achieved. The caveat, though, is that there is a danger that when the champion/dedicated RJ worker is absent, RJ activity drops (Wigzell and Hough 2015). Challenges include the significant capacity issues YOTs faced due to dedicated RJ roles being cut, and reductions in and loss of trained RJ staff. As also found in Shapland et al.’s (2017) RJ and police research, where staff have to deliver RJ alongside their other commitments and responsibilities, this impacts on RJ delivery.
Adopting a ‘whole-system’ approach to embedding RJ into youth justice practice, having dedicated RJ workers (whose workloads are ‘protected’), training all YOT staff and volunteers enables YOTs to be ‘fully’ restorative by systematically and proactively including all victims in the youth justice process.

5. Conclusions

This article demonstrates that a number of YOTs in England and Wales are not ‘fully’ restorative. Very few victims of youth crime are given the opportunity to be involved in RJ. Despite the proliferation of legislation and policy ‘committed to widening the use of RJ’ (Hoyle and Rosenblatt 2016, p. 43), YOTs appear to remain ‘offender focused’ and there is no standardised practical application of RJ. Victims of youth crime continue to be systematically excluded. RJ is not perceived to be a core priority of the majority of the YOTs and is seen as a ‘bolt-on’, ‘optional extra’ that merely sits on the periphery of the criminal justice process and is therefore not an essential component of youth justice (Banwell-Moore 2022). Further work needs to be done to improve victim contact and engagement in RJ in youth justice and a ‘concentrated effort toward [an organisational cultural] change’ is required to ‘realise the potential of RJ’ (Hoyle and Rosenblatt 2016, pp. 45, 46). A whole system approach with national and local systematic guidance is essential to embedding RJ ‘fully’ into YOT practice and to ensuring that YOTs better engage with victims, and give, all victims (of youth crime) the opportunity to participate in RJ.

Funding

This research was funded by an Economic and Social Research Council PhD studentship, grant number 1654852.

Institutional Review Board Statement

This study was approved by the Research Ethics Committee at the University of Sheffield, 25 January 2016. Application reference: 007118.

Informed Consent Statement

Informed consent was obtained from all subjects involved in the study.

Data Availability Statement

Anonymised interview transcripts for participants who consented to data sharing, plus other supporting information, are available from the UK Data Service, subject to registration at http://doi.org.

Conflicts of Interest

The author declares no conflict of interest.

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MDPI and ACS Style

Banwell-Moore, R. The Delivery of Restorative Justice in Youth Offending Teams in England and Wales: Examining Disparities and Highlighting Best Practice. Laws 2022, 11, 60. https://doi.org/10.3390/laws11040060

AMA Style

Banwell-Moore R. The Delivery of Restorative Justice in Youth Offending Teams in England and Wales: Examining Disparities and Highlighting Best Practice. Laws. 2022; 11(4):60. https://doi.org/10.3390/laws11040060

Chicago/Turabian Style

Banwell-Moore, Rebecca. 2022. "The Delivery of Restorative Justice in Youth Offending Teams in England and Wales: Examining Disparities and Highlighting Best Practice" Laws 11, no. 4: 60. https://doi.org/10.3390/laws11040060

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