Problem-solving courts: hope over despair

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Neither a recurring legal fashion trend, nor weird transplant from across the Atlantic, UK problem-solving courts have a long and transformative history, writes Phil Bowen

‘Reforms are like London buses; it really doesn’t matter if you miss one because there’ll be another one along in a minute.’ This apocryphal quote, attributed to a senior civil servant, came to mind when the government announced that it will trial New York-style problem-solving criminal courts (The Guardian, ‘Ministers to pilot New York-style courts in reforms to sentencing’, 16 September 2020).

We have been here before. In 2003, we had the establishment of the North Liverpool Community Justice Centre, an attempt to replicate one model of New York-style problem-solving court, the Red Hook Community Court. In 2015, the then Lord Chancellor, Michael Gove, set up a judicial working party to study the adoption of problem-solving courts. In 2016, the then Lord Chancellor, Liz Truss and Lord Chief Justice Thomas, said that they want to ‘explore the use of innovative “problem-solving” criminal courts’.

So, readers with long memories can be excused from feeling a sense of déjà vu. Problem-solving courts can seem like a recurring fashion trend, something that Lord Chancellors like to try on for size but ultimately never quite stick with. A less cynical way of looking at this pattern, though, is to dig beneath it and explain why this call for problem-solving courts keeps on recurring. For behind this repeated call is the persistent hope that there can be solutions to recurring problems; that there can be keys to overcoming the seeming inevitability of high re-offending rates by repeat and prolific offenders; that there can be antidotes to the pessimism felt right across the whole justice system at the pointlessness of short custodial sentences; that there are cures for the suffering of offenders trapped in an endless cycle of deprivation and punishment.

For it is when these waves of hope gather momentum – waves that are often depressed by darker and more cynical forces – that problem-solving courts re-emerge. The call for problem-solving courts is, therefore, indirectly the rejection of a pessimistic view of a justice system in which the revolving door of imprisonment is an inevitable, unalterable and grim fact of life. The call for problem-solving courts is, at one and the same time, the expression of our hope in redemption and a protest against the despair that our policymaking can feel all too locked in.

Part of that hope is buoyed by the evidence base. In 2016, I co-authored a comprehensive literature review on the various different types of problem-solving court and the evidence of their efficacy. What this review stressed, above all, was two things: first, that problem-solving courts are not one thing – they are a wide and diverse family of court models with shared characteristics. Secondly, that the evidence of their efficacy was wide-ranging but highly contingent. For example, we know that in the USA, in Canada, in Australia and now in Northern Ireland, substance misuse courts for adults have been shown to work. Yet take those principles and apply them, for example, to young people who use cannabis and you get a backfire effect: it makes them more, not less likely to offend. In this crucial way, problem-solving courts are like almost every other social science intervention: their efficacy needs to be tailored to those to whom its principles are applied, and the context matters.

But, perhaps more importantly than the evidence, what also nourishes the hope attached to problem-solving courts is its extant practice in our courts. They are not, as periodically presented, weird transplants from across the Atlantic that we may choose to have or not. Problem-solving exists and, arguably, has existed in our justice system for quite some time. Reflecting on the common, familial features of problem-solving courts, we can see that the creation of Youth Courts in England and Wales in the Children Act 1908 was an early example of a problem-solving court: specialising around a particular group and trying to create a fairer environment. In a similar way, across the border, the creation and adoption of Children’s Hearings in Scotland in 1968 with a problem-solving ethos at its centre, taking a ‘holistic approach to care and justice, in which the child’s best interests are the paramount consideration… children and young people who offend, as well as those who require care and protection, should equally be considered “children in need”.’

In the late 1990s, the piloting of drug treatment and testing orders, which were then re-named and made available to all courts in the drug rehabilitation requirement of the Criminal Justice Act 2003, was inspired by the new problem-solving evidence base emerging from the USA. It included new elements of practice such as regular court hearings, where probationers would come back before judges for monitoring. In the late 2000s, the creation of family treatment court, the London Family Drug and Alcohol Court (FDAC), in Wells Street, was yet another example where problem-solving evolved in the UK.

More recently, there has been a further flowering of problem-solving: the creation of problem-solving courts to tackle the specific needs of vulnerable female offenders at risk of custody in Manchester and Aberdeen, the creation of a substance misuse court in Belfast in 2018 and, in 2019, the announcement of funding for the expansion of FDACs to yet more areas.

With that history in mind, the latest government announcement is really simply the latest landmark on a journey that was started long ago in the UK. Yet it’s a landmark with real importance. It signals significant advances in our use of problem-solving in our courts. For example, there is an acknowledgement that previous attempts to trial the drug court model in our adult criminal courts have hitherto been half-baked. We know now, for example, that the mechanisms by which drug courts across the world have delivered reductions in re-offending are through both legal leverage (the idea that the alternative to treatment is significant custodial time) and through ensuring there is a strong relationship between the judge and the service user that is consistent and continuous for the life of the order. We have not trialled that here before: we will do so now.

Similarly, for the first time, the government is prepared to see whether we can replicate the increases in victim satisfaction and safety that has been observed in problem-solving domestic violence courts elsewhere. And, in an announcement earlier in the year, the government announced its commitment to pilot an integrated domestic abuse court, still another type of problem-solving court.

So, in a white paper that many felt was too tilted toward the punitive and penal, the trialling of new, different types of problem-solving courts is a cause for having hope again (A Smarter Approach to Sentencing CP 292). To be sure, the promise to pilot these approaches is not a comprehensive remedy for the continued use of short custodial sentences. Like any intervention in recidivism, if problem-solving courts can reduce the harm caused by re-offending by a few statistically significant percentage points, that’s a win but not a reason to be satisfied. And it is also the case that the problem-solving commitment sits alongside other, more hopeful proposals, not least the further re-integration and strengthening of the probation service, callously dismembered by the coalition government.

Yet, for those who see the re-announcement of problem-solving courts as simply one more turn of the wheel, I would also, finally, point to their performative role in provoking wider system change. In New York State, the closing of the brutal and inhumane jail on Rikers Island would not be happening if not for the wide set of community based innovations and reforms, of which problem-solving courts are a part, which have shown policymakers, practitioners and the public that continued, pointless incarceration is not a fact of life, but a choice. So, the call for more problem-solving courts is a call to renew our commitment to overcome the conditions that require them. In short, this latest embrace of problem-solving contains the necessary ingredient of hope that can form part of the cure to the monotonous despair which colours way too much of our mainstream criminal justice system today. 

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Phil Bowen

Phil Bowen is Director of the Centre for Justice Innovation. Prior to this, Phil spent the majority of his career in the Civil Service. He worked for the Home Office and Ministry of Justice, before working at HM Treasury and Cabinet Office as a delivery adviser to the Prime Minister on criminal justice reform.