Power, Race, and Justice: The Restorative Dialogue We Will Not Have [1 ed.] 1472488350, 9781472488350

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“This timely book invites readers to explore power, justice, and race in multiple places and from multiple perspectives. It challenges us to consider our own abilities to craft new narratives of identity and truth, transform ­ineffective or unfair systems, and contribute to racial healing. I highly recommend this book as both a learning tool and as a source of inspiration for educators, activists, and peacebuilders.” – Professor Maya Soetoro-Ng, Obama Foundation and University of Hawaii, USA “Racial injustices that intersect with other injustices are daunting in their intersectionality. Yet this is a book that refuses to feed our despair. It infuses our imaginations with an empowering vision for hope and governance. Theo Gavrielides opens pathways to implementing the Martin Luther King imaginary that ‘If I cannot do great things, I can do small things in a great way.’ Slavery is a neglected topic in the restorative justice literature. This is a book that begins to redress that failing with a fresh approach.Theo Gavrielides’ new monograph advances a politics of inclusion and fusion of insights from theory and practice so evocatively and with such eloquence.” – Professor John Braithwaite, Australian National University, Australia “This provocative new book by Theo Gavrielides provides a powerful reminder of the radical promise and potential of restorative justice. Employing philosophical analysis and lessons from his own pioneering work in developing community-led initiatives, Gavrielides reveals the possibility of challenging unjust exercises of social power and racial injustice through restorative justice, yet is also unflinching in his exposure of the shortcomings of much conventional restorative justice thought and practice. An important work for those who still believe in the possibility of, and our responsibility for bringing about, progressive social change.” – Professor Gerry Johnstone, Hull University, UK “Theo Gavrielides has clearly written from his heart and spirit as well as his mind, as he wrestles with the challenge and potential of justice and restorative justice. The book covers a surprising breadth of the restorative justice landscape – from deep probing of philosophical roots to detailed observations about implementation and the impact of restorative practices on the

lives of individuals. This is a very timely contribution to the restorative justice literature. Theo Gavrielides offers us a way to pause, to reach deep into our sense of purpose and take stock of where we are and where we want to be headed with this new momentum.” – Kay Pranis, Independent Trainer and Facilitator for Peace-Making Circles, Leader in Restorative Justice and Circle Process movements “This is a most significant and original book, the outcome of no less than 20 years of Theo Gavrielides’ work in the fields of equality and justice. Even after teaching restorative justice for a long time, I have found it a most inspiring book for it provides, inter alia, numerous lenses through which to address and redress afresh global and local inequalities and justice by focusing on the pivotal role of power and its dynamic interactions with race and justice. I strongly recommend this book to restorative justice practitioners, tertiary students and criminal justice students, teachers and researchers.” – Emeritus Professor Andreas Kapardis, Department of Law, University of Cyprus “This is a seriously important contribution to restorative justice, which will make you think out why and how you are a part of, or should be part of, the restorative justice movement. Restorative justice has not come to life separate from its historical context, and this seminal piece of writing may help you to articulate your feelings about it and the supposedly stable society in which we all now labour.” – Dr Paul Kiff, Director of the Research Advice Service, Senior Criminologist, former Director of the British Society of Criminology and long-time Secretary to the UK Penal Affairs Consortium, UK “Theo Gavrielides takes the reader on reflexive journey that results in personal transformation and implications for researchers and practitioners in restorative justice.The analysis seeks to demystify the unacknowledged impact of power at the center of restorative processes, a veil that serves to maintain status quo power arrangements. This may be an uncomfortable read for those who have not examined their own positionality, but the author offers guidance to mitigate the discomfort and arrive at a deeper understanding of restorative processes.” – Professor Daniel Christie, Professor Emeritus of Psychology at Ohio State University, USA

“I am grateful that Theo Gavrielides has found the time to write this deeply personal, and therefore all-the-more engaging account of the challenging that needs to happen to keep our restorative work on the right path. He’s right about the discomfort that is triggered in reading his words. I hope to, after almost three decades working in schools and workplaces as a restorative practitioner, author and trainer, to remind myself and not lose sight of the “mermaids and sirens” that can tempt us from the path and cloak the real issues. The case studies are all stories of empowerment and narratives that speak about the unspeakable – only possible when we are prepared to be vulnerable – the ultimate move away from domination and the only way to re-connect after disconnection. Keeping relationship at the heart of justice as healing and justice as fairness.” – Margaret Thorsborne, Managing Director of Margaret Thorsborne & Associates, Australia “Dr Theo Gavrielides has done a fantastic job introducing race, justice, restorative justice, and historical philosophies in ways that even the younger generations across various professions and communities can read and understand. Readers are given the opportunity to learn about research that combines critical thinking and the development of new normative ideas and methodologies. The timeliness of this book is simply perfect as the world is learning of new ways to respond to community-based challenges and global social justice issues. I highly recommend this book to professors to use in the classroom.” – Dr Keyria Rodgers, Director of Criminal Justice, Millikin University, USA “An essential read for social workers and others in human services. The case studies in this book demonstrate in practical terms how one regains control and brings back the balance of power in their lives. Through the use of a variety of modalities, including healing circles, practitioners can help clients confront the harm they have done and seek to reconcile those impacted by their harm.” – Penelope Griffith, Executive Director, Collaborative Solutions for Communities, USA “In the face of growing inequalities and the increasing questioning of both the morality and efficacy of contemporary approaches to ‘justice’, is there a new zeitgeist, especially for young people? And is restorative justice, in a variety of forms, the new paradigm for responding to it? Through an imaginative and provocative blend of philosophy, incisive critique and empirical

illumination, this book takes on the issues, concluding that restorative action is embedded within established human rights.” – Professor Howard Williamson CVO CBE FRSA FHEA, University of South Wales, Wales, UK “This is a rich, timely and compelling account which challenges our assumptions about power, race, justice and restorative interventions.Written in a way that engages the reader throughout, the book offers us fresh ways of thinking about those key concepts, and a framework designed to elevate cross-disciplinary knowledge, foster critical thinking and shape policy. As such it is a welcome addition to the existing literature and feels genuinely ground-breaking in its scope and ambition.” – Professor Neil Chakraborti, Director of the Centre for Hate Studies, University of Leicester, UK “The popularization of restorative justice threatens to turn it into a buzz word, with focuses primarily on how best to implement it and on its potential for positive outcomes for individuals, communities and societies. In this engaging and insightful book, Theo Gavrielides draws on a rich array of knowledge across fields and times to ask foundation questions. What does power entail? How does it intersect with race and philosophical perspectives on justice? Addressing these difficult inquiries, Gavrielides’ readable, critical, and nuanced text challenges our thinking by wrestling with how the practices of restorative justice can address deeply rooted, unjust systems.” – Professor Gabriel Velez, College of Education, Marquette University, USA “This book is a collection of reflection and scholarly writings of Dr Theo Gavrielides who exhibits a distinct set of discourse. His reflection on restorative justice is from lenses of power, race, and justice, and writings are full of vivid demonstration of theoretical discussions and practical solutions. Based on theory and research evidence, this book not only subverts the power of interpreting restorative justice, but also brings up insightful ideas and debates on how the pre-conceived ideas of restorative justice can be transformed. It also attempts to provide suggestions for redefining roles of restorative justice and reshaping it into a better practice for those who are coming from different classes sectors, cultures, identities, and racial backgrounds. I highly recommend it to university students, criminal justice related personnel, restorative justice practitioners and criminologists.” – Professor Dennis Wong, Department of Social and Behavioural Sciences, City University of Hong Kong

“Twenty-years in the making, this new book from Theo Gavrielides delivers a thoroughly compelling exposition on justice and restorative justice; how do we and could we conceptualise and deliver justice and restorative justice? how do we and could we best grasp their nuanced, interlocking connection with power, (ab)use of power, responsibility, human rights and actions-out-ofhope? The book combines critical synthesis of theory and research, insights from large-scale field work, original philosophical dialogues and, in its final section, showcases a collection of vignettes written by practitioners and users of the justice system from across contexts and countries. Well informed, balanced, reflective, not shy from tackling difficult questions, with important and tangible implications for policy and practice – the book is a must read for students and professionals alike.” – Professor Aneta D. Tunariu, Dean of School of Psychology, University of East London, UK “Theo Gavrielides’ book is a tapestry of theory, research, and case studies woven together to interrogate race and power dynamics in restorative justice. He opens by being vulnerable about his own path, internally and externally, to understanding and implementing restorative justice. This vulnerability invites the reader to reflect on our own missteps as proponents of restorative justice and imperfect human beings. Through personal reflections about his racial positionality in a field that has historically alienated practitioners of color, he opens the door for the reader to ask important questions about how we can reduce power imbalances in our personal lives and in our antiracist work in restorative justice.” – Anita Wadhwa, Restorative Justice Coordinator, Yes Prep Northbrook High Co-Founder, Restorative Empowerment for Youth: Empowering Youth,Transforming the World “This book, by a leading researcher in the restorative justice movement, is written to make people think, and it does. Through a mixture of theoretical discussion and practical examples it explores the variety, creativity and potential of the restorative justice movement, while also showing how its efforts to empower participants conflict with social structures that systematically disempower. We are challenged to think critically about justice, inequality, race and power, and in the process to develop a more comprehensive and theoretically grounded conception of restorative justice.This is a significant and thoughtful contribution which deserves to be widely read.” – Professor Peter Raynor, Professor of Criminology, Swansea University and Visiting Professor, University of South Wales

POWER, RACE, AND JUSTICE

We are living in a world where power abuse has become the new norm, as well as the biggest, silent driver of persistent inequalities, racism and human rights violations. The COVID-19 socio-economic consequences can only be compared with those that followed World War II. As humanity is getting to grips with them, this timely book challenges current thinking, while creating a much needed normative and practical framework for revealing and challenging the power structures that feed our subconscious feelings of despair and defeatism. Structured around the four concepts of power, race, justice and restorative justice, the book uses empirical new data and normative analysis to reconstruct the way we prevent power abuse and harm at the inter-personal, inter-community and international levels. This book offers new lenses, which allow us to view power, race and justice in a modern reality where communities have been silenced, but through restorative justice are gaining voice. The book is enriched with case studies written by survivors, practitioners and those with direct experiences of power abuse and inequality. Through robust research methodologies, Gavrielides’s new monograph reveals new forms of slavery, while creating a new, philosophical framework for restorative punishment through the acknowledgement of pain and the use of catharsis for internal transformation and individual empowerment. This is a powerful and timely book that generates much needed hope. Through a multi-disciplinary dialogue that uses philosophy and critical theory, social sciences, criminology, law, psychology and human rights, the book opens new avenues for practitioners, researchers and policy makers internationally. Theo Gavrielides, PhD, is a legal philosopher and a restorative justice expert. He is the Founder and Director of the Restorative Justice for All (RJ4All) International Institute, and the Founder of The IARS International Institute. He is a visiting professor in universities in the UK and abroad, and the Editor-in-Chief of RJ4All Publications, the International Journal of Human Rights in Healthcare, the Youth Voice Journal and the Internet Journal of Restorative Justice. He has edited over 20 books, and published extensively on restorative justice, violent radicalisation, criminal justice, human rights, youth justice and equality. https://www.theogavrielides.com/.

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Taylor & Francis Group http://taylorandfrancis.com

POWER, RACE, AND JUSTICE The Restorative Dialogue We Will Not Have

Theo Gavrielides

First published 2022 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN, UK and by Routledge 605 Third Avenue, New York, NY 10158, USA Routledge is an imprint of the Taylor & Francis Group, an informa business. © 2022 Theo Gavrielides The right of Theo Gavrielides to be identified as author of this work has been asserted by him in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library. Library of Congress Cataloging-in-Publication Data Names: Gavrielides, Theo, author. Title: Power, race, and justice : the restorative dialogue we will not have / Theo Gavrielides. Description: Milton Park, Abingdon, Oxon [UK] ; New York, NY : Routledge, 2021. | Includes bibliographical references and index. Identifiers: LCCN 2021014505 | ISBN 9781032047638 (paperback) | ISBN 9781472488350 (hardback) | ISBN 9781003194576 (ebook) Subjects: LCSH: Restorative justice. | Punishment. | Criminal justice, Administration of. | Race discrimination--Law and legislation. | Abuse of administrative power. | Justice (Philosophy) Classification: LCC K5103 .G38 2021 | DDC 364.6/8--dc23 LC record available at https://lccn.loc.gov/2021014505 ISBN: 978-1-472-48835-0 (hbk) ISBN: 978-1-032-04763-8 (pbk) ISBN: 978-1-003-19457-6 (ebk) DOI: 10.4324/9781003194576 Typeset in Bembo by SPi Technologies India Pvt Ltd (Straive)

“Every time I see a butterfly, I remember how frail and yet how powerful natural beauty is. Compared only with the work of an artist, their fragile wings are more than just for admiration. They allow the insect to fly, an act that even us humans cannot perform. But what is more profound about the existence of butterflies is the life path they have to take before they become beautiful flying creatures of admiration. Starting from a cocoon, they are first caterpillars, crawling for their survival. Our true existence follows the same life journey. Our first awakening is the cocoon that will lead to our first becoming. I hope that this book pulls all of us cocoons towards our true existence.” Dr. Theo Gavrielides

Dedicated to my father Konstantinos Gavrielides

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Taylor & Francis Group http://taylorandfrancis.com

CONTENTS

Foreword: Professor John Braithwaite, Australian National University, Australia Preface: Kay Pranis, independent trainer and facilitator for peacemaking circles, leader in Restorative Justice and Circle Process movements Introduction and acknowledgements

xvii xx 1

PART I

Power, race, justice and restorative justice challenged: The beginning of awakening

9

  1 Challenging the power that racialises us all

11

  2 Challenging race: Let’s talk about race when we talk about race

26

  3 Challenging justice: The lawful and the fair

37

  4 Challenging restorative justice: A painful biopower

51

PART II

Rebalancing power for justice: Mermaids and sirens

77

  5 Fault lines, mermaids and sirens: Power-interest battles within the restorative justice social movement

79

xiv  Contents

  6 The Trojan horses of race and power

102

  7 Power, fear and security: The terrorist within

115

PART III

Restoring peace: Back on track

135

  8 The fallacy of one justice and a consensual justice model restrained by human rights

137

  9 Restoring power in justice and restorative justice: What parties in conflict really want

157

10 Restorative justice policy and practice: A guide free from power abuse

195

PART IV

Case studies of power and restoration: Possibilities in action

223

Preamble to the case studies: Theo Gavrielides

225

Case study no. 1: Power and child sexual abuse – England Ben Lyon, Restorative Justice Senior Practitioner, Chair of the RJ4All International Institute

227

Case study no. 2: Power through bullying – England Brenda Smith, Restorative Justice Facilitator, Chilton Trinity Technology College

230

Case study no. 3: Power through rape – Denmark Karin Sten Madsen, Restorative Justice Practitioner

232

Case study no. 4: Power through race – USA Dr David R. Karp, Professor of Sociology, Skidmore College

234

Case study no. 5: The power of taking life, the power of owning restorative justice – USA Margot Van Sluytman

235

Contents  xv

Case study no. 6: Four restorative practices in Queensland – Australia Steve Brady, Restorative Justice and Trauma Recovery Advocate

237

Case study no. 7: Parental power and culture – Malaysia Taufik Mohammad and Nur Atikah Mohamed Hussin, School of Social Sciences, Universiti Sains Malaysia

242

Case study no. 8: The “powerful” victim paedophile – USA Todd Nickerson

244

Case study no. 9: Race, gender and power – USA Lorren Walker, Director, Hawai’i Friends of Restorative Justice Honolulu

246

Case study no. 10: Power in family relationships – Greece Afroditi Mallouchou, Social Worker – Juvenile Probation Officer Christina Moutsopoulou, Psychologist

250

Case study no. 11: The power of protecting my turf – Greece Afroditi Mallouchou, Social Worker – Juvenile Probation Officer Christina Moutsopoulou, Psychologist

252

Case study no. 12: Power in whiteness – England Sughra Bibi, Restorative Justice Officer, Oxfordshire Youth Justice Service

254

Case study no. 13: Race, gender and family relationships – USA Penelope Griffith, Executive Director, Collaborative Solutions for Communities

256

Case study no. 14: Regaining power through forgiveness – USA Penelope Griffith, Executive Director, Collaborative Solutions for Communities

258

Case study no. 15: Power imbalance in juvenile justice delivery: My experience as a prison social worker – Nigeria Chiemezie, Emmanuel Amaka, Retired Controller of Corrections, Former Head of Custody at the National Headquarters

260

xvi  Contents

Case study no. 16: Power and policing – USA Shadeequa Smith, Research Associate at the RJ4All International Institute and Workshop Facilitator at Amplify RJ

263

Case study no. 17: A Power and child sexualisation – Lithuania Juozas Kelecius, Project Officer at the RJ4All International Institute

265

Case study no. 18: Power imbalance and intimate partner violence – India Sajith Mohmad Saleem, Criminologist, National Human Rights Commission Case study no. 19: Sun, sea, sex and the new forms of slavery – Spain Daniel Briggs, Antonio Silva Esquinas, Dr Jorge Ramiro Pérez Suárez, Dr Rebeca Cordero Verdugo, Universidad Europea Case study no. 20: Climate change, power abuses and the plight of refugees – Spain Dr Daniel Briggs, Universidad Europea Case study no. 21: Digital enslavement, online dating apps and abuse – Spain Antonio Silva Esquinas, Dr Daniel Briggs, Dr Jorge Ramiro Pérez Suárez, Dr Rebeca Cordero Verdugo, Universidad Europea Case study no. 22: Power Abuse of Queer, Indigenous and Racialized youth in the Global North – Canada Tara Sheppard-Luangkhot, MMFT,Tara Sheppard Therapy & Conflict Resolution Services and Intern at the RJ4All International Institute Case study no. 23: English Nationalism: Deindustrialisation and Powerlessness – England Dr Luke Telford, Lecturer in Criminology, Staffordshire University

267

270

273

276

280

283

Author’s biography 286 Index 288

FOREWORD

Theo Gavrielides seeks to enrich the diversity and malleability of the restorative justice conversation with particular reference to race and power in this book. He discusses from various angles the risk of restorative justice losing its humility by becoming a colonial domination of sorts. Elders of restorative justice in particular must constantly ask themselves what they have done to relinquish power lately, to shift power to renew younger or struggling social movement actors. This is a book that helps us to view race and domination in a new way. It helps us learn how to challenge persistent inequalities through the twin eyes and the shared space of human rights and restorative justice. Theo’s idea of the shared space between the human rights movement and the restorative justice movement gives us a sophisticated philosophical foundation for tackling injustice. More broadly, the book argues against a technical approach to power that disregards the imperative for personal reflection.This is a book that starts with restorative self-critique of our movement, with its many flaws and disappointments. Political and social change do best when accompanied by ‘personal change from within’ that is accomplished by ‘self-challenge’. This was also an important message in cognate movements to restorative justice such as Gandhi’s nonviolence – being the change we wish to see in the world. Racial injustices that intersect with other injustice are daunting in their intersectionality.Yet this is a book that refuses to feed our despair. It infuses our imaginations with an empowering vision for hope and governance. Theo opens pathways to implementing the Martin Luther King imaginary that ‘If I cannot do great things, I can do small things in a great way.’ Restorative justice opens up spaces not only for theorists and pracademic entrepreneurs like Theo to do this, not only for restorative practitioners, but for every participant in a circle to do some small thing in a great way.

xviii  Foreword

Theo’s book advances a politics of inclusion and fusion of insights from theory and practice so evocatively and with such eloquence. One way this is accomplished is through concise stories in Part IV of over 30 restorative cases retold by 25 thoughtful practitioners or active justice participants. Particularly for readers who are beginning at learning about restorative justice, one good way to read the book could be first to dip into a selection of the case studies on topics that interest you most in Part IV, then to move to Theo’s Introduction and his Part I. I learnt so many new things here, such as from Theo’s illuminating analysis of the thought of Aristotle. At the end of Theo’s monograph, you might return to reflect with enriched insight upon the remaining Part IV narratives. Theo’s analysis includes a fresh perspective on the intersection of race, terrorism, and tyranny of control through security. In some countries, the restorative justice movement has been actively engaged with the politics of race and of national security states, but in many other societies the book reveals that its contribution has been limp rather than edgy. Theo’s lens sees power abuse that ‘racialises’ groups and identities and promotes religious discrimination. Slavery is a neglected topic in the restorative justice literature.This is a book that begins to redress that failing with a fresh approach as well. Drawing on Kevin Bales’s Disposable People, Theo argues that liberalization of markets for products and people has made it so cheap to buy people that a new form of slavery is created. It avoids actually owning slaves. Rather they are rented in quick and dirty relationships at a long distance from us when we enslave women in a Bangladesh garment factory in which they might die in a fire enabled by exploitative conditions of work. Or they die in a Coltan mine in Congo where miners work at the behest of armed groups that also inflict mass rape on these same communities. This form of neoliberal enslavement tends to be more profitable than the old slavery of importing and owning slaves. Restorative justice writing has until now been rather mute about how to respond to this new slavery. Restorative justice workers and thinkers well know that they benefit from the cheap, ephemeral fashions they wear, from the coltan in the laptops and phones they tap.We choose denial over restorative justice when we decline to think about it, to politically engage with it, decline to talk about it too much. Restorative justice is a tradition that rarely acts globally; it does not even thinkglobally-act-locally for the most part. It mostly settles for acting and thinking locally. Of course acting locally is a noble, generous thing. But if we live in a rich country, and that is all we do, our actions make another little contribution to increasing global inequality. This is because all the bounties of giving that restorative people in rich countries give go to other people in rich countries. There are pathways to doing in a great way some small thing about global injustice and the new slavery. Then we have done our bit to restore that imbalance in the way our lives speak truth to the power of injustice. Some young restorative justice activists can even aspire to be a future Kay Pranis who lives a life that has accumulated thousands of small things to redress global injustice in great ways. Watch and you will learn from Kay that when she enters a

Foreword  xix

circle of poorer people from some poorer country than her own, she arrives with a certain humility, kindness, grace. That is not to make any colonising point that Kay is the gifted Westerner who can do this more powerfully than a local Maori elder unusually gifted with mana, or an African elder who infects an African circle with ubuntu. No, Kay cannot do that bigger thing. But she can radiate her Minnesotan love in her Minnesotan way. I learn from Kay as I struggle at improving my more spiritually shallow ways of radiating love and care. If all Kay has to do to accomplish a little thing in a great way is walk into a room, contacting and infecting the humanness of others, we can at least aim to fail better as we learn from her how to pass on our tiny spoonful of love, care, time and our small gifts. Of course, as we all should aim to do, Kay does so much more than just walk into rooms! Yet rituals of graceful greeting are essential starting points for conversations that lead us to discover our own pathways to restoring global justice. One of the central messages of this book is that we must not standardize restorative justice.We must help it to be a growing and learning tradition that continually shifts its goalposts. Likewise, as we learn from the wisdom of the many great practitioners and survivors within the covers of this book, however much we learn from them, we must grow in our own way that is authentic to the restorative strengths of our own loves, of our own being. John Braithwaite Canberra (which means ‘meeting place’ in the Ngunnawal language).

PREFACE

I am humbled to be invited to offer my reflections on this book. I wish to begin by honoring the land, the ancestors, the original people of the land we each inhabit, the water and rocks, the plants and animals, the sun and the moon and the precious air we all share. I begin in this way because one of the important ideas in restorative justice is the recognition that everything in the universe is profoundly interconnected. So, I begin by honoring and giving gratitude to other parts of the universe to remind myself I am dependent on those other parts. I do not exist alone. Theo has clearly written from his heart and spirit as well as his mind as he wrestles with the challenge and potential of justice and restorative justice in this moment. The book covers a surprising breadth of the restorative justice landscape – from deep probing of philosophical roots to detailed observations about implementation and the impact of restorative practices on the lives of individuals. Theo’s questing passion infuses the book with an energy of inquiry and love to encourage us all to continue this life-long journey of learning and discovery. Exploring and learning through very different pathways Theo and I come to many similar places in our conceptualization of restorative justice. It is fascinating for me to read about the connections to Aristotle and other iconic figures in the history of Western philosophy. I am completely unschooled in this discipline. I came to the work I do accidentally. I am not an academic scholar or a researcher. I do not know the foundational writers and thinkers of philosophy or psychology or law or the criminal legal system or victimology or sociology or mediation. I stumbled into the field of restorative justice and it spoke to my deep sense of life and relationship. My learning has been from the thousands of people that I have interacted with along the journey. My own understanding of the philosophy that guides this way of being in the world was highly influenced by Indigenous People. The world view I was exposed to among Indigenous People shaped my current sense of the universe, both in the natural world and human nature. Along the path I noted that the world

Preface  xxi

view of Indigenous People shared concepts with other wisdom traditions such as Buddhism. Howard Zehr connected restorative justice to concepts in the Bible. And now Theo connects restorative justice to key thinkers in the tradition of Western philosophy! It is the hallmark of a powerful idea that people come to that idea from many different directions, life experiences and conceptual frameworks. Because my introduction to restorative justice was the writing of Howard Zehr, from the beginning of my own journey I understood that restorative justice was a different paradigm for the criminal legal system. Over time I realized that the criminal legal system is a manifestation of the larger social paradigm of our culture. In order to change the paradigm of the legal system it would be necessary to change the paradigm of the larger culture that it represents.That was a much bigger, more daunting task – but also a more hopeful one for me. My work in restorative justice and peacemaking circles became about cultural transformation not just legal system transformation. My journey in the fullness of that concept was aided by the Brazilians who conceptualized their restorative justice work under a larger umbrella of creating a Culture of Peace. Theo offers and explores many important ideas in this book that I believe can move us toward cultural transformation through the framework of restorative justice. I want to highlight a few that resonate deeply with my lived experience and sense of urgency in the work. The first of those is the importance of paying attention to power. Power operates all the time in our relationships but we are often unaware of how power is operating – especially if we are the one holding more power. Unintentional harm is frequently the result of unexamined power relationships. A primary goal of restorative justice for me is the redistribution of power, but if we do not understand how power is distributed originally, we will not be able to assess whether we have redistributed it in a restorative process. Theo speaks eloquently about the role of power in issues of equity and voice and about the importance of a constant consciousness in theory and practice regarding how power is functioning. He begins the book with a discussion of power and returns repeatedly to an examination of power, including that held by restorative justice practitioners. Another important theme in Theo’s book is the centrality of our own internal work as restorative justice practitioners. Parallel to the external work we do with others as colleagues or clients, many of us find ourselves on a journey of internal work of healing and repair and internal reflection on applying the values in our own lives. This was not obvious to me at the beginning of my journey with restorative justice. It grew organically out of the direct experience of restorative practice and the continual participation in discussions about values. The inner work shapes how we hold ourselves in relationship with others and because restorative justice is relational work that inner work is foundational to effective practice. Theo writes, “without an internal monologue and a willingness to relinquish power ourselves, this journey that we are taking together will be without purpose.”This theme arises again and again as Theo reminds us that this is work of challenging our own training and socialization, our own mindset.

xxii  Preface

Theo’s discussion of ‘restorative pain’ brings a valuable insight to our understanding of the dynamics of healing. It also clarifies a common misunderstanding about restorative justice. Because restorative justice is not interested in punishment many assume that it does not create pain. In fact, the process of accountability in restorative justice is a very painful process. The pain comes from inside when we truly take responsibility for causing harm to another human being. It is not pain inflicted from the outside. Through the pain of taking responsibility we can grow and heal the wounds we cause to ourselves when we harm another. Theo suggests that the lack of a clear definition of restorative justice is not only not a problem, but reflects the very essence of its nature as alive and dynamic. I agree wholeheartedly! His analogy to water is delightful, “Scientists will look at water and define it as H2O. But in the pursuit of truth, and a higher sense of knowledge that is continuously moving, we will see water as an untamed form of nature that can take almost unlimited shapes, forms and roles. Not one definition.” Theo makes a strong case for wariness concerning standardization of protocols or training or practitioner certification. He writes, “Put another way, restorative and other types of community justice are not processes that can be standardised so that they can be initiated through automated structures and concluded with a guaranteed result. They may involve considerable timescales and shifting goalposts.” I strongly support this position. The intentions of standardization are typically to ensure quality control. However, the familiar models of quality control are based on the paradigm of the status quo. Those models replicate the power structures of the status quo and consequently undermine the very purpose of restorative justice as a pathway to equality. The familiar models do not recognize other ways of knowing or the importance of allowing key participants to shape their own process. We need quality assurance processes based in restorative principles. That begins with self-reflection and collective reflection and feedback from those most impacted by the process. I want to acknowledge the excellent work in this book linking restorative justice to human rights. That linkage is very underdeveloped in the US. We can benefit from Theo’s carefully constructed weaving of the two movements. In this book Theo raises very useful questions for the restorative justice movement and provides much food for thought. This is a very timely contribution to the restorative justice literature. We are in a moment of rapid growth with all the attendant pressures and risks. Theo offers us a way to pause, to reach deep into our sense of purpose and take stock of where we are and where we want to be headed with this new momentum. I wish to acknowledge every reader with my gratitude for your energy and interest. These words are nothing without you! Kay Pranis Independent trainer and facilitator for peacemaking circles, leader in Restorative Justice and Circle Process movements

INTRODUCTION AND ACKNOWLEDGEMENTS

1 Courage, strength and responsibility I rarely get the time or the freedom to write on my own terms.Those who have met me know that I rarely stay still and that my brain tends to process multiple thoughts at the same time, often with no connection. This is something that I have struggled with since childhood (they now call it attention deficit hyperactivity disorder). It is only after a lot of embarrassment, failed tests, self-doubt and hard work that I gained the confidence in my ability to write about my thoughts and, more importantly, my emotions. I have also learned that it is not a bad thing to have scattered thoughts, as they are merely a reflection of the rich and complex experiences that we consciously, or subconsciously, absorb during our life journey. And life is not a structured experienced, especially when it comes to relationships. This is one of the reasons I find writing therapeutic, as it structures my nebulous concepts and calms my brain. One of my favourite parables is that of the hummingbird (Yahgulanaas, 2008)1. In this story, which was inspired by the Quechan (an aboriginal American tribe), Dukdukdiya, a little hummingbird, is watched by the burning forest’s animals as she flies back and forth, back and forth carrying one drop of water each time in an effort to put out the fire. The animals ask Dukdukdiya the meaning of her efforts and warn her of the dangers; the little hummingbird replies: “I am doing what I can”. Just like Dukdukdiya, this book is about hope as this is found in the power of our individual actions – or inactions. Every one of us has strength and courage, independently of how powerless we may appear or are made to feel.With this courage comes counter-power and change independently of how fatal the fire may seem to be. But external change is not possible without first attempting an internal one. 1  http://faculty.washington.edu/kbunn/Yahgulaanaas%20Hummingbird.pdf (accessed in March 2021). DOI: 10.4324/9781003194576-1

2  Introduction

In fact, this book celebrates 20 years of scattered thoughts, complex relationships and numerous attempts for an internal change. During this time, the learning that I was able to receive and give has been incredible, and I hope that each chapter reflects this.When I set off on this journey, I was a young migrant with an ambition to make a difference in the way justice is conceptualised and delivered. For every step forward, there were always two steps back, whether these were due to my inexperience, excitement and naivety, or factors that were out of my control. But I was never alone in this journey, despite moving to a country with no relatives or an existing support network. And I am well aware that I am not an easy person to be with. I am very stubborn, especially when it comes to my beliefs and worldviews. This should explain why I tend to be inspired by those whose convictions in life are strong (even when they are wrong). I myself have been wrong many times but also fortunate enough to be guided from my early restorative justice days by incredible individuals, including scholars such as John Braithwaite and Gerry Johnstone as well as practitioners such as Ben Lyon. I owe them much gratitude. During this 20-year journey, I gained and lost many friends and colleagues. I also lost my dad, who first inspired me to pursue the path of justice. A lawyer himself, he would take me to his office and court appearances, show me the tricks of the trade as well as the harsh reality of the justice system. At age 10, I would spend most of my school holidays pretending to be the next best lawyer! However, to my dad’s (initial) disappointment, my wish to become a lawyer changed, as more people supported my journey in the pursuit for a different kind of knowledge. As I was gradually exposed to other realities outside of my small country of origin, I felt compelled to explore and indeed contribute to what I saw as a parallel and significant justice world, where our individual sense of fairness did not always reconcile with what people, like my dad, were paid to do as a job. In this world, lawyers, judges and the justice system as we got to know them had little significance. As I will argue in this book, this world is as important in our experience and perception of fairness as the visible, structured ways of delivering justice.

2 Acknowledgements I thought that it would be fitting to start my new monograph with a personal note, as the journey that I took to write it involved a great amount of self-transformation and questioning. Now, 20 years later, I am able to combine my personal learning and worldview with hard and original evidence, which I collected through the two international NGOs that I set up (The IARS International Institute2 and the RJ4All International Institute3), as well as various independent research programmes, which I was funded to carry out locally, nationally and internationally. Some of this research

2  www.iars.org.uk (accessed in January 2021). 3  www.rj4all.info (accessed in January 2021).

Introduction  3

has appeared in peer-reviewed articles and books but never in a collective manner that articulates the concerns, but also hopes, which I accumulated in this book. Much gratitude goes to my son,Tommy Gavrielides, as well as Sophy Gavrielides and Juozas Kelecius for teaching me how to balance life and indeed my own power, which I know I often abuse. The patience and love that I experienced through them are the ingredients that make happiness and that I believe to be available to everyone, including you reading this book. Combining personal worldviews with empirical data was a difficult task. Similarly, it was difficult switching from writing as a researcher to expressing my raw emotions were. Despite the risks involved in this approach, I took a chance as I made my own effort to make a change from within. And I would like to acknowledge so many other people and institutions, including the publisher and the funding bodies, which supported the research that allowed me to collect the data for the book. I am also grateful to the staff, volunteers and users of my two NGOs who worked under my leadership and believed in my vision of how to serve justice. Much gratitude also goes to esteemed colleagues who took the time to read early drafts of this book, including Kay Pranis, George Pavlich, Howard Williamson, Margaret Thorsborne, Paul Kiff, Dennis Wong, Gabriel Velez and Gunjan Sharma. I am particularly grateful to Gerry Johnstone and Ben Lyon for triggering a number of questions that helped my awakening but especially for their friendship and belief in me. Special thanks also go to Aneta Tunariu for supporting my work as well as my friends Paval Dhaliwal and Vasso Artinopoulou. I could not think of a better celebration of my 20 restorative justice years than John Braithwaite’s and Kay Pranis’ introductions to this book. Their wisdom and kindness have acted as pillars of my contributions and an inspiration to continue for yet another 20 years!

3 Awakening I have always felt that there was something lingering in the background of all my projects, work and writings. A bigger picture that I could not see. The issue that I would not address. The dialogue that I would not have. This feeling gradually became stronger as I learned to observe myself, my actions (or inactions), fears and insecurities. My background in legal studies as well as my day job did not help me to understand this feeling. In fact, they distracted me from investigating it. However, philosophy and privileged moments of true dialogue with friends and colleagues gradually helped me to start painting the hidden picture. As brain specialists and cognitive psychologists would say, we create meanings through a process of visualisation of images infused with feelings that lead to connections. The word ‘table’, for instance, creates a visual image of a surface (most often square) standing on four legs. Conversely, when viewing something resembling this image, our brain labels it ‘table’. Interestingly, online search engines function in a similar way. Try searching for images using the word ‘table’ and you will most likely get thousands of hits resembling the aforementioned description.

4  Introduction

Now, try to visualise the word ‘justice’ or even ‘criminal justice’.When I applied the test of using search engines, my hits rendered the same images that were in my mind. These were the balanced scales of justice, the blindfolded Greek Goddess Themis (again holding the balanced scales of justice and a sword), holding hands, or a fist. Reflecting on the findings of this homemade test, I came to realise that most of us visualise justice in this way simply because we view it as a virtue, a value-based notion, a higher purpose and an honourable goal that can give essence to our life paths and sacrifices. My brain did not allow me to visualise justice in the form of prisons, courts, suited white men or ministries and politicians. This led me to believe that our brains deny diminishing justice to an image of anything less than a representation of a higher existence.Yet, when an injustice takes place, we ask for prison bars, tall walls, courtrooms and lawyers. Not for this higher existence. I have come to believe that this subconscious behaviour is no coincidence. It is part of the hidden picture, which I could not see for years. It is also the result of many decades of conscious planning to achieve what Foucault and many others have called “power and control” (1991). Shirley Chisholm also said in Unbought and Unbossed: “Racism is so universal in this country, so widespread, and deep-seated, that it is invisible because it is so normal” (Chisholm, 2010, p. 45). By controlling our sense of justice, our expectations can be directed and subsequently the reality can be manipulated. Without this manipulation, there can be change, and change is a thread to the status quo that leads to power abuse and inequality. Admittedly, the literature on power, its definitions and different forms, and how to develop or diminish it (whether at the inter-personal, inter-community or interstate level) is rich.Yet never before have we so silently succumbed to forces of power defining our lives’ purpose, every-day reality and future.This realisation is a very scary feeling indeed. But this fear is not bad. In fact, it is constructive and honest. It can lead to change and improvement. I therefore, embrace it and use it to change from within. It is a different kind of fear, which I want to expose in this book as being inconspicuous and dangerous. As I write this introduction, the world is experiencing unprecedented health and socioeconomic impacts, which can only be compared to those that followed World War II. We are afraid that we will lose our life, health and independence, income and homes, family and friends. The scale of this unprecedented fear is increased with continuous threats that are brought to our homes, dinner parties, private moments and bedtime. These may relate to terrorist attacks, financial and refugee ‘crises’, unemployment, migration and viruses.These fears create dependencies. Dependencies allow control. And control serves the status quo. The flip side of this was described by Malcolm X: “I for one believe that if you give people a thorough understanding of what confronts them and the basic causes that produce it, they’ll create their own program, and when the people create a program, you get action”. I have never believed in conspiracy theories. In fact, my research and legal background made me a rather dull chat friend, as I always ask for evidence. And it is this evidence that I want to present through this book, which aims to paint the aforementioned hidden picture by starting the dialogue that we won’t have.

Introduction  5

We cannot deny what is; we can only learn to observe it, and as we start to awaken, we seek tools that will help us regain the power that we have silently lost through gradual and consensual new forms of slavery. This responsibility is intensified if we have undertaken a role to serve justice as practitioners, researchers, policy-makers or campaigners.

4 The book’s key aims Ultimately, with this book, I want to challenge current thinking and the subconscious feelings of despair and defeatism that are produced in us for the purpose of control. I believe that the power of individual actions is found in the belief that no matter how small these actions are, they represent a significant stand against inaction and the forces that lead to silent slavery and persistent inequalities. The book is structured around four concepts, which act as pillars for its arguments and indeed contribution: power, race, justice and restorative justice. These concepts are brought under one roof in order to meet two key aims. First, I want to create a contemporary normative and practical framework which can be used to counteract power abuse and the way in which power more generally is exercised today in inter-personal, inter-community or inter-state affairs, including relationships, conflicts and partnerships. As I observe the growing inequalities that are being manifested in our modern societies, I challenge the way power and race have been interpreted. I open up the debate that we won’t have to construct new conceptual methodologies for these four terms, which I believe respond to our modern realities. I do so with the utmost respect to the race equality and restorative justice movements while acknowledging the rich literature on power and race. Second, I want to elevate justice and restorative justice as I claim responsibility for not challenging them enough during times that communities needed them the most. Like most servants of justice and other members of the restorative justice movement, I became a victim of the subconscious methodologies which the powerful employ to maintain the status quo. As I am awakening, I challenge restorative justice as a biopower that can restore persistent inequalities and the misuse of power by top-down structures.To this end, I first take a position as to how I understand justice and restorative justice by reviving Classical Greek philosophy and Aristotle in particular. I move on to claim that restorative justice can be morally problematic. Its practices and teachings are painful and thus can be legitimised only within a philosophical framework that has clear and attainable objectives. The pain resulting from restorative justice is also power itself as well as a tool that can be used to address inequality and injustices. This pain inflicted by restorative justice is a process, not an outcome, and can lead to catharsis and self-reconstruction. Existing normative narratives aiming to justify this pain did not satisfy me and thus I use this book to present my concept of restorative pain and catharsis.This analysis led me to propose a philosophical justification of restorative justice which acknowledges its harsh and sometimes cruel nature as well as its limitations and own power-interest battles. As I develop and propose this new restorative justice philosophy, I bear two risks in mind.

6  Introduction

First, not to become yet another missionary who visits lost souls in need of my own ‘true’ version of restorative justice. In fact, a key aim of this book is to illustrate the diversity and malleability of the restorative ethos and practice, which take meaning only through local understandings and implementation. I also argue that one of the weaknesses of the restorative justice movement is its tendency to act as a new intellectual colonial power, as we forget that in order to address power abuse, we first must relinquish power ourselves. Second, not to remain abstract in my proposition but to back it up with hard evidence that involves the ultimate beneficiaries, whether these are the victims or users of the justice system, practitioners, policy-makers and other researchers. The actions and research programmes which I undertook to minimise this risk are the primary reason for taking 20 years to write this monograph, which concludes with some practical pointers.

5 The book’s structure The book is divided into four parts, each representing a building block that should lead me to my stated objectives. Part I is based primarily on secondary research that combines critical thinking and the development of new normative ideas and methodologies. Part II is based exclusively on new and original data that were collected through primary research and the use of qualitative and quantitative methods. Part III is a combination of critical analysis and original fieldwork. While it presents new research data that were collected through primary research, it develops new theories, including a philosophy for restorative justice. Finally, Part IV is based exclusively on real case studies, which were written by practitioners, victims and users of the justice system. The mixed methodology of the book allowed me to be flexible enough so that I can express my thoughts and feelings on my own terms while bringing the required evidence when making claims and positing solutions. Part I aims to challenge the book’s four conceptual pillars: power, race, justice and restorative justice. Each concept is exposed in a separate chapter, which starts with a descriptive account using the extant literature. The chapters move on to challenge current thinking. Each chapter’s objective is to deconstruct these notions and rebuild them in an awakening, or awakened, state of mind. As we reconstruct these notions together, we search within ourselves to understand our own relationship with them. Ultimately, this part of the book should bring the reader to a place where awakening has happened. It is simply not possible to be able to challenge the current distribution of power if we are not ready to view it for what it is. Of course, with questioning comes resistance, and I am conscious that some of the ideas and evidence presented in this section will upset some readers. But discomfort did not trouble me, as we all need to be negatively affected in order to set things in motion for a better end. Part II proceeds with investigations of countering power for justice and restorative justice. Similar to Odysseus’s journey from Troy back home to Ithaka, our own

Introduction  7

journey will encounter mermaids and sirens.Their songs and promises will distract us. But we need only to remain focused on why we took the journey in the first place. The path that has led you to read up to this point and the reason you might want to continue reading. These areas of mermaids and sirens were chosen based on extensive research, which I carried out through funded and unfunded research projects involving multi-year fieldwork. Some of these projects ran for over a decade, others for a minimum of three years. Their methodologies and findings will be detailed in their respective chapters. What I will summarise here are their core themes. Starting with the most unconformable one, Chapter 5 is a restorative justice self-critique.The intention here was to look back, assess and present some admissions that might be hard to accept but not impossible to address. Not free from power, restorative justice organisations, researchers, practitioners and policy-makers are often caught up in the vicious circle of power and control, which they claim to be targeting themselves. The chapter forms part of our journey of learning how to watch ourselves while using power at all levels. First, the chapter identifies six fault lines that exist within the restorative justice movement and that create divisions, distraction and confusion. These mermaids and sirens are also the levers that engage power within the restorative justice movement. This engagement is not for the benefit of others. It can be selfserving and distracting.The chapter uses these fault lines to identify the key risks that are associated with them. Three examples of missed opportunities that are attributed to these fault lines are also presented as examples of power abuse. Finally, the chapter attempts to move us away from the mermaids and sirens by claiming that the restorative justice movement is a social movement and, as such, can focus on promoting social justice through key principles that are drawn from the human rights narrative. Chapter 6 deals with what some have called the “Trojan horses of race” (Kang, 2005; Gavrielides, 2014).These are the hiding places of our subconscious biases that prevent us from acting organically in the pursuit and enjoyment of justice and restorative justice. The chapter names three of these Trojan horses, outlining how they collectively prevent us from serving, experiencing, acknowledging or pursuing restorative justice and equity. Subsequently, the chapter provides a critical analysis of the potential of restorative justice to overcome these hurdles. I argue that these hiding places are not the product of inequality and injustice. They are the result of well-planned, multiyear investments for maintaining the status quo. Inequality and injustices are simply the results, and race discrimination one of their manifestations. Chapter 7 aims to investigate ‘the politics of believe to belong’ and how these have been used to sustain power through fear of security. Justice and restorative justice are premised on the ideas of community and individual identity. Destroy them and enough space will be created for the development of control structures that can maintain the status quo of the powerful. This chapter looks into the why and how of this fear. It then presents some original data that I collected through a 2017–2020 research programme which I coordinated between seven countries. The project focused on violent youth radicalisation and engaged with over 3,540 individuals. Six truths will be constructed through its evidence to question current reality, allowing some critical reflections on the effectiveness and impetuses of key international instruments and policies that

8  Introduction

were introduced to combat the source of this fear. The role of restorative justice and the value of an alternative reality, complementary to the current punitive paradigm, are examined throughout the chapter. Part III aims to put us back on track with ourselves in the hope that we can become better servants of justice whether at the personal or professional level. Chapter 8 exposes the fallacy of one justice. This chapter also aims to move things forward by presenting a system that allows the structured and unstructured versions of restorative justice to coexist restrained by human rights and without co-option. Chapter 9 attempts to restore power and hope within the restorative justice movement by looking at what parties in conflict really want from restorative justice. Case studies of recent surveys that I carried out with victims, offenders and restorative justice practitioners will be used to provide the ingredients for a truly user-led restorative practice, which is as free as possible from top-down structures of power. Chapter 10 will attempt to devise a practical guide for implementing restorative practice and policy that is free from power abuse and manipulation. The book would be incomplete if it failed to give direct voice to those who either serve or experienced restorative justice and through it the rebalancing of power for themselves or others. Therefore, Part IV is dedicated to case studies which were written by practitioners and users of the justice system including individuals who experienced power abuse themselves. These vignettes illustrate the various arguments of my monograph. A tip as you read further. This book will fail in its objectives if the reader adopts a technical approach to its key concepts of power, race, justice and restorative justice. Such an approach will disregard the need for personal reflection and self-transformation. Power and its abuse are not limited to one institution or a few individuals. Power is a fluid set of social relations impacting and involving everyone, including you and me. Understanding and using power through this book are not so much about social change as about personal change from within. Hence the personal tone of my writing. We can all strive for a more balanced power in society, where the poor have more say and the powerful are more understanding and giving. But if we work towards these goals without a clear conceptual understanding of how power manifests itself within us and through our actions (or inactions), then our efforts will remain mere procedural actions of short-term impact.There is only one way we can save the burning forest and this is not by being bystanders.We must transform into hummingbirds of hope, courage and responsibility.

References Chisholm, S. (2010). Unbought and Unbossed: Expanded 40th Anniversary Edition. Washington, DC: Take Root Media. Foucault, M. (1991). Discipline and Punish:The Birth of a Prison. London: Penguin. Gavrielides, T. (2014). Bringing Race Relations into the Restorative Justice Debate. Journal of Black Studies 45(3): 216–246. Kang, J. (2005). Trojan Horses of Race. Cambridge, MA: Harvard Law Review Association.

PART I

Power, race, justice and restorative justice challenged The beginning of awakening

1 CHALLENGING THE POWER THAT RACIALISES US ALL

1.1 Impetus and a change from within If you were given a choice between power, money or knowledge, what would you choose? I believe you have already made that choice without knowing it. In fact, you lead your life based on that choice. I also believe that most consequences that we face in life as individuals (or as group members) are the results of our choices, whether they are conscious or subconscious. The question here is not about the choice that you have already made but about the processes, influencers, enablers, and leavers that directed this choice. It is part of human nature and basic needs to seek power, just as natural as it is to seek the air that fills our lungs or the food that charges our cells. The literature on power, its definitions and different forms, how to develop or diminish it whether at the inter-personal, inter-community or inter-state level is rich (Gargi et al., 2002; Chitty et al., 2017). The views on what constitutes power are diverse, and they can stretch from being an abstract cloud that shadows all our actions and relations (Weber, 1976; Foucault, 1988) to being a tool for domination (Braithwaite, 2003). Domination is not a bad thing in itself; it can be used towards the attainment of utility for the individual and the community (Mill, 1993). History, of course, is littered with bad examples of power domination. But it is also embellished with beautiful stories of our humanity and the use of power for selfless happiness. The key objective of this chapter is twofold. First, it aims to put power in the context of this book while helping us to understand our own relationship with it. And we do have a relationship with power, even if you have never read any of its literature. I believe that the way we see and use power depends very much on where we sit – on our own positions and identities, age and psychological development, context and emotional states. And this position DOI: 10.4324/9781003194576-3

12  Power, race, justice and restorative justice challenged

is not fixed. It is personal and very much alive. I believe that one of the goals in life is to develop, and with this evolution, to be able to change seats, positions and even identities. Along with this constant movement, our interpretation of power changes. Within this dynamic picture, normative interpretations of power from the extant literature become mere vehicles of temporary understandings. I also argue that nongovernmental organisations (NGOs), donor agencies and even social and human rights movements that are trying to understand power and address power abuse are also part of the power picture themselves. But it is very easy to forget or ignore this, when it comes to understanding the dynamics of a situation, partly because it can be uncomfortable to have to examine our own power critically. Second, the chapter aims to profile the individual, groups of individuals or communities who are faced with the negative consequences of power and its manifestation through domination and inequality. For the chapter title, I consciously chose the term “racialise” for two reasons. First, I want to start challenging what is accepted by the extant literature as “racial”, preparing the ground for the subsequent chapter, which is dedicated to this objective. Second, I believe that this term brings a sense of unity amongst us, as under its roof, we all feel a shared sense of injustice, independently of our positions. And it is these collective senses and experiences of injustices that I want to explore for restorative justice as a tool for addressing or preventing power abuse and restoring peace through equality and poverty relief (Pavlich, 2005, 2018, 2021; Johnstone, 2018). I am aware that my way of approaching power relations and their interaction with race may create discomforts. It is with the utmost respect for the race equality movement that I take my thesis. In fact, I deeply believe that race equality work has been undermined by several powers that have often pushed it into isolation and silo thinking. I am also conscious that these discussions are more acceptable in certain cultures and settings than others. For example, whereas in the UK race discussions tend to be “polite” and “politically correct”, in the US, movements (such as Black Lives Matter) are more vocal and visible. I do not plan to ignore this reality. In fact, culture, identity and power are all interlinked, and the subsequent chapters aim to explore these dynamics in depth. Furthermore, for some, putting power issues on the table can be threatening to their own power or ideas for change. This chapter and indeed the entire book constitute an honest attempt to move things forward for race equality and equality. Discomfort does not trouble me. Don’t we need to be negatively affected in order to set things in motion for a better end? A tip as you read further: this monograph will fail its objectives, if the reader adopts a “technical approach” to power, which disregards the need for personal reflection. By “technical”, I mean detached and removed from personal responsibility through the use of an institutional or societal approach. Understanding and using power are not so much about social change, but personal change from within. I thus invite you to approach the book with an openness to reflection and self-challenge. We can all strive for a more balanced distribution of power in society where the poor have a louder voice and the powerful are more understanding and giving. But if we work towards these goals without a clear understanding of how power

Challenging the power that racialises us all  13

manifests itself within us, then our attempts will be mere procedural actions of short-term impact. Some have called this power “informal” as it is dispersed from us throughout our relationships and society (Weber, 1976). We often consent to it simply because we are socialised not to challenge it. Some other times, we consent to it because we have no choice. Independently of the reasons, repressive power always leads to violence. By exposing it, we create mechanisms for prevention and this is exactly where I want to take my first step. So, let’s expose power.

1.2 Power is everywhere Realism defines power as a capability to impose, enforce or exercise influence and dominance (Morgenthau, 1954; Waltz, 1979; Dunne and Schmidt, 2001, pp. 141–147). It views power as a necessary ingredient in the pursuit of goals and aims (Thucydides, 1972). It is power that gains results. This view is contrasted with the idealistic or liberal conception of power, which identifies it within law and order (Keohane and Nye, 1977; Howard, 1978; Doyle, 1983, 1997; Baldwin, 1993; Moravcsik, 1997). According to this perspective, it is the institutions that are mandated to exercise power in maintaining law and a state of justice. Power according to this view does not necessarily reside with states but rather with the institutions that promote justice, such as the United Nations (UN) or the International Court of Justice (Knapp, 2004, pp. 514–549; Frangonikolopoulos and Proedrou, 2010, p. 476). Realists will look at power in the context of international relations and raise questions of military capabilities, security, sovereignty, colonialism and financial control (Morgenthau, 1960). Nietzsche, on the other hand, argued that the feeling of power [Gefuehl der Macht] has become both the greatest love of and a ‘demon’ to humans (1883). Other prominent writings are by Max Weber, Robert Dahl, Steven Lukes, Hans Morgenthau, Raymond Aron and Michael Mann. It is worth singling out Foucault and Weber’s interpretation of power as relational. Weber’s rich definition is helpful: [Power is the] opportunity to have one’s will prevail within a social relationship, also against resistance, no matter what this opportunity is based on. (Weber, 1976, p. 28) Many scholars have argued that power influences global politics and that restorative justice may construct an appropriate framework that can bring balance. For example, Hobbes stressed the importance of controlling forces of power or authorities’ control in imposing compliance with treaties or agreed terms. In his view, justice, or injustice, depends on a political force without which nothing can be classified as just or unjust (Metaxopoulos, 1989, p. 213; Kersting, 1992, pp. 59, 62). Power can also be viewed at different geographical levels. Some have argued that in order to challenge power, we must start locally as it is in the arenas of everyday life where people are able to resist power and to construct their own voice. Others

14  Power, race, justice and restorative justice challenged

argue for the importance of the nation state and how it mediates power, suggesting that the possibilities of local spaces often depend on the extent to which power is legitimated nationally but shared with the locality. Others challenge this view, arguing that “there is a new dialectic of global and local issues that do not fit into the scheme of national politics” (Beck, 2005, p. 81). We can divert our personal, community or state responsibility of how we use power by engaging in frivolous debates that have captured the extant literature for years.These include issues such as the analysis of actors who use power as an instrument of coercion, whether power is a good or a bad thing, or indeed whether power is the only route to justice and change. I will save you the time of answering these questions by positioning ourselves elsewhere. I must admit that this position is not new. It is where Foucault found himself. He said: Power is everywhere, diffused and embodied in discourse, knowledge and regimes of truth. (Foucault, 1995, p. 75) Power is everywhere and comes from everywhere, so in this sense is neither an agency, nor a structure. (Foucault, 1988, p. 63) We are all prone to combat, domination and antagonism. But we are all impelled to associate with each other and to constitute ourselves into a series of (often rival) groups.These groups are what we now call “societies” with their complex historical, cultural, social, financial and ethical complexities. We learn to coexist and become accustomed to living with our fellow citizens in a civitas (Germino, 1972).We learn to regulate power. Power is not just about politics, culture, civil society, knowledge or money. It is an everyday, socialised and embodied phenomenon, which is personal to you. It is exercised consciously or subconsciously. To challenge the way it is manifested, we need not find the absolute truth.We need merely to detach the power of truth from the forms of hegemony – social, economic, and cultural – within which it operates at the present time (Foucault, 1995, p. 75).

1.3 Three levers of power and control If power is everywhere, then who is subject to the consequences of power abuse and what has been done to rebalance the distortions of power that led to inequality and poverty? To answer these questions, I present three levers that have been consistently used to achieve power abuse through control. I believe that by exposing and understanding these levers, we can expand our interpretation of “race equality” and thereby break silo thinking and work towards equality.These levers are neither exclusive nor timebound. They are singled out for two reasons. First, they are directly related

Challenging the power that racialises us all  15

to this book’s aims and its focus on power and its interaction with race, justice, and restorative justice. I accept that there indeed might be other ways of operating power. Second, these levers are relevant today.They are neither historical nor speculative. They are today’s reality.

Lever no. 1: Power and control through financial terror According to many, poverty and the unequal distribution of wealth are the principal consequences of power monopoly (Dorling, 2011). Based on a number of studies, poverty has a direct impact on the equal enjoyment of our basic rights, including civil and political rights. In fact, poverty is closely related to poorer outcomes in terms of living conditions, overcrowding, crime in the neighbourhood and destitution – leading to poor health and low life expectancy. Using the UK as an example, we know that the total net household wealth of the top 10% is £853,000, almost 100 times higher than the net wealth of the poorest 10%, which is £8,800 or below (Gavrielides, 2016). One person in 5 lives in households with less than 60% median income; this rises to nearly 1 in 3 for Bangladeshiheaded households. Nearly three-quarters of Bangladeshi children and half of black African children in Britain grow up in poverty. Moreover, 1 in 4 families with disabled people live below 60% median income, 29% of those with a disabled adult, 28% of those with a disabled child and 38% of those with both. Williams and Collins argue that health disparities between African-Americans and whites are attributable to systemic differences in access to and the quality of medical care, poorer working and residential conditions and the impact of poverty and educational levels on health behaviour (Williams and Collins, 1995). We now have enough evidence to safely claim that a major catalyst of racial disparities in mortality rates and other health indicators is the disproportionate exposure of poor black populations to environmental risks in their residential surroundings (Walker et al., 2012). We also have evidence that the experience of racism and everyday discrimination can negatively affect child development1, activating a stress response that has a wear-and-tear effect on brains and other biological systems (Forde et al., 2019). For example, in England and Wales, men and women living in the most deprived areas are twice as likely to commit suicide as those in the least deprived (Gavrielides, 2016). Black African women who are asylum seekers are estimated to have a mortality rate 7 times higher than for white women, partly due to problems in accessing maternal healthcare. Black Caribbean and Pakistani babies are twice as likely to die in their first year than Bangladeshi or white British babies. Infants under the age of 1 are more likely to be a victim of homicide than any other age group. In England and Wales, each week at least one child under 16 dies as a result of cruelty or violence; two-thirds of them are aged under five. Moreover, the available evidence points to poorer health outcomes for many equality groups such as those from black, Asian and minority ethnic (BAME) 1  https://developingchild.harvard.edu/resources/racism-and-ecd/.

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backgrounds, partially due to worse socioeconomic circumstances. Furthermore, groups vulnerable to pressures (such as poverty and victimisation) show higher rates of mental illness. The risk of having poor mental health scores is also higher for certain ethnic groups with high poverty rates. For instance, the risk of mental health problems is nearly twice as likely for Bangladeshi men than for white men. So, if poverty is indeed a considerable lever across equality strands, then why do we insist on challenging power abuse against black groups through silo working? The Council of Europe, for example, asked that the focus of all human rights activities and lawyers should first and foremost be on addressing poverty as the determinant of inequality and social injustice (Gavrielides, 2016). This is also the reason why the civil rights and legal guarantees enshrined in the European Convention on Human Rights (ECHR), including that of property and individual life, were hoped to be used as key tools for building the human rights project for all, collapsing the walls of power and marginalisation. Sadly, the current reality is a long way from this hope. Habermas (2012) poignantly observes that we are living in the crisis of a post-democratic era, which is characterised by a more capitalist and market-oriented functioning of democracy. I argue that, in Europe, this crisis has taken democracy away from its roots as a form of governance. This new system of governance has led to a financial calamity that leads to despair in the developed world (Dorling, 2011). This despair is not owned by any specific marginalised group. The world economic crisis which started with the Great Recession in 2007 and returned with Covid-19’s unprecedented consequences, made everyone feel their future is in a deadlock. Despair replaced hope. Subsequently, the rest of the world’s populations may be considered to be living their lives without any prospect of survival given the deprivation of essential commodities and basic amenities afflicting these populations. In this absolute despair, fear is created and, through this fear, control. The fear and despair that will be present in the post Covid-19 era will only be exacerbated as the powerful seek to weaponise the economic narrative. The first lever that motivates the abuse of power is financial terror. For example, in a society where there is no hope, civil rights are seen as luxuries. Survival comes first and in the serving of our basic instincts the vulnerable come last. Take the example of the “Greek depression”. With a debt of over €323 billion, hope became as rare as gold2. Even the strong traditional Greek family structure and the values that underlie it came under strain, often unable to bear the burden of increasing numbers of unemployed and homeless relatives. Here is the bitter truth.There are enough resources for everyone. Dorling noted: It is an established fact that we do have enough for everyone’s needs as we know with some precision how many of us there are on the planet, and we have a good idea of how many us there soon will be. (2011, p. 14) 2 Since 2011, over 20,000 Greeks became homeless; in 2015, the unemployment rate reached 26%.

Challenging the power that racialises us all  17

We also know that further increases in our wealth and resources will not necessarily bring us greater happiness, make us better and informed citizens, give us healthy lives or free our minds. The world does have enough for everyone’s needs but not for our greed. Greed is a privilege of power abuse and its feeds on control. That is why I see this financial terror as a key lever for the control of the many. It is also the primary reason for inequality, community tensions and crime, including the collapse of the human rights project in its totality and for all equality strands. Greed also motivates the powerful to hold onto power. Ask any first-year psychology student and they will tell you that for any individual to develop their potential and thrive, there first needs to be a sense of selfpride and a set of personal goals. Remove these and we should expect to see a life of underachievement and likely criminality (independently of the social, societal, biological and political factors that may be evoked). “We learn best in stimulating environments, when we feel sure we can succeed.When we feel happy or confident our brains benefit from the release of dopamine, the reward chemical which also helps with memory, attention and problem solving” (Dorling, 2011, p. 115)3.

Lever no. 2: Power and control through security terror The second lever is the so called “war” that Western countries have declared against security terror. Several experts in terrorist studies have claimed that, since 11 September 2001, we have witnessed a new era of security policy, legislation and practice internationally (Heymann, 2003). It is true that the events of September 11 and the consequences of the wars in Afghanistan, Iraq and Syria made the threat of terrorism more visible than ever. This fear created new and increased obligations on behalf of governments to protect their citizens and enhance security measures. Consequently, over the last few years, new anti-terrorism legislation and executive measures have been introduced in almost all Western states in the hope of meeting these obligations. Special powers have been handed over to the executive and ad hoc procedures have been introduced with the belief that these will increase effectiveness and reduce the risk of terror. However, in the process, a number of human rights and civil liberties were put in danger, or on hold, until the “crisis is resolved”. This “crisis” has been going for two decades and will continue. American President James Madison said: Perhaps it is a universal truth that the loss of liberty at home is to be charged to provisions against danger, real or pretended from abroad. (Thomas Jefferson in “Letter of James Madison to Thomas Jefferson”, 13 May 1798) 3  As Yiallourides and Anastasiadou noted, “It is the people of the developed countries of the Western world who now feel the threat of the loss of their rights and the way of life that was based on the mass material prosperity of the past decades which they had taken for granted” (2013, p. 140).

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How true these words sound when considering, for example, the anti-terrorism legislation in the UK. The Terrorism Act 2000 and the Anti-Terrorism, Crime and Security Act 2001 have exposed the British government to several criticisms coming mainly from international NGOs such as Amnesty International, Human Rights Watch and other national human rights groups such as Justice and Liberty. More importantly, however, the exceptions included in these Acts brought the UK in front of the European Court of Human Rights (ECHR), which was called to investigate claims that were concerned primarily with arrest and detention powers, detainees’ rights to legal advice and contact with their relatives and entry and staying in the country. The stop-and-search powers under Section 44 of the Act have been ruled illegal by the ECHR, and the UK was asked to amend them. To justify the harsh provisions of this legislation, the UK used Article 15 to derogate from certain sections of Article 5 ECHR. Article 15, however, can be used only “in time of war or other public emergency threatening the life of the nation”. Furthermore, the treaty states that such measures can be employed “to the extent strictly required by the exigencies of the situation and provided such measures are not inconsistent with its other obligations under international law”. In Section 5(1) of the Special Immigration and Appeals Commission Act, the UK government stated that the justification of the derogation from Article 5 is that “there exists a state of emergency threatening the nation”. According to the government, this is due to foreign nationals present in the country who are “suspected of being concerned in the commission, preparation or instigation of acts of international terrorism”. The Article’s “time of war” and “public emergency” criteria can by definition exist only within a certain period of time and cannot extent infinitely. Consequently, we must assume that the UK government justifies the removal of basic human rights by making us believe that we are living times of war or public emergency. Once again, this is the power that racialises all.

Lever no. 3: Power and control through imperialism and nationalism The final power that impedes progress on social justice and maintains power for control relates to the politics of nationalism. Motyl describes nationalism as “the structural conditions of modern society in order to exist” (2001, p. 23). A closer look reveals that the notion is far more complicated, particularly when put in the context of universal values that aim to restrain power without geographical limitations, including human rights. Often attached to nationalism are the notions of identity and community. History and the extant literature have provided enough evidence to safely state that certain groups in modern society, as these are represented by small and large political parties, believe that the concept of nation and citizenship should be limited to one ethnic or identity group, including one culture or religion. Often, what are perceived to be inconsistencies between the defined social order and the experience of that social order by its members result in a situation of anomie that nationalists seek to resolve (Motyl, 2001). They do so by engaging in acts, policies, structural reforms and

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politics that aim to remove whatever elements are deemed unacceptable. Some of these acts may even be the result of hate or fear towards certain groups such as black and minority ethnic groups and migrants but also others who are merely different. In this journey, universal values expressed in civil rights and equalities international agreements are seen as a hindrance to national sovereignty and a destruction from pursuing national interests. And this is not limited to race equality. To illustrate the third lever, I will use two “live examples” as case studies.The first is the case of Cyprus, illustrating how imperialism can be used as a lever to motivate powers towards the abuse of human rights and the disrespect of international treaties protecting them. The second is the case of the UK, illustrating how nationalism can be used as a lever for states to withdraw from international human rights obligations.

The case of Cyprus: Imperialism through power The first case study relates to Cyprus, the only divided member state in the European Union (EU). Cyprus was invaded by Turkey in 1974 after several internal conflicts that followed the island’s liberation from the British empire in 1960. Since then, there have been many attempts to reunite the island. However, they all failed. This is not the right place to expose the reasons for these failures. However, what is worth highlighting is an attempt that brings evidence to the lever under investigation, which aims to ensure that the status quo is maintained against all agreed legal or moral standards. In 2013, the UN, through its Secretary-General, presented to the Greek and Turkish Cypriot communities4 what they called “[t]he comprehensive settlement of the Cyprus problem” (or, as it became known, the “Annan Plan”)5. It is not the intention of this chapter to analyse this plan, which is anything but ‘comprehensive’. However, what is indeed relevant here is the role of different foreign powers using this UN plan to undermine the enforceability and uniform application of universally agreed standards that have been introduced by the international community to prevent and restore power abuse. One example of such standards is found in the ECHR agreed and signed by the 27 member states of the Council of Europe6, including Cyprus and Turkey. The Cypriot problem has often been the issue of adjudication by the Strasbourg authorities safeguarding the ECHR. These cases involve some of the most fundamental rights of the Convention, including the right to life [e.g. Cyprus v Turkey, 4 EHRR 482 (1976) Com Rep]. In all occasions,Turkey was found to be in breach but nonetheless remained indifferent to the Court’s decisions, mainly claiming that these were more the result of political motives rather than legal circumstances. 4 Other long-established communities in Cyprus include Maronites, Armenians and Latins. 5  https://www.globalsecurity.org/military/library/report/2004/annan-cyprus-problem_maps_26feb03.pdf (accessed in January 2021). 6  https://www.coe.int/en/web/about-us/our-member-states (accessed in February 2021).

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The case of Loizidou v Turkey [40/1993/435/514] is particularly useful for our investigation. In 1989, a Cypriot national filed an application against Turkey, which held its government responsible for human rights violations in the northern part of Cyprus, which is under the overall control of the Turkish armed forces. This mainly concerned her right to access and use of property, which were both upheld. The court’s decision was taken in 1996 imposing considerable fines on the Turkish government and requesting its authorities to allow Mrs. Loizidou to enjoy her right. This was ignored by Turkey, which was called again in 1998 to comply. This was followed by 1999 and 2000 Interim Resolutions by the Committee of Ministers again asking Turkey to conform. With the admissibility and positive adjudication of the Loizidou case, the Court established a legal precedent which could be used by thousands of similar cases from Cypriots whose property rights are violated by Turkey’s continuous occupation. This was not something that Turkey was willing to accept. However, withdrawal from the Council of Europe or the ECHR would severely damage its application for EU and other memberships. The UN “Annan Plan” descended as deus ex machina. Through its fifth Article, the Plan introduced a binding obligation on both Cypriot communities whereby any pending claim concerning the violation of property rights of Cypriots on behalf of Turkey would be withdrawn after the ratification of the suggested constitution. Article 5 also forbade the filing of new human rights cases that would use the same legal basis. It is not surprising that following a referendum, 76% of Greek Cypriots rejected the plan. Mr Annan said in his report: Another key Turkish Cypriot concern related to the legal security of the settlement from challenge in EU courts or in the ECHR… [Regarding the latter] the finalized plan elaborated on this by including draft letters by which the federal government would inform the President of the ECHR that the settlement established a domestic mechanism for dealing with claims to affected property and that to this end the ‘United Cyprus Republic’ would be the sole responsible State party concerning such matters (United Nations, 2004) However, it was highly questionable how this would benefit the Turkish Cypriots. What was apparent, however, was that it removed Turkey’s responsibilities for the illegal occupation and use of the claimants’ property, shifting the obligation for compensation to the new constituent State (comprising the Greek and Turkish Cypriot communities) which in fact was the victim of this violation.

The case of the UK: Nationalism through power The second case study looks at the UK. Over the last few years, a strong rhetoric was developed about immigration. Led by certain political parties and populist

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figures, this rhetoric gained ground, leading to a strong belief that the country is being taken over by asylum seekers and immigrants7. The reality, however, is somehow different. According to the UK government’s own statistics, over 2 million Britons live in the EU (Foreign and Commonwealth Affairs, 2016). Reversely, just over 3 million EU citizens live in the UK (Migration Watch UK, 2016), a country with a population of almost 65 million. Moreover, according to the World Economic Forum, the UK is currently holding 168,937 refugees while ranking among the world’s six wealthiest nations. This is compared against countries such as South Africa hosting 1,217,708 and Lebanon holding over 1,535,662 refugees while ranking as some of the poorest countries on the globe (Global Humanitarian Assistance, 2016). A European Commission study also showed that there is no evidence of “benefits tourism” in Europe. The report said that “in most countries, EU migrants represent less than 5% of welfare beneficiaries and these migrants make an overall net contribution to the finances of their host countries because they pay more in taxes than they receive in benefits” (GHK, CF, and Milieu Ltd, 2016). Yet the powers of nationalism have led to a status quo whereby the country was asked to redefine its position towards Europe, including its membership to the EU and its commitments to the ECHR, including the values to which it subscribed following the Second World War. One of the outcomes of this increasing rhetoric was Brexit followed by various attempts to withdraw from the ECHR8.

1.4 Let the journey begin It is naïve to believe that the law alone can bring social justice and address inequality caused by power abuse. The law, after all, is a human construct. Like any other tool, the law is meant to serve a purpose.To shelter ourselves from the cold and heat, we build houses. To build houses, we need tools. We invent these tools to serve this purpose. Building the house is not really the end of the journey. It is the beginning. As we build the tools, we learn more things about ourselves. We also discover that the tools that we created can have multiple functions. These tools

7 For example, speaking to the BBC, the then-UK Independence Party leader, Nigel Farage, said, “I think it’s legitimate to say that if people feel they have lost control completely – and we have lost control of our borders completely as members of the European Union – and if people feel that voting doesn’t change anything, then violence is the next step” (Stevens, 2016). In the lead-up to the UK referendum, statements such as these were not uncommon. The then-Prime Minister said to the European Commission: “It will be argued that freedom of movement is a holy principle – one of the four cardinal principles of the EU, alongside freedom of capital, of services and of goods – and that what we are suggesting is heresy”. He continued: “This is about saying: our welfare system is like a national club. It’s made up of the contribution of hardworking British taxpayers” (EurActiv.com, 2014). 8  h ttps://w w w.theg uardian.com/com mentisfree/2020/mar/08/obser ver-viewdropping-uk-commitment-to-european-convention-human-rights.

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are not equal. Some are more useful than others. But they are all meant to serve the same utility. They are not the masters either. They are not the utility and certainly not the reason we set off to invent them. However, our need to shelter ourselves is the reason we invented these tools. As we try to serve our need for justice and fairness, we must remember that the tools that we invent are our own constructs. We are the masters. Law is a tool, and order is the result, namely the house they help us to build. Justice and fairness are the ultimate objectives. Not the house and not the law. But this book is not about feeding our existing despair. It is about hope and empowerment. The promises and underlying values of restorative justice of powersharing, equality, dignity and respect are what triggered my investigation in the first place. Armed with a belief in our potential for change, humility and humanity, we set off in this chapter on a journey of questioning. But why is the question of power so important? As we awaken and watch ourselves, we notice that something is not right. The scales of Goddesses Themis have been tipped yet we accept reality without questioning. In this first chapter, I have argued that this is by no coincidence. We are blinded by forces of power that want to survive and grow. But change is possible. The process of getting there involves the questioning in which we are now partaking. In this journey, the individual, you, matters. The hope on which I founded the book’s premises is not without its evidence. History has shown that it is through the result of millions of small actions that we change the status quo. These are mostly undertaken by people neither in government nor with power for control. I only have to think of suffragettes and the vote for women, civil rights in America, and Indian, Cypriot and colonial independence. The role of civil society has long been underestimated and it is now becoming clearer that without the campaigners, NGOs, and movements that comprise it, governments and other vessels of power would not be held accountable. Martin Luther King Jr said something similar: If I cannot do great things, I can do small things in a great way. Alas, powers of control and fears of upsetting power relations and dynamics keep us blind from what is clearer than a morning on a bright sunny day. I have argued that it is because of these powers of control that we fail to unite and indeed fight for each other’s differences, including race. Just like all other equality strands, race equality is manipulated by the same forces of power and control and thus solutions must move beyond silo thinking and towards consensus through power-sharing and dialectic approaches such as those offered by restorative justice. The three levers that motivate the abuse of power and create control are not made of steel. They can be broken. Reversing the backlash of social justice is not impossible. So, the first step for everyone to take, whether with or without power, is to acknowledge the existence of forces of power and control and then believe that the status quo that they create can indeed change.

Challenging the power that racialises us all  23

As you move deeper into this book, I close its first chapter with “Ithaka”, a 1910 poem by Constantinos Kavafy. The Greek poet reminds us that the journey is more important than the destination. The journey that we are taking together is our opportunity to learn about ourselves, to get challenged and to create and lose relationships. Life is also about this journey. This gives me comfort. If I fail to convince you and reach Ithaka, at least I have taken this journey with you. As you set out for Ithaka hope your road is a long one, full of adventure, full of discovery. Laistrygonians, Cyclops, angry Poseidon – don’t be afraid of them: you’ll never find things like that on your way as long as you keep your thoughts raised high, as long as a rare excitement stirs your spirit and your body. Laistrygonians, Cyclops, wild Poseidon – you won’t encounter them unless you bring them along inside your soul, unless your soul sets them up in front of you. Keep Ithaka always in your mind. Arriving there is what you’re destined for. But don’t hurry the journey at all. Better if it lasts for years, so you’re old by the time you reach the island, wealthy with all you’ve gained on the way, not expecting Ithaka to make you rich. Ithaka gave you the marvellous journey. Without her you wouldn’t have set out. She has nothing left to give you now.

