Why is punishment not more effective? Why do we have such high re-offending rates? How can we address the problem of courts seeing the same offenders time and time again? How can we deal with crime and criminals in a more costeffective manner? These are some of the questions that are commonly asked about the day-to-day workings and outcomes of the criminal justice system. From the perspective of the general public, they want to know why the government is not tackling crime, and particularly repeat offenders, more effectively. Buttressed by media representations of crime which tend to report the most salacious, violent and high profile cases, and which reproduce discourses of a ‘failing’ criminal justice system wherein criminals are released early from prison into neighbourhoods to repeatedly re-offend, the public report concerns about fear of crime, violent crime, and about the inadequacy of effective sentences for repeat offenders. Politicians, concerned both by the social and financial costs of an ineffective approach to crime as well as its implications for their electoral appeal, increasingly place a primacy on the use of interventions that are able to statistically demonstrate reductions in rates of re-offending and which can be shown to be cost-effective, particularly in the current climate of austerity and criminal justice budget cutbacks. Crime is an issue that is high on the public and political agenda. Yet in Britain and across much of Europe, Canada and North America, crime rates have been falling consistently since the mid-1990s. The most recent government statistics published in July 2013 show that crime in England and Wales has fallen by 9 per cent over the past year, putting the crime rate at its lowest level since the Crime Survey for England and Wales (formerly the British Crime Survey) began in 1981 (ONS 2013).1 Police-recorded crime figures also continue to show year-on-year reductions and the latest figures for England and Wales are 38 per cent lower than 2002-2003 (Home Office 2013).2 While the problems inherent in the interpretation and use of official crime figures are well established (Skogan 1974; Maguire 2012) and the re-categorisation of crime and changes in police practice over the last two decades, including in the use of out of court disposals, mean that such figures must be treated with some caution, nonetheless evidence from numerous empirical studies reinforce the downward trend in the overall rate of crime, both nationally and internationally (Tseloni et al. 2010;
IEP 2013; Perreault 2013). While the factors behind falling crime rates in Britain are complex, evidence suggests that education, labour market policies, increased spending on police resources, as well as improved security technology such as car and burglar alarms, are among the reasons for the trend in falling rates of property theft and violent crime (van Dijk et al. 2012; Draca et al. 2011).3 In particular, high income inequality and low educational opportunities have emerged as central in explaining the causes of crime (Machin et al. 2011; Machin and Meghir 2004). Internationally, there is also a lack of consensus on the main drivers for the drop in crime, although one of the most persuasive analyses suggests that substantive changes in the quantity and quality of security have been crucial to reductions in crime (Farrell et al. 2011). However, despite evidence of falling crime rates in Britain, public perception of crime levels is often inaccurate (Duffy et al. 2008); fear of crime remains significant (Farrall et al. 2009; Brunton-Smith and Sturgis 2011); and recidivism levels, particularly for low-level offenders, are consistently high (Ministry of Justice 2013). In part (although not exclusively) a consequence of media discourses on crime, the general public are often reluctant to accept that crime is falling and tend to display inconsistency in their attitudes towards crime and justice, especially in the areas of sentencing, prison and preventative measures (Hough et al. 2013; Hough and Roberts 2012; Jewkes 2010). Interestingly, the public generally have more confidence in how crime is managed locally than nationally. As such a ‘perception gap’ exists between how safe they believe their own locales to be relative to the country as a whole (Duffy et al. 2008). It is also important not to overlook that street crime, violence and anti-social behaviour are more likely to be found in areas of poverty and concentrated multiple deprivation (Millie et al. 2005). People who live in high crime areas are more likely to be victims of crime but they also suffer the effects of criminality, including fear of crime, disproportionately and more acutely. While overall crime rates have been declining, nonetheless there remain pockets of the country characterised by social exclusion, deprivation, poverty and significant levels of criminality. There is strong evidence to suggest that high crime environments detrimentally affect families and children and lead to individuals withdrawing and isolating themselves from the neighbourhood in which they live (Ellen 2012; Shapland and Hall 2007). One salient factor in the drop in overall crime has been major government investment in criminal justice over the last decade. Unfortunately, this level of investment has had very little impact upon recidivism levels. In England and Wales, rates of re-offending are high with around half of all crime being committed by repeat offenders. The latest government statistics show a one-year proven re-offending rate of 26.9 per cent which is a rise of 0.4 per cent compared to the previous year and only a 1 per cent fall in points since 2000 (Ministry of Justice 2013a). Thus, although the number of people entering the criminal justice system is falling, a ‘hard core’ group continue to re-offend at a significant rate. In the year up to 2011, more than 400 000 crimes were committed by those who had previously broken the law. For those sentenced to less than 12 months’
