Big Judges and Community Justice Courts October 2010 Introduction Clinks is one of four partners in a DG Home Affairs project which seeks to share knowledge and develop thinking regarding the role of sentencers (judges and magistrates) in the management of offenders in the community, either on Community Orders (probation orders) or conditional post-release supervision (parole). Unlike the other European jurisdictions, the arrangements for decisions about conditional release from prison do not involve judges, other than in an advisory capacity. The responsibility for authorising release on post-license supervision lies with civil servants who are subject to the authority of the Parole Unit. In Germany, Austria, and The Netherlands it is the judiciary (often the sentencing judge) that have the authority to conditionally release offenders, and to varying degrees they also have a role in decisions around the management of the supervision period. In England and Wales, the Criminal Justice Act 2003 contained provisions for magistrate s courts to bring back before them offenders sentenced to community orders to review progress made in complying with the requirements of the order. These powers have been used in a variety of socalled specialist courts (drug courts, mentally disordered offenders courts, etc.) as well as courts that handle relatively low level offences (theft, minor drug possession, minor fraud, etc.). New approaches to dealing with low-level offenders The problem-solving courts model originated at the Red Hook Community Justice Centre in New York. In addition to implementing an increased role for sentencers in the management of offenders under supervision, Red Hook Community Justice Centre brought together a range of housing, social welfare, and health agencies (public, voluntary, and private sector) which provided services to address the issues that were contributing to repeat low level offending in the community served by the court. The model was based on an assumption that rapid access to these services, within the context of judicial sentencing, would reduce crime and tackle overall levels of social deprivation. The other key element in the operation of problem-solving courts was the consistent oversight of cases by the same judge, or sentencing panel, which fostered an increased knowledge of the issues impacting on offenders lives, and enhanced expertise in sentence management. There was also clear evidence that offenders responded positively to the regular engagement with sentencers who had heard the original case and imposed the sanctions/requirements contained in the community order. The rates of compliance with community orders increased, apparently, as a result of the motivation provided by genuinely interested and authoritative sentencers.
In many jurisdictions implementing the problem-solving approach there is also evidence of considerable pro-active involvement in cases prior to the initial court appearance. Justice and welfare staff will interview and screen defendants to assess whether they would benefit from access to a range of services and will brief the judge/magistrates before the case comes to court. The sentencer is then in a position to make an informed decision regarding suitability for a low level penalty in the expectation that the defendant will be afforded assistance and advice to help him/her address the problems that have contributed to their offending behaviour. If pre-trial assessment has not been possible, then sentencers will often adjourn cases for short periods to allow for assessments to take place and then hear the cases later in the day. The important feature of these courts is the active participation of the sentencer(s) in the case planning related to the defendant and an interest in the whole person and is not limited to matters of jurisprudence. England and Wales The development of a range of problem-solving courts in England and Wales has gathered pace since 2005. The current models include: Community Justice The first of these was the North Liverpool Community Justice Centre (NLCJC) which opened in 2005. This was followed soon after by the Salford Community Justice Initiative. The NLCJC is the most comprehensively resourced and most closely conforms to the model developed at the Red Hook Community Justice Centre. There are a number of key features of the NLCJC including: 1. a dedicated circuit judge who presides in the overwhelming majority of cases and hears all of the review cases of those offenders placed on community orders. The position was unique in that there was a recruitment process for the post and two members of the local community were included on the interview panel. 2. the community justice centre is sited in a converted school in the local community and was designed to provide office space to co-locate a wide range of court and welfare agency personnel. There is also an adjacent job cafe which delivers a range of services for unemployed people in the local community including those appearing before the NLCJC. 3. as noted previously, there are staff from a number of agencies based at the court and available to deliver assessments and services to defendants appearing before the court. It should be noted that these services are also available to the citizens of the local community as well. 4. court processes have been streamlined to facilitate swift administration of justice in many cases. Again this is supported by the co-location of police, CPS, and court administrators as well as the probation service and Youth Offending Service. 5. there are established mechanisms for the local community to identify the types of crimes and misdemeanours that are causing current concern, as well as providing information about opportunities for useful reparation to the community through the agency of Unpaid Work requirements as part of a community order.
