1 October 2013
Originally published in The Barrister
The criminal courts of England and Wales do a tough job, ensuring the rights of the public are protected and the guilty are sentenced fairly. But our courts are often seen as conservative institutions, reluctant to embrace change. There is often a perception that it is only Government-led initiatives that can encourage (or provoke) reform. The current administration is already embarking on a significant range of reforms, to legal aid, to the provision of community supervision of offenders, and to the processes of courts themselves. Many of these have not proved to be particularly popular, to put it kindly. At a time like this, it can be hard to see how more change can be contemplated, let alone driven through by the courts themselves.
CAN OUR COURTS BECOME BETTER?
However, a new report by the Centre for Justice Innovation and nef, called ‘Better Courts’, shows that ‘innovators’ across the country — drawn from probation, voluntary providers, judges, defence lawyers and prosecutors—are using their own initiative to make courts better. From resolving criminal cases in community settings and improving the services available for diversion at court, through to enhancing the authority of the court in holding offenders to account, the report shows that our courts can be a place of dynamism and innovation.
But in pointing a way forward, the report also offers a challenge to the legal profession— what role can it play in making the court better? Essentially, the report asks lawyers and judges to adopt a new-way of thinking about the criminal justice system and their role within it. This requires an understanding of two complimentary theories –‘procedural justice’ and ‘problem-solving justice.
Procedural justice is concerned with the fairness of the court process, as opposed to the result of the case itself. If this seems counter-intuitive, that’s because it is. Research has shown that perceptions of fairness actually play a greater role in shaping defendants’ opinions of the court than the outcome of proceedings themselves. This has potentially far-reaching consequences. Studies indicate that “when defendants perceive their treatment to be fair, they are more likely to accept the decisions of the court, comply with court-imposed sanctions, and obey the law in the future.” The Ministry of Justice’s own research report, titled Attitudes to Sentencing and Trust in Justice, recognises the importance of this. It proclaims that ‘fairness’ “may actually be a precondition for an effective justice system – as people’s cooperation and compliance is at least in part dependent on their perceptions of the system’s legitimacy. Fair and respectful treatment of the public helps to secure commitment to the rule of law.” This principle applies just as much to victims and witnesses. If people feel that they are fairly treated, then they are far more likely to engage with the process in future (i.e. report crimes and attend court again).
As for problem-solving justice, this is based around the idea that courts, justice system actors, and communities can work together towards addressing the problems that underpin an individual’s offending behaviour.In part, this approach is borne out of the “the frustration of many front-line judges and lawyers who have vowed not to practice ‘assembly-line justice.’”In other words, problem-solving justice goes back to the heart of why most people choose a career in criminal law in the first place: the desire to make a difference.
Who could object to any of that, you may say. But what does this all mean for the legal profession in practice? Does it imply radical change or can these principles be implemented by the lawyers in court themselves? The simple answer is that the legal profession can make a difference if it is prepared to adapt some of the ways it currently behaves. From studying the report, there are four key ways in which the profession can rise to the challenge.
Firstly, the legal profession needs to embrace its role in promoting procedural justice in addition to ensuring the protection of fundamental due process rights. This has two implications: firstly, defence lawyers and prosecutors should understand that their interactions with parties at court have a very real impact on perceptions of fairness. Things as simple as giving defendants and victims a chance to have their voice heard in court can make a real difference. Secondly, the campaign against the legal aid reforms potentially gains a new argument and a new urgency: that a defendant’s agency in their own case is crucial to them feeling like the system is legitimate. Removing defendant choice, or financially incentivising guilty pleas, and you potentially store up problems for the future.
Secondly, court practitioners need to concentrate on people as well as cases. This requires all participants to improve their understanding of how and why people desist from crime and tailor their responses accordingly. Of course, there is already a certain degree to which offenders receive services via probation, but defence lawyers and prosecutors are regularly presented with cases where little or no service provision is available. This does not have to be the case. A good example of where wider support is available is the Plymouth Community Advice and Support Service (CASS). CASS offers assistance and support to people who attend court, whether it is as victims, defendants or families and friends of those involved in court proceedings. The service assists people with practical issues like benefits claims or outstanding fines, and also enables them to access long-term support which meets their needs – whether it is drug or alcohol treatment, or a community mental health service. It also helps Magistrates to understand the circumstances of offenders prior to sentencing, and in some cases can avoid delaying cases by providing a rapid alternative to a pre-sentence report. There is a clear opportunity for prosecution and defence barristers to be more proactive in identifying suitable cases for this type of voluntary advice and encouraging judges to take this course. This offers the prospect of not only serving clients better but helping them move away from a criminal career.
It is not just individual lawyers in individual cases who can take this principle to heart. Groups of lawyers can also organise to make a difference. In another of the case studies, a project in New York City called Bronx Community Solutions, along with a local Bar organisation called Bronx Defenders, played a crucial role in ensuring that defendants received the support that they needed post-conviction. Initially sceptical that the project would ‘up-tariff’offenders who received short term jail or conditional discharges, Bronx Defenders have become strong advocates of the project’s at-court assistance, which can help their clients work out how to best move away from crime. In fact, this project ended up doubling the use of community-based sanctions and cutting the use of incarceration by a third.
Thirdly, the authority of the court needs to be strengthened. In particular, the more that courts continue to hold offenders to account after sentence, the greater the impact appears to be on reoffending rates. In Hawaii’s HOPE probation programme, for example, judges give offenders explicit instructions as to what will happen if they fail to comply with court orders, and then there is swift enforcement action when breaches occur. Admittedly, there is a tension here between the desire to act with authority and the discretion required to meet the circumstances of an individual case. However, the HOPE program has achieved sizeable results. A randomised study, which compared offenders on the HOPE programmed with those assigned regular probation, found that they were 55% less likely to be arrested for a further offence and 72% less likely to use drugs.
Lastly, justice needs to be delivered more swiftly. It took our courts an average of 139 days to take a case from date of offence to date of completion. Evidence shows that delays between the offence and completion of a case undermines the effectiveness of sentence in the eyes of both victims and offenders. In an innovative pilot run by West Yorkshire Probation Trust, courts defer full probation assessments until after sentence; judges set the punitive elements as usual but simply give a broad indication of the intensity of the order. This alleviates delays and can better meet the needs of offenders. As a result, the first 10 months of the initiative saw 2,162 fewer adjournments and 332 less breaches. This has an obvious benefit for prosecutors and defence lawyers in freeing up court time
Through acting with fairness, authority, swiftness, and focusing on the individual, courts can more fully embrace their position as public institutions and the role they have to play in reducing crime. Moreover, these reforms potentially benefit everyone with a stake in criminal justice. They present ways that defence lawyers can best serve the interest of their clients by advocating for fairer treatment and more workable outcomes. They enable prosecutors to ensure that the views of victims are better taken into account. They equip judges with the tools and resources to tailor responses more appropriately to the needs of the individual. They reduce inefficiency and delay, allowing lawyers to devote their time to the cases and clients that require it most.
Admittedly, there are limitations to what can be achieved by court innovation alone. But many of these proposals require little more than practitioners being open to new ways of thinking, signposting defendants towards appropriate services, and being willing to work collaboratively together. It may not actually take much more than this to kick-start considerable change. As the essayist Adam Gopnik observed when writing about what caused the remarkable fall in crime in New York City over the past twenty years: “the truth is, a series of small actions and events ended up eliminating a problem that seemed to hang over everything. There was no miracle cure, just the intercession of a thousand small sanities.”