References Beitz, C.R. (2009). The Idea of Human Rights. Oxford, UK: Oxford University Press. Cavafy, C. (1992). “The City” from C.P. Cavafy: Collected Poems. Translated by Edmund Keeley and Philip Sherrard. Translation Copyright © 1975, by Edmund Keeley and Philip Sherrard. Reproduced with permission of Princeton University Press. Dorling, D. (2011). Injustice:Why Social Inequality Persists. Bristol, UK: Policy Press. EurActiv.com. (2014). Commission Unimpressed by Cameron’s Immigration Rhetoric [Online]. Available at: http://www.euractiv.com/section/justice-home-affairs/news/commissionunimpressed-by-cameron-s-immigration-rhetoric/ (accessed on 3 July 2016). Forde, A.T., Crookes, D.M., Suglia, S.F. and Demmer, R.T. (2019). “The Weathering Hypothesis as an Explanation for Racial Disparities in Health: A Systematic Review”. Annals of Epidemiology 33: 1–18.e3

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Foreign and Commonwealth Affairs. (2016). The Process for Withdrawing from the European Union [Online]. London: Williams Lea Group. Available at: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/503908/54538_EU_Series_No2_ Accessible.pdf (accessed on 3 July 2016). Foucault, M. (1972). The Archeology of Knowledge and the Discourse on Language. New York: Pantheon. Foucault, M. (1980). Power/Knowledge. Translated by Colin Gordon. New York: Pantheon. Foucault, M. (1988). History of Sexuality, 3 vols. New York:Vintage Books. Foucault, M. (1995). Discipline and Punish, 2nd edn. New York:Vintage Books. Foucault, M. (2002). Power: Essential Works of Foucault, 1954–84, ed. J. Faubion. London: Penguin. Foucault, M. (2004a). “Governmentality”. In P. Rabinow and N. Rose (Eds.), The Essential Foucault. New York: The New Press, pp. 229–245. Foucault, M. (2004b). “Truth and Power”. In P. Rabinow and N. Rose (Eds.), The Essential Foucault. New York: The New Press, pp. 300–318. Foucault, M. (2004c). “The Subject and Power”. In P. Rabinow and N. Rose (Eds.), The Essential Foucault. New York: The New Press, pp. 126–144. Gavrielides, T. (2008). “Human Rights and Customer Satisfaction with Public Services: A Relationship Discovered”. International Journal of Human Rights 12(2): 187–202. ISSN: 1364-2987 (print) 1744-053. Gavrielides, T. (2010). “The New Politics of Community Cohesion: Making Use of Human Rights Policy and Legislation”. Policy & Politics 38(3): 429–445. ISSN: 0305-5736. Gavrielides,T. (2013). “Restorative Pain: A New Vision of Punishment”. In T. Gavrielides and V. Artinopoulou (Eds.), Reconstructing Restorative Justice Philosophy. Furnham, UK: Ashgate Publishing, pp. 311–337. Gavrielides,T. (2014). “Bringing Race Relations into the Restorative Justice Debate”. Journal of Black Studies 45(3): 216–246. Gavrielides, T. (2015). “A Human Rights Vision of Restorative Justice: Moving Beyond Labels”. In T. Gavrielides (Ed.), Offenders No More. New York: Nova Science Publishers. ISBN: 978-1-63483-681-4. Gavrielides, T. (2016). “The Death of Democracy and the Forces of Power and Control: The Case of Europe”. Social Sciences Journal 5(3): 42: doi:10.3390/socsci5030042. Gavrielides, T. (2018). Human Rights and Restorative Justice. London: RJ4All Publications. ISBN: 978-1-911634-00-3. GHK, CF and Milieu Ltd. (2016). Fact Finding Analysis on the Impact on Member States’ Social Security Systems of the Entitlements of Non-Active Intra-EU Migrants to Special Non-Contributory Cash Benefits and Healthcare Granted on the Basis of Residence [Online]. Available at: http:// ec.europa.eu/employment_social/empl_portal/facebook/20131014%20GHK%20 study%20web_EU%20migration.pdf (accessed on 3 July 2016). Global Humanitarian Assistance. (2016). Global Humanitarian Assistance Report 2016 [Online]. Available at: http://www.globalhumanitarianassistance.org/report/gha2016/ (accessed on 3 July 2016). Habermas, J. (2012). “Politik und Erpressung”. DieZeit. [Online]. Available at: http://www. zeit.de/2012/37/Habermas-Krise-Europa-Rede-Georg-August-Zinn-Preis/seite(accessed on 26 January 2012). Heymann, P.B. (2003). Terrorism, Freedom and Security. Cambridge, MA: The MIT Press. Jefferson, T. (1798) Letter of James Madison to Thomas Jefferson [Online]. Available at: http:// founders.archives.gov/documents/Madison/01-17-02-0087 (accessed on 10 August 2016).

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Johnstone, G. (2018), “The Standardisation of Restorative Justice”. In T. Gavrielides (Ed.), Human Rights and Restorative Justice. London: RJ4All Publications. Klug, F. (2000). Values for a Godless Age. London: Penguin Group. Migration Watch UK. (2016). The British in Europe—And Vice Versa [Online]. Available at: http://www.migrationwatchuk.org/briefing-paper/354 (accessed on 3 July 2016). Mill, J.S. (1993). Utilitarianism: On Liberty, Considerations on Representative Government. London: Everyman. Morgenthau, H.J. (1933). La Notion du ‘politique’ et la théorie des différends internationaux. Paris: Sirey. Morgenthau, H.J. (1946). Scientific Man vs. Power Politics. Chicago, IL: University of Chicago Press. Morgenthau, H.J. (1948). Politics Among Nations, 1st edn. New York: Knopf. Morgenthau, H.J. (1954). Politics Among Nations, 2nd edn. Chicago, IL: University of Chicago Press. Morgenthau, H.J. (1960). Politics Among Nations, 3rd edn. New York: Knopf. Morgenthau, H.J. (1967). “Common Sense and Theories of International Relations”. Journal of International Affairs 21: 207–214. Morgenthau, H.J. (1982). In Defense of the National Interest. Lanham, MD: University Press of America. Morgenthau, H.J. (1995). “The Intellectual and Political Functions of Theory”. In J. Der Derian (Ed.), International Theory: Critical Investigations. New York: NYU Press. Pavlich, G. (2005). Governing Paradoxes of Restorative Justice. New York: Routledge-Cavendish. Pavlich, G. (2018). “Transforming Powers and Restorative Justice”. In T. Gavrielides (Ed.), The Routledge International Handbook of Restorative Justice. London: Routledge. Pavlich, G. (2021). “Formative Promises, Restoration and Decolonizing Justice”. In T. Gavrielides (Ed.), Comparative Restorative Justice. New York: Springer. Pickett, K. and Wilkinson, R. (2009). The Spirit Level: Why More Equal Societies Almost Always Do Better. London: Allen Lane. Stevens, R. (2016). Anti-Migrant Rhetoric Dominates Debate on UK Membership in the EU [Online]. Available at:: https://www.wsws.org/en/articles/2016/05/28/immi-m28.html (accessed on 3 July 2016). Walker, S., Spohn, C. and DeLone, M. (2012). The Colour of Justice: Race, Ethnicity and Crime in America. Boston: Cengage. Weber, M. (1947). The Theory of Social and Economic Organization. New York: The Free Press. Weber, M. (1976). Wirtschaft und Gesellschaft. Grundriss der Verstehenden Soziologie. Tübingen, Germany: J.C.B. Mohr (Paul Siebeck). First published in 1921–1922. Weber, M. (1992). Soziologie: Universalgeschichtliche Analysen Politik. Stuttgart, Germany: Alfred Kröner. Weber, M. (1999). Politik als Beruf. Stuttgart, Germany: Reclam. First published in 1919. Williams, D.R. and Collins, C. (1995). “US Socioeconomic and Racial Differences in Health: Patterns and Explanations”. Annual Review of Sociology 21: 349–386. Yiallourides, C.K. and Anastasiadou, M. (2013). “Global Justice, Restorative Justice and Universal Peace in the Reality of International Politics and State Power”. In Theo Gavrielides and Vasso Artinopoulou (Eds.), Reconstructing Restorative Justice Philosophy. Furnham, UK: Ashgate Publishing, pp. 131–153.

2 CHALLENGING RACE Let’s talk about race when we talk about race

2.1 Race matters The word “race” has long been contested and thus it is important that we agree what we mean by it from the outset. This understanding is not meant to serve as a universal truth for race. It merely aims to serve the purposes of our investigation. A biologist would probably say that race refers to a person’s physical appearance such as skin colour, hair, eye colour, and bone structure. It is said that these are characteristics that are passed from generation to generation and are part of a fixed biological category. For instance, in 1885, the Meyers Konversations-Lexikon1 included an ethnographic division of three principal races: “Caucasian, Mongolian and Negroid”. In 1962, Carleton S. Coon, presented four major races: white/Caucasian, Mongoloid/Asian, negroid/black and Australoid (Coon, 1962). However, in 1950, the United Nations opted to drop the term race altogether and speak of ‘ethnicity’. Consequently, a number of scholars have asked for the replacement of race with ethnicity (Patel and Tyler, 2011). They believe that ethnicity can be tracked down depending on where one’s ancestors came from. Ethnicity also relates to cultural factors such as language, beliefs, nationality and religion. The term culture is not without its own challenges. In 1963, anthropologists Kroeber and Kluckhojn (1963) identified 163 definitions for the term and more have appeared since. Again, some feel that the term should be abandoned altogether (Abu-Lughod, 1991). This is principally because the term is no longer used within a specialised anthropological context. The effects of culture may also vary at an individual level (Davidson, 2001). Individuals also have “multiple cultures linked to social groups memberships and experiences” (Charkoudian and Wayne, 2010, 1  Meyers Konversations-Lexikon was a German encyclopaedia that existed in various editions from 1839 to 1984, when it merged with the Brockhaus Enzyklopädie. DOI: 10.4324/9781003194576-4

Challenging race  27

p. 30). Race and identity are also often confused, and Appiah’s book The Lies that Bind makes a clear point about race being a social construct that does not really justify why certain physical differences should be construed in racial terms (Appiah, 2018). From a sociological perspective, race is seen as the trigger for understanding society’s reaction to diversity and cultural difference (Lindhorst Everhardt, 2010). Functionalists would say that race differences exist because they serve important functions for society, including the creation of scapegoats and the justification for things that tend to go wrong (Crenshaw et al., 1995). Again, Appiah’s understanding of the five identities of creed, colour, country, class and culture is helpful (Appiah, 2018). The conflict perspective argues that those in power use race and cultural differences to create conflict that will work to their advantage. This brings to mind the 2015 documentary “Things we won’t say about race that are true” by Trevor Phillips, the former chair of the UK’s Equality and Human Rights Commission2. Phillips attempts to explain what has gone wrong, or occasionally right, in Britain’s multiculturalism project. While looking at statistics on integration, he points out that well-intended policies have often failed because those who could do something about them were prevented from fear of being vilified as racists or ignored. Understandably, what the documentary does not explicitly cover is the powerinterest battles that create and indeed maintain this fear. The “conflict perspective” is very much influenced by economics. It dates back to the times of slavery and the labour disputes during the Industrial Revolution (Zuberi, 2011). For instance, it has been argued that race divisions were used as a managerial strategy to prevent the formation of a unitary labour force that could revolt against those in control of power structures. Finally, interactionism looks at issues like labelling and stereotypes. So, when people define themselves using racial terms, it is because of their difference with other racial groups. Therefore, let me be clear that when I talk about race, I use it in its analytical and sociological context to refer to the process of power abuse that ‘racialises’ groups and identities. Put another way, I am not interested in its biological or other interpretations, but in the power structures that the term is infused with as well as the interactionist meaning it gains through the existence of ‘the other’. Furthermore, it is important that when the term “race” is put in the context of restorative justice, our differences about its definitions not be treated as matters of esoteric ivory tower conversations. Indeed, race matters for restorative justice, as it may offer an excellent opportunity for attaining the unrealised ideal of theory informing practice and vice versa. This is also aligned with the book’s ambition to start a debate that will allow empirical testing that may elevate the experience and perception of justice. But first, we need to develop out conceptual framework and negotiate what we are willing to accept as truths.

2  https://www.theguardian.com/tv-and-radio/2015/mar/20/things-we-wont-sayabout-race-trevor-phillips (accessed in January 2021).

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2.2 Slavery revisited Erikson noted: “The agencies built by society for preventing deviance are often so poorly equipped for the task that we might ask why this is regarded as their ‘real’ function in the first place” (Erikson, 1966, p. 283). Despite some progress in naming racial discrimination, violence and slavery in our laws and policies, numerous scientific studies have shown that our institutional arrangements are still guided by the social conditions of the past (Pierson, 2004). The power that informs and influences the human construct of the law guides current implementation as well as the wellintended efforts to bring about social and political change. In the US, for example, the work of Lieberman gives some evidence that the institutional and ideological patterns that solidified during slavery under Jim Crow laws have continued to influence the functions and outcomes of race policies (Lieberman, 2008). I agree with Aaronson, who argued that “although post-1970s political developments were doubtlessly influential in shaping the content of hate crime laws”, our current approach and laws are merely a replication of this failed past. They “represent both continuities and discontinuities with earlier moments in which new criminalisation regimes were introduced with the promise of ameliorating the plight of black victims” (Aaronson, 2014, p. 2). This statement triggers three realisations. These realisations are doors. It is only by going through these doors that we can enter a state of mind which will allow us to restore justice. I will deal with them here separately.

Realisation no. 1: Slavery still exists The first realisation is that despite denouncing and incriminating slavery, slaves still exist in new forms. If the laws, policies and indeed practices of today are by and large a continuation of the new masters’ intentions, then the phenomenon of slavery has not gone away. This is an important realisation for the reader of this book. If we are to understand how power dynamics transcend time and the rule of law, then we must revisit slavery. It is also important to understand race in a continuum of time and space. So, what are the new forms of slavery? Bales’s controversial and indeed uncomfortable work is helpful. He argues that the development of global economy not only created new forms of slavery but in fact structured new power relationships that are far more damaging than the traditional slave–master (Bales, 1999). Bales argues that the free movement of people and markets has made human labour so affordable that the new masters pay far less attention and care to their slaves than their predecessors did. In this new form of slavery, legal ownership is avoided because of its incompatibility with social morality. It creates quick and dirty relationships that are often undocumented but not illegal. Moreover, the costs of “new slaves” are rather lower now compared with what was previously considered expensive, while the profits are even higher.The contemporary labour market has created a surplus in the supply of potential slaves, whereas

Challenging race  29 TABLE 2.1  Old and new forms of slavery (taken from Bales, 1999, p. 15)

Old slavery

New slavery

Legal ownership asserted High purchase cost Low profits Shortage of potential slaves Long-term relationship Slaves maintained Ethnic differences important

Legal ownership avoided Very low purchase cost Very high profits Surplus of potential slaves Short-term relationship Slaves disposable Ethnic differences unimportant

in the past supply failed to meet the demand for the enslaved. This made slaves a prized commodity then, but not anymore. More importantly, in the past, masters would try to invest in building some sort of a relationship with their slaves and children to ensure continuity and loyalty, whereas now the relationship is rather shortterm, as slaves are easily disposable. Table 2.1 summarises the differences between Bales’s old and new forms of slavery. Having considered these differences, I present the following argument. In this new slave–master relationship, ethnic differences are not important. This new form of slavery ignores differences of race or indeed any other protective characteristic (e.g. gender, belief, disability, sexual orientation, and age).The sole condition needed is that of being powerless combined with the need for survival. It is this condition that the new masters exploit. As we make this first realisation, it is important to acknowledge the old forms of slavery and racism. And here is where I disagree with Bales. Although his warning of new forms of slavery is important and timely, the comparison with old forms is hurtful and to some extent disrespectful. I have written about the significance of pain and catharsis elsewhere (Gavrielides, 2013). Here, I will merely repeat that pain which results from actions that devalue our humanity are so personal to the individual that no time or place can make them denominators for comparison. As we engage in scholarly debates to understand the process of racialisation, it is important that we acknowledge the pain of the past and remain respectful of the realities of those times. I hope that by exposing power and how it racialises all, I remain respectful of the race movement and the sacrifices that followed it.

Realisation no. 2: Disadvantaged thinking The second realisation relates to what I call “disadvantage thinking”. As argued, today’s slaves do not see, or want to see, themselves as such. In fact, if we dare to call the low paid worker “slave”, we run the risk of civil lawsuits or at least of insulting. Once again, I don’t believe that this is by coincidence. Where there is realisation, there is resistance, and where there is resistance, there is radicalisation and ultimately change. On the other hand, where there is acceptance, there is apathy, and where

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there is apathy, then the status quo is protected. The status quo is the environment that allows existing powers to thrive and be abused. If the climate is changed, its fertile ground will suffer the consequences of change. It is this apathy that this book is trying to change. The very word “radicalisation” has taken a new meaning that is often attached to violence and illegitimate action. We are too quick to forget that the liberation of most colonies in Africa and other continents was due to radical actions often by young people or idealists who believed in the power from within. I had an experience of this power and how it translated into radical action for state independence. I grew up listening to my dad’s stories about Cypriots standing up to the almighty British Empire in the 1950s and how these radicals led to the island’s independence. And if we look at the most notorious pacifists of history, including Mahatma Gandhi, they were called or even condemned as “radicals”. That is why I have repeatedly argued that radicalisation is not a bad thing (Gavrielides, 2020). Unjustified violence and harm are what we should be condemning. So how do we silence radicalised action? Smith said: The disposition to admire, and almost to worship, the rich and powerful, and to despise, or, at least, to neglect persons of poor and mean condition, though both necessary to establish and maintain the distinctions of ranks and the order of society, is, at the same time, the great and most universal cause of the corruption of our moral sentiments. (Smith, 1759) Society and our educational, justice, social and healthcare public services start from the premise that if we are accessing them, then we must have a problem. I argued that however much money is thrown by government, trusts and donors for new policies, good schooling, textbooks, volunteering programmes, different curricula, improved parenting or even affirmative action schemes, it won’t help address inequality if elitism and disadvantage thinking are not eradicated (Gavrielides, 2017). Disadvantage thinking generates despair and feeds on prejudice and stereotypes. This disadvantage thinking is what protects and preserves the status quo. For example, it is true that we no longer hold the view (at least in our majority) that it is acceptable to make black people sit together at the back of the bus. However, we still think it is logical to sit “slow children” together at the back of the class. Even in the most affluent Western countries, such as the US, we have introduced policies that allow schools to routinely identify and exclude students they see as being on the path of criminality (Hirschfield, 2008, p. 79). “We learn best in stimulating environments when we feel sure we can succeed. When we feel happy or confident our brains benefit from the release of dopamine, the reward chemical which also helps with memory, attention and problem solving” (Wilkinson and Pickett, 2009, p. 115).Yet every time I ask my students, they tell me that they are not special.

Challenging race  31

“Even affluent people know that they are not very special; most know that they are members of what some call ‘the lucky sperm club’, born to the right parents in their turn, or just lucky, or perhaps both lucky and a little ruthless” (Dorling, 2011, p. 61). Wilkinson and Pickett also note: “Inequalities in society and in our schools have a direct effect on our brains, on our learning and educational achievement” (2009, p. 151). In the 1990s, the introduction of league tables also helped to create a market for state school places with parents paying through their mortgages to get a place for their children. The policies on increasing university fees is also breeding the philosophy that it is normal to have a few elite groups in society that will do better than others. This philosophy is based not on young people’s ability to learn but on their ability to pay. Over the course of a decade, we also increased the rate of imprisoning children and young people despite no significant increase in criminality (Orr, 2008). For most of the young people and children in prison, their biggest mistake is not their crime. It is the fact that they are born in the wrong neighbourhood, the wrong family and time, and the wrong country. This is the understanding and context that we create. Leading economists have published popular books on spotting “how talented a person is by looking at the kind of clothing he wears or the kind of car he drives” (Frank, 2008, p. 145). Do not worry about showing that you have made a difference to your community or that you have achieved something for yourself. Just dress up in expensive suits and drive a fancy car. And if you are intelligent enough to know that fancy cars are not good enough, then flash your degree from the top ten universities. These are the aspirations and personal targets that we encourage. Judging from my own teenage years, I remember feeling a strong sense of anxiety and insecurity that I would fail the aforementioned targets of expensive cars, clothes and top university degrees. And it seems that I wasn’t the only one feeling this way. If only I knew this when it truly mattered. For instance, studies carried out in 1974 indicated a rise in what were known as “conduct problems” among 15- and 16-year-olds in Britain; these problems accelerated in the 1990s, and there is “evidence for a recent rise in emotional problems” among children in that age group (Colinshaw et al., 2004, p. 1350). These “conduct problems: included youth violence, fighting, bullying, stealing, lying, disobedience, fidgeting, restlessness, inattention, and fearfulness of new situations. We also know from other studies that the typical North American child by the late 1980s was already more anxious about life than some 85% of North American children in the 1950s. In fact, they are more anxious than child psychiatric patients of the 1950s. In Britain, a similar proportion of around one in seven children reported that they feel sad or tearful, anxious and stressed. These studies were conducted before the worldwide financial crisis. I wonder what is to come as the socioeconomic impact of Covid-19 has yet to be fully revealed. Why is this realisation important? Attached to disadvantage thinking are our failed social policies and measurement targets. Decision-makers are preoccupied with measuring and addressing “problems” rather than encouraging and nurturing

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talents. If a young person commits serious youth violence, policies are set up and money is spent to achieve one or all of the following: rehabilitation, retribution and incapacitation. We rarely talk about restitution and empowerment. When these policies are set up, the target groups are often left out. This is independent of their race or background. Trivedi and Wykes (2002) pointed out the issue of “massive imbalance of power” that exists between service providers and service users. There is an assumption and indeed arrogance by those in power that they know best. But then there is a big surprise when policies and millions of tax payers’ money is spent on practices that never received the buy-in from their target group and hence fail. Take, for instance, the approach that has been adopted over the last five years by the UK government and other independent funding bodies. Hundreds of millions were allocated to programmes for “disadvantage young people”. We stopped naming ethnicity or class as target areas. We know call them “disadvantaged”, “hard to reach” or “marginalised”. Funding bodies and policy-makers across Europe even created a new catchy term “NEET” (Not in Employment, Education or Training). Millions of grants were awards to generate job and volunteer placements and work schemes for these… NEET young people. Thinking again about my own teenage years: although I fitted the bill of a “disadvantage youth” … or “NEET”, I rejected offers that were labelled as “favours” to my “disadvantage kind”; or if I was too desperate for money and succumbed to them, I would simply use them for the short term. What did change me though and gave me a lot to think about were the opportunities I was given by individuals and charities that called me a skilled and intelligent young person and saw what I could really achieve independently of my apparent “disadvantage”.This created a sense of self-pride within me and helped me clarify my life goals and ambitions. It didn’t allow me to let myself and those who believed in me down. It seeded a sense of responsibility and not one of guilt, shame, despair and defeatism. I did not continue my life self-labelling myself as “disadvantaged” either. But this realisation caused a chain effect. I educated myself and then set up my own organisations to counter power abuse. And here I am writing about power and how to control it. Another radical!

Realisation no. 3: The grouping of victimisation and injustice The third realisation and probably the most uncomfortable to articulate is about what I will call the “grouping of victimisation and injustice”. As the race equality movement established itself, we saw two results. First, it brought about positive changes for black people. Second, unintentionally affirmed a division based on race. I argue that we are not born in this world seeing differences in the colour of our faces. We are brought into these divisions through the narratives we are exposed to. This argument matters for two reasons. First, without divisions, there are no powerful and powerless. Grouping victims together reaffirms the status quo and separates the elite. More importantly, groupings based on characteristics, such as race, exclude all those who have the power

Challenging race  33

to help but cannot join merely because they lack the visible characteristics of the grouping. Second, groupings of victimisation and inequality create further classification and hierarchies.Without these hierarchies, there is community focus and with focus comes community power and with community power we generate collective hope. For now, I will try to defend my claim for the third realisation. To this end, I will use a personal example drawn from my race equality work in the UK. A few years ago, I was involved in reforming the UK Race Equality Act (previously Race Relations Act 1965)3. Race equality was the first strand to develop in legislation and campaigning in the UK. Other equality strands (gender, disability, faith and age) started to develop much later4. These parallel development of various groupings of victims created tensions and insecurities. If there is a Race Equality Commission, why not establish a Disability Rights Commission? Why not a Gender Commission, and so on. And, of course, only members who visibly belong to these groupings could join these powerful bodies. But how powerful were they, and what was their role as institutions functioning within powerful structures? Wouldn’t it make sense to bring all these strands under one roof and call them human rights? In June 2007, the UK Government published a ‘Framework for Fairness’ and therein outlined its vision for a new era of equality in Britain. Without a doubt, the Single Equality Bill was the most important piece of anti-discrimination legislation of the last few decades and probably the biggest attempt to enhance protection against inequality for years to come. I took part in this process by collecting evidence and presenting them in parliament. While doing so, I observed the disengagement of communities and a complete absence of public awareness. Whilst the Race Relations Act was the result of many riots, deaths and radicalised actions, the Single Equality Act felt like the product of well-paid lawyers consulting with structured and top-down systems of democratic engagement. Without really realising this, I said at the time “I deeply believe that its [the Single Equality Bill] success is very much dependent on the introduction of a new regulatory framework that is based on the concept of democracy, political engagement, activism and citizenship. Without awareness and proper information, the Bill will stay on lawyers’ desks and will fail to deliver the vision of a culture of respect for everyone’s rights… I am convinced that the undermining of the significance of the public’s engagement with the Bill, will cause a regulatory failure. It is naïve to believe that the law alone can bring about change directly in social subsystems.This is particularly true for the social subsystems of Britain’s BAME communities due to their limited openness to external normative interventions”. 3  The 1965 Act was the first to outlaw discrimination on the “grounds of colour, race, or ethnic or national origins” in public places in Great Britain. It also prompted the creation of the Race Relations Board in 1966. Its remit was to consider complaints under the Act. The Act was strengthened by the Race Relations Act 1968, which extended the legislation’s remit to cover employment and housing. It was repealed by the Race Relations Act 1976, which saw the creation of the Commission for Racial Equality. 4  The last strand that saw progress was, not surprisingly, that of sexual orientation.

34  Power, race, justice and restorative justice challenged

So, what did the Equality Bill aim to do? It replaced all existing equality legislation, including the 1976 Race Relations Act and the 2000 Race Relations Amendment Act. In broad terms, it replicated existing legislation, including the bans on direct and indirect discrimination, harassment and victimisation in employment, service delivery, housing and education. It also aimed to harmonise key definitions so, for example, the test for indirect discrimination would be the same across race, gender, age, sexual orientation and so on. More importantly, it aimed to complete the ‘levelling up’ of equality law so all people are protected in broadly the same way from all types of discrimination while introducing a new duty on public bodies to do more to tackle socioeconomic inequality. Not to my surprise, the biggest resistance against the Single Equality Act was observed from race equality organisations and black activists, who felt that their long battles and sacrifices were being not only used by other “groupings of victims” but also devalued through a legislation that was seeing discrimination as a problem for all and not just for black people. The strong sense of a higher victimisation and identity within a specific grouping of victim and oppression prevented and still prevents the implementation of the Act. It also created further divisions between non-governmental organisations set up to serve specific groups of victims. At the same time, oppression and inequality remain unchecked while these internal battles are being fought and lost by default.

2.3 Concluding thoughts Undoubtedly, race discussions are complex5. As I try to simplify matters, I run the risk of insulting. However, if closely re-examined, what is proposed here is not in conflict with the critical race theory movement in law, as it reaffirms that a truly critical race theory requires theorists to participate in the modification of social reality. Critical race theory teaches us that the structured means of delivering justice through the law are born with the intention of maintaining racial hierarchy (Zuberi, 2011). It also “offers an opportunity to imagine processes that challenge these systems of domination” (Zuberi, 2011, p. 1578). I truly believe that in order to have a debate on race for restorative justice or even justice, first there needs to be an acknowledgement that such a debate is needed. Many have argued that the “Trojan horses of race” (Kang, 2005) make it difficult for the white decision-maker and researcher to overcome the implicit bias that is ingrained against racial minorities notwithstanding sincere self-reports to the contrary. Some have even argued that the differences between black and white people are so stark that attempts to reconcile differences through dialogue are bound to be hindered (Kochman, 1981; Davidheiser, 2008). 5  Taking white and African-Americans as an example, Robinson points out that there is a wide gulf between perceptions on the issue of racial discrimination in the US. This phenomenon is called perceptual segregation and posits that “black and white people tend to perceive allegations of racial discrimination through substantially different perceptual frameworks” (Robinson, 2008, p. 1106).

Challenging race  35

I disagree with this argument. In this chapter, I claimed that the subconscious resistance that Kangs talks about is not exclusive to white people but shared with non-white groups. Alicia Garza, co-founder of the Black Lives Matter Network in 2013, said: “I learned that racism, like most systems of oppression, isn’t about bad people doing terrible things to people who are different from them but instead is a way of maintaining power for certain groups at the expense of others” (2020, p. 4). This chapter engaged in uncomfortable discussions that were meant only to awaken the reader independently of background, race, gender and so on. The book assumes an acceptance of the term ‘race’ within a sociological understanding. This might indeed be a challenge for certain readers who are focused on a ‘black’ interpretation of the term. In my view, focusing exclusively on black communities does not fully reflect the impact of power structures that affect us all and indeed on how communities could use the term ‘race’ to refer to all those affected by such power dynamics. Let me be clear that I still believe that specialist services and focused research programmes must continue in order for practices and policies to be tailored to peoples’ needs. Nevertheless, if we are to address power abuse at the local, national and even international levels, we must learn to move away from entrenched narratives, which are meant only to diffuse community power and maintain the status quo. As I argued in the first chapter, without an internal monologue and a willingness to relinquish power ourselves, the journey that we are taking together will be without a purpose. I accept that this task is not easy as we are all challenged by the implicit biases and ‘Trojan horses of race’. As I conclude this chapter on race, I remember Rosa Parks’s words on her 77th birthday: “I would like to be known as a person who is concerned about freedom and equality and justice and prosperity for all people”.

References Aaronson, E. (2014). From Slave Abuse to Hate Crime. Cambridge, UK: CUP. Abu-Lughod, L. (1991).“Writing against Culture”. In R. Fox (Ed.), Restructuring Anthropology: Working in the Present. Santa Fe, NM: School of American Research.. Appiah, A.K. (2018). The Lies That Bind: Rethinking Identity. London: Profile Books. Avruch, K. (2003). “Culture”. In S. Cheldelin, D. Druckman and L. Fast (Eds.), Conflict. London: Continuum. Bales, K. (1999). Disposable People: New Slavery in the Global Economy. Berkeley, CA: University of California Press. Berman, G. (2010). “Prison Population Statistics”. In House of Commons Library. Charkoudian, L. and Wayne, E.K. (2010). “Fairness, Understanding and Satisfaction: Impact of Mediator and Participant Race and Gender on Participants’ Perception of Mediation”. Conflict Resolution Quarterly 28(1): 23–52. Colinshaw, S., et al. (2004). “Time Trends in Adolescent Mental Health”. Journal of Child Psychology and Psychiatry 45(8): 1350–1362. Coon, C.S. (1962). The Origins of Races. New York: Alfred A. Knopf. Crenshaw, K., et al. (1995). Critical Race Theory: The Key Writings That Formed the Movement. New York: The New Press.

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Davidheiser, M. (2008). “Race, Worldviews and Conflict Mediation: Black and White Styles of Conflict Revisited”. Peace & Change 33: 60–89. Dorling, D. (2011). Injustice:Why Social Inequality Persists. Bristol, UK: Policy Press. Erikson, K. (1966). Wayward Puritans: A Study in the Sociology of Deviance. New York: John Wiley. Frank, R.H. (2008). The Economic Naturalist:Why Economics Explain almost Everything. London: Virgin Books. Garza, A. (2020). The Purpose of Power: How We Come Together When We Fall Apart. London: One World. Gavrielides,T. (2013). “Restorative Pain: A New Vision of Punishment”. In T. Gavrielides and V. Artinopoulou (Ed.), Reconstructing Restorative Justice Philosophy. Furnham, UK: Ashgate Publishing, pp. 311–337. Gavrielides,T. (2014). “Bringing Race Relations into the Restorative Justice Debate”. Journal of Black Studies 45(3): 216–246. doi:10.1177/0021934714526042. Gavrielides, T. (2017). “European Democracy in Crisis: Building a Bridge between Participatory and Cross-Sectoral Youth-Led Policy”. In M. Nico, et al. (Eds.), Needless in Haystacks: Finding a Way for Cross Sectoral Youth Policy. YEC-CoE Youth Partnership. Strasbourg, France: Council of Europe and European Union. Gavrielides, T. (2020). New Directions in Preventing Violent Youth Radicalisation. London: IARS. ISBN: 978-1-907641-64-0. Hirschfield, P.J. (2008). “Preparing for Prison? The Criminalisation of School Discipline in the USA”. Theoretical Criminology 12(1): 79–101. Kang, J. (2005). Trojan Horses of Race. Cambridge, MA: Harvard Law Review Association. Kochman, T. (1981). Black and White Styles of Conflict. Chicago, IL: University of Chicago Press. Kroeber, A.L. and Kluckhojn, C. (1963). Culture: A Critical Review of Concepts and Definitions. New York: Random House. Lieberman, R.C. (2008). “Legacies of Slavery? Race and Historical Causation in American Political Development”. In J. Lawndes, J. Novkov and T. Warren (Eds.), Race and American Political Development. New York: Routledge. Lindhorst Everhardt, S. (2010).“Experiencing Gender, Race, and Class in Real Life: How LowIncome Women of Color Strive for Economic Self-Sufficiency and Homeownership”. Advances in Gender Research 14. Orr, D. (2008). “Proof That We Fail Too Many Children”. The Independent, 19 March. Patel, G. and Tyler, D. (2011). Race, Crime and Resistance. London: Sage. Pierson, P. (2004). Politics in Time: History, Institutions and Social Analysis. Princeton, NJ: Princeton University Press. Robinson, R.K. (2008). “Perceptual Segregation.” Columbia Law Review, Vol. 108, UCLA School of Law Research Paper No. 08-10, Available at SSRN: https://ssrn.com/ abstract=1106483. Smith, A. (1759). A Theory of the Moral Sentiments. New York: Prometheus Books. Trivedi, P. and Wykes,T. (2002). “From Passive Subjects to Equal Partners: Qualitative Review of User Involvement in Research”. British Journal of Psychiatry, pp. 468–472. Wilkinson, R.G. and Pickettt, K. (2009). The Spirit Level: Why More Equal Societies Almost Always Do Better. London: Allen Lane. Zuberi, T. (2011). “Critical Race Theory of Society”. Connecticut Law Review 43(5): 1575–1590.

3 CHALLENGING JUSTICE The lawful and the fair

3.1 Introduction In our quest to understand the modern version of justice, we become acquainted with a feeling that has always accompanied us but was never easy to pin down.That is the feeling of mistrust and scepticism about the way justice is represented in modern society. John Stuart Mill said that humankind is always predisposed to believe that any subjective feeling, not otherwise accounted for, is a revelation of some objective reality. Our task here will be to determine whether the reality, to which the feeling of justice corresponds, is one which needs any such special revelation. For the purpose of this inquiry, “it is practically important to consider whether the feeling itself, of justice and injustice, is sui generis like our sensations of colour and taste, or a derivative feeling, formed by a combination of others” (Mill, 1993). If we were to objectively test the image of justice as this is portrayed in modern society, how satisfactory would the outcome be? And if we are not satisfied, is this a result of our awakening? How long have we been sleeping and was this sleep sweet and subconsciously wanted? As I ask these questions, I remember once again Kavafy: What are we waiting for, assembled in the forum? The barbarians are due here today. Why isn’t anything going on in the senate? Why are the senators sitting there without legislating? Because the barbarians are coming today. What’s the point of senators making laws now? Once the barbarians are here, they’ll do the legislating .…

DOI: 10.4324/9781003194576-5

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Why this sudden bewilderment, this confusion? (How serious people’s faces have become.) Why are the streets and squares emptying so rapidly, everyone going home lost in thought? Because night has fallen and the barbarians haven’t come. And some of our men just in from the border say there are no barbarians any longer. Now what’s going to happen to us without barbarians? Those people were a kind of solution. (Cavafy, 1904, Waiting for the Barbarians) But what is justice, and how is it understood in contemporary terms? More importantly, what ultimate values are we aiming to attain through justice? It becomes apparent that before we embark on criticising any justice system, we need to ascertain what the distinguishing character of justice, or of injustice, is. To find the common attributes of a variety of objects, it is vital that we survey the objects themselves in the concrete. This is the only way we can free ourselves from the tinted lenses through which we have learned to view power and control. For example, our analysis of justice will need to avoid looking through the prism of popular culture such as the media. To this end, we need to advert to the various modes of action, and arrangement of human affairs, which are classed by universal or widely spread opinion, as “just”.This approach will help us go back to basics, breaking free from the ‘McDonaldised’ version of justice that we all eat without questioning its ingredients. Yes, it might feel good while eating it, but what are the long-term consequences of this frail pleasure? The first objective of this chapter will be to deconstruct the notion of justice using objective tools and principles that philosophers trace in human nature. Here, the founder of natural law theory, Aristotle, will be consulted. The teachings of his students Jeremy Bentham and John Stuart Mill will also be used. The second objective will be to compare the untainted norm of justice with its modern representation system. Ultimately, this will allow the identification of any gaps between values of justice and delivery of fairness through its servants i.e. judges, courts, lawyers, the media, policy-makers and politicians, government and administrators. Here, I will focus on the media and courts within the criminal justice space. Three case studies will be used for this investigation. The final objective will be to get to know fairness as the biopower that can counterbalance the power structures that blind us all.The relationship between fairness and equity will be further explored, paving the way for restorative justice and the subsequent chapter.

3.2  Δικαιοσύνη: The lawful and the fair Starting with the deconstruction of “justice”, I take a step back to look at its roots. It seems that there is consensus in the literature that these roots date as far back as the Homeric period (1400 BCE). According to historical sources, the concept of

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justice was first formulated through the legislation of Dracon, Solon and Cleisthenes. However, it was not until Plato and Aristotle’s work that a comprehensive concept of justice was developed. For Plato, justice is a moral and inherent virtue, constructed by wisdom, self-restraint and courage; for Aristotle, justice is reflected in our daily behaviour and gains meaning through our relationships with “the polis” (citystate), society and political authorities. Aristotle perceives justice as a dual concept: justice is both a moral/internal and a material/external concept. Reducing social inequality and achieving common wealth (‘ευ ζην’) are the key purposes of justice. To understand justice in its pure form, I will use Aristotle’s natural law theory1. This will allow me to paint a picture of justice that is broader than any particular justice system and detached from modern, limited images of justice as these are represented in today’s society and are infused with the power structures that surround us. The starting point for Aristotle’s analysis of justice is the individual as opposed to a state of affairs. Justice has been thought to be, primarily, the morally right assignment of good and bad things (such as punishment, reward, respect and wealth). However, for Aristotle, it is primarily the virtue of a person who expresses or acts for that right assignment. In fact, justice is placed at the top of the values’ pyramid. Although other ethical standards (e.g. mercy, compassion, generosity and benevolence) may be valuable, they are supererogatory rather than required. The man who is not just is the man who takes more than his share of the things which are good in themselves but not always good for a particular person (i.e. external goods such as wealth and honour) (particular justice). But justice, for Aristotle, is not only a value. Justice also means obedience to the law. In fact, he thinks that the law should control the whole range of human life. He proceeds to say that if a particular State2 does this only partially that is because it is only a rough and ready adumbration of what law should be. In Nicomachean Ethics, he concludes: “by ‘just’ we may mean (i) what is lawful or (ii) what is fair and equal; these are ‘universal’ and ‘particular’ justice respectively” (1129 and 3-1130). It is interesting to note that the Greek equivalent of the word just (from the Latin word ‘jus’) is δίκαιος, which meant “observant of custom or rule” (Cf. Hom. Od. 3, 52). In Attic law, αδικείν (to do injustice) was the word used to express any breach of law. Aristotle says: “As the defendant in a civil suit is charged with wronging an individual, the prisoner in a criminal case is thought of as wronging the city” (1129 and 3-1130).

1  Natural law involves a system of consequences which naturally derives from any action or choice. On this account, justice is a universal and absolute concept, whereas human constructs such as religions, principles and theories are mere attempts to codify that concept, sometimes with results that entirely contradict the true nature of justice. This analysis is not abstract as it acknowledges the caveat between the normative side of justice and its real dimension which is expressed in the law. 2 In ancient Greece (Hellas), each city was a separate state (city-state) with its own sovereignty, army and governance system (see, for example, Athens vs. Sparta).

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It becomes apparent that there are two types of δικαιοσύνη. One is attached to the concept of the law (we will call it justice). The other one defines what is fair and equal (we will call it fairness). Although both types should be value-based and free from power abuse, the former is more easily exposed to arbitrariness and human fault. The latter is closer to the ideal but is abstract. This is an important distinction in our pursuit of methods that address power abuse. For example, it would be obtuse to expect from any judge or lawyer to represent the normative concept of justice (fairness). Their job description stops where justice (the law) is done.

3.3 The illusions of justice We now move on to address our second objective. A comparison between justice’s norm and actual reality will help us test our modern legal systems. However, before we move onto this investigation, there is a caveat that needs to be addressed. We have accepted that although justice is hardly subjective, the various methods of its interpretation are human constructs and hence subject to relativism. Natural law theory is no exception; hence our interpretation would have been different, depending on the school of thought of our choice. For example, for the advocates of divine command theory, justice is the authoritative command of God. The Pythagoreans had defined justice as reciprocity: “A” shall have done to him what he has done to “B” – or, as the Old Testament put it, “An eye for an eye, and a tooth for a tooth” (Lex Talionis). For Nietzsche, justice is part of the slave morality of the weak many, rooted in their resentment of the strong few, and intended to keep the noble man down (Nietzsche, 1986). Thomas Hobbes sees justice as a collection of enforceable, authoritative rules created by the public and hence injustice is whatever those rules forbid, regardless of their relation to morality (Hobbes, 1889). Thinkers belonging to the social contract tradition would argue that justice is derived from the mutual agreement of everyone concerned or from what they would agree to under hypothetical conditions. These examples are only meant to be illustrative of the variations of interpretations of the norm of justice, which we have accepted to be objective, using natural law theory. Furthermore, we have accepted that justice is first and foremost a value that informs our code of interaction and behaviour towards ourselves and others. This is where justice is delivered informally by each one of us in our daily activities. To deliver justice (the law) formally, first there needs to be an injustice done to society. This needs to be identified and publicly condemned. It also needs to be backed up by a pattern of unjust behaviour. Through this, the need for regulation arises. This requires a mixture of skills and professions, including politics, the media, academia, market research, economics, campaigners and so on. Once a law has been produced to regulate this pattern of injustice, a further series of actors come into play to represent and deliver justice, including lawyers, courts, judges, administrators, the media, filmmakers, authors, politicians, campaigners and different types of institutions. Once this law is delivered, a further chain of maintenance and publicity

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activity is observed, encompassing educational institutions, the media, campaigners, politicians and so on. These agents – whether the media, politicians, judges, lawyers, campaigners, or educational institutions – are engaged to contribute to the formal system of justice’s delivery and representation. I will move on with three case studies, which will illustrate how justice in both its forms (the lawful and the fair) are misrepresented in modern society. This misrepresentation is a consequence neither of misunderstanding nor of chance. It is the result of conscious or subconscious planning of the modern power structures that have been set up to maintain the status quo. A true representation of justice can awaken our virtues and as a result community and individual action may distort the equilibrium that maintains persistent inequalities.

Representation of justice by the media: Case study no. 1 Arguably, the media (including social media) is one of the most powerful agents in the representation system of justice nowadays. It has a general appeal to the public and can reach almost everyone in their homes, work, schools and so on. It is generally accepted that – with exceptions – journalists and media agents are committed to a code of ethics that reflects their societies’ accepted values. However, on various occasions, the media can misrepresent justice (the law), creating confusion and hostility that are unjustifiable and unfair (value). To test this claim, as a case study, we will use human rights legislation and the UK’s Human Rights Act 1998 (HRA) in particular. Human rights are generally understood as individual entitlements that derive from someone’s humanity. They set minimum standards to be respected by States, providing individuals with a mechanism to protect, but also demand, acknowledgment of their basic freedoms and natural rights. States also have an obligation to promote and protect human rights and, where transgressions occur, to ensure that they are remedied. In 1998, the British Government passed the HRA, incorporating the rights and freedoms protected in the European Convention on Human Rights (ECHR), a regional treaty introduced by the Council of Europe and implemented by the European Court of Human Rights in Strasbourg (Gavrielides, 2009). As with most common-law countries (e.g. Canada, the US and South Africa) that introduced similar Acts, someone would expect that the British public would embrace such major legislation. However, there is evidence to suggest that there is misunderstanding and even hostility towards the HRA and human rights. I have presented evidence elsewhere that this is due mainly to misleading media coverage, particularly by the tabloid press and television (Gavrielides, 2009). Another report noted: “Some sections of the Press have characterised the HRA as a ‘criminal charter’ and the last refuge for unmeritorious defences” (IPPR, 2004). Klug also noted: “If the government promote the Act, they risk unleashing ‘Eurochaos’ scare stories which Ministers fear will provide officials with excuses for not exercising powers that are commonplace in other States which have incorporated the ECHR

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into local law” (2000a). A study carried out by the Telephone Helplines Association supported Klug’s comments: A large proportion of the general public in the UK is deeply suspicious of anything coming from Europe. It is a shame that useful Directives are rarely shown to come from Europe, whereas anything coming from there which can be described as ‘bureaucracy run mad’ is splashed all over the red tops. (2003) Interestingly, in a 2009 book by Dominic Raab (2009), who is currently (2021) serving as First Secretary of State and Secretary of State for Foreign, Commonwealth and Development Affairs, the HRA is portrayed as the tool through which Europe managed to introduce the wrong kind of rights culture (Raab, 2009). In an article in the Guardian, Kampfner noted: Raab finds himself caught in a political armlock that requires him to portray Europe as the fount of evil. He obsesses over the incorporation of the Human Rights Act into British law, claiming it introduces the wrong kind of rights culture3. This misrepresentation of justice concerns not only the lawful but also the value of fairness. In the case of human rights, the misrepresentation affects both the HRA as well as the very values underlying it. In particular, a number of studies have suggested that owing to bad media coverage, human rights: • are often conceived by the public to be used only for either extreme cases of torture and inhumane treatment4 or as a hindrance in the war against terrorism; • tend to be seen as luxury entitlements used by celebrities, travellers or even convicted criminals who want to avoid punishment or claim compensation for trivial reasons; • are often associated with political correctness; • conceived in narrow legalistic terms and largely of interest to lawyers. It seems that only few people immediately associate human rights with their everyday encounters with public services and that only on rare occasions are civil

3  https://www.theguardian.com/books/2009/feb/08/assault-on-libert y-review (accessed in January 2021). 4  In a live discussion on Radio 5, Late Night Live, 2.10.02, an Asian man who fled to Britain 30 years ago phoned in to tell to the radio audience: “I came here because Britain is a free country. We don’t need a Bill of Rights”.

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rights perceived to be about the individual rather than the community5. Human rights are also believed to encourage a ‘compensation culture’,“a name, blame, shame and claim culture, the American Model that we all wish to avoid”6. An Institute of Public Policy Research study concluded that when people are asked “what human rights mean to them … the typical response is: disappearances and torture overseas or protecting the rights of terrorists or people like Myra Hindley” (2004, p. 32)7. Klug argued that: Given the absence, to date, of human rights education in schools, most people glean their understandings of bills of rights from American movies and news reports that gun control cannot be introduced into the US as a result of this albatross. There is confusion between human rights, bills of rights and international or regional human rights treaties.This general lack of clarity tends to result in one of two repeated misconceptions. First, that all bills of rights are presumed to be in the image of the liberal, American model with its Supreme Court that can overturn all legislation. Second, that every time the European Court of Human Rights makes an adverse judgement against the UK, it is assumed that this is part of a plot hatched in Brussels to undermine British sovereignty. In fact, of course, the ECHR has nothing whatsoever to do with the European Union…. (Klug, 2000b, p. 13) To sum up, I have used human rights and the UK’s Human Rights Act as a case study to shed some light on the media’s “contribution” to justice’s representation system. In the end, the final image of justice, as the law and the fair, is the one that dominates public perception. The organic essence of justice as described by Aristotle remains hidden and our consciousness clear.

5 In 2002, in a series of letters to the Lord Chancellor, the Prince of Wales wrote: “human rights legislation is only about the rights of individuals” (Telegraph, 26 September 2003). However, according to the latest report of Mr Alvaro Gil-Robles, the Council of Europe’s Commissioner for Human Rights, the Council was concerned with the frequency with which calls for the need to rebalance rights protection were heard. These calls, the Commissioner said, argue that human rights have shifted too far in favour of the individual to the detriment of the community. However, the Commission said: “It is perhaps worth emphasising that human rights are not a pick and mix assortment of luxury entitlements, but the very foundation of democratic societies. As such, their violation affects not just the individual concerned, but society as a whole; we exclude one person from their enjoyment at the risk of excluding all of us” (Council of Europe, 2005). 6  HRH The Prince of Wales to the Lord Chancellor, quoted in the Daily Telegraph (2003). 7  Their report also said: “Celebrities like Naomi Campbell and Catherine Zeta-Jones have used human rights arguments to help protect themselves from unwanted media intrusion. Their well-publicised court cases have encouraged a sense that human rights seem to be principally of interest to expensive lawyers”.

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Representation of justice by the courts: Case study no. 2 For most lay people, courts are often synonymous with justice (the law). It is interesting to notice that most first-year law students are convinced that justice, especially criminal justice, is delivered only in courts. Of course, this is far from true as most cases are resolved at the plea bargaining/negotiations stage8. A side point here which is worth mentioning is that the very practice of “negotiated justice” through plea bargaining and other forms of “deals” by lawyers could be said to be problematic precisely because they are not tested against norms of justice. In fact, many convictions and sentences handed down because of these deals do not reconcile with justice (neither the lawful nor the fair) as they derive from the relative powerlessness of one of the parties. For those cases that do end up in court, it is generally accepted that justice (the law) is delivered in a manner that all participants regard as fair. However, there have been occasions where miscarriages of justice have occurred. Despite their considerable small number, their impact on public confidence is severe, particularly where criminal law cases are involved, as this is where the accused’s most basic rights and liberties are at stake. For this reason, we will focus our analysis on criminal justice. A fundamental principle in the law of evidence is that its rules and procedures should always be weighted towards acquitting the guilty rather than convicting the innocent9.Yet in spite of this, there are no guarantees that innocent people are never convicted. Even the appeal system can often fail, leaving serious question marks about the integrity of the justice process. One example is the 1975 ‘Birmingham six case’, where six men were convicted for their involvement in two terrorist bombings in Birmingham, UK.The primary evidence against them consisted of their confessions and forensic evidence. However, they claimed that they were tortured by the police to confess and that they were innocent. Their appeal was dismissed, but in the mid1980s after a television documentary that covered their case, doubts were created about their guilt. After an MP published a book in which he claimed he had tracked down and interviewed the real bombers, the Home Secretary referred the case back to the Court of Appeal. The appeal was for the second time dismissed. However, in 1990, the case was again referred to the Court of Appeal and on this occasion the appeal was allowed, and the defendants’ convictions were quashed on the grounds that both the confessions and the scientific evidence were suspect. The Birmingham six case is only but one example of a number of miscarriages of justice that came to light. Some other examples include the Guildford four 1975– 1989, the Maguire family 1976–1991, Judith Ward 1974–1992, the Cardiff three 1990–1992, the Taylor sisters 1992–1993, and the Bridgewater three 1979–1997. 8  For example, in the UK, at least 98% of the criminal cases are resolved in Magistrates’ court, 82% plead guilty and never go to court while only 2% of cases end up in Crown Court trials (see, for example, Home Office, 1995, p. 31; LCD, 1997, pp. 64, 90). 9  Some, of course, would argue that this is merely rhetoric rather than an enforceable principle of the law (Packer, 1968).

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These are examples taken from only one legal system. Things become even more serious if we use jurisdictions that allow capital punishment. For example, in November 2005, Ruben Cantu, who in 1984 was found guilty of manslaughter and was sentenced to death at only 17, was finally found not guilty after David Garza, the only eyewitness and Ruben’s co-defendant said: “Part of me died when he died.You’ve got a 17-year-old who went to his grave for something he did not do. Texas murdered an innocent person”10. Given the aims of our journey, one must ask about the roots of these miscarriages and how courts get to represent justice in both its forms. Are these occasional and very unfortunate happenings resulting from the justice sausage machine malfunctioning in a sporadic and indiscriminatory way? Or are they more systematic, targeting the powerless? Moreover, based on how miscarriages of justice have been handled so far, could it be argued that the integrity of the system (and the maintenance of the status quo) is more, or less, important than the protection of the innocent? Cohen (2001) gives an answer to these questions through his concept of “magical legalism” whereby a legal illusion is created by the courts and servants of justice through psychological and other processes. Similar to the illusion created by the media, it portrays a different reality to the public, which then receives a distorted image of justice that serves the status quo and the maintenance of the existing forces of power.

Representation of justice by the courts and media: Case study no. 3 The last case study will elaborate on one of the most apparent failures of both courts and the media to represent justice. This refers to the sexual offending cases that occurred within the Catholic Church and the way in which the courts and the media dealt with them, most of the time misrepresenting justice (the law) so badly that the cost for the victims, their families and society is too considerable to bear. It all started in Boston, USA, in the beginning of 2002, when the Boston Globe acquired documents showing that John Geoghan, suspended from priestly ministry in 1994, had been moved from one assignment to another even though it was alleged that he had molested nearly 200 children for more than thirty years. This revelation was followed by an avalanche of hundreds of similar cases that eventually crashed into courtrooms and law offices. Elsewhere, I have presented a chorology and a detailed analysis of these cases; therefore, I will not elaborate on them further (Gavrielides and Coker, 2005). The media’s criticism does not refer to their whistle-blowing; on the contrary, this allowed these cases to come to light and for justice to be sought. In fact, this constitutes an example of the significant role the media can play in representing and assisting justice in bringing balance and restoration to communities and individuals. The criticism refers to the way the trials were covered.The stories that were written, 10  https://deathpenaltyinfo.org/policy-issues/innocence/executed-but-possiblyinnocent (accessed in January 2021).

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presented in television shows or discussed on radio, in chat rooms, the internet and other sources were interested primarily in the gossipy side of these grievous injustices. As a result, they painted a picture of justice that was far from reality but nonetheless rather “attractive” (i.e. it sold). For example, there was tendency for exaggeration, including false accusations. One of these cases is the late Cardinal Bernardin of Chicago, who was accused by the media company CNN International for sexual offences against a minor. This was based on a single testimony which was later withdrawn by the accuser, who admitted that his recovered memory was faulty and that the Cardinal was indeed innocent. In their struggle to collect evidence on cases that took places forty or fifty years ago, the media often performed the role of the judge and the jury, the police and the prosecutor, most of the times turning a deaf ear to testimonies that were not that convenient or easy to sell. On the other hand, a number of victims and their families as well as a considerable proportion of society felt disappointed with the way the courts and the criminal justice system represented justice. We will focus on one case to understand the reasons behind this disappointment. The first well-known American case in the 1980s was that of Louisiana-based Catholic priest Gilbert Gauthe. Despite their awareness of his reprobate behaviour, Church authorities transferred the priest from parish11 to parish, where he sexually abused minors repeatedly. Angry parents eventually brought Gauthe and the Church to trial, and after tremendous pressure, the Diocese of Lafayette, Louisiana removed Gauthe from his ministry in 1983. In 1985, local courts sentenced Gauthe to 20 years in prison, but he was released after 10 years. He was later arrested in Texas on charges of fondling a 3-year-old boy and was finally re-released from prison again in 2000. Catholic scholar William Jenkins writes: The Gauthe case also established the precedent that such failure to intervene should result in financial penalties, payment for therapy for the victims and compensatory damages for their families. Following Gauthe’s conviction in 1985, a group of concerned clergy and laity submitted a confidential report on abuse to the Catholic hierarchy.This document warned of the need to take urgent action in the face of such scandals, and suggested that legal liability payments could run into billions of dollars. It also warned that the Church could no longer rely on the friendship and sympathy of Catholic politicians, judges, and professionals within the criminal justice system…. (Jenkins, 1989, p. 105) The Gauthe case put both Catholic clergy and the U.S. judicial system on alert, but the public had captured only a glimpse of the iceberg. News reports coupled with a television drama about Gauthe’s molestation of children stirred further 11  A parish is an administrative part of a diocese that has its own church in Anglican, Roman Catholic, and some other churches.

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concern. But neither the Church ecclesiastical authorities nor the judicial system found an effective and efficient way to resolve the problem. Rather, both moved Gauthe around although the victims’ parents certainly favoured incarceration. Loss of faith in the church hierarchy and cynicism about the defrocked cleric’s movement through the prison system beleaguered some parents. Once again, the powerless were left behind, while the powerful institution maintained its power and indeed control over the final picture that will linger in our minds.

3.4 Finding hope Indeed, a key aim of this book is to reveal truths that are well hidden while exposing the sources and methods that create illusions and silent compliance with the status quo. But it is not only about awakening. It is also about hope and about identifying both a normative and practical path that can lead us to a better sense and experience of justice in both its forms. This path can also challenge the status quo and in an awaken state of mind put us in a position to counteract the existing forces of control and indeed reclaim some power.This hope can be found in what Aristotle saw as the highest personal value of all: fairness. It is present and objective. Real and alive. We only need to learn what it looks like and therefore seek to find it. In a broad sense, fairness is a moral and inherent principle. It has a general meaning and aims at the moral integration of the individual regardless of power. It is shaped at the utopian level and represents absolute equality. Moreover, fairness, according to Aristotle, is conceptualised by the ideas and goals of equality. However, equality is required between those of equal status within society. With all acts of injustice, the unjust person is thought to gain advantage while the victim is thought to suffer loss. Put another way, fairness is a zero-sum equation where neither party gains or losses. In a narrower sense, fairness is materialist and behavioural rather than abstractive. In that sense, fairness is defined as ’specific’ aiming to reduce social inequalities but also to achieve citizens’ welfare. It is a form of social justice implemented in everyday social and economic life. It allows equality in exchange and fairness in the distribution of good – not distribution in favour of the powerful but distribution that is aligned with the inherent value or our true selves. Another term for this specific fairness is equity, meaning the correction of the law according to the principles of universal fairness in situations for which the law is either too abstract, generalised or manipulated by the forces of power and control. For Aristotle, equity and fairness are closely related; though not absolutely identical, they belong to the same genus and are both morally good. In one sense, what is equitable is fair, but in another, since equity is the principle applied to correct justice when it errs, it is higher than what is just. Aristotle says that equity is the sort of justice which goes beyond the written law. Its existence partly is and partly is not intended by legislators: not intended, where they have noticed no defect in the law; intended, where they find themselves unable to define things exactly and are obliged to legislate universally where matters hold

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only for the most part or where it is not easy to be complete owing to the endless possible cases presented, such as the kinds and sizes of weapons that may be used to inflict wounds – a lifetime would be too short to make out a complete list of these. If, then, a precise statement is impossible and yet legislation is necessary, the law must be expressed in wide terms; and so, if a man has no more than a finger ring on his hand when he lifts it to strike or actually strikes another man, he is guilty of a criminal act according to the written words of the law, but he is innocent really, and it is equity that declares him to be so12. It is worth noting that Aristotle uses another word [in Greek] to describe equity. It is ‘επιείκεια’, meaning leniency, implying both fairness and sympathy and being opposite to rigor and stringency. Aristotle defines ‘επιείκεια’ in three ways: (a) as a noun, equity/lenience (‘το επιεικές’) is the same as fairness; (b) as an adjective, the equitable/clement man (‘επιεικής’) is a trait in a judge’s personality which leads to a fair decision, taking into account the wrongdoer’s intentions, his behaviour and the circumstances of the act; and (c) in a more general perspective, as a kind of virtue that every wise citizen must have, and more often than not, related to the notion of tolerance which contributed to the kind of individuality permitted to and expected by the citizens of the polis. Aristotle urged citizens to use arbitrators instead of judges for conflict resolution because arbitrators are more ‘epieikeis’ than the latter (judges). Aristotle expressed his slight preference for arbitration than for ordinary courts13. Despite the ambiguity of the term, equity is aligned with restorative justice and social justice14. Even if it has been defined in a variety of ways, social justice incorporates the principles of equity and equal rights. Today, equity is widely used,

12  Rhetoric, in Aristotle: The Complete Works 2152, 2188 [1374a25–b23] ( Jonathan Barnes ed., 1984) at 2188 [1374a18–1374b23]). 13 Arbitration and mediation as dispute resolution techniques were widely used in ancient Greece. Aristotle described the arbitrators’ swearing on obeying the rules of arbitration procedure. Arbitrators must act under the principle of equity, among other principles, such as the right judgement. Arbitration, according to D.M. MacDowell, was of two kinds: private and public. The first one was similar to victim offender mediation, as used recently. It was a voluntary procedure, in which the opposite parts agreed to solve their dispute. The mediator was of the free choice of both parts, and the final decision was compulsory for the parts. On the contrary, the cases introduced to the public arbitration were described by law; the arbitrator was not selected by the parts and the parts kept the right to proceed in judge if the result of the arbitration was not satisfying for the one part (D.M. MacDowell, The Law in Classical Athens (in Greek), Papadima Editions, Athens, 4th ed., 2003, pp. 324–325). It is exactly that broad framework of Aristotle’s definition of ‘epieikia’ which, after certain modifications, such as the introduction and implementation of a more regulated and bureaucratically defined legal system, facilitated the Roman concept of aequitas (equity). As a concept, equity (equitas) affected the judicial systems and practices within Roman law. 14  Equity theory, first developed as a theory of justice by John Stacey Adams, is getting away from the Aristotelian concept of ‘epieikes’, attempting to explain the relative satisfaction in terms of perceptions of fair/unfair distributions of resources within inter-personal relationships (Adams, 1965).

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meaning social tolerance and of fighting any kind of discrimination. It is relevant to all forms of informal justice, including restorative justice.

3.5 Preparing for restorative justice Through the teachings of Aristotle and natural law theory, this chapter deconstructed justice to show that although it is an objective concept, it is split up into the human construct of the law and the ethically based fairness. This helps us to expose power, when it is relevant. A selection of case studies focusing on the agents of the media and courts provided evidence that the system of justice’s representation often fails to deliver, and this can have serious repercussions, including doing injustice to individuals and the society at large. This account and the case studies helped us to understand that although we can be more demanding in terms of the representation of justice (the law), we have to remain reasonable with our expectations from the agents attempting to represent justice (the value). However, fairness can be a tool for individual and community empowerment, as its pure form cannot be diluted by power. Aristotle’s teachings on the highest virtue of all give us hope as we explore the organic pathways that are available but hidden by the existing structures of control that maintain the status quo of the powerful. At the beginning of this chapter, we asked whether the inconsistency of justice’s representation system results in justice being distributed unfairly or unevenly. From the evidence presented, the answer should be negative though not definitive. This generates collective hope. The answer is negative for at least two reasons. First, the representation system under investigation involves justice (the law) while justice (fairness) is to be found in all good human nature irrespective of the given justice system and those in power. We have reconstructed fairness, which is primarily a value that is inherent in all individuals. On the other hand, justice (the law) is the object of justice systems which are set up to rectify injustices done to individuals and the society. Second, when justice (the law) is distributed and represented by their respective agents, fairness is always present, being part of nature and a sine qua non ingredient of justice (the law) irrespective of the given societal, cultural or political context. This value is attainable. We only need to be awakened as we now know how to identify it. I must therefore now ask: if we are to look beyond the structured and top-down systems of delivering the law, where does one find the manifestation of fairness and equity in its specific forms for our individual circumstances? The book is now ready to challenge restorative justice and its claims for taking such as a role.

References Adams, J.S. (1965). “Inequity in Social Exchange”. Advances in Experimental Social Psychology 62: 335–343. Aristotle. (n.d.). Nicomachean Ethics.

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Cavafy, C.F. (1904). “Waiting for the Barbarians” from C.P. Cavafy: Collected Poems. Translated by Edmund Keeley and Philip Sherrard (1975, 1992). Princeton, NJ: Princeton University Press. Cohen, S. (2001). States of Denial: Knowing about Atrocities and Suffering. Cambridge, UK: Polity. Council of Europe. (2005). Report by Mr. Alvaro Gil-Robles, Commissioner for Human Rights on his visit to the United Kingdom 4th–12th November 2004. Strasbourg, France: Council of Europe. European Convention on Human Rights. (n.d.). Strasbourg, France: Council of Europe. Gavrielides, T. (2005a). “Some Mete-Theoretical Questions for Restorative Justice”. Ratio Juris 18(1): 84–106. Gavrielides, T. (2005b). “Human Rights vs. Political Reality: The Case of Europe’s Harmonising Criminal Justice Systems”. International Journal of Comparative Criminology 5(2): 60–84. Gavrielides, T. (2009). “Human Rights and Customer Satisfaction with Public Services: A Relationship Discovered”. International Journal of Human Rights 13(1). Gavrielides, T. and Coker, T. (2005). “Restoring Faith: Resolving the Catholic Church’s Sexual Scandals through Restorative Justice:Working Paper I”. Contemporary Justice Review 8(4): 345–365. Hobbes,T. (1889). “The Elements of Law, Natural and Politics”. In F.Tönnies (Ed.), Short Tract on First Principles (Written 1630–1636). Human Rights Act 1998. (n.d.). Institute of Public Policy Research (2004). Human Rights: Who Needs Them? Using Human Rights in the Voluntary Sector. London: IPPR. Jenkins, P. (1989). “Clergy Sexual Abuse: The Symbolic Politics of a Social Problem”. In J. Best (Ed.), Images of Issues: Typifying Contemporary Social Problems. New York: Aldine de Gruyter, pp. 105–130. Karalis, Vr. (2008). “Aristotle and Us: Some Observations on His Philosophical Language”. Thesis Eleven 93: 36–51. Klug, F. (2000a). “The Human Rights Act Research Unit: Target of the Tabloids”. The Guardian, 14 July. Klug, F. (2000b). Value for a Godless Age. London: Penguin Books. MacDowell, D.M. (2003). The Law in Classical Athens (in Greek). Athens: Papadima Editions. Mill, S.J. (1993). Utilitarianism: On Liberty, Considerations on Representative Government. London: Everyman. Nietzsche, F. (1986). Human: All Too Human. Cambridge, UK: Cambridge University Press. Packer, H. (1968). The Limits of the Criminal Sanction. Stanford, CA: Stanford University Press. Plato’s Republic (n.d.). esp. Thrasymachus. Raab, D. (2009). The Assault on Liberty:What Went Wrong with Rights. London: Fourth Estate. Resolution (78) 35 of the Committee of Ministers (n.d.). Acting under A5, adopted on 27 June 1978. Telephone Helplines Association (2003). THA Bulletin, October 2003.

4 CHALLENGING RESTORATIVE JUSTICE A painful biopower

4.1 Aristotelian restorative justice (επανορθωτικόν δίκαιον) The key aim of this chapter is to challenge restorative justice as a biopower that can counterbalance existing inequalities and the misuse of power by top-down structures. Before I do so, I must take a position as to how I understand restorative justice. To this end, I will resort to Classical Greek philosophy and Aristotle in particular. My approach to restorative justice is in line with a neo-Aristotelian wind that is currently blowing in the humanities, largely reflected in the revival of theories and concepts of virtue (Duff, 1991), ethics (Walker and Ivanhoe, 2007), and morality (Miller, 2003). According to Lambropoulos, a revival of Aristotelian thought found in the philosophy of law has affected new and reformulated theories of law and justice (1995). However, despite the revival of many contemporary philosophers’ interest in Aristotle, the links between his work and restorative justice remain largely undeveloped (Acorn, 2004). Consequently, my analysis involved the examination of Aristotle’s original work by reading his philosophy in Ancient Greek as much as possible. In the previous chapter, we accepted that there are two types of justice: the lawful and fairness. Although both should be value-based, the former is more easily exposed to arbitrariness and human fault. The latter is closer to the ideal but is abstract. We also discussed the notion of specific justice and equity. Aristotle argues that specific justice is divided into distributive justice and restorative justice (επανορθωτικόν δίκαιον). Distributive justice is concerned with the distribution of wealth, goods and honours among the citizens of the polis. Restorative justice is applied in individual affairs. Aristotle distinguishes between affairs with

DOI: 10.4324/9781003194576-6

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the consent (εκούσιες) and without the consent (ακούσιες) of the affected parties. Aristotle also identified the acts, which without consent are included in the restorative justice category: homicide, theft, adultery, robbery, verbal abuse, mutilation and insult. These (kinds of) acts are threatening to social justice because of the lack of consent from one party (i.e. the victim). Restorative justice, according to Aristotle, aims to restore αγαθά (goods) to individuals. Consequently, restorative justice is seen as sitting between loss and gain. According to Irwin, corrective (for us restorative) justice “is restricted and retrospective; it considers only the harm that has been done and the means of restoring the status quo ante” (1988, p. 429). Therefore, I argue that the Anglo-Saxon term restorative justice1 is a direct translation of the Greek term “epanorthoticon dikaion” (επανορθωτικόν δίκαιον), as this was developed by Aristotle in his comprehensive theory on justice. However, the majority of the literature attributes the return of the “restorative justice” term to Eglash. It is true that during the 1970s, he was among the first to speak of a crisis occurring in the criminal justice system and of an alternative paradigm, which could fundamentally replace the punitive one. In particular, Eglash distinguished three types of criminal justice: retributive, distributive and restorative (Eglash, 1977). He claimed that the first two types focus on the criminal act, deny victim participation in the justice process and require mere passive participation by offenders.The third one, however, focuses on restoring the harmful effects of these actions and actively involves all parties in the criminal process. Restorative justice, Eglash said, provides “a deliberate opportunity for offender and victim to restore their relationship, along with a chance for the offender to come up with a means to repair the harm done to the victim” (Mirsky, 2003, p. 2). Definitions of restorative justice vary (Gavrielides, 2008). However, at their core, we always find the wrongdoer, the person harmed, and the restoration process, the last of which is seen as either an individual or a social result. Aristotle’s understanding of restorative justice includes all the aforementioned key elements while reminding us that a conflict that occurs between individuals should be a concern primarily of those directly affected by the harm that was caused. Therefore, according to Aristotle, restorative justice moves the focus away from the past (what happened) and puts an emphasis on the future (what can be done). This suggests a collapse of the legal positivistic understanding of harm as “crime” and the construction of a philosophical framework that understands fairness and justice in a way that is more aligned with the natural law theory. In fact, some historians have argued that restorative justice was favoured by ancient societies because their focus was not to make ‘offenders’ pay but to make reparation to the person they wronged (and not to the State), building stronger futures at inter-personal levels (Michalowski, 1985). This is also aligned with the fact that community bonds used to be a lot more critical for the collective survival and thriving. As our modern way of living moved into 1 I use the term ‘restorative’ instead of ‘rectificatory’, ‘correctional’ or ‘corrective’ justice. This interpretation is gaining support in the literature (Daiches, 2003, p. 50; Otfried, 2003, p. 157).

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a more individualistic style of survival, the importance of community and collective happiness diminished2.

4.2 Restorative justice is morally problematic A leading proponent of restorative justice once asked me why one should need to know the philosophical foundations of a theory, whose central aim is repairing harm3. Put another way, why should one worry for a philosophical justification of restorative justice when its central target is to promote good? Although this question might seem trivial, the very identity of restorative justice is dependent upon the answer we give. My response to this question is simple: restorative justice is a powerful and painful tool that is morally problematic. For this reason, restorative justice cannot simply exist in the realm of practice and policy. This would be irresponsible and unethical. By engaging in a theoretical, metatheoretical and theosophical discussion on restorative justice, we can discover the normative framework that will then allow us to use it as a tool for countering power abuse. It is also difficult for me to justify any corrective or preventative practice if I am lacking a moral and philosophical justification for its tools and methods. Duff and Garland’s explanation of what makes a practice in need for a justification is helpful. They said that such practice “involves doing things to people that seem morally wrong” (Duff and Garland, 1997, p. 2). For instance, if we accept that restorative justice involves coercion, then there can be no doubt that it can be morally problematic. Moreover, restorative justice can have moral implications on the lives of victims, offenders and their communities. Another reason that makes restorative practice ethically questionable relates to what Walgrave calls “burden of the restorative action” and concerns the nature of the restorative process (2001, p. 18). Most of the restorative programmes might be informal but this does not make them enjoyable or easy. On the contrary, for many offenders, the fact that they have to participate in a personal and direct 2  However, according to Acorn, in the Aristotelian thought there is a close relationship between restorative and corrective justice. She uses Aristotle to argue that restorative justice has elements in common with retributive justice. “Restorative justice also shares important ground with retributive justice. Both insist that wrongs must be put right. Both see an essential relation between justice and reciprocity” (Acorn, 2004, p. 21). Acorn moves on to a comparative perspective between restorative justice and the Aristotelian notion of corrective justice: “Corrective justice, like restorative justice, does not place value on the wilful infliction of suffering on the offender but focuses on repair of the victim’s loss. Yet the ambitions of restorative justice are both less precise and more expansive than those of corrective justice… Further distinguishing restorative justice from corrective justice is its effort to widen the net of our concern in understanding who is affected by wrongdoing. Corrective justice tends to narrow the focus to the primary victim and wrongdoer. Restorative justice, by contrast, seeks to involve and restore all members of community potentially affected by the wrongdoing” (Acorn, 2004, p. 22). 3 Martin Wright, e-mail to Theo Gavrielides on Friday, 28 September 2001, 00:16.

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communication with the victim or her family (or both) is a deeply touching burden. They are confronted with the suffering and harm they had caused, apologising in front of others. In addition, the restorative process aims to awake the offender’s feelings of shame, guilt, remorse and embarrassment, as well as a mixture of other unpleasant feelings, since this is the only way the offender can realise what she did and restore it in a genuine way. In addition, sometimes these feeling do not stay in the mediator’s office but have an enduring impact on the offender’s life. An additional reason concerns the nature of restorative measures. According to Morris and Young, “any outcome – including a prison sentence – can be restorative if it is an outcome agreed to and considered appropriate by the key parties” (2000, p. 16). In other words, although apologies and hugging might be key outcomes of a restorative process, they are not the only ones. Finally, restorative interventions might include implicit or explicit coerciveness. Put another way, restorative outcomes constitute legal agreements that need to be respected. Although restorative justice is premised on consensual decision-making, requiring all key parties to agree on the appropriate outcome, the State is still present. It is there to supervise the process, making sure that all standards (e.g. human rights) are respected and that the agreed outcome is taken up. If the offender or the victim fails to live up to the promises and commitments that they make to each other during the restorative process, then the formal criminal justice system takes over. If restorative justice is indeed morally problematic in terms of theory and practice, then we have to accept that it needs a philosophy to justify its measures and methodology. And there are a lot more reasons why restorative justice needs a philosophical justification. There is evidence (Gavrielides, 2018, 2020) that without a clear normative narrative, restorative justice is open to co-option by power and powerful institutions (including governmental bodies). Furthermore, well-intended policymakers and people involved in the administration of justice will misapply and abuse the idea, and restorative justice will get mixed up with the punitive paradigm. In 2000, the Hon Sir Anthony Mason warned that the contribution of restorative justice will remain limited until a more ambitious philosophical framework is pursued for its practices. “We cannot expect too much from a system of one-off conferencing … we should be looking to anchor the concept as an element in a more extensive culture shift” (Mason, 2000, p. 2). Haines reminds us of our responsibilities as theorists since “the failure to theoretically and practically operationalise the concept of restorative justice is an abrogation of responsibility on the part of those involved in promoting its concept and a serious weakness of the literature” (1998, p. 37). Zehr noted: “Indeed, the field can be said to have emerged from practice more than theory. As one of the early articulators of the philosophy, I often think of the philosophy as emerging from a desire to conceptualize and communicate what we were doing in practice” (in the Preface of Gavrielides and Artinopoulou, 2013). In this context, Gavrielides advised that “before we are able to proceed with implementation, clear philosophical frameworks need to be established … Equally essential is that we realise and accept the conceptual limits of restorative justice so that

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we move our practices within them” (2005, p. 103). Braithwaite and Strang (2000) suggested that a distinctive history of philosophy is being shaped “by [restorative justice] practices that ordinary citizens find remarkably appealing. As a consequence, the philosophy now struggles to keep up with the pace of bottom-up innovation” (xv). For example, Elliott (2011) noted: Restorative justice must be more than a programme within the current system – it must be a new paradigm for responding to harm and conflict with its own philosophical and theoretical framework. Facilitating this shift requires a rethinking of the assumptions around punishment and justice, placing emphasis instead on values and relationships. (back cover) And here is my challenge. What is the underpinning philosophy of restorative justice?