The circuit Judge hears first appearance and remand cases in the morning on most days. These hearings are often used as a kind of triage where defendants can be identified for further assessment and intervention if appropriate. The Judge acts as a kind of case manager by directing defendants to be interviewed by probation or other agency staff who will report back on suitability for additional interventions, either voluntary or as part of a supervision plan in a community order. Cases are frequently adjourned for short periods for this process to take place and the defendant is then brought back for either sentence or for a further adjournment for additional reports/assessments if necessary. The approach taken in the court attempts to involve the defendant as far as possible in attempts to tackle the problems which have contributed to their offending. Many defendants are given fines, or conditional discharges especially if there is evidence that they are willing to take up opportunities to address their problems with drugs, accommodation, etc. On two afternoons each week, as many as 30 offenders are listed to appear before the review court. These individuals have been placed on community orders that may have requirements to undertake drug treatment, perform Unpaid Work, attend group work programmes, etc. They may also have been receiving services to address a range of social welfare issues and family support. The judge has access to reports detailing progress and compliance with the order and a probation staff member is available to provide up-to-date information on the case. The focus of the review is two-fold encompassing compliance with the community order as well as progress made in improving the defendants social circumstances, health, and individual well-being. Because the presiding judge has had oversight of the case from the first court appearance and has been actively involved in constructing the supervision arrangements and interventions, he is well place to acknowledge and applaud progress as well as sanction where appropriate failures to comply with the order. Salford Community Justice Initiative (SCJI) Shortly after launching the NLCJC, the SCJI was opened. This was, however, an attempt to try to achieve a similar approach without the additional resources assigned to NLCJC. Hence, the SCJI is delivered in the same court building as the regular magistrates court, with little opportunity for co-location of staff and services, and without a single judge presiding over the court. This has meant challenges for courts administrators in listing cases in a way that ensures that at least one of the original sentencing magistrates is consistently present at review hearings. Dedicated Drug Courts Dedicated Drug Courts (DDC) were established on a pilot basis in West London and Leeds Magistrates Courts. Leeds DDC was based on a model that had been operating since 2001 and was enhanced for the pilot whereas West London was established in 2005. There are a number of key principles that comprise the DDC model: Specialism - these courts only hear cases involving drug-misusing offenders from conviction through sentence completion Continuity - DDC s attempt to ensure continuity of judge or panel of magistrates throughout the offenders involvement in the case.
Training - sentencers and other court staff receive specific training on working with drug-misusing offenders Processes - processes are designed to ensure that timely and relevant information is available to the court at all times. Partnership - DDC s must ensure that effective multi-disciplinary and multi-agency arrangements are implemented. effective judicial leadership (with particular emphasis on review hearings); strong interdisciplinary collaboration; good team knowledge of addiction, treatment and recovery; clear eligibility criteria and screening; speedy referral to treatment; swift, certain and consistent sanctions and rewards; clear, documented consent of the offender. Additionally, these courts must have available the key legislative measures designated in the Criminal Justice Act 2003 including the Restrictions on Bail, and the provision for testing introduced by the Drugs Act 2005. The objectives of this legislation included: to rehabilitate offenders to achieve a reduction in their offending and drug use, as well as to punish; to increase judiciary and practitioner understanding of patterns in drug use and offending, with the aim of more effectively targeting the interventions and support available through the DDC to achieve reductions in drug use and offending; to gain greater understanding of all offenders and their circumstances as they progressed through their sentences this was to be achieved through consistency of judiciary; to increase offenders motivation to comply with their order and thereby increase the likelihood of reducing drug use and offending; to facilitate partnership working and to encourage a greater shared understanding of what other agencies were trying to do. The importance of continuity of sentencers was reinforced by the Process Evaluation undertaken in both the Leeds and West London Dedicated Drug Courts. This is mirrored by the experience of other drug court initiatives implemented in Canada, the United States, and Scotland. The paper prepared by the Policy Exchange, Lasting Change or Passing Fad, in 2009 identified the following characteristics of problem-solving courts : Enhanced information Community Engagement Collaboration - reaching outside the justice agencies to statutory and voluntary sector agencies.
