3 rd International Conference on Therapeutic Jurisprudence

Transcription

1 3 rd International Conference on Therapeutic Jurisprudence 7-9 June 2006, Perth, Western Australia Session 7E ALTERNATIVE MANAGEMENT OF POLICE MISCONDUCT: THE USE OF RESTORATIVE JUSTICE CONFERENCING FROM THE VICTIM S PERSPECTIVE ASSOCIATE PROFESSOR MARGARET MITCHELL ADJUNCT ASSOCIATE PROFESSOR GLENN ROSS NATALIE FISHER & LOUISE SAUNDERS

2 Alternative management of police misconduct: The use of restorative justice conferencing from the victim s perspective Paper presented at the 3 rd International Therapeutic Jurisprudence Conference held 7-9 June 2006 in Perth, Western Australia 1 Authors Associate Professor Margaret Mitchell 2 Adjunct Associate Professor Glenn Ross 3 Natalie Fisher & Louise Saunders 4 Any correspondence in relation to this paper can be addressed m.mitchell@ecu.edu.au 1 The views expressed in this paper are those of the authors and do not necessarily reflect the views of either the Corruption and Crime Commission or Edith Cowan University. 2 Margaret Mitchell is the Director, of the Sellenger Centre for Research in Law, Justice & Policing at Edith Cowan University. 3 Glenn Ross is the Manager - Corruption Prevention, Education and Research with the Corruption and Crime Commission of Western Australia, and holds an Adjunct position at the School of Law & Justice at Edith Cowan University 4 Natalie Fisher and Louise Saunders are graduates of the School of Law and Justice at Edith Cowan University and undertook student placements at the Corruption and Crime Commission. 1

3 Abstract This paper explores the responses of participants who were involved in a restorative justice conference undertaken by the Western Australia Police. This conference differed from more typical restorative justice conferences in that 50 police officers participated as the offenders rather than in their more usual role of facilitators. This is the only occasion, to the authors knowledge, where such an innovative practice has involved police officers in this way, and certainly on such a large scale. This paper describes the circumstances of the transgressions by police regarding unauthorised access and disclosure of confidential photographic images of two deceased persons, and the impact that this had on the family members of the deceased. It examines the principles of restorative justice and their application in this instance, and identifies a number of non-standard applications and departures from these principles. The paper includes an account of only the experiences of the family members, as victims, and their involvement in the restorative justice conference. No account is made at this time of the experiences and expectations of the other participants to the conference. Background In April 2005 two men, Mr Mac Cody and Mr Brad Richards 5, perished in the Great Sandy Desert in the Pilbara region of Western Australia following the break down of their vehicle. This event received wide national coverage in the context of the dangers of travel in the inhospitable Australian outback country. Local police attended and, for coronial purposes, took a number of digital photographs of the partially decomposed bodies and of the scene. For reasons that were the subject of a subsequent internal police investigation, these photographs and the accompanying major incident report were circulated within the organisation. It was first understood that only a small number of officers had sent or received these photographs and report although subsequent audit of the WA Police system, however, showed that a large number of officers had either sent or received the material. The incident Initially, an with the attached digital images and accompanying report was sent to four officers, but due to the ease with which material can be transferred electronically, the number of officers involved quickly grew to a total of 588. Around 400 of them simply received the and either viewed the contents and deleted them, or viewed the contents and allowed them to remain on the system. However, in excess of 180 officers forwarded the including 50 officers who had ed these images outside the organisation, usually to their home computers. This resulted in the police service losing control of the images. The end result was that 15 of the images and the major incident report appeared on a macabre web site (voyeuristic and pornographic) emanating from the US. The images were eventually removed from this particular site at the request of WA Police. Due to the nature of the technology, the material will be on the web in perpetuity and on an untold number of hard drives. 5 The family members prefer that their real names be used. 2

