Procedural Fairness

Originally published in the Criminal Law and Justice Weekly

Phil Bowen


A trip to court, whether as a defendant, a victim or a witness, is rarely a positive experience. Of course, the very reasons that citizens must appear in court – to file a small claims case, to respond to a criminal charge, to resolve a child care case or to seek redress in an employment tribunal – are rarely pleasant ones. But busy court lists and the need to communicate complex, legal information as quickly as possible (sometimes to non-English speakers), can further undermine people’s perceptions that they have been treated fairly. Anyone who spends any time in court knows that people often leave frustrated, upset and confused.


In a recent policy briefing for the Criminal Justice Alliance, co-authored with my colleague at the American Center for Court Innovation, we argue that this should concern all of who work in courts. It should concern us not just because it suggests that people don’t feel they got a fair deal but also because we know that, if they had, it is likely to make a significant difference. Research on procedural fairness, the theory that it is not enough to be fair but that citizens must perceive that the process is fair, suggests that where they do feel fairly treated, huge gains are realised. Compliance with court orders, such as a court summons, goes up; and re-offending, even among the most violent offenders, goes down. The same is true for victims – victims who feel their views and concerns are ignored are less likely to be witnesses again and likely to make that view known to others in a similar situation.


There is a great deal magistrates can do to improve perceptions of fairness. Personal interactions at court play a significant role in shaping procedural fairness. Promising practices in enhanced interpersonal communication include a combination of behavioural and environmental changes. Behavioural changes can include having judges provide an overview of how decisions are made at the beginning of each court session and swapping legal jargon for plain language throughout each court appearance. Indeed, and unsurprisingly, the judge’s role in effective communication in the courtroom is particularly important in driving perceptions of procedural fairness.


The use by judges of paraphrasing is a particularly powerful tool to enhance understanding and demonstrate respect – both having defendants repeat back their understanding of next steps and the court’s expectations, as well as the judge repeating back what they understood the defendant’s concerns to be. Judges can rephrase yes/no questions such as “Do you understand?” (common-place in courts but known to trigger false positives) with open-ended questions that are more likely to generate honest answers, such as, “What questions do you have?” These interactions between judge and defendant or judge and witness don’t necessarily take any longer than current practice, but they have significant impacts down the road. Simpler, more subtle practices such as making eye contact and addressing defendants by name can work to improving perceptions of respect. Research has shown that when these techniques of judicial engagement are used, defendants are more likely to rate their experiences favourably and to comply with the court’s orders.


In addition, the majority of communication in a given case occurs between the person appearing in court and the court staff. Therefore, the quality of these inter-personal communications can have a significant impact on how people perceive the process. Promising techniques include practices like clearly explaining court etiquette, using a respectful tone when interacting with citizens, and providing written resources that anticipate and address frequently asked questions. Strategies may also include scripting a set of opening remarks that outline the purpose of court proceedings, courtroom rules, and other useful information.


Taking these practical steps have implications for magistrates courts. It may mean that they need to spend more time, not less, speaking with defendants in open court. It may mean that magistrates’ training should reflect effective practice in courtroom communication. The rise in the number of cases in which defendants represent themselves, already a contentious issue, becomes even more acute when considered from the perspective of procedural fairness. How can they come away thinking they have been fairly treated if they have not felt they have the time and space to properly prepare? This focus on perceptions of fairness may also make us reconsider what court efficiency really means— is it really efficient to speed through cases to meet nationally imposed timeliness, if the result is people coming out of court with less faith in the justice system than when they came in to it?

Taking procedural fairness seriously it does require the court service and the judiciary to accept an additional duty beyond the simple need to ensure legal due process. The research suggests that their efforts would b