ABSTRACT
Practices that might loosely or informally be characterised as ‘problem-solving’ in nature have been evident in the work of magistrates in England and Wales for many years, for example in the exercise of their discretion, the speeches that they give on sentencing and the way that they engage with offenders in the lower court system. However, as many magistrates have observed, the notion of problem-solving has come to feature much more prominently in the business of the courts in recent years. Attempts have been made to formalise and extend existing practices, to situate them with specialist courts and to prioritise community engagement by firmly placing magistrates at the ‘centre of their communities’ (Ministry of Justice 2013b). In this regard, we have observed the way that the judicial role is altered in problem-solving courts. In the traditional role, judicial decision-making is grounded in adherence to precedent and the court’s historical development of fact, while the ‘transformed’ or ‘enhanced’ judicial function in problem-solving courts is intended to reorient the judicial role (Miller 2009). Judges subsequently participate in more subjective processes of evaluating and monitoring offenders; they function as a member of the problemsolving court ‘team’ through collaborative meetings and discussions with other agencies; and they are expected to try to establish more meaningful interactions with offenders, as well as participating in processes which will enhance community engagement with the courts. One of the most fundamental problems associated with the development of problem-solving justice has been the potential impact of the enhanced judicial role upon judicial independence. Judicial independence is a fundamental tenet of the rule of law as part of the system of accountability that ensures that no branch of government dominates, and independence as a separate branch of government is essential if courts are to discharge their responsibility impartially. Consequently, achieving an optimal balance between judicial independence and accountability and thus ensuring that judges are autonomous when interpreting and applying the law but also that judges are not so detached as to undermine public confidence in the courts, has been a perennial policy struggle (Department for Constitutional Affairs 2005a, 2005b; Cabinet Office 2009). The enhanced judicial role in problem-solving courts requires both increased and less formal levels of interaction between judges and offenders, as well as judicial collaboration with other
government agencies and the broader community, all of which have the potential to impact upon judicial independence. That judges should apply the law impartially to all is at the forefront of these concerns. As one magistrate pointed out to me: ‘The oath makes it quite clear . . . “to do right to all manner of people . . . according to the laws and usages of the realm”. I think that phrase defines accurately the role and function of the judiciary’. However, it is possible to remain devoted to the principles of unbiased, detached adjudication conducted by third party neutrals while at the same time valuing decision-makers who understand community issues and who are engaged in substantive processes of ‘truth seeking’ through engagement with local communities. Community engagement need not undermine judicial independence and indeed, it should be seen as a fundamental aspect of magistrates’ competences, in their role as representatives of the communities that they serve. Being clear about what community engagement can and cannot achieve, as well as setting clear boundaries about the purpose(s) of engagement activities is important in managing resident expectations and guarding against judicial conflicts of interest however. While problem-solving courts have proliferated over the last two decades, advocates have pressed further for broader acceptance and integration of problem-solving justice in criminal case processing (Becker and Corrigan 2003). Although court specialisation in England and Wales began under New Labour and was then further developed throughout the Labour administration’s terms in office, the coalition Government has since committed to embedding a problemsolving approach in the magistrates’ courts while emphasising the value and importance of enhanced community engagement with the courts as a vehicle to facilitate problem-solving objectives. Similarly, the Magistrates’ Association has identified the development of a mainstreamed problem-solving approach as a strategic priority for the lower courts. The creation of specialist courts and a streamlined problem-solving approach in magistrates’ courts can be understood as a response to a range of institutional gaps in the adequate provision of welfare services that have been partly responsible for the ‘revolving door’ phenomena of the presence of repeat offenders in the lower courts. Court specialisation and problem-solving justice hold promise as (initially) short/medium term initiatives to harness social cohesion and community resilience by more effectively responding to local dimensions of crime and disorder. Consequently, over the last 15 years, a range of problem-solving court types have been introduced: drug courts, domestic violence courts, community courts and mental health courts. Yet as we have seen, although demonstrating potential, these efforts have not been wholly successful. Each has associated challenges. One of the central criticisms that has been made of drug courts in England is that intermediate sanctions are not available to sentencers in the same way that they are commonly deployed in other jurisdictions. As a consequence, this has largely circumscribed the effectiveness of English drug courts, because instead they operate more to facilitate the existence of what approximates an extended probation order. It is likely that a combination of sanctions and rewards are more likely to influence behaviour than an approach which relies only on the
revocation of a community sentence and termination of treatment programmes as a type of ‘all or nothing’ approach. Intermediate sanctions could potentially be introduced by extending existing legislative proposals which introduce short penalties for supervision orders. Moreover, drug courts in England and Wales do not oversee prolific offenders. This undoubtedly has implications for selectivity in sentencing, as well as more fundamental concerns about the provision and allocation of treatment. Domestic violence courts in England have failed to demonstrate measurable impacts in re-offending, although new locally conceived and locally driven innovations continue to emerge and there is also developing interest in the creation of Family Drug and Alcohol Courts. However, SDVCs are not really problem-solving courts. They cannot be said to operate as true problem-solving courts since they lack some of the distinctive features of the problem-solving approach, most notably, sentencer continuity. One of the main problems identified with the development of community courts and justice centres has been that they have been implemented centrally and, in the case of North Liverpool, as a stand alone pilot example of a community justice centre. In conversations that I have had with practitioners, the LCJC has sadly been described by some as ‘a spectacular failure’. Yet the failure is most perceptibly a consequence of its inability to ameliorate practice and generate data quickly enough to ensure its continued survival. Given the problems associated with its evaluation as well as some of the difficulties associated with the implementation of community engagement into the Centre’s processes, the forthcoming study of the Plymouth community justice centre will be very important. This will hopefully be able to provide specific information on ‘best practice’ to inform the development of community justice centres and courts. Finally, the roll out of a national programme of mental health courts, while largely supported by magistrates and criminal justice professionals, is circumscribed by a number of political and economic dimensions, including limited resources and lack of empirical evidence to support going to scale. While financial cutbacks to criminal justice and court budgets have reduced the ambit of local justice through the closure of magistrates’ courts, there have also been innovative responses from local communities. Somewhat ironically, the introduction of NJPs has in part occurred as a response to the closure of magistrates’ courthouses, and in this way, they may offer another opportunity or an alternative avenue for the delivery of local justice which is potentially cheaper – and potentially more effective, than the formal court system. The possibility of magistrates providing an oversight and accountability mechanism in the operation of NJPs, in a similar way to how they may provide retrospective scrutiny for out of court disposals, appears to be the most likely involvement that they will undertake in these new forums. NJPs are an important new criminal justice innovation with a realistic prospect of reducing resource demands on the police as well as potentially reducing recidivism, particularly for low-level offenders. However, some thought must be given to how they are conceptualised within the existing system of summary justice. Much less likely to materialise, is the wholesale introduction of pre-sentence RJ. This is not particularly a consequence of a
lack of support for RJ, although some magistrates are indeed sceptical, it is an issue of training. Without the provision of training and guidance (both to bring magistrates’ attention to its introduction as well as to help provide information about how it will work in practice), pre-sentencing RJ will not occur. The very limited amount of money that is currently available to fund magistrates’ training, as well as the centralised nature of the courts’ administration, means that without serious effort made to prioritise training and guidance, pre-sentencing RJ will likely be limited to those courts (and those magistrates) who take a special and pro-active interest in restorative practices.