4.3 Placing restorative justice theory To articulate any underpinning philosophy that justifies practice and its ethical implications for individuals and communities, we first need to place such practice in the vast world of theories. Therefore, it is impossible to start arguing for, or against, any consequence of restorative justice actions without explaining our meta-theoretical assumptions. These are the assumptions which underlie any given theoretical perspective. Different theoretical perspectives rely on different metatheoretical assumptions. For example, in order to study restorative justice’s philosophical viability within existing criminal justice institutions, theoreticians must choose some theoretical perspective or school of thought (e.g. communitarianism, utilitarianism or liberalism).Theory, on the other hand, is understood here not in its empirical, modern science interpretation but in the Ancient Greek context, meaning a contemplative and rational type of abstract thinking about a phenomenon (or the results of such thinking). It is true that I have always argued for more restorative practice as well as for evidence-driven policy that supports the community-led development of restorative justice (Gavrielides, 2016). However, this development must be observed and evaluated within a clear theoretical framework. The rapid spread of restorative projects worldwide might sound like a good reason for celebration. However, this pace should be viewed with a certain degree of suspicion (Gavrielides, 2013). I am not the only one who holds this concern (see Zehr, 1989, 1990; Claasen, 1995; Braithwaite and Strang, 2000). According to three international surveys that I carried out with over 300 practitioners, researchers and policy-makers in the restorative justice field (Gavrielides, 2007, 2020), the restorative justice theory is sometimes stretched to fit elements that are not restorative in nature, whereas, on other occasions, it is narrowed down to a notion that cannot take in all the essential features that characterise it. As Walgrave put it, despite the vast literature on the theory and practices of

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restorative justice, “there is (still) a need for reflection on socio-ethical, philosophical, and legal theory … to construct a coherent paradigm … which can serve as a frame of reference” (Walgrave, 1995, p. 240). Therefore, I take a step back to explore first whether restorative justice can support a theoretical discussion. For example, does restorative justice belong to the world of theories or is it merely an alternative criminal justice process? If it is just the latter, then our quest for a restorative justice approach to balancing power should end now. Before we engage in this discussion, I need to explain my position on how I view this “world of theories”. The world of theories can be illustrated with three circles (Figure 4.1), the smaller fitting inside the bigger. The first circle is broad enough to include theories with distinctive accounts of Ethics (e.g. how to lead our lives or what is right or wrong) and Political Morality (relationship of the individual to the aggregation). Examples of theories fitting in the first circle are the philosophies of liberalism, utilitarianism, communitarianism, republicanism or feminism. Moving on to the second circle, we find theories for justice systems. One example is Rawls’s Theory of Justice (1971). Here, Rawls uses Kantian philosophy (a firstlevel theory) to provide a moral alternative to utilitarianism to address the problem of distributive justice (the socially just distribution of goods in a society). Theories of the second level are broad enough to address any justice issues. However, they are not as broad as the first level theories, which can take on broad issues relating not only to justice but also to ethics and political morality.That is why first level theories are too broad to fit in the second circle. Finally, there is the third circle, the smallest one, which includes theories that deal with specific problematic issues of various disciplines such as criminal justice.

FIGURE 4.1 

The world of theories (© TGavrielides 2021)

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Theories that belong to the third circle cannot deal with all problematic issues of justice (like theories of the second circle) and are certainly not interested in questions of ethics or political morality (which are issues that are addressed by the theories of the first circle). An example could be the Republican Theory of Dominion advanced by Braithwaite and Pettit4 (1990). Their theory can provide a general framework for evaluation of the criminal justice system as a whole. Another example of theories that belong to the third circle are the various punishment theories (e.g. Just Deserts/ Retributivism) whose primary concern is the justification of punishment. To understand this delineation better, a theory of punishment is likely to be narrower than a theory of criminal justice, while a theory of political morality must be broader than either. The separation of the three levels of theories is important for two reasons. First, if we conclude that restorative justice is not merely a practice but also a theory, then the delineation will help us understand in which world of theories the restorative justice philosophy should be placed. As explained, each world of theories addresses issues of a different nature. For instance, it would be a mistake to claim that punishment theories can address issues of ethics. Likewise, it could be wrong to say that the restorative justice theory can address issues that might be too broad for its scope. This schema is also highly significant because, for example, a utilitarian theory of punishment does not necessarily imply a utilitarian theory of criminal justice, much less a utilitarian theory of the whole of political morality. However, it is possible to construct multi-part or hybrid theories of punishment such as LA Hart’s. The potential of restorative justice to challenge power in all levels is very much dependent on where we place it. Coming back to our first question of whether restorative justice has a place in this world of theories, we ask: what makes restorative justice qualify to be elevated from being merely a bunch of practices to a complete theory? To answer this question, we need to ask whether restorative justice can indeed offer any normative promises apart from the empirical benefits it wishes to make. But more importantly, can these normative promises become constituent elements of a theory? And of which level? To answer these questions, let us assume that we accept the many views in the restorative justice literature about the existence or the formation of a restorative justice paradigm. Leading proponents of restorative justice have claimed that this paradigm is a sui generis matrix that sees and deals with antisocial behaviour in a fundamentally different way (Christie, 1978; Zehr, 1990). Its most obvious counterpart is the punitive paradigm, which is the basis for most of the justice theories that belong to the second circle as well as for all punishment theories of the third circle. It is also the basis for our current criminal justice systems. But what is a paradigm, and why do we speak in terms of paradigms? “A paradigm is an achievement in a particular discipline which defines the legitimate problems 4 Their theory is part of the larger tradition of republican political thought. Here, I refer to their criminal justice theory and not Republicanism.

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and methods of research within that discipline” (Barnett, 1981, p. 245). Put another way, paradigms shape our understanding of the notions that come under a specific discipline. As Zehr puts it, “They provide the lens through which we understand phenomena” (1990, p. 86). Moreover, they form our “common sense” and guide us in our understanding of what is “possible” and what is “impossible”. Things falling outside of the paradigm seem absurd and abnormal to the common eye. Paradigms are also “particular ways of constructing reality” (Zehr, 1990, p. 87). For instance, once the legislative, or the law-enforcement, authority of a State decides to criminalise (or decriminalise) a certain action, our reality tends to be defined accordingly, sometimes in ways that may not correspond to our experiences. Similarly, the punitive paradigm is such a construct. In accordance, notions and definitions that fall under the criminal justice umbrella are the result of the understanding that is available under the punitive matrix. Overall, as with all paradigms, this one too creates its own reality. Paradigms are merely other ways of organising reality. They shape how we define problems and what we recognise as appropriate solutions. They define what we call “common sense” (Zehr, 1990, p. 87). To conclude, paradigms are constructions of reality, and as such, they create our understanding of what is possible and impossible. By definition, constructs, including those created by the strongest power forces whether locally, nationally or internationally, can and do change. One of the most influential books about paradigm changes is The Structure of Scientific Revolutions by Thomas Kuhn (1970). In that book, Kuhn claims that a paradigm can replace another, causing a “revolution” in the way we view and understand the world. Paradigm revolutions constitute one of the primary sources that lead to changes in scientific outlook but also power structures and power hierarchies. What causes such a change is a paradigm crisis. At the beginning, the paradigm seems to fit most phenomena. Over time, however, dysfunctions begin to develop as more and more phenomena stop fitting the paradigm. In Barnett’s terms: “As the paradigm develops and matures, it reveals occasional inabilities to solve new problems and explain new data” (1970, p. 245)5. Similarly, Barnett suggested that we stop attempting to make the facts fit the old punitive paradigm and adopt a new paradigm for criminal ­justice – what he names “Restitution” (1977). The history of our justice paradigm, he said, shows some of the symptoms of “paradigm change”. Also, despite the various patches and easy remedies for temporary solutions to problems that occasionally come up, the sense of dysfunction has become too great.

5 An example of a paradigm crisis that led to a paradigm change is the Ptolemaic Paradigm, which shaped the Western understanding of cosmos until the seventeenth century. Under this paradigm, it was common sense that cosmos is a series of concentric “crystalline spheres” with the Earth at the centre. However, after time and new discoveries, more and more phenomena stopped fitting the paradigm, which started facing a crisis. As a result, Isaac Newton’s new theory constituted the coup de grâce of the old paradigm, which was from then on replaced by a better, more accurate one.

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In consequence, if we acknowledge that restorative justice can constitute an alternative justice paradigm, then we also must accept that it can support a theoretical discussion. Therefore, it must fall within one of the circles of theories. Of course, the question that follows naturally from this is: to which of the three circles of theories does it belong? The answer we give will define the nature of issues that restorative justice theory can address as well as its potential for addressing power imbalances at different levels (criminal justice vs. justice vs. life). Using the method of elimination, I examine first whether restorative justice is as narrow as the smaller circle. I will not go into the detail of this investigation as this will be debated in depth later. What I will point out here is that restorative justice neither is punishment nor is interested in punishment, at least in the form that it has been given by the punitive paradigm of our criminal justice systems (Gavrielides, 2015a). Moving onto the second circle, I ask whether restorative justice can provide a framework for evaluation and de-(re)construction of the justice system in its entirety (e.g. police, courts and judiciary). Similarly, can restorative justice address issues that might arise throughout the justice process? The extant literature has claimed that the restorative justice ideal extends far beyond what can be restored within the justice system (e.g. Braithwaite, 2002b; Dignan, 2002; Gavrielides, 2020). In fact, many have claimed that over the last decade, restorative justice is more prominent in educational settings (such as schools, universities and youth centres) than the justice system (Wong and Gavrielides, 2019). Looking at the application of restorative justice at the inter-personal (e.g. family and relationship conflicts, employment and neighbourhood disputes), inter-community and inter-state levels, I must conclude that its interest is far more ambitious than what is taking place in the second circle. I have always argued that what makes restorative justice different from other correctional, preventative or educational practices is its underlying values. One of the most prominent restorative justice values is power-sharing. I have explored these values in detail elsewhere (Gavrielides, 2015b), while Braithwaite’s seminal work “Setting Standards for Restorative Justice” (2002a) provides a detailed guide as to how the restorative justice norm can influence decision-making at all levels. As we are coming to the end of our metatheoretical journey, the key point to make here is that restorative justice is placed within the wider, outer circle of the world of theories. Therefore, this conclusion bears the question as to whether restorative justice can teach us how we should relate with the sovereign authority. Surely, it can show us how to amend our relationships with individuals or groups of individuals in our communities. But can it guide us as to how we should behave towards the authority that coordinates the living of all entities in a community? Can it lead us in our journey through life and experiences? Can it show us how to balance power at all levels? What is the ultimate goal it distinguishes and which we should pursue so that we make our lives meaningful and free? More importantly, how is restorative justice, as a theory of ethics and political morality and a practice with ethical and moral implications, justified philosophically?

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4.4 Restorative pain: The philosophical foundations of restorative justice I have always struggled with the central philosophical position of restorative justice and how this reconciles with key concepts such as punishment. As I now explore the philosophical foundations of the restorative justice theory and seek for a justification of its practices, I must ask: what is restorative justice offering that we don’t already know philosophically? Since the beginning of recorded history, the ideas on how to respond to wrongdoing and power abuse have been limited, unimaginative and rather elementary. This is probably because they are based simply on common sense. For example, if one harms another, then we can try to stop them from doing it again, teach them a lesson, keep them away from the people and the environment that they had harmed or take the time to teach them to help themselves. The criminal justice system aspires to all of the above. It then justifies its practices through several schools of thought, primarily liberalism and utilitarianism, particularly the strands of retribution (Just Deserts) and rehabilitation Therefore, if these are the common-sense responses to harm-doing, then what is the proposition from restorative justice? And why is this proposition so different that it may give us a reason to believe that it can counterbalance power abuse more effectively? Isn’t restorative justice simply a variation of what has already been stated in the justice literature, or does it propose something different? And if it does propose something different, then how ‘commonsensical’ is restorative justice? For instance, a number of restorativists reject the functionality of retribution (“eye for an eye”) and claim that helping the wrongdoers to help themselves is constructive. In their view, restorative justice aims to do just that. Again, I must ask: is restorative justice therefore a repackaging of rehabilitation and a branch of liberal philosophy? If this is the case, then why are there so many attacks against the current criminal justice system? For example, many scholars have claimed that restorative justice is an alternative to punishment, as it moves away from State-inflicted retributive responses and the exclusion of affected parties in the decision-making process of justice. There have also been some views that restorative justice is an alternative punishment. Both positions suggest that restorative justice functions above or outside power structures that define punishment according to the needs and preferences of the sovereign. Here is my challenge. I claim that the restorative justice experience offers something new. This is restorative pain. This pain has a dual impact. First, it causes restorative justice to be morally and ethically problematic. Second, it provides the foundations of its philosophical justification as a theory of ethics and a painful practice. More importantly, this restorative pain is where restorative justice draws its own power for restoring peace. My notion of restorative pain sits outside of the current paradigm of viewing and dealing with wrongdoing, harm and power abuse. Therefore, in my understanding, restorative justice is neither punishment nor an alternative to punishment. I am conscious of the weight of this claim, as it suggests that restorative justice is potentially powerful enough to challenge the status quo.

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This power comes from this restorative pain, which embraces both the retributive and rehabilitative elements and adds an additional burden on the parties involved and their community. Restorative pain serves as the trigger for restorative catharsis, a natural by-product of successful restorative processes (Gavrielides, 2012a).This catharsis, however, should not be seen as a must but as a gift of restorative justice (Braithwaite, 2002a). I add that this gift is painful, retributive and dangerous but rehabilitative and constructive. So, how is this painful gift of restorative pain through catharsis justified? To articulate the underpinning philosophy and justification of this painful theory and practice, I will take three steps. First, I will attempt to unpack the infliction of pain in its current form of manifestation but in an awakened state of mind. Subsequently, I will try to deconstruct and explain pain so that I can use its constituent elements for the construction of a philosophical justification of restorative justice. Finally, I will describe what I see as the philosophical premise of restorative justice.

Seeing the infliction of pain in an awakened state of mind Today’s dominant understanding of the infliction of pain through the justice system as retribution and rehabilitation resulting from wrongdoing is the outcome of historical events and the demands of modern society as these are interpreted primarily by the given sovereign and the powerful. In fact, a brief account of the many historical sources can help indicate that the contemporary way of inflicting pain through the justice system is both recent and brief. For example, the Code of Hammurabi (c. 2380 BCE), which is one of the first samples of written law, espoused the practice of individual restoration as opposed to public condemnation. On several occasions, this served as a substitute for the death penalty. Furthermore, in the Ninth Book of the Iliad, Homer referred to the case of Ajax, who criticised Achilles for not accepting Agamemnon’s private offer of reparation. In his criticism, Ajax pointed out to Achilles that even a brother’s death may be compensated without the need for public involvement. Barnett (1977) also claimed “of 100 scattered tribal communities, as to which the information is of undoubted reliability, 73% called for a pecuniary sanction versus 17% that called for a certain number of persons to be handed over to the family of the victim as a sanction”. In addition, Stephen Schafer noted that among Indian Hindus and Semitic nations, restitution was used and continued to prevail for centuries: “he who atones is forgiven”. In Europe, this power transition took place after the kings united the tribes and large areas, changing in this way the structure of societies from communitarian/tribal to hierarchical/feudal6. With the aim of increasing the success of the then-new criminal justice system, crime control was formalised in communities. Cohen (1985) describes how justice 6 For example, Sharpe (1980), Rossner (1989) and Gavrielides (2011) argued that in Europe the contemporary notion of punishment was constructed only after the Norman Conquest, when crime was seen as a violation of the law of the King. The understanding of what is crime and harm was key in defining society’s response.

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and social control were reconstructed from being informal local and regional control systems to becoming a centralised machinery of processing justice for the powerful. Foucault described this system as alien, bringing “an abrupt change” (1991) as taverns’ closing times and curfews became common, and regulation of the dinner hours of labourers was encouraged7. I also remember Marx, who argued that the formalisation and professionalisation process of the justice system are key consequences of trade development and economics (1954). Michalowski (1985) also claimed that formal law emerged as a means of controlling property and relations and that the concept of individual property and the history of law were from then on inseparable. Barnett (1977) also reminds us of the role of religious institutions and the significance of the ecclesiastic law of that time. This claim is supported by Tallack (1900), who noted that the greedy ecclesiastical powers of the time aimed to exact pain and double vengeance upon the offenders by taking their property and by applying corporal punishment or imprisonment. Along the same lines is Braithwaite’s critique: Long before the Inquisition, church leaders were among those who sought to secure their power through retributive affliction on the bodies of their flock… It was the church that established prosecution as a central authority to assert its will and church heresy. The barbarism of the Inquisition was justified, because crime was committed not against a victim, but against the moral order of the church. (1989, p. 47) During this period, political philosophers Jeremy Bentham (1748–1832) and John Austin (1790–1859) argued that the law is a phenomenon of large societies with a sovereign.This can be a determinate person or group who have supreme and absolute de facto power. The laws in these societies, including Western countries, are a subset of the sovereign’s commands. These are general orders that apply to classes of actions and people which are backed up by threat of force or sanction. This imperatival positivist theory identifies the existence of legal systems with patterns of command and obedience that can be ascertained without considering whether the sovereign has a moral right to rule or whether their commands are meritorious. In summary, as the rights of the powerful State gradually overshadowed those of the powerless, the management of justice and criminal justice became a monopoly of the legitimised and publicly accepted top-down structures of the sovereign power. What also emerged from this development was the division of law between public and private. Crime was dealt with mostly as an act against the mighty State, whereas offences against individuals’ rights were pursued separately as torts. The terms crime, offender and victim started to be used. 7 I cannot avoid comparing these images of justice with the current Covid-19 “social distancing” measures that have been imposed from the top and in the name of a higher purpose to which we all silently agreed.

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Deconstructing pain for restorative justice As argued, the current understanding of punishment is the outcome of historical events, the development of societal norms, institutions and structures as well as economics and politics. Current practice is still placed within this understanding and hence to be able to view my proposition of restorative punishment the reader is asked to switch lenses by viewing an alternative paradigm. It is through an evolved paradigm that we now need to view the concept of pain and how it is manifested, experienced and used in the restorative practice. I will start by sharing my own experience from sitting in a restorative circle with 22 male adult prisoners from Ferndale prison8 in British Columbia (Canada).

MY STORY FROM FERNDALE PRISON, CANADA It was a rainy November evening in 2012 when I visited Ferndale prison. The circle took place in the chaplaincy, and the vast majority of participants were serving a life sentence (convicted of manslaughter). The circle took place not with the intention of mitigating their life sentence but as part of a routine healing process that the prison had adopted and supported for years9. The participants shared their story in the usual way. I told them about mine. One participant said: My pain, which I want to share with you all, is not that I am going to be in this place for yet another Christmas and probably for the rest of my life. I know what I did. My pain is that my ill mother is also being punished by not being with me on probably her last Christmas. He then told us about his mum’s frail state, how much he loves her and how important it was for her to spend her last Christmas with her only son, whom she had forgiven. This story acted as a catalyst for the remaining stories as the circle participants expressed their own pain and stories. It then hit me. I could no longer see pain as a State-inflicted form of punishment. I saw pain, the restorative pain, as a self-inflicted realisation that was constructive and humanising. This pain allowed me to see these 22 individuals as humans and not as offenders. This shift also allowed me to see a path for transformation that had nothing to do with the State-inflicted pain of imprisonment. No wonder why my original feelings of meetings them changed from being apprehensive and scared to shaking their hands, hugging them and promising to write when I get back home!

8 Further on Ferndale institution http://www.csc-scc.gc.ca/text/facilit/institutprofiles/ ferndale-eng.shtml (accessed in December 2012). 9 It is worth noting that this initiative was championed by the late Prof. Liz Elliott http:// www.sfu.ca/crj/about/liz-elliot.html (accessed in December 2012).

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The restorative process of the circle allowed the identification, expression and sharing of a far more constructive type of pain. This pain was neither shameful nor stigmatising, as Braithwaite (1989) or the Stigmatising Theory would see it. It was very personal and could not be generalised. It was the outcome of the individual circumstances surrounding each participant, whether it related to their beloved ones, their life or something they felt they had lost having observed themselves in pain. This pain found its way into our discussion, as the prisoners felt safe in a space and company that encouraged them to use it as a tool for communication and bonding. Restorative justice does entail pain but of a different kind, not pain that is triggered by State and top-down justice management. Restorative justice triggers pain that is personal and specific to each participant and is the consequence of his or her own actions, behaviour, self-observation and self-reflection. This pain is a gift and is not always present. It cannot be imposed, but it can be nurtured. The retributive understanding of pain identifies the existence of two basic elements. The first is the communicative and the second the retributive. For example, Duff sees punishment as the means through which the States communicate with the receiver, imposing “the suffering which she deserves for her crime” (Duff, 1992, pp. 53–54). Pain is thus justified as an intrinsically appropriate response to crime. The restorative understanding of pain is a fundamentally different one. If we accept the retributive position that punishment consists of two elements, the expressive and the retributive, restorative measures would certainly deny the second one. Retribution is completely taken out of the restorative picture. However, the expressive element is desirable, as it promotes restorative goals. Feinberg (1965) claims that punishment, no matter the type, should serve an expressive function. Nonetheless, as Duff points out, being merely expressive would not be enough for restorative justice “because it should be a two-way communication, not a one-way directive aimed at a passive wrongdoer” (1992, p. 53). All parties need to be heard in the process and contribute to the restorative outcome. Von Hirsch and Ashworth (1998) and Duff (1999) agree that punishment is conceptualised as a form of censure and that the vehicle through which blame is expressed is the visitation of deprivation (hard treatment). Whereas Duff argues that deprivation can itself be explained in reprobative terms providing a kind of secular penance, Von Hirsch believes that it has to do with helping to keep predatory behaviour within tolerable limits.Yet he acknowledges that: One might still wish to devise another way of issuing authoritative judgements of blame, for such predatory behaviour as occurs. But those judgements, in the interest of keeping state-inflicted suffering to a minimum, would no longer be linked to purposive infliction of suffering. (von Hirsch and Ashworth, 1998, p. 70) Restorative pain is such a device. It can issue a new authoritative judgement of blame without using the deprivation (hard treatment) element. However, restorative pain is not interested in “keeping state-inflicted suffering to a minimum”. This is

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because it is not imposed by the State; it is a voluntary agreement reached by the parties (sometimes with the help of the State through its representatives, the facilitators). Von Hirsch was also right in one more thing: the new device “would no longer be linked to purposive infliction of suffering” (von Hirsch and Ashworth, 1998, p. 70). Going back to the notion of pain as a restorative gift, Walgrave (1999) claims that the difference between punishment and what he calls “painful restorative obligation” can be identified in the intention of the punisher. “It is the punisher who considers a certain action to be wrong and who wants the wrongdoer to suffer for it” (Walgrave, 2001, p. 22). Therefore, he refuses to call restorative sanctions punishments since those who agree on them have no intention to make the offender suffer. In a similar vein, Wright claims that punishment practices are the intentional or “deliberate imposition of pain” on offenders, by which they would include incarceration and fines. He distinguished the intentions of legal authorities, arguing, “Whereas punishment is an intended deprivation, non-punishment is intended to be constructive” (Wright, 1991, p. 15). I argue that restorative pain is private and self-inflicted. It aims to restore from within and to be cleansing. Deterrence (general or specific) might be welcomed as a side effect but is not among the primary goals of restorative measures nor is retribution for what was done. Thus, we notice a difference of aims in the restorative versus punitive pain comparison. Restorative pain aims to cleanse, restore, create, construct, repair and reintegrate. Restorative measures can entail education per se as they can teach communication, negotiation, compromise and related skills.

The philosophical premise of restorative justice So far, I have argued that although restorative pain can be constructive, cleansing and honest, it is still tough and morally, psychologically and socially dangerous. In fact, it is so harsh that it can trigger a series of psychological and psychosocial transformation events that should not be underestimated. I have written elsewhere about the obligations of the restorative justice practitioner who oversees this infliction of pain especially in relation to complex harms where power imbalances may take place, such as hate incidents (Gavrielides, 2012b), domestic violence (Gavrielides, 2015a, 2019) and gender-based violence (Gavrielides and Artinopoulou, 2012). I now turn my attention to finding a moral justification for restorative justice and indeed its philosophical premises as a theory of ethics and a painful practice. To this end, I will again use Aristotle as well as Greek tragedy as my starting points. Aristotle defines tragedy as: The imitation of an action that is serious and also as having magnitude complete in itself; in language with pleasurable accessories, each kind brought in separately in parts of the work; in a dramatic, not in a narrative form; with incidents arousing pity and fear, wherewith to accomplish its catharsis of such emotions. (Aristotle, 1965, p. 348)

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Aristotle spoke about pain in the form of catharsis similar to the one experienced through Greek tragedy. This catharsis, he said, aims to awaken feelings of fear and pity. Hence, any good Greek tragedy should be able to thrill the viewers with “horror and melted them to pity at what takes place” (Aristotle, Poetics). This pain is necessary and welcomed as the upsetting process is purgative and engenders a sense of catharsis at the removal of debilitating emotions otherwise built up and trapped inside. Hume’s (1757) discussion on the paradox of tragedy comes to mind. “It seems an unaccountable pleasure, which the spectators of a well-wrote tragedy receive from sorrow, terror, anxiety and other passion, which are in themselves disagreeable and uneasy” (Of Tragedy – Four Dissertations). One also must ask why humans are drawn to stories of brokenness and pain. Nietzsche’s seminal work The Birth of Tragedy is relevant. In reading Nietzsche, Price calls this paradox the tragic pleasure. First seen in the Greek tragedies of Oedipus and Antigone (300 BCE), the desire to dissect and clarify our response to this unsettling material has historically centred on the oxymoronic idea of constructing through pain. The communicative elements of Greek tragedy are found later in the works of Shakespeare (e.g. Hamlet and King Lear) and even in modern films. Price (1998) explains that the specific pleasure found in tragic drama is in the period of reflection immediately following the experience during which this process of cleaning occurs. Aristotle concludes that this type of pain reminds us that life is something fundamentally painful and in need of justification, of redemption from suffering. Nietzsche agrees and adds that the release of these pent-up emotions is not only therapeutic and redemptive for viewers but also so strong that it actually draws them to the tragic drama for this experience of restoration (Deleuze, 1983). Aristotle asserted that catharsis is a “form of homeopathic treatment – ­curing emotion by means of an emotion like kind but not identical” (Woodfin and Groves, 2006, p. 157). Catharsis derived from the Greek word κάθαρσις meaning “to cleanse”. In referring to his Dialectic Method (in the Phenomenology of Mind, 1964), Hegel explains that catharsis works as a thesis that moves to its opposite, the antithesis by principle of negativity. It is via this negative that a new state, called synthesis (Mueller, 1958; Abdulla, 1985), is arrived at through the clash of the two opposite forces. This new state of synthesis, while sharing traits of both thesis and antithesis, produces a discovery of the two opposite forces, or a “reconciliation of the two” (Abdulla, 1985). Hegel believes that all things are related and nothing can stand in isolation. He claims that everything in one way or another influences and is being influenced by the forces around it. He moves on to explain that the dialectical procedure that results in catharsis could be transferred into restorative justice and that our restorative pain reveals conflict ideas or beliefs not as disjunctions but as conjoined. Such is the synthesis, a category of becoming. Restorative pain is the trigger of Aristotle’s catharsis. Putting it in the context of Greek tragedy, restorative pain is not pleasurable in the sense that spectators of a tragic drama do not enjoy the death of Hamlet, the suffering of Oedipus or the execution of Desdemona in the same way that they enjoy a good meal (Price, 1998).

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Nietzsche argues that this does not mean that the experience of this pain cannot be gratifying on a far more fundamental level. For Nietzsche, the initial pain must be examined for it is not entirely unpleasant and on some deeper level actually provides a sense of euphoria. Affirmation of life even in its strangest and sternest problems, the will to life rejoicing in its own inexhaustibility through the sacrifice of its highest types – that is what I call Dionysian… Not so as to get rid of pity and ­terror … but, beyond pity and terror, to realise in oneself the eternal joy of becoming – that joy which also encompasses join in destruction. (Nietzsche, 1878, p. 5) Moreover, Hume’s aforementioned position helps us to understand why pain as received through the restorative process in the form of sorrow, anxiety, fear, pity and various other passions is still welcomed by all parties involved. Remember my example of Ferndale. Price argues that what we learn when experiencing pain as described above and through the eyes of Greek Tragedy is a way to acknowledge misfortune within the boundaries of our human nature (Price, 1998). Humans aware of this necessity of overcoming submit to their basest desires and seek out the tragic in the hope of inflicting pain upon themselves, destroying the self and finally being reunited in the “mysterious primordial unity” (Nietzsche, 1872, p. 37). German philosopher Schopenhauer also spoke of this constructive pain. He encourages his readers to submit themselves to the tragic predicament and in it find rest (Soll, 1988). But Nietzsche (1872) takes a step further as he finds at the heart of the tragic paradox of our restorative pain a great sense of hope:“the joyous hope that the spell of individuation may be broken in augury of a restored oneness” (p. 74). I must point out that catharsis is not a moment but a process. For some, this process can be their life. Catharsis is the journey of the restorative process, and the justification for the pain that is associated with it. Therefore, catharsis as pursued by the restorative dialogue is an important transformative discovery. Like the spectators of a Greek tragedy, the parties in a restorative process will go through tragic, dramatic experience and pass catharsis (if achieved as a gift), only then to realise that catharsis is not the final state in itself but rather a reaching to the state of synthesis, recognition, understanding or discovery. Remember Jim’s life story. This is the experience of wonder that we find beautiful despite its tragic nature. It is a glimpse of the moment of sublimation. Aristotle reminds us that these arethe types of moments affirm the beauty of life, the connection between individuals and then between the individual and their community. Here, we must pause to attempt a missing connection. That is between cathartic action as experienced in the context of Greek tragedy and our everyday lives. How does catharsis justify restorative pain once harm has been committed? Why is catharsis so important as to justify such action and pain and where does it draw its significance?

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As Zehr put it, a restorative justice understanding of crime creates an obligation to make things right (1990). A question that follows from this is and that is important in understanding the significance of catharsis as a justification of pain is what created this relationship that restorative justice aims to restore? Maybe it is here where we can find the philosophical premise for the justification of the theory and practice of restorative justice. I argue that restorative justice (in both theory and practice) assumes the existence of what I called a “social liaison” that bonds individuals in a relationship of respect for others’ rights and freedoms (Gavrielides, 2005). Restorative justice assumes that this liaison has always been with us because it is innate in our nature as human beings. We cannot see it, but we can feel it in moments of danger or of extreme happiness. Individuals are not really strangers and that is why victim and offender are not enemies. I remember walking over London Bridge in the evening of 7 July 2005 when the multiple bombings against the city took place.There was no public transport, so all Londoners had to walk home that day. The streets and London Bridge coloured with thousands of Londoners shocked by horror and sadness. As we crossed the bridge, we looked at each other feeling a strong sense of shared despair but also of connection and care. I had never met those people, yet I was drawn to them. I wanted to tell them that we would get through this. I wanted to tell them that they are now safe and share with them my own feelings of loss and sadness. That day I felt the social liaison and indeed shared pain that connected me with my city and its people. The pre-existence of this social liaison that restorative justice aims to restore gives context and grounding for catharsis through constructive pain.To elaborate on this, I resort to the teachings of Collectivists. In Barnes’s words, Collectivists’ “oddities and accidents may be individual and independent, their movements and machinations largely self-determined, but in their essence they are necessarily bound to others; for all are adjuncts and elements of a larger whole” (Barnes, 1991, p. 1). Alexander Pope, at the end of the first Epistle of the “Essay on Man”, said: Each of us, like any other natural object, is a part of the universe; it is folly to deny the fact – and folly to wish it changed … for our good is determined and our moral comportment should be governed by our partial statues in the universal All. (Mack, 1950) On the other hand, each of us is not only a part but also a system or a whole.We are what Barnes (1988) calls “partial whole”. We are parts of a greater whole and again wholes with parts of our own. Marcus Aurelius’s work Meditations (Rutherford, 1989) is said to be the closest ancient parallel to Pope’s views (Barnes, 1991, pp. 1–23). He insisted that we are a part (μέρος) of Nature (φύσις) or of the universe (κόσμος) or of Fate (ειμαρμένη). He said that we stand to the universe as our hands and feet stand to our bodies and

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that as with organic parts we have mutually interdependent functions and activities, working together (συνεργούσιν) to a common end, a common good. In other words, “we are interdependent parts of an organised whole, and our mutual dependencies determine our nature and our function” (Barnes, 1991, p. 7). What restorative justice takes from these philosophies is their central feature of interdependency, determination and self-assurance through the realisation of the existence of others. This reality creates the social liaison which connects individuals and which might be broken if a crime occurs. Barnes said: Systems, or integral wholes, are wholes which have (at least) one special sort of partition. This is characterised by the fact that its members are united by a special relation (or set of relations); they form a family. Families are defined in terms of binary relations. (Barnes, 1991, p. 13) The broken social liaison, or what Barnes called the “special relation”, between individuals and individuals and their community is the focus of restoration. Subsequently, in restorative justice, victim and offender are treated as free individuals, responsible for their actions and decisions. They are freed from power and are equal. They are not strangers but are related because of the “social liaison” that connects them. It does not matter whether they have met before or not. What is important is that they live in the same environment; let it be social or legal. As free individuals, both have rights that need to be respected and protected. Power structures that exist to undermine this process collapse within the restorative justice framework. However, it is challenging to remove them from the psyches of the individual who has been socialised in these structures and has yet to be awakened. Therefore, with freedom also comes responsibility and obligations (Braithwaite, 2002a) among which is restoring the balance that the harm had disturbed in the community in an awakened state of mind. Therefore, what restorative justice calls us to do is to restore the broken liaison that used to bond us prior to harming. To this end, the experience of pain is welcomed and justified. But first there must be acknowledgement of the pain – or, as criminal law would call it, “admission of guilt”. Restorative pain is not transferable. It cannot be simply assigned to another, let that be a lawyer, a representative, a family member and so on. It is private and personal and has to be experienced by the parties involved. They are considered the most appropriate for this task but need to be guided and supervised by an impartial third party chosen by the community, such as a mediator. But restorative justice assumes that parties are mentally competent and hence morally culpable actors who are willing to take responsibility for their actions, not only to the parties directly injured but perhaps also to a wider community (Daly, 2000, p. 35). Under this matrix, victim and offender are seen as two sides of the same coin. The offender is not dealt with as a parasite of society but as “one of us”. Offenders distort the social liaison but this does not make them our enemy10. On the contrary,

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their actions are seen as an opportunity to prevent greater evils, “to confront crime with a grace that transforms human lives to paths of love and giving” (Braithwaite, 1989). Again, in the context of Greek tragedy and catharsis, their suffering during the restorative process is encouraged and should be welcomed as a gift. It is an opportunity to experience life through tragic sharing and pain. Restorative justice makes one more assumption. It takes individuals to be dependent on their communities; their lives gain meaning from the aggregation and their happiness is linked to the existence of the aggregation that witness it. That is why the restoration of their relationship becomes of such importance so as to justify pain and enjoy catharsis. But how realistic is this assumption in today’s society? It appears that when translating this into action, restorative justice assumes a kind of relationship between people, which is difficult to accept or even comprehend in modern Western societies. Sullivan et al. (1998) argued that restorative justice promotes a social ethic “that differs radically from that prevalent in our current political economy” (p. 16). Accordingly, many restorativists suggest that we try to understand this relationship, not by comparing it with what we live today in our societies (where the “social liaison” is less visible) but with what communities such as the Navajo Nation experience. Yazzie (1994) explains how their spiritual approach to life and human relationships leads them to define the Navajo sense of justice as peace-making. But again, isn’t this a bit far-fetched? How can we expect our modern societies to transform themselves into indigenous models of community living? To answer this question, I return to Aristotle to remind us that his concept of justice (both the fair and the lawful) is attached to the concept of ‘polis’. Polis, as a key concept in the Aristotelian thought, has been analysed thoroughly in the fields of sociology, political philosophy and political sciences. I am entering neither into the dialogue of comparing the contemporary communities’ characteristics with ones of the Aristotelian polis nor to the renewed interest of the continuing relevance of Aristotle’s philosophy to the process of rethinking community (Little, 2002). Rather, I perceive the notion of ‘polis’ as the community itself, as a complex system of human relationships, as the principal (social) place, to which citizens belong and wherein they interact. The polis of Aristotle, like that of Plato and Socrates, is the sine qua non precondition of doing justice. The polis, the city-state, is the personification of morality and justice: “justice is exercised by persons playing their proper role in the community. Justice as complete virtue insures the proper regard and concern for the happiness of the other members of the community” (Roberts, 2000, p. 352). The polis does not 10 In “Meditations”, Marcus Aurelius noted: “For in a way all things are interwoven with one another, and all things are for this reason friendly to one another. One thing is continuous with another because of the tonic motion and the conspiration and the unity of substance”. Aurelius, Marcus (167 ACE) The Mediations. Tr. Long, George,VI, xxxviii.

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exist without citizens and the citizens do not exist without the polis: póli/polítes. Political philosophy as a discipline found its origins in Plato and Aristotle.Yet what is important, according to Aristotle, is that “a citizen is one who shares in governing and being governed” (Politics, III.13, 1283b42–1284a1). Achieving well-being (ευδαιμονία) is the ultimate end-goal of the citizens. Polis, justice and citizenship are interacting, interrelated and interdependent concepts and practices that realise and are realised by the city-state. The concept of polis is aligned with the concept of restorative community – not only with the involvement of this community but also with the restoration of this community’s social bonds.This is of central interest in restorative justice. Now, given the assumption of the pre-existence of a social liaison, the central characteristic of a restorative community is that it provides the environment for growing human relations. Its size does not really matter. The existence of restorative community is a prerequisite for the liaison that relates individuals and hence justifies restorative pain. The community strives to instil a sense in individuals to respect and protect the liaison. It attempts this by keeping a liaison between itself and the individual – not a liaison of control and power but of care and mutual dependency. The imposition of State-inflicted punishment is therefore irrelevant. The self-infliction of restorative pain through community care is paramount. A central belief in the restorative thought is that “it is wiser to strengthen our relationship with offenders rather than weaken it” by segregating and ostracising them (Johnstone, 2001, p. 13). That is why “it makes sense to show them that we care about them” (Johnstone, 2001, p. 13). Accordingly, “offenders are provided opportunities and encouragement to understand the harm they have caused to victims and the community, and develop plans for taking appropriate responsibility. Voluntary participation is maximised; coercion and exclusion are minimised” (Zehr and Mika, 1998, p. 51). The pursuit of catharsis and the experience of restorative pain must be accepted. The liaison between communities of care and individuals can educate and indeed promote a feeling of responsibility, especially to those who violate their connection with other individuals and with their communities. Finally, it is important to add that the community “wants reassurance that what happened was wrong, that something is being done about it, and that steps are being taken to discourage its recurrence” (Zehr, 1990, p. 195). Consequently, the community aims to protect humans’ relations by giving them the voice and choice to amend and restore their broken liaison. The community can supervise them but should not control them. However, as Johnstone (2001) notes, “the community must be prepared to become involved in the resolution of conflict” (p. 14). In fact, in the mind of a restorativist, government cannot effectively address crime without the moral authority and informal social control provided by the community.

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4.5 Final reflections This chapter attempted to challenge the restorative justice norm in the hope that it can be elevated to a counter-power for addressing imbalances that consciously, or subconsciously, direct our actions. Bentham’s (1890) explanation of how governmentality works and power is controlled is helpful in appreciating this chapter’s intentions. He distinguished two types of control when governing State, community or even personal affairs. The first is direct and visible. It is often exercised through coercion, targeting undesired action as this is mostly seen by the sovereign and those in power.The second is less visible and not so concerned with controlling undesired action. It is directed towards the empowerment of the free individual by supporting will and motivations, which then produce particular actions. Pavlich argued that restorative justice encompasses certain values and techniques that can be seen as indirect attempts to shape the motivations (and actions) of subjects somehow … the term suggests how power both creates and is created by the subjects entangled within its orbits. One might point to the mentalities that establish apparatuses of understanding, meaning horizons to enable particular methods of ruling. (2005, pp. 9–10) To test the normative potential of restorative justice for providing such a framework, we took several steps. First, a conceptual agreement was attempted for restorative justice using Classical Greek philosophy and Aristotle in particular. We accepted that restorative justice can be morally wrong and then looked at the significance of operating restorative practice within a normative framework that provides justification for its ethically questionable processes and outcomes. Subsequently, we placed restorative justice within the larger world of theories, allowing for its potential to guide our moral decision-making, life purpose and ethics. This also opened up the possibility for restorative justice to provide a regulatory framework for a more egalitarian regime where individuals are seen as free entities with rights and responsibilities. These are freed from the interests of the sovereign as they aim to restore a liaison that has always been with us and that binds us through shared existential questions and experiences. The relationship between restorative justice and punishment helped us explore further the steps that can be taken in empowering individuals in a process of catharsis and restorative pain. This was not seen as an end in itself. Whilst writing this chapter, I consciously avoided the use of grounded theories and empirical findings. These would have distracted me from engaging in normative writing, the purpose of which is to allow the expansion of our thinking and, through this, the development of practices that we understand and implement better. Like any cathartic moment, the opportunity to reflect through this chapter should leave the reader changed or being changed. This is a process of sublimation

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of self-overcoming and of challenging concepts and norms that define our “common sense” and reality. It is in this sublimation of self-overcoming that I believe lies the biggest contribution of this chapter and indeed book. It is in this process of questioning and re-defining that I see the book’s biggest challenge and value. The book is now ready to progress with its second part, which aims to test the normative depiction of the concepts of power, race, justice and restorative justice that were the focus of the first four chapters. As we put these concepts to empirical testing, we must not lose sight of the ultimate objective that we set out to achieve. Our journey to Ithaka is not meant to take us to a place or even name a final destination. It is meant to expose us to pleasant and unpleasant experiences, risks, beauty, questioning and validation that overall will leave us wiser and empowered. Only then can we start watching ourselves and become aware of the forces that subconsciously direct our being.

References Abdulla, A. (1985). Catharsis in Literature. Bloomington, IN: Indiana University Press. Acorn, A. (2004). Compulsory Compassion: A Critique of Restorative Justice. Vancouver, BC: University of British Columbia Press. Aurelius, M. (1989 [167 ACE]). The Mediations. Trans. George Long. Aristotle. (1965).“Poetics”, in The Pocket Aristotle, edited by J.D. Kaplan. NewYork:Washington Square Press, 340–379. Barnes, J. (1988). “Bits and Pieces”, in Matter and Metaphysics, edited by M. Mignucci. Naples: Bibliopolis, 223–294. Barnes, J. (1991). “Partial Wholes”, in Ethics, Politics, and Human Nature, edited by J. Paul. Cambridge, UK: Basil Blackwell, 1–23. Barnett, R. (1977).“Restitution: A New Paradigm of Criminal Justice”. Ethics:An International Journal of Social, Political, and Legal Philosophy 87(4): 279–301. Barnett, R. (1981). “Restitution”, in Perspectives on Crime Victims, edited by J. Hudson. St. Louis/Toronto/London: The C.V. Mosby Company. Bentham, J. (1890). Theory of Legislation. London: Truber and Co. Bentham, J. (1996). An Introduction to the Principles of Morals and Legislation, edited by J.H. Burns and H.L.A. Hart. Oxford, UK: Oxford University Press. Braithwaite, J. (1989). Crime, Shame and Reintegration. Cambridge, UK: Cambridge University Press. Braithwaite, J. (2002a).“Setting Standards for Restorative Justice”. British Journal of Criminology 42: 563–577. Braithwaite, J. (2002b). Restorative Justice and Responsive Regulation. New York: Oxford University Press. Braithwaite, J. and Strang, H. (2000). Restorative Justice: Philosophy to Practice. Aldershot, UK: Ashgate. Braithwaite, J. and Pettit, P. (1990). Not Just Deserts: A Republican Theory of Criminal Justice. Oxford, UK: Clarendon Press. Christie, N. (1978). “Conflicts as Property”. British Journal of Criminology 17(1): 1–15. Claasen, R. (1995). Restorative Justice Principles and Evaluation Continuums. Clovis, California: Fresno Pacific College: National Centre for Peacemaking and Conflict Resolution. Daiches, D.R. (2003). Concepts of Justice. Oxford, UK: Oxford University Press.

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Cantor, G. (1976). “An End to Crime and Punishment”. The Shingle (Philadelphia Bar Association) 39(4): 99–114. Cohen, S. (1985). Visions of Social Control: Crime, Punishment and Classification. Cambridge, UK: Cambridge University Press. Daly, K. (2000). “Revisiting the Relationship between Retributive and Restorative Justice”, in Restorative Justice: Philosophy to Practice, edited by J. Braithwaite and H. Strang. Aldershot, UK: Ashgate, 33–54. Deleuze, G. (1983). Nietzsche and Philosophy. New York: Columbia University Press. Dignan, J. (2002). “Restorative Justice and the Law: The Case for an Integrated, Systemic Approach”, in Restorative Justice and the Law, edited by L. Walgrave. Cullompton, UK: Willan. Dignan, J. (2003). “Towards a Systemic Model of Restorative Justice”, in Restorative Justice and Criminal Justice: Competing or Reconcilable Paradigms?, edited by A.Von Hirsch et al. Oxford, UK: Hart Publishing. Duff, A. (1991). “Retributive Punishment: Ideals and Actualities”. Israel Law Review 25: 422–451. Duff, A. (1992). “Alternatives to Punishment-or Alternative Punishments?”, in Retributivism and Its Critics, edited by W. Cragg. Stuttgart, Germany: Franz Steiner, 44–68. Duff, A. (1999). “Response to Von Hirsch”, in Punishment and Political Theory, edited by M. Matravers. Oxford, UK: Oregon, 83–85. Duff, A. and Garland, D. (1997). A Reader on Punishment. Oxford, UK: Oxford University Press. Eglash, A. (1977).“Beyond Restitution: Creative Restitution”, in Restitution in Criminal Justice, edited by B. Galaway. Lexington, MA: DC Heath and Company. Elliott, E. (2011). Security with Care. Halifax, UK: Fernwood Publishing. Feinberg, J. (1965). “The Expressive Function of Punishment”. The Monist 49: 397–408. Foucault, M. (1991). Discipline and Punish:The Birth of the Prison. London: Penguin. Gavrielides, T. (2007). Restorative Justice Theory & Practice: Addressing the Discrepancy. Helsinki: HEUNI. Gavrielides,T. (2005). “Some Meta-Theoretical Questions for Restorative Justice”. Ratio Juris 18(1): 84–106. Gavrielides, T. (2008). “Restorative Justice: The Perplexing Concept. Conceptual Fault Lines and Power Battles Within the Restorative Justice Movement”. Criminology and Criminal Justice Journal 8(2): 165–183. ISSN 1748-8958. Gavrielides, T. (2011). “Restorative Practices: From the Early Societies to the 1970s”. Internet Journal of Criminology. ISSN 2045-6743 (Online). Gavrielides, T. (2012a). Rights and Restoration within Youth Justice. Whitby, ON: de Sitter Publications. Gavrielides, T (2012b). “Conceptualising & Contextualising Restorative Justice for Hate Crimes”. Journal of Social Criminology 1: 1. Gavrielides, T (2013). “Where Is Restorative Justice Heading?”. Probation Junior 5(1): 79–95. Gavrielides, T. (2015a). Offenders No More: An Interdisciplinary Restorative Justice Dialogue. New York: Nova Science Publishers. ISBN 978-1-63483-681-4. Gavrielides, T. (2015b). “A Human Rights Vision of Restorative Justice: Moving Beyond Labels”, in Offenders No More, edited by T. Gavrielides. New York: Nova Science Publishers. ISBN 978-1-63483-681-4. Gavrielides, T. (2015c). “Is Restorative Justice Appropriate for Domestic Violence Cases?”. Social Work Review XIV(4/2015): 105–121.

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Gavrielides, T. (2016). “Repositioning Restorative Justice in Europe: The Victims’ Directive”. Victims & Offenders 11(1): 71–86. doi:10.1080/15564886.2015.1105342. Gavrielides,T. (2018). Routledge International Handbook of Restorative Justice. London: Routledge. ISBN 978-1-4724-8070-5. Gavrielides,T. (2019). Collapsing the Criminal Labels of Domestic Violence: A Social and Restorative Justice Approach. London: RJ4All Publications. Gavrielides, T. (2020). Restorative Justice Theory and Practice: Addressing the Discrepancy, 2nd edn. London: RJ4All Publications, ISBN 978-1-911634-17-1. Gavrielides,T. and Artinopoulou,V.(2012).“Violence against Women and Restorative Justice”. Asian Journal of Criminology 8(1): 25–40. ISNN 1871-0131. Gavrielides, T. and Artinopoulou, V. (2013). Reconstructing Restorative Justice Philosophy. Furnham, UK: Ashgate Publishing. ISBN 978-1-4094-7071-7. Haines, K. (1998).“Some Principled Objections to a Restorative Justice Approach to Working with Juvenile Offenders”, in Restorative Justice for Juveniles: Potentialities, Risks and Problems for Research, edited by L. Walgrave. Leuven, Belgium: Leuven University Press. Hume, D. (1757). Four Dissertations. Thoemmes Continuum; Facsimile of 1757. Irwin, T. (1988). Aristotle’s First Principles. Oxford, UK: Clarendon Press. Johnstone, G. (2001). Restorative Justice: Ideas, Values, Debates. Cullompton, UK: William Publishing. Kuhn, T. (1970). The Structure of Scientific Revolutions, 2nd edn. Chicago, IL: University of Chicago Press. Lambropoulos,V. (1995). “The Rule of Justice”. Thesis Eleven 40: 1. Little, A. (2002). The Politics of Community:Theory and Practice. Edinburgh, Scotland: Edinburgh University Press. Mack, M. (1985). Alexander Pope. New Haven, London:Yale University Press. Mack, M. (1950). The Poems of Alexander Pope III. London: Methuen. Mason, A. (2000). “Restorative Justice: Courts and Civil Society”, in Restorative Justice: Philosophy to Practice, edited by J. Braithwaite and H. Strang. Abingdon, UK: Ashgate Publishing. Marx, K. (1954). Capital. London: Lawrence and Wishart. Michalowski, R. (1985). Order, Law and Crime. New York: Random House. Miller, A. (2003). An Introduction to Metaethics. Cambridge, UK: Polity Press. Mirsky, L. (2003). “Albert Eglash and Creative Restitution”. Restorative Practices E-Forum http://www.realjustice.org/library/eglash.html. Morris, A. and Young, W. (2000). “Reforming Criminal Justice: The Potential of Restorative Justice”, in Restorative Justice: Philosophy to Practice, edited by J. Braithwaite and H. Strang. Abingdon, UK: Ashgate. Mueller, G. (1958). “The Hegel Legend of Thesis, Antithesis and Synthesis”. Journal of History of Ideas 19: 411–414. Nietzsche, F. (1878). Twilight of Idols. New York:Viking Press. Nietzsche, F. (1872). The Birth of Tragedy, Ed W. Kaufmann. New York: The Modern Library. Otfried, H. (2003). Aristotle. New York: SUNY Press. Pavlich, G. 2005. Governing Paradoxes of Restorative Justice. New York: Routledge-Cavendish Price, A. (1998). “Nietzsche and the Paradox of Tragedy”. The British Journal of Aesthetics 38(4): 385. Rawls, J. (1971). Theory of Justice. Cambridge, MA: Harvard University Press. Roberts, J. (2000). “Justice and the Polis”, in Greek and Roman Political Thought, edited by C. Rowe and M. Schofield. Cambridge, UK: Cambridge University Press, 344–365.

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Soll, I. (1988). “Pessimism and the Tragic View of Life”, in Reading Nietzsche, edited by E. Solomon and K. Higgins. New York: Oxford University Press, 107. Rossner, D. (1989). “Wiedergutmachen statt Ubelvergelten”, in Tater-Opfer-Ausgleich: Vom zwischenmenschlichen Weg zur Wiederstellung des Rechtsfriedens, edited by E. Marks and D. Rossner. Bonn, Germany: Unverdnderte Auflage. Rutherford, R. (1989). The Meditations of Marcus Aurelius: A Study. Oxford, UK: Clarendon Press. Schafer, S. (1968). The Victim and His Criminal: A Study in Functional Responsibility. New York: Random House. Sharpe, J. (1980). “Enforcing the Law in the Seventeenth Century English Village”, in Crime and the Law, edited by V. Gatrell. London: Europa. Sullivan, D., Tifft, L. and Cordella, P. (1998). “The Phenomenon of Restorative Justice: Some introductory Remarks”. Contemporary Justice Review 1: 7–20. Tallack, W. (1900). Reparation to the Injured and the Rights of Victims of Crime Compensation. London: Wertheimer. von Hirsch, A. and Ashworth, A.J. (1992). “Not Cordelle Just Deserts: A Response to Braithwaite and Pettit”. Oxford Journal of Legal Studies 12: 83–98. von Hirsch, A. and Ashworth, A.J. (1998). Principled Sentencing. Oxford, UK: Hart Publishing. Walgrave, L. (1999). “Community Service as a Cornerstone of a Systemic Restorative Response to Juvenile Crime”, in Restorative Juvenile Justice: Repairing the Harm of Youth Crime, edited by G. Bazemore and L. Walgrave. Monsey: Criminal Justice Press, 129–155. Walgrave, L. (1995). “Restorative Justice for Juveniles”. Howard Journal of Criminal Justice 34: 228. Walgrave, L. (2001). “On Restoration and Punishment: Favourable Similarities and Fortunate Differences”, in Restorative Justice for Juveniles: Conferencing, Mediation, and Circles, edited by G. Maxwell. Oxford, UK: Hart. Walker, R. and Ivanhoe, Ph, eds. (2007). Working Virtue: Virtue Ethics and Contemporary Moral Problems. Oxford, UK: Oxford University Press. Woodfin, R. and Groves, J. (2006). Introduction: Aristotle. Cambridge, UK: Icon Books. Wong, S.G.D. and Gavrielides,T. (2019). Restorative Justice in Educational Settings and Policies: Case studies from Eastern Civilisations. London: RJ4All Publications. ISBN 978-1-911634-07-2. Wright, M. (1996). Justice for Victims and Offenders: A Restorative Response to Crime. Winchester, UK: Waterside Press. Wright, M. (1991). Justice for Victims and Offenders. Philadelphia: Open University Press. Yazzie, R. (1994). “Life comes from it: Navajo Justice Concepts”. New Mexico Law Review 24: 175–190. Young, I. (2000). Inclusion and Democracy. Oxford, UK: Oxford University Press. Zehr, H. (1989). “Justice: Stumbling Toward a Restorative Idea”, in Justice: The Restorative Vision, New Perspectives on Crime and Justice (Issue 7), edited by P. Arthur. Akron, PA: Mennonite Central Committee Office of Criminal Justice, 1–15. Zehr, H. (1990). Changing Lenses: A New Focus for Crime and Justice. Scottdale, PA; Waterloo, ON: Herald Press. Zehr, H. and Mika, H. (1998). “Fundamental Concepts of Restorative Justice”. Contemporary Justice Review 1: 47–55.

PART II

Rebalancing power for justice Mermaids and sirens

5 FAULT LINES, MERMAIDS AND SIRENS Power-interest battles within the restorative justice social movement

5.1 Different visions of restorative justice Since its return in the 1970s, restorative justice has had several losses and wins. I would have liked to claim that these wins were only altruistic in nature and that they were all carried out in the pursuit of the restorative justice ethos of power-sharing. But this chapter is not about campaigning for restorative justice. It is a well-intended self-critique, which I am aware will make some fellow restorativists uncomfortable. As it evolved, restorative justice, like any other social and political science, made theoretical claims and attempted practices, which either were not aligned with its core or simply were hijacking its label. Too often I have heard of restorative practices taking place for all sorts of complex offences and harms, including hate crimes (Gavrielides, 2012) and domestic violence (Gavrielides and Artinopoulou, 2012; Gavrielides, 2015). But I have seen very little evidence of actual practice with such cases. My self-critique in this chapter does not extend to these extreme claims and complex cases. Here, I refer to what I call six fault lines that have created conflicts and distraction within the wider restorative justice field. I am not referring to conflicts between the proponents and adversaries of restorative justice. These fault lines are mermaids and sirens that exist within the restorative justice movement and that are important for at least two reasons. First, the extent of the impact of each of these six fault lines on restorative justice’s implementation and development is not the same, as it varies according to their substance. Second, in order for the restorative justice movement to raise above power abuses and manipulation, each fault line needs to be treated separately. Some of these conflicts are directly related to the concept’s nature as a theory, whereas others concern issues of implementation. All in all, these conceptual conflicts do not carry the same significance. Therefore, the way we decide to

DOI: 10.4324/9781003194576-8

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FIGURE 5.1 

Fault lines within the restorative justice movement (© TGavrielides 2021)

deal with their particular implications ultimately affects restorative justice’s development and relationship with power. Figure 5.1 illustrates these six areas of conflict.They are represented with a different circle; as the circles move inwards, the disputed issue gets narrower. At the very outside circle lies the fault line that I consider to be fundamental in determining restorative justice’s role within a criminal justice context. It is vital to remember that these fault lines are not mutually exclusive. For example, a group that represents a conflict of the second level might also be for, or against, a matter of another, broader or narrower, level.

Fault line 1 The first fault line concerns the relationship between the restorative justice notion and the current criminal justice system. According to some, restorative justice is a complete, consistent and independent justice paradigm that has the power to stand alone and that should replace the current one. Some others argue that restorative justice can exist only if supported by other paradigms, namely the present justice system. This tension has accompanied restorative justice since its early days. During this period, while the retributive and utilitarian models of criminal justice were already deep-seated, restorative justice advocates such as Gilbert Cantor (1976), Nils Christie (1978), Randy Barnet (1977), Ab Thorvaldson (1978) and Howard Zehr (1990) portrayed the relationship between the then-emerging restorative justice and

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the existing criminal justice system as being ‘polar opposites’ in almost every aspect. Gilbert Cantor, for instance, argued in favour of a total substitution of civil law for criminal law processes with a view to ‘civilising’ the treatment of offenders (Cantor, 1976). Nils Christie spoke of conflicts being stolen from the parties by the State, whereas Howard Zehr saw crime through the ‘lenses’ of a new paradigm. Although these radical claims may now appear to be out-of-place and immature for their time, they make absolute sense on reflection. By introducing restorative justice as a radical concept, using exaggeration and overstatements, its proponents were hoping to make the then-new concept of restorative justice appealing enough for writers and practitioners who knew nothing about it. However, when the excitement was over and restorative justice was leaving the phase of ‘innovation’ to enter the one of ‘implementation’, its advocates (Braithwaite, 1999) started to talk about the need to combine its values and practices with existing traditions of criminal practice and philosophy. Despite the extensive dialogue that has taken place both within and outside academia, this tension exists today. Although this might appear to be understandable, what cannot be accepted is the triggering of misunderstandings and confusion, which in turn affect the restorative justice movement significantly. For example, many criminal justice agents who are convinced about the existence of a possible restorative justice threat against the status quo (and their jobs) react with strong opposition to governmental proposals (Home Office, 2003). For instance, an expert interviewee of a 2004 survey I carried out on the matter said “For some, restorative justice was given a huge boost, when people started talking about a whole paradigm shift. Then, it became clear to everyone that restorative justice is about something completely new; something that the criminal justice system doesn’t do at all. Then, there were people who thought that this gave only two alternatives: either the criminal justice system or restorative justice, and that the latter cannot make any sense at all within the former… I think it is a distortion of restorative justice to suggest that it cannot be used within prisons, or along other police practices. So, in a way, the ‘paradigm shift language’ made restorative justice look different from the criminal justice system, but … we know that this is not theoretically true. Having said that, “I don’t want to jettison the ‘paradigm shift language’, because it is compatible with the ethos of restorative justice” (Gavrielides, 2003, 2007).

Fault line 2 The second fault line concerns the way restorative justice practices are integrated into the existing criminal justice process. On one side are the restorative justice proponents who argue for restorative programmes to operate completely outside of the present criminal justice system, which can remain in place but unrelated to the restorative model (Davis, 1992). On the other side are the restorative justice advocates who believe that restorative programmes should be offered as fully fledged alternatives to the existing system, which can accommodate them through integration mechanisms.

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The subtle yet important difference between this fault line and the previous one lies mainly in the fact that the former does not speak of a potentially independent justice paradigm that can stand either in parallel or instead of the current punitive one, but of the way restorative practices can be implemented into or outside the existing system. Put another way, the question raised here is whether restorative programmes should be implemented as complementary processes or be separated from other criminal justice procedures, diverting cases out of the system altogether. In particular, some believe that having a restorative system of criminal practice in parallel to the current one is the only way that restorative programmes can function. They argue that if integrated into current traditions of punitive philosophy, some restorative practices will be co-opted by existing powers whereas others will be marginalised and gradually withdrawn. The ‘implementational’ fault line, on the other hand, argues that owing to a number of practical reasons such as retaining sufficient numbers of referrals to keep the practice viable, restorative programmes cannot stand alone. They can also create a risk of double punishment for offenders (Ashworth, 1993). This fault line is particularly visible in the restorative movement and has repeatedly led to misconceptions and disagreements. It has also created tendencies to playing up or down differences and similarities between restorative justice and the criminal justice system. These are often exemplified by a reluctance from a number of restorative justice advocates to acknowledge that the criminal justice system comprises certain restorative elements (e.g. in the form of victim impact statements, community service and victim compensation).

Fault line 3 The third fault line concerns the approaches that have been adopted by different individuals and organisations while trying to formulate a definition for restorative justice. According to James Dignan, these approaches fall into one of two groups. On one side are those who “conceive of restorative justice as a distinctive type of decision-making process”; on the other side are those who “take the view that the process-based definition of restorative justice is at best incomplete, because it has nothing to say on the subject of ‘restorative outcomes’, or how these might be defined and evaluated” (Dignan, 2002, p. 172). Those who follow the first line, adopting a process-based definition, tend to limit the scope of restorative programmes to cases that are considered appropriate for a restorative justice intervention or to those in which both parties are willing to participate and abide by the ground rules. A representative example is Tony Marshall’s definition: “Restorative justice is a process whereby all the parties with a stake in a particular offence come together to resolve collectively how to deal with the aftermath of the offence and its implications for the future” (Marshall, 1999). However, restorative programmes may appear in different shapes and forms. As Paul McCold and Ted Wachtel put it, there are ranges of restorative practices, from ‘fully restorative’ to ‘mostly restorative’ to ‘partially restorative’ (McCold and

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Wachtel, 2000). By adhering, therefore, to a narrow definition that understands restorative justice as merely a process, we risk excluding the ‘mostly restorative’ and ‘partially restorative’ programmes. On the other hand, those who adopt the second line of outcome-based definitions risk stretching the concept to include programmes which, though ultimately resulting in restorative outcomes (such as compensation and community service), might not be carried out in keeping with central restorative justice procedural rules (such as non-violent communication, effective and honest dialogue, repentance and forgiveness). In a nutshell, restorative justice is often stretched to fit elements that are not restorative in nature (second group) or is narrowed down to a notion that cannot take in all the essential features that characterise its thought (first group).

Fault line 4 This fault line concerns the number of key stakeholders in a restorative process. Some believe that in restorative justice processes key players are only the parties who are the most affected by the harm, namely the victim and the offender (Cantor, 1976). Others argue that key stakeholders encompass all those who are concerned about the offence: hence the victim and the offender, all those who care about the parties’ well-being (family and friends), all those who are concerned about the execution of the agreed sentence (prosecutors, judges and police) and finally all those who may be able to contribute towards a solution to the problem caused by the offence and are not related to the parties (victim support, community workers and counsellors). The impact of this dichotomy has been considerable on restorative justice’s implementation. For example, adherents to the first group usually accept victim-offender mediation as the truly restorative practice because it is the only programme that does not extend the participants to anyone beyond the direct victim and offender. Conversely, supporters of the second view argue that only family group conferencing and the various types of restorative justice circles and boards are genuinely restorative schemes because they include the wider ‘community of interest’ (Morris and Young, 2000, p. 10). The discussions over which group is right or wrong are plentiful, and the tension between mediation and conference practitioners is becoming increasingly serious. The main argument against the first group is that it more or less collapses the distinction between crimes and civil wrongs, falling within the ’school of Abolitionists’1, which seems to fail to acknowledge that offences may have broader social implications that go beyond the personal harm or loss that is experienced by the direct victim. The principal argument against the second group is that it creates a risk that the processes and values of restorative justice might be invoked to provide 1 The central contentions of Abolitionism are that “events and behaviours that are criminalized only make up a minute part of the events and behaviours that can be so defined” and that crime is not the object but the product of crime control philosophies and institutions (Willem, 1987).

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a cover-up not only for ‘illiberal populism’ but also for vigilantism and ‘community despotism’ (Dignan, 2002, p. 178). Conflicts within the movement can also affect communication between practitioners (e.g. victim-offender mediation and family group conference colleagues) and between practitioners and their organisations/employers (e.g. in terms of primary goals pursuit). The same has been observed regarding communication between programme designers and their organisations/employers. For instance, practitioners might change the designed programme to fit in with their funders’ agenda (Liebmann and Masters, 2001). Moreover, research has found that owing to these tensions within the movement, the same restorative programme may be implemented by different organisations of the same criminal justice system and still bear enormous differences.

Fault line 5 The fifth fault line relates to restorative justice’s measures and outcomes and their relationship with the concept of punishment. Some deny that restorative justice measures can, in any way, be punitive (Wright, 1996, p. 27). Others argue that restorative justice is not “alternative to punishment” but an “alternative punishment” (Duff, 1992).The argument of the first group is that restorative measures’ primary purpose is to be constructive.Therefore, they are not inflicted ‘for their own sake’ rather than for a higher purpose (Walgrave, 1999, p. 146). The second group has argued that this purported distinction is misleading because it relies for its effect on the confusion of two distinct elements in the concept of intention. One element relates to the motives for doing something; the other refers to the fact that the act in question is being performed deliberately or wilfully. (Dignan, 2003, p. 179) I will not go into the details of this fault line, as the book dedicates a separate section on punishment.

Fault line 6 The last fault line concerns the content and level of flexibility of restorative justice’s core principles. The tension here refers mainly to whether certain restorative principles should be respected religiously or whether practice can be carried out without adhering to them completely. Take, for instance, the principle of ‘voluntariness’. In simple words, the term means that the immediate restorative justice stakeholders (victim, offender and the community) need to decide for themselves to take part in the restorative process. However, the implementation of this principle through the different restorative programmes has divided restorative justice proponents between those who claim that a certain level of coercion is acceptable

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if restorative justice is to work side by side with the current criminal justice system and those who believe that if the principle is not fully respected, then practice should not be called restorative. For example, Howard Zehr and Harry Mika (1998) attempted to provide a list of restorative justice principles in an effort to clarify what constitutes restorative justice. They explained that the impetus for their study came from fears that “some of the programmes defined as restorative do not appear to contain some of the essential elements originally associated with restorative justice” (Zehr and Mika, 1998, p. 47). In particular, they feared that “retributive and punitive programmes are simply being repackaged as restorative justice initiatives, a reflex of the growing popularity of the concept, and/or the availability of financial recourses” (Zehr and Mika, 1998, p. 49). Their list of principles was composed of three major headings: (a) crime is fundamentally a violation of people and interpersonal relationships, (b) violations create obligations and liabilities and (c) restorative justice seeks to heal and put right the wrongs. Under each of these headings, a number of secondary and tertiary points specified and elaborated on the general themes, providing elements which according to their opinion can address the critical components of one vision of restorative justice practice. However, the content and particularly the level of flexibility of their principles differ significantly from other lists. For instance, McCold recorded four principles. He said restorative justice is (a) moralising, (b) healing, (c) empowering and (d) transforming (McCold, 1998). Apparently, these differ from Zehr and Mika’s principles. According to McCold, Zehr and Mika’s principles failed to constitute a common basis for agreement among his 29 research participants. One of the principal causes that prevented consensus was the flexibility that these principles should or could have in practice (McCold, 1996). Returning to the principle of voluntariness, Zehr and Mika claimed that in restorative justice: “Voluntary participation by offenders is maximised; coercion and exclusion are minimised. However, offenders may be required to accept their obligations if they do not do so voluntarily” (Zehr and Mika, 1998, p. 51). Some others, however, do not accept coercion in any form, whereas others do not consider the matter to be in any way different from what we encounter within existing criminal procedures (Erez, 1994).

5.2 Power-interest battles within the restorative movement The six fault lines and the different visions of restorative justice leaders are often the source of power-interest battles that exist among different stakeholders and within the restorative justice movement.These tensions are intensified and the power-interest battles between us are exacerbated, as the current framework of justice continues to be exclusively owned by the top-down structures representing the status quo.This is an important point in the current climate of unprecedented reforms, following the devastating effects of Covid-19 on the world economy and social fabric. The relationship between these tensions and the power battles within the restorative justice movement is not a one-way street. On the contrary, the fault lines

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feed the power battles and vice versa. The power conflicts taking place within different professional circles encourage and advance the already-existing mermaids, tensions and fault lines. For example, evidence has suggested that the disagreements in the restorative justice conception seem to be reflective of how people come to learn about it (Home Office, 2003). Some practitioners may come from a practice-­ oriented approach (Umbreit and Zehr, 1996; Morris and Maxwell, 1998), whereas others might have a more academic focus (Sherman et al., 2000). Research has also pointed out a number of differences, which are experienced in the outcomes and processes of restorative justice practices that are carried out by professionals with and without a criminal justice background and again between paid staff and volunteers (Victim Support, 2003). Conflicts within the movement can also affect communication between practitioners (e.g. victim-offender mediation and family group conference colleagues) and between practitioners and their organisations/employers (e.g. in terms of primary goals pursuit).The same has been observed regarding communication between programme designers and their organisations/employers. For instance, practitioners might change the designed programme to fit in with their funders’ agenda (Liebmann and Masters, 2001). Moreover, research has found that owing to tensions within the movement, the same restorative programme may be implemented by different organisations of the same criminal justice system and still bear enormous differences (e.g. victimoffender mediation carried out by ‘Mediation UK’ and victim-offender mediation carried out by ‘Crime Concern’2). On the other hand, conceptual misunderstandings seem to affect funding applications. Funding bodies tend to misunderstand the purpose, extent or character of proposed restorative projects, while different practitioners and organisations may abuse the concept to attract resources specifically allocated to restorative justice (Gavrielides, 2007, 2020). This pretence on behalf of these applicants cannot always be detected since funders are not equipped with a comprehensive schema that would have laid down the sine qua non standards and principles of restorative justice practices. On top of this confusion, conceptual conflicts seem to have affected the primary and secondary parties’ level and quality of participation. Research has shown that owing to misconceptions, victims and offenders have false hopes about the restorative justice process and sometimes its outcomes. This usually leads to disappointment or unwillingness to participate (Home Office, 2003). In addition, what seems to have been affected by these tensions is the way evaluation is carried out. For example, evaluators tend to follow funding bodies’ understanding of restorative justice, aiming to reach the targets that were set according to these priorities. David Miers, for instance, in his international study for the Home Office, concluded that without a clear and comprehensive understanding of restorative justice, “both analysis and evaluation are hampered” (Miers 2 For example, see the procedural guidelines of the Mediation and Reparation Service (MARS) project that was run by Crime Concern in the UK (Liebmann and Masters, 2006).

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et al., 2001, p. 88). As a rule, evaluators should not be concerned with the policy decision that will eventually follow their work or whether to continue with the given programme or action. This is primarily a political decision that involves a number of moral and ideological factors that the evaluator may attempt to clarify but should not decide. That is why a good evaluator focuses on collecting information relevant to all the identifiable aims which different parties may have. For these reasons, the ‘what happened’ question is more appropriate than the ‘what works’ one, as the former adapts research techniques to the exigencies of different kinds of information. A reminder: this book is not about campaigning for a paradigm revolution. It is about rebalancing power through the existence of and the survival of various negatives that may create a more even distribution of justice and fairness. Without a restorative justice argument, the current justice system and indeed our way of living remain unchallenged. Similarly, without the top-down, hierarchical justice system and the existing powers of control, restorative justice remains unchecked.Therefore, one must ask what purpose the aforementioned fault lines are serving.

5.3 A distracted restorative justice movement In order to answer this question, first we must accept that, as restorativists, we are not immune to the virus of power abuse simply because we are part of the machinery that is set up by communities to defeat it. If we are ready to expose ourselves and our overt or hidden biases and will for power, then we may also be able to accept that each fault line can be a reason for interest battles with other restorativists whether these are organisations or individuals. And here is my gravest concern. The power-interest battles that are driven by the fault lines of restorative justice have severe consequences for the movement. In fact, I claim that if not addressed, they will surely lead to its demise. The cooption of restorative justice and its exclusive delivery by top-down structures of existing power systems that were set up to serve the status quo are two of the most extreme outcomes that some (with whom I joined) dared to predict (Johnstone, 2018; Pavlich, 2018). But a number of opportunities are also missed because of these sirens and battles, which are distracting the restorative justice leaders, practitioners, policy-makers and researchers. I will mention three examples to illustrate this point.

Opportunity for restorative justice no. 1: Missed? In 2013, I was invited to give a series of lectures in Vancouver, British Columbia as part of restorative justice week held every year in November. My week started with meeting a dozen deputy ministers, who at the time were working on a provincial grand plan to reform and improve the criminal justice system. Following the August 2012 Geoff Cowper QC report “A Criminal Justice System for the 21st Century”, the Minister of Justice committed to bringing change.

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I left the meeting with a strong sense of hope but with a bitter aftertaste of reality. Most of the discussion was around cost savings and what one would call ‘the business case for restorative justice’. After mentioning the usual thin evidence, I proceeded by saying: If we are trying to replace an apple that costs 5p with an orange that costs 4p and which promises the much-needed vitamin C, then we have already lost in our attempt to improve our diet. Similarly, restorative justice cannot be seen a cheaper alternative to the criminal justice system that has parallel benefits.Yet here we are debating for a peculiar version of restorative justice that must meet top-down priorities if the powerful are to continue to invest in it. I must admit that my answer to the deputy ministers was not evidence-based. It was an emotional reaction to what I was experiencing at home. At the time, the world economic crisis in combination with the change in the UK government brought a number of institutional restructures and a shift in the philosophy on public spending.The government was clear about its intentions, acknowledging that the criminal justice system was failing. Their key concern principally stemmed from the high reoffending rates (i.e. one in two offenders returns to custody, rising to 75% of young offenders)3. As a result, a number of ministerial endorsements were made, and millions of pounds were spent on training police officers, prison and probation staff on restorative justice. I expressed my scepticism, alerting people to the lessons of past when the Labour Government launched its own public consultation, which resulted in their 2003 plan for introducing restorative justice in the criminal justice system (Gavrielides, 2003). Billions of pounds were spent on various research pilots, a ‘restorative justice unit’ within the Home Office, conferences and training. But restorative justice was never put forward as a consistent and available option for victims, offenders and their communities. I observed then what I was again observing with the new government: a weak restorative justice movement, which competed for the same attention and money, often without terms or reflection about the longterm consequences of their alliances.What was even more saddening on both occasions was that our very movement ostracised anyone who dared to raise the mirror of responsibility and ask for self-reflection. Therefore, I was surprised when in September 2012, I was asked to join a national restorative justice steering group that was put together by the Ministry of Justice to construct a strategy that would support a well-intended legislation that would introduce restorative justice at every stage of the criminal justice system. I accepted this invitation with hesitation. A couple of months later, the new strategy ‘Restorative 3  According to the Offender Management Caseload Statistics, in 2009, the UK had 151 prisoners per 100,000 population, the second highest rate in Western Europe (below Spain) (Ministry of Justice, 2010a). These failings were at an annual cost of £10 billion (National Audit Office, 2010).

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Justice Action Plan for the Criminal Justice System’ was formally announced. In the words of the Ministry of Justice: The Government’s plan for a rapid expansion of restorative justice – where victims of crime are given the opportunity to confront their offender – was boosted today with the publication of a new nationwide action plan for the criminal justice system to coincide with International Restorative Justice Week4. This increased interest in restorative justice had a direct impact on probation services. For example, as part of its commissioning intentions for 2013–2014, the National Offender Management Service (NOMS), the key governmental body funding probation services in England and Wales, set out a specific intention for both prisons and probation trusts to continue to develop sustainable capacity and capability to deliver effective face-to-face victim-offender conferencing, working with partners. In their 2012 publication, NOMS noted: The Government’s proposals for reforms to the sentencing framework and the management of offenders outline a commitment to increase the use of restorative justice. Additionally, the reforms on Community Sentences include extending the use of restorative justice into the post-conviction/pre-sentence period. NOMS’ commissioning intentions for 2013–14 reflect the ministerial and Agency commitment to deliver high quality restorative justice for victims and offenders, and ask prisons and probation Trusts, working with partners, to continue to develop their capacity to deliver effective victim-offender conferencing. Some prisons and Trusts are already delivering sustainable victimoffender conferencing whilst others are still in the planning phase… NOMS aims to help Trusts and prisons develop the capacity to respond to requests for restorative justice post-conviction; ensure that resource is targeted where evidence suggests that it is likely to have the best outcomes; and ensure that the restorative justice models delivered are effective and sustainable. But it was not all good news for celebration. I remember Φοβού τους Δαναούς και δώρα φέροντας (Latin: timeo Danaos et dona ferentes) – fear the Greeks bringing gifts. Just like the Trojans, the restorative justice movement was letting the gifted Trojan horse into its domain. As I felt that the proposed structure and action points for the implementation of the strategy and proposed legislation were top-down, ignoring what I consider to be the heart and soul of restorative justice, I humbly withdrew my membership to the national steering group. In an open letter to the responsible minister, I published

4  http://www.justice.gov.uk/news/press-releases/moj/plan-to-give-more-victims-avoice-restorative-justice (accessed in March 2013).