4 A police internal investigation carried out into the circumstances of this unauthorised access and disclosure of confidential police information found no criminality or maliciousness. It was however held that this use, or rather misuse, of the photographic images and the confidential report constituted a disciplinary matter on the basis that confidential police information had been sent to persons not connected with the investigation. Reflective of a forward-looking WA Police organisation, the Commissioner, Dr Karl O Callaghan, agreed to a restorative justice conference being held between the WA Police officers who had sent the images externally and representatives of the deceaseds family. Officers who had received the material but not forwarded it were not required to participate being considered passive recipients, although they were not without fault. The proper course of action would be for them to have brought the matter to the attention of senior officers (which did happen in some instances), and their silence could be interpreted as some complicity on their part. Traditional enforcement of discipline with police Policing derives from a hierarchical and authoritarian model that is frequently described as quasi-military. The maintenance of standards of behaviour in police services has traditionally followed this model and the terms used in reference to the management of police behaviour reflects this quasi-military approach, such as, discipline, the laying of charges, breaches of regulations, and the officer being required to attend a defaulters parade. Discipline is legislated for at s.23 of the Police Act 1892 and provides that where an offence against the discipline of the Police has been established, one or more of the following penalties can be applied: Written caution Reprimand Fine of up to 3% of annual salary Reduction to a lower rank Reduction in salary Suspension from duty Discharge or dismissal It is evident that these punishments or sanctions reflect a retributive model of behaviour management in which the intent is to identify the perpetrator and impose penalties that are neither curative nor remedial. The Kennedy Royal Commission (2004), however, which inquired into corruption by police in WA included a recommendation that these traditional disciplinary measures be discontinued and a more managerial approach to police misconduct be adopted. Restorative Justice Restorative justice as a practice can be traced to its long standing use by indigenous groups in both New Zealand and Australia although its use as a criminological concept only became well recognised in the 1990s (Daly and Hayes, 2001). The uptake of this therapeutic technique was rapid and the reviews of the practice describe the principles 3

5 and practices of the many different forms that restorative justice programs can take (see for example Braithwaite, 1989, Consedine, 1993 and Strang, 2001). Often restorative justice conferencing will be used with young persons who have offended in minor ways, such as bullying (Morrison, 2002) or anti-social behaviour Daly and Hayes (2001) describe a frequently used approach in restorative whereby the offender 6 (who acknowledges guilt and is voluntarily involved in the conference), his/her supporters (family members or friends), the victim and his/her supporters, other relevant individuals (such as a police officer), and a conference facilitator meet to discuss the offence and the consequences it has caused. With the guidance and encouragement of the facilitator, the victim describes his or her experiences to start the proceedings, after which the offender is encouraged to speak. Discussion takes place in a compassionate and understanding environment, in contrast to the more stigmatising and adversarial environment of court. A police officer, if present, may be there to talk about the facts of the offence and to discuss the likely consequences of continued offending in this manner. The conference then moves to the resolution or restoration phase usually a discussion of the outcome or agreement that the offender is expected to fulfil. The resolution, can comprise a verbal or written apology, unpaid work for the victim or involvement in some form of community work, and may also include participating in counselling sessions or behaviour management programs. It can be seen that resolutions can be symbolic rather than a literal restoration to the pre-offence state The outcomes sought by a restorative justice program are well summarised by Barton (2000) as follows: engaging the offender at a moral-psychological level with the consequences of their behaviour; aiding the moral and social development of the offender, so that they learn and become wiser for the experience; aiding emotional and moral psychological healing from the trauma of the criminal incident through interaction between the parties and symbolic reparation; and tempering unequivocal disapproval of the wrongful behaviour (shaming) with expressions of respect and acceptance of the individual into their community (reintegration) While the use of a restorative justice conference in the present example in which 50 police participate as the offender is innovative in Australia, a similar approach has been discussed in the UK. McLaughlin & Johansen (2002) report the potential use of restorative justice principles in regard to citizens complaints against police. Whereas a citizen who is aggrieved at police misconduct may be called a complainant, which has a pejorative connotation, conceptualising them as victims provides them with a morally validated status. It is held by proponents of this view that such use of restorative justice is likely to lead to increased accountability by police and a reduction in citizen alienation. There is no other instance that the authors can find in the literature in which restorative justice principles are applied to infractions perpetrated by serving police officers against members of the community to anything approaching the scale of this conference. 6 Please note that the term is used throughout to denote the person or group, other than the victim. We use officer to denote the participants in this particular restorative justice incident under discussion, and offender to denote participants in more usual conferences. 4