Accountability - greater accountability of service providers who report back at review hearings. Outcomes - collection and analysis of data to improve performance and provide public accountability. Individualised justice - more nuanced sentenced tailored to the needs of each offender. Mental Health Courts In July, 2009 the government launched two specialist mental health courts in Brighton and Stratford. Although branded as problem-solving courts they do not incorporate the section 178 provisions for sentencer review. They do however, retain specific mental health services to address the needs of offenders appearing before them and the magistrates will have a more comprehensive and timely range of information to assist them to impose the most effective sentence in the circumstances. These courts are not dissimilar to some of the courts already in existence which align themselves with mentally disordered offenders liaison and diversion schemes. At their core, they introduce a skilled and expert screening and assessment service delivered by mental health nurses who have specialist knowledge and links to mental health/forensic services in the locality. Problem-solving in Magistrates Courts (non section 178) In October, 2009, HM Courts Service launched a 6 month pilot project to implement a problemsolving approach in traditional magistrates courts in six Local Criminal Justice Board areas. These pilots were located in both rural and urban areas with the intention of responding to lowlevel offending by recruiting the resources of local community based agencies (primarily voluntary sector) to help address the problems experienced by offenders appearing before them. These would invariably include unstable housing, poverty and debt, substance misuse and problematic family circumstances. Although these courts adopted a problem-solving approach they did not include some key features of community justice courts (i.e. section 178 of the CJA 2003 was not implemented) hence there was no provision for regular review of offenders subject to community supervision, and services were not co-located at the court. However, in addition to re-organising business to more effectively deal with low level offenders, the active recruitment of local voluntary sector organisations represented a new direction for problem-solving courts. The Issues for stakeholders in problem-solving courts Magistrates/Sentencers Problem-solving approaches to dealing with low level offenders require a more therapeutic response from sentencers, and this in turn has training implications. Sentencers are currently provided with resources and support to help them with judicial decisions but problem-solving approaches require additional knowledge and skills not the least being equipped to engage with the defendant in front of them. Additionally, there is scope for raising the awareness and knowledge of the kinds of services that might help defendants to tackle the issues that may drive their offending behaviour, and how best to facilitate access to these services.
Court Clerks/Administration The co-ordination and administration of the court lists to effectively group cases that would benefit from the problem-solving approach is critical. There are also the logistical problems related to attempts to ensure that the same magistrates are available to hear review cases for those defendants that are subject to community orders in courts that have implemented section 178 of the CJ Act 2003. Probation Service The probation service has, of course, had a long history of engagement with courts and the processes that support defendants and offenders in relation to sentencing. The implementation of DTTO s followed by the more recent innovations involving greater judicial involvement in reviewing cases has introduced a greater level of accountability for the probation service. The provision of regular up-dated reports to assist sentencers to review cases on a regular basis has resourcing implications and requires an increased transparency regarding the conduct of supervision of cases. However, where courts are introducing problem-solving without the section 178 requirements, in an effort to meet the needs of low level offenders there is a strategic gain for the service in diverting these offenders away from probation case loads, thus increasing capacity for probation staff to concentrate on higher risk offenders. Voluntary and Community Sector Problem-solving courts, whether implementing section 178 or not, increasingly depend on the availability of services delivered by the voluntary and community sector. In order to effectively undertake this role voluntary sector organisations require training in relation to key criminal justice processes and agencies, as well as appropriate funding to engage with offenders appearing before problem-solving courts. The development of strong operational and strategic relationships between the voluntary sector and key players in the court setting is critical for the long term success of these initiatives. Local Communities The original purpose of problem-solving courts in America was the recovery and regeneration of crime-ridden deprived communities. By giving local citizens a greater voice in how justice was delivered in their communities it was hoped that the impact of low level anti-social behaviour and drug-taking would be reduced and even reversed. The North Liverpool Community Justice Centre embraces community engagement as its core objective and the government s green paper, Engaging Communities in Criminal Justice (April, 2009) referred to the potential of problem-solving courts for enhancing the role of the local community is taking ownership of local criminal justice issues. In North Liverpool, there are arrangements for obtaining the views of the local community in a range of issues including suitable sites for undertaking Community Payback schemes (graffiti removal, churchyard clearance, etc.). They are also given information about the types of offending and offenders that have been dealt with by the court. For this to take place, there needs to be investment in communication arrangements by the local court and police and the community needs to have representative structures to facilitate effective communication.