imprisonment, 58.5 per cent had re-offended within 12 months of their release up to September 2011, which is a 1.2 percentage points increase on the previous year. High recidivism levels are problematic for politicians; not only because they suggest that the criminal justice system is failing to deter criminals and reduce victimisation but also because of the very significant cost associated with repeat offending. In England and Wales, the most recent official estimates suggest that re-offending costs the government between £9.5 and £13 billion annually. High levels of recidivist offending are also represented in criminal justice statistics internationally. For example, Canada, the US and Australia all continue to demonstrate significant rates of re-offending despite overall drops in their respective crime rates (Statistics Canada 2012; Pew Center on the States 2011; SCRGSP 2012). As a consequence, the problem of recidivist offenders in particular has attracted much media, public, academic and political attention. This has prompted consideration and debate about a number of important overlapping issues relating to re-offending, such as levels of state investment in welfare (Young 2007; Mooney and Neal 2010); the public/private delivery of treatment and support services (Mills et al. 2011); criminal justice approaches to and conceptualisations of rehabilitation (Maruna 2011; Hudson 2003; Garland 2001); concern about ‘meaningful’ and ‘productive’ punishment (Broome 2012; Lacey and Pickard 2012; Husak 2011); the status of the victim in the criminal justice process (Sanders and Jones 2007; Ashworth and Redmayne 2005); the impact of high incarceration levels on local neighbourhoods (Sampson and Loeffler 2010); reform of sentencing and court practices (Ashworth 2013); and the applicability and value of non-adversarial innovations such as restorative justice (Shapland et al. 2006). In recent years, the notion of problem-solving justice has emerged in response to these fundamental concerns. Problem-solving justice embodies the notion that the criminal justice system should do more than simply process cases through the courts: a problem-solving approach prioritises efforts to change the behaviour of offenders; provide better support and aid to victims; and improve public safety in neighbourhoods (Berman and Fox 2009). The concept of problemsolving justice has received increasing attention in criminal justice over the last decade. It is a term that is now routinely used by criminal justice professionals, it is deployed in political discourse, and it also features in numerous policy documents and official government publications in the United Kingdom, the United States and beyond. Problem-solving justice largely originated in America during the 1990s and its use and influence has continued to spread globally, incorporating a range of new innovations and practices including local justice centres and, most famously, problem-solving courts such as drug courts and domestic violence courts. As a theoretical concept, problem-solving justice can be located within the broader sphere of community justice. Community justice is an umbrella term used to describe innovations and policies which operate with community objectives at their core, such as improvements in safety or crime prevention, social cohesion and urban renewal. Examples of community justice
initiatives include community policing, community probation, community conferencing, mentoring and community courts. While problem-solving justice has also begun to proliferate in other jurisdictions such as Australia, Canada and the Netherlands, the problem-solving model is most developed in America. In fact, such has been the rapid growth of problem-solving justice in the US, that some scholars have even predicted that problem-solving principles will soon become the norm in every court (Hora 2011, 2009). Indeed, in the US, serious efforts have been made to assist with the embedding of problem-solving principles into mainstream traditional courts (ABACJ 2008; Casey 2006; Rottman and Casey 2005; Wolf 2009a, 2007; NLADA 2003; Clarke and Neuhard 2005). A growing body of literature suggests that US court specialisation has resulted in increased engagement between citizens and the courts, improved perceptions of neighbourhood safety, greater accountability for low level ‘quality-of-life’ offenders, speedier and more meaningful case resolutions, and cost savings (see for example, Wolf 2007; Henry and Kralstein 2011). In other jurisdictions too, such as Australia, Canada and the United Kingdom, the growth of court specialisation has led to the ‘fusion’ of court and welfare systems, and a developing welfare role for the courts (Freiberg 2003; King 2009; McIvor 2010; Holland 2011). The primary focus of this book is to consider recent developments