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my concerns5, which again were met with criticism and complaints … by many restorativists. As governments around the world take interest in restorative justice and set up new strategies, legislation and funds to promote it, their role must be clear. Restorative justice is not a product that can be mainstreamed and rolled out nationally. It exists in small neighbourhoods, in homes, churches, schools, tents, humid mediation centres and, yes sometimes, in big fancy offices. Putting central government organisations or the government’s usual suspects, big national bodies and celebrity restorativists that can manage and indeed control how restorative justice is rolled out, is not only a waste of public money but also an insult to the work that so many people did and will continue to do despite being excluded or recognised. It is also our responsibility as restorativists to adhere to the restorative justice principles that we signed up to promote and implement. By definition, any government has an expiry date. This creates political motivations for quick policy changes. I am fearful that, as restorative justice is being explored for its potential to bring about change, quick and ready-made packages are introduced.These will harm its delivery in the long term. Mainstreaming restorative justice on the cheap is not the answer. Providing one- to three-day training packages to police officers, probation staff and prison guards will not deliver the restorative vision. Funding the usual suspects to control a top-down register for people who are practising restorative justice will not increase public confidence in restorative justice; it will destroy it. It will also alienate the ‘big society’ of volunteers giving their time to keep local justice balanced.

Opportunity for restorative justice no. 2: Missed? My second example of an opportunity that may have been missed for restorative justice because of its internal power battles is to be found beyond the UK boarders. Over the last 20 years, the European Union invested considerable resources in supporting policies and legislation that promote mediation and other restorative justice practices at the national and regional level. Alongside these developments, a series of legal safeguards, standards and regulations were introduced to mainstream restorative justice in European criminal justice systems6. 5  https://www.iars.org.uk/online/2012/11/26/the-mcdonaldisation-of-a-communityborn-and-community-led-ethos (accessed in December 2020). 6  Some examples are the following: The Position of the Victim in the Framework of Criminal Law and Procedure – Council of Europe 1985 Recommendation No R (85); Assistance to Victim and the Prevention of Victimisation – Council of Europe 1987 Recommendation No R (87)21; The Social Mission of the Criminal Justice System – Restorative Justice – Council of Europe 2005 Resolution No 2; Mediation in Penal Matters – Council of Europe 1999 Recommendation No R(99); The Standing of Victims in Criminal Proceedings, European Union 2001 Framework Decision, Resolution 40/43 1985; Establishing Minimum Standards on the Rights, Support and Protection of Victims of Crime, EU Directive 2011/0129; EU Directive and Regulation on the Mutual Recognition of Protection Measures.

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Long battles have been fought by the victims and restorative justice movements to move the victim from the margins to a more central position in the criminal justice process. A small victory was the passing of the European Commission Victims’ Directive7. Following this obligatory higher law, European governments had no other option but to become more responsive to victims’ needs and voices. In particular, the Directive establishes minimum standards and safeguards that must be enforced by all criminal justice service providers to protect victims of crime as well as family members of victims killed by a crime. Restorative justice and the development of appropriate standards and protocols feature prominently in the Directive’s articles. That is why my heart jumped when the Justice Minister said the following as he was introducing his government Restorative Justice Action Plan: I want restorative justice to become something that victims feel comfortable and confident requesting at any stage of the criminal justice system. But this process has to be led by the victim and be on their terms. If it doesn’t work for the victim, then it should not happen. These are not words that you get to hear often. There is a growing acknowledgement that the individual, the victim, and their family are the keys to making restorative justice, or I should just say justice, happen. And there is one more reason why the interest of criminal justice agencies in victims and restorative justice is increasing.The literature seems to suggest that often offenders want to make amends. This can help desistance and integration (NOMS, 2012a, 2012b). Through work with victims and communities, this target can be achieved. This does not necessarily mean that offenders have to meet their victims. However, they can be encouraged to find a role that they wish to take in the restoration of what happened. Focusing on restorative justice and probation services, the 2012 joint thematic inspection by HMIC, HMI Probation, HMI Prisons and the HMCPSI8 found that the probation trusts that they inspected for restorative justice had “recognised [restorative justice’s] contribution to improved community confidence”. According to the report, applying restorative justice where it is appropriate can also help improve outcomes in relation to reintegration and recidivism of offenders. The report noted that each trust that they inspected for restorative justice “recognised the multiple outcomes that could be achieved – in particular increased victim satisfaction and reductions in reoffending” (Criminal Justice Joint Inspection, 2012, p. 58). They went on to say: “We found impressive examples of the benefits that restorative justice can bring to victims and offenders in complex or difficult 7  https://eur-lex.europa.eu/legal-content/en/TXT/?uri=CELEX%3A32012L0029 (accessed in December 2020). 8  This resulted in the inspectorate report ‘Facing Up To Offending: Use of Restorative Justice in the criminal justice system’.

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cases” dealt with by probation services. Further examples where restorative justice has been used successfully by other probation trusts need to be identified. But this second momentum was also missed as victims’ voices were again ignored by the movement which got distracted by gifts from the top. In its Action Plan, the Ministry of Justice identified one single restorative justice organisation for creating, enforcing and monitoring standards and quality control restorative justice. In March 2013, this organisation announced, on behalf of the government, a consultation on what they called “Restorative Service Standards” and the “Restorative Service Quality Mark Framework”9. Alongside these documents, this restorative justice organisation produced the “restorative justice monitoring and data collection templates as a requirement for the quality mark”. In order to qualify for a mark, restorative justice practitioners now had to complete an online portfolio to show how each to these indicators are met. Once this was done, “a formal assessment by a consultant” would follow. In order to enter into the process of assessment, a fee ranging from £3,000 to £1,500 would have to be paid. And all this was directed, managed and controlled by a restorative justice organisation, not the government. A closer look at this organisation’s accounts would show that over 90% of its funding was coming from government while its annual turnover saw an incredible sudden increase due to this governmental initiative for reform and introduction of restorative justice. A basic research into its staffing also showed that its Chair of the Board was a senior civil servant who was also chairing the Youth Justice Board, which was set up by statute to manage the funds and services of the youth justice system. As these facts were too obvious to miss, the consultation document stated that the proposed standards and quality mark were drafted by an “expert steering group”. However, who selected its members and how remain unknown. What is certain, however, is that victims were not genuinely included. What is also certain is that organisations representing and advocating for victims were also excluded from the process.This criticism is not meant to attack this particular restorative justice organisation, which in fact has now gone back into the shadows with a minor budget and impact. The intention is to self-criticise our actions as restorativists and simply ask ourselves whether our role has a price. In this example, the government passed on its power to a restorative justice organisation appearing to be the voice of practitioners and victims. It did not share it with people; it paid this organisation to do its own bidding for controlling power within the movement and indeed create top-down structures through national registers. In essence, if governments and restorative justice organisations are truly committed to promoting restorative justice and deliver its underlying value of powersharing, then they need to work closer with the communities that create the various models through which this abstract umbrella notion of restorative justice is delivered, whether it is called mediation, circles or conferencing. Try to mould and

9 See http://www.restorativejustice.org.uk/news/rsqmconsultation/#.UU7ia7_DpUQ (accessed in March 2013).

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standardise restorative justice and all you will achieve is its McDonaldisation10. Its diversity and ability to deliver equity and fairness at a local level, its creativity and innovation will all die out. Ignoring victims while imposing top-down controls on restorative justice is not the way forward.

Opportunity for restorative justice no. 3: Missed? My third example relates to claims that some restorativists have made in their papers, organisational statements and funding applications about the financial benefits that restorative justice brings. This example is pertinent to the post Covid-19 era, which will see unprecedented cuts and policy restructures caused by the world economic downturn. Implementing restorative justice in a difficult financial climate instantly brings up the question of cost and benefit. Although data on the financial viability of restorative justice are extremely limited, claims have been made by our movement that it is a cheaper option for governments. For example, according to Shapland et al., restorative justice can deliver cost savings of up to £9 for every £1 spent (2008).Victim Support also claims that if restorative justice were offered to all victims of burglary, robbery and violence against the person where the offender had pleaded guilty (which would amount to around 75,000 victims), the cost savings to the criminal justice system – as a result of a reduction in reconviction rates – would amount to at least £185 million over two years. (2010, p. 29) Furthermore, according to Matrix Evidence (2009), restorative justice practices would likely lead to a net benefit of over £1 billion over ten years. The report concludes that diverting young offenders from community orders to a pre-court restorative justice conferencing scheme would produce a life-time saving to society of almost £275 million (£7,050 per offender). The cost of implementing the scheme would be paid back in the first year, and during the course of two parliaments (10 years) society would benefit by over £1 billion (2009). Time as a ‘unit cost’ has also been recorded in the scarce available literature. For instance, according to the 2010 Association of Chief Police Officers (ACPO) survey on restorative justice, the average time taken by Hertfordshire police officers dealing with minor crimes through ’street restorative justice’ was 36 minutes as opposed to 5 hours 38 minutes spent on issuing reprimands. Translating this into cost meant £15.95 for restorative justice and £149.79 for a reprimand. Similar savings were found for Cheshire police (£20.21 vs. £157.09) (Cheshire Operation Quest 2, 2009). 10 Taken from the blog Gavrielides, T. (2012), The McDonaldisation of a communityborn and community-led ethos, https://www.iars.org.uk/online/2012/11/26/themcdonaldisation-of-a-community-born-and-community-led-ethos/.

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The belief that restorative justice can cut costs had an impact on funders’ intentions and priorities. For example, in the UK, investments in restorative justice restarted in 2013 with £29 million that went to Police and Crime Commissioners11 to help deliver restorative justice for victims over three years. The money was part of a wider allocated funding for victims of at least £83 million through 2015–2016. Furthermore, the government passed the Crime and Courts Act 2013, inserting a new section into the Powers of the Criminal Courts (Sentencing) Act 2000. As a result of this Act, since December 2014, the courts have had the power to defer the passing of a sentence to restorative justice provided that all parties agree. The Act also requires that anyone practising restorative justice have regard to the guidance issued by the Secretary of State12. Interestingly, both the legislative and the judiciary overlooked this condition for restorative justice sign-off by the executive independently of its origin. Put another way, if the restorative justice movement were to deliver restorative justice within the criminal justice system, this would need to be under the watchful eye of the executive (i.e. the responsible Minister at the time). Not to my surprise, many restorative justice organisations saw this development as a great victory that would put restorative justice on the map while allowing its roll out. It was greeted with enthusiasm and once again my voice was amongst the few who were seen as the trouble makers of our movement. This change in legislation also enabled a selection of pilot schemes to be undertaken as ‘pathfinders’. In particular, the Ministry of Justice provided funding to three probation trusts to enable them to develop local models for the delivery of presentence restorative justice in magistrate’s courts. Furthermore, with match funding from the Underwood Trust, it invested £2 million to run what the press called “The first victim-led restorative justice programmes”13. These were run “in crown courts across England and Wales in an attempt to cut reoffending rates”. Further substantial funding was also invested by the same Ministry for setting up a register of restorative justice practitioners. A few years later, the pathfinders and register were independently evaluated and not to my surprise, the results were rather disappointing (Kirby and Jacobson, 2015). Over an 18-month funding period and the engagement of ten Crown Courts, only 55 pre-sentence restorative conferences and 38 “alternative restorative justice activities” were carried out. In total, 2,273 victims were identified; contact was successfully made with 1,201, of whom 446 expressed an initial interest in restorative justice. The defendant pleaded guilty in 179 of the cases with interested victims, 11  The Police Reform and Social Responsibility Act 2011 established a Police and Crime Commissioner (PCC) for each police force area across England and Wales. In London, the elected Mayor is the equivalent of the PCC and is responsible for the totality of policing in the capital. 12  In May 2014, non-statutory guidance was issued by the Ministry of Justice that provides an overview of the processes involved in the delivery of pre-sentence restorative justice in accordance with section 1ZA. 13  https://www.theguardian.com/law/2013/dec/01/restorative-justice-pilot-schemecourts (accessed in February 2017).

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which resulted in 147 adjournments for restorative justice (Kirby and Jacobson, 2015). The evaluation results summarised that “[t]he overall number of completed restorative justice activities was lower than had been anticipated at the outset of the pathfinder; this reflects a number of significant challenges to implementation” (Kirby and Jacobson, 2015, p. 4). These disappointing results of the investments in “victim-led restorative justice” alarmed Parliament and consequently a public inquiry was held14. An impressive amount of written and oral evidence was submitted, resulting in Parliament saying that “ring-fencing funding to Police and Crime Commissioners may appear superficially attractive, but we do not believe budgets for restorative justice could be set in a reliable or sensible manner” (House of Commons, 2016, p. 3).The report also reads: It is too soon to introduce a legislative right to access restorative justice services, but such a goal is laudable and should be actively worked towards. We believe a right to access such services should be included in the Victims’ Law, but that provision should only be commenced once the Minister has demonstrated to Parliament that the system has sufficient capacity. (p. 4) Parliament also reminded government and other stakeholders that the evidence on the financial effectiveness of restorative justice is still thin. Following evidence from various experts15, the Parliamentary report concluded that “undue reliance should not be placed on the statistic that £8 is saved for every £1 spent on restorative justice” (Shapland et al., 2008). I could not feel more embarrassed as a restorativist and a researcher with membership to the restorative justice movement. How did we get it so wrong, and now can such an opportunity be missed? At the time, these questions were difficult to ask, let alone answer. A few years later, as these funds started to dry out, accountability was sought within the movement. It became clear that our internal interest battles and the singing of the sirens were just too strong to ignore. These kinds of opportunities are not unique to the UK. They serve as examples for anyone forming part of our movement independently of location. They are also far from being over as once again I was approached to express an interest in joining in 2021 a new All-Party Parliamentary Group (APPG) for Restorative Justice. My first thought was “here we go again”16!

14  https://www.parliament.uk/business/committees/committees-a-z/commons-select/ justice-committee/inquiries/parliament-2015/restorative-justice-inquiry-15-16/ (accessed in February 2017). 15  See  http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/justice-committee/restorative-justice/oral/32108.pdf (accessed in February 2017). 16  Further can be obtained from https://www.thejusticegap.com/cheap-justice-or-restorative-justice/ (accessed June 2021).

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5.4 Moving forward restorative justice as a social movement If we are to gain anything from the self-criticism that this chapter attempted, we must identify a way forward for addressing our internal battles. Indeed, becoming the watcher and accepting our weaknesses are the first steps in rectifying our own power abuses. So, what is the next step? The way forward for the restorative justice movement is to free itself from the expectations that are attached to current systems of hyperarchy, monopoly and top-down justice by starting to see and indeed developing itself as a social movement. This social movement can be founded upon the values and the restorative justice philosophy that have been presented in this book while drawing power from existing normative and practical tools that are available to us and have been the results of many campaigns, riots, radicalism and sacrifices. One such tool is human rights, a concept that will be explored in detail by this book. But what does it mean to become a social movement, and what is a social movement? Artinopoulou explored the contribution of new social movements in criminology, focusing on the law-making process and criminal justice policy. She defines social movement “as the dynamic and interactive social construction that is shaped and developed in a certain social and cultural context and can be distinguished by the mass or the crowd or other organizations such as the political parties” (Artinopoulou, 2000, p. 16). Contestation and demand for social change, inclusion of new social practices and new policies in the agenda of the decision-making centres, and collective reactions to certain formal policies are the major criteria of social movement’s definition (Artinopoulou, 2010).Therefore, I must ask: are these criteria fulfilled by the restorative justice movement? Based on Giddens’s (1990) perspective on historical, social and cultural continuities of criminological theory, research and action, I argue that the restorative justice movement reflects a continuum in criminological thought. Restorative justice contests, questions and criticises the punitive and retributive character of traditional justice systems. This is reflected in the inefficiencies of crime reduction. Contemporary criminal justice systems are in crisis. Restorative justice focuses on individual accountability, empowerment and responsibility as well as the healing of social relationships in the community. Community participation reflects the modern “deliberation democracy” model and gives meaning to the community which discusses, participates, realises, undertakes responsibility and is self-regulated. To support my argument, I will explore the concept of topos (τόπος) as this is analysed in Aristotle’s Rhetorics and Topics. Hermeneutics and definitional attempts to explain the word are many and broad, stemming from logic and argument theories as well as philosophy (Bochenski, 1951; Evans, 1977; Slomkowski, 1997; Rubinelli, 2006). An Aristotelian topos (‘place’, ‘location’) is an argumentative scheme that enables a dialectician or rhetorician to construe an argument for a given conclusion; one topos can be used to construe several different arguments17. 17  Stanford Encyclopaedia of Philosophy http://www.iep.utm.edu/emp-symp/ (retrie­ ved in January 2021).

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Therefore, I use topos as the partial argument derived from the dialectical process of identifying the origins of restorative justice in Aristotelian thought. To this end, new questions are posed and normative assumptions are submitted in relation to the restorative justice movement. For example: • • • •

Which are the topoi (τόποι) where Aristotle and restorative justice align? How do they affect the restorative justice values and practices? Are they also found or reflected in justice institutions? Are they related to human rights doctrines and practices? If so, how?

The first part of the book found topoi (τόποι) in Aristotelian thought and the writings of other contemporary philosophers, including the collectivists. Here, I develop them further by identifying them as restorative justice τόποι: 1. Restorative justice is a kind of (social) justice aiming to restore the harm and the relationship induced by law violations. 2. Restorative justice’s primary values are equity and fairness. These are central human rights values that have been agreed by the international community, including the Universal Declaration of Human Rights. 3. Restorative justice punishment involves the processes of catharsis. 4. Restorative justice presupposes the accountability and responsibility of the wrongdoer. 5. Restorative justice is realised in the community (polis) with the participation of active citizens. 6. Restorative justice aims for the well-being (ευδαιμονία) of citizens. Τόποι are the places where the restorative justice norm lies. Τόποι are to be found in the core of restorative justice values and practices. Therefore, they should also construct the normative arguments for restorative justice movement. Τόποι for restorative justice are the fields of social change. Subsequently, on the criterion of a social movement’s impact in law making and public policies, restorative practices are widely introduced in national and supranational, binding and non-binding regulations. In the last 30 years, restorative justice practices have widely affected traditional criminal justice systems, including international organisations and European institutions. The criterion of collectivity (collective reactions) and the adoption of a movement’s demands by a wide range of interest or social groups are often realised in public motivation, media coverage, and volunteer work for the achievement of a movement’s aims. Nevertheless, this criterion is too broad and ambiguous and presents many methodological difficulties in measuring and assessment the collective reactions at a macro level. Restorative practices are implemented in the community at the meso and micro level through interpersonal communication. Social, clinical and cognitive psychology has the proper methodologies and tools to assess the collective and individual reactions and the feelings of participants. As such, scientific

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interest does not coincide with public information and sensitisation about restorative justice values, objectives and practices. Furthermore, the media (re)produce the stereotypical and punitive representations on crime and criminality, which leads to penal populism (Hough and Moxon, 1985; Melossi, 2000; Pratt, 2006). For Aristotle, restorative justice is a form of social justice that is applied and practised in everyday life with an aim to decrease social and financial inequalities. The internalisation of the restorative justice ethos on the part of the individual (the citizen) can define the wider context of the different theories of social control; such internalisation of the primary principles of socialisation facilitates both the effective social and individual control of primordial instincts and the completion of the individual’s personality as a member of the community (the topos that, in turn, has facilitated this development). Hence, this process and indeed this interaction are best understood and concretely realised in relation to a specific sociocultural (either ideal or material) context. In conclusion, I define restorative justice τόποι as the ground where power-sharing, justice, respect, lenience and human rights are nurtured and grow up together. They have common philosophical origins and values and they promote the kind of social change that creates the space for social equality. In this light, human rights activism is spread worldwide and – why not – empowers restorativists in social change. Restorative justice τόποι are also human rights τόποι, and as will later be argued, they can be the two forces that counteract the top-down structures of power and control, persistent inequalities and poverty. In the current global crisis caused by the health and socioeconomic impacts of Covid-19, the values underpinning human rights and restorative justice are being tested. Peace, well-being, justice, respect and equity are still the social demands in every corner of the planet.The priority level and hierarchy of these values, not their contents, change in different societies. In John Braithwaite’s terms, there is a long way to go before we can be evidence-based about which of the colours in the restorative justice rainbow really do enrich justice. There is even further to travel before we discover whether those colours can come together to form a bright white light to lead us from the darkness of the Guantanamo Bays and the school exclusion policies of this world. (Braithwaite, 2006, p. 407) As we find out more about these colours and we develop ourselves into a social movement detached from the promises, mermaids and sirens that have destructed the movement, bridges must be built and we can only start with small steps in our localities, our fellow practitioners, our neighbours.

References Artinopoulou, V. (2000). Criminological Aspects of New Social Movements, Athens, Greece: Nomiki Bibiothiki. (in Greek).

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Artinopoulou,V. (2010). “The ‘Gray Zones’ of Restorative Justice”, in Farsedakis Honorable (ed.), Criminality, Confrontation and the Science of Criminology,Vol. I, Athens, Greece: Nomiki Bibliothiki, pp. 755–775. Ashworth, A. (1993). “Some Doubts about Restorative Justice”, Criminal Law Forum (4): 277. Bochenski, J.M. (1951). Ancient Formal Logic, Amsterdam: North-Holland Publishing Company. Braithwaite, J. (1999). “Restorative Justice: Assessing Optimistic and Pessimistic Accounts”, Crime and Justice: A Review of Research 25: 1–127. Braithwaite, J. (2006). “Doing Justice Intelligently in Civil Society”, Journal of Social Issues 62(2): 393–409. Barnett, R. (1977).“Restitution: A New Paradigm of Criminal Justice”, Ethics:An International Journal of Social, Political, and Legal Philosophy 87(4): 279–301. Cantor, G. (1976). “An End to Crime and Punishment”, The Shingle (Philadelphia Bar Association) 39(4): 99–114. Criminal Justice Joint Inspection (2012). Facing up to Offending: Use of Restorative Justice in the Criminal Justice System, London: CJJI. Davis, G. (1992). Making Amends: Mediation and Reparation in Criminal Justice, London: Routledge. Dignan, J. (2002). “Restorative Justice and the Law: The Case for an Integrated, Systemic Approach”, in L. Walgrave (ed.) Restorative Justice and the Law, Cullompton, UK: Willan. Dignan, J. (2003). “Towards a Systemic Model of Restorative Justice: Reflections on the Concept, Its Context and the Need for Clear Constraints”, in M. Schiff (ed.) Restorative Justice and Criminal Justice: Competing or Reconcilable Paradigms?, Oxford, UK: Hart Publishing. Duff, A. (1992). “Alternatives to Punishment-or Alternative Punishments?”, in W. Cragg (ed.) Retribudivism and Its Critics, Stuttgart, Germany: Franz Steiner. Erez, E. (1994). “Victim Participation in Sentencing and the Debate Goes On”, International Review of Victimology 3: 17–32. Evans, J.G. (1977). Aristotle’s Concept of Dialectic, Cambridge, UK: Cambridge University Press Fagan, A. (2005). Human Rights. Internet Encyclopedia of Philosophy (http://www.iep.utm. edu/hum-rts/). Home Office (2003). Restorative Justice:The Government’s Strategy, London: Home Office. Hough, M. and Moxon, D. (1985). “Dealing with Offenders: Popular Opinion and the Views of Victims. Findings from the British Crime Survey”, The Howard Journal 24: 160–175. Gavrielides, T. (2003). “Restorative Justice: Are We There Yet? Responding to the Home Office’s Consultation Questions”, Criminal Law Forum 14(4): 385–419. 1046–8374 (Print) 1572–9850. Gavrielides, T. (2007). Restorative Justice Theory & Practice: Addressing the Discrepancy, Helsinki: HEUNI. Gavrielides, T. (2012). “Conceptualising & Contextualising Restorative Justice for Hate Crimes”. Journal of Social Criminology 1:1. Gavrielides,T. (2015). “Is Restorative Justice appropriate for Domestic Violence cases?”, Social Work Review, XIV, nr. 4/2015: 105–121. Gavrielides, T. (2020). Restorative Justice Theory and Practice: Addressing the Discrepancy, 2nd edn, London: RJ4All Publications. Gavrielides,T. and V. Artinopoulou (2012).“Violence against Women and Restorative Justice”, Asian Journal of Criminology, 8(1): 25–40 ISNN 1871–0131. Johnstone, G. (2018). “The Standardisation of Restorative Justice” in T. Gavrielides (ed.). Human Rights and Restorative Justice, London: RJ4All Publications.

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House of Commons (2016). Restorative Justice: Fourth Report of Session 2016–17, London: House of Commons Justice Committee. Kirby, A. and Jacobson, J. (2015). Evaluation of the Pre-Sentence RJ Pathfinder: February 2014 to May 2015. Project Report, London: Restorative Solutions. Lacey, N. (1988). State Punishment, London: Routledge. Liebmann, M. and G. Masters (2001). “Victim Offender Mediation in the UK”, in The European Forum for Victim Offender Mediation and Restorative Justice (ed.) VictimOffender Mediation in Europe, Leuven, Belgium: Leuven University Press. Marshall, T. (1999). Restorative Justice: An Overview, London: Home Office, Research Development and Statistics Directorate. Matrix Evidence (2009). Economic Analysis of Interventions for Young Offenders, London: Burrow Cadbury Trust. McCold, P. (1996). Restorative Justice Delphi Process Round 3, Bethlehem, PA: The Working Party on Restorative Justice of the Alliance of NGOs on Crime Prevention and Criminal Justice of the United Nations. McCold, P. (1998).“Restorative Justice:Variations on a Theme”, in L.Walgrave (ed.) Restorative Justice for Juveniles: Potentialities, Risks and Problems for Research, Leuven, Belgium: Leuven University Press. McCold, P. and Wachtel, T. (2000). “Restorative Justice Theory Validation”, in The Fourth International Conference on Restorative Justice for Juveniles, Tubingen, Germany: International Institute for Restorative Practices. Melossi, D. (2000). “Changing Representations of the Criminal”, British Journal of Criminology 40: 296–320. Miers, D., et al. (2001). An Exploratory Evaluation of Restorative Justice Schemes, London: Home Office. Morris, A. and W. Young (2000). “Reforming Criminal Justice: The Potential of Restorative Justice”, in H. Strang and J. Braithwaite (eds.) Restorative Justice: Philosophy to Practice, Aldershot, USA, Singapore, Sydney: Ashgate/Dartmouth. Morris, A. and G. Maxwell (1998). “Restorative Justice in New Zealand: Family Group Conferences as a Case Study”, Western Criminology Review 1(1). National Audit Office (2010). Managing Offenders on Short Custodial Sentences, London: The Stationary Office. Ministry of Justice (2012). Getting It Right for Victims and Witnesses: Equality Impact Assessment, London: Ministry of Justice. NOMS (2012a). Better Outcomes Through Victim-Offender Conferencing (Restorative Justice), London: NOMS. NOMS (2012b). Commissioning Intentions for 2013-14: Discussion Document, London: NOMS. Pavlich, G. (2018). “Transforming Powers and Restorative Justice”, in T. Gavrielides (ed.) The Routledge International Handbook of Restorative Justice, London: Routledge. Pavlich, G. (2021). “Formative Promises, Restoration and Decolonizing Justice”, in T. Gavrielides (ed.) Comparative Restorative Justice, New York: Springer. Pratt, J. (2006). Penal Populism, London: Routledge. Rubinelli, S. (2006). “The Ancient Argumentative Game: τόποι and loci in Action”. Argumentation 20: 268–269. Shapland, J., Atkinson, A., Atkinson, H., Dignan, J., et al. (2008). Does Restorative Justice Affect Reconviction? The Fourth Report from the Evaluation of Three Schemes (Ministry of Justice Research Series 10/08), London: Ministry of Justice. Sherman, L., et al. (2000). Recidivism Patterns in the Canberra Reintegrative Shaming Experiments (RISE), Canberra, Australia: Centre for Restorative Justice.

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Slomkowski, P. (1997). Aristotle’s Topics, Leiden, The Netherlands: Brill Academic Publishers. Thorvaldson, A. (1978). “The Effects of Community Service on the Attitudes of Offenders', Cambridge: University of Cambridge. — 1980 ‘Does Community Service Affect Offenders?’”, in B. Galaway (ed.) Victims, Offenders and Alternative Sanctions, Lexington, MA: DC. Heath. Umbreit, M. and H. Zehr (1996). “Restorative Family Group Conferences: Differing Models and Guidelines for Practice”, Federal Probation 60: 24–30. United Nations (1999). Declaration of Basic Principles on the Use of Restorative Justice Programmes in Criminal Matters. General Assembly. Victim Support (2003). Restorative Justice: The Government’s Strategy July 2003: Response by Victim Support, London:Victim Support. Victim Support (2010). Victims’ Justice: What Victims and Witness Really Want from Sentencing, London:Victim Support. Walgrave, L. (1999). “Community Service as a Cornerstone of a Systemic Restorative Response to Juvenile Crime”, in G. Bazemore (ed.) Restorative Juvenile Justice: Repairing the Harm of Youth Crime, Monsey, NY: Criminal Justice Press. Wright, M. (1996). Justice for Victims and Offenders: A Restorative Response to Crime, 2nd edn, Winchester, UK: Waterside Press. Zehr, H. (1990). Changing Lenses: A New Focus for Crime and Justice, Scottdale, PA; Waterloo, ON: Herald Press. Zehr, H. and H. Mika (1998). “Fundamental Concepts of Restorative Justice”, Contemporary Justice Review 1(1): 47–55.

6 THE TROJAN HORSES OF RACE AND POWER

6.1 The paradox of restorative justice We now have enough evidence to safely argue that black and other racially underrepresented groups are let down the most by our criminal justice systems (Kang, 2005; Dorling, 2011). The international literature on disproportionality (e.g. prison population, stop and search, arrests and sentencing patterns), race relations between offenders and criminal justice agents (police, judges, prison and probation staff), the appropriateness of interventions and issues around explicit and implicit racism is rich. It is not my intention to repeat these arguments here. I take disproportionality as a given independent of location. Since restorative justice was brought back as a reaction to a failing criminal justice system that discriminates (overtly or silently), a newcomer to restorative justice would expect that its first normative promises and practical manifestations should have been for those who are let down the most. But as this chapter will show, restorative justice is faced with a paradox. Against all the original intentions of the abolitionists, practitioners and scholars who brought back restorative justice in the 1970s, diversity within its movement and equality in its manifestations are rather disappointing despite what a newcomer would expect. In fact, I see very little difference from the power abuse and race inequalities experienced in the criminal justice system. Of course, the theoretical restorative justice literature is something different, as it continues to promise what has yet to be achieved. The inconsistency between restorative justice visions and reality should not be surprising (Gavrielides, 2007, 2020). The justice system and the policies, laws, institutions and structures that were set up to support it do not exist in a vacuum. They are informed by our subconscious and sometimes overt biases against various social categories. Subsequently, it should not be surprising that those who have been named as fathers, mothers and grandfathers of restorative justice are white in most DOI: 10.4324/9781003194576-9

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cases. As maturity comes to the restorative justice movement, we develop responsibility to self-reflect and respond to these failings in an awakened state of mind. In this chapter, I will expose three Trojan horses of race inequality and power abuse. Like the Trojan horse that cunning King Odysseus used to get into Troy after a decade of siege, these are the hiding places through which race inequality and power abuse creep into our actions including the restorative practice and ethos. Alongside this discussion, I will open up the debate on diversity within the restorative justice movement. I see this as being directly connected to all three horses. I want to state from the outset that this self-reflection and indeed self-criticism should not be read as attacks against the impressive work that has been carried out by passionate researchers, practitioners and campaigners in the restorative justice field. In fact, their own gradual recognition of this paradox inspired me to write this chapter. For instance, in the first Liz Elliot memorial lecture1, Howard Zehr, known as ‘the grandfather of restorative justice’, pointed out that despite the successes of restorative justice, the obvious racial disparities in court and prison systems as well as the bureaucratisation of restorative programmes are now the key challenges that researchers need to face if the restorative justice movement is to progress. Social change, he suggests, will come from providing an alternative vision of a more caring and safe society as exhibited by creativity and artistry of compassionate people. I agree with Zehr and indeed wish to take this consideration still further. In order to do so, we will turn out attention to the silent strategies that have allowed the whiteness and overt biases of the restorative justice movement to prevail. I am aware that reading and accepting this chapter will be difficult for some. This is for at least two reasons. These may indeed provide further explanation and context for the aforementioned paradox of restorative justice. First, governments and services around the world are faced with increasing financial pressures to deliver more for less. This need has been exacerbated as a result of the Covid-19 pandemic and its socioeconomic impacts. Priorities are being shifted with an emphasis on costs and efficiency. Issues of equality, including race, do not feature prominently in current public debates. However, it is certain that we should anticipate a wave of structural, institutional and legislative reforms in our public services, similar to those experienced after World War II. These will see further reductions in public spending and in expectations to deliver more for less. Equality and race equality are yet to be seen as drivers for social change and productivity (Gavrielides and Blake, 2013). In short, this financial landscape provides our daily framework of action, or inaction, and within this framework a state of mind. Second, the restorative process demands power-sharing that is based on the premise that all affected parties are equal in the identification of harm, and in reaching 1 I had the honour to give the second Liz Elliot memorial lecture and be given the opportunity to discuss some key thoughts underlying this paper with a strong group of researchers, practitioners and policy-makers who attended the event in November 2012 at the Centre for Restorative Justice, Simon Fraser University, Vancouver, Canada https://www.youtube.com/playlist?list=PL402BC2A439CA89F0 (accessed June 2021).

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an agreement for restitution. Relinquishing power within the current philosophy of adversarial justice and economics is in itself a challenge. Relinquishing power within a system that is challenged by the Trojan horses of race and power is an even more complex matter. The restorative justice movement, whether its practitioners, campaigners, organisations, policy-makers or researchers, is not devoid of power. Like all those who enjoy and use power, restorativists can become part of the control culture that power creates. The aim here is to identify the hiding places of these subconscious intentions and actions, bring them to light and start addressing them.

6.2 Three Trojan horses of race and power Trojan horse no. 1: Where is our diversity data? We already know that the traditional criminal justice system – including Western countries that claim to have achieved equality – is not representative of the population that it aims to serve. For example, according to the latest government statistics on the diversity of the criminal justice system in the UK, over 81% of its Crown Prosecution Service (CPS) staff are white (Ministry of Justice, 2019). Only 7% are from black and minority ethnic (BME) groups, 9% from Asian and 1% from China. In the same report, the government noted: White offenders have had a consistently lower average custodial sentence length for indictable offences than all other ethnic groups since 2014… Compared to White defendants (38%), larger proportions of Asian (40%), Mixed ethnicity (45%), Black (46%) and Chinese or Other (46%) defendants were remanded in custody for indictable offences at Crown Court. (2019, p. 27) It is also worth looking at the average custodial sentence. For example, the longest average sentence is given to Asian offenders, followed by black offenders. Similarly, over 82% of staff working at the Ministry of Justice (MoJ) are white while the proportion of police officers from black, mixed and Chinese or other ethnic groups remained at 1%, 2% and 3% respectively. The proportion of white judges stands at a 93%, while judges from the black ethnic group has remained constant at a shocking 1%. Between 2015 and 2019, there has been some variation in the ethnic composition of magistrates. Similar trends can be seen in the ethnic composition of prison staff (Her Majesty’s Prison and Probation Service, or HMPPS). The proportion of staff from white ethnic groups is 92%. It is also interesting to see who is occupying senior roles within the UK criminal justice system. In 2018, “individuals from white ethnic groups represented 90% of senior staff and practitioners in the CPS, 96% of senior Police, 98% of senior HMPPS, 93% of senior MoJ and 96% of senior Judiciary” (Ministry of Justice, 2019, p. 63).

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The UK’s criminal justice system is not the focus here. I am using it as an example of a Western, equalitarian state with one of the most powerful economies in the world to merely illustrate a point. Without looking at the many independent inquiries and relying solely on governments’ own admissions, we know for certain that there is a lack of diversity and representation in the criminal justice system. We also notice one more similarity across criminal justice systems. They publish data on their composition. Whether these data are the result of legislative responsibility or the forced outcome of parliamentary and other inquiries, they do exist and are indeed disclosed. Whether these data are shocking or whether they are accurate or misguided is not the point here. They exist and are out in the open to be viewed and therefore it is possible to criticise and improve them. And here is the first Trojan horse. What diversity data do we have for the practitioners within the restorative justice machinery? When was the last time we asked this question? And how did we manage to hide this question so well? Furthermore, where are the diversity statistics of the restorative justice users (whether we want to call them victims and offenders)? Do projects, localities, governments and international bodies collect such statistics? The belly door of my first Trojan horse is opened. I searched far and wide for these statistics but found very little information (see also Gavrielides, 2021).Therefore, I must conclude that we have subconsciously hidden this question behind the inconsistency of our practices and the fragmentation of what makes a restorative justice system (which in fact I would prefer to call a “service”). Of course, it would be naïve to expect a detailed breakdown of how many black restorative justice facilitators are practising (e.g. in the UK) or what the success rate of race cases that are diverted to a restorative practice may be. But is it? And why would it matter? And this is where evaluations of restorative practice with race-related cases matter. For example, Charkoudian and Wayne (2010) looked at this issue alongside gender matching in a US-based study. In particular, they looked at mediation cases from Maryland, Pennsylvania, Delaware, New York, Washington (DC), New York and Northern Virginia. Overall, 70 cases were researched, including both the mediators and the parties. The cases stretched from neighbourhood disputes and non-punishable disagreements to some instances of interpersonal conflict. In their conclusions, the researchers warned the movement that it is essential to have a diverse mediator pool in part to make it possible to avoid isolating any participant. In particular, it is critical to realise that an overwhelming white mediator pool will repeatedly increase the possibility of isolating minority participants. (Charkoudian and Wayne, 2010, p. 47)2 2  Two caveats that must be pointed out are the limited sample of their study and the fact that they looked not only at criminal cases of mediation; in fact, the majority of their data came from dispute cases in the context of family, business and neighbourhood.

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This sort of data is important in helping us to understand the hidden variables that impact on the success of restorative justice. What I take from Charkoudian and Wayne is not really the lack of diversity within the examined practitioners’ sample. An important finding is the impact of the practitioners’ ethnicity onto the success of the restorative justice practice. One would be quick to assume that I am about to argue in favour of black practitioners facilitating cases with black victims or offenders. I believe that this ‘quick fix attitude’ is the main driver behind the failings of the many well-intended efforts that have been funded in the name of race equality and equality. The matter is far more complex than that. For example, Charkoudian and Wayne pointed out that issues relating to effective communication, participants’ satisfaction and perception/bias had nothing to do with the fact that the mediators did not match the participants’ race. The authors also warned not to match the mediator with only one of the participants. This creates tensions and imbalances, they said. The researchers concluded: “Mediator-participant matches based on race or ethnicity had less effect on mediation experience than matches based on gender.They still had some effect, however, particularly when the mediator’s race/ethnicity matched only that of the other participant” (2010, p. 43). In the same vein, Fisher and Long’s research containing 257 mediations conducted in Australian Community Justice centres found lower rates of agreement in cases where the participants were matched with mediators of similar ethnographic backgrounds. Moreover,Viswanathan and Ptak’s Canadian study raises further concerns (1999). They argued that ethnically matching participants with mediators can in fact have divisive results as the matched mediators are often expected to act as cultural interpreters and mitigate misunderstanding. For example, in one of the cases they investigated, a Chinese woman specifically requested not to be matched with a Chinese mediator, as she feared being subjected to patriarchal attitudes and stigmatisation as a bad woman and wife. The theory of transformative mediation attempts to propose a solution to the aforementioned problem. Bush and Folger (2005) claim that when disputants are given a voice in both the content of discussions and the shaping of the mediation process, the dangers associated with cultural biases and awareness are minimised. However, Davidheiser argues, “To date, no entirely satisfactory method has been found for addressing sociocultural pluralism in mediation and by extension in restorative justice” (2008, p. 77). In fact, he warns us that conscious attempts to recognise diversity may harm more than hinder. “Broad generalisations of culture may work in some cases, but they may be counterproductive in others”. Indeed, shared identities and worldviews are continually contested and renegotiated through discursive processes. Albrecht’s research in Finland and Norway concluded that “there was no consensus about the question of adapting one’s model to better meet the needs of minority parties” (2010, p. 15). She asked “[h]ow far restorative justice practices are in reality beneficial for minorities” (2010, p. 15).

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Trojan horse no. 2: Lost in translation Restorative justice and the delivery of equity through justice are dependent on individual empowerment. A key restorative justice principle is involvement in decision-making. This relates to all parties involved and should be applied alongside the fundamental principle of power-sharing. There are no hierarchical positions in the restorative justice model and hence its appeal for rebalancing not only the power structures that relate to a specific conflict and the parties involved in it but also society and how we interact with each other. To this end, we need an empowerment model that respects the restorative justice principles and pursue equity for justice. I have already made reference to Figley’s Empowerment Model, according to which there are five phases to achieving a healing process such as the one offered by restorative justice: (a) building commitment to therapeutic objectives, (b) framing the problem, (c) reframing the problem, (d) developing a healing theory and (e) closure and preparedness (Figley, 1998). Figley’s model of intervention emphasises a communication process aimed at developing a healing theory. This process gives opportunities for storytelling, a reinterpretation of symptoms, a clarification of insights and correction of distortions, and answers to questions central to the restoration of power imbalances, which may lead to healing. Figley’s model is based on the simple premise that when working with individuals and families who have experienced any number of traumas, language is most effective when brought to bear in a positive and supportive manner. Similarly, Wind et al. point out that “[l]anguage is not an all-or-nothing proposition; neither is forgiveness nor reconciliation. Both can occur slowly over time” (Wind et al., 2008, p. 251). Following on from this, to heal and indeed address what parties want, the role of language becomes central for any process that attempts to do just that. In the words of a clergy child sexual abuse victim who had undergone restorative justice: “Language can be a musical instrument of joy, lighting the darkness that permeates a survivor’s very being, or a silent killer, hiding the truth behind unspoken thoughts” (Gavrielides, 2012, p. 16). Thus, my second Trojan horse relates to language. This is where parties (and practitioners) can subconsciously hide their power. Our abilities, skills and confidence to master this mighty tool are silent actors of power that must be revealed and addressed as part of the justice and restorative justice process. In fact, the dangers associated with any language/dialogue-based approaches are well documented. For instance, Wind noted: “While language can offer hope in the healing process, it may also profoundly exacerbate the trauma” (Wind et al., 2008, p. 251). For language to be healing, it needs to be reordered and reimagined away from the world of retriggering and into a world where siblings, parents and others engage in conversations of acceptance of the abuse and its ongoing consequences. I have observed this Trojan horse firsthand when evaluating restorative justice in youth offending institutions (Gavrielides, 2011), the adult criminal justice system (Gavrielides, 2018) or the community (Gavrielides et al., 2015). Silent domination

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was observed with parties who were either more skilled or confident in using language. These variations were relevant to both native and non-native speakers. In fact, the discussed hiding place was more prominent between native parties from different socioeconomic background and professions. Not surprisingly, this group was larger within the black, Asian and minority ethnic (BAME) population than the white British population. The vicious circle of inequality and the lack of equal opportunity in employment, education and civic participation were manifested even in the most well-intended restorative justice practices because of this Trojan horse. Whilst the facilitator may have taken all preparatory steps and followed all procedures, there would still be a power imbalance between the more skilled, or confident, communicator and the other party. In the best occasion, the more skilled, or confident, party would simply benefit more from the restorative justice dialogue. Davidheiser’s research raises further practical problems. These relate principally to what he calls an “appropriate communicative framework” (2008, p. 71). This may refer to the communication styles, language barriers, ethnic matching of disputants and facilitators, cultural competencies and self-awareness. Myers and Filner (1997) believe that adjustments in the negotiation process of restorative justice may be beneficial and that the general principles of problem-solving mediation are applicable cross-culturally. They also point out, though, that mediators and by extension any restorative justice facilitator must be sensitive to different styles of communication and values. Davidheiser agrees with this conclusion and argues that cognitive structures “influence mediation in a profound way that goes far beyond shared norms, values, or behavioural standards” (2008, p. 71).

Trojan horse no. 3: Money talks Restorative justice and other dialogue-based justice processes that require parties’ direct or indirect involvement are premised on the principle of voluntariness. Parties need to opt for such processes if the intended dialogue is to be genuine and restorative-focused (Gavrielides, 2007, 2020). This choice should be free and withdrawable at any stage of the process. The flow of information to all parties is important here and so is the monitoring of their personal circumstances. A UK study that I carried out using a survey with 66 victims and 44 offenders (followed by 11 in-depth victim interviews) who underwent restorative justice suggested that whilst all parties were willing to participate and remain engaged until the end, for some, the levels of this intention would drop during the process (Gavrielides, 2018). The reasons behind this related to the parties’ personal circumstances and other practical difficulties that would impact on their genuine participation. These barriers were not visible from the outset. For example, several victims would enter willingly into the restorative justice process having received all the necessary information and agreed to the structure of the meetings. However, soon after, they would realise that the restorative justice process demands commitment and that it may be more time-consuming than originally thought. This was particularly true

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for parties who were from low socioeconomic backgrounds, as they would be faced with barriers such as taking time off work, childcare and other costs, and multiple responsibilities/jobs. Despite, these barriers, some parties would not discontinue the process, which was seen as an undertaking that they had already invested in and which they felt morally compelled to complete. Interestingly, the more complex the crime was, the more compelled parties felt to opt for a restorative process and indeed completing it (Gavrielides, 2018, p. 20). The personal circumstances behind each individual who takes part in tailormade justice processes, including restorative justice, is the third Trojan horse on my list. These practical difficulties and personal circumstances are not visible yet are significant in the pursuit and experience of restorative justice. Like the previous horse, this hidden place was more relevant to the parties from lower socioeconomic backgrounds and especially those coming from migrant and refugee groups and BAME populations. There are further practical difficulties relating to this hidden place of inequality in the restorative justice process. Albrecht’s research with cases involving migrant and refugee groups is helpful here (2010). She considers the financial disadvantage that these groups have and that puts them in a vulnerable position to accept a monetary payment through the restorative justice process that does not really allow meaningful restoration. In addition to signalling the financial benefits that this might have for this group, she points outs that refugee and migrant victims and offenders “live under the notion that legal proceedings can have a negative impact on their right of legal residence” (Albrecht, 2010, p. 15). She concludes with fears that the key restorative justice principle of voluntariness may be compromised for this particular group as she sees them as twice as vulnerable, being subjected to both criminal law as well as the non-punitive options.

6.3 Moving things forward for restorative justice and race Looking at the scarce extant literature on the interaction of restorative justice with race and power, we notice that one factor that makes restorative practices appealing is their potential to create an understanding of the perspective of ‘the other’ (Charkoudian and Wayne, 2010; Gavrielides, 2012). Unlike courtroom procedures, restorative practices require communication processes between the conflict parties. According to Albrecht, “This process can be expected to be exacerbated when participants from different language groups and cultures, with their distinct sets of behaviour, rituals, and values meet in mediation” (2010, p. 4). A number of restorative justice advocates support this claim. For instance, Johnston and van Ness argue that “[t]he ultimate goal of restorative justice should be to transform the way in which we understand ourselves and relate to others in our daily lives” (quoted in Vlaemynck, 2008, p. 3).Vlaemynck (2008) would add that, this way, restorative justice has the potential to enhance social integration, understood as the ability of different groups in society to live together in productive and cooperative harmony built on mutual trust.

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Some of my own writings have claimed that restorative justice assumes the existence of a “social liaison” that bonds individuals into a relationship of respect for each other’s rights and freedoms (Gavrielides, 2005). This includes their race and cultural differences. Restorative justice assumes that this liaison has always been with us independently of our ethnic background because it is innate in our nature as human beings. We cannot see it but we can feel it in moments of danger or of extreme happiness. Individuals are not really strangers and that is why victim and offender are not enemies (Gavrielides, 2013). Jenkins argues that restorative justice is based on the Afrocentric understanding of justice (2006). This is very much dependant on the existence of others putting an emphasis on community and values as opposed to individualism and control. Schoeman reminds us of the African concept of ubuntu, which she claims to be the foundation of restorative justice (2013). “Modern restorative justice and indigenous justice practices share many similarities. The same values and principles that underpin the African philosophy of ubuntu are also embodied in restorative justice.This intersection of restorative justice and ubuntu philosophies is of broader relevance as it demonstrates how global and African philosophies have the potential to contribute to restoration and conflict resolution in diverse societies” (Schoeman, 2013). But are these normative claims more than just promises that raise expectations? The proof of the pudding is in the eating, and in the search for evidence of race equality and equality within the restorative justice movement, practice and organisational structures, I found nothing but the same issues mirroring the fallacies of the current criminal justice system. Senior positions in restorative justice and organisational hierarchies (who bears a certain logo or not) are far from being representative of those whose justice experience gets to be affected the most by inequality. In fact, with this chapter, I took a brave step in revealing three places where our subconscious biases hide. Like Trojan horses, these biases creep into restorative justice and other dialogue-based approaches that are not punitive in nature. I argue that these hiding places are not the product of inequality and injustice. They are the result of well-planned, multi-year investments in maintaining the status quo. Inequality and injustices are simply the results, and race discrimination one of their manifestations. Restorative justice is faced with the reality of a powerful and structured justice delivery machinery, which is very much against its normative, well-intended promises. Implemented mainly by and through the community (Pavlich, 2009; Gavrielides, 2012), restorative practices often have to compete with entrenched practices and the dominant punitive mindset of criminal justice agents (e.g. police officers, probation staff, judges, prosecutors and prison staff). According to Pavlich, restorative justice is inherently limited by its implementation through “programmes that complement, are located within, or even carried out under the auspices of, state justice agencies” (2009, p. 24). “Is it possible for restorative justice to survive and transform such systems to produce socially just results, or is restorative justice more likely to get compromised and co-opted by the overwhelming dominant cultural ethos (and corresponding power structures) of the organizations it seeks to

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transform? Ultimately, is restorative justice strong enough to co-opt the co-opters?” (Schiff, 2013). Gavrielides and Artinopoulou (2013) argue that it is impossible to divorce the successful implementation of restorative justice from the political, social, economic and cultural context within which it is designed, operated and implemented. Therefore, without addressing the balance of power inherent in and necessary to sustain Western sociopolitical and legal institutions, the open, flexible, inclusive approach proffered by restorative justice may be false promises. It has been argued that as a social justice reform initiative, restorative justice can overcome the criminal justice barriers only by implicitly acknowledging and confronting its threat to the status quo and the structural and real violence inherent in that order (Hudson, 2006; Gil, 2008). To move restorative justice from the margins to the mainstream and indeed allow its use for race-related matters, we must pay attention not only to the lack of its diversity data and our subconscious failings (whether these relate to issues of language or financial means) but also to the sociocultural environment within which it is implemented. I also accept that the open, community-driven and inclusive approach of restorative justice is not welcomed by many who retain and indeed control the power of our Western sociopolitical and legal institutions. However, I reject the argument that in order to implement ‘justice’ in a racist and structurally violent society, restorative justice must adopt and adapt to such behaviours and beliefs. I also reject the argument that it is through conflict that restorative justice will prevail. Some have even claimed that the differences between black and white people are so stark that attempts to reconcile differences through dialogue are doomed (Kochman, 1981; Davidheiser, 2008). For example, looking at Kochman’s work, we can conclude only that restorative justice employed in institutional settings “imposes a communicative framework that emanates from the social milieu of upper-middle class White Americans. The sociocultural particularity of mainstream mediation can be inhibiting for Black Americans and parties for other different backgrounds” (Davidheiser, 2008, p. 64). Menkel-Meadow (1996) and Williams (1994) argued that this conclusion extends far beyond the US. Davidheiser also argues that this raises inherent and entrenched issues of “power imbalances related to potential advantages conferred by mainstream mediation to disputants who are well versed in the values, symbols and conventions embedded in the mediation process” (2008, p. 64). Surely, such concerns will be even more acute when restorative justice is placed within the judicial system. These are not theoretical concerns. They are timely and necessary. In fact, the recent global trend to put restorative justice on the statute and provide it as a ‘mainstream option’ should put the questions posed here at the top of the research agenda internationally. However, in the restorative justice spirit, I argue that there is a way forward for restorative justice and race. But this must be consensual. I also dare to claim that the era of abolitionists has served its purpose. As we moved away from the era of experimentation and entered the times of implementation and maturity, we should realise that ideas of abolishing and replacing are out of date and indeed naïve. More importantly, conflict, nullifying and replacing are not part of the restorative justice language, which emphasises negotiation.

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I share my thoughts with caution. Kochman would argue that my cultural background as a Caucasian is so different from that of black people that despite my good intentions, I will never be able to reach my desired levels of communication with them. “Black and white cultural differences are generally ignored when attempts are made to understand how and why black and white communication fails … cultural differences play a covert role in the communication process” (Kochman, 1981, p. 7). I disagree with Kochman. I admit that what I propose here is founded in personal world readings. However, I do attempt to back up my proposals using schools of thought that others have created. I also start from the premise that when we welcome differences, we allow ourselves to appreciate qualities and concerns that our own background tends to downgrade. In my case, being able to do this with racially under-represented groups allowed me to appreciate the significance of self-expression, spiritual well-being, emotional expressiveness, spontaneity, individual self-assertion and distinctiveness and, above all, community. I remember Trevor Phillip’s (2015) attempt to explain why the multiculturalism project in Britain failed despite the well-intended policies of the time3. In his documentary “Things We Won’t Say About Race That Are True” (Channel 4), he claims that figures who are able to do something about race inequality and disadvantage are afraid to do so because there is evidence of their victimisation and intimidation. While exposing political correctness and its impact on community-led practices against the status quo that maintains inequality, Phillips, a black man and the former chair of the UK’s Equality and Human Rights Commission, did not avoid misinterpretation and intimidation himself. This also brings back memories of my own experiences while I ran a black organisation in London. Despite my own good intentions, my white, young and middle-class background did not resonate with many in the race equality field. Here, I will merely hope that if closely re-examined, my argument is in fact not in conflict with the critical race theory movement in law. My proposal for a participatory and consensual progression of restorative justice for race reaffirms critical race theory’s expectations of theorists participating in the modification of social reality. This is also the role of restorative justice and indeed its contribution to race equality. The proposed way forward also helps us see restorative justice as possibly an emergent different sort of power which Foucault (2008) would refer to as ‘biopower’. According to Pavlich, this biopower “targets living subjects, deploying pastoral, governmental and normalising power techniques that are different from, but operate in complex relations with sovereign model of criminal justice” (2009, p. 25). Without abolishing what is, restorative justice can act as “counter-public” (Woolford and Ratner, 2008) fostering democratic ways for people to confront the

3  https://www.theguardian.com/tv-and-radio/2015/mar/20/things-we-wont-sayabout-race-trevor-phillips (accessed in January 2021).

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subtle co-optations of a governmentalised, white state and its articulated visions of justice. It can provide the balance that we seek. It is easier to dismiss a failing criminal justice system than fix it. This book has pointed out a number of practical difficulties already identified in the scant extant literature on the application of restorative justice for race. What little evidence is available seems to suggest that our diversity and different communication styles requires an open and integrative approach to implementing restorative justice flexibly. This fluid approach increases the potential of inclusiveness and applicability of restorative justice. I conclude with Davidheiser recommendation for next steps: The most promising direction may indeed be to focus our energies on crafting a replicable yet adaptive practice modality… The shortcomings of approaches of dos and don’ts suggests that rigid practice models should be de-emphasised in favour of an integrative focus on assessing what type of approach may be suitable for each particular case. (Davidheiser, 2008, p. 79)

References Albrecht, B. (2010). “Multicultural Challenges for Restorative Justice: Mediators’ Experiences from Norway and Finland”. Journal of Scandinavian Studies in Criminology and Crime Prevention 11(1): 3–24. Bush, R. and Folger, J. (2005). The Promise of Mediation. San Francisco, CA: Jossey-Bass. Charkoudian, L. and Wayne, E.K. (2010). “Fairness, Understanding and Satisfaction: Impact of Mediator and Participant Race and Gender on Participants’ Perception of Mediation”. Conflict Resolution Quarterly 28(1): 23–52. Davidheiser, M. (1997).“Harmony, Peacemaking and Power”. Current Anthropology 38(5): 711–738. Davidheiser, M. (2008). “Race, Worldviews and Conflict Mediation: Black and White Styles of Conflict Revisited”. Peace and Change 33(1): 60–89. Dorling, D. (2011). Injustice:Why Social Inequality Persists. Bristol, UK: Policy Press. Figley, C.R. (1998). Burnout in Families:The Systemic Costs of Caring. New York: CRC Press. Foucault, M. (2008). The Birth of Biopolitics: Lectures at the College de France 1978–79. New York: Palgrave Macmillan. Gavrielides,T. (2005). “Some Meta-Theoretical Questions for Restorative Justice”. Ratio Juris 18(1): 84–106. Gavrielides, T. (2007). Restorative Justice Theory & Practice: Addressing the Discrepancy. Helsinki: HEUNI. ISBN: 978-952-5333-32-9. Gavrielides,T. (2011). Restorative Justice & the Secure Estate: Alternatives for Young People. London: IARS Publications. ISBN: 978-1-907641-08-4. Gavrielides, T. (2012). “Clergy Child Sexual Abuse & the Restorative Justice Dialogue”. Journal of Church and State 55(4): 617–639. doi: 10.1093/jcs/css041. Gavrielides,T. (2013). “Restorative Pain: A New Vision of Punishment”. In T. Gavrielides and V. Artinopoulou (Eds.), Reconstructing Restorative Justice Philosophy. Furnham, UK: Ashgate Publishing. Gavrielides, T. (2018). “Victims and the Restorative Justice Ambition: A London Case Study of Potentials, Assumptions and Realities”. Contemporary Justice Review: Issues in Criminal, Social, and Restorative Justice 21(3): 254–275.

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Gavrielides, T. (2020). Restorative Justice Theory and Practice: Addressing the Discrepancy, 2nd edn. London: RJ4All Publications. ISBN: 978-1-911634-17-1. Gavrielides, T. (2021). Power, Race and Restoration: The Dialogue We Never Had. Abingdon: Routledge. ISBN 978-1-4724-8835-0. (Forthcoming). Gavrielides, T. and Artinopoulou, V. (2013). Reconstructing Restorative Justice Philosophy. Furnham, UK: Ashgate Publishing. Gavrielides,T. and Blake, S. (2013). Race in Probation: Improving Outcomes for Black and Minority Ethnic Users of Probation Services. London: IARS Publications. ISBN: 978-190764119-0. Gavrielides, T., Ntziadima, N. and Gouseti, I. (2015). Evaluating Social Action for Rehabilitation: Restorative Justice in Prison Settings. London: RJ4All Publications. ISBN: 978-1-911634-02-7. Gil, D. (2008). “Toward a Radical Paradigm of Restorative Justice”. In D. Sullivan and L. Tifft (Eds.), Handbook of Restorative Justice: A Global Perspective. London: Routledge. Hudson, B. (2006). “Beyond White Man’s Justice: Race, Gender and Justice in Late Modernity”. Theoretical Criminology 10(1): 29–47. Jenkins, M. (2006).“Gullah Island Dispute Resolution:An Example of Afrocentric Restorative Justice”. Journal of Black Studies 37(2): 299–319. Kang, J. (2005). Trojan Horses of Race. Cambridge, MA: Harvard Law Review Association. Kochman, T. (1981). Black and White Styles of Conflict. Chicago and London: University of Chicago Press. Menkel-Meadow, C. (1996). “The Trouble with the Adversary System in a Postmodern, Multicultural World”. William and Mary Law Review 38(5). Ministry of Justice. (2019). Statistics on Race and the Criminal Justice System 2018. London: Ministry of Justice. Myers, S. and Filner, B. (1997). Conflict Resolution across Cultures: From Talking It Out to Mediation. Amherst, MA: Amherst Educational. Pavlich, G. (2005). Governing Paradoxes of Restorative Justice. London: The Glasshouse Press. Pavlich, G. (2009). “Critical Policy Analysis, Power and Restorative Justice”. Criminal Justice Matters 75(1): 24–25. Schiff, M. (2013). “Institutionalizing Restorative Justice: Paradoxes of Power, Restoration and Rights”. In T. Gavrielides and V. Artinopoulou (Eds.), Reconstructing the Restorative Justice Philosophy. Furnham, UK: Ashgate Publishing. Schoeman, M. (2013). “The African concept of Ubuntu and Restorative Justice”. In T. Gavrielides and V. Artinopoulou (Eds.), Reconstructing Restorative Justice Philosophy. Furnham, UK: Ashgate Publishing. Viswanathan, H. and Ptak, J. (1999). “Power in Mediation: An Analysis of St. Stephen’s Community House”. Retrieved 18 September 2008 from http://cfcjfcjc.org/clearinghouse/drpapers/vandp.htm. Vlaemynck, M. (2008).“Peacebuilding Seen Through the Lens of Peacemaking Criminology”. Paper presented at the IPRA 22nd Global Conference Building Sustainable Futures – Enacting Peace and Development, University of Leuven, Belgium, 15–19 July 2008. Williams, A. (1994). “Resolving Conflict in a Multicultural Environment”. MCS Conciliation Quarterly, pp. 2–6. Wind, L., Sullivan, J. and Levins, D.J. (2008). “Survivors’ Perspectives on the Impact of Clergy Sexual Abuse on Families of Origin”. Journal of Child Sexual Abuse 17(3–4): 238–254. Woolford, A. and Ratner, R.S. (2008). Informal Reckonings: Conflict Resolutions in Mediation, Restorative Justice, Reparations. Oxon, UK: Routledge-Cavendish.

7 POWER, FEAR AND SECURITY The terrorist within

7.1 The politics of believe to belong A fundamental belief articulated and evidenced in this book is that justice and restorative justice are premised on the idea of community and that both should serve equity as this is manifested in the individual circumstances of the wrongdoer and harmed parties. Destroy the idea of community, individual choice and identity and space will be created for the development of control structures that can maintain the status quo of the powerful. Chapter 1 exposed the three levers that motivate the powers of control, one being through security terror. This chapter aims to investigate this particular lever further. First, it will look into the why and how of this fear by analysing “the ­politics of believe to belong”. This section will also attempt some basic conceptual agreements. It will then present some original data that I collected through an EU-funded research programme. Six truths will be constructed to question current reality, allowing some critical reflections on the effectiveness and indeed source of key international instruments and policies that were introduced to combat the source of this fear. Throughout the chapter, I will be making reference to the role of restorative justice and the value of an alternative reality that is complementary to the current punitive paradigm. Starting with what I will call “the politics of believe to belong”, a quick glance at recent media coverage (online and print) suggests that over a relatively short period of time, the narrative on identity has changed. Linked with citizenship, culture and religion, this narrative has shifted from being a source of inspiration, difference and celebration to being the point of attack and manipulation. According to the literature, the three key reasons for this shift are the perceived or real waves of migration and immigration, economics and terrorism. Here, I will focus on the last of these, although the other two are inter-connected and will be mentioned. DOI: 10.4324/9781003194576-10

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Before I do so, I will attempt some definitional agreements for the purposes of this chapter. The terms radicalisation and violent radicalisation, extremism and violent extremism, religious fundamentalism, and terrorism are frequently used interchangeably. However, they are very different. While I acknowledge the vast literature on this matter, here is how I view them. Violent radicalisation is the phenomenon of people embracing opinions, views and ideas which could lead to acts of violence, including terrorism as defined in Article 1 of the Council of Europe (CoE, 2002) Framework Decision on Combating Terrorism (Council Framework Decision 2002/475/JHA of 13 June 2002 on Combating Terrorism)1. Radicalisation does not necessarily lead to violence and has been said to seek changes to the existing political and social structure. Another approach defines radicalism as a quest for sweeping change while limiting extremism to the pursuit of concrete and localised political ideologies. In other words, radicalisation can be a good force for change especially in oppressive political regimes where power is manifested by the few at the expense of the community. Extremism has been referred to as the adoption of a particular ideology with the intention to use violence to remove the state or ruling structure and its elites. It can be seen as a positive act for change that sees a transition of power and the end of its abuse. Violent extremism involves the exercise of power through violent acts with the intention of changing the status quo and the ruling structures illegitimately. Religious fundamentalism is “a belief in an absolute religious truth, which is challenged by the forces of evil and which must be followed today in the same way as in the past”2. Terrorism is “any act of violence or threat thereof notwithstanding its motives or intentions perpetrated to carry out an individual or collective criminal plan with the aim of terrorising people or threatening to harm them or imperilling their lives, honour, freedoms, security or rights or exposing the environment or any facility or public or private property to hazards or occupying or seizing them, or endangering a national resource, or international facilities, or threatening the stability, territorial integrity, political unity or sovereignty of independent States” (Convention on Combating International Terrorism adopted by the OIC in 1999). 1  Article 1 provides that each Member State shall take the necessary measures to ensure that the intentional acts referred to nine expressly specified offences, as defined under national law, which given their nature and context, may seriously damage a country or an international organisation where committed with the aim of seriously intimidating a population, unduly compelling a Government or international organisation to perform or abstain from performing an act, or seriously destabilising or destroying the fundamental political, constitutional, economic or social structures of a country or an international organisation, shall be deemed terrorist offences. 2  http://www.europarl.europa.eu/RegData/etudes/BRIE/2015/551342/EPRS_ BRI(2015)551342_EN.pdf.

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I will not go into the details of the role of the media, politicians and the powerful in creating new meanings for these terms. I will merely focus on the narrative that has been developed in relation to the prevention and control of violent radicalisation and terrorism. Clearly, there has been a great deal of confusion between the security discourse and the risks of preventive work, creating long-term uncertainty as to how security can be combined with prevention initiatives, including restorative justice. In the awakened state of mind that we have achieved, one has to ask why the policy and media debates on violent radicalisation are increasing and indeed becoming more and more alarming. Is it because … • • • •

violent extremism is increasing? more people are dying as a result of terrorism? human rights laws are getting in the way? we need to find better ways to protect ourselves? Or is it because …

• •

we are worried that our civil liberties are at stake? the narrative of the “them” and “us” is questioned along with the security policies that we have adopted? • current practices, strategies, policies and international agreements are not working? • there might be alternatives for European, national and local practices, education and strategies for preventing violent extremism? Our answers to the aforementioned questions will vary depending on which of the two dominant two mindsets we have adopted. The first is what I call the “security mindset” which: • • • •

Gives priority of the state to protect Puts human rights on hold in the name of citizens’ safety Believes that security threads are increasing Suffers from lack of citizens’ trust, prioritises the protection of national borders, and puts immigration controls to this effect. On the other hand, the “human rights mindset” believes that:

• • • •

Even terrorists have human rights Due process and fair trail are as important as citizens’ safety Civil liberties cannot be compromised in the name of security There are universal values that we cannot ignore independently of who and where we are, and it is through the respect of these values that we fight extremism and the views that generate it.

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I argue that this split mindset which has dominated our debates on violent radicalisation must be addressed if we are to overcome the divisions that lead to further extremism and failed politics. Taking a more cynical view, I once named human rights “the unicorn of reconciliation”, meaning that it is • • •

The unicorn that we all dream about but never see! The solution that we always want to reach for but never do! The all loved one but never experienced!

Whether human rights is a unicorn or not, the truth is that whatever we do, we must act now. The road that we have taken for security policy and practice is leading to further division and the erosion of our societal values. Once again, this is no coincidence! As argued in this book, we are in a democratic deficit perpetuated by a number of challenges such as the economic downturn, fears of security, nationalism and the continual marginalisation of the disempowered. Consider the EU’s official statistics of 2019, for example. There were 119 terrorist attacks (failed, stopped or completed) in the EU; 64 of them occurred in the UK (Europol, 2018). Did you think there were more, and why so many in the UK? (See Chart 7.1.)

CHART 7.1 

Terrorist attacks in Europe in 2019 (Europol, 2021)

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CHART 7.2 

Number of fatalities due to terrorist attacks in the EU (Europol, 2021)

There were 10 actual deaths resulting from terrorist attacks in 2019 and 13 in 2018 (see Chart 7.2 for the period 2010–2019). Yet we know that the UK: • • •

Has one of the most up-to-date, “informed” and scientific security strategies in Europe Spends more on security than any other European country Has the most up-to-date, strict anti-terrorist and security legislation.

This leads me to a quick reality check. According to the 2018 Europol study, we get the following death figures (per 100,000 population in Europe) for each listed cause: • • • • • • •

265 cancer 132 heart 11.7 suicide 5.9 traffic 1.06 consumer products! 0.03 terrorism 0.01 lightning

In short, it is as likely to be killed by a terrorist attack as it is to be struck by lightning! The European Commission’s (EC’s) official statistics speak for themselves.

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Yet we are more afraid of and angrier about terrorism than … consumer products. This is the result not only of bad information but also of lack of information. Furthermore, there is lack of clarity as to how serious and big the issue of violent radicalisation is. Let’s not forget that 80% of us think that our own country and the EU are secure places to live (Europol, 2018). At the same time, over and over again, Eurobarometer, the official survey carried out by the EC, records that security is the top concern for Europeans. What we also think as Europeans is that the measures that have been introduced to fight insecurity have compromised our fundamental rights and freedoms. Of course, radicalisation, violent extremism and foreign terrorist fighters are not the only reasons that Europeans feel insecure. Key reasons that have been quoted include the financial crisis, war and conflicts on the EU’s doorstep. But aren’t these additional reasons the triggers to a vicious circle of marginalisation, especially of society groups that are at risk of being radicalised and pushed into a corner? I must, therefore, return to my previous conclusion. The fear that is created by certain actors is not a coincidence.This fear creates a vicious circle of corrupt power, which maintains systems of hierarchy and profit.

7.2 Facing the truth So, what is the truth that is hiding behind the rhetoric that has been developed in political, media and other public debates on violent radicalisation and security recently? I have collected six of these truths while investigating the role of restorative justice and alternative non-punitive responses that fall within the Good Lives Model of rehabilitation (Gavrielides and Worth, 2014). These truths are based neither on “google research” nor on personal assumptions. They are drawn from a three-year research programme which I coordinated with funds from the EC and with 18 partners from seven countries (the UK, Sweden, Greece, Cyprus, Portugal, Italy and Romania)3. These original evidences were complemented with secondary research that was carried out in the participating countries in local languages. The Youth Empowerment and Innovation Project (YEIP) ran between March 2017 and February 2020 and focused on young people. One of my research goals was to test the potential of restorative justice for the prevention of violent radicalised phenomena in an effort to turn the current punitive model on its head. Instead of “managing” vulnerable young people as “risks”, our investigation and programme focused on promoting their talents and strengths and, through this approach, help develop positive identities that resilient against violence4. Throughout the project, I applied a holistic and constructive approach in considering how young people at risk might identify and work towards a way of living

3 Further information on the programme can be found at www.yeip.org (accessed in January 2021). 4  The extant literature has defined these as being “the internal organisation of a coherent sense of self ” (Dean, 2014).

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that is likely to involve the goods we seek in life as well as a positive way of living that does not involve or need crime. This approach is encapsulated in what I have come to call the Positive Prevention Restorative Justice (PPRJ) model5. The PPRJ model is based on the assumption that we have more chances of preventing violent radicalisation if we help at-risk individuals to achieve a positive and growthoriented change in life than manage them as risks. PPRJ focuses on empowering at-risk individuals to develop their values, skills and resources towards life. In this way, risk is managed while seeking to develop positive life alternatives. Annex A outlines the method as well as the sampling strategy that I adopted for YEIP, which aimed to pilot my PPRJ model. In short, I used a youth-led methodology, meaning that its data were collected by young peer researchers while its management was scrutinised by a standing Youth Scrutiny Panel.The non-governmental organisation (NGO) partners in each participating country recruited and trained a total of 74 young people in order to empower them to carry out the research and evaluations themselves. These young people came from diverse backgrounds, including refugees and asylum seekers, university students, able and disabled. I structured this methodology with the belief that if power is shared in research methods, then maybe we will be able to unravel truths that have been hidden behind our own power walls and biases. The three-year programme was broken down into four scientific blocks and three additional horizontal work packages (Management, Dissemination and Evaluation). The four scientific blocks were informed by secondary research and fieldwork in English, Greek, Italian, Swedish, Romanian and Portuguese. Our field trials looked at four different environments (schools, universities, youth offending institutions and online). Various e-books and reports were produced reporting on the work of each scientific block6. In relation to its sampling, YEIP initially engaged 133 young people who informed its first block that saw the development of our research tools (e.g. questionnaires). The second block carried out fieldwork with 380 young people and professionals. The third scientific block involved a total of 478 young people, 354 professionals and 195 policy-makers. Finally, the fourth block involved 1,408 young participants and 517 professionals. In total, YEIP directly engaged with and spoke to 3,540 individuals from as young as 16 years old to 78 years old. Arguably, this is one of the largest scientific studies on violent youth radicalisation in Europe. It was also the first pan-European research programme to pilot my PPRJ model. Subsequent pilots continue to test the model locally (e.g. the My Voice My Future project in Southwark7) and internationally (e.g. Restorative Dialogue against Violent Radicalisation project8). 5  More on the PPRJ model and subsequent pilots can be found https://www.rj4all.info/ RJ-Radicalisation (accessed in May 2021). 6  These can be accessed from www.yeip.org (accessed in January 2021). 7  https://www.rj4all.info/southwark-positive-futures (accessed in May 2021). 8  https://www.rj4all.info/rdavr (accessed in May 2021).

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Truth no. 1 In my effort to understand the causes that lead to violent radicalisation in addition to the fieldwork, I looked into what the literature calls “pull and push factors”. I defined a push factor as something which “pushes (one) away from mainstream society and causes them to be susceptible to radicalisation” and a pull factor as something which acts as a trigger increasing the likelihood of the acceptance of violent extremism. Pull factors can be described as elements which involve participation in a movement, organisation or activity in order to gain a type of reward such as a universal one. Pull factors can also involve being within a favourable environment and having exposure to ideologies and recruiters. Push and pull factors are based around three categories of motivational triggers: • • •

background factors, which relate to personal circumstances leading to challenges in social integration trigger factors, which can provoke either antipathy or activism, and opportunity factors, which relate to the individual’s environment in which they were brought up.

Many opinions can be gathered from this. One is that an individual is more likely to turn to violent radicalisation because of their level of class within society. However, our youth-led research found that violent radicalisation is often caused by frustration with weak, corrupt or illegitimate governance, marginalisation, fractured relationships, lack of voice and opportunity, and struggles with diversity and belonging (Gavrielides, 2020). In other words, lack of empowerment and disenfranchisement with the abuse of power. Therefore, in order to deal with violent radicalisation and be able to eradicate it, we need to move away from adversarial approaches and towards cooperative solutions that are co-designed with affected parties and that share the power in decision-making. For example, in order to help young people at risk and address the push/pull factors which may lead to a path of violent radicalisation, the EU, CoE and European youth work need to make youth programmes more focused on areas such as real or perceived threats of well-being, security and wealth and the feeling of belonging to a group/community. YEIP findings suggest that push factors include social marginalisation and perceived oppression or fascination with violence against power abuse. A trigger event (e.g. death) or other reasons (e.g. rejection by peer, faith or social group, family or pressure from peers) could also increase one’s vulnerability and put them at risk of being radicalised for violence. The reasons can further be grouped into three main categories: the individual’s circumstances, life experiences or their state of mind. These reasons were consistent across the seven participating countries. Furthermore, social marginalisation and fragmentation were defined as the norms and processes that prevent certain groups from equal and effective participation in

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the social, economic, cultural and political life of societies. I argue that these are also the reasons young people turn to violent radicalisation, as they may see violence as a way of being heard and a form of getting their view across to the powerful who haven’t been listening. Perceived oppression could result in young people becoming hyper-aware of critical issues ensuing in a radical irrationality and a subsequent willingness to violently act on this awareness.This fascination with violence becomes an escape route leading to socialising with the wrong crowd and engag(ing) in political violence without moral restraints. For example, the Staircase to Terrorism Model links the perceived oppression to violent radicalisation as it holds that there are five floors; a person sees different kinds of opportunities open to him or her on that floor. It is believed that the higher the floor, the more limited the person’s choices are. We also know that peer pressure can increase young peoples’ vulnerability and put them at risk of being radicalised towards violence. Peer pressure can be seen as a way of group bonding and can easily become a social process in the absence of other forms of constructive integration and belonging. This leads to the view that violence is a way of dealing with the injustice that young people face, thus making violent radicalisation hard to deny or overcome. The reasons that young people may be living within environments whereby opportunities arise for violent radicalisation are largely due to the lack of introspection. The lack of introspection is another reason that leads to young people living within environments whereby opportunities arise for violent radicalisation. Introspection is the examination or observation of one’s own mental and emotional processes. My research suggests that the phenomenon of violent radicalisation can be rooted out only through a bottom-up structure of cooperative policies.Violent radicalisation is a threat to universal human rights values as these are based on our cultural and humanist inheritance following two world wars. This cultural inheritance provides narratives of a collective identity, meaning and purpose to young people. This could be argued to help young people get through some rough parts of their life and at the same time to nurture their talents and avoid treating them as threats. YEIP looked at the “what”, “who and “where” of a counterterrorism approach. In terms of looking at the “what” factor and countering violent extremism, the push factors play a part as they highlight the underlying grievances that violent extremism exploits, such as no path for advancement and no escape from injustice which feeds instability and disorder. This plays off the pull factors as it allows recruitment tactics to be used and individuals who are trapped within impoverished communities to be targeted. They may be an easy target as they could be easily persuaded and feel like their rights are being valued and recognised so they are willing to participate in events which may not be morally correct. The “who” aspect requires a “whole of society approach” between various stakeholders and ensures that trust is built and that fraught relationships between the EC, governments and actors in civil society or marginalised communities are repaired. The “where” aspect involves considering the areas in which young people may be targeted in

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order to prevent the expansion of terrorist networks and keep vulnerable communities on a path of stability.