6 With this brief summary of the usual format of restorative justice conferencing as the backdrop, we will now examine what occurred in this instance. We will describe the use of a restorative justice conference with the police officers who had participated in the unauthorised sending of electronic images and the evaluation of what took place in the conferencing process from the perspective of the deceased s family 7. We will first describe the process of the conference itself and then assess its effectiveness, considered from the perspectives of the victims. This Restorative Justice Conference The restorative justice conference took place on 9 December 2005 in a large lecture auditorium with tiered seating at the Joondalup Police Academy, Western Australia. A professional facilitator well experienced in restorative justice conferencing was engaged. Approximately 100 people attended the conference, which in contrast to more usual restorative justice conferences, is a very large number. In addition there were several observers, and this fact alone sets it apart from any other that has been reported. Print and television journalists interviewed the Police Commissioner outside the venue following the conference, and were also permitted to obtain file footage of the place where the conference took place taken before it started. The conference was reported in subsequent newspaper and television reports. The participants and observers comprised: Victims (family representatives) 8 Mr Guy Richards brother of one of the deceased, and uncle of the other Mr Cieron Cody brother of one of the deceased, and nephew of the other Mrs Jacqueline Cody, the sister of one of the deceased and mother of the other, was disinclined to participate in person, but had been interviewed prior to the conference by the facilitator and the pre-recorded video interview was shown at the conference. Police officers involved in transmitting the 50 police officers Facilitator Mr Terry O Connell Others Police Commissioner and Deputy Commissioner Several senior police officers Police Union officials and legal representatives 30 police probationers as observers Associate Professor Margaret Mitchell (ECU) and Mr Glenn Ross (CCC) as invited observers The conference took place in stages, as follows: The Commissioner of Police, Dr Karl O Callaghan, introduced the conference and commented on its significance. Dr O Callaghan did not mince his words and described 7 Frequently referred to in this paper as the victims. 8 The family members were from NSW and Tasmania and attended at the expense of police. 5

7 what some of the officers had done as showing a lack of respect and dignity for the deceased. The professional facilitator then explained the purpose of the conference as to provide an opportunity to gain understanding of what happened; provide insight into the pain and hurt experienced; and help towards minimising any further harm and the likelihood of re-occurrence. In order to explain the context of the deaths to conference participants, a video made by the police at the local police station for this purpose was played to show the inhospitable terrain where the two men had travelled and died. Mr Richards (uncle and brother) and Mr Cody (nephew and brother) next provided a rich and powerful account of the emotional and psychological devastation experienced by the family as a result of the death of their loved ones and how this had been exacerbated by the actions of the officers. A pre-recorded interview with Mrs Jacqueline Cody was then shown, which further illustrated the trauma experienced by the family and their inability to understand the officers motives in sending the material. At the conclusion of the statements by family members, the facilitator invited the officers to comment or reply. None did. This was apparently due to advice by the police union and their legal representatives and was intended to mitigate any potential subsequent legal action taken by the family members against individual officers. Analysis: The conference The evaluation of the way the conference was conducted and its comparison with the principles of restorative justice will now be presented with a view to identifying any similarities or departures. A central principle of a restorative justice conference is the direct participation by victims and offenders, providing an opportunity to influence how a situation can be resolved and an understanding of the consequences of their actions and the harm caused can be reached. In the conference under examination, while the victims family spoke at length, there was no direct communication between them and the officers, nor did the officers speak. The communication between victim and the audience of police officers consisted in the family members providing a detailed account of the pain they had experienced and continue to experience. Given the less than intimate nature of the venue for the conference, this appeared more akin to a victim impact statement than an honest interaction between participants. Whereas standard restorative justice practices involve only the victim and the offender, this conference included other significant stakeholders. Although the Police Union remained silent throughout the conference, the Commissioner participated by introducing the conference with an account of his views on what had occurred and speaking about the feelings of both the victims and the police service. The fact that the Commissioner shared the platform with the family representatives, his admonishment of the officers could have given rise to the belief that he was supportive of the family rather than the officers. It is not clear at this stage in our evaluation whether his 6