CPS and defence solicitors Successful implementation of problem-solving courts requires a positive and proactive, and flexible service from CPS and defence lawyers. This includes well-informed decision making about whether to proceed with charges and the scope for negotiating pleas. Plea bargaining is not a feature of British justice but the CPS does have policy relating especially to public interest criteria when deciding on how best to proceed with cases. Information about a defendant s current circumstances and the availability of relevant services to meet their needs and potentially reduce or eliminate the risk of further offending are key factors to take into consideration. Effective triaging and pre-court assessment depends on defence solicitors being knowledgeable and flexible in their approach to representing their clients. Conclusion There is no doubt that the innovations that have been developed in recent years in relation to problem-solving courts and the greater involvement of magistrates and the judiciary in the management of offenders appearing before courts have produced potentially promising results. The key challenge for government is to begin to bring these initiatives together, assess them and scale up those that have proved effective. There will be key questions to address in doing so, not least is the initial cost of some of the approaches. However, these costs are incurred up stream in the criminal justice system and like much effective innovation they will be offset by savings further along in the criminal justice system, primarily in reducing reoffending and in diverting offenders from more costly interventions further down stream. Another key feature of problem-solving courts is the extent to which the local community, and indeed local VCS organisations, are engaged with these processes either as providers or users of these services. The greater transparency and accountability that is inherent in these initiatives has significant implications for raising levels of public confidence in the criminal justice system. Author Malcolm Thomson Policy Advisor, Clinks www.clinks.org
Further Reading Initial Evaluation of Reconviction Rates in Community Justice Initiatives-Jolliffe, D. and Farrington, D.; Ministry of Justice (2009) http://www.justice.gov.uk/community-justice-evaluation.pdf Dedicated Drug Courts-A Process Report, Matrix Knowledge Group; Ministry of Justice (2008) http://www.justice.gov.uk/docs/dedicated-drug-courts.pdf Evaluation of the North Liverpool Community Justice Centre; McKenna,K. Ecotec Research and Consulting (2007) http://www.justice.gov.uk/publications/docs/liverpool-full-report.pdf Welcome Home? Examining the Re-entry Court Concept from a Strengths-based Perspective. Maruna, S. and Lebel, Thomas P. Western Criminology Review (2003) http://wcr.sonoma.edu/v4n2/manuscripts/marunalebel.pdf Review of the effectiveness of specialist courts in other jurisdictions. Plotnikoff, J. and Woolfson, R. Lexicon Limited (2005) http://www.dca.gov.uk/research/2005/3_2005.pdf Lasting Change or Passing Fad? Problem Solving Justice in England and Wales. Ullman, B.(ed), Policy Exchange (2009) http://www.policyexchange.org.uk/publications/publication.cgi?id=131 Diversion-a better way for criminal justice and mental health. Sainsbury Centre for Mental Health (2009) http://www.centreformentalhealth.org.uk/pdfs/diversion.pdf