Truth no. 2 Over the last decade, several international policies have been developed to prevent the risk factors that lead to the marginalisation and violent radicalisation of young people9. Some of these are aimed at preventing youth marginalisation, social exclusion and radicalisation by addressing the issues of education, civic participation, unemployment and poverty. However, action plans and concrete steps on implementing them have not been finalised by a number of member states, and no impact studies on the proposed measures are yet available. Furthermore, there is a dearth of work exploring the connection between the marginalisation and violent radicalisation of young people. Our project is only a small example of scientific studies focusing on this issue. Furthermore, studies on the use of restorative justice and community-led prevention policies and practices at the local and international levels remain absent. Similarly, restorative justice does not feature in these initiatives despite the EC’s and CoE’s keen interest to invest more in this concept. Finally, the continuity of grassroots programmes remains strongly dependent on ad hoc funding.This leads to good projects losing momentum and the bonds they create with youth communities. Our three-year programme also led us to conclude that there is still a need to develop educational tools for the prevention of violent youth radicalisation. For example, we observed that, in schools, the policies and prevention programmes currently follow either the “security mindset” or the “human rights mindset” (e.g. Programme Choices, Commission for the Protection of Children and Young People). Nevertheless, even if they adopt a human rights approach, this is not free from set mindsets and the punitive paradigm. A shift in thinking has yet to take place within educational settings and institutions. We have also learned that educational strategies to support prevention efforts are dependent on the educator’s abilities to identify personal challenges of young learners as they struggle with issues of wellbeing, identity and meaning and are tempted to adopt radical views in search for meaningful answers. Schools’ autonomy at the local level must be explored further by national governments to identify the zones where young people are at risk and establish the cross-sector partnerships that will support them. Involving young people as co-designers and learning to share our power with them are key principles when designing prevention strategies and practices for them. I also found that it is important to connect youth workers and educationalists with

9 Some examples are the European Agenda on Security, the EU Youth Strategy, the Education and training 2020 and the Erasmus+ Inclusion and Diversity Strategy.

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professionals in the community (e.g. from the justice, social and child protection sectors) as well as families in view of providing learners with relevant and timely assistance on the full range of issues that they may be struggling with. Additionally, there is a need to develop and implement a set of support measures for socially disadvantaged and marginalised youth groups in parallel with prevention initiatives in partnership with all relevant local and national authorities. Focusing on youth offending institutions, our discussions with professionals who work with ex-offenders, mental health practitioners and young people at risk or who have offended indicate that restorative justice could help develop resilience and aspirations. By treating young people involved in the criminal and youth justice systems without discrimination and by giving them goals and skills through participation in activities, they could achieve the development of a sense of agency, identity, autonomy and responsibility. Above all, this process can allow them to have hope and thus invest in their future and integrate socially. It is worth noting that professionals themselves asked for more training and support in understanding restorative justice-based interventions that are co-designed with young people and avoid the current punitive paradigm of punishment and control. Moreover, it is essential to include personalised local counselling services adapted to the needs of vulnerable young people who are either at risk of marginalisation or already marginalised at risk of violent radicalisation. In this process, it is important to consider the culture and the particular characteristics of the individual. Policies should target the implementation of training programmes for vulnerable young people on the basis of their knowledge, skills and specific needs while considering the current labour market conditions. Such programmes for young individuals could include a variety of activities like sports and arts and crafts and could be complementary to school. Lastly, it would be necessary to inform families, educational institutions and community bodies on the topic and enhance networking and cooperation between them.

Truth no. 3 I strongly believe that it is only through partnership work with local communities that policy-makers and governments can win ‘the war against terror’. Without embedding community empowerment as a principle in prevention strategies and policies, interventions will remain distant from people’s realities and top-down. For example, the EU’s Counter-Terrorism Strategy has four key pillars – prevent, protect, pursue and respond – carefully designed to fight terrorism globally and make Europe safer while respecting human rights10. The ‘Prevent’ pillar can be distinguished from the following three in that it focuses on non-coercive measures that

10  The European Union Counter-Terrorism Strategy (November 2005): http://register. consilium.europa.eu/doc/srv?l=EN&f=ST%2014469%202005%20REV%204.

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seek to prevent or mitigate violent extremism11. However, the remaining three pillars tend to focus on coercive measures. One of the key functions of community in crime prevention is to change local conditions that might be affecting criminal behaviour, victimisation and a sense of insecurity among vulnerable individual or groups12. The relevance of the notion of community can also be identified in one of four main targets of intervention levels: the individual, the relational environment, the community environment and the social environment (International Centre for the Prevention of Crime, 2015). More broadly, community environmental measures focus on strengthening the community’s ability to identify individuals vulnerable to radicalisation and to mobilise resources to intervene should these individuals become radicalised (Mirahmadi, 2016). This may involve prevention initiatives designed to strengthen the community’s trust in institutional authorities or to create safe spaces for youth in trouble. Usually, these initiatives endeavour to foster community resilience, social cohesion and integration of their members. Furthermore, we found out that local communities play an important role in helping to govern as well as to implement prevention initiatives. First, local communities of young people (let those be through connections of race, religion, sexual orientation and so on) are better placed to identify the main local drivers of violent radicalisation, such as poverty, income disparity, lack of education, ideology, and failure of national policies (Koser, 2015). Second, local perceptions that resonate with the target audience and cultural sensitivities are critical in shaping locally acceptable programmes to counter violent extremism. Local practitioners will often be better placed to identify key target audiences and provide current information about the evolving nature of violence. Accordingly, prevention programmes, whether within or outside the current punitive model, need to gain support and input from local communities where they are being implemented. Here, civil society and community actors – such as local elders, faith leaders and those with political power – play a critical role in the development of holistic, relevant and responsive prevention strategies that have resonance and sustainability. Prevention initiatives involving local communities have also been marked by the development of two major approaches, namely ‘Community-targeted approach’13 or ‘Community-driven approach’. In the latter case, 11  The Prevent pillar is designed to combat radicalisation and recruitment into terrorism, which also includes preventing violent extremism (PVE) measures. This strategy was revised in June 2014 in light of evolving trends, such as ‘home-grown’ terrorism, foreign fighters, and the use of social media by terrorists. Under this strategy the EU has been developing policy frameworks and implementation measures both inside the EU and worldwide. 12  Crime prevention approaches proposed by the United Nations (UN) in its ‘Guidelines for the Prevention of Crime’, adopted under Economic and Social Council resolution 2002/13 (ICPC, 2010). The resolution identifies four crime prevention approaches: social crime prevention, situational crime prevention, locally based or Community crime prevention, and reintegration programmes. 13  These are ‘hard-power’ initiatives that target communities for intelligence-gathering and enforcement activities driven by the security priorities of the member state. They involve little or no consultation or partnership with members and groups from the general public.

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preventing violent extremism (PVE) initiatives are pursued through locally driven, cooperative initiatives, tailored to local contexts, to increase effectiveness. That said, in practice, the significance of community-driven prevention initiatives will need to be acknowledged by expanding our existing approach beyond ‘hard-power’ initiatives and law enforcement interventions. It is clear that there is a need for multistakeholder collaboration in the form of community-driven initiatives.

Truth no. 4 Traditionally, policy-makers have turned away from the economic reality of communities, including young people. If we are to move away from policies and practices that are designed in high ivory towers, then this reality must be accepted and addressed positively. This is particularly relevant now, when communities are faced with the unprecedented socioeconomic impacts of the Covid-19 pandemic. Therefore, employment, training and education are key levers for crime prevention especially in the context of young peoples’ realities. But education is more than just a tool for a better future and employment. It is the soft power that can help address some of the inequalities that are created between the powerful and marginalised groups. It has also been proven that education can act as the soft counterpower that can play a key role in the prevention of violent radicalisation. For example, we have found that education plays an essential role in the promotion of the core values of the EC and the CoE and has been a defence against the rise of violence, racism, extremism and more14. In other words, young people need relevant learning opportunities to develop skills and attitudes that can instigate their resilience15 against extremist propaganda (UNESCO, 2016, p. 9). Our research showed that resilience can help young people to build positive actions rather than heading down the path to violent behaviours. Resilience enables young people with the ability to utilise the opportunities that exist in their local communities while it can also create new ones. Consequently, when confronted with problems, they manage them positively (All-Party Parliamentary Group for the British Council, 2017, p. 37). I remember Nelson Mandela’s famous saying: “Education is the most powerful weapon which you can use to change the world”. How true this is, but also how scary it is that we have subconsciously let the value, quality and availability of education deteriorate. Too often, formal educational structures will be given instructions from above to control educational content, while the structure of the educational system is focused not on giving and community empowerment but on competitiveness and individualism.

14  This growing awareness is reflected in the adoption of the CoE Charter on Education for Democratic Citizenship and Human Rights Education by the Organisation's 47 members states in the framework of Recommendation CM/Rec(2010)7. 15  In the context of YEIP, resilience was defined as the capability of people, groups and communities to reject proponents of violent extremism when it manifests itself.

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However, education does not take place only in formal settings such as schools. In our research, we found evidence that resilience can be built through informal education as it can act as the vehicle for engagement even with the most vulnerable young people (Schomerus et al., 2017). We have also argued that the primary purpose of education should be not only to develop knowledge, skills and competences but also to embed fundamental values that help young people – in cooperation with parents and families – to become active, responsible and open-minded members of society16. Nevertheless, although the right to education has been recognised as a human right in international conventions and as one of the key targets of the Sustainable Development Goals adopted by UN member countries, the reality is that many children and youth face barriers in accessing and receiving quality education17. For example, only 63% of youth accessed upper secondary school education in 2014, according to the Progress towards the Sustainable Development Goals Report by the UN Secretary-General. We have also found that good-quality education that prevents young people from extremist views can take place through informal routes18. One format of nonformal education is youth work.Youth work can provide youth with safer spaces for discussion, self-expression, and pluralistic debate and engagement and can promote counter-narratives and alternative role models based on tolerance and democracy. However, it takes an exceptional level of honesty, integrity and moral judgement to help young people explore their own beliefs without imposing our own. Given that social exclusion is a risk factor for youth’s violent radicalisation and denotes a process of progressive multidimensional rupturing of the social bond at the individual and collective levels, youth work can provide them with examples of positive behaviour and instigate positive relations with peers. In conclusion, teachers and youth workers need to be equipped with appropriate skills and tools to deal with young people’s problems. Resilience is about how students are taught as well as what they are taught, including how we, as educators, share our power with them. Our field trials in several school environments in the participating countries showed that teachers do play a central role in the prevention of violent extremism (not as punishers but as educators). They can be role models but also the first to identify 16  “Declaration on Promoting citizenship and the common values of freedom, tolerance and non-discrimination through education”, Informal Meeting of European Union Education Ministers, Paris, 2015. 17  “Declaration on Promoting citizenship and the common values of freedom, tolerance and non-discrimination through education”, Informal Meeting of European Union Education Ministers, Paris, 2015. Well as educational inequality in terms of outcomes and unequal distribution of educational resources such as trained teachers, technologies, still constitute a major challenge in education (E/2017/66). 18  Formal education was defined understood as “the structured training systems that run from pre-primary and primary through secondary school and on to university”. Nonformal education was defined by our project as “any planned programme of education designed to improve a range of skills and competences, outside the formal educational setting”.

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signs of violent radicalisation. They can also serve as a bridge between school, families and the broader community. Of course, education alone cannot prevent an individual from committing a violent act. However, we strongly believe that the provision of relevant education of good quality can make it difficult for violent extremist ideologies to proliferate. That’s why future European education policies must ensure that learning doesn’t become a breeding ground for violent extremism. Ensuring inclusive education for both children and young people helps counter racism and discrimination, promotes citizenship and teaches understanding and acceptance for different opinions, beliefs or lifestyle. And when trying to face this problematic, we cannot afford wasted talent, social exclusion or disengagement among youth. That’s why young people should not only be architects of their own life but also contribute to positive change in society.

Truth no. 5 The role of the family in preventing violent radicalisation has been consistently ignored by international and national stakeholders and powers. Our research suggested that family members should be seen as partners in signalling, preventing and protecting individuals at risk of radicalisation (Gavrielides, 2020). However, our participants indicated that in order to achieve this partnership, parents need appropriate support. For example, governments need to allow and support parents to develop a better understanding of radicalisation processes that lead to violence. Parents also need to be equipped with the skills that will allow them to play a proactive role in shaping positive attitudes toward non-violence. Once again, empowerment through capacity-building is crucial. Governments can achieve this by developing the understanding of processes of change, disengagement or de-radicalisation and by investing in support structures for family support professionals. We also found out that the notion of “family” is continually evolving and thus it is important that local understandings are accepted. Family is one of the domains where greatest changes have taken place over the past few years. The traditional nuclear family consisted of a married father and mother with several children. However, today, this is only one of the many family models. The role of men and women has changed, and women in most countries enjoy the same educational and employment opportunities as men. The prevention of violent extremism and radicalisation can still benefit from familiar support, even if it is a single-parent family, a family headed by two LGBTQ (lesbian, gay, bisexual, trans, queer) parents or a family led by heterosexual, cisgender parents (parents who remain the gender they were assigned at birth).

Truth no. 6 It is imperative to foster a more inclusive society, which is prepared to share power and accept our cultural differences, if violent radicalisation is to be addressed.

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Respect for diversity can also help to understand antagonistic viewpoints that will foment social abilities such as empathy and compassion. In the “State of democracy, human rights and the rule of law” report, the CoE’s Secretary General named inclusive societies as one of the five fundamental building blocks of democratic security by saying that a democratically secure Europe is possible only [if] it is guaranteed that all members of society have equal access to fundamental rights (Secretary General of the Council of Europe, 2017). By paying attention to respect for diversity, we can build a society that is more inclusive and in which the risk of violent radicalisation can be null. So, at a time of increasing global challenges and threats worsened by local tensions and conflicts which undermine humanity’s cohesion, learning to live together becomes more topical than ever before. To this end, a holistic approach to integration is necessary. And we need to all accept that although young people can be radicalised they are not “risks” to manage. All of them have something to offer and that’s why we need their ideas and hopes. To empower young people implies the discovery of individual skills, the transformation of emotions into energy and ideas into projects, and finding ways to constructively and non-violently resolve their conflicts.Young people should be encouraged to channel their energy to create and develop positive ideas and solutions to the challenges we face today. This way, through the participation in organisations and informal groups, young people can develop self-confidence, identity, belonging, friendship and feelings of comradeship and give purpose to their lives.

7.3 Concluding thoughts This chapter went back to my original position developed in Chapter 1.We focused on what creates fear through terror and how this is developed through the politics of believe to belong. I then used data from a recent research study that I carried out to construct six truths. It is clear from this analysis that the content and direction of current public debates on violent radicalisation have deepened the inter-generation gap and created further isolation of marginalised groups. The various truths argue in favour of a positive approach such as the PPRJ model that empowers those at risk as opposed to managing them as risks. Focusing on youth, PPRJ dictates that young people need relevant learning opportunities to develop skills and attitudes that can instigate their resilience against extremist propaganda. We have witnessed that resilience can help young people to build positive actions rather than engaging in violent behaviours. This resilience can be built through both formal and informal education as it can act as the vehicle for engagement even with the most vulnerable of youth. Similarly, restorative justice and other dialogue-based preventative initiatives can take place through both formal and informal routes. They can promote counternarratives and alternative role models based on tolerance and democracy. A key underlying value of restorative justice is power-sharing. This must be pursued at all levels when engaging with young people.

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Before I conclude this chapter, I must make a disclaimer. It relates to two personal experiences. In fact, some would call them odd coincidences. The first happened during the 2005 London bombings, when I was fortunate to have taken the train that was followed by the one that was bombed in Kings Cross. I arrived at work completely oblivious of what had happened to the train before me. The second coincidence took place when I was due to travel to Brussels and stay at the hotel above the train station that was bombed. The travel (which in the end was cancelled the day before it was due) related to a meeting that was organised by the EC with the aim of informing their restorative justice policies on terrorism! So I do not write without passion. However, I do want to believe that I write with truthfulness and evidence. As I questioned the limits of restorative justice, I asked myself who is the real terrorist in the attacks that I so fortunately escaped. As I argue that dialogue-based approaches can help rebalance power, I also asked whether a restorative justice encounter can ever be possible for restoring terrorist acts. In the 2015 Paris terrorist attacks, the “offenders” chose death and thus their mere absence made restorative justice void. But how about their families? And what is restorative justice if not just an encounter and a diversionary method for the criminal justice system? In fact, Bueno quotes a good number of examples in Colombia, where terrorists have been able (and willing) to meet the children or family members of their victims (2013). This was also the case in the SpanishBasque conflict (Rodriguez, 2013). Follow-up research told us that the healing effect of these meetings was significant and that the affected communities were able to ask questions, understand and restore what they could. I cannot imagine a world where our sense of justice is measured by how many offenders we incarcerate or indeed how many terrorists we punish and kill.Thinking of my own fear and two coincidences, I understand why the narrative that gives priority to public security is appealing. But the many examples whereby communities came together to heal through a restorative ethos reassured me that we are not an international society of punishment and control. In fact, it reminded me Walgrave’s maximalist (and romantic) vision of restorative justice. He said: the pursuit of restorative justice is grounded in a social-ethical vision that focuses on the quality of social life. Furthering the quality of social life is possible through three ethical guidelines (or virtues) for members of the community: respect, solidarity and active responsibility. (Walgrave, 2008, pp. 79–99) The truth is that our communities will apply restorative justice whether our governments choose to endorse it or not. For example, in the case of Paris, the French government was swift by declaring a “war on terror” and by putting a ban on public gathering. Yet what followed was unprecedented. On 11 January 2016, thousands of people from France, Europe and internationally gathered to march against what they saw as a “war on liberties”. Their slogan “Je suis Charlie” showed

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that there is solidarity and indeed a shared feeling of community and ownership in what happened. It is true that this demonstration did not involve any encounter between victims and offenders, yet its impetus goes at the core of restorative justice as this was articulated in the previous sections of this book. It focused on the positive values of the affected communities and on what binds these communities together irrespective of faith, nationality and economic interests. One could even call this attempt ‘a ritual’. Follow-up interviews with the killers’ relatives (and other members of the Muslim community) showed that they have found this ritual to be the most inclusive and constructive act that made them feel part of the solution and no longer the enemy. “The accent was on what unites and not on what divides. We now go a step further and wonder whether a policy inspired by restorative social ethics could contribute to a decrease in terrorism” (Walgrave, 2016). The Paris demonstration reminded me that the forgotten victim in all terrorist attacks is the community and with it our humanity. But there is no effort to heal this victim who in fact gets re-victimised by the follow-up “get tough” policies. Every time there is a new terrorist attack, the immediate reaction of politicians, criminal justice agents and the media is to declare war against the terrorists and call for special meetings to toughen up immigration rules, security policies and protocols. Only they forget that ‘war’ by definition should have a time and geographical limit. Terrorism does not understand these barriers. Over the last years, new anti-terrorism legislation and executive measures have been introduced in almost all Western states in the hope of meeting enhanced security obligations. Special powers have been handed over to the executive and ad hoc procedures have been introduced with the belief that these will increase effectiveness and reduce the risk of terror. However, in the process, a number of human rights and civil liberties were put in danger or on hold until the ‘crisis is resolved’. This crisis has lasted more than 20 years. The road that we have taken is leading international society to become more polarised than ever, while the “them” (criminals–terrorists) and “us” (victims) rhetoric dominates political speeches and media presentations (Gavrielides, 2015). And I have to ask: what will it take for society to finally raise the mirror of responsibility and look well into its reflection? Every time I look into this mirror, I see nothing but myself and a thousand of other fellow citizens.We are the real architects of the social fabric that generates the extremist ideologies, which then gradually corrupt universal values such as tolerance and the respect of life, dignity and brotherhood. The extremist ideology that leads those young men and women to act violently is not an alien virus of unknown origin. It is a product of our way of living and a consequence of keeping our eyes closed so that we don’t see the truths that have been revealed in this chapter. Sharing responsibility and the ability to look inside also made me ask whether a public debate and a restorative dialogue for responsibility-taking and reconciliation might indeed be more fruitful than yet another “war on terror” that could take more freedoms away from everyday people, including those who are most vulnerable, such as those in hospitals, care homes, foster care and, yes, prisons. But to do

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so, we must first learn to share power ourselves and address our hidden biases and agendas. As I try to visualise a terrorist, I see no face. If I try harder, then I see the terrorist within.

References All-Party Parliamentary Group for the British Council. (2017). Building Young People’s Resilience to VE in the Middle East and North Africa. London: British Council. Bueno, I. (2013). “Mass Victimization and Restorative Justice in Colombia: Pathways towards Peace and Reconciliation?” PhD Thesis, KU Leuven. Council of the European Union. (13 June 2002). Council Framework Decision of 13 June 2002 on Combating Terrorism [Online]. Available at: https://eur-lex.europa.eu/legal-content/ EN/ALL/?uri=CELEX%3A32002F0475 (accessed on 24 January 2021). Council of the European Union. (30 November 2005). The European Union CounterTerrorism Strategy [Online]. Available at: http://register.consilium.europa.eu/doc/ srv?l=EN&f=ST%2014469%202005%20REV%204 (accessed on 24 January 2021). European Union Education Ministers. (17 March 2015). Informal Meeting of European Union Education Ministers [Online]. Available at: Informal Meeting of European Union Education Ministers, Paris, 2015 (accessed on 24 January 2021). Europol. (2018). EU Terrorism Situation and Trends. Brussels: EU. https://www.europol.europa. eu/sites/default/files/documents/tesat_2018_1.pdf. Gavrielides, T. (2015). Offenders No More: An Interdisciplinary Restorative Justice Dialogue. New York: Nova Science Publishers. Gavrielides,T. and Worth, P. (2014).“Another Push for Restorative Justice: Positive Psychology & Offender Rehabilitation”. In Crime: International Perspectives, Socioeconomic Factors and Psychological Implications. New York: Nova Science Publishers. Hall, M. (12 July 2016). Radicalisation, Extremism and Terrorism:Words Matter [Online]. Available at: https://epthinktank.eu/2016/07/12/radicalisation-extremism-and-terrorism-wordsmatter/ (accessed on 24 January 2021). International Centre for the Prevention of Crime. (2010). Rapport International 2010 sur la prévention de la criminalité et la sécurité quotidienne: Tendances et perspective en 2010. Montréal, Canada: ICPC. International Centre for the Prevention of Crime. (2015). Preventing Radicalization: A Systematic Review. Montréal, Canada: ICPC. Koser,K.(2015).5Ways Communities Can CounterViolent Extremism [Online].Available at:https:// www.weforum.org/agenda/2015/05/5-ways-communities-can-counter-violentextremism/. Mirahmadi, H. (2016). “Building Resilience against VE: A Community-Based Approach”. The Annals of the American Academy of Political and Social Science 668: 129–144. Orav, A. (March 2015). Religious Fundamentalism and Radicalization [Online]. Available at: http://www.europarl.europa.eu/RegData/etudes/BRIE/2015/551342/EPRS_ BRI(2015)551342_EN.pdf (accessed on 24 January 2021). Pawlak, P. (November 2015). Understanding Definitions of Terrorism [Online]. Available at: https://www.europarl.europa.eu/RegData/etudes/ATAG/2015/571320/EPRS_ ATA(2015)571320_EN.pdf (accessed on 24 January 2021). Rodriguez, E.P. (Ed.). (2013). Los ojos des otro. Encuentros restaurativos entre victimas y ex miembros de ETA. Santander, Spain: Sal Terre.

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Schomerus, M. and El Taraboulsi-McCarthy, S., with Sandhar, J. (2017). Countering Violent Extremism (Topic Guide). Birmingham, UK: GSDRC, University of Birmingham. Secretary General of the Council of Europe. (2017). State of Democracy, Human Rights and the Rule of Law [Online]. Available at: https://edoc.coe.int/en/an-overview/7345-pdf-stateof-democracy-human-rights-and-the-rule-of-law.html. United Nations Educational, Scientific and Cultural Organization (UNESCO). (2016). A Teacher’s Guide on the Prevention of VE. Paris, France: UNSECO, p. 9. Walgrave, L. (2008). Restorative Justice, Self-Interest and Responsible Citizenship. Cullompton, Spain: Willan Publishing. Walgrave, L. (2016). “Domestic Terrorism: A Challenge for Restorative Justice”. International Journal of Restorative Justice 3(2): 282–290.

PART III

Restoring peace Back on track

8 THE FALLACY OF ONE JUSTICE AND A CONSENSUAL JUSTICE MODEL RESTRAINED BY HUMAN RIGHTS

8.1  Τα πάντα ρεί και ουδέν μένει: A different Zeitgeist So far, we have examined and challenged restorative justice as a form of achieving and maintaining justice and fairness in the hope that it can offer us an alternative for pursuing equality (including race equality), which is free (or as free as possible) from power abuse.The need to place justice and the system that delivers it within cultural, historical and societal contexts was taken as a given. A reminder, nonetheless, that these are the very environments that provide the fertile ground for power abuse whether this involves private or public affairs. But these environments, along with us, are ever changing. As we took our journey together, we became witnesses to a shift in the justice tectonic plates – a different Zeitgeist. This observation is not attached to a particular country, continent or legal system. It relates to how you and I view, pursue, achieve and indeed want to experience justice at the inter-personal, inter-community and inter-state levels. Where the literature is thin on this trend, we listen to the stranger passing by who is also witnessing this change. This makes our questioning and this book timely in a slowly awaking world where the broken “justice sausage machine” is no longer silently accepted. In our current reality where justice systems are forced to reconsider not only their own subsystems1 but also the entire framework within which they operate, our common sense is questioned. The paradigm stops fitting the facts. The chapters in this monograph as well as the case studies in Part IV point out a number of reasons for this questioning: increasing inequalities, the uneven distribution of wealth, the power and interest battles within and outside the restorative justice movement, the 1  For instance, in the case of criminal justice systems, their subsystems are the police machinery, the prosecution, the courts, prison and the probation service. DOI: 10.4324/9781003194576-12

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increasingly stronger community voice, the world economic crisis and the impact of the recent Covid-19 pandemic, stronger social movements, the globalisation of civic society as well as the role of academia and research. Aristotle reminded us that justice is hardly a subjective notion. It is made of ingredients that are pure and easy to identify in nature. It is the theories that have been developed to explain these ingredients that are human constructs and hence subjective to power and questioning. It is also the systems that we set up to deliver justice that are infused with interests and foreign elements of power and control. The more top-down and hierarchical these systems are, the more likely they were set up to serve that status quo and the machinery that gives them meaning. Therefore, if this is the case for the value of justice, then why would the notion of restorative justice be any different? The truth is that we tend to think of restorative justice as a notion that has, or should have, a physical or conceptual existence within the real word. As argued in this book, some have attempted to explain its physical existence by defining it through process-based descriptions and by giving real-life examples that may include practices such as mediation, conferencing and circles. Others have asserted that restorative justice may be more than a practice encompassing a set of principles or teachings. Therefore, they provide value-based understandings and theories that may, or may not, be susceptible to testing and empirical verification. Here, I take a bold, but firm, step by stating that the struggles of the past of restorative justice are due to the limited vision of its proponents. I posit that restorative justice is indeed more than a series of practices or a set of values. I assert that restorative justice is a comprehensive set of justifications of structures, or lack of structures, for the pursuit of justice and equality. I make this statement on the assumption that that belief of one justice, or restorative justice, is a fallacy. Whether criminal or restorative justice, civil or public, there is not one justice. Lawyers and other justice professionals would laugh at this claim, as our training is simple. Justice is stated clearly in the law and no one can deviate from it or question it. How can there be two forms of justice for the same criminal act? In the same vein, how can my son accept receiving two different punishments if he fails to keep his room tidy? Surely, this cannot be justice. Yet the journey that we have taken has taught us something different. It is in the individual circumstances that each injustice gains its meaning. It is in the understanding of the specific events that led to an injustice and the specific needs of those experiencing it where we find balance and restoration. More importantly, without power-sharing in the decision-making process of justice, there can be no equity, and equity is not generalisable. It is individual in nature and personal to the events, identities, negotiations, processes and outcomes that it involves. And if there is more than one justice, then I must assert that restorative justice is not a uniform notion either. Despite its objective existence, it is an evolving norm, as its constituent objects are to be found in living nature. These objects are continuously moving. As Heraclitus said: τα πάντα ρεί και ουδέν μένει: “Existing

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things are like the flow of a river; this river you cannot enter twice” (Plato Kratylos, Section 402a2). When making the claim of multiple justices and restorative justices, I also bear two things in mind. First, we should respect what has already been developed by scholars, accepting and building on the process-based and value-based understandings of restorative justice (Gavrielides, 2008a). Both sets of knowledge should be available and indeed be used for constructing a better form of justice. Second, I am mindful not to propose anything that can exist instead of something. I am not an abolitionist. I am a realist with genuine interest in unravelling the hidden dimensions of justice and restorative justice. In fact, as it will become clear, my proposition accepts the implementation of restorative justice within an integrated model of justice. Furthermore, I accept from the outset that no matter our efforts, justice and restorative justice will always be accused by empirical researchers for lacking clarity. Let me qualify this acceptance. I view “restorative justice” as a short-cut term constructed under the mentality of our busy and managerial lives. We also tend to “label” things in order to understand them. In fact, we often find it difficult to understand concepts that are lacking a label. Therefore, we should not be surprised that attempts that continue to define restorative justice and indeed justice in the narrow sense will remain vain and out of touch with the two notions’ evolving and ever-changing nature (τα πάντα ρεί). Scientists will look at water and define it as H2O. But in the pursuit of truth and a higher sense of knowledge that is continuously moving, we will see water as an untamed form of nature that can take almost unlimited shapes, forms and roles. Not one definition.We also get to realise that it is not always good in nature. Where it gives life, it can also take it away. Its definition as H2O then becomes shallow and mundane. I am conscious that I have used the various objects making the restorative justice justification in a collective fashion, missing what the core notion is actually about. In order to identify the common attributes of the variety of these objects that constitute restorative justice, it is vital that we survey the objects themselves in the concrete. The chapters in this book helped us do just that. Nevertheless, we must accept that a medium such as a book has its limitations and this is reflected in the number of issues exposed and the objects discussed. Hence my early warning to the reader for thinking critically while being prepared to watch ourselves as we transform. Without this internal battle and change, very little can be achieved through this writing. To reach an awakened state of mind is not easy. We are not detached from our environments. Each legal system is based on the perceived notion of justice by the society which entrusts its application and enforcement to legal practitioners such as judges and lawyers. This statement leads us to assume two things: first, that there are different legal systems and, second, that there are different types of justice

2  https://www.perseus.tufts.edu/hopper/text?doc=Perseus%3Atext%3A1999.01.0171%3 Atext%3DCrat.%3Asection%3D402a (accessed in December 2020).

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depending on national and local understandings. Although this might be true, what is undeniable is that justice has a core concept: universal truth. However, this book is not about revealing this universal truth. It is about surveying the colours of justice and restorative justice in the concrete and finding that final varnish that we believe complements and brings out these colours in the best way so that inequality, including race inequality, is better served through the balancing of power. In the preceding chapters, justice was spoken of in two ways: the lawful and the fair. The law is a human construct that is devoted to the advantage of all, to the advantage of the best, to the advantage of those in power or to the advantage of those representing it. The law commands us to act according to the mean. A well-written law follows the mean well and a poorly written law does not. On the other hand, fairness is a principle sometimes materialised through the law and the given justice system. The two are not mutually exclusive. As Aristotle put it: “Justice in this sense, that of obedience to law, is thus co-extensive with virtue, but the terms are not identical in meaning” (Ethics). Therefore, although justice is an objective concept, it is divided into the human construct of the law and value-based fairness. This led us to conclude that for any analysis of restorative justice, its objective norm will be moulded into the form that we experience in a legalised justice system and that is delivered through bottom-up and unstructured mechanisms of fairness. Again, my interest is not to advocate for, or against, these two forms. My aim is to understand them. The preceding chapters also helped us to understand that although we can be more demanding in terms of the representation of justice (the law), we have to remain reasonable with our expectations from the agents attempting to represent fairness (the value). We would be obtuse to expect any judge or lawyer to represent the normative concept of justice (fairness). Their job description stops where justice (the law) is done. The question is what sort of justice do we want to pursue? Put another way, what will satisfy your sense of justice after the experience of harm and conflict? For example, if you experienced an injustice by being physically attacked (victim), would you opt for justice (the law) or fairness (the value)? And would your answer be different if you knew what each process to achieve these outcomes involved (e.g. police, prosecution and courts vs. personal involvement and empowerment in deciding and agreeing outcomes). In short, there is the informal delivery system, encompassing our day-to-day treatment and interaction with others. Some argued that justice is first and foremost a value that informs our code of interaction and behaviour towards ourselves and others. This is where justice is delivered informally by each of us in our daily activities and within our communities. The second system of justice, the formal one, encompasses the justice system that has been constructed to deliver justice through the law and its institutions. I did not write this book to help you to decide to opt for restorative justice. This is a task for its campaigners. Here, as awakened minds, we try to understand the available options for pursuing a better sense and experience of justice and fairness,

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which could lead to better equality outcomes that are less infused with external interests and power. It is human nature to hope for something better.Therefore, it should come as no surprise why some reading this book might want to see restorative justice as a tool that can help us experience a better sense of justice. But criticism as well as some genuine attempts to construct self-assessment methodologies for our claims was also present in this book. The chapters also reminded us that the individual is essentially a member of society, or as Aristotle put it, a ‘social animal’, whose identity is determined by, but not limited to, its membership in different social groups3. We will not be able to understand our existence if we don’t place it within the existence of others. Our world and realities are defined by our surroundings, and for those rare thinkers whose views do not conform to what is ‘common sense’, things become complex, as we tend to ostracise or label them as ‘abnormal’. Therefore, interconnectedness and the pre-existence of a social liaison that binds us all in social relationships are the key ingredients in understanding and implementing this better sense and experience of justice and fairness. It is only when we challenge this “common sense” that we will be able to see the various modes of action and arrangement of human affairs, which are classed by universal or widely spread opinion as just. This approach will help us go back to the basics of justice and restorative justice, breaking free from its McDonaldised, single-sided version4.

8.2 Human rights and restorative justice aligned Before I proceed with my argument of one justice and restorative justice, I must provide a descriptive account of the human rights and restorative justice principles in the hope that I can align them for the benefit of the subsequent section. To truly grasp concepts such as these two, we need a development and an understanding of the core principles that underlie them (Braithwaite, 2002b; Harvey, 2005)5. Admittedly, there is an impressive human rights and restorative justice literature on this matter (see e.g. Johnston, 2001; Braithwaite, 2002a; Harvey, 2005; Gavrielides, 2008a). However, the research on bringing these principles together is scarce (Skelton, 2008).

3  However, as various libertarians would argue, although our membership in different groups (e.g. ethnic, religious and national) is influential, our identity cannot be reduced to membership of a single group. Each of us is defined by a unique combination of characteristics that make up our personality. 4 See blog “The McDonaldisation of a community born and community led ethos” by Gavrielides: https://www.theogavrielides.com/single-post/rjweek2012 (accessed in December 2020). 5  However, this does not necessarily mean that an agreement has to be reached as to the practices that use these principles (Gavrielides, 2008a).

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Starting with the restorative justice principles, a number of international and national documents attempted to identify them6 alongside volumes of academic writings. For instance, for Braithwaite (1997), the principles underlying the restorative justice “ethos” are victim reparation, offender responsibility and communities of care. Gavrielides understands this ethos in a broad way: “restorative justice, in nature, is not just a practice or just a theory. It is both (Gavrielides, 2005). It is an ethos; it is a way of living. It is a new approach to life, interpersonal relationships and a way of prioritising what is important in the process of learning how to coexist” (Gavrielides, 2007, p. 139). Moving onto human rights, some may date as far back as the first traces of human history7. Of course, if we isolate the rights comprising the term “human rights”, we run the risk of attributing them to certain religions or even all religions. For example, the sanctity of life and reciprocal entitlements are celebrated in the Hebrew Bible while the right to life is listed among the ten testaments (“thy shalt not kill”). Christianity professes strongly the value of human dignity while the earliest defence of the ecosystem is offered by Hindu and Buddhist religions. Similarly, Islam encourages human solidarity8. Enlightenment and the French Revolution are considered to be the key historical catalysts that introduced “human rights” into our vocabulary (Ishay, 2010). This may explain the traditional division of human rights into three generations as it follows the French Revolution’s three watchwords: liberté, egalité, fraternité. These watchwords were used by Rene Cassin and the other drafters of the Universal Declaration of Human Rights (UDHR) to construct its four pillars of human dignity, liberty, equality and brotherhood (Ishay, 2010). Each of these pillars represents a different generation of human rights and a major historical milestone in their development. 6 Some examples are the “UN Basic Principles on the use of restorative justice Programmes in criminal Matters 2002”, the “Canadian Department of Justice restorative justice Values 2010”, the “New Zealand Principles and Values for restorative justice 2004” and the “restorative justice Council Best Practice Guidance for restorative justice 2011”. More recently, we also saw the Directive of the European Parliament and the Council 2012/29/EU (Victims’ Directive), the new Council of Europe (CoE) Recommendation CM/Rec(2018)8 concerning restorative justice in criminal matters, and the recently (re)launched United Nations (UN) Handbook on Restorative Justice Programmes (2020). 7  For instance, the notion of proportionate punishment and justice can be found in the Hammurabi’s Code of ancient Babylon (c. 2380 BCE). 8  It is worth noting that religion, though not the focus of this chapter, is highly contested as a source of human rights, while there are some views that see human rights as a collective new religion that has come to replace the dated views of the various churches. For instance, in Values for a Godless Age, Klug notes: “In an era where no single dominant religion or other world-view binds the vast majority of individuals, we have lost the basis we once had for shared moral values. Enter human rights; an idea whose time has come” (2000, p. 2). There are also those who are bit more critical of human rights as they claim that in the hands of Western democracies, they have lost their true aim (Douzinas, 2000).

The fallacy of one justice and a consensual justice model  143 TABLE 8.1 The generations of human rights

UDHR pillars

Human rights generations

UDHR articles

Types of rights

Historical era

Human dignity Liberty

First generation

1–2

The Enlightenment

First generation

3–19

Equality

Second generation

20–26

Brotherhood Third generation

27–28

Civil liberties/ rights Civil liberties/ rights Political, social and economic equity Communal and national solidarity

The Enlightenment Industrial Revolution

Nineteenth–twentieth century and postcolonial era

Arguably, the UDHR is now used as the agreed reference point of our universal understanding and acceptance of human rights as indivisible and inalienable entitlements shared equally by everyone regardless of their status in society. Regional treaties that followed World War II, such as the European Convention on Human Rights (ECHR), are inspired by the UDHR. Table 8.1 summarises the chronology of human rights and their generations. Although all religions, secular traditions and schools of thought prior to the Enlightenment shared basic visions of a common good and championed certain individual standards within the human rights discourse, the collective understanding of the term “human rights” was not captured. Most importantly, they did not perceive all individuals as of equal value. From the New Testament to the Qu’ran, the Hammurabi’s Codes and Plato, one can easily identify a lack of common vision towards certain groups such as women and homosexuals, servants (or slaves), the disabled or the elderly. This is not to suggest that since the Enlightenment, the French Revolution and the UDHR, the implementation of human rights as a collective and universal vision of dignity, respect and liberty has materialised. For instance, in the European colonies and in America, slavery continued until the early nineteenth century. In Europe and its colonies, women did not enjoy equal rights and they were not able to vote until the mid-twentieth century (e.g. in 1928 in England). Children’s rights continue to be usurped, and the equal treatment of gays and lesbians has yet to be enjoyed. However, what did change was the narrative on human rights which were discussed at intellectual, academic and political levels as an aspirational charter of minimum standards for all. The development of a universal language of human rights that was informed by secular and international treaties started to take place. Here, a distinction needs to be made between legal articles, rights, standards and principles. The delineation is not clear-cut since all four notions may overlap.

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Legal articles are by definition justiciable parts of a statute that form the main basis for legal claims in a court of law. They also inform jurisprudence and provide a clear framework for enforcement. In the case of human rights statutes, some articles are procedural whereas others are substantial (substantive guarantees). Procedural articles (e.g. Article 1 ECHR) are those that define the process that the state and the agents of the law have to follow when a substantive article is engaged. Substantive guarantees (e.g. Article 2 ECHR) refer to the rights and entitlements of an individual under human rights. Rights may or may not be justifiable.As argued by natural law and liberal theories, human rights are natural rights given to everyone because of their humanity. However, this does not make them automatically enforceable. They become substantive guarantees when protected by the legal articles found in human rights treaties (e.g. right to life under Article 2 ECHR). Put another way, they give context to legal articles within human rights conventions. Similarly, some rights are procedural (e.g. right to a fair hearing under Article 6 ECHR) whereas others are substantial (e.g. right to life under Article 2 ECHR). Standards may or may not be legally enforceable but when found in a justiciable context, they define the lowest level that must be adhered to. Standards generally suggest that an agreement has proceeded on what can be accepted as the lowest point of the practice or notion in question. They also suggest that a wide margin is left for the discretionary development of a practice that not only respects the standard but also builds on it. Human rights as standards signify their evolving nature as they progress and adjust to the realities of the given society and time. Principles may or may not be justiciable but when used in the context of legal rights, they constitute the underlying values characterising them. For instance, being treated with dignity and respect is a key principle underlying the ECHR.This principle encompasses (a) respect for the person, (b) the right to be free from inhumane or degrading treatment, (c) recognition of a person’s dignity because of his or her humanity and (d) respect for a person’s home and family. The first three are mainly protected by Article 3 of the ECHR, while the last principle is protected by Articles 8 and 12, but a number of other articles may come into play. With the above distinction in mind, the universal human rights principles are the following: • • • • • • •

Human dignity and respect Equality Fairness, justice and the rule of law Liberty and individual empowerment Equity and proportionality Solidarity Effectiveness, transparency and confidentiality

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• •

Community duty and individual responsibility Freedom from fear.

The human rights project which started with the Enlightenment and continues until today has evolved from protecting individuals from state brutality to establishing a set of ethical standards essential to creating a decent society (Klug, 2000; Beitz, 2009). It is not the intention of this chapter to look at each human right and restorative justice principle in detail. Here, a critical attempt is made to summarise the common, high-level principles characterising both human rights and restorative justice (Table 8.2). These are the following: • • • • • • • • •

Reparation and restoration Involvement in decision-making and empowerment Rule of law, fairness, proportionality and due process Voluntariness Equality, diversity and non-discrimination Respect and dignity Confidentiality Solidarity Freedom from fear.

These shared spaces (topoi) between human rights and restorative justice can be used in our everyday lives and for the reform of public services such as health and social care (Harvey, 2005; Gavrielides, 2008b, 2017). Osler and Starkey also believe that these are the values that can inform citizenship education, which according to their research can help promote a human rights culture among young people and future generations (2010). As Klug puts it, human rights values “have the capacity

TABLE 8.2  Summary of the principles underlying human rights and restorative justice

Human rights principles

Restorative justice principles

Human dignity and respect Equality Fairness, justice and the rule of law

Respect and dignity Equality and diversity Rule of law, fairness, proportionality and due process Involvement in decision-making and empowerment Reparation and restoration Solidarity Voluntariness

Liberty and individual empowerment Equity and proportionality Solidarity Effectiveness, transparency and confidentiality Community duty and individual responsibility Freedom from fear

Confidentiality Freedom from fear

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to form the basis of a shared ethos without necessarily disturbing all other points of reference in people’s lives, whether these be political or religious or neither of these” (2000, p. 148). This is the same ethos articulated in Gavrielides’s definition of restorative justice (2007, 2020).

8.3 Learning to live with two forms of justice and restorative justice This chapter claims that it is a fallacy to believe in the manifestation of one justice. I also reject the claim that restorative justice is just a practice or a collection of principles. It is a comprehensive set of justifications for the pursuit of justice. Before I proceed to explain my position, we need to identify a common starting point. To pursue justice, we must accept that there is an injustice, an imbalance in the status quo. Let’s call this imbalance “conflict”.This can be between individuals, communities, states or even ourselves. The opposite is “peace”. We have also accepted that there are two forms of justice: the lawful and the fair. Both are desirable and can coexist. However, whereas the lawful requires a structure and a system of regulation, the fair is value-based and can be attained through loose and bottom-up methods.There is enough empirical evidence that restorative justice exists in both forms: the structured and unstructured – the lawful and the fair.There is no better or worse form. There is also no reason for comparing it with what isn’t. My reconstructed vision of justice and restorative justice has a dual dimension: the structured and unstructured. So, let us focus on understanding it in the hope that we can learn to live with both.

Structured justice and restorative justice To understand the formal delivery system of justice, we only need to follow a law’s journey from its conception to its delivery. To deliver justice (the law) formally, first there needs to be an injustice done to society; in this case, we named it “conflict”. This needs to be identified and publicly condemned. It also needs to be backed up by a pattern of unjust behaviour. Through this, the need for regulation arises. This requires a mixture of skills and professions, including politicians, the media, academia, market research, economics and campaigners. Once a law has been produced to regulate this pattern of injustice and conflict, a further series of actors come into play to represent and deliver justice, including lawyers, courts, judges, administrators, prosecutors, and prison and probation staff. Once this law is delivered, a further chain of maintenance encompassing educational institutions, the media, campaigners, politicians and so on is observed. All of these agents and institutions are engaged to contribute to the formal system of justice’s delivery and representation. Structured restorative justice is placed within this machinery and its subsystems of pursuing, delivering and maintaining justice after a conflict has occurred. But these institutions are not equal and the agents delivering or representing justice share various positions of power depending on their roles and place in society.

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This creates the power imbalances that the chapters in this book talked about.These power structures and imbalances are additional to those that may lead to conflict in the first place.These types of imbalances are to be found within the very machinery that is set up to address conflict and its underlying causes. To counterbalance this distortion of power, we have introduced legal standards. Some of these standards we have called rights or human rights and placed them both within the international or individual spheres. In this case, rights and human rights were understood as justiciable standards that are implemented by the very system that they aim to correct. They are based on our common humanity and are informed by the living experiences of those they aim to protect. But they do not have any significance until they take the form, or have the protection, of the law. Thus, they must be introduced into the machinery of the structured systems and subsystems that have been set up to address injustice and conflict. Figure 8.1 illustrates how this structured way of delivering justice and restorative justice works. Within this model, conflict creates crime, offenders and victims. All three are placed within a funnel. Emptying the funnel will bring peace. Exit from the funnel can be achieved through a legalised and structured justice system that is served by structured institutions. The power imbalance that this structure creates is meant to be contained by the outside layer of the funnel which is made of human rights as these are materialised through the law. Structured restorative justice is one way of emptying the funnel and is part of many other structured forms of delivering and maintaining justice and bringing peace.

FIGURE 8.1 

Structured restorative justice (©TGavrielides 2021)

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Unstructured justice and restorative justice Now, turning our attention to the second type of justice and restorative justice, to understand the informal delivery of justice, we first need to put conflict – our common starting point – within the context of harm-doing. Not the law. Conflict in the form of harm causes a broken liaison between individuals, communities, the individual and the community, the individual and the state, or even between states (not a crime). It also creates harmed parties independently of whether these are labelled as victims or offenders. Under this model, it does not matter who did what to whom. What matters is that the conflict has caused harm and a broken liaison in the preexistent relationship of the harmed parties (Figure 8.2). Going back to our funnel, this time it is filled with different ingredients: harm, broken social liaison and harmed parties. Again, to achieve peace, we must empty the funnel. Only this time, the intervention of the law will not work. There is no crime.There is only harm and broken liaison.The law is irrelevant.The community must intervene and various emotions must be employed. This intervention can take various shapes and forms. Restorative justice practice may offer one such form. Unlike in the previous funnel, here loose and bottom-up mechanisms that aim to restore harm and the broken social liaison are used. These are not dependent on formalised subsystems. They use localised and informal projects of bringing peace. But this system is also subject to power abuse. In fact, a common feature of the two funnels is the power structures that are created through the mechanisms of emptying them. But in unstructured restorative justice, these powers are not

FIGURE 8.2 

Unstructured restorative justice (©TGavrielides 2021)

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observed within and between institutions. They are created among those community representatives delivering justice.They can also be created between the harmed and harming parties, as their labels and roles as victims and offenders are removed. Another shared denominator between the two funnels is the role of human rights as restraining standards. In the unstructured version of restorative justice, human rights are enforced not as legal restrictions but as a value-based code of behaviour and practice. Whether they are justiciable or not is irrelevant to the community-led and bottom-up structures that are called to empty the funnel from harm, restoring the broken social liaison and the parties involved. What these justice projects need, including unstructured restorative justice, is the manifestation of value-based guidelines. This is the set of values that we often confuse with restorative justice. This is also where the overlap between restorative justice and human rights is found; or as outlined in a different section of this book, this is the topoi (τόποι) where the two disciplines meet and where the shared list of human rights and restorative justice that was presented in the previous section is relevant.

8.4 Next steps: Learning to share power with justice users When taking a philosophical and critical view of justice and restorative justice, we must pay attention to its practical implications. More importantly, this process should not be without an end. It should lead to some realistic next steps that can help norms transition to practice. This part of the book is all about bringing together the normative thinking of its previous chapters so that we can gradually progress with a practical guide for reconstructing and implementing justice and restorative justice. Here, I have argued for multiple forms of justice and restorative justice that have a shared denominator (τόποι) and that are both appropriate under the given circumstances. What I will add is that the choice for these options should not lie with external bodies but must respect the shared human rights and restorative justice principle of involvement in decision-making. This principle requires both systems of structured and unstructured justice and restorative justice to involve parties in their delivery process. As argued, this involvement can take different shapes while the expectations, principles and risks associated with this process differ from system to system. Nonetheless, once again, the two systems share the prerequisite of involvement. There is another reason why this prerequisite is important. When delivering the lawful (legal standards) and the fair (value-based expectations), both systems are exposed to the powers of the designer, the practitioner and the community. Although I accept that it is impossible to remove power and its risks completely, I argue that through the involvement of concerned parties, the impacts of power abuse are minimised. Moreover, through user involvement, these impacts can transcend from being top-down, imposed consequences to becoming informed and conscious user choices.

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Although it might appear simple, user involvement in policy, practice and lawmaking is not easy. Even in ancient Athens, where citizens would gather in agora9 to collectively engage in democracy, processes and membership selection were compromised. The principles of such processes and elections would also be heavily criticised by democrats of other cultures, times and places10. Admittedly, the official involvement of users in the development of policy is a recent phenomenon. According to Barnes and Cotterell (2012), the first social policy area that officially involved users in its development was health and social care in the early 1970s. For instance, in the UK, this initiative was led by the then– community health councils that were created to represent the public interest in health and health services. They also argue that the disability movement helped boost this interest and indeed develop new participatory models of user-led policy. Barnes and Taylor (2007) also quote later examples of older people’s involvement in research for policy. Literature advocating user involvement reveals a wide range of underlying motivations, theories and methodologies (Lomas et al., 2005). For example, in North America, users are increasingly employed as workers in community mental health teams (Rose et al., 2010, p. 390). As Godin et al., put it: Policy document statements about user involvement in research, that refer to the need for a ‘patient-centred NHS’ and talk about ‘customers,’ suggest a neo-liberal desire to overcome the domination of state professionals and a post-Fordist process of making public services more consumer-driven. (2007, p. 452) In the UK, following the NHS and Community Care Act 1990, user involvement gathered pace (Rose et al., 2010). Service user involvement in mental health services developed in several areas such as training (Forrest et al., 2000), service development (Crawford and Rutter, 2004) and research (Rose et al., 2002). These are some examples illustrating the original point of this chapter of a new Zeitgeist. There is an additional reason why users should be involved in the design of practices and policies affecting them. If governments and reformists are truly interested in benefiting users, then any new service must be evidence-based. Services that are funded through public resources but are structured behind closed doors and in high ivory towers should raise suspicion and allow questioning.The evidence that

9 Agora (αγορά), literally “gathering place”, was a central public space (but also an idea) in Ancient Hellenic city-states where free citizens would debate current matters. For many, agora is seen as a city-state’s best response to accommodate the social and political order of the polis (city). Agora was also the centre of the athletic, artistic, business, spiritual and political life in the city. 10  For example, only men who were citizens of the polis were members of the agora. Women were considered to be homemakers, and those with disabilities (mental or physical) were not equal citizens.

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should be used for these practices and services can only come from those they aim to benefit. Admittedly, there are still intense debates on what constitutes evidence. As Bryman (2004) points out, the gold standard is usually thought to be quantitative data from randomised controlled trials.This is particularly true for civil servants who are quick to dismiss credible and in-depth new knowledge simply because it is not based on large units (e.g. see Gavrielides, 2017). Personally, I have found that when it comes to complex notions, such as justice and restorative justice and how they interact with our realities, “the abstraction inherent in quantitative studies” hinders the process of understanding (Miles and Huberman, 1994, p. 41). As Bryman puts it, qualitative research allows “an inductive theorizing about the way individuals (the sample) interpret their social worlds” (2004, p. 63). The qualitative type of research strategy, he said, is not meant to be based on comparisons of variables but on substantive, in-depth qualitative discussions among participants. According to Dick (2002), participatory action research is experimental research that focuses on the effects of the researcher’s direct actions of practice within a participatory community with the goal of improving the performance quality of the community or an area of concern. Interestingly, Barnes and Cotterell (2012, p. 145) believe that participatory action research has its origins in community development and in the role of community inquiry in challenging Western experts in development contexts in the global South. If restorative justice is all about individual empowerment, then its relevance to regulating research is significant. Yet there is no literature on the methods that restorative justice could play as a research methodology for user involvement. This could be a new development area for restorative justice, as we gradually start to accept that evidence-based policy should be the rule and not the exception. McNeese and Thyer define evidence-based policy as “the integration of the best research evidence with professional expertise and client values in making practice decisions” (McNeese and Thyer, 2004, p. 8). According to Whyte, evidence-based practice “can be viewed as an attempt at a systematic approach to making a decision that emphasises: (a) generating answerable practice questions; (b) locating, critically appraising and interpreting relevant evidence; (c) applying best available evidence in consultation with clients and (d) evaluating the intervention” (2009, p. 47).These are aims that are all aligned with the restorative justice vision. Again, user involvement in policy and practice design is not an end in itself. Too often, users are treated as part of a ticking-box exercise, aiming to convince commissioning bodies or indeed users themselves.The concept of “user participation” is useful here. Brady defines it as “the process by which individuals and groups of individuals influence decisions, which bring about change in them, others, their services and their communities” (2012, p. 159). Hanley et al. (2003) identified three levels of user involvement especially in the context of carrying out research for the design of new policies and practices. These are consultation, collaboration and user control. Adapting Arnstein’s (1969) ladder of “citizen participation”, Hart’s ladder is useful (2008). It consists of eight steps:

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1. 2. 3. 4. 5. 6. 7. 8.

Manipulation Therapy Informing Consultation Placation Partnership Delegated power Citizen control.

Tokenism and exclusion describe the first steps. Only the last three are described by Hart as citizen power or shared decision-making. As argued at the beginning of this chapter, we are living in opportune times for user involvement, as we experience a new Zeitgeist. As a result of the Covid-19 pandemic, institutions and policies are being reviewed globally, and we are slowly becoming a bit more honest about our thoughts and feelings for each other. Public authorities are forced to become more accountable, and multi-agency, cross-sector partnerships are increasing. Of course, a more cynical approach would say that there is just not enough money and that is why the “big society”11 is brought in (but unpaid and on a voluntary capacity). Moreover, there is still a prevailing belief and indeed attitude that democracy should be enjoyed passively and that citizens should be called in only when needed (e.g. to vote or to be a juror). There is also strong scepticism about the value of user involvement in the formation of structures, social policy and practices. Smith and Bailey noted, for instance, that While the involvement of service users in mental health research has increased, a review of the literature suggests that this apparent increase in involvement does not necessarily coincide with service users having a ‘louder voice’ or greater control over service delivery. (2010, p. 35) Others, such as Kemp, believe that “service user involvement can no longer be considered a transient phenomenon because it is embedded in and in part arises from fundamental changes within wider society which have taken place in recent decades” (2010, p. 15). These changes have influenced more widely how the state relates to its citizens, he said. Blum (1996) and Hogeveen (2005) attribute this failure to prevailing conservative and individualistic ideologies. In the area of justice policy in particular, Merlo and Benekos (2003) as well as Zimring (1999) argue that the selective and sensational media coverage of the most serious crimes influences the direction of politicians and decision-makers. Often, the dominant public perception creates chronic pressure on elected governments, 11 The Big Society was the flagship policy idea of the 2010 UK Conservative Party general election manifesto. It then formed part of the legislative programme of the then UK coalition government.

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the parliamentary, educational and justice institutions to react. For instance, Casella (2003, p. 884) argues that in the last ten years ‘zero tolerance’ policies in schools have increased and as a result there is now little philosophical difference between school discipline guidelines and punitive, criminal justice interventions. Ghetti and Redlich (2001) also argue that these unfounded policies encourage knee-jerk reactions to incidents, a culture of retribution and ‘name and shame’ practices that leave long-lasting wounds in communities. I take a step back to view the bigger hidden picture – that of power and control. Notwithstanding, I will simply argue that democracy is predicated on the idea that every individual, irrespective of their background or personal circumstances, should have an equal opportunity (not an obligation) to have a say in decisions about their country’s future and formation of policies, legislation and practices that affect them. Clearly, there has been some progress in involving users in evidencebased decision-making and democratic structures, including those impacting on justice and restorative justice. However, there is still a long way to go before we can safely claim that user involvement has allowed a better balancing of power in the design of justice and restorative justice services and practices. Levels of engagement and perceptions of influence also vary by ethnic group and social class. It is pointless aiming for evidence-based, user-driven justice and restorative justice practices when the underlying values of our democratic societies are flawed. I have argued in this book that, contrary to what many politicians want us to think, these flaws are hardly the result of lack of resources. As evidenced elsewhere, we now know with some precision that there are enough resources for everyone (Dorling, 2011)12. Walgrave notes: “The problem is how to assure that state power does not overrule the views and the interests of the citizens” (2018). Braithwaite (2002b) called this a “responsive state”. Walgrave also said: It is an everlasting challenge to find a balance between the input of the citizens and the community (and communities), and the enforceable decisions by legitimate authorities, governments and/or the state. That does not only depend on particular institutions and procedures in the state, but also on the quality of the citizens’ participation. (2018) More importantly, without power-sharing and user involvement in the design and delivery of justice and restorative justice, there can be no equity, and equity is not a generalisable. It is individual in nature and personal to the events, identities, negotiations, processes and outcomes that it involves.

12  I agree that it is a bold statement to claim that there are enough resources for everyone. However, it is an established fact that “[w]e do have enough for everyone’s needs as we know with some precision how many of us there are on the planet, and we have a good idea of how many of us there soon will be” (Dorling, 2011, p. 14).

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We also know that further increases in our wealth and resources will not necessarily bring us greater happiness, make us better and more informed citizens, give us healthy lives or free our minds. The world does have enough for everyone’s needs but not for our greed and the continuous manifestation of the power that will allow this vice to survive. Greed, the uneven distribution of these resources and defeatism create the ‘disadvantage thinking’ that this book has already exposed as one of the levers of power and control (Chapter 1). As we take the next step in agreeing a rule book for designing user-driven, evidence-based justice and restorative justice, we first need to ask what parties in conflict really want. Then, with accountability in our new knowledge and awakened state of mind, we set off to new beginnings as organic intellectuals.

References Arnstein, S. (1969). “A Ladder of Citizen Participation”. Journal of the American Institute of Planners 35(4): 216–224. Barnes, M. and Cotterell, P. (2012). Critical Perspectives on User Involvement. Bristol, UK: Policy Press. Barnes, M. and Taylor, S. (2007). Involving Older People in Research: Examples, Purposes and Good Practice. Sheffield, UK: ERA-AGE. Beitz, C. (2009). The Idea of Human Rights. Oxford, UK: Oxford University Press. Blum, A. (1996). “Disclosing the Identities of Juvenile Felons: Introducing Accountability to Juvenile Justice”. Loyola University of Chicago Law Review 27(2): 349–400. Brady, L.M. (2012). “Involving Young People in Research: Making an Impact in Public Health”. In M. Barnes and P. Cotterell (Eds.), Critical Perspectives on User Involvement. Bristol, UK: Policy Press. Braithwaite, J. (1997). Crime, Shame and Reintegration. Cambridge, UK: Cambridge University Press. Braithwaite, J. (2002a).“Setting Standards for Restorative Justice”. British Journal of Criminology 42(3): 563–577. Braithwaite, J. (2002b). Restorative Justice and Responsive Regulation. Oxford, UK: Oxford University Press. Bryman, A. (2004). Social Research Methods. Oxford, UK: Oxford University Press. Casella, R. (2003). “Zero Tolerance Policy in Schools: Rationale, Consequences, and Alternatives”. Teachers College Record 105(5): 872–892. Crawford, M.J. and Rutter, D. (2004). “Are the Views of Members of Mental Health User Groups Representative of Those of ‘Ordinary’ Patients? A Cross-Sectional Survey of Service Users and Providers”. Journal of Mental Health 13(6): 561–568. Dick, B. (2002). Action Research: Action and Research. http://www.aral.com.au/ (accessed in July 2012). Dorling, D. (2011). Injustice:Why Social Inequality Persists. Bristol, UK: Policy Press. Douzinas, C. (2000). The End of Human Rights: Critical Legal Thought at the End of the Century. Oxford, UK: Hart Publishing. Forrest, S., Risk, I., Masters, H. and Brown, N. (2000). “Mental Health Service User Involvement in Nurse Education: Exploring the Issues”. Journal of Psychiatric and Mental Health Nursing 7: 51–57. Gavrielides, T. (2005). “Some Meta-Theoretical Questions for RJ”. Ratio Juris 18(1): 84–106.

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Gavrielides, T. (2007). Restorative Justice Theory and Practice: Addressing the Discrepancy. Helsinki: HEUNI. Gavrielides,T. (2008a). “Restorative Justice:The Perplexing Concept: Conceptual Fault Lines and Power Battles within the Restorative Justice Movement”. Criminology and Criminal Justice Journal 8(2): 165–183. ISSN: 1748–8958. Gavrielides, T. (2008b). “Human Rights and Customer Satisfaction with Public Services: A Relationship Discovered”. International Journal of Human Rights 12(2): 187–202. Gavrielides, T. (2017). “European Democracy in Crisis: Building a Bridge between Participatory and Cross-Sectoral Youth-Led Policy”. In M. Nico, et al. (Eds.), Needless in Haystacks: Finding a Way for Cross Sectoral Youth Policy. YEC-CoE Youth Partnership. Strasbourg, France: Council of Europe and European Union. Gavrielides, T. (2020). Restorative Justice Theory and Practice: Addressing the Discrepancy, 2nd edn. London: RJ4All Publications. ISBN: 978-1-911634-17-1. Ghetti, S. and Redlich, A.D. (2001).“Reactions to Youth Crime: Perceptions of Accountability and Competence”. Behavioral Sciences and the Law 19: 33–52. Godin, P., et al. (2007). “Opening Communicative Space: A Habermasian Understanding of a User-Led Participatory Research Project”. The Journal of Forensic Psychiatry & Psychology 18(4): 452–469. Hanley, B., et al. (2003). Involving the Public in NHS, Public Health and Social Care Research. Eastleigh, UK: INVOLVE. Hart, R.A. (2008). “Stepping Back from the Ladder: Reflection on a Model of Participatory Work with Children”. In A. Reid, et al. (Eds.), Participation and Learning: Perspectives on Education and the Environment, Health and Sustainability. New York: Springer. Harvey, C. (2005). Human Rights in the Community. Portland, OR: Hart Publishing. Hogeveen, B.R. (2005). “If We Are Tough on Crime, If We Punish Crime, Then People Get the Message: Constructing and Governing the Punishable Young Offender in Canada during the Late 1990s”. Punishment and Society 7(1): 73–89. Ishay, M. (2010). “What Are Human Rights? Six Historical Controversies”. Journal of Human Rights 3(3): 359–371. Kemp, P. (2010). “Introduction to Mental Health Service User Involvement”. In J. Weinstein (Ed.), Mental Health, Service User Involvement and Recovery. London: Jessica Kingsley Publishers. Klug, F. (2000). Values for a Godless Age. London: Penguin Group. Lomas, J., et al. (2005). Conceptualising and Combining Evidence for Health System Guidance. Ottawa, ON: Canadian Health Services Research Foundation. McNeese, C.A. and Thyer, B.A. (2004). “Evidence-Based Practise and Social Work”. Journal of Evidence-Based Social Work 1(1): 7–25. Merlo, A.V. and Benekos, P.J. (2003). “Defining Juvenile Justice in the 21st Century”. Youth Violence and Juvenile Justice 1(3): 276–288. Miles, M. and Huberman, M. (1994). Qualitative Data Analysis. London: Sage. Mill, J.S. (1993). Utilitarianism: On Liberty, Considerations on Representative Government. London: Everyman, pp. 43–44. Osler, A. and Starkey, H. (2010). Teachers and Human Rights Education. Sterling, UK: Trentham Books. Rose, D., Fleischmann, P. and Schofield, P. (2010). “Perceptions of User Involvement: A UserLed Study”. International Journal of Social Psychiatry 56(4): 389–401. Rose, D., et al.. (2002). User and Carer Involvement in Change Management in a Mental Health Context: Review of the Literature. Southampton, UK: National Institute for Health Research SDO Programme. Skelton, A. (2008). “Restorative Justice and Human Rights”. In S. Parmentier and E. Weitekamp (Eds.), Crime and Human Rights. Bingley, UK: Emerald Group Publishing.

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Smith, L. and Bailey, D. (2010). “What Are the Barriers and Support Systems for Service User-Led Research? Implications for Practise”. Journal of Mental Health Training, Education & Practise 5(1): 35–44. Walgrave, L. (2018). “Restorative Justice and Human Rights in a Democratic Society”. In T. Gavrielides (Ed.), Human Rights and Restorative Justice. London: RJ4All Publications. Whyte, B. (2009). Youth Justice in Practise. Bristol, UK: Policy Press. Zimring, F.E. (1999). “The 1990s Assault on Juvenile Justice: Notes from an Ideological Battleground”. Federal Sentencing Reporter 11(5): 260–261.

9 RESTORING POWER IN JUSTICE AND RESTORATIVE JUSTICE What parties in conflict really want

9.1 Returning power to the parties As early as 1977, Nils Christie spoke of conflicts being stolen from the parties by the State. In “Conflicts as Property”, he argued that the State has stolen the “conflict” between the citizens and that this has deprived society of the “opportunities for norm-classification” (Christie, 1977). This view is very much aligned with Aristotle’s interpretation of equity (see Chapter 3). Empowering those affected by harm and injustice to take part in the restoration of wrongdoing is not just a restorative justice belief. It is a prerequisite for delivering justice that is free from top-down controls and external interests. Too often, justice and restorative justice have been regulated, implemented and evaluated without the engagement of victims and offenders or the practitioners who are called to support them. Our journey so far has helped us to understand how to take the first step in relinquishing power when serving justice (whether within the personal or professional spheres). We achieved this simply by learning to be in an awakened state of mind, which allows us to observe ourselves as we manifest power. We also acknowledged that power is around us and that even with the best intentions, its use may be abused. The second step in our pursuit of justice is to allow other voices to take part in our decision-making, delivery of justice and restorative justice. To this end, this chapter opens up the debate by allowing the voices of those impacted by injustices to be heard. It is divided into four parts. The first three present original data that I collected through two multiyear projects. I present these data at three geographical levels: international (Europe), national (the UK) and local (London). In particular, the first and second parts use the data from a research project that I carried out across Europe in 2012–2014. It involved 272 victims and offenders and 280 professionals supporting them. The second part focuses on the DOI: 10.4324/9781003194576-13

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UK fieldwork that I carried out as part of the same project. This involved a combination of qualitative research tools. First, semi-structured, in-depth interviews with 24 victims and 28 offenders were carried out. To enhance this inductive procedure, I also carried out an online survey through the use of 107 self-completion questionnaires (67 victims and 40 offenders). Finally, the method of focus group was used1. The third part uses data that I collected in 2017 in London using a survey with 66 victims and 44 offenders, followed by 11 in-depth victim interviews and focus groups with seven victims and practitioners.The final part brings all the voices together to conclude with some critical reflections for the future design, delivery and evaluation of justice and restorative justice.

9.2 Fieldwork findings from Europe The first part of this chapter is based on data that I collected from several countries within the EU. The sampling strategy and research methodology are detailed in Appendix A. An important legislative development that was referenced during the fieldwork was the European Commission (EC) Victims’ Directive2.

Let’s talk about victims when we talk about victims Among the most consistent findings of the research are how differently the “victim” concept is perceived internationally and how much national political and societal circumstances influence the way victim support services are understood and prioritised by individual governments.This cannot be taken lightly in the implementation of any international attempt for more rights for victims. Looking at how the term victim is understood and is catered for by EU Member States, whether this is through the criminal justice or restorative justice route, we can distinguish two broad classifications (Table 9.1).These two classifications are not mutually exclusive. Classification 1 refers to how broadly or narrowly a Member State interprets the term victim. Classification 2 refers to how a Member State provides victim support services. 1  Among the 24 experts in attendance were restorative justice practitioners, victim liaison officers, victim services providers, academics, researchers and criminal justice system officials such as prosecutors, police, and probation and prison staff. 2  In 2011, the EC passed a Resolution on a roadmap for strengthening the rights and protection of victims in criminal proceedings (the “Budapest Roadmap”). It stated that new and more powerful EC laws were needed to advance protection of victims’ rights. This resulted in the development and passing of the Directive 2012/29/EU of the European Parliament and of the Council establishing of minimum standards on the rights, support and protection of victims of crime (“Victims’ Directive”). November 2015 was agreed by all member states as the transposition date. The Victims Directive is the first official attempt of formally regulating restorative justice at an EU level. A key objective of the Directive is the consistent and homogenous protection of victims’ rights in the criminal and restorative justice process independently of location and crime.

Restoring power in justice and restorative justice  159 TABLE 9.1  Conceptualising the term ‘victim’ across the EU (©TGavrielides 2021)

Classification 1: How broadly or narrowly the term victim is interpreted

Classification 2: Types of services provided to victims

Model 1: Member States that have developed legal and policy structures that provide support services to the victim, the latter interpreted in both a general context (any victim of crime) and specific contexts, such as victim of terrorism (Austria, Belgium, Germany, Ireland, the Netherlands and the UK). Model 2: Member States that have laws and provisions only for specific types of victims (e.g. children, women, and victims of terrorism) and do not cater more generally for any person who has been harmed due to crime (Bulgaria, Croatia, Cyprus, Hungary, Italy, Latvia, Lithuania, Poland and Spain). Model 1: Member States that provide services to victims only as part of their role in the criminal justice process (e.g. legal aid and prosecution) or as consumers of health and social care services (Croatia, Greece, Spain and Poland). Model 2: Member States that go beyond the customary provision of victims’ services through their legal, health and social care arm by providing bespoke and specialist support either through their own institutions or by funding community-based and civil society organisations (Bulgaria, Cyprus, Czech Republic, Hungary, Italy, Poland and Slovakia).

Starting with Classification 1, we identify two models. Model 1, within Classification 1, refers to countries that have developed legal structures, services and policy frameworks that service the victim in both the general understanding of its notion as well as its specialist context (Austria, Belgium, Germany, Ireland, the Netherlands and the UK). In effect, this means that their legislative frameworks provide not only for services to victims of specific groups such as children and women but also for any person who has suffered harm as a result of a criminal offence (physical, mental or emotional harm or economic loss). Model 2, within Classification 1, refers to countries which acknowledge victims only in a specific context, namely as abused women, abused children and victims of trafficking/terrorism (Bulgaria, Croatia, Cyprus, Hungary, Italy, Latvia, Lithuania, Poland and Spain).These Member States have not yet developed victim support services that are provided in a generic context (i.e. for anyone harmed). In Classification 2, there are also two separate models, this time focusing on how generic or specialist victim support services are provided. Model 1, within Classification 2, includes countries that provide services to victims only as part of their routine criminal justice service provision (e.g. through the police, prosecution, and legal aid) or as consumers of routine health and social services (Croatia, Greece, Poland and Spain). Model 2, within Classification 2, includes countries that go beyond the customary provision of legal, health and social services to victims by

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providing specialist services either through the government arm (e.g. central and local government bodies, public sector providers, and the formal criminal justice system) or by funding community-based/civil society organisations (e.g. Bulgaria, Czech Republic, Cyprus, Hungary, Italy, Poland and Slovakia). Given the above classification, it is not immediately clear how the Victims’ Directive will achieve and attain a top-down baseline in relation to minimum standards for protection, availability and quality control in the provision of criminal justice and restorative justice interventions.