8 involvement in this way, and the fact that attendance of other parties, including the police union, limited the potential for dialogue between the two central parties 9, 10. A significant element of restorative justice is the opportunity it provides for victims to express an opinion about how the offending situation should be dealt with, and what reparations are appropriate (however symbolic these might be). Although the family representatives were provided a lengthy opportunity to express how the situation made them feel, they had no opportunity in the conference to influence how the situation should be resolved. Having little opportunity to influence how the officers should be dealt with was saddening to the mother/sister since she believed strongly that the officer who had originally sent the should be dismissed. The focus of the conference, actually the only focus, eventuated as the expression by the deceased s family of how sending the had made them feel. Regrettably, the family s needs for acknowledgement and apology to achieve closure of the matter were not met. In the family asking the conference participants at its conclusion why did you do this? they received no answer. The officers participated passively in the process since as we understand they had been advised by their Union not to speak directly to the victims. Because of this, and because of the central importance in restorative justice of offenders communicating with victims, no opinion could be formed as to whether the officers took responsibility for their actions. Consequently, it is unknown whether they truly understood the consequences, or were sympathetic towards the family. This inability or unwillingness on the part of the officers to present their point of view detracted from the restorative potential of the conference. Discussion: The conference The discussion at a restorative justice conference usually takes place in a compassionate and understanding environment, as opposed to that of a court of law or similar. In this example, it was not a private session where the victim and the offender had the opportunity to speak to one another about how they felt; rather it was predominantly two people facing a large audience being videotaped in an emotive and highly charged environment. The lecture theatre in which the conference was conducted was, by necessity large, and created distance between the participants. The mother/sister did not take direct part in the conference because, as was explained, she did not want all these people to see me cry and was concerned at the prospect of speaking in front of a large gathering. The point of this conference should be to make the victims as well as the offenders comfortable enough to talk to one another, show emotion and help each other. Again, restorative justice principles would dictate that every effort is made to find a venue that was convenient and comforting to the victim. The greatest likelihood of a positive result from restorative justice occurs when the conference takes place as soon as possible after an offence with the voluntary cooperation of those involved, although encouragement is permissible. This restorative justice conference did take lace in relatively quick time, and this may have detracted from the ability to apply greater consideration to the logistics and processes of the conference. For virtually all legal contexts involving criminal matters, restorative justice processes are applied only to offenders who have admitted to an offence. It may 9 This issue would require further exploration in subsequent study involving the perspectives of the other participants, including the Police Union, the facilitator and individual officers. 10 That the conference was being video recorded may also have had an inhibiting influence. 7

9 be - and this will be tested in subsequent phases of this evaluation, that the officers saw the conference as shaming, without benefit of the reintegrative aspects as advocated by Braithwaite (1989). Due to the nature of restorative justice processes, it is not appropriate for any stage of the process to be compulsory, as any party that is taking part in the process under compulsion will not have the necessary attitude to the offence/victim/offender to achieve a successful outcome. It is axiomatic that if the victim is unwilling to participate, the effectiveness of restorative justice is diminished, as the process depends on holding the offender directly accountable to the victim. Although this conference may have responded to the offence as early as possible (Claassen, 1996) it was not completely voluntary on the part of the officers. As such, it did not involve a victim and an offender that voluntarily attended to aid closure and rehabilitation. The officers had already faced penalties through the formal disciplinary process, yet were forced to participate in a process that is intended to be an alternative to punishment. This violates the basic principles of restorative justice, as for it to be effective, all parties must voluntarily attend and the offenders must take responsibility for their actions. There was no acknowledgement by the officers. Restorative justice views a conference as a teachable moment (Zehr, 1990) for the offender. This principle suggests that restorative justice is a process for making things as right as possible both now and into the future, rather than simply punishing the offender. Whereas the conference process could have served this function, through the involvement of the media in reporting the event, and having some 30 police cadets and other observers present, it came to serve a far wider purpose. It is hypothesised, that the Commissioner as the person responsible for the conduct of the police service, was endeavouring to gain a greater goal beyond the punishment or edification of the particular officers involved. The use of the media and the wide publicity the conference received can be seen as having a potentially deterrence effect throughout the police service. As restorative justice is meant to be an alternative to the court process, this session should have been an alternative to other punishment, as the courts were not involved. This session though coincided with other reprimands and therefore defeated that purpose. It was not an alternative to punishment but an extra to it. Analysis: Victims Expectations and Outcomes Interviews were conducted with four principal members of the family: Mr Guy Richards, Mrs Di Richards, Mr Cieron Cody, and Mrs Jacqueline Cody. Through these interviews an appreciation of the expectations of the conference and an evaluation of its outcomes from the perspective of the family was gained. Mrs Jacqui Cody Mother of Mac Cody, Sister of Brad Richards Mrs Cody s first expectations were that the conference would consist of family members reading out a prepared statement that contained the feelings, etc of family members. However, after talking with the facilitator, Mr Terry O Connell, she came to understand that the conference would involve a discussion between all parties and an exchange of views and perspectives. Mrs Cody was optimistic and hopeful that the conference would be an opportunity for: all concerned to find out more about what happened and the consequence of such; 8

