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Why is it so difficult to embed problem-solving courts in England and Wales?

Penelope Gibbs
24 Jun 2014

My experience in USA has made me ask why it is so difficult to embed problem solving courts in our system.  My thinking has been strengthened by the new book Transforming Criminal Justice? Problem-solving and court specialisation by Jane Donoghue.  Jane is a supporter of problem-solving justice, and of the specialist courts which practice it.  She is despondent about the ability of the English Court System to incorporate problem-solving.  I’d agree, particularly now.  Our current Lord Chancellor seems to have little interest in specialist courts.  There is no civil servant in the main bit of the Ministry of Justice working on specialist court policy and the demise of the West London Drugs Court seemed to go unnoticed by the centre.  I suspect that many of the English specialist courts listed in Jane’s book do not thrive any more.  One of the problems Jane identifies is that of achieving judicial continuity with lay magistrates.  The presence of the same judge is an essential part of problem solving courts.  The specialist courts I saw in Michigan and Washington DC were definitely the fiefdoms of particular judges.  Normally one, or in rare cases two, judges presided over a particular court.  Each judge had their own court team of court recorder, bailiff and PA and they knew the whole practitioner team who worked with that particular group of offenders.  There was no scheduling problem.  The probation officer and court organiser screened suitable cases and they were then dealt with by that one judge.  The hearing sometimes only lasted an hour and a half a week, or every two weeks, but was always in a regular slot.  The only scheduling problem I came across was in Detroit where the judges had committed to do the Homeless court in their own time, which meant covering for each other.

In England and Wales, making the rota work is one of the big headaches.  Lay magistrates do not sit every day.  Some sit very irregularly. Therefore it is definitely not as easy to ensure judicial continuity.  But is it as difficult as sometimes painted?  Many magistrates sit on pretty regular days, or would be happy to if asked.  And a whizzy software programme could surely match magistrates to the specialist courts they wanted to sit in.  I think the problem is partly a cultural one: that many magistrates think  all the most interesting work should be shared out, so everybody does a bit of everything.  Sharing all the work equally is not compatible with specialist courts.  In USA, the judges who want to do specialist courts are allowed to, and there are enough specialisms to go round those who are interested.  In the UK, we would need to accept (at least in the short term) that only a few can sit in the specialist courts, from both district judges and lay magistrates.

Jane Donoghue points out that even in the most basic way we lack judicial continuity.  Magistrates who preside over a trial are unlikely to sentence the offender, should he/she be found guilty.  This is a crazy system, given that the sentencing magistrates have not heard the background to the case and have to sentence simply on what they learn from the pre-sentence report and the lawyers.  US judges I have met would be shocked by this approach.  Again, surely it must be possible to get at least two of the original bench back for sentencing?  I’m with Jane in thinking if we can’t even connect this piece of the jigsaw , we will never achieve problem-solving courts in England and Wales.