State-based vs. community-based victim support and restorative justice services In the Classification relating to who provides victim support services, Model 1 refers to countries that have put victim support services almost entirely in the hands of the state (Belgium, Croatia, Hungary and Poland). In contrast, other countries (Germany, Finland, and the UK) have adopted Model 2 whereby support services depend principally on community-based entities. As an example of Model 1, legislation in Belgium, specifically the Code of Criminal Procedure, the law on police services and the Act concerning the organisation of an integrated police, has assigned to criminal justice agents the responsibility to provide the service immediately after a crime has occurred. Furthermore, the Protocol on the establishment of an integrated victim policy and the National Forum for Victim Support Policy have improved the coordination and cooperation between bodies dealing with victims. Moreover, the Flemish legislation establishes ‘quality criteria’ and equal accessibility for every kind of victim to these services. In Croatia, victim support services are also run almost entirely by the state. Following the EU Framework Decision 2001, the country has strived to enhance their legal and institutional framework in relation to victims’ rights. The procedural legislation of Croatia enforces rights for victims, such as the right to be informed, the right to legal assistance, the right to emotional and psychological support, and the right to privacy and protection from secondary victimisation. Also, like many other EU Member States, Croatia has legislated to guarantee the right to financial compensation for damages caused by a criminal offence. In relation to victim support policy, the Croatian Ministry of Justice operates together with the National Committee for Monitoring and Improving the Victim and Witness Support System. The latter body is responsible for the development of strategies to improve and standardise the treatment of victims at a national level. In Hungary, another example of Model 1, the most important piece of victimrelated legislation is the Victim Support Act. According to the Act, the victim support service must be provided not only for those directly harmed by the crime but also for their family members, friends and other individuals who are affected when a crime is committed. However, there is no consistency between the Victim Support Act’s definition and the narrow concept of what constitutes a victim as contemplated in the Code of Criminal Procedure. Hungary is also one of the EU countries

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where a generic support service exists to help victims independently of the type of crime that has affected them. It also does not have a specialised service to deal with victims of particular types of crimes. In Poland, a specialised victim support service for children, older and disabled persons is supervised and coordinated by the Victim Support Network. The police play a major role in providing the service in many localities, especially to victims of domestic violence. The passing of non-statutory Charters is a practice observed in other Member States such as the UK, the Netherlands and Ireland. Although there is not yet any evidence of their effectiveness, they may constitute a promising practice in the assistance of the Victims’ Directive implementation and the better provision of victim support services. In addition, the Polish criminal procedure permits the participation of the victim as an auxiliary prosecutor giving a voice to victims. However, compared with the provision of victim support services in other Member States (e.g. the Netherlands), these developments seem to be far behind the minimum EU requirements. For example, victim support services in the Netherlands are provided to any person who simply has been harmed and may not have been officially included in the criminal justice process. This includes restorative justice services and psychological and advice services provided to individuals who perceive themselves as victims of a criminal activity although that particular activity may not have been prosecuted. The UK is an example of Model 2 as the state, in addition to making its own public service provision of victims’ services, provides financial support to voluntary and community sector victim support organisations without being formally responsible for the direct provision of the service. Nonetheless, the UK Government is responsible for developing and implementing policy on victims through the Ministry of Justice. In order to provide the service, ‘Victim Support’ – the leading charity supporting victims – is funded through a grant received from the Ministry of Justice. At the same time, Victim Support receives charitable income through grants and donations. In a similar way, the functioning of non-governmental victim support services in Ireland relies on the state’s financial support. Since the 1980s, civil society has a strong presence promoting victims’ rights and supporting them in their needs. Nevertheless, public bodies such as the ‘support of Victims of Crime’ and the Victims of Crime Office exist to monitor the quality of victim support services delivered by other state agencies and non-governmental organisations (NGOs). However, even in countries where the provision of victim support services is mainly in the hands of community organisations (e.g. Finland and Germany), the state also contributes by providing support for specific groups of victims. In Finland, the state has a double role to play, delivering services to victims of human trafficking and victims of discrimination while also funding civil society for the provision of generic victim support services. In the Netherlands, 20 victim organisations were merged into one called Victim Support Netherlands. This offers legal, practical and emotional support to victims of various kinds.This organisation serves as a platform to coordinate and facilitate the service across the country and works directly with the state and its agents. On the other hand, Germany can be seen as an example of

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decentralisation of this service. There, the functions developed by the public sector to support victims differ depending on each state. For instance, the German Ministry of Justice is responsible only for the coordination of victim support in the state of Mecklenburg-Vorpommern. The remaining states in Germany are not subjected to a national coordinator. Denmark also has a national coordinator, which facilitates a generic victim support service provided through different police districts. Other EU countries adopted a unified or national victim support model. This is not a common trend across the EU and it refers mainly to the Netherlands, Denmark and the UK. In some countries (the UK, Germany, the Netherlands and Ireland), the state is responsible for both funding and providing victim services directly through their ministries and public bodies. In most Member States, the Ministry of Justice seems to be the central government department that is tasked with coordinating the victim support services responsibilities. In many EU countries, victim support and restorative justice services rely exclusively on the community and practically no financial support is given by the state (e.g. Bulgaria, Cyprus, Hungary and Poland). However, there is a long way to go before victim policy supports equally statebased and community-based interventions. Fears are expressed that restorative justice provision is gradually becoming a state monopoly across the EU. For instance, one of the themes that dominated the discussions at the UK focus group with experts related to the current development of restorative justice. The participants claimed that restorative justice is being promoted by government and certain government-funded organisations “through top-down structures that control its agenda and forms of manifestations” (quote from a practitioner).This was not thought to be in the interest of the victim, while concerns were expressed about the need to first change the underlying criminal justice culture. A senior probation manager said during this focus group that restorative justice is being promoted within their Probation Trust as “a quantifiable commodity that must be compared against existing practice. This takes restorative justice away from its key principles”. Similarly, another probation officer said: In our restorative justice unit, restorative justice is as top down as you get. The research on restorative justice is pointing in one direction i.e. it needs to be bottom-up. But all our funding comes from NOMS [government] and therefore it is hard to change the existing culture.This ultimately does not serve victims. The research with professionals from Greece, where restorative justice is provided primarily through the law, as well as from Germany, supports the above finding. This concern was also validated through the fieldwork with victims. For example, one victim, who progressed to becoming a restorative justice practitioner, said: “I stopped implementing restorative justice as the government is now seeing it as a way to get youth to say sorry for their actions”. Another victim said: My overall concern about restorative justice is its further implementation without consideration of victims’ human rights and the power relations,

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including economics, that exist in society. For me, as a White, middle class professional with two degrees, getting a poor, Black kid to say sorry, seems an insult to justice and the injury that was caused. Indeed, it is questionable whether yet another piece of legislation such as a directive can encourage implementation back to its original path and direction. In fact, it is troubling that in its very articles the Directive encourages strict regulation and standardisation of restorative justice as if it were part of the same system that the state owns and controls. The intention to protect victims overlooks the nature of restorative justice as a non-state-based intervention that falls outside of the traditional way of delivering justice. This, of course, does not mean that restorative justice cannot be provided parallel to the criminal justice system. It does mean that protection can indeed be provided but not through the same legal structures that the state provides for its own justice methods (Gavrielides and Artinopoulou, 2013). Interviewed practitioners seemed to agree that restorative justice should be provided both within and outside of the criminal justice system and that this should include partnerships with community and civil society organisations, which seem to have taken the principal burden in the implementation and innovation of restorative justice in most EU member states. My participants in the UK, the Netherlands and Germany also expressed the view that there are already plenty of adequate legislative and institutional arrangements for the protection of victims in the criminal justice and restorative justice process. Nevertheless, there is a considerable gap in the implementation of these intentions. This should serve as a lesson for the Directive and its implementation. They also pointed out that the real challenge is not the passing of these regulations at the national level but their enforcement. Practitioners and other professionals who took part in our programmes also seemed to agree that it is questionable whether legislation alone can help with the implementation of restorative justice. In fact, attempts and resources directed into legislative initiatives may distract from the actual issue, which according to most revolves around community engagement and community leadership. It was concluded that strong power structures within the movements of victims and restorative justice as well as the criminal justice system make victims and offenders suspicious of restorative justice processes. Gatekeepers often treat victims in a patronising or tokenistic manner despite the existence of guidance and regulations. In fact, there are fears that this deterioration will continue as funding is being rolled out to mainstream restorative justice too quickly and without consideration of its complex, local nature.

Standards and standardisation The significance of implementing justice and restorative justice following basic standards was investigated.To understand the role of the state, a distinction was made between two large groups of victim support services.

164  Restoring peace TABLE 9.2  Delivery of victim support services in Europe

Categorisation 1:Victim Support Services provided by the public sector Categorisation 2:Victim Support Services provided by the civil society organisations

Group 1: Delivery by professionals Group 2: Delivery by volunteers Group 1: Delivery by professionals Group 2: Delivery by volunteers

According to Model 1, Classification 2 (see Table 9.2), providers of the aforementioned services are part of the criminal justice procedure. These are screened and regulated as part of the justice mechanism. This will relate to their qualifications as civil servants, lawyers, judges, prosecutors, social workers, police officers, psychologists and so on. Each Member State has its own legal framework for the recruitment, attainment and development of criminal justice, civil service and public sector staff. It has to be stressed that these are general civil servants or criminal justice agents and not exclusive victim support service providers. My research suggests that the majority of services to victims, particularly those provided within the criminal justice context (legal aid, compensation, witness etc.), are provided through criminal justice agents. Put another way, where victim support and restorative justice services are exclusively provided by agents of the criminal justice system, such as probation staff, prosecutors and the police, their training and the standards that they need to respect are very much defined by their professional bodies and the agencies that employ them. In general terms, the state feels that it has an obligation to oversee restorative justice and victim support services only when (a) these are provided directly by its public arm and (b) their funding is provided directly by its government departments. According to Model 2, Classification 2 (see Table 9.2), providers of the aforementioned services are independent (especially in relation to support that falls outside the criminal justice process). These are very much unregulated and unmonitored by state bodies. Some organisations may develop their own quality, accreditation and training standards and frameworks. They then self-regulate and self-monitor to ensure compliance (e.g. see Weisser Ring in Germany, Victim Support in the UK, Victim Support Netherlands, Victim Support Finland (RIKU), and INAVEM in France). Where there is a funding relationship, the sponsoring government body may require certain standards that in most cases reflect human rights and other criminal law legislation. However, this is not uniform across Member States. This finding supports my general conclusion that legislation alone cannot, and will not, achieve the stated intentions of the Directive in relation to restorative justice and victims’ rights. Furthermore, the registration of organisations as specialist victim support and restorative justice organisations cannot be a matter of government control. Most countries deal with this under general guidelines and legislation for NGOs. For example, if a victim support service is registered in a country as a charity, NGO or a non-profit, then the general rules will apply. If the service falls within a specialist profession such as legal or medical, then the general rule is that the relevant regulator

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(e.g. the Law Society in the UK for legal professionals) would expect registration in order for services to be legitimate and accredited. Regulators are independent of government but are controlled under national legislation and national standards. There are no regulators of victim support services in any member state. Data from our research concluded that an attempt to impose registration of restorative justice practices in the UK has backfired and a lot of criticism has been received in terms of both the interference of government and the lack of independence of the registering body (Gavrielides, 2013). The lack of transparency and the many issues that are at stake for the registering body, as well as those expecting to be registered, have raised concerns in terms of how genuine this process is and what criteria are being used. It is also a costly process that excludes and indeed disregards the voluntary nature of these services, which are not carried out for profit but largely as part of civic society breaching a gap in public service provision. This is not unique to one county. In Belgium, for instance, “Services for Victims of Crime must carry out tasks and respect principles enacted by the law … [and] have to apply for official recognition with an official notice from the Ministry of Welfare, Health and Family of the relevant community”3. Similarly, in Estonia, the Victim Support Act provides some guidance on the requirements for a victim support service provider, but again the requirements are rather broad. In France, the approving of associations that deliver victim support services is provided for by law but the procedure for obtaining a service agreement from the state is regulated merely via a Circular and is not of a legislative nature. Arguably, the most stringent regime in terms of registration is in the Netherlands, where the Justice Subsidies Act lays down the tasks in the field of victim support.Victim Support Netherlands then receives funds from the state to implement and to formulate quality standards. An important caveat that cannot be stressed enough is that in all Member States victim support service providers are heavily reliant on volunteers. This is also the case for restorative justice, which traditionally has relied on volunteer practitioners. The examples of the Netherlands and the UK are striking, as over 80% of the workforce of victim support and restorative justice service is voluntary. The notion of ‘volunteer’ must not be confused with that of ‘amateur’.Volunteers can be more qualified to provide victim services than paid staff. However, the need to continue attracting a voluntary workforce is always counterbalanced against the somewhat limited expectations that the state can have on individuals who give their time freely to support others. One good example of providing tailored support to volunteers is found in Denmark, where supervision is provided locally via regular meetings.

9.3 Fieldwork findings from the UK The second part of this chapter is based on data that I collected for the aforementioned project focusing on the sample that I engaged with in the UK.The sampling 3 Belgium, Decree concerning the general welfare (Décret relatief à l’aide sociale générale, Moniteur Belge 17 fevrier 1998), 19 December 1997.

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strategy, sample size and demographics as well as the research methodology that were adopted are detailed in Appendix B.

Findings from the fieldwork with UK victims Victim engagement The current criminal justice system assumes that victims are better off when not directly involved in the pursuit of justice for what happened to them. The same assumption is also made by many policy-makers and criminal justice agents (e.g. see Acorn, 2004). Based on our findings from the fieldwork with victims, we concluded that they do want to talk or at least to be given the opportunity to talk about their views on what matters to them and how they think their best interests can be pursued and protected. The same applies to their views on restorative justice whether they had the chance to experience it directly or have only just been introduced to it. For instance, the response rates in the in-depth interviews were 61.53% for the victims and 51.85% for the offenders. Similarly, the response was higher for the online survey; 67 victims filled it out as opposed to 40 offenders. In fact, our research showed that the more complex the crime, the more chances there were for victims to want to speak up and take part. From the victims who responded, 24% identified themselves to be victims of hate crime, 17% of street crime, 14% victims of rape (female), and 15% of serious violent crime. Seven percent said they were victims of gang crime while the highest percentage (29%) said they were burgled. Three percent said they had a family member murdered. Sixty-eight percent of the victims were female, while the majority were between 46 and 55 years old. One victim said: “The government should open a debate about what is the most important for victims. There are many ways to shift what might appear that victims want”. Someone else said: “The government has responsibility to open this debate and rather than talk about revenge talk about healing”.

Victims’ understanding of restorative justice All participants were given a brief explanation of restorative justice. Ninety percent of the victims said that they had heard about restorative justice prior to the research. When asked what they understood by restorative justice, one victim said: “To give victims the chance to tell offenders the impact of their crime, to have questions answered e.g. Why me?”. Another victim said: “It has a focus on victims’ needs as well as calling offender to account for their actions and see the impact of the crimes”. “Redressing the balance – giving back dignity to the victim – being able to say I am not a victim anymore”, someone else noted. A victim of serious assault said: “Allowing victims of crime the opportunity to speak to the perpetrator of that crime and give them the chance to explain why they committed the crime”. One victim highlighted the significance of emotions:

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Justice that is not just a punishment system for the people who have broken the law. A system that tries to restore an offender to the person they were before they started committing crime. To reconnect them to the emotions of life and living amongst people that they should not harm as they themselves should not wish to be harmed in their life time. A pattern across the victims’ responses indicated that their understanding of restorative justice was based on its value of equal involvement and treatment of all stakeholders involved in the justice process. Restorative justice was seen as an opportunity to really get involved in how their case is managed and what to do about those who harmed them. In short, restorative justice was seen as an empowering process.

Do victims want restorative justice? Almost 77% of the victims who took part in our research had not been offered restorative justice. Out of the 23% who were offered restorative justice, 79% of them agreed to take part. The most important reason for them taking part was “[t]o stop it happening again to anyone else” followed by “[t]o have your say and explain the impact of the offender’s actions” and “[t]o feel that the offender was working to change their behaviour and stop offending”. The most important reason for those choosing not to take part was “[d]oubt offender’s sincerity” followed by doubts about the referral source intentions and the practitioner’s agenda. For those who were not offered, 72% of those who were asked “Would you have liked to have been offered the opportunity to meet your offender (directly or indirectly)” said yes. Fifty-seven percent answered positively to the question “If you had been offered would you have taken part?”. Furthermore, 32% said “I do not know”. Forty-four percent said they would prefer to have been asked face-to-face, and 40% over the phone. Fifty percent said that they would want to get involved in restorative justice prior to court stage. When asked what factors would stop victims from meeting their offender, the majority said “psychical safety concerns”. However, many victims also expressed concerns about the sincerity of the process, the referral agency and the practitioner. In fact, a number of victims said that there are “gatekeepers” both within and outside of the criminal justice system that control access to restorative justice. A victim of street robbery said: “I made it explicit to the police very early on that I wanted restorative justice. They made a note of it but I have no confidence that the note went anywhere”. Another victim said: “Nothing was offered so I had to fight very hard for a restorative meeting and pull every string I could”. A victim of serious assault that was classified as racially motivated also said: Restorative justice is something that the criminal justice system has to offer as part of its process and not only when victims ask for it. In my experience, not too many people know about this option. Since, I have been involved in my

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journey in the past 5 years, I actually believe that we should have restorative justice systems in communities as alternatives to criminal justice prosecutions. Someone else said: “Restorative justice should be part of the criminal justice system. The minute that you have contact with the police and the courts, then this is something that should be considered. However, this was not my experience”. Another victim said: “You cannot be prescriptive that restorative will work for everyone. It should be decided on a case by case basis”. It is worth noting that the majority of victims who were offered restorative justice said that this was at post-sentencing. Interestingly, 70% of the total victims’ sample thought that other victims should be offered the chance to choose restorative justice if they want to. Eight percent disagreed and 22% were not sure.

What do victims expect from restorative justice? When asked what would have made it more possible for them to take part in restorative justice, most victims said that they expected reassurances that their rights and safeguards would not be compromised.They also asked for more attention than was given to them by the traditional criminal justice system. For instance, one victim said: “A victim-focused approach with support from all agencies involved”. “If I was sure the meeting would be run/controlled well”, someone else said. One victim said: That the facilitator is good at their job, and that real support work is done with both the offender and victim before and after the meeting, and confidence in the facilitator, confidence in the police (who totally messed up the investigation), speed of the process (the sooner the better, for me), and “Skilled facilitation of the process”. Another victim said: The facilitator should find out any vulnerabilities that the victim might have before proceeding with a meeting. Sometimes, these vulnerabilities might even be related with the facilitator and I have evidence to believe that practitioners are not careful about this. In order to assess victims’ needs, we asked them how they were affected by the crime that happened to them: 84% said they were affected emotionally, 40% said financially and 24% said they were physically harmed (victims were free to choose all applicable options). Of those who undertook restorative justice, 60% had no previous contact with the offender and 40% knew them (e.g. domestic violence and hate crime). When asked how much time they were given to decide whether they wanted to participate in restorative justice, they gave answers ranging from 24 hours to 48 hours to “enough” or “as long as I needed”. One victim said: “I think it is very hard to be

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prescriptive about the level of preparation needed. What will work for one victim may not work for another. That is why the process must be victim-initiated and -led”. Safeguards must be in place in order for victims to feel confident in restorative justice. “There should be continuous assessment of the offender to make sure there has been no replace especially when it comes to drugs or alcohol”, one victim said. Someone else said: Assessment of motivation to change must be carried out. This means if an offender wants to participate in restorative justice but doesn’t turn up to his probation appointments on time … then any victim should be able to say why do you want to meet me when your timekeeping is not good. Until you can come on time I am not going to give you the opportunity because you let me down again. There was consensus that preparation is extremely important but that not enough time is being invested in it. One victim who progressed in practising restorative justice as a Youth Offending Team (YOT) worker said: “I stopped implementing restorative justice as the government is now seeing it as a way to get youth to say sorry for their actions”. Victims stressed that when the process is initiated by them, the chances of success, in their minds, are higher. Victims were also asked what type of information they were given in order to decide whether to opt for restorative justice. Again, the answers varied from “Nothing” to “Full information about the process and timescales”. This suggested that there is no consistency in the quality of restorative justice as this is currently offered in the UK. Some victims even said that they just received an email or a quick phone call from the practitioner or an administrator. One victim who had undergone restorative justice said: “The process was absolutely the opposite to a victim centred practice. I was not treated with any respect or consideration. If I wanted information, I had to chase for it. My victim experience was not a good one”. Some victims mentioned the importance of the meeting location both for the actual process and for agreeing to take part. All of them highlighted that a neutral space was key, and the majority opted for a public place. There was agreement that restorative justice must remain voluntary both at its initiation and during its implementation. “At any point, the victim or the offender can change their mind. Neither side can feel under pressure to participate or to decide on outcomes. This is something that I experienced because the agency wanted resolution”, one victim said. Furthermore, more information about restorative justice was requested from victims, offenders and professionals but not necessarily in the form of printed material. Case studies and real examples were thought to be the best way to increase awareness. Online material, email and the use of videos and audio were all recommended. The majority of victims felt that all victims should be offered the chance to choose restorative justice over the traditional criminal justice process. However, there were

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conditions attached to this. Some victims said that it shouldn’t be up to the court to decide whether a restorative justice intervention should take place. “If the courts decide, then there is a risk of undermining the voluntary nature of the processes while we add yet more gatekeepers for a justice process that should be community-led”. Someone else said: “There is a risk to base the decision on another agenda different than the interests of the parties if it is all in the hands of professionals and judges”.

Findings from the fieldwork with UK offenders The majority of offenders who took part in the research were women (59%) between 36 and 55 years old. The oldest participant was over 80 and the youngest just below 16. Four were between 16 and 17. The majority were convicted of robbery, followed by burglary, gang crime, street crime and rape or sexual assault. Sixtyfour percent had never heard the term restorative justice prior to our research but this was explained to them in the same way as with the victims’ study. Sentences varied from 3 years to 18 months and community orders. Seventyeight percent of them had not been offered restorative justice. Of the 22% who were offered restorative justice, the vast majority undertook it in prison settings. Only 43% of those who were not offered restorative justice said that they would have liked to be given the opportunity. However, the majority (57%) said that if they had been offered restorative justice they would have taken part, while 28% were not sure.The majority of them said they would prefer to have been offered restorative justice face to face. The key reason for not taking part was “inconvenience” followed by “lack of information” and “being too traumatic”. “Peer pressure” and “agency agendas” were the factors that would most likely lead to a willingness to take on restorative justice but for the wrong reasons. One offender said that what worries offenders the most when offered restorative justice is “the unknown … meeting the person that you did the crime against; it is not going to be an easy thing to do and expressing the reasons behind your offence; expressing remorse”. Most of the offenders (57%) said that they would want to do restorative justice to understand the impact that their offence had on the victim. This was followed by their wish to apologise as well as answer the victims’ questions. Interestingly, an offender who had been convicted of rape said that although he liked the idea of restorative justice he “wouldn’t want to meet the victim. I wouldn’t like the victim to re-live what had happened”. However, when asked whether the victim should have been offered restorative justice as an option, he answered positively. A number of offenders pointed out that they also saw themselves as victims and that the line between who is the offender and who is the victim is often blurred. They also pointed out that dialogue with victims helps them understand “the ripple effect of their actions in the wider community”. A consistent finding from the research related to a fear that offenders had of “restorative justice becoming an industry”; “[o]ffenders can pick up on that”, the offender said. This fear was shared by the majority of the victims’ sample. Overall, issues of awareness, safeguards and quality continued to be repeated as the main barriers for accessing restorative justice.The promise of empowerment and

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the equal treatment of stakeholders were again two of the most appealing elements of restorative justice.

Findings from the fieldwork with UK experts The experts’ focus group was held in September 2013 in London and lasted for three hours. It was held using the method of a restorative circle, whereby all participants had a chance to speak without being interrupted as long they were handed over the circle’s ‘talking piece’. There was no hierarchy within the circle and everyone was treated equally. Some knew each other and all of them considered themselves to be experts in restorative justice through their involvement in practice, research, policy or teaching. A theme that dominated the discussions related to the legislative development of restorative justice in the UK. This was believed to be “through top-down structures that control its agenda and forms of manifestations”. This was not thought to be in the interest of the victim, and concerns were expressed about the need to change the criminal justice culture. A senior probation manager said that restorative justice is being promoted within their Probation Trust as “a quantifiable commodity that must be compared against existing practice. This takes restorative justice away from its key principles”. They all agreed that restorative justice should be provided both within and outside the criminal justice system and that this should include partnerships with community organisations, which seem to have taken the principal role in the implementation and innovation of restorative justice. In fact, it appears that the UK is an example where restorative justice is effective principally in the hands of its community although there is no indication that this will hamper its delivery by criminal justice agents within formal structures. Participants also expressed the view that in the UK there are plenty of adequate legislative and institutional arrangements for the protection of victims in the criminal justice and restorative justice process. Nevertheless, there is a considerable gap in the implementation of these provisions. The group also seemed to agree that it is questionable whether legislation alone can help with the implementation of restorative justice. Furthermore, there seems to be a strong rhetoric around the implementation of restorative justice, which does not reflect real practice. Practitioners said that in the UK a considerable number of practices label themselves as restorative justice. Some of them should be classified only as preparatory restorative justice practices or victim awareness programmes, they said. For instance, one practitioner said: “actual encounters between victims and offenders are extremely rare as most practices involve indirect ways of resolving conflict as well as victim awareness”. There were also comments about bad practice. One practitioner said: “Standards can fall. For instance, prison governors have fewer resources and they are the gatekeepers. Do prison staff have enough knowledge and time to use restorative justice?” Someone else said:

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I know from prisoners that they may sign up to restorative justice in order to break from their cell. Sign up to the programme just so that they break the monotony of being in the cell. Some others use restorative justice in order to get into human contact with people – anyone would do. Another practitioner said: “There are a lot of issues around disability as well as culturally specific matters. How [appropriate] are restorative justice processes?” Practitioners also pointed out that victims are not always the most vulnerable in the restorative justice processes. This confirmed the finding from the offenders’ sample pointing out the fluidity of victimhood. Examples were given of extremely vulnerable juveniles undergoing restorative justice while in prison settings. Issues around post-traumatic disorder, suicidal tendencies and the ability to process pain were mentioned. One practitioner said: Even when we explain the restorative process to offenders, they still do not realise that they will be emotionally charged over it.They are always surprised when victims are insulting them. They understand at a superficial level that they will go into a meeting with a victim but they do not expect to be emotionally affected. Maybe we should prepare them better by showing them documentaries, videos or training material. Another practitioner said: “The victim might have a confrontational attitude against the offender. We don’t want a frustrated offender. That would be a negative outcome attributed to a restorative justice meeting. So, safeguards need to protect both sides”. This is indeed something that must be taken into consideration when implementing the Directive which is primarily victim-focused. It was also pointed out that “victims sometimes feel vulnerable, sometimes they don't. It is necessary, however, that victims have trust in the facilitator. Necessary skills are being able to listen and have empathy”. Another practitioner said: “Most victims are concerned about safety and mainly emotional safety.They are concerned about not being re-traumatised or being wound up by other participants”. These fears must be addressed before proceeding with restorative justice, the practitioner said. One practitioner said: What helps make victims feel safe in restorative justice is bringing with them people they trust. It can be a friend or a spouse. The friends will be there to advocate for them when they are overcoming a conference. It is very frightening for people to feel that they are coming in alone. A number of practitioners pointed out that “restorative justice has its own timescales” and that it can often be time-consuming in criminal justice terms. “We have to accept resistance at the beginning. We have to explain the process really well and hear victims’ stories. It is only then when people will start to become more open to the possibility of restorative justice”, one practitioner said. Another practitioner said:

Restoring power in justice and restorative justice  173

Unlike what happens in a criminal court when the jury gives the verdict, in restorative justice there is no magical climax! The process should be over only when the parties have come to terms with or recovered from the harm caused. Never lead parties into a single-event conference. Restorative justice is a long-term process of change. There was also consensus that there is no evidence to believe that restorative justice would not be appropriate with certain crimes. For example, in relation to offenders with mental health problems, one practitioner said: “We take special measure in the pre-work for these people. Especially, we prepare them for what might happen in terms of the behaviour of the person with the mental health problems and in most situations, they know the person well”. Someone else said: “Everyone should be allowed to restorative justice if the circumstances are right. Now, you have to be careful especially in situations of sexual assault. However, this doesn’t mean that they can do restorative justice”. Another practitioner said: “It is not the nature of the offence that dictates where restorative justice can happen but more the circumstances around it”. A practitioner with expertise in complex cases such as domestic violence said: “There are no restrictions as to where restorative justice can be used. However, careful assessment and consultation with the victim (and the offender) will exclude some. Every contact with either party should be reparatory and restorative in itself ”. It was concluded that there are strong power structures within the victims’ and restorative justice movements that make victims and offenders suspicious of restorative justice processes.This was also a finding from the offenders’ research. Moreover, practitioners said that gatekeepers often treat victims in a patronising or tokenistic manner despite the existence of guidance and regulations. There are fears that this deterioration will continue as funding is being rolled out to mainstream restorative justice too quickly and without consideration of its complex, local and fluid nature. Faith institutions practising restorative justice were explicitly mentioned and so was central government. One practitioner said: There can be pressure from faith institutions to forgive the offender in a hasty way … forgive the offender and move on, and there can be a sense that if you don’t forgive that you are not a good Christian … that you are not living up to the expectations of your faith. Someone else said: “The victim has to be honoured in the restorative justice journey.The role of the facilitator is very important in ensuring that the practice pursues what the victim wants. Forgiveness should be the last thing on their minds”. A practitioner with expertise in complex cases, including sexual violence, said: The danger in the UK is that victims are being encouraged, persuaded, educated, even coerced into attending single-event conferences which they never wanted to do and may not serve any purpose other than to satisfy the needs of the facilitator and the agency.

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Finally, concerns were expressed about existing “ready-made training packages” that are being rolled out nationally, accrediting professionals as restorative justice practitioners in a quick and cost-effective manner. Some practitioners said that the values and complexities of restorative justice are not captured during these three-day training sessions, which are designed to provide quick access to restorative justice processes so that diversion becomes possible within the given agency. It was agreed that such practice is in contradiction to both the letter and the spirit of the Victims’ Directive. However, there were no suggestions as to how the Directive could help address this problem.

9.4 Fieldwork findings from London The third part of this chapter is based on data that I collected for a research project that I carried out in London. The sampling strategy and size as well as the research methodology are detailed in Appendix C.

Do victims and offenders know about restorative justice? As expected, there were low levels of awareness about restorative justice amongst victims. When asked whether they had heard of the term ‘restorative justice’, 69% answered negatively while 31% said they had. Those who had heard of restorative justice were asked what it means to them. Indicative of this are the following quotes: Community-led response to helping victims to have their voice heard. To restore something is to attempt to put it right. Seeking to meet with the perpetrator of a crime and their victim. The aim to assist in resolution, reclaiming power back for the victim. I think also it could help with a deeper healing. The ability of the victim to take power back from the perpetrator by communicating with them how they made them feel. The opportunity for victim and offender to meet/or have communication so that both can move on with their lives. Getting the chance to explain to the offender the harm they caused and ask questions about why they did it. Making the offender understand the impact they had on the victim. Trying to address the harm caused by the crime. Where the victim has a chance to be listened to and the person who committed the crime have a chance to understand and learn from mistakes. An opportunity to meet the offender, talk to them about the impact the crime had on you, ask them why they did it, and hopefully they will explain/ apologise and potentially agree to do something reparative or rehabilitative. A way to manage crime that recognizes that the current punitive system doesn’t work for victims, or for reducing crime.

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Awareness of restorative justice amongst offenders was evenly split: 50% had heard of it. When asked what it means to them, they gave answers that revolved around apology and the victim. Indicative of this are the following quotes: To say sorry, to give back, to give the victim a chance to understand, to repair relationships. The chance to meet your victim and apologise and explain yourself. Building a new life, turning your life around. To give the victim a better understanding of why it happened. To get the victim involved, looking at the impact crime has on the victim, making amends in the community. Apologising to the victim or paying back the money you stole. Giving back to the community and victim. Getting together, trying to find out what went wrong to find some constructive outcomes. Giving you an understanding of the effect of the crime on others. Chance for both victim and criminal to meet and share. Where I sit down and have a discussion with the victim over my crime.

Are victims and offenders being offered restorative justice? Amongst the victims surveyed, the vast majority had never been offered restorative justice. In fact, 85% were never offered the chance to communicate with their offender, either directly or indirectly, and only 15% said that they had. The 15% of victims who were offered restorative justice were asked at which stage of the criminal justice system this happened, and the most common answers were during probation (50%) and post-release (17%). When asked who offered them restorative justice, 50% said probation, 17% said Victim Support, 17% said a community/volunteer organisation and 17% said they had initiated restorative justice themselves. Fifty percent of victims said they had been given information about restorative justice via a telephone conversation, 33% said they received information via a face-toface discussion and 17% said they had received information via a mobile text message. This is broadly in line with what victims said their preferred methods of receiving information would be. For example, 50% said they would prefer a telephone conversation, 17% would prefer a face-to-face conversation, 33% would prefer a letter or email but only 17% would prefer a leaflet. Eighty-three percent of victims said they received the right amount of information and 17% would have preferred to have received more information. When asked what form of additional information would have been helpful, one respondent said they would have liked a leaflet or a website. Amongst the offenders surveyed, the vast majority had never been offered restorative justice. In fact, the number (12% of them) was lower than that of victims. When asked at what stage of the criminal justice system they were first offered restorative justice, 50% said in prison, 25% said before trial and 25% said postrelease. When asked who offered them restorative justice, 43% of respondents said

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probation, 30% said ‘other’ and subsequently identified community/volunteer services, 14% said Victim Support and 14% said a court. Sixty-seven percent of respondents said they had been given information about restorative justice via a face-to-face conversation, and 33% said they received information via a leaflet or booklet. This is broadly in line with what offenders said their preferred methods of receiving information would be; 80% said they would prefer a face-toface conversation. Sixty percent of respondents said that they received the right amount of information, and 40% would have preferred more. Receiving leaflets was not a preferred option.

Do victims and offenders opt for restorative justice if it is offered? Uptake of the offer of restorative justice among victims was almost evenly split; 57% chose to participate in restorative justice and 43% decline the offer. When asked about their reasons for participation, the majority said “to bring closure” (60%), followed by “to have their say and explain the impact of the offender’s actions” (40%), “to ask the offender questions” (40%) and “other reasons”, which included “because I am passionate about restorative justice” (40%). For offenders, the update of restorative justice was much higher; 80% decided to participate and only 20% declined the offer. The majority of offenders said that they opted for restorative justice in order to give the victim the opportunity to ask questions (75%), followed by “to have their say and explain their actions” (50%), “demonstrate that they are working to stop offending” (50%) and “to offer an apology or compensation” (50%).

How satisfied are victims and offenders with restorative justice and why? Of the victims who participated in restorative justice, 50% were offered mediation (face-to-face meeting with their offender), 25% were offered a family group conference (face-to-face meeting between them, the offender and others connected to the crime) and 25% were offered a telephone conversation with their offender. They were asked how satisfied they were with certain elements of the restorative justice process they had experienced. Two respondents were unable to answer these questions; one had yet to undertake the meeting, and the other respondent’s offender had refused to participate. When asked if they would recommend this process to other victims, 60% of respondents said “yes” and 40% said they didn’t know (Figure 9.1). Of the offenders who participated in restorative justice, 50% were offered letter writing, 25% were offered mediation and 25% were offered a meeting with surrogate victims. They were then asked how satisfied they were with certain elements of the restorative justice process they had experienced. The levels and reasons for satisfaction for the offenders who were able to answer are recorded in Table A1. When asked if they would recommend this process to other offenders, 50% said they would (Figure 9.2).

Restoring power in justice and restorative justice  177

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Is there an unmet demand for restorative justice and what does this look like? The survey results indicate that there is a level of unmet demand for restorative justice among victims; 68% of respondents who had never been offered restorative justice indicated that they would have liked to have been offered. In regard to the stage at which victims would have liked to have been offered restorative justice, police

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diversion (29%) and during probation (21%) were the top preferences. Eighteen percent of respondents said they would like it to be offered at all stages. When asked who they would expect to offer them restorative justice, the majority of respondents said victim support services (67%), followed by police (46%) and probation (43%). Under the option of ‘other’, 7% of respondents indicated that they thought that all the services mentioned should offer restorative justice to victims of crime. A very low proportion (4%) indicated that they would expect to self-refer to restorative justice. When asked what their preferred method for receiving information about this type of service would be, the majority of victims said via a face-to-face conversation (32%) followed by a telephone conversation (25%), referred to website (18%) and via a leaflet or booklet (14%). Under the category of ‘other’, 11% of respondents said they would prefer the combination of a leaflet or email with the option to follow this up with a telephone conversation. When asked what kind of restorative justice process they would like to participate in, 71% of victims said victim-offender mediation. The preferences of the remaining respondents were quite evenly spread amongst the other options (e.g. letter writing, telephone call, email, online video call and family group conferencing). With regard to our offenders’ sample, the survey results again indicate a level of unmet need for restorative justice services; 66% of respondents who had never been offered restorative justice indicated that they would have liked to have been offered. In relation to the stage at which offenders would have liked to have been offered restorative justice, prison (30%) and during probation (21%) were the top preferences. The next highest category chosen was ‘other’, where 18% of respondents said that they would like it to be offered at all stages. When asked who they would expect to offer them restorative justice, 75% of respondents said probation, followed by other victim support services (25%) and a community/volunteer organisation (15%). No one said that they would like to self-refer. When asked what their preferred method for receiving information about this type of service would be, 62% of respondents said via a face-to-face conversation. Only 5% said they would prefer a telephone conversation (25%), and no one said they would prefer to be referred to website. However, under the category of ‘other’, 10% of respondents said they would prefer the combination of a face-toface or telephone conversation as well as a leaflet or booklet. When asked what kind of restorative justice process they would like to participate in, 74% respondents said victim-offender mediation. The preferences of the remaining respondents were quite evenly spread amongst the other options (e.g. letter writing, telephone call, email, online video call and family group conferencing).

What are the reasons that victims and offenders may reject restorative justice? Thirty-two percent of our victims who had never been offered restorative justice said they wouldn’t like to be offered it anyway; of those who had been offered it, 43% said they decided not to participate.The top factors were no desire to meet the offender and being too traumatic.

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Victims were given the option to provide more qualitative responses for rejecting restorative justice. These tend to revolve around the type of crime they would accept the offer for. Some indicative responses include the following: I might want to meet the offender for maybe more serious crimes. It depends how I am affected. If burglary, then no, as I am not affected so much… Murder maybe. Possibly more inclined to say yes in certain physical violence scenarios. Although I wouldn’t want to meet the offender in case of sexual assault both in the case of adults and children. I guess it would be easier to see the offender if I can understand their rational. In case of paedophiles, I cannot comprehend the scenario and thus would not want to meet the offender…. I had no desire to meet the offender due to my circumstances (burglary). In general, I think it is a good idea to meet the offender. However, I believe the offender should go through some process before meeting. I would want the offender to take the most out of the meeting and for it to have an effect. The offender needs to be prepared for the meeting so that it is not a waste of time. I would consider meeting the offender if I feel that I am going to make a difference to the offender (positively). I really like the idea and would be very interested if I felt that it could be done safely. Domestic violence is very complex and ongoing even after the relationship has split. There is such a poor understanding about it amongst professionals. I would be concerned that the facilitator would collude with his cohesive control etc. If I feel that I could do it safely … then I would be interested, but I would take some convincing because of experience of so-called professionals knowing so little about domestic violence, and colluding with the offender.

You said you chose not to/ wouldn't like to parcipate in restorave jusce, why? (Tick all applicable) 0.0%

Lack of informaon

9.1% 36.4%

Dissasfacon with the organisaon who made the offer

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9.1% 18.2% 9.1% 0.0% 0.0% 0.0% FIGURE 9.3 

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Why did you chose not to participate in restorative justice? (Offenders’ sample)

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Moving on to our offenders’ sample, of those who had never been offered restorative justice, 34% said they wouldn’t like to be offered it anyway; of those who had been offered it, 20% said they decided not to participate. The top factors were lack of information and no desire to meet the victim (Figure 9.3).

What do victims and offenders value the most in the pursuit of justice? For our victims’ sample, the following were valued the most in the pursuit of justice for what had happened to them: to have their say and explain the impact of the offender’s actions (51%), to feel that the offender is making up for the crime in some way (17%), to ask the offender questions (11%), other (9%) (this included sentiments such as to change the way victims are treated, to help offenders understand what they have done and promote desistence from reoffending, and to identify and punish offenders), to bring closure (6%), and to reduce your fear of crime (6%). For our offenders’ sample group, the following were valued the most: to have their say and explain their actions (44%), to bring closure (25%), to allow the victim to have their say and explain the impact of the crime (11%), to feel that they are making up for the crime in some way (8%), other (8%) (this included answers indicating that respondents felt that all of the above were important), and to better understand the impact of the crime (3%).

What does an ideal restorative justice look like? Our survey respondents were asked in an open-ended manner what in their view are the key indicators of success for restorative justice. For our victims’ sample, the following were recorded in order of preference: • • • • • • •

For the offender to understand what they did and the impact it had so they will be less likely to reoffend To heal/move on/get closure To not feel victimised anymore but empowered and to have the opportunity to be heard A high degree of preparation before any meeting takes places so that each party knows what to expect To be able to feel safe again To see that the offender has remorse for what they did For the process to be voluntary and for each party to be able to opt out at any time. For those dealing with complex cases, in particular domestic violence:

• • •

To be adequately experienced to deal with the specialised needs of such cases A low level of bureaucracy and for the service to be independent Professional, individualised, patient and not tied to contract targets.

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For our offenders’ sample, the following were recorded in order of preference: • • • • • •

To be able to understand what they did and the impact it had so they will be less likely to reoffend To heal/move on/get closure For it to be widely available and for more people to be aware of it For the process to be beneficial to both parties and for both parties to be supported To have the chance to explain actions Effective communication between both parties.

Key themes emerging from the follow-up interviews The overwhelming trend amongst the interviewees was that they found out about restorative justice via their own efforts rather than being made aware of it via any of the services they had engaged with. This included being aware of it already via their pre-existing work within the criminal justice system and mental health agencies or because they had a friend who knew about it or just because they read about it online (e.g. websites, Facebook and YouTube).This is consistent with the survey findings in that most victims are not offered information about restorative justice. In regard to how they preferred to be offered restorative justice, the interviewees said that they wanted someone they had already built up trust with. For many, this was the police contact they had had the most contact with. We noted a range of views in regard to when information about restorative justice should be provided; some said it should be when the crime is first reported, others said a week or two afterwards and some said that they wouldn’t be open to information until much later. There was consistency, however, that information needs to be available/ provided in multiple formats. Victims also noted that it was common for them to receive information via the provision of a business card or a text about other services they could access. They all said that this approach gave them time to consider whether they wanted to access the services so they didn’t feel pressured to make a decision. They also suggested that this approach should be taken up by all available services (e.g. police, Victims Support, restorative justice services, community-based organisations for people wary of engaging with statutory services, doctor’s surgeries and other community hubs). Again, there was a strong theme that in order to increase awareness, information needs to come from people/organisations who have a trusting relationship with local communities. Victims said that they would be more likely to listen and take the information on board if it came from someone they knew. This information also needs to be easy to find. Many interviewees reported looking for information online for significant periods of time and still not finding what they needed. The complexity of language and the terminology that is being used for offering restorative justice was also criticised. Some victims also pointed out that it is

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important to strike the right balance, not making them feel patronised by dumbing down the language but at the same time not expecting them to be legal experts. Translation was also brought up by our victims, for some of whom English was not their first language. Attached to this was the issue of cultural competency and being able to sympathise and understand their respective cultures without assumptions. Furthermore, some victims felt that they were being approached by practitioners as commodities through a “sales pitch”. They often felt pressured to opt for restorative justice and that the benefits were highlighted more than the risks.Victims suggested that when being approached by a restorative justice practitioner, they should have their questions answered and be able to understand how restorative justice directly relates to their specific circumstances. Several interviewees also said that it would be good to explain how restorative justice is different from the police and court system and that it would be good to hear about real examples/cases of positive outcomes and what other victims have gotten out of it. The reasons our interviewed victims opted for, or would have opted for, restorative justice included their desire to feel empowered and have their voice heard, ask questions of the offender about the crime, and get the offender to understand the impact of the crime so that they might not do it again. The interviewees also reported dissatisfaction with, or distrust of, criminal justice processes and agencies as reasons they would be interested in participating in restorative justice. Feelings of dissatisfaction stemmed from not been given a chance to be heard, not having the chance to hear anything from the offender, or needing something else in order to heal and move on. Feelings of distrust stemmed from previous negative experiences with statutory services resulting in people not wanting to invite such services further into their lives, as well as people being wary of the public nature of criminal justice processes. For example, one interviewee who identified as being from a Black, Asian and minority ethnic (BAME) background, ‘queer’, disabled, suffering from mental illness and having previously experienced significant periods of homelessness said that: Independence, anonymity and confidentiality will make community services a more attractive option for people wanting to access restorative justice. For marginalised people, it be would be better to have restorative justice delivered via a system which has not put you where you are. People won’t trust it otherwise – especially people with bad experiences of statutory services. I know lots of other marginalised people who would never go near police or mental health services and risk further contact with the system. When asked what might lead them to not want to participate in restorative justice, the majority said that was likely to occur when not having information about the process or when they were pressured by the practitioner. We also discussed with our interviewed victims their experiences with restorative justice services as well as any other services they had engaged with (e.g. police and victims support services) and those factors most important in regard to satisfaction and having their needs met. Our participants agreed that restorative justice services should

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be tailored and personalised to their individual and specific circumstances if they are to be victim-led. They did not want to feel that they are just another ‘number’ in the system. This included appropriate service delivery to children. (One interviewee reported dissatisfaction with her 9-year-old son being given the same information and advice from a victim support service about coping and recovering that she received as an adult; she felt that the information was completely inappropriate and confusing to him.) Victims also pointed out the significance of setting appropriate expectations and meeting them. Service providers not following through on what they said they would do or providing incorrect information was a common reason for dissatisfaction. For example, one interviewee said about their experience: It was like they didn’t care at all. They sent individual letters to each family member including my young children that had all our names spelled wrong. My son needed support and so we would make an appointment, I would make arrangements to take time off work and for my son to miss school and then when we turned up they would have no record of anything and we would have to reschedule. No follow-up was provided. Furthermore, victims agreed that having a single point of contact was critical to building trust and confidence and that not having to repeat information was important for their satisfaction and confidence in restorative justice. They also said that patience in service delivery was key to satisfaction levels as it made them feel less anxious. Our interviewees also noted the significance of being kept updated regularly, even in regard to small matters or just checking in. Having consistency in how and when this is done, as well as by whom, is also important for reassuring victims and building trust and confidence. High levels of frustration were reported when victims had to chase service providers for updates and information. In addition, our interviewed victims stressed the significance of confidentially by the restorative justice service. Some participants reported high levels of doubt that their information would not be shared more widely, resulting in their not having trust in restorative justice and that particular service. Anxiety about confidentiality also led them to not fully share the details of their case with the practitioner. Our interviewees recommended ensuring that victims are fully informed about whom their information will be shared with as well as what information will be shared and explicitly asking for their consent beforehand. Having the option to edit what is shared was also reported as being preferable. For example, one victim said: Victims are always asked for all the details of their lives as if people are entitled to it without saying why they need it. Providing victims with information as to why the information is being shared was also suggested as good practice (e.g. for evaluation purposes or to inform service improvement). Furthermore, interviewees argued that being well prepared and knowing what will happen throughout the process were important for confidence

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and reducing anxiety about participating. Ensuring that restorative justice was available at any stage was also highlighted. All interviewees said that restorative justice should be made available whenever the victim is ready and wants to access the service. Participants also pointed out the importance of perseverance and patience on behalf of the restorative justice provider. For example, one victim said: Services need to have patience as victims may change their minds once the immediate situation has calmed down. Others feared that restorative justice would involve a much longer process than the criminal justice system; some victims did not want to access restorative justice until many years later.Victims said that timeliness of the process, once accessed, was important so that it didn’t drag on and keep them stuck in that moment of trauma. Signposting to other support services and working well with those other services were also thought to be important for a successful and holistic restorative justice service. Having a single point of contact to coordinate multi-agency service delivery rather than the service user having to coordinate everything was considered crucial for victim satisfaction. Similarly, the training, experience and quality of practitioners were all very important for victims. In regard to independence, there was disagreement among the interviewees. Some preferred restorative services to be offered via the formal criminal justice system whereas others could trust only community-based restorative justice. In particular, some said that they wouldn’t have confidence in a service delivered by a community organisation as they wouldn’t perceive it to have the necessary weight behind it. Some victims preferred the idea of accessing a community organisation as they didn’t want to be further engaged with the criminal justice system after having lost their confidence in it. However, there was consistency in that equality of access was important. Interviewees pointed out the significance of being able to access the service regardless of location. They also argued that the quality of service received must also be consistent. This extended to wider support services that they should be referred to as part of a holistic approach to what happened to them. If equal access and quality cannot be offered, then the restorative service providers need to be honest with victims from the outset. Setting clear expectations with victims honestly and without agendas was key in creating trust. The importance of effective cross-borough working was also raised in this context. Interviewees recommended that a mechanism by which victims can provide direct feedback anonymously about the service they received is important in ensuring transparency and honesty.

9.5 Critical reflections The original research that was presented in this chapter was based on data that were taken from victims, offenders, experts and practitioners from three geographical levels (Europe, the UK and London). This kind of data should be used to inform

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the design and delivery of justice and restorative justice. Restorative justice and justice are not power-free concepts and practices. This also applies to those within the restorative justice movement and any servant of justice. It is easy to assume that those impacted by injustices or indeed the individuals or organisations that inflict this on individuals and communities do not wish to participate in the restoration of what happened. This assumption is the product of the current justice system’s mentality. This book has outlined in detail the historical and philosophical foundations of this mentality and the powers of control that act as levers in ensuring that the status quo is maintained. One of the clearest messages coming out of the fieldwork is that the most important goal for both victims and offenders in the pursuit of justice is their empowerment though having a voice (either to explain what happened to them or to explain why they committed the crime). This could be read as a demand/need for more empowering justice processes that do not simply process individuals as mere numbers. Although this might be good news for restorativists, it should also be read as a warning. Any restorative justice service falling into the trap of replicating the impersonal treatment of users by justice officials would end up becoming yet another “sausage machine” with which victims and offenders will be unlikely to engage. Aligned with the above conclusion is the users’ wish to receive information and indeed be approached with a restorative justice offer by someone they know or trust. It is worth pointing out victims’ warning for practitioners to stop approaching them as commodities through a sales pitch. This conclusion supports my fears that justice and restorative justice professionals can easily fall into the trap of power abuse, and exercise their duties for the maintenance of a status quo that does not serve affected communities. More importantly, victims also identified interests that are being served within the restorative justice movement and do not relate to their crime. What victims and offenders want is very simple. They want to feel that their individual circumstances have been considered and that if they are to spend time seeking justice through an emotional and risky process, a holistic service is available to them. Their engagement must not be done in a tokenistic manner. Justice servants should work with other professionals (e.g. psychologists, social workers, and health professionals) to ensure that when serving justice, they do not become part of the machinery that has been set up to treat individuals as ticking boxes. It must be noted that restorative justice is not seen by victims as a panacea. In fact, our evidence and the extant literature point out that a good proportion of victims simply do not want to engage with it at all (Johnstone, 2018).This must be respected and any attempt to tick boxes for the sake of numbers will backfire. Another important conclusion from the fieldwork is that both victims and offenders seem to want the same things and thus, whether victim- or offender-led, any restorative justice service will do well by simply listening to the users’ individual circumstances. I cannot help drawing similarities with Aristotle’s concept of equity that was previously discussed and how equity translates in the actual and individual wishes and needs of affected parties. This also

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goes for the variety of practices that need to be engaged to meet their individual and diverse needs. In fact, although most participants opted for victim-offender mediation, there was a clear message that the selling of a specific model will again be seen as serving ulterior motives. The same applies when the restorative justice offer is made, although the consensus seems to be the earlier the better or just make it available at any stage that the parties involved feel it should be initiated. Interestingly, against statements in the media and political speeches, the more complex and serious the crime is, the more likely victims would opt for restorative justice and other community justice processes. This is aligned with the reasons they would prefer restorative over criminal justice. These include making a difference not so much for them but for the offender and the community. It is also apparent that it is more likely for offenders to opt for restorative justice than victims. Again, unlike what many tabloids have reported, most offenders do not opt for restorative justice to get “off the hook” but to help make a difference for the victim. They also want closure for themselves and to be able to move on and heal. It must be pointed out that restorative justice engages with offenders who had admitted guilt and are genuinely ready to engage in dialogue. It must also be remembered that any restorative justice service that does not factor the costs and time of preparation could be in breach of both statutory guidance and the very values of the restorative norm and the parties’ wishes and assumptions. What was not surprising from the research was the low level of awareness about restorative justice. However, it was useful to hear the types and mediums of information that users prefer and this did not include adverts on buses or leaflets.The preference was for information that would come directly from a trusted contact. If victims felt that they wanted to know more after this initial trusted contact was made, then referral sources (including leaflets) were deemed to be useful. The impact of language, culture and the various accessibility barriers should not be underestimated. In fact, one of the most consistent findings from the research was the need to provide equal access to all and this included those with hearing and visual impairments, those whose first language is not English or those who cannot read. Restorative justice promises a more equal, empowering and individualised service in the pursuit of justice for victims, offenders and communities. Any restorative justice service that aims to reach large numbers and is delivered safely and based on legality and the values of the restorative justice norm must move beyond the power and interest battles that exist within the movement. It should be empowering for both victims and offenders and able to listen to their individual needs, wants and realities while considering the community’s interests. Offering and delivering it through a trusting relationship will determine the levels of its uptake and success. I have concerns about this expectation for three principal reasons. First, the cultural, societal and historical traits of our criminal justice systems are factors that may hinder this intention. Second, following the recent economic downturn and Covid19’s unprecedented health and socioeconomic impacts, the international community is faced with a global financial crisis. Asking States to make reforms during a climate of financial austerity will put additional pressures. Of course, this is not to suggest that

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reforms cannot help cut down the spiralling costs of justice. But this is not a narrative that has been developed by the international community, which first will need to convince local politicians and community organisations.Third, restorative justice services exist largely in the community and are delivered not just by state-based institutions but also civil society and community-based organisations. Our findings indicate the significant role that civil society plays in the provision of victim support services. Austria, Denmark, Germany, Italy, Latvia, Malta, the Netherlands, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden and the UK see a number of key victim support services being provided through NGOs and through partnerships with the community. In fact, some Member States such as Malta do not provide victim support services through any ministry or central governmental department. Particularly in relation to restorative justice, its historical and philosophical community-born roots must be considered. Legislation alone will not suffice. A wider and inclusive debate is needed. This is also a debate for the wider international community and not just Europe. Our research pointed out that although the role of the state will continue to vary in the provision, regulation and control of justice services, restorative justice must be supported to reposition itself as a community-born ethos. Our research also points out that any law must respect the context within which it is implemented. A mixed model of justice and restorative justice service provision through the state arm and community organisations seems to be the way forward not only in terms of increasing diversity but also in avoiding a monopoly and a one-size-fits-all approach. Top-down structures that provide services in an exclusive manner are not recommended and this includes controlling funds and the registration of restorative justice services. Justice is one of the key areas in which citizens are particularly active and where civic engagement is observed in action. Therefore, it is important to set structures both within public institutions and in communities to support, train and reward volunteers who provide justice and restorative justice services through either organised or ad hoc methods. Involving volunteer providers (individuals) directly in the setting up of justice and restorative justice policies is also recommended as a good practice that will allow the balancing of power from the design stage. Although minimum standards and the debate on quality control of restorative justice are desirable, the close control of its providers, the registration of its practitioners and the repeat funding of the same organisations will kill innovation and take out the very heart and soul that keeps restorative programmes staffed and running with minimal support from the state. Justice and restorative justice are not delivered in the abstract. They are concepts that take meaning and gain significance only when they have addressed the needs and the power imbalance that have been distorted at the individual level. Put another way, restorative and other types of community justice are not processes that can be standardised so that they can be initiated through automated structures and concluded with a guaranteed result. They may involve considerable timescales and the shifting of goalposts. There seem to be strong interests and entrenched top-down management of restorative practice particularly as more funds become available for its delivery.

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I conclude that victims and offenders feel that the existing “gatekeepers”, entrenched practices and mindsets are the true barriers in the implementation of justice and restorative justice. The practitioners and other experts who took part in our research confirm this conclusion. In fact, it seems that the more interest the government and funders are showing in restorative and other types of community justice, the more defensive gatekeepers and entrenched practices become.

Appendix A: Research methodology and sampling for EU-wide project First, a thorough review of the extant literature and existing best practice was completed in several languages. Subsequently, fieldwork was carried out with 272 victims and offenders and 280 professionals working with victims by providing victim support, restorative or criminal justice services (Table A1). TABLE A1  Sampling and research methodology

Country

Sample contacted (original)

Sample reached (final)

Research method employed

UK

39 victims

24 victims

54 offenders

28 offenders

5,240 contacts

107 victims and offenders 24 experts

In-depth interviews (qualitative) In-depth interviews (qualitative) Online survey (quantitative) Focus group (qualitative) Quantitative survey

51 experts Germany

245 victims and institutions 466 victims and institutions Greece 100 victims 10 professionals Bulgaria 10 victims 22 professionals The Netherlands 197 practitioners/ professionals 197 practitioners/ professionals 20 stakeholders/ experts 10 offenders (juveniles) 20 experts 2 case studies (juvenile prisons × 5)

53 victims and 30 institutions 20 victims and 4 institutions 20 victims 10 professionals 10 victims 22 professionals 75 practitioners/ professionals 75 practitioners/ professionals 20 stakeholders/ experts 10 offenders (juveniles) 20 experts 2 case studies (juvenile prisons × 5)

Quantitative survey In-depth interviews In-depth interviews In-depth interviews Focus groups (×5) Attitudinal survey (qualitative) Fact finding survey (qualitative) In-depth interviews In-depth interviews Mini conference In-depth observation

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Appendix B: Research methodology and sampling for the UK project First, a thorough literature review was carried out in order to create a theoretical framework for the fieldwork. The review looked at existing practices as well as the current policy and legislative environments in the UK. Given the research strategy of the UK fieldwork, qualitative research was thought to be the most appropriate method. According to Miles and Huberman, qualitative research can “persuade through rich depiction and strategic comparison across cases, overcoming the abstraction inherent in quantitative studies” (1994, p. 41). The qualitative approach also demanded that an adequate level of freedom was left to the respondents, allowing them to discuss and think at length and in their own terms. This could not have been achieved through the application of a quantitative design, mainly because this would have approached the investigated matters not through the examination of the substance of the sample’s responses but of variables (Punch, 2003). In addition, our small-scale project had to allow for the possibility of issues emerging spontaneously from the data without being forced through fixed theoretical frames. Our in-depth questions intended to follow up the preliminary data from the literature as well as stimulate imagination, providing an opportunity of identifying the sample’s thoughts, images, hopes and fears. The research design aimed to combine normative thinking with various qualitative methods with a view to ensuring that our results were as accurate as possible. For all research tools, the study applied the rules governing “convenience sampling” (non-probability sampling), allowing its sample to be self-selected4.Therefore, it was essential that the limitations surrounding this approach be acknowledged. Bryman (2004) warns that the generated data cannot be used as the only basis for generalised conclusions. The yielded information, he said, “will only provide an insight into the sample’s views and attitudes towards the discussed topics” (Bryman, 2004, p. 100). According to Shaw (1999), studies that are carried out with nonprobability sampling are not interested in working out what proportion of the population gives a particular response but rather in obtaining an idea of the range of responses regarding ideas that people have. We were also conscious that owing to the characteristics of the sample group, it would have been difficult to achieve a large number of responses, particularly within the limited timescale and the available resources. Finally, ethical approval was sought from a research ethics committee. Intending to achieve inductive theorising about the way our sample interprets their social worlds (Bryman, 2004), we adopted a combination of qualitative research tools. First, semi-structured, in-depth interviews with 24 victims and 28 offenders were carried out. To enhance this inductive procedure, we carried out an online 4 The survey was widely advertised in newsletters, electronic forms of media and conferences.

190  Restoring peace TABLE B1  Sampling and research methods for the UK research

Country

Sample contacted (original)

Sample reached (final)

Research method employed

UK

39 victims

24 victims

54 offenders

28 offenders

5,240 contacts

107 victims and offenders 24 experts

In-depth interviews (qualitative) In-depth interviews (qualitative) Online survey (quantitative) Focus group (qualitative)

51 experts

survey through the use of 107 self-completion questionnaires (67 victims and 40 offenders). Second, the method of focus group was used. (Among the 24 experts in attendance were restorative justice practitioners, victim liaison officers, victim services providers, academics, researchers and criminal justice system officials such as prosecutors, police, probation and prison staff). Our final sample size was considered a good response rate based on the available literature (Becker and Bryman, 2004; Gray, 2004)5. Table B1 summarises the research methods and sample sizes that were used as well as our response rates. For the in-depth interviews and the focus group, the original sample was drawn from established referral sources such as victim support units, probation trusts and other criminal justice agencies, restorative justice practices and various community-based projects. For the online questionnaire, an email and a hyperlink were prepared and disseminated widely to relevant organisations and individuals.This list included over 5,000 contacts but owing to technology limitations it is not possible to identify here the response rate6. For its data analysis, the study used the method of content analysis. We first defined the units of our analysis and the categories into which these were sorted by reviewing each unit and grouping it according to the predefined categories. The occurrences were counted and comparisons were made. Apart from identifying preliminary themes, content analysis proved to be extremely useful in summarising the vast amount of information that was included in the respondents’ replies. This was done by counting the frequency of words or codes and by creating patterns of analysis. A coding frame was created to organise the data and identify findings after our open coding was completed. As with all content analysis approaches, we treated our coding frame as a multileveled process that required several successive sortings of our investigated themes. Investigation began with a general sorting of our emerging themes. Subsequently, 5 According to Shipman (1997), studies that are carried out through the use of selfcompletion questionnaires have a response rate of approximately 35%. 6  For instance, some of these emails may have never been opened, may have been directed into spam folders or have been returned as undelivered.

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we subdivided each newly created subgroup to produce a typological scheme containing subcategories of data as these reflected the subjective declarations of our respondents. We were then ready to interpret the patterns.

Appendix C: Research methodology and sampling for the London project Two separate surveys were developed with the aim of collecting data from victims and offenders in regard to their experience and preferences at key stages of the restorative justice process. Respondents were able to complete the survey either online or via hard copy, which then could be returned by post. Using the extant literature, we assumed that awareness of, or engagement with, restorative justice amongst victims and offenders is extremely low. We were also mindful that it is complicated and time-consuming for those working with victims of crime to contact past service users to disseminate surveys.The research undertook a research ethics approval process, which adjusted certain tools and recommended that a variation of recruitment methods be adopted. One hundred thirty-six responses were received, but only 110 were fully completed and thus 26 were discarded7. This consisted of 66 responses from victims of prosecuted crimes and 44 responses from unrelated, prosecuted offenders8.

Victims’ demographics Gender • • •

67% of respondents identified as female 31% of respondents identified as male 2% of victim respondents identified as other

Age • • • • • •

12% of respondents were 18–24 years old 25% of respondents were 25–34 years old 21% of respondents were 35–44 years old 21% of respondents were 45–54 years old 12% of respondents were 55–64 years old 9% of respondents were at least 65 years old

7  The survey was disseminated to about 50,000 people across London via social media, including Facebook and Twitter, the researcher’s websites and contact databases, online community newsletters, existing restorative justice service providers, Victim Support, the Restorative Justice Council, the Office of the Victims Commissioner, London Community Rehabilitation Company, Mayors Officer for Policing and Crime, and numerous existing community/volunteer services working with victims and offenders. 8  According to CPS London, 6,000 to 7,000 crimes per month are prosecuted in the capital, the majority of which are motoring offences, and crime against the person. Approximately 23% of prosecutions are unsuccessful. See http://www.cps.gov.uk/london/about_us/performance/ (accessed in February 2017).

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Ethnicity • • • • • • • •

55% identified as white English/Welsh/Scottish/Northern Irish 16% identified as black/African/Caribbean/black British 9% identified as Asian or Asian British: Indian 9% identified as white any other white background 5% identified as ‘other’ 2% identified as white Irish 2% identified as white gypsy or Irish traveller 2% identified as mixed or multiple ethnic groups.

Nationality • • • • • • • •

84% identified as being British 4% identified as being Irish 2% identified as being Australian 2% identified as being Lithuanian 2% identified as being Jamaican 2% identified as being a New Zealander 2% identified as being Polish 2% identified as being Nigerian.

Geographic coverage Respondents were all based in the capital and came from 24 out of 32 boroughs. Offence type Thirty-two percent of respondents reported that the offence had occurred in the last 6–12 months. Thirty-one percent said the offence had occurred in the last 5 years, 15% said it had occurred more than 10 years ago, 11% said in the last 10 years, 7% said in the last month and almost 2% said in the last week.

Offenders’ demographics Gender •

100% of respondents identified as male.

Age • • • • • •

40% were 18–24 years old 31% were 25–34 years old 14% were 35–44 years old 10% were 45–54 years old 0% were 55–64 years old 5% were at least 65 years old

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Ethnicity • • • • • • • • • •

38% identified as white English/Welsh/Scottish/Northern Irish 19% identified as mixed or multiple ethnic groups 22% identified as black/African/Caribbean/black British 5% identified as white gypsy or Irish traveller 5% identified as mixed or multiple ethnic groups 2% identified as white Irish 2% identified as white any other white background 2% identified as mixed or multiple ethnic groups 2% identified as Asian or Asian British: Indian 2% identified as Asian or Asian British: Bangladeshi

Nationality • • • • •

88% identified as being British 3% identified as being of mixed nationality 3% identified as being Caribbean 3% identified as being Somalian 3% identified as being German

Geographic coverage Respondents were all based in the capital and came from 18 out of 31 boroughs. Offence type Forty-six percent of respondents reported that the offence had occurred in the last five years, followed by 44% in the last 6–12 months. Eight percent said the offence had occurred more than 10 years ago, and 3% said it had occurred in the last 5–10 years.

Follow-up victims’ interviews and focus group Follow-up, in-depth, semi-structured interviews were carried out with victims to capture deeper insights into key areas. This method alongside the focus group with the User Scrutiny Panel (USP) that we set up aimed at complementing the surveys by capitalising on their emerging trends and by allowing for further exploration via qualitative discussions. To ensure consistency and to maximise time and resources, we decided that the interview sample would be drawn from survey respondents who had indicated that they would be willing to participate in further research. Twenty-six survey respondents indicated such interest and were contacted to schedule an interview. Eleven individuals responded. All interviews were recorded and written notes were taken during the conversations, the longest of which lasted approximately 3.5 hours. All interviewees were victims of prosecuted crimes. Seven participants identified as female, three identified as male and one identified as other. Five participants were

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between 45 and 54 years old, four were between 35 and 44 years old and two were between 25 and 34 years old. The crimes that participants had been victims of were wide-ranging and had occurred between sometime in the last six months to more than ten years ago. They included burglary, robbery, hate crime, stalking and harassment, abuse in childhood, domestic violence, rape, sexual assault and murder of a family member.Two participants had been offered restorative justice and had agreed to take it up, two had been offered restorative justice but declined to take it up, and seven had never been offered restorative justice but would like to be. The USP focus group lasted for about two hours and included two male victims, two female victims and three practitioners all with lived experiences in restorative justice. The USP were given the data display from the survey results in advance. No critical reflections were included in the report. The discussions were recorded, analysed and fed into the final analysis of the findings.

The analysis method A content analysis was adopted using the records of each interview, the written responses from the surveys and the focus group. This technique was preferred as it allowed us to interpret and identify trends in our written material produced via our chosen communication methods. It is a way of applying a degree of quantitative rigor to the analysis of qualitative data. This process involved reading through each interview record, identifying interesting or relevant points of information, reviewing these points and coding them into different categories, and then analysing the occurrence of each category to identify the major trends.

References Becker, S. and Bryman, A. (2004). Understanding Research for Social Policy and Practice: Themes, Methods and Approaches. Bristol, UK: Policy. Bryman, A. (2004). Social Research Methods. Oxford, UK: Oxford University Press. Christie, N. (1977). Conflicts as Property. British Journal of Criminology 17: 1–15. Gavrielides, T. (2013). Where Is Restorative Justice Heading? Probation Junior 5( 79–95. Gavrielides, T. and Artinopoulou, V. (2013). Reconstructing Restorative Justice Philosophy. Furnham, UK: Ashgate Publishing. ISBN: 978-1-4094-7071-7. Gray, D. (2004). Doing Research in the Real World. London: Sage. Johnstone, G. (2018). The Standardisation of Restorative Justice. In Human Rights and Restorative Justice, ed. T. Gavrielides. London: RJ4All Publications. Miles, M. and Huberman, M. (1994). Qualitative Data Analysis. London: Sage. Punch, K. (2003). Survey Research:The Basics. London: Sage. Shaw, I. (1999). Qualitative Evaluation. Thousand Oaks, CA/London: Sage.

10 RESTORATIVE JUSTICE POLICY AND PRACTICE A guide free from power abuse

10.1 Undertakings for restorative justice We set off on a journey to challenge justice and restorative justice in the hope that we can attain a better understanding of the power structures that exist around us and inside us and which distort the scales of equality and peace. During this journey, we revisited key terms, such as race, and looked at specific areas of power imbalances. We also looked at consensual models, which may help to start addressing power abuse and inequality, including a reconstructed restorative justice philosophy. This consensual model is founded upon the premise of restorative catharsis and has two forms. One is structured and the other is unstructured. They can coexist but in different environments and with separate restraining standards. It is now time to turn our attention to putting this learning into practice, whether this relates to policy, research or implementation. Therefore, this chapter aims to provide a guide for policy-makers, researchers and practitioners with an interest in justice and restorative justice, which is as free from power abuse as possible. The chapter is divided into three parts. The first proposes some undertakings that will need to be respected if the book’s consensual model of justice and restorative justice is to be implemented successfully. The second part summarises the key learnings from the book by constructing a guide with pointers for research, policy development and practice. Finally, the chapter presents two self-assessment toolkits that aim to empower victims and offenders in claiming their rights and protecting themselves from power abuse during the justice and restorative justice process. First, I will present some undertakings that I strongly believe will need to be respected as we move forward with new research, empirical testing and theoretical development for restorative justice and justice:

DOI: 10.4324/9781003194576-14

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Undertaking no. 1: There is no need to abolish what is. Variation: Focus on understanding where structured and unstructured restorative justice can help empty the funnel of conflict and crime. Undertaking no. 2: Stop coining definitions for restorative justice. Variation: Focus on understanding and developing the restorative justice and human rights topoi/values (protective layer) and practices (funnel exit). Undertaking no. 3: Stop trying to achieve an emotional outcome through a top-down structured restorative justice. Variation: Crime, victims and offenders are legal constructs of a structured system of justice and should be treated as such. Undertaking no. 4: Stop trying to structure the value-based, community-led ethos for restorative justice. Variation: Harm, the broken social liaison and harmed parties should be served through relational approaches that are motivated by values and the community. Undertaking no. 5: Stop aiming to prove the superiority of restorative justice by comparing it with what isn’t. Variation: Evaluation and empirical studies should focus on the question “What happened?” and not “What works?” (Figure 10.1). These undertakings are also important if restorative justice is to progress to a social movement, which can act as a biopower for equity and equality. Here, I summarise some key conclusions that we have reached.

FIGURE 10.1 

Undertakings when doing restorative justice

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The end of definitions There are already enough excellent papers on the definition and meaning of restorative justice (e.g. see Braithwaite and Strang, 2000; Johnstone and Van Ness, 2013; Gavrielides, 2007, 2020; Johnstone, 2011). Therefore, our discussion purposely steered away from getting involved in yet more definitional arguments. More importantly, we agreed that trying to define water too narrowly will prevent philosophers from seeing its other properties. In making this statement, I accept the concerns that have already been expressed in the literature. To mention but a few, a narrow understanding is necessary for the evaluation of the restorative justice practice, the setting of training and accreditation standards, the mapping and researching of its existence. Roche writes: “In the same way that counterfeit goods may tarnish the good reputation of a manufacturers’ brand label, programmes that are called restorative when they are not can tarnish the concept” (2001, p. 343). In another article, Roche (2006) goes on to criticise the narrow approach that has been adopted for restorative justice, claiming that it has led us to think of it only in criminal justice terms. He then lists a number of areas, including social welfare and education, corporate regulation and community governance, that can come under the umbrella of restorative justice. I agree with Johnstone (2011) that “there is not likely to be (indeed perhaps should not be) a single accepted conception of restorative justice. Instead, we must acknowledge the differing and indeed competing ideas about its nature” (p. 14). And I assert that there is no need any more to be defensive. If a practice claims to be punitive but in fact isn’t, does it need to be corrected? Why does restorative justice have to explain itself? Here, we have provided a far more worthwhile justification and explanation. Our reconstructed restorative justice should also explain why Johnstone’s statement matters. In other words, why and how can you define a collection of justification of structured and unstructured ways of delivering justice? Further efforts need to be made in the theoretical understanding and development of our reconstruction as well as empirical testing of the various shapes and forms that restorative justice takes in both ends of the funnels.

The end of abolitionism I have argued that the first writings on restorative justice presented its concept to be in complete opposition to the dominant way of delivering justice in order to attract attention. As we moved away from the era of experimentation and entered the times of implementation and maturity, we realise that ideas of abolishing and replacing are out of date and naïve. There is one more reason why these discussions do not sit well with a value-based system such as restorative justice. Oudshoorn argued about the negative impact of colonialism and the replacement of respected Aboriginal traditions with something alien (2013). I agree that we must be careful not to turn restorative justice into a

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colonial power itself. For instance, if a Western tradition is not organically prepared for restorative justice, then it should not be introduced as a more informed option deriving from a higher authority. Remember the funnel. Whether in the structured or unstructured systems of delivering justice, restorative justice forms only a part of the options that are available in emptying the funnels. Both systems of justice put restorative justice next to other forms of justice. A common mistake is confusing the paradigm language with abolishing what is. I have made a strong point in this book that unless we change our lenses, we will not be able to view the power that is available through bottom-up approaches to justice. I have asked ‘what is common sense?’ But this does not mean that I am proposing abolishing what is. I am simply saying that there are other means of delivering justice beyond what we are used to seeing. So, let’s view them for what they are without the need to remove what is. The abolitionism debate should be over while progress on race and equality must be achieved through consensus.

Ending the bottom-up or top-down divide There can be no doubt that restorative justice is back on the agenda. Governments are becoming interested in its propositions and are trying to find ways of using it more extensively and consistently. Here is not the place to explain the reasons for this increasing interest.The literature has captured some of these factors while highlighting some dangers and pitfalls that are associated with this expansion. For example, Gavrielides (2013) and Umbreit (2001) call these dangers the McDonaldisation of restorative justice. Although these fears might be justifiable, our reconstruction of restorative justice helps us understand that whether through a structured/top-down system or one that is bottom-up and loose, restorative justice can still deliver. Whether we end up regulating restorative justice practice through legislation or we leave it in the hands of localised and unregulated projects, it will still deliver. However, we must remember that if the structured system is applied, then restorative justice will be emptying the funnel from crime, victims and offenders. If we wish to achieve peace by emptying the funnel from harm, the broken social liaison and harmed parties, then a top-down approach such as legislation will not be enough. A value-based system of community trust and care must be employed. But this does not mean that one is better than the other or that the two cannot coexist. However, I do disagree that one is dependent on the other. For example, we do not need legislation in order for value-based, unstructured restorative justice to be implemented. The examples of the old bear evidence to this claim. Likewise, the cold letter of the law does not need warm hearts and value-based localised systems to deliver structured restorative justice. This can still be applied by criminal justice agents such as the police, prosecution, and probation and prison staff. There are enough empirical studies bearing evidence to this claim.

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Enough time has been spent defending our preferred practices and models. After all, much of the success of restorative justice is to be found in its plurality, diversity and living nature as a continuously evolving system of justice.

Understanding campaigning for restorative justice Much energy has been spent and a number of high-profile articles have been published focusing on the advantages (or indeed disadvantages) of restorative justice. Advantages tend to include higher victim satisfaction rates, reducing reoffending, cutting costs and increasing efficiency. Indeed, these are the areas that government and most funders are interested in. Therefore, we would be naïve to dismiss the significance of these questions. Answering them may also help us understand the limitations or potential of the restorative justice practice. What our answers should not try to do is prove or disprove that restorative justice, whether in its structured or unstructured form, can provide a better sense of justice. It is what it is and our energy should be placed in developing its principles and practices and not in campaigning for its superiority. This is yet one more reason why campaigners and advocates of restorative justice should let its researchers and theoreticians remain objective and open to questioning. Much controversy and interest battles have been formed within the restorative justice movement for this reason. This should not exclude practitioners and policy-makers who remain suspicious and isolated.

Getting our values language right Restorative justice is more than a series of practices or a set of values and theories. It is a comprehensive set of justifications of structures, or lack of structures, for the pursuit of justice and equality. The shared topoi where restorative justice and human rights meet can be used as restraining standards for both versions of the funnel. Take two different forms (legal vs. values) that form the outside layer of our funnels. This layer aims to bring balance to the power battles that are to be found in the exit strategies of both of our funnels. They are not restorative justice but a part of it. The relationship between restorative justice and human rights must also be put right. I agree with Braithwaite that human rights act as the restraining values in the restorative practice (2000). I make a distinction, however, between human rights as legal standards that exist within a structured system of justice and those that are value-based and are to be applied within a loose methodology.

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10.2 A guide for research, policy and practice I now move on to compile a guide that can be used for restorative justice research policy and practice. This guide comprises of of the key lessons from our journey. Each pointer is referenced in the book so that we can revisit what was said for purposes of not only clarity but also legitimacy and accountability. Reference

Lessons and admissions

Part I, Chapter 1 – on power

• Power consists of the financial, political, social and biological circumstances that allow a unit (let that be an individual, a state, a group or an agent) to proceed with action for their own ends or for others. • Power is neither just about politics, culture, civil society, knowledge nor money. It is an everyday, socialised and embodied phenomenon, which is personal to you. • Poverty and the unequal distribution of wealth are the principal consequences of power monopoly. • Race equality work has been undermined by a number of powers that have pushed it into isolation and silo working. • Civil and political rights and with them race equality were constructed to balance the power of the few and especially of mighty states against their subjects. • Non-governmental organisations, donor agencies and even social and human rights movements that are trying to understand power are also part of the power picture themselves. • The world does have enough for everyone’s needs but not for our greed. Greed is a privilege of power and it feeds on control. This creates a financial terror, which acts as a lever for our control. It is also the primary reason for race inequality, community tensions and crime, including the collapse of the human rights project in its totality and for all equality strands. • In a society where there is no hope, civil rights are seen as luxuries. Survival comes first and in the serving of our basic instincts the vulnerable come last. • Race equality, like all other equality strands, is manipulated by the same forces of power and control and thus solutions must move beyond silo thinking and towards consensus through power-sharing and dialectic approaches such as those offered by restorative justice. • It is naïve to believe that the law alone can bring social justice and address inequality issues caused by power abuse. The law, after all, is a human construct. (Continued)

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Reference

Lessons and admissions

Part I, Chapter 2 – on race

• By putting the term “race” in its analytical and sociological context, we allow it to progress and indeed be used to address power abuse. • Despite denouncing and incriminating slavery, slaves still exist in new forms. • The free movement of people and markets has made human labour so affordable that the new masters pay far less attention and care to their slaves than their predecessors did. In this new form of slavery, legal ownership is avoided because of its incompatibility with social morality. This new form of slavery ignores differences of race or any other protective characteristic. The sole condition needed is that of being powerless combined with the need for survival. It is this condition that the new masters exploit. • Today’s slaves do not see or want to see themselves as such. This is not a coincidence. Where there is awakening, there is resistance, and where there is resistance, there is radicalisation against the status quo and ultimately change. On the other hand, where there is acceptance, there is apathy, and where there is apathy, the status quo is protected. The status quo is the environment that allows existing power to grow and thrive. If the climate is changed, its fertile ground will suffer the consequences of change. • Without divisions and groupings of victimisation, there are no powerful and powerless. Grouping victims together reaffirms the status quo and separates the elite. More importantly, groupings based on characteristics, such as race, exclude all those who have the power to help but cannot join merely because they lack the characteristics of the grouping.