10 gaining an understanding of why police acted as they did; the police to gain an in-depth appreciation of the hurt that had been caused; those responsible to accept accountability, recognise their failings and make an appropriate acknowledgement and apology; and her to gain something to enable her move forward in her grieving. Mrs Cody was pleased at the opportunity to contribute to the conference through the pre-recorded video, as she felt that this enabled her to get her feelings and side of things out, thereby helping police to understand. Whilst initially positive about the conference, she became anxious and apprehensive that results would not be achieved, derived from concern that police might be unwilling to participate positively as indeed came to pass. She also stated that the inception of the restorative justice conference also meant that she had to put her grieving on hold until after it had concluded. Rather than the conference being restorative for her, she used terms such as don t feel better, feel worse, not helpful, no value more lost and confused than I was at the beginning and still angry and sad to describe her feelings post-conference. These feelings were borne from a sense of disappointment that no police officer spoke up during the conference, thereby making it for her a pointless exercise they didn t get it. This lack of dialogue by police was held to be insulting as it stemmed from concerns over money matters and the potential for legal action. Mrs Cody felt that, were the police to have acted with integrity, they would have ignored the advice of their Union and any potential for financial lose and apologised, instead they were only concerned with their own circumstances. Mrs Cody was also of the belief that the exercise by the WA Police was largely a public relations exercise to affect damage control and to give the appearance of having done something for the betterment of the family. Additionally, she had difficult in understanding how the formal disciplinary process for many of the officers could have been conducted without benefit of the family s testimony as to the degree of suffering their actions had inflicted. When asked to give a rating between 0 and 10 as to the value of the conference from her perspective, Mrs Cody rated it a zero. Despite this, Mrs Cody remains a positive person who continues to try to salvage some good from what has occurred. Mr Cieron Cody Brother of Mac Cody, Nephew of Brad Richards Mr Cody shared his mother s (Mrs Cody s) early understanding that the forum in Perth would involve the family members reading out something like a victim impact statement. Although he had various conversations with his uncle, Mr Guy Richards, and with the facilitator, Mr O Connell, about the proceedings, and hence had a generally adequate preparation, he did not have a complete understanding of what was to take place. This extended to not having an itinerary or program of his visit to Perth including not knowing where he was to stay, or who was to pick him up at the airport. Whereas part of the rationale for a restorative justice conference is to enable the victim to gain some measure of control over their life, the lack of such itinerary/timetable was a negative, and he felt at times he was just going along for the ride. Furthermore, he was not prepared for the raked theatre and for the presence of the media, which he found somewhat daunting. Mr Cody s expectations of the conference were that he would be able to: 9

