This week the blog is an extract from Rethinking Judicial Independence, a think piece we published earlier in August. It is written by Blair Gibbs, policy adviser to Lord Chancellor Michael Gove. His thoughts on judicial independence are thoughtful and original:
The recent Article 50 high court ruling, supported by the Supreme Court, is a prominent reminder of the judiciary’s independence. Far below the exalted heights of the senior judiciary, hundreds of ordinary criminal courts process cases every day that rely on the same independence of mind exhibited by magistrates, district judges, and recorders. But what if this independence of mind is not enough to make a court effective? What is the value of independent judges if they operate in a system that makes them increasingly dependent on the decisions of others?
A fair criminal justice system needs independent judges to command public confidence but it also needs the sentences passed by those judges to be effective, and too often they are not because services designed to tackle reoffending are beyond the reach of the court. One innovation, the problem-solving court, provides a solution.
If independence in this context means autonomy, but also implies authority, and with it capability, then traditional judicial actors in English and Welsh criminal courts lack the ability to be truly independent for a number of reasons. Judges now rely less on their individual expertise because sentencing guidelines have ossified into strict rules – limiting their discretion in the name of ‘consistency’.
They are largely ignorant of the impact of their decisions, because they receive no systematic feedback on sentencing outcomes (even though most professions would value this), making them overly reliant on anecdote and the unimaginative advice of overstretched probation officers. And judges have become increasingly subject to the financial decisions of others – either within the bureaucracy of the courts system that manages them, or the ecosystem of the wider justice sector and the probation, health, and drug treatment agencies that are meant to service the court.
Courts today have very poor visibility on the services available in their area and have little or no feedback on the effectiveness of drug or mental health provision, or even whether the defendant has accessed any of these services before. This lack of oversight and ultimately of ownership of the sentences passed in court is a serious limitation on developing judicial professionalism, and a key argument for the problem-solving approach.
This situation is partly the result of conservative judicial attitudes – resisting innovations like problem-solving justice or data analytics that would improve judges’ decision-making and reveal their biases, and partly it is the centralised system they have come to operate within, which does not exist to liberate or empower the judge – quite the opposite. And many of the constraints that exist on judges today are a product of a centralising trend in the last fifty years that has taken place without much public debate.
For many centuries, judges in England enjoyed a special status – our constitutional history meant they were fireproofed from political interference and their local roots gave the judiciary a local connection and the financial autonomy to operate their courts and to pass sentences. But as assizes were abolished and the courts were regularised in the mid-twentieth century, the funding and control by the central state increased, local judicial management was eroded, sentencing policy was nationalised, and financial dependence on government grew.
In other sectors, including health, education, and to some degree policing, this political trend did serve to raise standards and improve consistency, but at the cost of eroding local links and stifling innovation, and the same is true in the courts. Today, the post-war tide of treasury-driven public service reform has just about reached the courts, and it is bringing much needed investment in new infrastructure and technology. But it has not yet unlocked innovation in how the criminal courts are run.
Whereas the family courts have adjusted to public demands for more transparency and a new emphasis on cutting delays in the interests of the child, there has been no similar revolution in the criminal courts, and no sign that one is imminent. And unlike in policing, major investment and modernisation in our criminal courts is happening without a debate about accountability or the right role for government in the funding and management of the system.
In the face of this centralising trend that has eroded true judicial independence, stands the localism of problem-solving courts that take power and authority away from administrators of a system and return it to the judge in court. The long-standing appeal of the problem-solving, or specialist court, is that it puts the judge in the driving seat and US judges like Victoria Pratt in Newark, or Alex Calabrese in Brooklyn, are independent in a whole different way as a result.
The Centre for Justice Innovation has documented the strong evidence that exists for problem-solving courts and they are now an established model in many common law jurisdictions for a minority of criminal cases. Some types of court are more effective than others, but where it exists, the problem-solving model reduces reoffending and has been embraced by the judiciary. The pioneers of this judicial revolution in America have made their courts – institutions like Red Hook in New York – agents of social reform that actively contribute to public safety and community cohesion.
Regrettably, none of these features exist in England and Wales. Our evidence from pilots here is poor because we have trialled them inadequately and in too few places; the evaluation of the flagship pilot in North Liverpool was flawed, so scepticism abounds in Whitehall. This also explains why pilots that were popular locally never sustained themselves because central government funding evaporated when ministerial interest waned.
More fundamentally, many judges have a cultural aversion to the philosophy that a court should take a proactive role beyond the adjudication of guilt, or that a judge should be involved in seeking to tackle offending behaviour by supervising and supporting offenders to change. In England especially, but also elsewhere, there remains much resistance to what some judges have dubbed the ‘social worker’ role, even in the face of the high reoffending rates that persist from traditional sentencing approaches.