Part I, Chapter 3 – on justice

• Justice is the lawful and the fair. The law is a human construct that is devoted to the advantage of all, the advantage of the best, the advantage of those in power or the advantage of those representing it. On the other hand, fairness is a principle sometimes materialised through the law but mostly through individual action (or inaction). Fairness is the ultimate value pursued as part of our shared humanity. • Fairness can act as the biopower that can face the power structures that blind us all. • Specific fairness is equity, meaning the correction of the law according to the principles of universal fairness in situations for which the law is too abstract, generalised or manipulated by the forces of power and control. • The starting point for delivering fairness is the individual. The individual is a ‘social animal’, whose identity is determined, but not limited, to its membership to different social groups. (Continued)

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Reference

Lessons and admissions

Part I, Chapter 4 – on restorative justice

• Restorative justice can be morally wrong and thus its practices can be legitimised only within a philosophical framework that has clear and attainable objectives. • Without a clear normative narrative, restorative justice is open to co-option by powerful institutions. Well-intended policymakers and people involved in the administration of justice will misapply and abuse the idea, and restorative justice will get mixed up with the punitive paradigm. • Restorative justice entails pain but of a different kind from that inflicted by the criminal justice system. It is not pain that is triggered by state and top-down punishment, as we understand it through the current punitive paradigm. Restorative justice triggers pain that is personal and specific to each participant and is the consequence of his or her own actions, behaviour, self-observation and self-reflection. This pain is a gift and is not always present. It cannot be imposed but it can be nurtured. • What makes restorative justice different from other correctional, prevention, educational and justice practices is its underlying values, especially power-sharing. • Restorative justice moves our focus away from the past (what happened) and puts an emphasis on the future (what can be done). This suggests a collapse of the legal positivistic understanding of harm as “crime” and the construction of a philosophical framework that understands fairness and justice. • Restorative justice embraces both the retributive and rehabilitative elements and adds an additional burden on the parties involved and their community. That is the restorative pain, which serves as the trigger of restorative catharsis, a natural by-product of successful restorative processes. • The concept of catharsis is an essential precondition of restoration. • Catharsis cannot be achieved through conventional criminal or civil law practices. • Catharsis is not a moment but a process. For some, this process can be their life. Catharsis is the outcome of restorative punishment and the justification for the pain that is associated with it. • Catharsis should not be seen as a must but as a gift of restorative justice. This gift is painful, retributive and dangerous but rehabilitative and constructive. • Restorative pain aims to restore and to be cleansing. Deterrence (general or specific) might be welcomed as a side effect but is not among the primary goals of restorative measures, nor is retribution for what was done. • Restorative practices that genuinely aim to restore peace must involve restorative pain. (Continued)

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Reference

Lessons and admissions • Language is a powerful tool in the construction of restorative pain. It is also a tool that can be used to identify, extract and externalise restorative pain. • Restorative justice is premised on the idea of interdependency, determination and self-assurance through the realisation of the existence of others. • In restorative justice, victim and offender are treated as free individuals, responsible for their actions and decisions. They are freed from power and are equal. They are not strangers but are related because of the “social liaison” that connects them. • The existence of community is a prerequisite for the liaison that relates individuals and hence justifies restorative pain. The community strives to instil a sense in individuals to respect and protect the liaison.

Part II, Chapter 5 – • Not free from power, restorative justice organisations, power abuse researchers, practitioners and policy-makers are often caught within restorative up in the vicious circle of power and control, whether this justice relates to their practice or to the community and parties they aim to serve. • There are six fault lines within the restorative justice movement, which create divisions, distraction and confusion. These fault lines are also the levers that move power; this movement is not for serving justice. It is self-serving, empty and vain. These tensions are intensified as the current framework of justice continues to be exclusively owned by the top-down structures representing the status quo. • Owing to tensions within the movement, the same restorative programme may be implemented by different organisations of the same criminal justice system and still bear enormous differences. What also seems to have been affected by these tensions is the way evaluation is carried out. • As restorative justice is being explored for its potential to bring about change, quick, ready-made packages are introduced. These will consequently harm its delivery in the long term. Mainstreaming restorative justice on the cheap is not the answer. Providing one- to three-day training packages to police officers, probation staff and prison guards will not deliver the restorative vision. Funding the usual suspects to control a top-down register for people who are practising restorative justice will not increase public confidence in restorative justice; it will destroy it. It will also alienate the ‘big society’ of volunteers giving their time to keep local justice balanced. (Continued)

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Reference

Lessons and admissions • The evidence on the financial effectiveness of restorative justice is still thin. If governments and restorative justice organisations are truly committed to promoting restorative justice and delivering its underlying value of power-sharing, then they need to work closer with the communities that create the various models through which this abstract umbrella notion of restorative justice is delivered. • Try to mould and standardise restorative justice and all you will achieve is its McDonaldisation. Its diversity and ability to deliver equity and fairness at a local level, its creativity and innovation will all die out. Ignoring victims while imposing top-down controls on restorative justice is not the way forward. • If not addressed, the power-interest battles within the restorative justice movement will surely lead to its demise. The co-option of restorative justice as well as its exclusive delivery by top-down structures of existing power systems that were set up to serve the status quo are two risks. • The way forward for the restorative justice movement is to free itself from the expectations that are attached to current systems of hyperarchy and monopoly and to develop itself as a social movement. • Restorative justice τόποι is the ground where power-sharing, justice, respect, lenience and human rights are nurtured and grow up together. They have common philosophical origins and values and promote and interact for the kind of social change that creates the space for social equality. Restorative justice τόποι are also human rights τόποι. In the recent global crisis caused by the health and socioeconomic impacts of Covid-19, these values are being tested. Peace, well-being, justice, respect and equity are still the social demands in every corner of the planet. The priority level and hierarchy of these values, not their contents, change in different societies. • The restorative justice movement should focus on promoting social justice through shared principles. To this end, the shared space (τόποι) between human rights and restorative justice should be used to create the social movement narrative. • Restorative justice involves new qualitative methodologies, such as narrative and life histories. Therefore, new forms of communication should be used for promoting restorative justice aims and activities. • There is a general need for an increase in public information and awareness through special interest groups, professionals and practitioners. • The role of the media in changing social representations and social change is crucial. Restorative justice needs the media in a paradigm shift orbit to achieve the substantial shift from punishment to restoration. (Continued)

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Reference

Lessons and admissions

Part II, Chapter 6 – • Restorative justice is faced with a paradox. It was expected the hiding places that first it should address inequalities faced by those who are of power abuse let down the most by the criminal justice system. However, diversity within the restorative justice movement and equality in its manifestations are rather disappointing. • The inconsistency between restorative justice visions and reality should not be surprising, as the justice system and the policies, laws, institutions and structures that were set up to support it do not exist in a vacuum. They are informed by our subconscious and sometimes overt biases against various social categories. We all need to take responsibility for this. • Following Covid-19’s impact, we should anticipate a wave of structural, institutional and legislative reforms in our public services similarly to those experienced after World War II. Priorities are being shifted with an emphasis on costs and efficiency. Issues of equality, including race, do not feature prominently in current public debates. • Equality and race equality are yet to be seen as drivers for social change and productivity. • We know that the traditional criminal justice system is not representative of the population that it aims to serve. However, it does publish diversity data on its performance and therefore is open to criticism and improvement. • There is a lack of diversity data on the composition of the restorative justice system practitioners and the people it serves. This need has been hidden behind the inconsistency of restorative practices and the fragmentation of what makes a restorative justice system. This sort of data is important in helping us to understand the hidden variants that impact on the success of restorative justice. • Issues relating to effective communication, participants’ satisfaction and perception/bias are not influenced by the fact that facilitators may not match the participants’ race. • Facilitators should not be matched with only one of the participants. This creates tensions and imbalances. • Restorative justice and the delivery of equity through justice are dependent on individual empowerment. • Restorative justice and other dialogue-based justice processes that require parties’ direct or indirect involvement are premised on the principle of voluntariness. Parties need to opt for such processes if the intended dialogue is to be genuine and restorative-focused. This choice should be free and withdrawable at any stage of the process. (Continued)

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Reference

Lessons and admissions • A key restorative justice principle is involvement in decisionmaking. This relates to all parties involved and should be applied alongside the fundamental principle of power-sharing. • A barrier in the restorative justice process is achieving an appropriate communicative framework. This may refer to the communication styles, language barriers, ethnic matching of disputants and facilitators, cultural competencies and self-awareness. • Language can be a place where parties and practitioners can subconsciously hide their power. Our abilities, skills and confidence to master this mighty tool are silent actors of power that must be revealed and addressed as part of the justice and restorative justice process. • Silent domination can be observed with parties who are more skilled or confident in using language. These variations are not relevant only between native and non-native speakers. In fact, they are more prominent between native parties from different socioeconomic backgrounds and professions. This group tends to be larger within the black and minority ethnic (BME) population. The vicious circle of inequality and the lack of equal opportunity in employment, education and civic participation is manifested in the restorative justice process through this uneven power distribution through language. • Parties may be willing to participate and remain engaged in restorative justice until the end, but for some, the levels of this intention might drop during the process. The reasons behind this drop relate to the parties’ personal circumstances and other practical difficulties that would impact on their genuine participation. These barriers are not visible from the outset. These are also more relevant to the parties from lower socioeconomic backgrounds and especially those coming from migrant and refugee groups and BME populations. • The financial disadvantage of parties from migrant and refugee groups puts them in a vulnerable position to accept a monetary payment through the restorative justice process. • As a social justice reform initiative, restorative justice can overcome the criminal justice barriers only by implicitly acknowledging and confronting its threat to the status quo and the structural and real violence inherent in that order. • To move restorative justice from the margins to the mainstream and indeed allow its use for race-related matters, we must pay attention not only to the lack of its diversity data and our subconscious failings but also to the sociocultural environment within which it is implemented. (Continued)

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Reference

Lessons and admissions • There is a way forward for restorative justice and race. But this must be consensual. It is easier to dismiss a failing criminal justice system than fix it. The ideas of abolishing and replacing are out of date and naïve. Conflict, nullifying and replacing are not part of the restorative justice language, which emphasises negotiation. • Our diversity, different communication styles and the powers that limit us request an open and integrative approach underlining the value of process flexibly. This fluid approach increases the potential of inclusiveness and applicability of restorative justice.

Part II, Chapter 7 – sustaining power through fear

• Justice and restorative justice are premised on the idea of community and individual identity. Destroy these ideas and the space will be cleared for the development of control structures that can maintain the status quo of the powerful. • The narrative on identity linked with citizenship, culture and religion has shifted from being a source of inspiration, difference and celebration to being a point of attack and manipulation. • We are in a democratic deficit perpetuated by a number of challenges such as the economic downturn, fears of security, nationalism and the continuous marginalisation of the disempowered. The fear that is created by certain actors is not a coincidence. This fear creates a vicious circle of power, which maintains systems of hierarchy and profit. • We have adopted a split mindset (human rights vs. security) when it comes to violent radicalisation. If we are to overcome the divisions that lead to further extremism and failed politics, this split must be addressed. • Violent radicalisation is largely caused by frustration with weak, corrupt or illegitimate governance, marginalisation, fractured relationships, lack of voice and opportunity and struggles with diversity and belonging. In other words, lack of empowerment and power abuse. • To address violent radicalisation, we need to move away from adversarial approaches and towards cooperative solutions that are co-designed with affected parties and that share the power in decision-making. • The extremist ideology that leads us to act inhumanely is not an alien virus of unknown origin. It is a product of our way of living and a consequence of keeping our eyes closed to the suffering of others. (Continued)

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Reference

Lessons and admissions • Without embedding community empowerment as a principle in prevention strategies and policies, intervention will remain distant and top-down. • Traditionally, policy-makers have turned away from the economic reality of communities. If we are to move away from policies and practices that are designed in high ivory towers, then this reality must be accepted and addressed positively. • Education is the soft power that can help address some of the inequalities that are created between the powerful and marginalised groups. It has also been proven that education can act as the soft counter-power that can play a key role in the prevention of violent radicalisation. • In schools, the policies and prevention programmes follow either the “security mindset” or the “human rights mindset”. Even if they adopt a human rights approach, this is not free from set mindsets and the punitive paradigm. A shift in thinking has yet to take place within educational settings and institutions. • Educational strategies to support prevention efforts are dependent on the educator’s abilities to identify personal challenges of young learners. • Schools’ autonomy at the local level must be explored further by national governments. • Involving young people as co-designers and learning to share our power with them are paramount in addressing future violent phenomena of radicalisation and extremism. • There is a need to connect youth workers and educationalists with other concerned professionals in the community as well as families.

Part III, Chapter 8 – • Restorative justice is more than a series of practices or a set of the fallacy of one values and theories. It is a comprehensive set of justifications justice of structures, or lack of structures, for the pursuit of justice and equality. • It is in the understanding of the specific events that led to an injustice, and the specific needs of those experiencing it, where we find balance and restoration. • Without power-sharing and user involvement in the design and delivery of justice and restorative justice, there can be no equity, and equity is not generalisable. It is individual in nature and personal to the events, identities, negotiations, processes and outcomes that it involves. • Restorative justice is not a uniform notion. Despite its objective existence, it is an evolving norm, as its constituent objects are to be found in living nature. These objects are continuously moving. (Continued)

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Reference

Lessons and admissions • “Restorative justice” is a short-cut term constructed under the mentality of our busy and managerial lives. Attempts that continue to define restorative justice and indeed justice in the narrow sense will remain vain and out of touch with the two notions’ evolving and ever-changing nature. • We are not detached from our environments. Each legal system is based on the perceived notion of justice by the society which entrusts its application and enforcement to legal practitioners such as judges and lawyers. • Interconnectedness and the pre-existence of a social liaison that binds us all in social relationships are the key ingredients in understanding and implementing a better sense and experience of justice and fairness. • There is the informal delivery justice system, encompassing our day-to-day treatment and interaction with others. This is where justice is delivered informally by each one of us in our daily activities and within our communities. The second system of justice, the formal one, encompasses the justice system that has been constructed to deliver justice through the law and its institutions. Both are desirable and can coexist. However, whereas the lawful requires a structure and a system of regulation, the fair is value-based and can be attained through loose and bottom-up methods. • There is enough empirical evidence to show that restorative justice exists in both forms: the structured and unstructured – the lawful and the fair. There is no better or worse form. There is also no reason for comparing it with what isn’t. • Structured restorative justice is placed within a formalised machinery and its subsystems of pursuing, delivering and maintaining justice after a conflict has occurred. Within this model, conflict creates crime, offenders and victims. These institutions are not equal and the agents delivering or representing justice share various positions of power depending on their roles and place in society. This creates power imbalances. To counterbalance this distortion of power, we have introduced legal standards. • Unstructured restorative justice is placed within loose and bottom-up mechanisms that aim to restore harm and the broken social liaison. These mechanisms use localised and informal projects of bringing peace. This system is also subject to power abuse. They are created among those community representatives delivering justice. They can also be created between the harmed and harming parties, as their labels and roles as victims and offenders are removed. To counterbalance the distortion of power here, we have human rights as a valuebased code of behaviour and practice. (Continued)

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Reference

Lessons and admissions • The choice of whether to opt for a structured or unstructured delivery of justice and restorative justice should not lie with external bodies but must respect the shared human rights and restorative justice principle of involvement in decisionmaking. This principle requires both systems of structured and unstructured justice and restorative justice to involve parties in their delivery process. • When designing and delivering the lawful (legal standards) and the fair (value-based expectations), both systems are exposed to the powers of the designer, the practitioner and the community. Through the involvement of concerned parties, the impacts of power abuse are minimised. Moreover, through user involvement, these impacts can transcend from being top-down, imposed consequences to becoming informed and conscious user choices. • If governments and reformists are truly interested in benefiting users, then any new service must be evidence-based. Services that are funded through public resources but are structured behind closed doors and in high ivory towers should raise suspicion and allow questioning. • If restorative justice is all about individual empowerment, then its relevance to regulating research is significant.Yet there is no literature on the methods that restorative justice could play as a research methodology for user involvement. This could be a new development area for restorative justice as we gradually start to accept that evidence-based policy should be the rule and not the exception. • Too often, justice and restorative justice users are treated as part of a ticking-box exercise, aiming to convince commissioning bodies or indeed users themselves. • There is still a long way to go before we can safely claim that user involvement has allowed a better balancing of power in the design of justice and restorative justice services and practices. Levels of engagement and perceptions of influence also vary by ethnic group and social class. • It is pointless aiming for evidence-based, user-driven justice and restorative justice practices when the underlying values of our democratic societies are flawed. These flaws are hardly the result of lack of resources. The problem is how to ensure that state power does not overrule the views and the interests of the citizens.

Part III, Chapter 9 – • The first step in relinquishing power when serving justice is what parties to be in an awakened state of mind. This allows us to observe want ourselves as we manifest power. The second step in our pursuit of justice is to allow other voices to take part in our decisionmaking and delivery of justice, including restorative justice. (Continued)

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Reference

Lessons and admissions • The line between who is the offender and who is the victim is often blurred in practice and real life. • We assume that victims and offenders are better off when not directly involved in the pursuit of justice for what happened to them. Parties do want to talk or at least to be given the opportunity to talk about their views on what matters to them and how they think their best interests can be pursued and protected. The same applies to their views on restorative justice whether they had the chance to experience it directly or have only just been introduced to it. • Restorative justice is not seen by victims as a panacea. Some simply do not want to engage with it at all. This must be respected, and any attempt to tick boxes for the sake of numbers will backfire. • The more complex and serious the crime is, the more likely the victims would opt for restorative justice and other community justice processes. • Restorative justice provision is gradually becoming a state monopoly. • The power structures within the restorative justice movement make victims and offenders suspicious of restorative justice processes. • Victims and offenders feel that the existing “gatekeepers”, entrenched practices and mindsets are the true barriers in the implementation of justice and restorative justice. • Gatekeepers often treat victims in a patronising or tokenistic manner despite the existence of guidance and regulations. This deterioration will continue as funding is being rolled out to mainstream restorative justice too quickly and without consideration of its complex, local and fluid nature. • There is a long way to go before victim policy supports statebased and community-based interventions equally. • Restorative justice should be provided both within and outside of the criminal justice system and this should include partnerships with community and civil society organisations. • The registration of organisations as specialist victim support and restorative justice organisations cannot be a matter of government control. • Parties’ understanding of restorative justice is based on its value of equal involvement and treatment of all stakeholders involved in the justice process. Restorative justice is seen as an empowering process. • Safeguards must be in place in order for victims to feel confident in restorative justice. Neutral space is key. • A considerable number of practices label themselves as restorative justice. Some of them should be classified only as preparatory restorative justice practices or victim awareness programmes. (Continued)

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Reference

Lessons and admissions • Restorative justice has its own timescales and often can be time-consuming in criminal justice terms. • Awareness of restorative justice amongst victims and offenders is very low. Information needs to come from people/ organisations who have a trusting relationship with local communities. • The complexity of language and the terminology that is being used for offering restorative justice is not appropriate for victims and offenders. It is important to strike the right balance by not making them feel patronised by dumbing down the language but at the same time not expecting them to be legal experts. Attached to this is the issue of cultural competency and being able to sympathise and understand their respective cultures without assumptions. • Victims and offenders report high levels of doubt that their information would not be shared more widely, resulting in their not having trust in restorative justice. Anxiety about confidentiality also led them to not fully share the details of their case with the practitioner. • Being well prepared and knowing what will happen throughout the process are important for confidence and reducing anxiety about participating. • Parties fear that restorative justice will involve a much longer process than the criminal justice system, and some victims do not want to access restorative justice until many years later. • Signposting to other support services and working well with those other services are important for a successful and holistic restorative justice service. • Having a single point of contact to coordinate multi-agency service delivery is crucial for victim satisfaction. • If equal access and quality cannot be offered, then the restorative service providers need to be honest with parties from the outset. Setting clear expectations honestly and without agendas is key in creating trust. • The most important goal for both victims and offenders in the pursuit of justice is their empowerment through having a voice (e.g. to explain what happened to them or why they harmed). This could be read as a demand/need for more empowering justice processes that do not simply process individuals as mere numbers. Although this might be good news for restorativists, it should also be read as a warning. Any restorative justice service falling into the trap of replicating the impersonal treatment of users by justice officials would end up becoming yet another “sausage machine” with which victims and offenders are unlikely to engage. (Continued)

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Reference

Lessons and admissions • Victims and offenders want the same things and thus whether victim- or offender-led, any restorative justice service will do well by simply listening to the users’ individual circumstances. This also goes to the variety of the practices that need to be engaged to meet their needs. The selling of a specific model will again be seen as serving alternative means. • Any restorative justice service that aims to reach large numbers, is delivered safely and is based on legality and the values of the restorative justice norm must move beyond the power and interest battles that exist within the movement. It should be empowering for both victims and offenders and able to listen to their individual needs, wants and realities while considering the community’s interests. Offering and delivering it through a trusting relationship will determine the levels of its uptake and success. • Although minimum standards and the debate on quality control of restorative justice are desirable, the close control of its providers, the registration of its practitioners and the repeat funding of the same organisations will kill innovation and take out the very heart and soul that keep restorative programmes staffed and running with minimal support from the state. • Restorative and other types of community justice are not processes that can be standardised so that they can be initiated through automated structures and concluded with a guaranteed result. They may involve considerable timescales and shifting goalposts. There seem to be strong interests and entrenched top-down management of restorative practice particularly as more funds become available for its delivery.

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10.3 Two self-empowering toolkits Victim self-assessment toolkit “In a respectful, tailored, professional and non-discriminatory manner” Name:                  Address:                 Contact Details:              Date of Birth:              Age: Offences(s):                Referral:                Agency and Contact No. Date of Report:              Aims of Restorative Process:

(As agreed)       Information agreed to be passed on:

      Non-disclosure, any confidentiality agreement?

     

Practitioner’s checklist Introduction Explain service (as restorative justice, not as formal witness) and listen: Open listening and communication needs What do they want to say? Not as a witness but freely. What do they want? Be open to self-expression. What do they want from the restorative justice process? What do they want to hear/need from the offender?

Practitioner’s notes

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Effects Emotional Psychological Physical Any medical treatment or condition Financial – insurance, transport, housing Work, attendance, competence Secondary victims, effects on others Relationships Attitude to offender Relationship to offender, known? Close? Partner? Relationship with other agencies? Risk Fears, concerns Vulnerability Re-victimisation – direct or third parties Will participation in restorative justice do harm? Anger levels Intimidation? Community safety? Practice issues Circumstances of case Relationship with criminal justice system – differentiate Anniversaries Timescale, discuss confidentiality Other agencies – Victim support etc., others (specify) Review What can be achieved? Reasonable and Proportionate What restorative processes are relevant? What is the potential? Offender’s right to withdraw. Has this helped so far? Conclusion Formal notepad for agreed points to disclose Agreed aims for process (to be measured at end of process) Disclosure/confidentiality agreement?

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Aims To be measured against outcomes (front page) Information Info that can be disclosed in mediation process Evaluation permission – data/contact?

THE STORY & COMMUNICATION NEEDS

     

EFFECTS

     

RELATIONSHIPS

     

RISK

Physical and emotional       Specific protection needs Special measures necessary?

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PRACTICE ISSUES – THESE QUESTIONS NEED TO BE A MATTER OF RECORD

Full unbiased information regarding process given? Record and copy kept? Has offender acknowledged responsibility? Free and informed choice offered and made? By whom and how was it recorded? Confidentiality and disclosure matters discussed? Recorded? Special measures required? Is it of a complex nature that requires a senior practitioner? PROPOSAL

Agreed with victim, led by victim.          

Agreed and countersigned by offender        Date: __________

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Offender self-assessment toolkit “In a respectful, tailored, professional and non-discriminatory manner” Name:                  Address:                 Contact Details:              Date of Birth:              Age: Offences(s):                Referral:                Agency and Contact No. Date of Report:              Aims of Restorative Process:

(As agreed)       Information agreed to be passed on:

Non-disclosure; any confidentiality agreement?       Non-disclosure; any confidentiality agreement?

     

Practitioner’s checklist Introduction Explain service briefly and listen:

Practitioner’s notes (restorative

perspective)

Communication What do they want to say? Not as defendant but freely What do they want? Be open to self-expression. What do they want from the restorative justice process? What do they want to hear from victim? What do they offer to victim?

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Effects Emotional Psychological Physical Any medical treatment Financial, employment, housing Secondary effects on others, family etc. Any reports available to facilitator Relationships Attitude to victim Relationship to victim, repeat victimisation? Manipulation, control, abuse concerns? Attitude to agency staff Risk Fears, concerns Vulnerability Risk of reoffending. Any relevant sentencing history. Risk to community Process risk – will restorative justice do harm? Anger/emotional control Intimidation or retaliation? Check other sources and discuss. Practice issues Circumstances of case Relationship with criminal justice system – differentiate Anniversaries Timescale, discuss confidentiality Other agencies – prisoner support agencies, others (specify) Contacts (e.g. lawyer, probation, prison officer) Review What can be achieved? Realistic and proportionate What can they offer? What restorative processes are relevant? What is the potential? Victim’s right to withdraw Has this helped so far?

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Conclusion Formal notepad for agreed points to disclose Agreed aims for process (to be measured at end of process) Disclosure/confidentiality agreement? Aims To be measured against outcomes (front page) Information Info that can be disclosed in mediation process THE STORY & COMMUNICATION NEEDS

     

EFFECTS

     

RELATIONSHIPS

     

RISK

Physical/emotional/vulnerability – in relation to the offender and victim Is there input or formal assessment from officials?       Specific protection risks/Special measures necessary?

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PRACTICE ISSUES

Full unbiased information re process given? Record and copy kept? Has offender acknowledged responsibility? Plea of guilty? Post sentence? Free and informed choice offered and made? Is this part of system or sentence? Does offender gain from participation? Confidentiality and disclosure matters discussed? Recorded? Special measures required? Is it of a complex nature that requires a senior practitioner? PROPOSAL

Agreed with offender. (If this is imposed as condition of sentence, this should be noted.)          

Agreed and countersigned by offender

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References Braithwaite, J. and Strang, H. (2000). Restorative Justice: Philosophy to Practice. Aldershot, UK: Ashgate. Gavrielides, T. (2007). Restorative Justice Theory & Practice: Addressing the Discrepancy. Helsinki: HEUNI. Gavrielides, T. (2013). Where Is Restorative Justice Heading? Probation Junior 5(1): 79–95. Gavrielides, T. (2020). Restorative Justice Theory and Practice: Addressing the Discrepancy, 2nd edn. London: RJ4All Publications. ISBN: 978-1-911634-17-1. Johnstone, G. (2011). Restorative Justice: Ideas,Values, Debates. London: Routledge. Johnstone, G. and Van Ness, D.W. (2013). Handbook of Restorative Justice. London: Routledge. Oudshoorn, J. (2013). Returning Conflict and Justice to Aboriginal Peoples: Restorative Justice Reconsidered. In Reconstructing Restorative Justice Philosophy, eds. T. Gavrielides and V. Artinopoulou. Surrey, UK: Ashgate. Roche, D. (2001). The Evolving Definition of Restorative Justice. Contemporary Justice Review 4(3–4): 375–388. Roche, D. (2006). Dimensions of Restorative Justice. Journal of Social Issues 62(2): 217–238. Umbreit, M. (2001). The Handbook of Victim Offender Mediation. San Francisco, CA: Jossey-Bass.

PART IV

Case studies of power and restoration Possibilities in action

PREAMBLE TO THE CASE STUDIES Theo Gavrielides

A few years ago, a restorative justice practitioner said to me: “When restorative justice works, it works really well; but don’t expect it to always work” (Gavrielides, 2007). How can we, when one of the fundamental principles of restorative justice is voluntariness (Gavrielides, 2020)? We also have to ask how power and empowerment are manifested in restorative justice. As argued in this book, restorative justice is not another form of punishment that can be imposed on parties. It is not an alternative to punishment either. It is a wilful process of catharsis for everyone involved. As a believer of individual empowerment, I have asked many times: ‘How can restorative justice, as a community-born ethos (Gavrielides, 2012), enable the individual to have a genuine role in bringing fairness to society?’ Following from this, ‘What is the role of governments, academics and practitioners in facilitating this process?’ – not for their own ends, but for the individual, let that be the victim, the offender, their family, friends and their community. In the years that I have been researching restorative justice, I have witnessed a power-interest battle within the restorative movement, which included not only different professionals (e.g. practitioners vs. theoreticians) but also types of practices (e.g. mediation vs. family group conferencing) as well as fundamental principles (e.g. voluntariness vs coercion). Although constructive debates are always essential for the advancement of justice doctrines and sciences, it is my conclusion that if the restorative movement does not restore its own power struggles, it will soon have to face its co-option or indeed demise. Back in 2003, one of my interviewed practitioners said to me: I think the challenge right now is that there are lots of ‘movements’ within the restorative justice field, lots of research, people such as yourself that are trying to reconcile all these different aspects of restorative justice, and this, I think, is DOI: 10.4324/9781003194576-16

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crucial. All these people are moving, but not together… People are grappling with their research [to find] where and how restorative justice [can] fit in the criminal justice system, what kind of offenders [it can engage], [what] type of offences [it can deal with], periods of time [needed] … etc and there needs to be a real joined thinking about all these matters… In fact, we are all grappling with where, and who, and for what restorative justice should be used, and I think there needs to be a pulling together. We still don’t have all the answers, but this step should help to bridge the gap… Besides, this was one of the reasons I was attracted to this field … and I think this should be the next step for restorative justice, to pull it all together…. (Gavrielides, 2007) I have argued in this book and elsewhere (Gavrielides, 2011) that restorative justice was reborn not out of formal structures and legislation but of voluntary action by enthusiastic and dedicated practitioners from around the world. As the restorative tradition is now expanding to deal with crimes, ages and situations that it has never addressed before (at least in its contemporary version), the responsibilities of both restorative practitioners and academics redouble. Bridges must be built in order to synthesise. So it is a privilege to give the opportunity to practitioners and users of the justice system to publish their work. It is not often that we get to read about restorative justice through their eyes. The methodology that I adopted was very simple. During an open call in the last two years, people from around the world submitted their work following some brief editorial guidelines. I had the pleasure of interviewing some authors, and this information formed part of the evidence that I collected for the four parts of this book. Most of the authors have never published before, as most of their work had to remain confidential. Although some editing took place, most of the text is their genuine and direct account of actual practice. They are published as part of this book in order to bring evidence to its claims. They also aim to provide context as well as examples of where power was re-balanced through dialogue-based and community approaches.

References Gavrielides, T. (2007). Restorative Justice Theory & Practice: Addressing the Discrepancy. Helsinki: HEUNI. ISBN: 978-952-5333-32-9. Gavrielides, T. (2011). Restorative Practices: From the Early Societies to the 1970s. Internet Journal of Criminology. ISSN: 2045-6743 [Online]. Gavrielides, T. (2020). Restorative Justice Theory & Practice: Addressing the Discrepancy, 2nd edn. London: RJ4All Publications. ISBN: 978-1-911634-17-1.

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CASE STUDY NO. 1: POWER AND CHILD SEXUAL ABUSE – ENGLAND Ben Lyon RESTORATIVE JUSTICE SENIOR PRACTITIONER, CHAIR OF THE RJ4ALL INTERNATIONAL INSTITUTE

“The majority of cases that come my way are, or have been, of a confidential nature. That is why my phone rings. My clients, both or all parties wish to deal with harm, usually serious, caused by crime and they do not want to share the information. They then want to put the incident away. How do we discuss these cases with third parties, let alone publish them? The answer is to disguise them in such a way that the original clients cannot be recognized and would not be hurt if they read the facts. This may mean changing some of the facts, but we must keep the essence of the point at issue and the salient points of the original incident. It is my aim that nobody, whether client, or reader will be able to discover the original facts or the identities of those concerned. I remember walking down a long hospital corridor, empty and echoing. It had been a very long journey and I wondered whether anyone was aware that I was coming. I heard steps approaching in the distance and saw a tall man in a corduroy suit. He was confident and at ease, clutching a bundle of files. He was obviously the psychiatrist and he acknowledged this role, responding immediately, ‘and you must be the mediator’. I was concerned from the start that this case, whereby a serving prisoner had been transferred across to the mental health regime, would be fraught with procedural difficulties. Would the offender’s current state of mind, of mental health, prevent any meaningful communication? What were the ethical issues and would yet another set of professional gatekeepers obstruct my access and involvement? I could not have been happier with the outcome. The mental health team, doctors and nurses, all had decided that we were there to set right the harm of this case and that the depth of hurt needed healing. ‘You’re about healing, aren’t you? So, what’s the problem? You are welcome here’. The case was one of historic sexual abuse, within the family. The patriarchal grandfather had been prosecuted after the intervention of his son. This middleaged man (let’s call him Arthur) had suffered in silence as a boy, in the hope that his silence would stop the abuse of his siblings. He was wrong then and when the

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father started on his grandchildren, Arthur knew it was time for serious action, so he went to the police. The case was proved and went quickly if silently through the court system. This process was hurtful enough, but Arthur had not realised that it would rend the greater family apart. There was a large faction that did not want the family name disgraced, nor did they want to be seen as victims of abuse and they wanted their individual confidentiality maintained. This could cause more problems than living with an active paedophile. The grandfather pleaded guilty and the full facts were not ‘paraded through the courts’, so as to protect the family. However, this meant that the grandfather never had to make a full admission of exactly what he had done to each individual and certainly not what he had done on a regular basis to Arthur. Nor did he make anything like a full apology. The grandfather retreated into old age and behind a screen of mild dementia, to the extent that the prison authorities felt that he should considered for transfer to a mental health institution. There is always pressure to empty cells too, and this might have been a silent issue. Arthur wanted to have his say direct to his father. He wanted to hear a full apology and an acceptance of the full facts of the harm caused. He also wanted to say goodbye, because dementia was beginning to set in and there would be a barrier to future communication. They were still father and son; their relationship had not only been about sexual abuse. This was a very sensitive and complex case, with obvious elements of power and controlling behaviour and long-term sexual abuse, all within a domestic family setting. This was the type of case that commentators dictated were to be exempt, or barred from restorative justice.Yet there was a clear possibility of setting right some of the harm, and this restorative intervention had been initiated by the victim after much mature consideration. After assessment and review with the victim, we agreed a course of action and I started to trace the grandfather. I was obstructed all the way by various professionals in the prison and probation services. In some cases, they simply did not believe in restorative justice, or they simply hated paedophiles. In other regimes, they had been trained in restorative conferencing and judged that this case was unsuitable, especially as I was doing it and not them. This process took many months and we agreed to wait until he was transferred to another institution and a different area. Then Grandfather was moved to the mental hospital for assessment, and then I was able to make my first visit. He was very religious and had a large well-thumbed bible beside his bed. He quoted from this at some length to me. He held the position that he was like an Old Testament patriarch who was sent by God to rule over his family – and obedience in all matters. We went into some discussion over the nature of the allegations and the nature of truth, until I was able to reach a position whereby I could advise Arthur whether he could have a viable chance of communication. I also had the

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opportunity (and permission) to discuss the matter with the nursing team, who welcomed the whole interaction as an aid to their assessment process. The meeting between them, then took place. It was mannered and poignant.The two made their peace and said their goodbyes. Grandfather had consulted his bible and found the text that allowed him to apologise with good grace. After so long in the making it was over in no time at all, but it met all the requirements and aims of their original assessments. It also assisted in Grandfather’s mental health assessment, as by accomplishing this mediation he proved that he was safe enough for return to the prison system. News of the eventual apology helped the family to mend and Arthur’s position was enhanced. I should add that I usually work these cases with a colleague, but was requested to be alone by the victim and family, so I worked with very intensive peer support, as it was a murky business and I needed to share some of the details and frustration. I was working within a government agency too, so that the case handling was controlled and accountable. In this review of cases, we are asked to consider the issue of power, its balance within the case and the power of control of, or over the restorative process. From the beginning the outside control, agency control set in. The probation officer at the prison, the offender manager and the various prison governors all exerted their control – over a process that they knew nothing about; neither fact nor theory. I would have accepted a rebuff for matters of risk, but this was never put forward, neither was the victim’s perspective. This was about ownership of process. Even the local restorative justice organisation advanced their primacy without considering the participants wishes. Legal professionals feed on their power within the hierarchy of the system. Of more interest to me was, and still is, the issue of power within the family and especially with the flexing of religious power over the young (and powerless). There are points within a mediation/meeting when there is an almost imperceptible change, which is nevertheless a watershed or turning point. In this case the first was when the grandfather went back to his source of power, the bible, and found a part of holy writ that covered his behaviour and his apology. He needed to authorise his contrition, but hold on to a remnant of his power within the family. The second and stunning moment was when Arthur asserted himself, accepted the apology and said his final farewell. The victim had taken control and exerted his power, the balance had been restored and would be so ‘for now and ever more”.

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CASE STUDY NO. 2: POWER THROUGH BULLYING – ENGLAND1 Brenda Smith RESTORATIVE JUSTICE FACILITATOR, CHILTON TRINITY TECHNOLOGY COLLEGE

“There was conflict between two people in my friendship group at school. One of my friends, Alan, was calling another friend names and ‘accusing him’ of being homosexual. He was physically bullying my friend Liam by kicking and hitting him. Due to this conflict, me and two of the people in our group were caught up between the two. This was done to push Liam away from the rest of us, as Alan had never forgiven Liam for hitting David who is partially disabled. I knew it was not fair on Liam, but wanting an easy life at school, I turned a blind eye. I knew that Alan had been bullied in the past and didn’t want to stick up for Liam, as I didn’t want Alan to turn on me. I had been bullied in the past and I didn’t want a reminder of that. After a while, Alan managed to push Liam so far away from us that I forgot about him for a while. I regretted this at times, as Liam was a good mate. The other two friends did the same as me. They kept away from Liam to stop Alan turning on us. None of us knew that we all felt the same, because it was a subject that none of us in the group ever talked about. We all thought that we were the only ones who wanted to be friends with Liam.The tension affected the learning of all of us and it turned out that Liam had become suicidal. This shocked me, because I didn’t know that bullying had got that bad. In the end, the things everyone had been feeling came out in a restorative justice meeting. During the conference, we all learned how Alan’s actions affected Liam’s family as well as each other. It shocked me that Alan would do what he did. I thought he would have known better after being bullied in the past. The conference helped because everything was out in the open, so we could see each other’s point of view and understand them. We also realised that not only me and two other people, but even Alan wanted to be friends with Liam. Without sitting down and talking we would still be blanking Liam and he may have ended up doing something very serious to himself.

1  This case history formed part of a presentation delivered to the Smith Institute by the Department of Education at 11 Downing Street in March 2005. It is the words of one of the year 11 students involved in the case study.

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Restorative justice reinforced my beliefs that talking is better than fighting. Now, after the conference, if we have a problem with each other, we talk about it and try and make it right.We have all learned to look out for each other and it has helped us take a big step forward in our lives. The conference meant more than the contract. This was one of our early conferences. Liam’s dad had written to the Head Teacher regarding his concerns, which had been on-going since year 7. He mentioned the letter about our ‘new’ restorative justice empowerment tool that had recently been shared with parents and wondered if this might be a solution. He supported Liam throughout the process; Liam had become a recluse at home and it emerged that dad had been bullied as at school, so it had opened up painful ‘wounds’ for him too. He found that the conference had helped him too and, during a later review phone call remarked ‘I’ve got my son back now!’ The lads remained friends when they moved on to college and saw each other socially”.

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CASE STUDY NO. 3: POWER THROUGH RAPE – DENMARK Karin Sten Madsen RESTORATIVE JUSTICE PRACTITIONER

“At a boarding school party, a young woman (17) had been drinking and fallen asleep from being too tired and drunk. She woke to a classmate (17) performing sex on her. Upon the realization of what was happening, she pushed him off and ran from the room. A teacher took her straight to the police and she was later examined at the local Rape Centre. Later that night, the police arrested the young man, who initially tried to explain his act, but soon admitted having non-consensual intercourse with the girl. It wasn’t the first time he had been on the wrong side of the law, but this time he decided to admit his act. The school now faced a dilemma; should they expel the young man? Could they protect the young girl? They were both vulnerable young people and it was therefore decided to relocate the young man to a different part of the school. The police suggested mediation, which was welcomed by the school and the young man and reluctantly agreed by the young woman. Preparatory meetings took place and during these meetings it evolved that some years previously there had been mild flirting, but the young man acknowledged that the young girl had not shown him interest since. She didn’t want him expelled but wanted an explanation, an excuse and agreement on rules regarding their future behaviour and interaction at the school. He was remorseful and open to questions although he himself didn’t quite understand what had happened. The mediation was held outside of school with the young people arriving separately and each accompanied by a teacher. During the first five minutes their heads were bowed. In a mumbled voice he repeated: ‘I’m so sorry’ over and over again, before she asked:‘How could you do it?’‘What were you thinking of?’‘What do you take me for?’ Their eyes meet and he makes a reel effort. At this moment, a power balancing act occurred. An hour later, the young girl received an apology that she found was of use to her. She accepted the apology and the agreement to future interaction at the school. The trial was heard three months later. He was given four months suspended sentence, with one year’s probation and, as agreed, a follow up meeting took place.

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The sentence was discussed. He was grateful not to have been sent to prison and felt he’d been given a second chance. She had wanted him punished, but found the sentence served too severe. She had turned down the compensation she was entitled to ‘How will he ever be able to pay? If he is burdened with a big debt, he will only get into more trouble. I want things to move on in a different direction. I would anyhow spend it all on nothing. Why make things more difficult than they already are?’ The agreements made were kept and both remained at the school.”

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CASE STUDY NO. 4: POWER THROUGH RACE – USA Dr David R. Karp PROFESSOR OF SOCIOLOGY, SKIDMORE COLLEGE

“At a public university in the United States, a heated argument developed between members of the football team. The conflict began over a girl, but escalated when a white player called one of the black players a ‘nigger’. A dean gathered the ten players involved on a weekday evening for a restorative circle. Because the teammates already knew each other well, the dean asked them to begin by sharing something they would not likely know about each other. He modelled this by sharing challenges he faced when in college. Then, he passed a ‘talking piece’ so that each player would have a chance to speak sequentially around the circle. The first student to go said that his dad was an alcoholic who beats his mom on a regular basis. Another said that he had been adopted three times by three different families. Another said that he was struggling with an ongoing addiction to pain killers. Immediately, these players were being more vulnerable with each other than they have ever been before. Vulnerability diffused their inner power and wish for domination. Next, the dean asked each to share their account of the night the conflict began. The student who said the ‘N Word’ admitted what he had done and broke down crying. He said that he had used his intoxication as an excuse, but the truth was that he grew up in a poor trailer park where his family and neighbours used that word all the time. He apologized and asked what he could do to make things right. Once the teammates talked about the racial slur, they began to raise other issues that they had never before felt comfortable discussing, such as their friendships off the field and how they treated female students. The teammates committed to making a bigger effort to develop their relationships and spend more time together. They talked about needing to decrease their alcohol use. The players of colour told the student who used the ‘N Word’ that it would take a long time for them to forgive him and he would need to work day in and day out to regain their trust. After the end of the circle, two of the students told the dean that they had never before shared what they said at the beginning of the circle.They asked to meet with him on a regular basis. Following the circle, the coach said it felt like he had an entirely new team”.

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CASE STUDY NO. 5: THE POWER OF TAKING LIFE, THE POWER OF OWNING RESTORATIVE JUSTICE – USA Margot Van Sluytman

“The email from the man, Glen, who murdered my Father, Theodore, came almost thirty years to the date of that dark day. It was a surprise, verging on shock; arriving at a time of my life when I knew that my lived-experience of my Father’s death being as my very own, had to change. I received that email, which was a donation to my micro poetry press, with a sense that its timing was right. I chose to respond to it, clarifying if it was indeed the man who had killed my Father. A response in the affirmative was returned. I next asked for an apology. That, too, came. In time, after digesting the magnitude of being connected with the human who had taken the life of the human I had loved so profoundly, I sent an email saying that I wanted to meet. Face-to-face. Eye-to-eye. I wanted to understand, in-person, who this person was, and how his life was moving on from that day. We did meet.We negotiated our own terms.We followed our own due diligence to ensure that both of our safety was in place, and that our meeting would not harm each other in any way. We met. We shared Sawbonna2. Sawbonna means we see the humanity in each other. All of our shared humanity, which includes the beauty and the brutality. It is from that man who put a bullet in my Father’s heart, that I learned that word. And it is with him that I shared a poignant, authentic, and livedexperience of healing, of justice, and joy. Power began to rebalance. After our astounding meeting occurred, we had several offers to give talks about our journeys, including our personal processes of what I called, ‘murder to meaning’. It became clear to us that those ‘in charge’ of restorative justice, were not pleased by our choice to meet, without getting permission from them, and without filling out the right forms. Firstly, I had not known that there was any process that would make it possible to me to meet this man; secondly, after we met, we had abundant media, including in some of Canada’s high-profile papers and television stations. Our choice of how to meet and where, was based on our personal and shared needs and wants.The fact that we were in the media, meant that if anyone did care about us, they could have reached us to see if all was well. 2  A Zulu greeting, meaning “I see you”.

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No one reached out, but many chose to not only boycott our talks, but told their communities to do so as well. This reeked of power. It spoke to me of what had been my experience from the day my Father wore two bullets, when I had wanted to go to the morgue to see that it was really him, and my Uncles said, ‘No!’ With those who ‘owned’ restorative justice disrespecting our process, I felt the hand of hegemony once again on my throat. Though I could understand my Uncles’ truncating of my voice, not only could I not understand, but I would not accept those who ‘owned’ restorative justice, telling me what to do and how. And that is why I say, ‘sawbonna’, and why I completed an MA at the age of fifty, Sawbonna: Justice as Lived-Experience”.

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CASE STUDY NO. 6: FOUR RESTORATIVE PRACTICES IN QUEENSLAND – AUSTRALIA Steve Brady RESTORATIVE JUSTICE AND TRAUMA RECOVERY ADVOCATE

“I believe the power of compassion should never be underestimated. However, vitally, I believe that the power of compassion needs to be developed into tangible skills, perhaps at Facilitator level especially as they can face complex variables, very often associated with intra-intervention power dynamics. Any language system is at risk of communicating abstractions of reality. Lingual ‘habits’ within a society can obscure reality. For example, we still use the terms ‘sunset’ and ‘sunrise’ even though these words reflect a pre-Copernican cosmological worldview. Power can be synonymous with Energy. In scientific terms, the transfer or transmutation of energy always conveys information, which can then be interpreted as meaning. Remember that intent is a thought/affect system process which is primarily a dynamic of energy. The significance of this distinction will hopefully be clarified in some of the case studies below. The continuum of ‘micro’ and ‘macro’ process aspects is common to many disciplines. I believe it is especially relevant to Restorative Ethos, Strategy, and Intervention. In counselling an essential skill is the development of micro-skills to detect subtle and overt energy dynamics. All RJ facilitators need micro-skill training and mentoring. Every restorative justice meeting has subtle and overt energy dynamics Restorative Justice is a Wisdom process, tradition, paradigm, and skillset. Narvaez develops this theme extensively in her book. Suffice to say, one illustrative quote will be sufficient for this summary: ‘Wisdom is about perceiving the energetic realm and acting in accord or harmony with it’ (Narvaez, 2014). The case studies that I have included below unfortunately include no formal evaluations, pre-or post-intervention. Sawatsky makes, what I believe experientially, to be a valid point: When our evaluation focuses on how well we are doing with regard to the virtue of interconnectedness, we move away from linear approaches of adding

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up inputs to achieve certain outcomes. Outcome-based evaluation may work well in fixed environments but often falls short in environments of ongoing changing relationships. (Sawatsky, 2008) Restorative justice interventions are open-system, multivariable and complex connections that preclude accurate or precise metrics in scientific terms. Qualitative evaluations such as stakeholder satisfaction or dissatisfaction etc can be useful, but are highly subject to contextual variables. Quantitative metrics such as recidivism in the criminal justice sector, and decreased or increased student detention or suspension rates in the education sector may be useful as well. However, I believe a question with such metrics related to RJ will always remain: are these results causative or correlative? I believe, as RJ advocates, we need to be ‘brutally’ honest about these factors. There is a term that Narvaez cites, and I quote: ‘Life-span researchers define wisdom as a form of practical wisdom: a metaheuristic to orchestrate mind and virtue toward excellence’ (PB Baltes, 1993; Narvaez, 2014) I believe that this is a topic worthy of extensive dialogue. Can RJ theorists come up with a metaheuristic principle? The first case study is about a conflict involving two sisters who I will refer to as Chloe and Zoe, a girl whose parents were born in China (Tia), a very visually attractive girl (Jess) and a male student (Zeb). The students ranged in age from 13 to 14 years old. Following consultation with the Senior staff of the school concerned, and most importantly, my preparatory meetings with the students, I decided to proceed with two informal restorative meetings. One, with just the girls, the second, with the male student included as well. The harmful behaviours included repeated racially vilifying comments verbally and online regarding Tia’s Chinese parents. Repeated sexually intimidating verbal comments made by Zeb, when he and Jess would publicly approach the other girls. In the presence of many other students, he would say: Hands up if you think Chloe and Zoe are c**nts? These repeated harmful behaviours caused considerable hurt and embarrassment. Chloe and Zoe’s mother had started to plan to transfer them to another school. All the students named expressed willingness to be involved in a Restorative process. Despite thorough ‘pre-meetings’, the first meeting that involved just the girls began unexpectedly with Jess repeatedly saying ‘This is stupid’ or ‘this won’t work’. I paused the meeting, put the script to the side, and used a metaphorical ‘ritual’ (Picucci, 2012) that communicated options to the girls in a firm, but relatable way. The meeting could proceed after this and resulted in understanding about the conflict, agreement, and reconciliation. The second meeting was the most emotionally fraught meeting that I have ever facilitated. The hurt caused to Tia by the racially vilifying comments about her parents, and the sexually vilifying comments made publicly by Zeb were extremely

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hurtful to Chloe, Zoe, and Tia. The girls expressed their feelings to Zeb and Jess with profound poignancy, verbally and with copious tears. Zeb was trembling as he listened to the girls. He expressed deep regret and apologised. He and Jess agreed that all harmful behaviour described must stop. An unexpected development was that Zeb asked me if he could ‘book’ me and my office to tell the rest of the students in his ‘cool’ group what an ‘idiot’ he had been. I agreed, and to Zeb’s credit he facilitated the whole meeting and was true to his stated intention of declaring his own ‘idiocy’ and the extreme hurt so-called ‘jokes’ can cause. Follow up communication from the school indicated that the favourable results from all three meetings continued. My second case study involves an intervention that took place in a school. Seventeen year 9 girls were in involved in about 3 months of overt and subtle social conflict, that included behaviours such as gossip, name-calling, salacious use of social media, ‘shoulder knocks’, ‘death stares’, exclusion.There were victims and offenders, but they swapped places regularly! A Semi-Formal Restorative Conference was convened. I facilitated, with a Senior Leadership staff member and the school’s female counsellor present also. All seventeen female students were present. The meeting began favourably, in the same way that the short pre-meetings I had had with the girls went. However, despite my previous private requests not to, the Senior Staff member pulled out his clipboard in order to take notes during the meeting. The change in energy of the meeting was palpable. It wasn’t subtle at all. I worked hard to get through the meeting. I managed to get what I consider to be an unbalanced degree of engagement from the girls. I knew all these students well, and I was well acquainted with their culture. In my view, it was an unsuccessful intervention. There was some improvement in behaviour, but no sustained improvement in their social dynamics or the power imbalances. I feel confident in concluding that it was the clipboard that made all the difference. In terms of meaning and perception, that clipboard represented a hierarchy of power. Their words were going to be recorded, so honest conversation was precluded. This case illustrates that every ‘circle’ must be a physically and emotionally safe space. In restorative justice conferences that I facilitate, the only recorded information I allow is the final agreement the stakeholders formulate to repair harm, and ‘re-story’ their relationships. Disclosures of serious harm or potential harm etc are exceptions to this proviso. My third case study highlights what I will term the power of respectful engagement. I was requested by the principal of a school to help them resolve a bullying case that was not responding to their restorative interventions. It involved two year 12 boys. One was clearly the offender. He looked considerably older than normal for year 12 boys his age, his physical stature was imposing by virtue of his athletic appearance and unusually taciturn demeanour. He held a grudge against the other boy because of an incident that occurred on the football field several weeks earlier.

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The boy who was the victim had a considerably less athletic appearance and expressed fear about the offender’s behaviours and intentions. Because of some pushing and shoving that was periodically occurring outside school hours, repeated threats made at school and on social media, the boy no longer felt safe at school. The victim’s parents were understandably upset and threatening legal action against the school. I held individual meetings with each of the boys. The victim expressed appreciation for the meeting but his micro-expressions and overt demeanour gave me the impression that he didn’t hold high hopes that the intervention I was starting was going to be any more successful than previous ones. I will never forget my meeting with the offender. He was polite and respectful, but his taciturn manner unnerved me. Nevertheless, our conversation flowed as intended. I was intrigued with the very subtle micro-expressions that I observed in this boy. My impression was that he was not used to being spoken with (i.e. non-hierarchically) by an adult with authority. The result of our conversations was exceptional. I received a call the next day, before I was due to travel to the school for the intended restorative meeting.The principal said that following my conversations with the boys the previous day, the offender contacted the victim and his family to express his remorse, to admit that his ‘grudge’ was foolish, and to ask for time to prove to them that he intended to stop his harmful behaviour. I followed up a couple of days later, and then subsequently two weeks later I received a call from the principal in which she said that the problem had ‘disappeared’. In her words, she said ‘that it was quite remarkable really’ that two conversations could have such a profound effect. From my angle, I just treated the boys like I would want to be treated myself. It was the offender himself who achieved the remarkable result. Treating people with dignity, respect, and clarity has a difficult to define power to elicit healing and reconciliation. My fourth case study involved a Youth Justice Conference ordered by a magistrate as diversionary with sentencing pending its outcome. I was there as a support person for a year 11 boy who punched his mother in her face, causing significant lacerations, bruising, and distress. She called the police immediately after the incident and the boy was charged as an adult. I am going to refer to this case as one illustrating the power of confusing multiple messages. Present at the meeting were the facilitator, the mother and her support person, a female friend, a police officer, the offender and me. The meeting proceeded according to the script, but to me the meeting was ‘awash’ with subtle and not so subtle energetic exchanges that led me to conclude that it was a very poorly facilitated meeting. The tone was slow and boring. I am not bored easily, but in my professional view after two hours when it came to the offender agreeing to terms of reparation to his mother, he gave me the impression of agreeing to anything just to get out of there. In terms of the confusing multiple messages I mentioned, it was in this realm that the question of justice resided. On one hand, the police officer did nothing, in my view, to disguise his cynicism regarding the process. In my experience, this is not unusual. Again, in my view, the facilitator led the meeting in a ‘disengaged’ manner that belied the power that exists in a well-convened

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circle, and seemed indifferent to the fact a mother had been assaulted by her own son, and that his life will be drastically affected by the outcome of the meeting. To me the most maddening power that suffused everything that was spoken during the meeting was that on numerous occasions, the mother could be seen and heard to be laughing and chatting with her support person during the meeting. To me she did not act like a victim. To me, the meeting was a farce in terms of justice. To me, the meeting was devoid of authentic facilitation power, that can engage with stakeholders to deal with harm, and enable at least the possibility of reconciliation. I was very disappointed that the facilitator didn’t politely but firmly state that chatting and laughing was not a behaviour/message that was appropriate. I later learned that the boy did not receive a custodial sentence nor did he have a conviction recorded. Fortunately, the magistrate was satisfied that the token reparations agreed to by the offender were sufficient. I still think that ‘managing the power within’ is where restorative justice comes alive”.

References Artinopoulou, V. (2015). Restorative Justice and Psychology: Positivism in Criminology Again? A Few Theoretical Reflections. In The Psychology of Restorative Practices - Managing the Power Within, ed. T. Gavrielides. Surrey, UK: Ashgate Publishing Limited, pp. 83–101. Baltes, P.B. (1993). People Nominated as Wise: A Comparative Study of Wisdom-Related Knowledge. Psychology and Aging 10(2): 155–166. Bohm, D. (1992). Thought as a System. London: Routledge. Narvaez, D. (2014). Neurobiology and the Development of Human Morality. New York: W.W. Norton & Company. Picucci, M. (2012.) Ritual as Resource - Energy for Vibrant Living. Booknook.biz: Internet Published. Sawatsky, J. (2008). Justpeace Ethics. Eugene, OR: Cascade Books.

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CASE STUDY NO. 7: PARENTAL POWER AND CULTURE – MALAYSIA Taufik Mohammad and Nur Atikah Mohamed Hussin SCHOOL OF SOCIAL SCIENCES, UNIVERSITI SAINS MALAYSIA

“Ali, 15-year-old, was a resident of a probation hostel in Malaysia who had undergone four months of detention. I occasionally go to the probation hostel to provide counselling to the residents. Ideally, the counselling involves the residents and their family, but family members are rarely willing to play an active role in the offender’s rehabilitation. I was glad to learn that, after meeting Ali a few times, he and his parents agreed to ‘meet’. I explained to Ali beforehand that the meeting would be in a form of victim-offender mediation because his crime effectively victimized many parties, including his family members. The mediation finally took place in July 2016 at the hostel. Ali indicated that he was not close to his family and admitted of behaving rebelliously in ways that upset his parents. He had moved out from the house, despite of his age and over his parents’ objection, and had been staying with his peers for almost a year. Parents in the Malay communities are regarded as the powerful decision makers in a family and this dynamic was disrupted by Ali’s action. Moving out was when he started to indulge in a criminal lifestyle, until he was arrested for breaking into a house last year and ordered by the court to undergo a year-long detention at the probation hostel. In one of my counselling sessions, after I inquired, Ali expressed his intention to be close with his family again. This might have driven his agreement to undergo mediation. My idea of the mediation was to balance out the power play with the consideration of the Malay culture.While the voices of both sides should be equal, the power dynamics in a Malay family was given a heavy consideration in this mediation. The session started off with awkwardness, which I expected because it is very difficult for Malay families to express emotions clearly. I prompted the mother to say something and she cooperated – saying that she was very disappointed. When I asked for a response, Ali just looked down. Her mother continued to express her discontent that her son moved out even when she and the father did not approve. Ali’s mother started to have more visible emotions and finally cried. I asked Ali again if he had anything to say and, while looking down, he said that he regretted moving out and being a burglar. The discussion went on for half an

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hour until I asked both sides to list things they agreed and promised to fulfil once Ali was from detention. The session finished off with apologies and forgiveness, and Ali kissing his mother’s hand – the Malay way of showing love and respect to older Malays. After the session, I asked Ali what he felt. He expressed appreciation to me for conducting the intervention. He reaffirmed the commitments he made with his parents for after he was released. I met him again a month later and he seemed to be happier and said he could not wait to be released and improve himself. He even held on the list we have made. Although I did not use any systematic method to measure the success of the mediation, I still believe that the mediation session between Ali and his parents was a success, judging from how they behaved and how they made efforts to communicate – despite the many cultural and interpersonal barriers they faced”.

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CASE STUDY NO. 8: THE “POWERFUL” VICTIM PAEDOPHILE – USA Todd Nickerson

“I am a non-offending paedophile, meaning I have a sexual preference for children but understand the harm that sexual abuse can cause and choose not to act on it. My article I’m a paedophile, but not a monster, about my life and struggles, was published in Salon in September 2015. Another Salon piece soon followed. What surprised me most about the resulting publicity was the number of supportive responses I received from survivors of sexual abuse. They recognized it as a positive step towards abuse prevention. Some even explained that my articles had helped them achieve closure. I’m exceedingly proud of that. You see, I am a sexual abuse survivor myself. When I was seven, a man I barely knew put his hand in my pants while we shared a patch of ground on a warm late summer day. Some people wonder, how can you become a paedophile if you were yourself abused? The built-in assumption is that we somehow choose to be attracted to children. I can tell you, no sane person wants to have this unworkable sexuality which comes ready-made with the very worst stigma going right now. Most people don’t get to choose our sexual preferences though. And while I myself have never abused a child, it’s important to understand that even those paedophiles who do abuse kids may experience a war within themselves for months or years before they finally give in to temptation. It doesn’t excuse what they’ve done, but it may help shed some light on why it happened. Thus, regardless of all that I’ve suffered because of my sexuality, or perhaps in part because of it, were I given the opportunity to sit down with my own abuser, I could not react to him as many would have me react: with anger, accusations, violence. I would ask him, ‘so, who abused you?’ Maybe no one did, but I would not be at all surprised to learn that he had himself been victimized as a boy. These things can be cyclical. What I really want to understand is what went on in his head right before he touched me. Did he see me as easy pickings, given my disability? Did he imagine I wasn’t going to rat him out to a relative (which I did immediately after)? Sometimes I wonder if, lacking insight into their abuser’s motivations, some victims develop paedophilia as a way of processing what happened to them. Outsiders often misunderstand the nature of abuse. We’ve all heard the horror stories, and those do happen, but frequently the experiences of survivors don’t match what we’ve heard.

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So, when some of them reached out to me and explained how my articles had given them comprehension and closure, I understood exactly what they meant. I often compare the issues of paedophilia and sexual abuse to a black hole, in the sense that the culture surrounding these things are so warped by moral panic that it’s nearly impossible to get beyond that, whether you’re a paedophile struggling to stay legal or an abuse survivor – or especially if you’re both – a journalist covering the topic or a scholar trying to grasp its complexities in the clear light of science. I get that this is not an easy issue for people to wrap their heads around. Many don’t even want to try. But simply reacting harshly is not the answer. Power must be shared to move forward. We must move beyond this point if we're going to eradicate abuse. The current mode of thinking does little but alienate, disturb and disaffect young paedophiles, pushing them even further underground, where they are less likely to seek help before it’s too late. Indeed, stress and isolation are often leading factors in causing paedophiles to offend in the first place. Besides, no problem was ever solved by refusing to understand it, and understanding this particular problem starts with everyone involved – victims, paedophiles (offending and non-offending), experts, journalists, counsellors, and so on – sitting down and talking to each other as rational, levelheaded human beings and starting from the assumption that no matter where you’re coming from on this, most of us share the goal of ending sexual abuse”.

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CASE STUDY NO. 9: RACE, GENDER AND POWER – USA Lorren Walker DIRECTOR, HAWAI'I FRIENDS OF RESTORATIVE JUSTICE HONOLULU

“Restorative processes provide participants with opportunities to exercise autonomy and power for problem solving (Braithwaite, 2000). Each individual in a restorative process is allowed to exercise personal choices about what they want, and what might help transform difficulties into a more positive future. A common difficulty faced by impoverished, and especially young mothers of colour, is their inability to show that they can adequately care for their children according to standards established and enforced by government agencies, and private service organizations. Implicit and overt biases influence people’s judgments (Gladwell, 2005). In assessing the capability of young, uneducated, and poor women of colour to provide for their children, biases create imbalances of power and barriers difficult to overcome (Roberts, 2002). When violence and substance abuse are present, these mothers are more vulnerable and disadvantaged to show they are capable of caring for and protecting their children. Rather than assisting the women learn to be better parents, especially when they make mistakes, they are often punished instead. This case study came to our small agency, Hawai’i Friends of Restorative Justice, through work we do at the Hawai’i state women’s prison. We provide services including a family law clinic, and a restorative re-entry planning circle process for incarcerated individuals who meet with loved ones to address their needs for a successful life back in the community (Walker and Greening, 2013). Imprisoned individuals’ needs include reconciliation and making amends for any past harmful behaviour and consequences of their imprisonment, including any trauma they may have suffered. Research shows that the re-entry circles assist the children of imprisoned parents heal and deal with trauma they often suffer (Walker et al., 2015). The circles also help reduce repeat crime after imprisonment (Davidson, 2016) while restoring lost power. Imprisoned women are often affected by the ‘victim-offender overlap’ (McDaniels-Wilson and Belknap, 2008). Incarcerated women usually suffer from trauma and hardships due to abuse, and a lack of economic, social, and educational opportunities (United Nations, 2014). How they have been harmed, and

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what they can do to recover and desist from crime and substance abuse, as relevant, are addressed during the re-entry circles. The case study presented here was prepared with our assistance by the 32-yearold woman it concerns. She is remaining anonymous to protect information about her four minor children. The woman participated in four re-entry circles. She also participated several times in a 12-week facilitation training cognitive course we provide at the prison. We have worked with her for over six years and observed first hand her growth and development. Practically, the circles helped her develop a vision of what she wants for her future and strategies for attaining her goals. Emotionally and psychologically, the circles helped her address her lack of power as a poor mother of colour, and encouraged her confidence to develop relationships and support for herself and children. Importantly, the circles helped her create social capital for that has assisted her in addressing hardship. Two of this mother’s children participated in two of her circles. Her other two children were able to have their needs expressed through their father who contributed information for them at all the circles. This is her story: I was born in 1984. My parents met at a New Orleans strip club. They abused alcohol and drugs, and never had a committed relationship. My mother is Caucasian and Cherokee Indian, from Alabama. My father is Chinese, from Hong Kong. My mother left me with anyone who would babysit. At age two she gave me up to my great uncle and his wife in Ohio who adopted me. My adopted dad is an alcoholic who abused my adopted mom so badly I worried he would kill her. Their son beat me up, and told me that our parents: ‘Bought you and are sending you back to China.’ Kids at school always made fun of my black hair and slanted eyes. In eighth grade I ran away to find my bio parents. I was an angry teenager and fought with them. They pressed charges against me and I lived in shelters and on the streets. I felt most accepted in Black neighbourhoods. By age 17, I had two sons with different African American fathers. In 2002 I moved to Hawai’i. After living in my car with my sons, I worked waitressing, went to school, and got an apartment. I married a gentleman (I thought) and we had a baby girl. He abused me and cheated with another woman who I assaulted. I pled guilty to three felonies. I went to prison, and my children went into foster care. Later my sons went to live with the oldest one’s father in DC. My daughter stayed in Hawai’i with foster parents who I agreed could adopt her. I was sentenced to five years imprisonment after I pled guilty to three felonies. I went to a residential treatment facility, but got kicked out after six months for not obeying a BS rule against non-verbal communication with a male client. I got re-sentenced to 10 years imprisonment for each felony that the prosecutor wanted me to server consecutively, but the judge allowed me to serve concurrently. I spent five and a half years in prison before my first parole. The Hawai’i women’s prison is horrible. Most of the women are poor, many are mentally ill, and some are drug addicts with intellects and vocabularies of ten- and

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twelve-year-olds. Some speak in baby voices. Guards beat and cussed at us daily and did many other unethical, unprofessional, and the unimaginable. I was isolated often for fights defending myself and for trying to kill myself. I gladly took antidepressants, antipsychotics, sleeping medications, and any meds the medical unit wanted to try on me. I learned about the restorative re-entry circles in prison, and have had four. My first circle was in 2011. My adopted auntie came from Hawai’i Island and my bio parents gave information by phone. At the circle I planned to make amends to my family by obeying the prison rules and being law abiding. My second circle was in 2013. My daughter’s adopted father brought her to the circle and my son’s father explained by phone how the boys were affected and what I could do to make amends. In 2014, I was first paroled, and 12 months later I had my third circle. On parole I did well for about a year, but eventually I lost my job, home, and took prescribed antianxiety meds. I was also drinking, which is not permitted on parole. A dirty urinalysis sent me back to prison in 2015. I was pregnant and imprisoned for the last five months of my pregnancy. I was released to a drug treatment program for mothers, which I completed, but was caught with a prohibited cell phone days before my discharge. I was sent back to prison a third time and my new-born went into foster care. My fourth circle was in December 2016 after I was paroled the third time. I remain paroled at this writing. I am off all meds now and have been for over two years. I am in a re-entry furlough program with strict requirements including each week: working 40 hours, doing one hour daily housekeeping, 16 hours of serving meals at the facility, and three hours taking mandated courses and attending AA/NA meetings. Additionally, I meet weekly social service requirements including family therapy, meeting with a social worker, and 2 visits with my baby, to regain her custody. I believe I neglected my children and they are suffering the consequences. I also believe the system works against us. Many of the things I must do are redundant and unhelpful. The circles helped me realize it is up to me how I respond to difficulties. Hearing how I affected others helped me find ways to make things better, to grow, and improve. Each circle helped me map out my life. I learned from all four. I am proud to see my strengths and how much I have grown, mistakes and all. I realize it’s not so much about the wrong I’ve done, but what I do about it. My ten-year sentence, for my episodic crime of passion committed when I was 21 years old, is complete in 2018. I will stay out of prison, and help others learn from my experiences. I commit this for myself, and my children. I feel a duty to help improve the system by reducing the trauma and unnecessary punishment it inflicts. I want to help others avoid the hardships and pain my children and I endured. This woman struggled to meet the requirements of the programs she was in. Many times she sought assistance when she faced housing eviction and experienced work difficulties. She was not provided the help she needed by the government or private agencies. Often while struggling she did not have a counsellor or therapist

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to assist her. It was due to her own initiative that she developed relationships with professionals she met in programs who have assisted her, e.g. a university professor she met in a creative writing course in prison, several directors of NGOs who assist people with re-entry from prison, a family court lawyer who was assigned to help her when the state took custody of her three oldest children when she went to prison etc. Regardless of her difficulties meeting all the requirements of the programs she is in, she is currently succeeding. Several months since she wrote her story above, she continues to do well. She is working full time at a well-paying job, which is much closer to her home and no longer requires bus commute that could take up to four hours a day. She is becoming independent with the goal of reuniting with her youngest child. We are confident that eventually she will achieve her goals, and we remain committed to assisting her in whatever ways we can. It is evident and ironic, however, that the programs for people involved with the justice system, which are supposed to help, often create unnecessary burdens and further hardships.The programs that this woman participated in were often more of a hindrance than help when she began to have problems. Few mistakes are allowed, and zero tolerance was often imposed for rule violations. It is as if one is to succeed, they must be perfect, which ignores that fact that people will make poor decisions, make mistakes, and encounter problems. Many mothers of colour who are indigent lack resources outside of what government provides. Instead of helping them find solutions, and overcome difficulties when they stumble, harsh and punitive consequences are imposed. Mistakes should be expected, and helping people learn from failure and poor decisions should be the goal instead of more punishment.The funds spent on imprisonment could easily pay for better treatment and resources for improvised mothers”.

References Braithwaite, J. (2000). Democracy, Community and Problem Solving. In Family Group Conferencing: New Directions in Community-Centered Child and Family Practice, eds. G. Burford and J. Hudson. New York: Aldine de Gruyther. Gladwell, M. (2005). Blink: The Power of Thinking Without Thinking. New York: Time Warner Book. Hawai’i Friends of Restorative Justice (2016). Restorative Reentry Circles and Recidivism Reduction. Retrieved 3 November 2016 from www.hawaiifriends.org. McDaniels-Wilson, C. and Belknap, J. (2008). The Extensive Sexual Violation and Sexual Abuse Histories of Incarcerated Women. Violence Against Women 14(10): 1090–1127. Roberts, D. (2002). Shattered Bonds:The Color of Child Welfare. New York: Civitas Books. United Nations (2014). Women and Detention, Human Rights Office of the High Commissioner. Retrieved 14 February 2017 from http://www.ohchr.org/Documents/Issues/Women/ WRGS/OnePagers/Women_and_Detention.pdf. Walker, L. and Greening, R. (2013). Reentry and Transition Planning Circles for Incarcerated People. Honolulu, HI: Hawai’i Friends of Civic & Law Related Education. Walker, L, Tarutani, S. and McKibben, D. (2015). Benefits of Restorative Reentry Circles for Children of Incarcerated Parents in Hawai’i. In Promoting the Participation of Children across the Globe: From Social Exclusion to Child-Inclusive Policies, eds. T. Gal and B. Faedi Duramy. London: Oxford University Press.

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CASE STUDY NO. 10: POWER IN FAMILY RELATIONSHIPS – GREECE Afroditi Mallouchou SOCIAL WORKER – JUVENILE PROBATION OFFICER

Christina Moutsopoulou PSYCHOLOGIST

“This is a case of a 17-year-old boy getting involved in multiple incidents of domestic violence; against his younger 11-year-old special-needs brother and his 52-year-old mother (who was a psychiatric patient not receiving proper treatment). Thanks to the initiative of the neighbours, the case reached the office of the Public Prosecutor as a case-in-need of care for being the author of repetitive bodily injury mainly against his younger brother (including shooting with a gun). The boy was then placed under the supervision of a juvenile probation officer (at the age of 17), while his younger brother was placed in a special institution for abused/neglected children. Two years later the boy agreed to follow psychotherapy and, sooner or later, stopped his aggression against his mother. The boy is himself a case of severe physical abuse. He was brought up by his grandmother, as his mother lived with her second partner, with whom she had the younger child. The boy would visit his mother at weekends and get severely physically abused by her partner. When he was ten, the mother left her partner and returned to the grandmother’s house with her second child. From then onwards, domestic violence became a daily routine. Since the age of 15 for severely beating his mother, the boy was prosecuted four times. Three times the court decided to place him under the intensive supervision of a juvenile probation officer (at the age of 17 and 18). By the time of his fourth trial (at the age of 19), the boy was already taking psychotherapy and had noticeably calmed down. The court decided to put the boy and mother on a dialogue-based process to achieve reconciliation. The incident of domestic violence was a physical attack of the boy on his mum’s head (with a gym weight) and threats to kill her (on the 19 May 2011). It happened in the house, the boy being infuriated for his involuntary hospitalisation two days earlier (he was taken into hospital by police force) as a psychiatric case for severely abusing his mum once again. On 19 May 2011, the boy, at the age of 17, felt physically stronger than his mum, and could retaliate for all the abuse he had received since his childhood, including his recent involuntary hospitalisation. The dialogue process took place two years after the incident of domestic violence (February 2013) due to case overload in the judicial system. It was put into place as

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a court order. The boy was by then nineteen. The juvenile probation officer was the mediator in the victim-offender mediation process. The dialogue tapped on how the boy’s violence did not help him overcome his anger and only hurt his mother. The outcome was that the boy took on responsibility for his aggressive behaviour and asked his mum to forgive him. The mum stroked and kissed her son. For one year later, the boy was under the weekly supervision of the juvenile probation officer and in parallel continued his weekly psychotherapy sessions. He went on to finish his school, which he had stopped for two years. Never again did he hit his mother, although he threatened to do so at times”.