11 defend Mac and Brad and the family because they had all been offended against; educate police as to what they had done; reveal the complexity of the way the family had been affected; and make eye contact with the officers involved to provide them with a greater sense of the reality of the matter by making the situation real for everybody. He described his frustration at not being able to achieve all that he wished to achieve and of the irony and role reversal in having him, a 20 year old, having to explain to 50 experienced police the nature of right from wrong. Mr Cody was of the belief that the Commissioner of Police s attendance and what he had to say illustrated to some extent that he was taking the matter seriously, although he would have liked to have had the opportunity for a private conversation with him at some stage. Mr Cody had mixed feelings about the conference itself in that two officers clearly did not want to be there, and made this known through a rolling of eyes, smirking and through either avoiding eye contact or making fixed stares. In the converse, however, there were those officers who were affected by the event and were tearful and wholly engaged. That the officers did not participate in any dialogue during the conference was a point of great disappointment and anger. At the conclusion of the conference Mr Cody, quite understandably, felt a great relief that it was over, but enraged that those involved had shown no back bone. He felt that this showed that their priorities were not to help the family members achieve some form of emotional resolution, but rather were their under sufferance. This he found inexplicable, in that he thought that they should have been pleased at the opportunity provided to them to make amends. It is noted that a small number of attendees did make some contact after the conference. In considering what the conference had achieved or was for, Mr Cody felt that it had been undertaken to appease the family and to evidence to the media that the police service did have an ethical underpinning. He felt that it had seemed noble on the surface and it was but if it was going to be detrimental to them it wouldn t have happened. There were however, several positives that he took from his participation, including a sense of personal growth, and the opportunity to make eye contact and thereby provide reality to just who the persons were that had been affected by the police actions. In summing up the conference, Mr Cody was of the belief that it had failed in what it had set out to achieve. When asked what he would say to persons placed in a similar circumstance, he stated that he would encourage them to participate, but tempered this by offering that by doing so they would also place themselves in a position where they could be further insulted. In rating the conference from 0 to 10, Mr Cody gave it a zero for its ability to provide him with knowledge as to why the officers did as they did, but gave it a ten in terms of the ability it provided for him to make the circumstances more real and to personify the suffering, and also in acknowledgement that there might be some potential benefit for the officers involved. 10

12 Mr Guy Richards Uncle of Mac Cody, Brother of Brad Richards and Mrs Di Richards, wife of Guy. Mr and Mrs Richards had a well developed understanding of the potential of restorative justice from previous experience and of the benefits that could be derived. Indeed it was Mr Richards who made the request to be able to talk with the police involved. This enabled him to take a more assertive role in some of the planning, although he recounted that at times things that had been agreed upon were not complied with. Nevertheless, this prior knowledge led both Mr and Mrs Richards to have a fairly clear appreciation of what it was that they hoped to achieve from the conference although these differed somewhat. Mr Richards wanted to bring to the conference that his family members who had perished in the Great Sandy Desert were not just names on a page or a report, nor were not just some poor white trash that didn t count, rather, they were very much part of a loving and supportive family. Mrs Richards had a vision for the conference that closely mirrored that of Mrs Cody in that she hoped the conference would demonstrate the impact of the actions; lead to a change of actions by police in the future; and lead to a recognition that existing systems of accountability and process were inadequate. In hindsight, there was an appreciation that perhaps they were unrealistic in their expectations of what could be achieved with police, and that they wanted more from it than it provided. They where however of the firm belief that, had a more usual or standard restorative justice process been involved, more could have been achieved. Mr Richards had difficulty understanding how decisions about how to discipline the officers had been taken. He could not understand either the process or the sanctions that had been imposed. He expressed a view that the situation was akin to 599 people firing a shot, but only the 173 who hit the target being disciplined, and that the further reduction of the transgressors to 50 was a manipulation to limit the damage to the police service. Mr Richards was cognisant that, given the large numbers involved, had a more punitive approach been taken, such as dismissal, there would have been dire consequences for the police service. Mr Richards was critical of a number of aspects of the conference, and made a number of observations, including: The presence of the Commissioner of Police may have restricted the willingness of others to admit their own wrongdoings; The efforts by the Police Service to control and stage manage the event, including media involvement, detracted from the restorative justice process; It would have been preferable for the conference to have been handled and orchestrated by an external provider; The recommendations of the facilitator, such as wanting greater time to prepare the officers before the conference, should have been agreed to. In looking for positives, Mr Richards cited: Pride that Cieron and himself had gone to Perth to have a go and that they had not let the family down through their representations; and The involvement and response from the police cadets in attendance was encouraging. A slightly greater feeling of peace 11

