Handbook on Restorative justice programmes

6.2 The use of police, prosecutorial and
judicial discretion
Many well-designed restorative justice programmes are not implemented
to their full potential and remain marginal because they have not suc-
ceeded in attracting sufficient referrals from the justice system. In fact, it
is precisely for that reason that some programmes had to be abandoned
completely or fundamentally restructured. Achieving referrals has been
the “Achilles’ heel of almost all restorative justice schemes”.
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This is
often because the programme proponents have neglected to take into
account the key role of discretionary powers of various elements of the
criminal justice system. 
In many countries, prosecutors are the main sources of referrals to
restorative justice programmes. However, the level of discretionary pow-
ers enjoyed by prosecutors with respect to a decision to prosecute varies
amongst legal systems, depending in large part on whether these decisions
are to be guided by the principle of legality (mandatory prosecution),
which creates an obligation for the prosecutor to prosecute and consider-
ably limits the discretion of the prosecutor, or the principle of opportu-
nity/opportuneness which allows for some discretionary decision making.
The principle of legality does not always make it impossible to divert some
cases, but in the absence of legislation, it sometimes makes it difficult to
divert a case to a restorative justice programme before the case has
reached the court.
In Thailand, the introduction of restorative justice practices into the juve-
nile justice system has been made possible by a provision in the Juvenile
Procedure Act which allows the prosecutors to drop a charge if the director
of the juvenile training centre recommends it. The provision, however,
had never been used until the Department of Juvenile Observation and
Protection introduced a diversion programme based on a restorative
process. The Family Group and Community Conference was thus intro-
duced for first time.
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Often programmes are built on the basis of a misguided assumption that
“if we build it, they come”. However, programmes are generally only suc-
cessful if attention has been given to developing strong and clear referral