Phil Bowen
The public has long recognised that the courts are good at guaranteeing everyone gets a fair hearing. Over the past decade, the public have consistently said that they have confidence that the criminal justice system treats accused persons fairly. This has often been contrasted with the public’s low confidence in the system’s effectiveness, causing various Home and Justice secretaries to gnash their teeth, demanding sentences get progressively more punitive and the ‘system’ bucks up its ideas.
But recent research in the USA and in the UK has shown that perceptions of fairness are more significant in shaping public attitudes of the justice system than perceptions of effectiveness. This work suggests that when people are, or perceive they will be, treated fairly, they are more likely to obey the law because they see it as a legitimate source of control.
As recent Ministry of Justice research puts it: ‘Fair and respectful handling of people, treating them with dignity, and listening to what they have to say, all emerge as significant predictors of … preparedness to cooperate with legal authorities and comply with the law.’
This ‘procedural’ fairness is not just relevant for defendants – when victims feel they are not treated fairly, especially when they feel their views are ignored, they are less likely to be witnesses again and likely to make that view known to their friends. Improving perceptions of fairness may be the best way to improve perceptions of effectiveness.
The potential effect in court
How would a new focus on procedural fairness change practice in our courts? For one, it indicates we should be especially interested in ensuring all those who attend court feel treated fairly. Researchers have identified several critical dimensions: (1) voice (has the court user’s side of the story been heard?); (2) respect (have the judge, lawyers, and court staff treated them with respect?); (3) neutrality (is the decision making process seen as unbiased and trustworthy?); (4) understanding (can court users comprehend the language used in court and the decisions made?); and (5) helpfulness (are court actors seen as interested in court users’ personal situations to the extent that the law allows?). Work by the Center for Court Innovation, a US not-for-profit, for example, has converted this into practice, training court officials and judges in a number of jurisdictions in better courtroom communication.
It is not just in courtroom communication that fairness can be implemented. There is evidence that providing opportunities for offenders to come back to court and discuss with a judge how they are doing on a community sentence can, in certain types of cases, reduce the number of breaches and reduce future offending. While judicial monitoring or sentencer supervision is already used for drug rehabilitation requirements, the last five years of research in this area has sharpened our understanding of what works. Firstly, we know now that the relationship of the offender with the judge in those reviews is the most powerful determinant of the defendant’s perceptions of fairness. To ensure a perception of fairness over time, it indicates that the same sentencer is present at each review. In the review itself, the defendant should have an opportunity to explain themselves but the court should also use its authority to set and maintain clear rules by which the defendant’s progress will be judged. Secondly, these rules of thumb, long evidenced in their use in drug courts, now have hard evidence behind them for their use in domestic violence cases and even low-level nuisance offences.
Lastly, procedural fairness suggests that efforts to improve the assessment and sentencing of offenders has not only an instrumental utility but a normative one. The growing number of courts which have at court liaison and diversion services, for example, not only help improve the court’s ability to sentence more accurately but can help promote the perception that the court understands the people as well as the cases it sees. Similarly, understanding the significance of the relationships that court users have, such as with families and friends, and ensuring sentences take regard of them, can demonstrate that courts demonstrate understanding of offenders’ lives.
These practical steps have implications for magistrates. 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. It may mean that they prioritise sitting in sentencer reviews on a consistent schedule, to ensure ‘their’ cases are brought back to them, as already happens in the drug court at West London. To be sure, how to influence perceptions is always a tricky business. But if we want people to respect the law, it is clear that the law needs to respect them.
This article appeared in the Magistrate Magazine's Summer issue 2013