13 In terms of negatives, Mr Richards felt that: The conference had made things worse That it had a better outcome for the police than for the family in that in that it made the police seem more humane by their taking an interest in the family. The advice of the police union for the officers to not actively participate greatly reduced any potential for an outcome that could hope to satisfy the family. From all of the above, a preliminary analysis of the restorative justice conference indicates that there were difficulties arising from: Officers having not attended voluntarily; Mismatched expectations (facilitator s explanation did not match proceedings); Inadequate briefing of participants; Officers perhaps feeling intimidated by the presence of the Commissioner of Police and others (e.g. recruits and observers) The unions direct influence in advising officers to remain silent in order to preserve their legal position; and Involvement of the media Positive aspects of the conference can however be seen in that: The Commissioner of Police responded positively to the request from the family for a conference; The Commissioner of Police willingly exposed himself and the police service to media scrutiny and possible further criticism; The conference was an honest attempt to deal with misconduct by police in a different way; Both the Commissioner of Police and the Police Union are supportive of, and indeed allowing, evaluation of the conference to be undertaken with a view to seeking improvements to processes and outcomes. These positive aspects should not be dismissed lightly as they are indicative of a progressive approach to police misconduct. Conclusion It can be said that usually, there are four possible outcomes to a restorative justice conference: 1. Both victim and offender satisfied; 2. Victim satisfied, but offender not; 3. Offender satisfied, but victim not; and 4. Neither victim nor offender satisfied. While it is clear that number 1 is the preferred outcome, that it was not achieved does not suggest that the event was a failure. Considerable benefits can still accrue from outcomes 2 and 3. 12

14 It is undeniable, as the analysis and discussion clearly shows, that the restorative justice conference from the perspective of the family members, the victims, suffered from a number of shortcomings, such that the intended purpose of the conference was not fully met. It is indeed arguable that what occurred was not a restorative justice exercise at all. Rather, it could be argued that what was witnessed was the delivery of a powerful and emotive victim impact statement by the family of the deceased. However, having raised expectations in the family that the process would be restorative and then not delivered that may have led to a worsening of their state. This is not to suggest that the concept of restorative justice between police as offenders and members of the community as victims should not proceed. Participating in a restorative justice exercise was courageous both by the family of the deceased and the police executive, and had the potential to be therapeutic for all involved. This approach to the management of police misconduct is yet to be evaluated from the separate perspectives of all those involved in addition to the family - members, that is: The Commissioner of Police and his executive team; The Police Union and their legal advisors; As many of the officers involved who are willing to do so; and The facilitator of the restorative justice conference. It is only when these additional perspectives have been gained that an overall picture of the restorative justice conference will emerge. There is particular importance in gaining the perspectives of the Commissioner of Police and of the police union. If the Commissioner of police is not satisfied with the process and outcomes, he may be disinclined to try this form of managerial response in the future. Similarly, if the police union is not satisfied, they may impede its being attempted again. Despite any misgivings to this point, this unusual approach to managing police misconduct has the potential, if undertaken in a correct manner, to become adopted practice in a range of situations in which police may have transgressed. 13

15 References Barton, C. (2001) Theories of restorative justice, Australian Journal of Professional and Applied Ethics, vol 2 no. 1 July Claassen, R. (1996) Restorative Justice: Primary focus on people, not procedures. Centre for Peacemaking and Conflict Studies, Consedine, J. (1993) Restorative justice: Healing the effects of crime, Ploughshares; Lyttelton, NZ. Daly, K. & Hayes, H. (2001) Restorative justice and conferencing in Australia, Trends and Issues No.186; Australia Institute of Criminology. Braithwaite (1989) Crime, shame and reintegration, Cambridge University Press, Melbourne. Braithwaite, J. & Daly, K. (1994) Masculinities, violence and communication, in Just Boys Doing Business, in T. Newburn, E. Stank (Eds) Routledge, London and New York. Kennedy, G. (2004) Royal commission into whether there has been any corrupt or criminal conduct by Western Australian police officers: Final report, State Law Publisher: Perth. McLaughlin, E. and Johansen, A. (2002) A force for change? The prospects for applying restorative justice to citizen complaints against the police in England and Wales, British Journal of Criminology, no. 42 Morrison, B. (2002) Bullying and victimisation in schools: A restorative justice approach, Trends and Issues No.219; Australia Institute of Criminology. Strang, H. (2001) Restorative justice programs in Australia: A report to the Criminology Research Council, at Zehr, H. (1990) Changing Lenses: A New Focus for Crime and Justice, Herald Press, Pennsylvania. 14