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CASE STUDY NO. 11: THE POWER OF PROTECTING MY TURF – GREECE Afroditi Mallouchou SOCIAL WORKER – JUVENILE PROBATION OFFICER

Christina Moutsopoulou PSYCHOLOGIST

“In 2013, in a western suburb of Athens, a group of four Greek boys (15–17 years old) surrounded a 16-year-old boy of Albanian origin and a 13-year-old girl who were sitting on a bench.They robbed them of their mobile phones and two from the group severely beat up the 16-year-old boy. The 13-year-old girl got accidentally slightly injured in her abdomen. The group ran away, while the victims reported the incident to the police and asked for the prosecution of the offenders. The girl recognised one offender as they went to the same school. The police arrested the boy that the girl had identified and he revealed the name of his accomplice who participated in the physical assault. The two offenders confessed that they had hit the 16-year-old boy, as rumours prevailed that he was flirting with the girl, who was previously the girlfriend of one of the offenders (the one that went to the same school with the girl). The two offenders, who were arrested, took on the whole responsibility, concealed the names of the other two in the group and admitted that they all shared the same thought ‘We cannot let the Albanians come to our country and take all the girls from us’. They claimed that they had no intention of robbing the victims of their mobile phones and told the police where exactly they had hidden them after the attack. The case was trailed two years later. Until the case trial, the juveniles were supervised by probation officers and participated in a psycho-educational program of anger management. Their probation officer took into account that they came from functional family backgrounds, that their offence had been incidental and that they regretted their frivolous and impulsive behaviour. Hence, she suggested they undertook a dialogue-based approach to reconcile with the victims. They accepted with the fear that the victims would strongly object to such an approach. The juvenile probation officer, who would be the mediator in the dialoguebased approach, tried to contact the victims. At first, they were apprehensive. She then saw them in person to explain the benefits of the process for both parties. Finally, they accepted to go ahead with the mediation. The greatest objections were expressed by the mother of the 13-year-old girl, who believed that the offenders were responsible for her daughter’s health problem;

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soon after the attack the girl suffered from an autoimmune disease (rheumatoid arthritis). The mother was divorced from her husband and brought up her two daughters in a stressful and overprotective way. She referred that her daughter was bullied at school after the attack, she got locked up in the toilets, and her classmates refused to go into class because of the arrest of G.D. by the police. However, the meetings with the juvenile probation officer seemed to relieve both mother and daughter, who both sought answers concerning the motives of the offenders. The prospect of asking the offenders relevant questions was quite relieving and empowering. The basic victim of the attack, H.T., was strongly in favour of the dialogue-based approach, despite the fact that he had underwent physical pain and humiliation in an attack characterised by power imbalance (two against one) and racist motives (as he was second-generation migrant). In April 2015, the three-member court found the defendants guilty of grievous bodily injury against H.T, and physical assault against K.A., and innocent of the robbery because of doubts. The court decision was lenient, mainly thanks to the evidence provided by K.A., who claimed that she was not seriously injured, that she believed that the offenders had no intention of robbing them and that she did not want their penal prosecution. As a result, and accordingly to the juvenile probation officer’s pre-sentence report, the court ordered the defendants be engaged in a dialogue with the victims and be placed on probation. Five months later, all parties had been prepared for the dialogue (mediation) meeting. The court order was put into practice and the dialogue had a successful outcome with the offenders apologising to the victim H.T. The girl decided not to participate, as her health problem had aggravated. At the end of the process, both parties expressed feelings of relief ”.

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CASE STUDY NO. 12: POWER IN WHITENESS – ENGLAND Sughra Bibi RESTORATIVE JUSTICE OFFICER, OXFORDSHIRE YOUTH JUSTICE SERVICE

“The incident occurred in 2015. Young person (YP) 13 years old was in a group that had hurled racial abuse to workers and caused criminal damage to a local fried chicken shop. The group contained young Caucasians from the local area. The workers were predominantly south Asian and the owner was of south Asian heritage. The owner and his team are Muslims and were fasting as it was the Islamic month of Ramadhan. YP was arrested after the incident, was given a youth conditional caution (YCC). It was explained to the YP and his carer that this was a voluntary aspect of his YCC and if he wanted to engage this would be facilitated.YP was keen to engage and his parent was very supportive of YP trying to make amends for his behaviour. There was a Youth Justice (YJ) worker and a Restorative Justice (RJ) worker involved. The YJ worker introduced the idea to the young person and completed other work around peer pressure and risky behaviour.The RJ worker contacted the person harmed (PH) the local business owner, Mr Ali and found out if they wanted to engage in RJ. Mr Ali and staff were over powered when the incident occurred as there were a number of young people involved and they knew that if they retaliated it would further escalate the situation. The young people perceived themselves to be in a higher position due to their race when the incident occurred. Going into the RJ meeting the young person was nervous about having to face an angry adult and the power dynamic had changed in to Mr Ali’s favour although he was also nervous. The PH was keen to engage as they wanted the YP to know how they had been affected. The PH was also keen to find out how the parents of the YP felt and if this was something that they had picked up from home.The PH was also worried about keeping his shop open in the area if this was the common opinion held by people in the local area as he himself was not from the local area. The PH was concerned for his team as he was splitting his time with another business. After two meetings with the YP and two meetings with the PH the case progressed to a direct face to face meeting. The meeting took place in a neutral location and the YP was able to talk about how he regretted the incident. The PH was able to talk about how it had been for

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him and the team and was also able to explain that it had been more hurtful as it had been Ramadhan, a month of mercy. The carer, the parent of the YP was also given a chance to speak. They used the opportunity to say that they had not raised the YP in this way and were very ashamed of him. The PH really appreciated hearing this as it alleviated their concerns about racism being embedded. Parent was very shocked to begin with when they found out about the incident and could not understand why the young person had been involved. Parent was very clear that they had not raised young person to discriminate against anyone and to treat all people as they expect to be treated. After the meeting the RJ worker visited the person harmed and the YP. The YP spoke about how they felt much better after being able to speak to the person harmed and the fact that they felt proud of themselves for doing that. Carer also said that they appreciated the opportunity to explain to the PH that they were not happy with the YP’s behaviour. The person harmed said the experience had been a good one and he had told him team about the meeting. The power balance was restored in this case as the young person was able to speak to Mr Ali, apologise for his actions and Mr Ali was able to explain how he and the team had been affected. Mr Ali was further reassured by the parent that racism was not something that was prevalent in his home and by extension the area they lived in was not racist”.

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CASE STUDY NO. 13: RACE, GENDER AND FAMILY RELATIONSHIPS – USA Penelope Griffith EXECUTIVE DIRECTOR, COLLABORATIVE SOLUTIONS FOR COMMUNITIES

“SM felt the need to apologize to her son and daughter for being incarcerated for a second DUI offence (Driving while Under the Influence of alcohol). SM’s children are angry at her because her incarceration has inconvenienced them, and this is not the first time she has been incarcerated. The children are forced to assume her responsibilities, primarily the care of her autistic son, while she is incarcerated. SM wanted to tell her daughter that she feels very badly about the inconvenience her incarceration was to her and that she acknowledges the sudden change her incarceration made to her daughter’s everyday schedule. SM’s son has autism. She acknowledges that it was a big responsibility for her daughter to take on. She wants to thank her daughter for taking care of her brother while she was incarcerated. SM is a 48 years old, African American woman with two children. Her daughter is 28 years old with three children ages five, seven and nine years old. SM’s 11-yearold son is autistic and attends ** School for special needs children. SM is the youngest of three siblings and both of her parents are deceased. SM’s children never shared a relationship with their father. SM was arrested for driving under the influence.This was her second time being arrested and charged with driving under the influence (DUI). She served 17 days in Department of Correction (DOC) – Department of Correction Correctional Treatment Facility (CTF). SM wanted to continue drinking alcohol but did not want to drink with her son in the house. So, she thought it would be a good idea to take her son to his uncle’s house, and subsequently finish having a good time drinking. On the way to her brother’s house, SM fell asleep at a stop light. Shortly after, a police vehicle approached the side of her car to conduct a ‘spot check’. SM’s driver’s license was suspended from a prior DUI charge and as a result, was arrested. SM’s brother came to the location where they were to pick up her son while she was being arrested. SM’s son was cared for by her daughter during the time she was incarcerated. SM’s greatest accomplishment at CTF was getting back in touch with her spirituality. Attending church service and life skills groups helped her to cope. SM believes her underlying issues are abandonment and molestation. When she was 13 years old, SM was dragged into a wooded area in West Virginia where she was

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sexually assaulted by three adult men. She’s very thankful for being alive today. However, the effects of that traumatic incident do surface in her relationships with men. SM finds it difficult to trust men. She had lost all power. Completing this Healing Circle was very important to SM. The closest and biggest supporters in her life sat and quietly listened as she apologized. SM’s daughter, son, and three grandchildren were very welcoming during the HC. SM gave complete eye contact to each person in the Circle while she spoke. She apologized for her behaviour before she became incarcerated and during the time she was incarcerated. She expressed that it may seem like she wasn’t aware that her behaviour has hurt them, but she knows that it was hard for her daughter. HC opened a dialogue between SM and her daughter. SM’s daughter expressed deep pain she has had that she never shared before. SM was tearful and accepting. She didn’t seem to realize her daughter was hurt so deeply. SM agreed to think about what her daughter shared and make better choices going forward. No followup on this issue was done but the staff introduced her to Department of Behavioural Health’s peer support program. SM enrolled in the program and completed it. Also, the staff supported her through her employment search and helped to get her stabilized. The facilitator of the HC experienced no power struggles. The HC was held at organization. It was obvious that she felt comfortable in that setting. She guided the conversation and was not challenged by anyone”.

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CASE STUDY NO. 14: REGAINING POWER THROUGH FORGIVENESS – USA Penelope Griffith EXECUTIVE DIRECTOR, COLLABORATIVE SOLUTIONS FOR COMMUNITIES

“AF felt the need to apologize to her aunt, daughter, mother and cousin.AF reported that she knows her actions have hurt a lot of people, but she is more focused on her great aunt, her daughter, her mother, and her cousin. AF is a twenty-eight-year-old, African American woman with a 10-year-old daughter who lives with AF’s paternal great aunt. AF’s daughter was conceived during the time AF was a prostitute in the D.C. area. This behaviour started at the age of 15 up until she was arrested at 23 for assault in 2012. AF has been and remains uncertain if she conceived her daughter with her pimp or a childhood friend. She reported not having any contact with the pimp during the time of her incarceration but reported he lives in Baltimore, Maryland. The other possible father was incarcerated. AF was recently informed by a close friend on Facebook that he had been trying to locate AF and her daughter. AF has three siblings a brother (24 years), a sister (28 years) who resides in North Carolina, and a younger sister (17 years) who lives in DC with their mother. Five years ago, AF reported she was under the influence of PCP and got in an argument with her cousin who was also her best friend. During, that time both AF and her cousin lived with AF’s mother. The argument escalated and AF felt her mother was taking her cousin’s side of the story. She reported that her mother asked her to leave and she went to a friend’s house to calm down. AF returned several times and her mother refused to let her in the house. On the final attempt to get in the house her cousin answered the door with the intent to fight. AF ran through the door and grabbed a knife out the kitchen to scare her off but claimed she snapped and started stabbing her cousin with the knife. The cousin was stabbed once in the neck and three other times in the lower part of her body. AF desperately wants her cousin to forgive her but her main focus is on repairing her relationship with her daughter. AF requested the HC be opened with prayer by CSC HC Coordinator, Loleata Griffin. The facilitator, Penelope Griffith guided all family members to acknowledge their relationship to AF and what they remember best about her absence while she was incarcerated. It was obvious this family missed the bond they once shared

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five years ago. AF and her cousin, who she stabbed and almost murdered did not sit next to each other but the connection between the two was very evident. Apology letters are usually given as an assignment during the coordination stage of the HC to help with writing to the loved ones but is not normally read during the HC meeting. However, AF insisted on reading the letters she wrote to her mother; her sister, her daughter, and her cousin. AF did not read the apology letter she wrote to her great aunt who could not attend the HC but mentioned how grateful she was and stated that she had apologized to her aunt for leaving her parenting responsibilities for five years on her alone. The aunt became the caretaker for AF daughter while she was incarcerated. AF apologized to her daughter for the bad decisions she has made that have resulted in her being absent from her life for five years. Her daughter became emotional when responding to her mother’s apology letter and stated that she loves her mom and she’s the best mom in the whole wide world. AF apologized to her mother for not showing appreciation for her kindness and manipulating her to get what she wants. When the time came for her to apologize to her cousin, it was very obvious that AF’s plea for forgiveness was sincere. AF apologized for almost ending her cousin’s life and mentioned how much she loves and miss her. Her cousin’s heartfelt response gave everyone at the meeting an emotional moment and from that point on we all knew that there was more work to be done but a breakthrough for this family had taken place at this HC. The cousin accepted the apology and stated that she too would like to repair their relationship but know that she will need help in trusting AF again. During the HC, AF’s mother spent a lot of time trying to explain her daughter’s issues. Mother shared that she lived a life of prostitution and drug use and as a result, her daughter now faces very similar challenges. Mother appeared to be dealing with guilt, and as a result, tried to explain herself. Mother and daughter were combative throughout the HC, especially when mother referred to her past lifestyle and linked it with her daughter’s challenges. AF’s cousin came to the HC after much assurance from the HC coordinator that she would be safe. AF’s cousin expressed at the HC that she needed closure. She explained to AF that the stabbing had deeply affected her, causing her much pain and a lot of nightmares. AF explained that she had time in jail to think about what she did, and she apologized. She admitted that she was jealous of her cousin. AF’s little sister was key to the reconciliation. She stayed in touch with both the cousin and her sister. She reminded them that they are family and that they have to find a way to reconcile. The little sister is also performing well in school which the family commented on, how proud they are off her. AF shared that because her little sister stayed in touch with her while she was incarcerated that helped her heal. AF also shared that she was getting therapy while in the halfway house where she was residing at the time of the HC, but she still needs help with managing her anger/rage. Through therapy, she has learned that her anger/rage has a lot to do with rejection/abandonment. She is now more aware of her rage but need to learn how to manage/control it”.

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CASE STUDY NO. 15: POWER IMBALANCE IN JUVENILE JUSTICE DELIVERY: MY EXPERIENCE AS A PRISON SOCIAL WORKER – NIGERIA Chiemezie, Emmanuel Amaka RETIRED CONTROLLER OF CORRECTIONS, FORMER HEAD OF CUSTODY AT THE NATIONAL HEADQUARTERS

“In 2000, a young secondary school girl of about 14 years was admitted as a convict for abandoning her new born baby. She was sentenced to spend four years in jail by the Magistrate Court in her community. Nothing was said about the man with whom she had the baby. Curiously also, no consideration was given by the presiding magistrate to the baby’s well-being as his young mother was brought to the facility alone. After the initial interaction with the convict, a first offender at that, the nagging issues that bothered those of us in the Social Welfare Unit were as follows: why was the girl sent to an adult facility? why was she not allowed to take her baby with her? where was the man who had the pregnancy? where were her parents? what about her schooling? The female personnel under me had to liaise with the operational or general duty staff (females) in the female wing of the facility to emotionally stabilize the girl. She revealed that she was living with her grandmother in their village because her parents were divorced. Her father had remarried. According to her, she took in for her boy-friend with whom the plan to abandon the baby shortly after he was born was hatched. A day or two after they did that, concerned passers-by discovered the baby alive along a farm road but in a polythene bag. The chief of the community was quickly informed. After a brief search, she was found to have delivered without any trace of her child. The police took up the matter and quickly prosecuted her in the court that wasted no time to jail her. Her poor grandmother was tasked with caring for the baby. After spending only two weeks in jail, the court that sentenced her sent an order to the effect that the convict should take custody of her baby. The Social Welfare was equally required by that court order to ensure that the baby be kept safe while with his mother in the prison. That was what I considered an abuse of State Power and an act of impunity by the police and the judiciary. My submissions to my boss were as follows:

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1. The convict had stated when she appeared before the reception/admission committee that she would not want her baby to be incarcerated with her. The Social Welfare unit considered it to be a violation of the rights of the convict if the baby was forced on her. 2. No personnel of Social Welfare or other units, resides in the cells with prisoners. Even if there was such provision, there was no way the convict could be prevented from harming a baby she deliberately abandoned shortly after giving birth to him. 3. The latest action of the court was an afterthought which disregarded the safety of the baby and the interest of the young mother. 4. The option left to the prison was to reject the belated court order and report the matter to the Chief Judge of the State if the magistrate failed to vacate the order. In the end, the baby was not accepted to be in the prison. The court became conscious of the error of jailing the convict without asking her to take her child since he was below 18 months. Because of the seriousness and urgency of this case, the formal disapproval of the action of the court was made the following day. In response, the magistrate quickly vacated the order concerning the baby. A non-governmental organization (NGO), Society for the Welfare of Women Prisoners (SWEWP), Enugu, which had earlier heard of the conviction of the under-aged girl, offered to take the baby to an orphanage.The prison was no longer part of that arrangement. But for the immediate actions taken, the life of the baby would have been in serious danger. Also, the rights of the convict as allowed by the Nelson Mandela Rules and other relevant instruments to which Nigeria is signatory would have been violated due to abuse of State power. News later reached the prison from the Orphanage Home that the baby was completely blind.This was after days of observing that his eyes remained closed.This weird discovery led to another round of interrogation of the convict. She admitted that her boy-friend who the police claimed was at large actually sold the baby’s two eyes to another man for money rituals. She further said that the baby was abandoned instead of being killed by her and her male partners-in-crime. The sentence of the convict and the fresh case of grievous harm to the child was still pending when I left that prison to another station on posting. My conclusion was as follows: a) The convict was a victim of sexual violence who may have been threatened by her abusers who also had connections with the police and the court, b) Abandonment of efforts to arrest and prosecute the convict’s boy-friend proved that she was mischievously set-up after being abused, c) The poor family background of the convict was exploited by those who were behind her travails. d) The broken marriage of the convict’s parents was a fundamental cause of her journey to prison.

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The experience of that young girl remains one of the many sad tales I have had to live with. I consider it a clear evidence of connivance by State authorities with criminal elements to oppress the poor, especially the vulnerable females. Issues of power within the current Criminal Justice System of Nigeria are obvious. A rebalancing is urgently needed to ensure justice and fairness, especially as it affects the vulnerable”.

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CASE STUDY NO. 16: POWER AND POLICING – USA Shadeequa Smith RESEARCH ASSOCIATE AT THE RJ4ALL INTERNATIONAL INSTITUTE AND WORKSHOP FACILITATOR AT AMPLIFY RJ

“Considering recent events in the United States surrounding the deaths of several unarmed black individuals by the hands of the police, I am reminded of the importance of truth and reconciliation in police-community relations. One such effort is *** NGO, which has partnered with a Major Metropolitan Police to conduct a series of dialogues on the future of policing. These dialogues allow for local police officers to meet with segments of the community who have often felt targeted and ostracized by the police. I have been able facilitate and cofacilitate with the organization during different dialogues witnessing the diffusion of power within. One such dialogue occurred between the police and the LGBTQIA+ community of Los Angeles on December 13, 2017. At my table sat a number of trans women of colour, along with the mother of a trans daughter (the mother was also a woman of colour who worked in an administrative role with the police department), and three LAPD officers of different ranks. The women discussed how they were repeatedly targeted by the police and disrespected regarding their identity (the intersectionality of being both trans and women of colour). Many talked of how police officers refused to address them by their identified gender, and how officers repeatedly arrested them for non-criminal offenses, and even arrested them in instances where they were victimized by cisgender men. The mother at the table discussed how she had been ashamed to bring photographs of her child or allow her child to interact with anyone from her work, because of how many of the police officers spoke pejoratively about the LGBTQIA+ community. She discussed struggling to understand her daughter’s experience, while also having to contend with how others may perceive her. They further discussed how these interactions have led to distrust of police and how they feared encounters with law enforcement. The mother added that although she works for the police department, the experience of hearing how officers disparaged this community changed her view of law enforcement and caused her to fear for her child’s safety. While the officers at the table had not directly offended against any of the women at the table, they admitted an overall lack of understanding of the difficulties often faced by the LGBTQIA+

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community, as well as a lack of understanding of appropriate language when engaging members of the community. As it relates to the allegations of harassment, the officers informed the women that most often, they are operating within the rule of law (e.g. they can only address the women by the gender provided on their government identification) and are not intentionally attempting to demoralize them based on sexual identity or orientation. As the restorative justice dialogue continued, and both sides were able to view the other’s perspective, the group developed some possible solutions. The officers committed to educating themselves and others in the department on the appropriate language and issues faced by the LGBTQIA+ community. They were also able to provide the civilian woman with some actions she could take in her workplace to address the inappropriate behaviour she is exposed to by officers. The women at the table committed to trying to avoid viewing all police officers through the same lens as those who had caused them harm and to being as cooperative as possible when interacting with law enforcement.There was also an exchange of resources so that when police engage with this community, they know how to best assist them with services”.

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CASE STUDY NO. 17: A POWER AND CHILD SEXUALISATION – LITHUANIA Juozas Kelecius PROJECT OFFICER AT THE RJ4ALL INTERNATIONAL INSTITUTE

“It happened during the summer of 1994. Josek was a stubborn strongminded child. At the age 8, he was already convinced that his perception of the world reflecting back was as clear and undoubtable as his own conscious self. Josek made a new friend in school. Her name was Soni. Soni was 8 years old, born on the same day, month and year as Josek, which he found fascinating. Moreover, he felt as they were connected somehow like actual siblings. Soni used to live in the same neighbourhood, sharing her day-to-day life with her older brother, mother and stepfather. At the time, Josek was informed by others that Sonic’s family is different from his. They were ‘drunks’. Josek didn’t know what it meant. However, he felt, with pure certainty, that his family was better than Soni’s. Josek’s mother was always very kind to Soni, she often invited her for lunch and shared a nice slice of desert. Sonic and Josek were spending a lot of time together running around in the playground located next to a construction site, a building abandoned long ago, which resembled a maze. One warm summer afternoon, after a shared snack, Sonic approached Josek: - - -

Shall we play ‘rex’? ‘Rex?’ Josek repeated, ‘I am not familiar with this game…’ ‘I will take all my clothes off and you will have to touch me’, confirmed Sonic.

Josek was perplexed, but intrigued with his idea. He loves playing games. This one felt a bit ‘strange’, but sounded unique, unlike any other games he had played before. Decision was made to reallocate within ‘the maze’. The construction blocks created space so deep and steep as if it was teleporting Josek to another dementia, a dark underground canyon. The final location seemed cold, dark and cramped so they had to stand close to one another. The wet walls were closing. Sonic removed all her clothes as promised. She stood there naked staring at Josek. He couldn’t look into her eyes as he was too scared to meet some foreign pain glaring back at him. Josek did not wanted to touch her and felt that Sonic does not want to be touched. However, he was raised to be polite, and therefore he lifted his right finger

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and started pointing Sonic’s stomach. It felt cold and lifeless, the whole thing felt ‘wrong’. - -

Josek! – he could hear coming from the distance. Josek, where are you guys?

Josek recognised his mother’s voice and panicked. - -

I have to go now, she cannot find us here! – he stated promptly and was about to leave the spot. Please, wait for me, we should leave together… – Soni begged.

It felt that she was dressing for eternity, as the mother’s voice was getting louder and louder. Finally, both children came out and bumped into the mother, walking by the construction site. - What took you so long guys? Josek, why do you look so scared? - We were playing rex – Josek responded. He felt, as he had to confess – there was no way his mother would not find out what they were doing. - What is rex? – mother replied. - Soni took all her clothes off and I had to touch her. - Soni, you were behaving this way even when I gave you some ice cream? – she said it with such a disappointment… Go home and never come back here again! It was the last day when Josek and Soni saw each other. After 26 years Josek stills remembers that day. The first of many milestones in his early childhood: as something pure, jet sinister, shameful, yet unjust. He wonders sometimes, what opportunities were missed to support this 8-year-old girl who was shamed for reflecting an adult like behaviour.Who has the powerful in this relationship that scarred Josek? Josi? Her family? His family? Society? How could healing take place when no crime has been committed?”

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CASE STUDY NO. 18: POWER IMBALANCE AND INTIMATE PARTNER VIOLENCE – INDIA Sajith Mohmad Saleem CRIMINOLOGIST, NATIONAL HUMAN RIGHTS COMMISSION

“The whole idea of humans getting into relationship is the assurance that they can be vulnerable to each other, and that their apparent weaknesses will not be taken advantage of. But sadly, humans have a very manipulative way of satisfying their own needs. Humans have the tendency to feel important, which gives them a sense of satisfaction.The need to control situations and to feel powerful has always been with us. A relationship where a partner is not in control of their decisions, thoughts and opinions can be categorized as having a power imbalance. My case study refers to one such relationship where power imbalance was observed in a heterosexual relationship, which eventually resulted in violence. The victim, was forced to lodge a complaint against the actor that led to his imprisonment.

The problem ‘The actor’ was used to always having the last argument in the relationship, while the victim not being able to express freely their thoughts and being disrespected. Often, the victim would be left alone, physically intimidated and manipulated. For example, there was an incidence where the actor emailed the victim’s employee that she was not mentally ill which resulted in her losing her job. There were also constant incidences of unwanted sex. The last straw was when the victim took a stand for herself and actor couldn’t manage sexual rejection. This resulted in the actor battering the victim. The abuse was so violent that the victim’s family lodged a police complaint against the actor and accused him of sexual abuse and physical assault. This happened in New Delhi, where the victim stays in October, 2019. If we focus on the causality of the act, the actor was observed to have developmental issues (witnessing violence in family of origin, experience of child abuse, low parental monitoring in adolescence, association with deviant peers, behavioural problems, symptoms of personality disorder, alcohol and drug use, low self-esteem,

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and justification of aggression use) which led to the actor being Narcissistic and in control of the relationship.

The intervention I met the actor in the prison. He was not at all in favour of how the case turned out to be. Although the actor got bailed in four months, I was pretty sure he would come back to Delhi to settle scores with the victim. Such behaviour is commonly observed among individuals who have the control in their relationships. They are very reactive to rejections and things not going their way. The actor wanted to feel powerful and couldn’t just digest the fact that a female could disrespect, leave and go against the ever providing male. Considering the probable damage of the mental health of the victim as well as the actor, if the actor tried to intervene on his own, I tried a Rape Reconciliation Programme, where the basic philosophy was to make the actor understand the gravity of his acts through dialogue. The first attempt involved a free associational dialogue session with the actor as well as the victim. After the session, I talked to the actor as well as the victim. The dialogue with the actor involved working on his emotional deficits, apathetic nature, rigid patriarchal views and poor coping skills. The dialogue with the victim focused on increase in self-esteem, self-efficacy and a need to create healthy boundaries. After the Individual sessions, I tried another group session. The dialogue with the victim worked and she was motivated enough to point out what she didn’t like in the relationship. But again, this was negatively taken by the actor and he felt that he was being overpowered. This actor walked out of the meet and the first attempt failed. Then, I had a talk with the actor’s mother. Through her I got to know about the mental health history of the actor.The actor was under treatment for Schizophrenia, but again, the Narcissistic nature of the actor couldn’t digest the fact that he could be ill and thus he never completed the course of medicines. He was also observed to have many out of home placements throwing light to the fact of using repression to deal with almost all important decisions in his life. Understanding the extent of the mental illness of the actor, I asked one of my colleagues, a certified clinical psychologist with a specialization in Cognitive Behavioural Therapy to help intervene. Fortunately, the six sessions with the actor proved to be useful and the actor mellowed down. The actor was also interested in music and to avoid relapse, the actor was asked to put in a new habit of learning guitar. After the successful psychological intervention, another dialogue session with the victim and the actor was arranged. It was really wonderful to see the actor apologize for the indecent behaviour in the past. The victim and the actor parted their ways in a good spirit without holding anything back. The actor now plans to build a career as an independent artist.

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Conclusion The major learning from this intervention was that the need for power or control within a relationship arises from past traumas. Not being heard or given a voice takes ugly forms once the individual starts their own life. It was motivating to observe the actor realize that he is actually responsible for his own happiness, and he found it by establishing boundaries and sticking to them. This was the result of a dialogue-based approach that allow him to share his power. It was also appreciable that the actor let the victim be a master of her own journey and the actor became the captain of his own. This has led to self-discovery, which will eventually result in self-actualization. No, he can be a better asset to himself, his family and society”.

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CASE STUDY NO. 19: SUN, SEA, SEX AND THE NEW FORMS OF SLAVERY – SPAIN Dr Daniel Briggs, Antonio Silva Esquinas, Dr Jorge Ramiro Pérez Suárez, Dr Rebeca Cordero Verdugo UNIVERSIDAD EUROPEA

“For some time, young British holidaymakers have developed a reputation for violence, excessive drug and alcohol consumption, promiscuous sex, and general unruliness in the holiday resort of Magaluf, Majorca. With intermittent assistance, I spent five years studying this resort from the Foreign and Commonwealth Office and previously another three researching a similar version called San Antonio in Ibiza where similar conduct is prevalent. While these behaviours stem, on the one hand, from embedded attitudes of undertaking an extended and more dangerous version of ‘going out’ each weekend in the UK, the Brits high-risk activities are also endorsed by the commercial context of the resort: the bars, the clubs, strip joints, takeaways and the ever-present thread of illicit sex and drug economies which envelope the resort. While many go home nursing week-long hangovers, perhaps hurt, and/or likely in debt, some don’t make it, deciding that they should indefinitely extend the party and ‘live the dream’ by looking for work in the resort. This is the opportunity for these young people to ‘live the moment’, ‘savour their youth’ and imprint proof of the plastic happiness of the ‘dream’ onto their Facebook and Instagram accounts. The reality of what this ‘happiness’ encompasses, however, is far distant from their social media updates. Firstly, they find themselves among hundreds of other young British people, who are also similarly drawn to experiencing these well-marketed solipsistic pleasures, in their search for work. This is normally easy since the most available work for the bars, clubs and strip joints is as a Public Relations or PR worker. The high turnover of other PR workers creates a constant stream of possible informal employment and means that within a day or two of asking around the resort, one can normally find an opportunity. Initially, they have to gain the confidence of the nightlife venue boss as many other workers previous are unreliable. Consequently, as a down payment for their commitment to their new job, many are asked to surrender their passports: they are then told that at the end of the season, they will be able to retrieve it along with the commission earned throughout the season.

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It seems like fun for the first few days even if in many establishments the nocturnal shifts are long, the hourly salary is normally paid in free alcohol and any money is normally paid in commission or by ‘attracting spenders to the establishment’. With thousands of possible clients passing up and down the street, this seems like an easy task. But hundreds of other venues make competitive their prices so choice is unlimited for the holidaymaker in this respect. With every client they bring in, they earn a small amount of commission which could equate to at the end of each night between €20 and €30. Some ‘shot girls’ I met in many instances barely made €10 a night. With this money, they must pay high rental prices for a place to sleep. Onebedroom flats can be shared by as many as six people where each pay a premium of €200 per week for the privilege of ‘living this dream’. Even if these people work every night, when one does the calculations, quickly it becomes clear that the earnings do not even come close to covering their rent and this is discounting other expenses they have to be able to eat, drink and participate in all the fun. In spiralling debt, it is for this reason that many decide to complement their low wages by opting to deal drugs. This way they can participate in the nightlife frolics and earn just enough to pay their rent and food costs. Notwithstanding, while the daily consumption of alcohol and drugs may numb the growing sense of powerlessness and personal disorientation these young people feel, inevitably it takes a toll on their mental and physical health. Requests are often made to the venue bosses for the return of their passports so they can leave. But they can’t and are told they must complete the season. They return in many instances back to the job where the conditions of oscillate between humiliation and degradation. PR workers are regularly insulted and threatened: not only by drunk tourists but by other PR workers/private security/venue owners whom may feel threatened that they are taking potential clients from them. While clearly young male PRs are prone to threats and violence, the gendered nature of such nightlife work in the resort elevates and compresses the potential for young women to experience trauma and abuse. The sexualisation and objectification of young women in the resort space means that and, in particular, young female PRs are inevitable targets for sexual harassment and sexual abuse. Over the years, there have been many cases of rape against these young women which haven’t made it to the courts: the young women can’t recall the aggressors so can’t give accurate testaments, feel ashamed of their victimisation and retract their statements. So, on one hand, while the power abuse is social-class specific because general cohort who visit this resort come from working class backgrounds, on the other, these normalised infractions inherent to this nightlife space do not discriminate along the fault lines of race or ethnic origin. Over the course of my studies, all this was exacerbated by annual decreases in tourist numbers in Magaluf which meant that many of these nightlight businesses had to look for more aggressive means to save money yet market a profitable venue. These wider commercial pressures aggravated the circumstances of the PR workers whose exploitative plight only came to light when they presented themselves drained

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and half-dead to the British consulate desk in Palma to request a new passport at the end of the season. My research resulted in numerous high-profile meetings between the local council, police, nightlife owners and British consulate and led to the establishment of a system which registered willing PR workers and offered them support in their endeavours in Magaluf. In fact, formalised funding was provided to a volunteer scour the streets at night to support this group. However, the animosity between local resident groups and the hoteliers and nightlife owners – generated in the main from the disorder and violence this type of tourism promotes – hindered community preventative measures. In this instance, the local council gave preference to tourism’s financial benefits rather than ensuring quality of life for the residents of the area. Nevertheless, in subsequent raids and operations undertaken by the Spanish National Police and Civil Guard, drugs, passports and credit cards were recovered in large quantities. However, despite this, and likely because of the volume of British tourism and the potential for money to be made (around 80 million generated from British tourist spending alone), still the problem endures”.

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CASE STUDY NO. 20: CLIMATE CHANGE, POWER ABUSES AND THE PLIGHT OF REFUGEES – SPAIN Dr Daniel Briggs UNIVERSIDAD EUROPEA

“To date, 80 million people have been forced to flee their homes around the world. Very often, they do so with little option, having sold all their possessions, and seek safety and all the basic aspirations many of us seek in life: a sense of belonging, a safe place to live, education and work, and to have a family. Such ambitions are confiscated from these people and their futures are robbed from them by geo-political resource wars, commercial-led land grabbing ventures and rapid manmade climate change (see Briggs, 2020). Subsequently, the strategic geo-political resource wars and conflict over minerals generated by incestuous arms dealings between the powerful leave whole countries breathless then lifeless from continuous pounding of bombs and rocket fire. In the political and social void, terrorist factions evolve and add further misery to refugees’ lives. The refugees social, structural and spatial stymies are also made possible by powerful global food corporations and their ‘landgrabbing’ activities in the race to expand factory-farmed food. This results in labour exploitation, the cultural and social decimation of rural communities and environmental destruction around the world. South American rainforests make way for our increased demand for burgers. The tropical rainforests of Africa and the Far East are cleared to harvest Palm Oil just so we can wear make-up and eat Doritos. The relentless cull new virgin forests is achieved just so we can indulge in chocolate. We are convinced to buy into ‘Fairtrade’ products hoping to vicariously assuage some of the guilt harboured around our existing consumer rituals yet, all the while, these practices contribute to the eventual plight of the refugees as their homelands are destroyed by this plundering of natural resources. There is no real care or attention paid to pollution and the environmental damage as a consequence of this because it could offset potential profit even if those people working on the frontline of these industries are paid only a few dollars a day. As Žižek says, we are reduced to the role of a passive observer who sits and watches what our fate will be. (2011, p. 40)

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The subsequent rising sea levels, scrambled weather patterns and droughts – which literally flood out whole populations or turn up the heat for refugees – add another layer to their precarious existence. Botched management of these irrevocable changes are underlined by the current state of affairs in Afghanistan, Iraq and Syria: all of which suffer simultaneous damage from fragile political governance, corruption, terrorism and the ensuing geo-political manoeuvring for precious natural resources.This geo-political economic and commercial enterprise and associated shady business practices generate a sense of collective loss and grief as much as subjective trauma and suffering for the refugees. The refugees are on the frontline of all these processes and it is their spatial and structural disadvantage coupled with their unfortunate place in history that authenticates their vulnerability and victimisation. Moving from country to country, in many cases, the ‘hope’ they seek is continually reset to nothing as they seek refuge from place to place in alternative hostile conditions. As they are uprooted from their homes, the loss and suffering they experience is compounded by their haphazard journeys which involve paying corrupt officials or smugglers, and being subject to various abuses along the way. Many watch others alongside them go missing or die. Children are kidnapped, exploited and beaten; the disabled are bullied and humiliated; and women are maimed and subject to sexual abuse. The refugees then have to settle and start again somewhere else which is jeopardised by long, bureaucratic asylum procedures designed to test their ‘commitment’. While they wait, they are subject to rampant social rejection from their new host communities reflecting further changes to the social climate. This makes it difficult for them to access formal economies and achieve cultural integration. Many are rejected or give up and try again elsewhere, becoming part of a swath of stateless people in Europe with no human rights or access to healthcare, education or housing. In my three-year ethnographic study across 14 countries, I found these people kicking about in Europe’s growing number of improvised oblivions such as the ‘Calais jungle’. The supposed ‘lucky’ ones sign integration contracts which immediately foist on them the expectancy to learn new languages, get jobs and secure their own housing. It is a cold welcome to western neoliberal meritocracy. Most people I spent time with struggled with this new expectation while juggling with past subjective traumas and bouts of internal rage. Locked out of opportunity but locked into a perpetual struggle, the few who gain work find it degrading while most swiftly fall into exploitative informal economies. This multifaceted structural violence is felt hard by them and almost irreversibly damages their mental health, pushing some to contemplate suicide. The refugees are unequivocal victims of all these synchronised processes and I call this activity the Business of Misery: that is, from almost every angle various forms of entrepreneurialism and profit-making enterprises negatively envelope all facets of their lives, experiences and feelings. From corporate elites and their webs of private initiatives, corrupt European institutions and nation states, and ineffective helping entities down to the functioning of the security industry and organised crime groups. In addition, in many instances, the lack of/bungled international protection/intervention, at

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numerous points in the lives of these refugees also contributes to their oppression. They are then politically-framed as the instigators of domestic economic woe, menacing competitors in shrinking labour markets and unwelcome ‘invaders’ and this just nurtures increasingly nationalistic feelings and feeds hate crime. With many gaps and holes in formalised support, much of what refugees access on a daily basis comes from community-led groups and volunteers which offer basic commodities such as shelter and food. Generally underfunded and understaffed, these charitable organisations provide the fundamental essentials to these vulnerable people. Very often, however, they are overwhelmed at the volume of people who seek their support and unable to deal with the complexities of their personal situations and repair the damage done to their human rights. Nevertheless, it is these organisations provide that the only means of hope that staves the current situation from being a complete catastrophe. It will take significant political will at the European level to do justice to all this as the tide of people ceases to literally wash up more refugees on European shores”.

References Briggs, D. (2020). Climate Changed: Refugee Border Stories and the Business of Misery. London: Routledge. Žižek, S. (2011). Living in the End. New York:Verso.

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CASE STUDY NO. 21: DIGITAL ENSLAVEMENT, ONLINE DATING APPS AND ABUSE – SPAIN Antonio Silva Esquinas, Dr Daniel Briggs, Dr Jorge Ramiro Pérez Suárez, Dr Rebeca Cordero Verdugo UNIVERSIDAD EUROPEA

“Young people cannot really imagine a life without the internet and increasingly make their interactions in online digital environments and in general: it is very much part of their daily lives. Digital technology facilitates the use of mobile phone applications or ‘apps’ which enables young people to do seemingly unlimited activities such as playing games, buying commodities, or communicating with others from wherever they may be. Perhaps unsurprisingly, apps now exist which facilitate social and sexual relationships and are used for online dating communications. In many cases such apps are sold with the ideological promise of security and possible relationships and that, by downloading them, young people are just a swipe away from finding friendship, a one-night stand or perhaps something more long standing. In our 12-month mixed-methods study which analysed six online dating apps available in Spain (see Pérez Suárez et al., 2020), however, we found a paradoxical story. While on one hand, we found for some people, the app satisfied their sense of self and had allowed them to successfully meet other young people, on the other, we found that many others felt empty and anxious when using the apps. Initially, a user must create a profile and, given that they compete for attention in an online marketplace alongside millions of others, it means they have to stand out. We noticed that on registering a new profile, we were publicised widely yet our profile diminished quickly thereafter. Our interviewees also corroborated this hence many learn that a bland photo and quirky profile are not enough to obtain this attention which could lead to sustained communication. So, to get noticed young people reflected they had to a) sex-up their profile and b) pay money for the privilege. Profiles are therefore adorned with provocative and sexualised images which, in this forum, are recognised as the visual language and currency for potential communication. In a competitive online marketplace where image dominates decisionmaking, the young people merely become the commodities on sale. They have to market themselves because rejection is continual as competition is ruthless. ‘success’ is therefore a numbers game. A question of moving as quickly from profile to

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profile and establishing quick interest which is why when courting young women, many young men simply sent a picture of their own penises to gauge interest. The commercialised nature of the are akin to online supermarket of sexualised products in which the customer can browse through, highlight the merchandise they find aesthetically pleasing, and thereafter command contact. If there is no reciprocation, next profile. Secondly, this ‘freedom’ comes at an extra cost of a) investing more personal time and emotion on the app and b) paying more money for a more privileged access which supposedly gives the user ‘more control’ over their own freedom with the app. However, more often than not, this is a deliberate measure so that the user is enticed into increase their own online status. To maintain one’s popularity, it became necessary to upload more pictures and update statuses. This way the user ends up spending more time in the app and big tech companies such as Google and Facebook have conceded that this is their strategic aim: to bind peoples’ time with their phone thus exposing them to all manner of publicity and marketing. The sheer boundless nature of product advertisement and choice of people, combined with a backdrop of influence from the porn and sex industries (Briggs, 2018), results in a tendency towards narcissistic individualism and competitiveness. Our sample reflect on habitually making what we call an ‘image evaluation-validation’ – a simultaneous process which encompasses a visual assessment of a potential person based on aesthetics which will validate them at the very same time they make their potential choice. It’s to say I choose you because I think you pretty/attractive and in making that evaluation I expect that you will validate me in the same way by choosing/responding (to) me. This rapid trade-off is made with almost no emotional commitment since nothing is lost if nothing is gained. At the same time, our sample couldn’t deny the importance of receiving similar likes/messages/matches which reflects their reliance on validation of their beauty and sexiness. This, we found, increased the user’s emotional investment/dependence on the apps thus enabling a kind of digital enslavement: many of our sample often spent hours each day scouring profiles, messaging, looking for matches and trying to instigate a date. For some, receiving ‘likes’, collecting graphic photos, and being able to boast about sexual conquests fed a kind of ‘socio-sexual status’.Yet for others, frustration becomes high as they devote so much time to their own failed popularity cause. Within this process, we noted that either way there was a tendency that both sets of users became consumed and almost obsessed with their own profiles and generating attention towards them, and this in turn, fed back into their use of the app itself.We call this form of self-commodification hypernarcissistic autophagia. This attention attracted other users – almost all of whom were also treating the app as ‘a numbers game’ – with ulterior motives which were related in the main with direct, immediate and unrelenting requests for sex. This incessant pressure coupled with the sheer volume of interactions creates moments/situations

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of risk. These risks were predominantly related to sexting, bullying and/or sexual abuse. For example, without invitation, young heterosexual women – complicit and consenting to their own commercial objectification – receive numerous suggestive and abusive messages and images, and on occasion, solicitation into prostitution networks. In other examples, young homosexual men are quickly drawn into exchanges which may solicit them into drug-related violent sex. They were also to some degree risks associated with the geolocation feature of the apps as a few felt they were stalked or followed.Yet, even if it made some feel vulnerable or put them in danger such were the frequency and velocity of these risks that our participants tended to consider them normalised consequences of using the apps. When emotional dependence increases on the apps, such negative aspects of the app are accepted and treated as normal because the user has immersed the app in their daily lives and communications. Many even confessed to deleting the app only to reinstall it because they missed the online attention they amassed or could temporarily stockpile. Notwithstanding the right all these people have to explore their sexuality and personal desire, there are few reliable security measures put in place by the apps to control these exchanges. In the absence of this, many users recalled developing their own strategies such as matching profiles with other social media accounts, meeting in public places familiar to the person and where the user is known, leaving dates early, avoiding drug and alcohol consumption and putting limits on intimate exchanges. Online dating app companies should promote such measures as well as examine the loopholes that allow for the potential for abuse. All this reflect the consequences of the crude combination of macro political, economic and technological processes have had on our social relations and the postmodern relationship. The apps manufacture and package desires and invite us to indulge and impulsively want and never cease in that want; they propaganderise possibility which results in the commercial metamorphosis of gender relations and sexual orientations; they offer access to seemingly limitless world of beautiful, happy people engaged in new forms of sexual expression and exploration. Young people develop dependencies on the apps and their communications, wishing away for something more authentic. But the promise of freedom is experienced as digital enslavement and the demand for interactions and attention as a means of control is instead manifested as personal insecurity.This is proof that commercial ideology has nestled itself into deep into the subjective attitudes and desires of our participants which is why the promise of security delivers the reverse hence our participants report feeling empty. Now the Covid-19 pandemic threatens to accelerate all this. As the world locked down and ground to a halt, the industry losers quickly became tourism, hospitality and aviation. The winners, conversely, were big pharma and big tech companies which now potentially hold the key to restarting our social lives and restabilising travel, relationships and work possibilities (Schwab and Malleret, 2020)3. However, 3  For example, digital health passports are becoming increasingly available as a means to permit people to work and travel.

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given that much of the lockdowns confined us to using digital means for entertainment, to communicate and work, more than ever we now rely on them in our daily lives. Consequently, many of these big tech companies now control the flow and quality of public, private and personal information and there have yet to emerge influential and independent alternatives. In a present where we already see signs of the digital future – such as drone surveillance, facial recognition controls and increased reliance on artificial intelligence as a substitute for human labour – the question then revolves around whether big tech companies will use their increasing power and influence responsibly or will we instead silently and passively submit our freedoms to them”.

References Briggs, D. (2018). Commodifying Intimacy in ‘Hard Times’: A Hardcore Ethnography of a Luxury Brothel. Journal of Extreme Anthropology 2(1): 66–88. Pérez Suárez, J.R., Silva Esquinas, A., Cordero Verdugo, R. and Briggs, D. (2020). Mercado Mecánico de la Carne: Análisis integrado del Proyecto Enrolla2 Sobre Aplicaciones Afectivo-Sexuales. In Nuevos Horizontes en la Investigación Criminológica: Ultrarealismo, eds. G. Rios and A. Silva Esquinas. Lima: Biblioteca Nacional de Peru, pp. 227–275. Schwab, K. and Malleret, T. (2020) Covid-19: The Great Reset. Geneva: World Economic Forum.

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CASE STUDY NO. 22: POWER ABUSE OF QUEER, INDIGENOUS AND RACIALIZED YOUTH IN THE GLOBAL NORTH – CANADA Tara Sheppard-Luangkhot MMFT, TARA SHEPPARD THERAPY & CONFLICT RESOLUTION SERVICES AND INTERN AT THE RJ4ALL INTERNATIONAL INSTITUTE

“This case study will focus on a Two-Spirit youth named Alix whom I work with as a psychotherapist4. Alix is a two-spirit youth, and is Metis, which is a distinct culture with Indigenous and European-Canadian ancestries. The Canadian government abuses power against Indigenous peoples in many ways, and our systems are moving too slowly in the reconciliation process with Indigenous peoples (Sinclair as cited in Monkman, 2021). One of Canada’s governmental tools of genocide against Indigenous peoples was through the residential school system (Woolford, 2013). Residential schools were run by nuns and priests whose purpose was to systemically colonize and assimilate children by separating them from their families. The schools were a site of torture, sexual, physical, cultural, spiritual abuse, forced labour and in some cases, murder (Woolford, 2013). The last residential school closed in 1996, the brutal legacy of this genocidal trauma are splintered families, addiction and ongoing systemic abuse by settler colonialism. Youth like Alix face the effects of state 4  North America is also called Turtle Island by many Indigenous peoples. In Hawaiian culture, turtles are sacred, and guardians of the family (Kupihea, 2004). It is my contention that all youth are sacred members all communities in the Global North and South. Communities have an obligation to nurture, protect and empower youth to navigate the earth and to share their talents and strengths with their communities and the world. Youth who are Indigenous, racialized and two-spirit, lesbian, gay, bisexual, transgender, and queer (2SLGBTQ+) are frequently pushed to the margins by dominant identities and systems created by cisgender, heterosexual, white men and women with economic privilege. In the Global North, queer people of colour experience intense marginalisation by structures that abuse power through white supremacy and colonising, genocidal policy and praxis. QPOC youth experience amplified marginalisation, especially Indigenous and Black QPOC, including those who are living with disabilities and/or experiencing poverty. Two-spirit is an umbrella term for Indigenous peoples (Fiola, 2015) who have a blend of masculine and feminine identities, who may also identify under the queer umbrella, and who originate in North America, but may have migrated also to other parts of the Global North.

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sanctioned violence within her family and community. Alix faces constant othering, racism, and risk of violence. This abuse of power against Indigenous peoples also creates barriers within education and social systems, systems that continue to dehumanize and devalue Indigenous, queer youth like Alix which then affects mental wellness and pride in their identity. 5

How practitioners can trans-form dialogue with queer, BIPOC youth In Turtle Island, trans is a more common term for transgender, and trans people may identify outside of gender binaries and the gender that was assigned at birth does not resonate with their current gender identity, In Latin, trans also means a crossing, and to transform (Dictionary.com). I am a white, genderqueer, trans therapist so I try to ‘trans-form’ and co-create dialogue with Alix at the intersection, the crossing, and I work to stop to all abuses of power. I do this by trying to decolonize the space, ensuring that Alix feels represented by Indigenous art and books throughout my office. I consistently use Alix’s pronoun to respect her identity and continually ask how cultural and queer communities and meanings can support her in her therapy goals. I use silence and gentle eye contact as valued by Alix’s culture, to non-verbally create space to express her needs and goals to feel empowered and successful in the room. When Alix shared with me that she wanted to enter sex work as a young adult, I used a harm reduction approach to support Alix to find ways to keep safe during sex work. I also had to check my values as a white feminist and as a child sexual abuse survivor, and to remember that Alix does not define sex work as traumatic. My own abuse history reminds me how adults need to use power with respect, and I try to respect Alix at all times. Alix wants her community to respect her choice to use her body in a way that earns her financial power within society. We have also worked together to support Alix to develop long term career goals that support her dreams to decolonize the system and increase self-governance in her life and the lives of Indigenous peoples.

Self-governance and theory-based dialogue Self-governance is valued by many Indigenous peoples (Josephs, 2019) as colonization is an abuse of power and dehumanization that destroyed Indigenous peoples’ rights to their lands, resources cultural and spiritual practice, and connections to sustained kinship relationships. Before selecting any theories to guide my work, I remember to hold space for Alix to self-govern, and decide what to talk about, what to do or not do, and Alix decides which communities will support her in her aspirations. By doing this I attempt to repair the past abuse of power by my community. With Alix, I use the principles of restorative justice to view us both as embedded within our communities. I try to repair the harm 5  They is used as a gender-inclusive, singular pronoun for people who do not subscribe to the gender binary.

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that my community has done to Alix, by finding out what Alix needs from me during our dialogues, to feel safe and free from colonization, or any abuse of power within the therapy space. I also use Indigenous theories by Jann Derrick (2005) and Michael Hart (2007) to decolonize the dialogue and find out Alix’s worldviews, ontology and what she wants to feel valued within society and relationships. I use Intersectional feminism (Crenshaw, 2017) and queer theory to work with the intersection of her identities and I support Alix to find systemic resources to resist power abuses by heterocispatriarchy and white supremacy. I honour Alix’s self-governance, and listen to what she needs. I use my power to support Alix to heal their genocidal trauma, and to support her to express power in her movement through Turtle Island. In our third year of work together, Alix has almost completed her undergraduate degree, and continues to express her sacredness through art, social justice and the Indigenous resistance movement. Alix has strong connections to family, culture, and two-spirit and queer communities who encircle Alix with love, empowerment and respect. I am honoured to be part of Alix’s support circle, and we continue the decolonization process and redistribution of power within our dialogue, that is always led by Alix’s voice”.

References Crenshaw, K. (2017). On Intersectionality: Essential Writings. New York: The New Press. Derrick, J. (2005).When Turtle Met Rabbit – Native Family Systems. In Voices of Color – First Person Accounts of Ethnic Minority Therapists, eds. Mudita Rastogi and Elizabeth Wieling. London: Sage, pp. 43–63. Dictionary.com. (2020). Definition for Trans. Retrieved from https://www.dictionary.com/ browse/transFiola, C. (2015). Rekindling the Sacred Fire: Métis Ancestry and Anishinaabe Spirituality.Winnipeg, MB: University of Manitoba Press. Hart, M. (2007). Indigenous Knowledge and Research: The Míkiwáhp as a Symbol for Reclaiming Our Knowledge and Ways of Knowing. First Peoples Child & Family Review 3(1): 83–90. Retrieved from https://fpcfr.com/index.php/FPCFR/article/view/26. Josephs, B. (2019). Indigenous Relations: Insights, Tips & Suggestions to Make Reconciliation a Reality. Nanaimo, BC: Strong Nations Publishing. Kupihea, M. (2004). The Seven Dawns of the Aumakua: The Ancestral Spirit Tradition of Hawaii. Rochester,VT: Inner Traditions. Monkman, L. (2021). Five Years after the Report, Truth and Reconciliation Commissioners Say Progress Is Moving Too Slow. Canadian Broadcasting Corporation. Retrieved from https:// www.cbc.ca/news/indigenous/trc-5-years-final-report-1.5841428. Woolford, A. (2013). Nodal Repair and Networks of Destruction: Residential Schools, Colonial Genocide and Redress in Canada. Settler Colonial Studies 3(1): 65–81. doi:10.10 80/18380743/2013.761936.

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CASE STUDY NO. 23: ENGLISH NATIONALISM: DEINDUSTRIALISATION AND POWERLESSNESS – ENGLAND Dr Luke Telford LECTURER IN CRIMINOLOGY, STAFFORDSHIRE UNIVERSITY

“In recent years, nationalistic sentiments in England have exploded.The 2016 Brexit referendum, which resulted in a 52%–48% victory for the Leave campaign, was a lucid eruption of political discontent (Telford and Wistow, 2020). Many locales that historically elected a Labour Party MP but had witnessed decades of social and economic decline voted to Leave in large numbers. Such nationalistic dissatisfaction exploded again in December 2019 with the historic collapse of the Red Wall; many areas that had been tethered to social democratic politics for much of the twentieth century elected a Conservative MP for the first time. Indeed, many academics have cast the rise of English nationalism as racist, xenophobic and a desire amongst the traditional working class to return to the age of Empire (for example, Fekete, 2018). However, my recent research (Telford and Lloyd, 2020; Telford and Wistow, 2020) reveals that this is reductionist, often dismissing more explanatory structural factors such as deindustrialisation and a sense of powerlessness. This case study is based on research I conducted in 2017–2019, with 52 interviews with working-class individuals in Teesside; an industrially retrenched locale with a similar historical trajectory to many areas in America’s Rust Belt that voted for Trump in 2016.Whilst 40 participants voted for Brexit, the rest were non-voters. No respondents talked about the age of Empire. Rather, the stories I heard were embedded in recent historical processes, particularly slow-motion deindustrialisation. Most participants spoke positively about the locale’s former industrial prowess, particularly the chemical and steelwork industries. Whilst industrial work was often hard work, dirty and physical, it offered a sense of purpose that appeared to have been lost in today’s labour markets. It also equipped many local residents with a clear biographical trajectory; a root up the social structure towards socio-economic betterment. Many respondents and their friends had left school and acquired a fiveyear apprenticeship in local industry, equipping them with the skills and knowledge to forge a viable livelihood. Eventually, sons would follow in their grandfather’s and/

284  Case studies of power and restoration

or father’s footsteps and obtain a reasonably well-paid industrial job. In essence, a generational tradition was forged. Whilst the chemical’s industry still exists in Teesside, much of it was downsized in the 1990s and therefore it is a shell of its former self. Although the sample voiced their discontent about this, it was the steelwork’s closure in 2015 that was recalled with a tangible sense of anger and sadness. Over 2000 remunerative jobs were lost, including many more in the local supply chain. The rhythm of industrial work, and its associated job for life, came to an abrupt halt. Economic stability and social security, stitched into industrial employment, collapsed; many former steelworkers were out of work for several years. Although some eventually found employment, it offered a fraction of the steelwork’s pay and lucrative pension packages. In effect, it was work they simply engaged in to forge a living; it was not something that offered both pride and a means for identity formation. Placed in this context, there was a palpable fear for the next generation. Many of the participants suggested there was no future for their children and grandchildren. Often, they laboured in menial forms of employment including bar work and McDonalds. This work was minimum wage, non-unionised and degrading. Whilst they voiced their discontent at these conditions, they occasionally suggested it was a stepping-stone to something better. But remunerative employment in the area was difficult to obtain. In consequence, they were trapped in an inertia, unable to move forward with their lives. Some suggested they had applied for thousands of jobs and heard nothing back. Others spoke about how demoralising this was, generating feelings of powerlessness. Although a handful had gone to college and University, many claimed their degrees were worthless in a local labour market with few forms of graduate employment. While dissatisfaction with immigration was prevalent, it was wedded to neoliberalism’s debilitating structural effects on the locality. The sample therefore viewed immigrants as economic competitors for resources like jobs. For them, it made little sense to accept more and more economic migrants when a large volume of people in the local area are economically insecure and precarious. In this way, the notion that the state needs to deal with a lack of employment opportunities, homelessness and poverty before accepting migrants was a regular refrain in the interviews. Such protectionist sentiments, though, were repeatedly undercut by sympathy for immigrants. Respondents suggested they too would migrate given the structural conditions in both Eastern European countries and the war-torn Middle East. But despite these grievances, most participants were fearful of expressing their views. They believed they would be branded racist and xenophobic, forestalling debate over important issues and further intensifying their sense of powerlessness. Feelings of political abandonment prevailed. Many respondents felt cut adrift from politics, particularly the Labour Party. They believed that all politicians were the same; no matter what political party you voted for nothing changed. Industrial collapse continued, and their concerns were dismissed. New Labour’s premiership was a key period for fomenting such cynicism, since the Party abandoned its historic social democratic commitments and gave primacy to market forces. Subsequently,

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many participants in my research abstained from politics, or began to look elsewhere for political representation. In effect, they viewed the Labour Party with disgust, suggesting it condemns and mocks people like us. Bereft of political representation and denied the structural tools to live a good life, they felt as if history had forgotten them. This accumulative powerlessness culminated in the 2016 Brexit vote. They believed that it was a once in a lifetime opportunity to change things. The direction of such change was not discussed; but any change to the inertial present was welcomed. While the Labour Party tentatively pursued a second referendum and often dismissed their concerns as racist, the Conservative Party listened to their demands and harnessed their discontent. This culminated in the collapse of the Red Wall at the 2019 general election, as the historic ‘umbilical cord’ (Embery, 2020, p. 26) between the Labour Party and the traditional working class was severed. Whilst many academics have dismissed these nationalistic trends as the embodiment of racism, my research revealed that it was, in part, motivated by feelings of powerlessness and a desire to avert the socio-economic decline of the neoliberal epoch. Indeed, the sense of powerlessness that had been accumulating throughout neoliberalism in deindustrialised areas like the one in my research exposes how our lives are shaped by broader structural forces of power. These powerful macro trends include the gradual loss of remunerative industrial employment and the ascent of work that fails to provide adequate socio-economic sustenance.Whilst these powerful forces have been a part of the status quo for several decades, discontent directed against these trends has been rising for several years, setting in motion the possibility for social change. This has been intensified by the Covid-19 pandemic, which provides an opportunity to restructure society along more progressive lines. In this way, the palpable feeling of powerlessness expressed by respondents in my research is not fixed but mutable.Therefore, it can be channelled into a new political project in the post-Covid/neoliberal world, enabling them to again exercise a degree of power and control over their lives”.

References Embery, P. (2020). Despised:Why the Modern Left Loathes the Working Class. Cambridge: Polity. Fekete, L. (2018). Europe’s Fault Lines: Racism and the Rise of the Right. London:Verso. Telford, L. and Lloyd, A. (2020). From “Infant Hercules” to “Ghost Town”: Industrial Collapse and Social Harm in Teesside. Critical Criminology 28: 595–611. Telford, L. and Wistow, J. (2020). Brexit and the Working Class on Teesside: Moving Beyond Reductionism. Capital & Class 44(4): 553–572.

AUTHOR’S BIOGRAPHY

Professor Theo Gavrielides, Ph.D., is a legal philosopher and a world-known restorative justice expert. He is the Founder and Director of the Restorative Justice for All (RJ4All) International Institute, which aims to advance community cohesion and redistribute power through education and values of restorative justice. He is also the Founder and Editor-in-Chief of RJ4All Publications, which is the publishing arm of the RJ4All International Institute. In 2021, Professor Gavrielides received the Liberty of the Old Metropolitan Borough of Bermondsey award as part of the Southwark Civic Awards 2020 for his contribution to the community during difficult times. In 2001, he founded The IARS International Institute, a user-led charity. In 2020, almost 20 years since IARS establishment, he stepped down as its Director. Dr. Gavrielides is also a Visiting Professor at the University of East London, Distinguished Policy Fellow at the School of Regulation and Global Governance (REGNet), Australian National University, an Adjunct Professor at the School of Criminology of Simon Fraser University (Canada) as well as a Visiting Professor at Buckinghamshire New University (UK). In the past, he served as a Visiting Professorial Research Fellow at Panteion University of Social and Political Sciences (Greece) and as a Visiting Senior Research Fellow at the International Centre for Comparative Criminological Research (ICCCR) at The Open University (UK). He is the Editor-in-Chief of the peer-reviewed journals: • • •

International Journal of Human Rights in Healthcare Youth Voice Journal Internet Journal of Restorative Justice

Author’s biography  287

Some of his volunteering roles include being a trustee of the Anne Frank Trust, a Governor at Albion Primary School, an Advisory Board Member of the Institute for Diversity Research, Inclusivity, Communities and Society (IDRICS) and a Member of the Scrutiny and Involvement Panel of the Crown Prosecution Service. Previously, he was the Chief Executive of Race on the Agenda, a social policy think-tank focusing on race equality. He also worked at the Ministry of Justice as the Human Rights Advisor of the Strategy Directorate. There, he worked on the Human Rights Insight Project, which aimed to identify strategies that will further implement the principles underlying the Human Rights Act and improve public services. He also advised on the Ministry’s Education, Information and Advice strategy. During 2002–2004, he worked as a Researcher at the Centre for the Study of Human Rights of the London School of Economics and Political Science (LSE). He is also a legal counsel specialising in criminal law, human rights and EU law. He taught criminal law and common law reasoning and institutions at the University of London, and has acted as a human rights and criminal justice advisor for various chambers and policy bodies including the Independent Advisory Group of the London Criminal Justice Partnership. He obtained a Doctorate in Law from the London School of Economics and Political Science (PhD, 2005) and a Masters in Human Rights Law from Nottingham University (LL.M in Human Rights Law, 2000). He graduated from the Faculty of Laws of the National University of Athens and practised law at Gavrielides & Co. Prof. Gavrielides has published extensively on social justice matters and human rights. His 2007 monograph Restorative Justice Theory and Practice was published by the European Institute for Crime Prevention and Control affiliated with the United Nations (HEUNI) and his 2021 monograph Power, Race & Restoration: The Dialogue We Never Had” by Routledge. In 2012, he edited Rights and Restoration within Youth Justice, in 2013 he co-edited Reconstructing Restorative Justice Philosophy and in 2015 he edited The Philosophy of Restorative Justice both published by Ashgate (now Routledge). He also edited Offenders No More by NOVA Publishers (2015) and Restorative Justice, The Library of Essays on Justice (2015) by Ashgate Publishing. He also edited The Routledge International Handbook of Restorative Justice (2018) and Comparative Restorative Justice (2021).

INDEX

δικαιοσύνη 40 Δικαιοσύνη 38–39 επανορθωτικόν δίκαιον 51–52 abolitionism 83, 197–198, 211 All-Party Parliamentary Group 95, 127, 133 Ancient Greece 39, 48 Ancient Greek 51, 55 Aristotle 5, 38–39, 43, 47–49, 51–53, 65–67, 70–73, 96–98, 138, 140–141, 157, 185 Austin, J. 62 awakened state of mind 17, 61, 69, 103, 139, 154, 157, 210 Bentham, J. 73 biopower 5, 38, 51, 112, 192, 201 black 12, 15–16, 19, 26, 28, 30, 32, 34–35, 102, 104–106, 108, 111–113, 163, 182, 192–193, 206, 234, 245, 247, 263, 280 British 15, 18–19, 22, 30, 41–43, 63, 87, 108, 127, 133, 154, 192–194, 270–272 British Columbia 63, 87 British Empire 19 Buddhist 142 bullying 31, 230, 239, 278 campaigning 33, 79, 87, 199 Canada 41, 63, 133, 235, 280, 282 catharsis 5, 29, 61, 65–68, 70, 72, 97, 196, 202 change from within 3–4, 8, 12 child sexual abuse 107, 113, 227, 281 Christie, N. 57, 73, 80–81, 194

circle 7, 56–57, 59, 63–64, 80, 83, 86, 92, 108, 120, 138, 171, 203, 206–207, 234, 239, 241, 246–248, 257, 282 citizens 14, 17–18, 21, 33, 47–48, 51, 55, 70–71, 97, 115, 117, 127–129, 132, 145, 150, 152–154, 157, 187, 207, 210 collectivists 68, 97 colonialism 13, 197, 280 colonies 30, 143 communities 12, 19–20, 33, 35, 45, 53, 55, 59, 61, 70–71, 87–88, 91–92, 123–127, 131–132, 140, 142, 146, 148, 153, 168, 181, 185–187, 204, 208–209, 212, 236, 242, 256, 258, 273–274, 281–282 community 4–5, 7, 11, 14, 17–19, 31, 33, 35, 41, 43, 49, 52–53, 55, 59, 61, 67, 69–72, 82–84, 89–91, 93–94, 97–98, 106, 108, 110–112, 115, 122, 124–129, 132, 137–138, 145, 148–151, 159–160, 162–163, 165, 171, 174–176, 178, 181–182, 184, 186–188, 191, 196–198, 201–203, 207–211, 213, 225–226, 246, 260, 263–264, 272, 275, 282 compassion 39, 103, 130, 237 conflicts 5, 19, 59, 79, 81, 86, 120, 130, 157 Council of Europe 16, 19–20, 41, 116, 130 court 2, 4, 13, 19–20, 40–41, 43–46, 49, 59, 93–95, 103–104, 138, 140, 144, 146, 168, 170, 173, 176, 182, 228, 242, 249–251, 253, 260–261, 271 Covid-19 16, 31, 85, 93, 98, 127, 138, 152, 186, 204–205, 278

Index  289

criminal justice 4, 38, 44, 46, 52, 54–60, 62, 80–82, 84, 86–91, 93–94, 96–97, 102, 104–105, 110–111, 131–132, 138, 153, 158–166, 168–169, 171, 175–176, 181–182, 184, 186–188, 190, 197–198, 202–203, 205–207, 212, 215, 226, 238, 262 critical reflections 7, 115, 158, 184, 194 Cyprus 19–20, 159–160, 162 definitions of restorative justice 52 deterrence 65, 202 dialectic method 66 disadvantage thinking 29–31, 154 distortion of power 147 distributive 51, 56 domination 11–12, 15, 34, 109, 150, 206, 234 Dorling 15–17, 31, 102, 153 ECHR 16, 18–21, 41, 43, 143–144 economy 28, 70, 85 elders 126 equality 4–5, 7, 12, 14–17, 19–22, 27, 30, 32–34, 39, 47, 98, 102–106, 108, 110, 112, 137, 140–145, 184, 195–196, 198–200, 204–205, 208 Europe 16, 18–21, 32, 37, 41–43, 47, 49, 61, 72, 90–91, 93, 95, 97, 102, 117, 119–120, 122, 125, 128–135, 137, 139, 143, 158, 164, 184, 187, 270, 273–275, 280 European Convention on Human Rights 16 European Union 19, 43, 90, 158 extremism 116–118, 120, 122–123, 126–129, 207–208 fair 2, 5, 21–22, 33, 37–44, 47–49, 51–52, 87, 93, 97, 117, 137, 140–141, 144–146, 201, 204, 209–210, 226–227, 230 fairness 2, 22, 33, 38, 40, 42, 47–49, 51, 87, 93, 97, 137, 140–141, 145, 201–202, 204, 209, 226, 262 family group conferencing 83, 178, 225 fault line 7, 79–97, 203, 271 fear 3–4, 7, 16–17, 19, 22, 27, 31, 41, 65–67, 85, 89, 106, 109, 115–120, 130–131, 149, 163, 180, 184–185, 189, 198, 207, 212, 263, 284 Ferndale Prison 63 forgiveness 83, 107, 182, 244, 259–260 Foucault, M. 4, 13–14, 62, 112 freedom 1, 35, 41, 68, 110, 116, 120, 132, 145, 189, 277–279

Gandhi, M 30 gender 29, 33–35, 65–66, 105–106, 129, 191–192, 246, 263–264, 271, 281 Greek 4–5, 16, 19–20, 23, 39, 48, 51–52, 65–68, 70, 89, 121, 252 Greek philosophy 5, 51, 72 Greek tragedy 65–68, 70 healing 63, 85, 96, 107, 131, 166, 174, 227, 235, 240, 257, 266 Hebrew Bible 142 hierarchical 23, 61, 87, 107, 138 history 11, 18, 22, 30, 55, 58, 60, 62, 142, 219, 268, 274, 281, 285 H2O 139 Home Office 44, 81, 86, 88 homicide 15, 52 hope 1–3, 8, 16–17, 22–23, 29, 33, 47, 72, 86, 88, 107, 112, 125, 130, 132, 137, 141, 146, 169, 174, 189, 195, 200, 227, 237, 240, 274–275 HRA 41–42 human dignity 142–145 humanity 11, 22, 29, 41, 130, 132, 144, 147, 201, 235 human rights 7–8, 12, 16–17, 19–23, 27, 33, 41–44, 54, 96–98, 112, 118, 123–125, 128, 130, 132, 137, 141–145, 147, 149, 154, 160, 164, 194, 199–200, 204, 207–210, 249, 267, 274–275 Human Rights Act 1998 16, 41–43, 98, 199 The IARS International Institute 2 ideal restorative 180 imbalance of power 32 Indigenous People 280–281 iNEARJ 121, 130 inequalities 5, 31, 41, 47, 51, 98, 102, 127, 137, 205, 208 Kavafy, C. 23, 37 King, M. L. 22 knowledge 2–4, 11, 14, 22, 29, 34, 39, 59, 64, 67, 69, 83, 91, 116, 125, 127–128, 139, 151, 154, 157, 159, 171, 189, 197, 200, 227, 232, 256, 283 language 26, 65, 81, 107–109, 111, 143, 182, 186, 188, 198, 203, 206–207, 212, 237, 263–264, 274 lawful 37–39, 41–42, 44, 140, 146, 149, 201, 210 legal standards 147, 149, 199, 209–210 levers of power and control 14, 154

290  Index

marginalised group 16, 127, 130, 208 Marx, K. 62 media 38, 40–41, 43, 45–46, 49, 97–98, 115, 117, 120, 126, 132, 146, 152, 186, 191, 204, 235, 239–240, 270, 278 mediation 48, 70, 83–84, 86, 90, 92, 105–106, 108, 111, 113, 138, 176, 178, 186, 216, 218, 225, 229, 232, 242–243, 251–253 member state 19, 116, 124, 126, 158–165, 187 Mill, J.S. 11, 21 Ministry of Justice 88–89, 92, 94, 104, 160–162 money 11, 14, 30, 32, 88, 90, 94, 108, 152, 175, 200, 261, 270–272, 276–277 monograph 2, 6, 8, 12, 137 movements 5, 12, 22, 68, 91, 96, 98, 138, 163, 173, 200, 225

125, 129, 143, 165, 226, 228, 243, 245, 267–269, 274, 285 power imbalances 68, 115, 121, 152, 207, 230, 240 power-interest battles 7, 79, 85, 87 power, race, justice 6, 8, 11–12, 87 power-sharing 26, 68, 79, 110, 115, 139, 147, 159, 213, 225, 228 priest 53, 281 principles 9, 43–44, 54–55, 85–86, 104, 115, 119, 137, 139, 143–144, 147, 149, 151, 170, 174, 180, 212, 225, 283 probation 90–98, 109, 112, 119, 137, 151, 165, 170, 173, 178, 180, 184–187, 202, 211, 229–230, 233, 241, 243, 251–254 punishment 44, 49, 52, 64–73, 82, 84, 102, 139, 144, 148, 176, 225, 249–250 punitive 11, 60, 67–68, 82, 84–85, 104, 118–119, 125, 132, 137, 139, 141, 159, 210, 228, 250

nationalism 18, 20–21, 118, 207, 283 natural law theory 38–40, 49, 52 Navajo Nation 70 Nicomachean Ethics 39, 49

race equality 6, 12, 15, 26, 39, 110, 122, 213 radicalisation 9, 33–34, 127, 141, 228 Rawls, J. 65, 90 realism 14 rebalancing power 87, 92 religious fundamentalism 127 restitution 37, 67, 112 restorative justice movement 6–11, 79–82, 86–87, 90, 92, 95, 98–110, 112, 119, 137, 182, 195, 212, 234 restorative justice philosophy 242 restorative justice practitioner 225 restorative movement 83, 86, 225 restorative pain 6, 70, 72, 79–83 restorative Service Standards 96 restoring power 163 retributive 60, 62, 70, 72, 74, 77, 81, 85 RJ4ALL International Institute 228, 264, 266, 281

Odysseus 6, 103 paedophile 179, 228, 244–245 paradigm 8, 53–59, 73–74, 80–82, 87, 116, 124–125, 138, 198, 202, 204–205, 208, 237 passion 39, 66–67, 103, 131, 176, 248 pathfinders 94 peace 12, 60, 70, 73, 98, 113, 115, 138–216 philosophical foundations 53, 60, 185 philosophy 5–6, 31, 51, 54–56, 60–61, 70–74, 81–82, 88, 96, 104, 110, 113, 194–195, 268 policy-makers 5–7, 32, 38, 54–55, 87, 103–104, 121, 125, 127, 166, 195, 199, 202–203, 208 polis 39, 48, 51, 70–71, 73, 97, 150, 161 political morality 56–57, 59 politics 14, 18–19, 40, 63, 71, 73, 113, 115, 118, 130, 200, 207, 283–285 poverty 12, 14–16, 98, 124, 126, 200, 280, 284 power abuse 4, 6, 8–12, 15, 18, 22, 31, 37, 40, 46, 62, 70, 79, 87, 110, 137, 153, 195, 207, 213, 226, 230, 232, 272, 274, 281, 284 power battles 86, 93, 212 powerful 6, 9, 11–12, 18, 20, 34, 37–38, 47, 54, 56, 62–63, 72, 74, 90, 113, 119,

Secretary-General 22, 145 security 9, 14, 20–24, 35, 125, 127, 129–132, 135, 137, 142, 147–149, 226, 228, 272, 275–279, 284 self-critique 9, 79 self-transformation 2, 11 September 11, 20 share power 146, 151 slavery 6, 31–33, 145, 271 social change 11–12, 102, 104, 110, 285 social liaison, 119, 143, 153, 209, 211, 230 social movement 9, 79, 102, 104, 139, 209 social worker 173, 195, 249, 251, 253, 261 solidarity 144–145, 147–149

Index  291

South Africa 47 sovereign 68, 70, 72, 74 spending 90, 110, 261, 266, 273, 278 standardisation 172 standards 22, 44, 47, 63, 68, 86, 93–96, 117, 145–149, 152, 165, 168, 172–174, 178, 180, 198, 207, 210, 212, 230, 236, 247 state responsibility 15 status quo 4, 6, 9, 22, 26, 34, 37, 40, 47, 52, 54, 56, 60, 71, 82, 85, 87, 119–122, 125, 127, 139, 151, 195, 225–226, 285 structured 1–2, 6, 11, 32, 38–39, 56, 119, 142, 145, 151–152, 165, 205–212, 230, 232 structured justice 151–154 structured restorative justice 151–153, 209, 211, 230 survey 11, 43, 64, 82, 97, 117, 132, 141–142, 165, 175, 184–187, 190–191, 199–206 terrorism 20–21, 49, 125, 127, 129–132, 141, 148–149, 167, 275 Terrorism Act 21 terrorist attacks 4, 130–131, 148–149 theft 60 theory 31, 39, 43–46, 55–56, 60–79, 82, 122, 144, 230, 283–284 top-down 6, 11, 38, 56, 74, 77, 85, 87, 90, 92–93, 96–97, 104, 139, 163, 168, 170, 180, 198, 209, 211, 228, 232, 236 topoi (τόποι) 102 trojan horses 9, 39–40, 109–112, 119 Troy 8, 110 truth 9, 15, 18, 20, 30–31, 54, 115, 125, 127, 130–137, 139, 141, 143, 146–149, 229, 235, 264, 283 Turkey 22

UDHR 144–145 UN 22, 145 unemployment 4, 19, 137 unstructured justice 153, 232 unstructured restorative justice 153–154, 211, 230 The US 47, 50 victimisation 18, 37–39, 93, 112, 141, 168, 215, 237, 240, 272, 275 victim support 84, 86, 97, 165, 167–170, 172–174, 184–185, 187, 193, 198–199, 202–203, 234, 237 violent radicalisation 127, 129, 132–137, 139, 141, 143, 147, 226, 228 voice 139, 158, 163, 165, 169, 183, 192, 195, 226, 233, 236–237, 243, 249, 267, 270, 284 voluntariness 85, 117–118, 149, 225 Weber, M. 11, 14 world of theories 64–66 World War II 4, 110, 145 YEIP 132, 144 young people 34–37, 132, 137, 139, 141, 143, 145–149, 228, 233, 255, 271–272, 277, 279 youth 9, 35, 37, 68, 96, 115, 132, 137–139, 141, 145–147, 170, 178, 228, 255, 271, 281 youth justice 96, 139, 241, 255 youth offending 139 zeitgeist 137, 158