It was only the renewed political interest in problem-solving courts of the former Lord Chancellor and justice secretary, Michael Gove, beginning in 2015, which led civil servants to revisit the operating principles of this type of criminal court, the special function it performs, and the role of the judge within it. In considering how such a court could be made to work, the implications go to a wider debate about the judicial role itself and whether to be truly independent, never mind effective, judges should be empowered to become budget holders.
Problem-solving courts need access to a range of services to support offenders, most of whom have multiple complex needs that previous court-ordered disposals have not addressed. In England, however, almost all of these services sit outside of the court and are now funded and commissioned by other central agencies, many with a limited local footprint. Giving these new courts leverage over these services either needs local political leadership from police and crime commissioners to form a coalition of willing sponsors – still an approach that many could and should pursue – or some means of giving the court that role itself.
The obvious risk with new pilots was that they would start out being dependent on many pre-existing contracts that other agencies would have no incentive to adjust to, so as to accommodate the small cohort going through one court. Then the pilot would either win special treatment because it was quickly favoured by local bureaucrats; or it tried to deliver problem-solving within the current arrangements, which were already patchy and inadequate. Therefore, it was critical that new court pilots found a way to plug into local providers, including statutory NHS services, and be given ownership over treatment referrals as part of sentence progression, with clear reports on activity delivered and outcomes achieved. Some degree of financial control for the court would be the clearest way to do that.
The concept is simple: make the judge the budget-holder and by implication, the court would become the commissioner. Offenders opting into the problem-solving court would constitute a small cohort whose criminogenic and healthcare needs would be met by the services that the court paid for.
Each pilot court would control a bespoke budget for such cases and would be free to arrange services that matched their caseload. The judge would have a lever to get services that the court’s clients needed – as determined by probation, but potentially in future by the court itself if they assumed the pre-sentence report role – and could hold not just the offender responsible for attending, but the service providers accountable for their delivery.
The working group established by the Lord Chancellor and Lord Chief Justice briefly explored this idea. However, some members objected to judges becoming commissioners of services. The view was that giving judges a budget would take them beyond their role as impartial adjudicators, and would muddy the distinction between independent judge and service provider. However, the discussion arose from a consensus that problem-solving courts are totally reliant on the soft power of the judge to corral other agencies to provide their services to the court. Would this be enough?
In other jurisdictions like Canada, this arrangement is formalised, or made possible pragmatically by having other agency staff seconded to work at the court and therefore under the influence of the judge that they work alongside, even if they are not formally accountable to them. But that fundamental dependency in our criminal court model has never been addressed here.
So the previous pilots were left to rely on charismatic leadership. This can achieve a great deal, and under Judge Baker in St Albans Crown Court and Judge Fletcher at the original North Liverpool Community Justice Centre, there was this judicial leadership to steer the project and get other agencies to play ball. Where those agencies were not based in the court building – a huge advantage for North Liverpool – they were often within the judge’s purview and felt obligated to provide services to the court’s clients, as requested.
The working group accepted that establishing new problem-solving pilot courts would either need the same serendipitous arrangement of co-located agencies working out of one building (enhancing judicial influence and team spirit) under the leadership of a single, charismatic judge (setting direction and brokering deals), or some other mechanism for binding services into the court so that referrals were predictable and on tap, making treatment and diversion a meaningful part of a sentencing order.
Full co-location in the former scenario was problematic as many courts were closing, and a smaller estate would struggle to accommodate a dedicated pilot court alongside housing a range of other ancillary agencies in the same building. The second approach looked more feasible but it needed a willingness to trial an innovation like judge-owned budgets. If that reform is ever implemented by the current government, this conundrum needs addressing. Without new budgetary levers, judges in the pilot areas could be left with some of the powers to do problem-solving well, but not all of them.
More flexible sentencing powers but the same poor options around treatment could see offenders sentenced by a problem-solving court avoiding a prison sanction, and still not getting the support to address their offending. This scenario would undermine public confidence in the experiment – something which is necessary if problem-solving justice is ever to take hold in England and Wales as it has in America.
Giving selected judges of these problem-solving courts their own budgets would be a way of properly piloting its potential, and it would also be a move against the centralism of courts that has held sway for too long. Rather than being an independent, but largely passive adjudicator, these courts would be built upon active, authoritative judges who are engaged with the lives of the defendants before them.
Such courts cannot function without independent judicial leadership but neither can they be fully effective in a state as centralised as ours unless these judges are set free from the constraints of ordinary court administration and given some control of the money. This proposal was a step too far even for those who could adjust to the radical idea that courts should try and fix problems, not just pass verdicts.
Wider judicial scepticism still needs to be overcome, but if the government wants to tackle reoffending and take forward problem-solving justice in England and Wales, the problem of judicial dependence on monolithic public services needs solving.
