Restorative Justice as a Vehicle for Legitimacy in Post-Conflict Societies

1. Restorative Justice as a Vehicle for Legitimacy in Post-Conflict Societies Dr Jonathan Doak, Nottingham Law School, NTU David O’Mahony, Durham Law School, University of Durham

2. Question • Can Northern Ireland’s new restorative conferencing arrangements assist in building legitimacy in the criminal justice system?

3. So what is ‘legitimacy’? • Normative legitimacy • Legal legitimacy • Social legitimacy

4. Does legitimacy matter? • ‘Public acceptance, confidence and support… are social incidents of legitimacy… Because criminal justice is crucial to the security of the state, and because criminal justice is integral to the state’s project of governance, the criminal justice system has become central to the political and constitutional integrity of the state - a generally recognised and jealously guarded incident of its sovereign authority’ (Walker and Telford, 2000: 53-55)

5. Legitimacy and procedural justice • See work of Tom Tyler and colleagues. • People’s experiences with fair procedures will make it more likely that they will… • Accept a sense of obligation to obey the law • Acknowledge the moral authority of rulers to make and enforce the law • Desist from offending • Fair treatment within the CJS was associated with values such as ‘representation, honesty, quality of decision, and consistency, and more generally of participation and esteem’ (Tyler, 1990: 175).

6. Legitimacy through restorative justice • Proponents of restorative justice thus frequently contend that the restorative paradigm may carry wider societal effects reverberating beyond the direct participants in a particular mediation or conference setting: • Eg, strengthening social relationships, affirming community norms and a collective vision; civic ownership of disputes. • Values include truth, accountability, reparation, reconciliation, conflict resolution and democratic participation.

7. Restorative Youth Conferencing in Northern Ireland • Background and operation of restorative conferencing • Criminal Justice Review • Court ordered and diversionary conferences • Mainstreamed process within criminal justice • How can these arrangements contribute to legitimacy? • Questioned whether it is: • Open • Devolved • Accountable • Participatory • Engaging with the wider community

8. Youth Conferencing Research • Re-analysis of Youth Conferencing Evaluation (2005) • Observations of 185 conferences, interviews with 171 offenders and 125 victims • Supplemented by recent conferencing data and interviews with practitioners in Youth Conference Service and range of stakeholders and community representatives

9. Findings: • An inclusionary process? • Bringing those directly impacted together • Facilitating dialogue • Engaging victims in the process and dialogue? • Extent of engagement • Victims and supporters • Why victims attended • Engaging offenders (and family) in the process and dialogue? • Types of offences • Reasons for attending and experience • Holding offender to account • Offenders and family support

10. Findings 2 • Engaging Police, Conference Coordinators and Others • Engagement with the outcomes (conference agreements) • Contribution to process • Types of disposals, restorative vs. punitive • Delivery of outcomes and community involvement • Ownership of disputes and community reintegration

11. Conclusions • Legitimacy, youth conferencing and restorative justice: • Potential to bolster criminal justice legitimacy • Promotes engagement • Allows for better sense of procedural justice • Especially for communities and individuals who have been alienated • Process seen as fair, democratic and participatory • Contributing to sense of ownership of justice and resolving conflicts through inclusionary means vs. punitive exclusionary means • Potential applications in other jurisdictions, especially where there are significant community and criminal justice tensions