If we are to have a fair court system, how can we be happy with people coming through it not knowing what’s going on

A testing time for fairness

Posted on 10 Sep in

Phil Bowen

In Friday’s Government’s response to the Justice Select Committee’s report on young adults, the Ministry of Justice stated it “has no plans to centrally pilot courts for young adults.” This is a matter that we have been working on for some time— our goal is to help interested local areas to test a new court process that aims to make attending court feel fairer for young adults. This is in part inspired by other jurisdictions, such as New Zealand and the USA, who are already testing better approaches for young adults at court.

Our work on this started when we gathered insight for young adults with recent court experience. We found many of them had a bewildering experience: “in the dock, I couldn’t hear properly. I was locked in a glass cage; “they speak a different language”; that’s why they are above you, because they think they are above us;”don’t’ chat about me while I’m there, it’s rude;” I didn’t understand my sentence; I didn’t know what I was getting.” If we are to have a fair court system, how can we be happy with people coming through it not knowing what’s going on, people feeling they are being treated as guilty before they are found so and not knowing what the sentence is after all is said and done?

When institutions make decisions in our lives, it is obvious to see that our compliance with those decisions is dependent on feeling those decisions have been arrived at fairly. What the evidence on procedural fairness suggests is that we know with certainty the four factors that determine that perception of fairness— (i) an understanding of the decision making process; (ii) feeling respected; (iii) feeling the decision making institution is neutral; and (iv) having a process in which your voice is heard. With all the focus in recent years in court reform going to the closure of buildings, the seeming loss of legal aid and technological innovation, it can be easy to miss the crucial fact that many who go through our courts do not feel they are treated procedurally fairly.

Yet, despite the Ministry’s response on this issue, we see grounds for optimism. The first is that we are now involved in constructive engagement with the court service and the Ministry of Justice to promote the centrality of procedural fairness to a better court system. If we can be successful in that engagement, a more procedurally fair court process for everyone would certainly be a huge result.

The second is the welcome commitment being demonstrated by the National Probation Service (NPS) to ensure that its pre-sentence advice takes into account the needs of specific groups, including young adults. While this alone cannot entirely negate the negative impacts of the court experiences of young adults as they described them to us above, it is a clear sign that the NPS recognises the prevalent evidence underpinning the need for a specific response and is taking action to adapt the part of the process for which it is responsible.

The third, as stated to both the Ministry and to the Justice Select Committee, is that we have long made the case that the testing of a more procedurally fair court process for young adults should be driven locally, and not driven centrally. The model has been developed by 5 local sites independently of centrally Government. The implementation plans have been drawn up without the need for central Government. Even the costs of the evaluation will not fall on central Government. We hope that, with central Government withdrawing from piloting the courts nationally, they will let local innovation bloom. The local innovators who wish to pilot the process just need permission to proceed. The time to test a procedurally fair court process is coming.