Specialist and problem- solving courts

Over the last decade in particular, the United Kingdom, in common with other jurisdictions such as Canada, the US and Australia, has sought to develop more effective ways of responding to criminal behaviour and social disorder through court reforms designed to address specific manifestations of crime (for selected examples of the broad cross-jurisdictional appeal of criminal court specialisation for example, National Crime Council 2007; Goldberg 2005; Hora and Stalcup 2008; King et al. 2009). Specialist and problem-solving courts operate at the intersection of criminal law and social policy and appear to challenge much of the traditional model of court practice (Berman and Fox 2009). The established roles of lawyers and judges in the judicial process are modified and problemsolving courts often expressly reject a style of practice that could be fitted within a mainstream, rule of law approach to adjudication (Miller 2012). Judges assume an arguably more subjective role in the justice process which encompasses monitoring, evaluating and rewarding offender compliance (Mair and Millings 2011). Judicial power in problem-solving courts has expanded into areas in which sentencers have traditionally provided relatively little oversight: namely, diversion and probation (Miller 2012), while the function of the criminal defence lawyer encompasses ‘team’ co-operation (Kerr et al. 2011). Frequently underpinned by principles of restorative justice or therapeutic jurisprudence, the courts shift their focus from sentencing to a broader problem-solving methodology that is designed to enable sentencers to address the social and personal issues of offenders through an intersection with service frameworks outside the justice system in order to develop more effective solutions to criminal behaviour (Wexler 2010; Chase and Hora 2000). Moreover, problem-solving courts emphasise the importance of ‘community engagement’ with judicial processes (Berman and Fox 2009). For the purposes of clarity, it is important from the outset to define what is meant by court specialisation and to identify the distinction between specialist and problem-solving courts. Problem-solving and specialist courts both address specific types of offences/offenders and are designed to provide a tailored and specific response to particular types of criminality (drug related offences, domestic violence, and so forth). However, while specialist courts appear to operate using a problem-oriented rationale, as we shall see in the pages that

follow, not all specialist courts operate using what would generally be regarded as ‘problem-solving’ principles. Sir Robin Auld, in his Review of Criminal Courts in England and Wales, considered calls for specialist courts in England and Wales, and observed that there is a wide variation in what is understood by the term specialist court (Lord Justice Auld 2001). The Auld Report identified at least three senses in which the term specialist court is used: to refer to courts where specialist knowledge is required because the decision-making requires particular expertise, or where the sentencing regime requires access to specialist support workers; to refer to courts that depart from the traditional adversarial model and focus on a problem-solving approach; and in concentrated listing of particular types of cases (as a matter of convenience). Since the publication of the Auld Report in 2001, and the subsequent creation and development of court specialisation in England and Wales, a significant body of literature now exists that reinforces and extends the Report’s earlier definition of specialist courts (Tata 2013). Hence, specialist courts are not necessarily ‘problem-solving’ in nature, as they may have a narrower remit, with objectives centred upon efficient and consistent dispute resolution (‘fast track’ courts), rather than addressing structural inequalities and neighbourhood concerns.1 They might also not consider rehabilitation as part of their remit. The purpose of specialist courts is generally to enhance the speed and efficiency of court processes and to bring about improved judicial decisionmaking by virtue of the judiciary’s specialist experience, together with greater consistency in sentencing outcomes. The objectives of problem-solving courts are however, much broader. It is now generally accepted that specialist courts possess either limited or exclusive jurisdiction in a specific field of law where the presiding officer has direct expertise in that field (Clinks 2011; Nolan 2002). In the UK and beyond, specialist courts which operate using a problem-solving rationale have aimed, variously, to use the authority of the court to address the underlying problems of individual litigants, the structural problems of the justice system and also the social problems of communities (Miller 2007, 2012). Therefore, specialist or ‘fast-track’ courts should not be confused with courts which are specifically ‘problem-solving’ in nature, although there can be some overlap between the two. This is especially true in England and Wales, where courts such as Specialist Domestic Violence Courts (SDVCs) aim to incorporate aspects of the problemsolving model but currently fail to include certain fundamental elements critical to the problem-solving approach and so cannot be described as genuinely problemsolving in nature (this is discussed more fully in Chapter 4). It is also important to recognise that the notion of ‘problem-solving’ that these courts adopt is not an uncontested term within legal and criminological scholarship. Mae Quinn (2009), amongst others, has argued that ‘problem-solving’ is fundamentally problematic because many courts do not solve the social problems that they originally set out to address. While the vast majority of court specialisation is within the criminal law domain, there are also a limited number of examples to be found within the civil law tradition. For example, the growth of specialised business and commercial

courts has occurred in many jurisdictions in recent years, including England and Wales, Canada, Hong Kong and the US. Specialist business/commercial courts use specialised judges and expedited case management procedures to provide an expert and faster dispute resolution process. The courts are typically ancillary to a larger court and are characterised by a ‘a jurisdiction limited to some, but not all, kinds of business disputes, presided over by only a few specialist judges, with an emphasis on aggressive case management and use of alternative dispute resolution (ADR)’ (Peeples and Nyhein 2008: 35). As described previously, the US has been at the forefront of the development of problem-solving courts. It is important to note that it was judges themselves who were pivotal to the emergence and development of the US problem-solving court movement, and elsewhere the commitment of individual judges to a problem-solving rationale has been identified as critical to the success of problem-solving courts (Nolan 2009). For example, in his analysis of the introduction during the 1980s and 1990s, and subsequent proliferation of US drug courts, Goldkamp notes that the courts:

Were established because of the emergence of a small network of committed officials, judges, administrators, treatment providers, prosecutors, and defenders who shared their experiences and newfound expertise, who travelled to one another’s courts at their own expense to observe or provide assistance.