in problem-solving justice and court specialisation in England and Wales and to contextualise these innovations more broadly in relation to the growing international movement towards the incorporation of problem-solving practices and principles within criminal justice frameworks. Although there are a range of problem-solving models, which vary in their implementation across and within jurisdictions, there are common fundamental objectives which are characteristic of these different approaches, especially in terms of diversion from custody (at least initially) and their aims of reduced rates of recidivism. Problem-solving justice is still in its infancy in England and Wales; yet it is much more developed as a criminal justice approach in other international jurisdictions, most notably in the US.4 Although not directly comparable, existing literature on problemsolving and court specialisation in other jurisdictions provides useful material and emerging areas of interest and critique that may inform the development and evaluation of specialist courts and problem-solving oriented approaches in England and Wales. It is important to preface this by acknowledging that a body of scholarship has identified some of the difficulties inherent in criminal justice policy transfer (for example see Stenson and Edwards 2004). Moreover, as Tim Newburn’s (2002) comparative empirical research on Britain and the US has demonstrated, in those cases where there has been significant US criminal justice policy influence, the outcomes have continued to display a number of specifically British features. National and local politics and cultures exert considerable influence on policy development and implementation. As we shall see in the pages that follow, although US-led reforms in the domain of problem-solving justice have been instrumental to the development of problem-solving and court specialisation in
England and Wales, the influence of local/national cultures (legal, political, social) has been reflected in the way that problem-solving justice has been constructed, framed and is now operating within the criminal justice system here. The international literature also serves to highlight important critical perspectives on the problem-solving justice movement. These incorporate multiple vignettes of critique, spanning legal, criminological and practice-based analyses. Understood in their particular jurisdictional context, these different critical commentaries are both relevant and potentially helpful in informing and ameliorating the emergence and development of problem-solving practices and innovations in England and Wales. Increased awareness of documented problems (both practice and ideological) elsewhere may go some way towards encouraging efforts to ensure that these issues are not replicated, or in any event that there is at least some recognition and engagement with the dynamics of the problem-solving approach. It is also worth noting that, as Paul Holland (2011) has usefully observed in a recent article, problem-solving proponents in the US have acknowledged the limitations of previous/earlier attempts at and models of courts specialisation, and have ‘internalized’ and been responsive to these issues and controversies, paying particular attention to the development of court specialisation cognisant of previous failures and lack of open discourse. Greater engagement with literature identifying the difficulties in the problem-solving approach does not necessarily mean therefore that its potential utility is undermined or its value eroded – rather, it suggests that problem-solving is an innovation which can be pragmatically reformed and that it can be responsive to the demands of legal ethics and court praxis. Finally, an important observation made by problem-solving justice advocates in England (see Bowen and Whitehead 2013) has been that there now exists a large body of empirical evidence in the form of evaluations of problem-solving innovations in the US which have contributed to an improved understanding of ‘what works’ in which circumstances, and for what categories of offenders, specifically in the US problem-solving domain. Although this should not be taken to mean that there is now a clear and definitive linear corollary that can be used to guarantee the effectiveness of problem-solving innovations, in the US there is nonetheless undoubtedly a more granular understanding of how problem-solving justice operates, and the circumstances in which it can be effective. In England and Wales, we are yet to develop and identify a specific evidence base with which to inform criminal justice developments in this arena. Much of the current discussion around court innovation and reform tends to coalesce around the technical aspects of court operations and the limitations that they pose for progressive reform. However, although barriers to innovation certainly do exist, we should not understand these as insurmountable constraints. By harnessing existing support within the courts and criminal justice system for new innovation and by committing to the production and analysis of appropriate and targeted empirical evidence which evaluates the factors contributing to/limiting success, we will be able to form a more rounded, complete and principled position on how we situate a
problem-solving justice rationale within the criminal justice landscape in England and Wales.