The pursuit of problem-solving courts has always been led by the US experience. The Americans as a race tend to be innovative but pragmatic, so it is no surprise that they started problem-solving courts and the philosophy of ‘therapeutic jurisprudence’. This concept represents an accentuation on the extent to which legal rule or practice promotes the psychological and physical wellbeing of a person subject to legal proceedings.
The US model originated as an effort to deal with drug-driven crime and as such entered an area where there was a clearly defined model of intervention. This intervention, because of its structured nature, limited outcome variables and relative ease of monitoring leant itself to a judicial model of application. The initial problem-solving courts had resources made available to them that enabled a direct management of the progress of the individual through the court process. Due to the perceived success of the original courts, other areas such as mental health gave rise to their own problem-solving courts.
Where the contributing factors to a person’s contact with the criminal justice system became more complex, such as mental health, then the models of intervention became more varied and therefore more complicated for the court system to administer. As a result, the latest reviews of these courts suggests that there is less than clear evidence that the courts make a significant effect.
The latest report examining the concept in the British context, Lasting Change or Passing Fad? Problem-Solving Justice in England and Wales, by think tank Policy Exchange (see PP issue 175) makes recommendations which acknowledge that there are some basic structural steps that need to be taken before such courts can be established effectively. There are clear training needs for the judiciary and magistracy. These needs are coupled with the recognition that all the resources provided to agencies need to be brought together physically in order to enable effective cooperation and implementation of intervention.
The report itself acknowledges that where finance enabled the first problem-solving court in Britain to provide a clear model of operation, subsequent courts, where such finance was not available have less clear models. This is not surprising in that the courts will have to draw on existing services and forge new ways of cooperating. This is not an easy task in the face of resource shortage and often already overloaded services.
The situation is compounded by the fact that many service providers are facing difficult financial times and where those services are in the NHS, there is an awareness that money will be a difficult issue over the coming two years at least.
The concept of problem-solving courts depends on the courts being able to manage resources to effect the desired change. Without the resources to manage, or at least call upon as required, the courts will find it difficult to effect the changes they want and may find themselves pushed into the situation where the person before them ends up going down the old pathway to prison or other punitive outcomes.
The concept of problem-solving courts in Britain seems to be tied to the strategy of greater community involvement, which can only make sense if the community has the resources to participate meaningfully in the process. It is true that if the problem-solving court is successful, then the community will benefit, but this might be brought about by a more effective coordination of existing services. There appears to be an assumption that the problem-solving court process will give rise to the local community generating new initiatives or resources to assist the court. This may be true, but there is a suspicion that the US entrepreneurial culture will have responded in a way that it will be difficulty to replicate in Britain.
Like the Corston Report and the Bradley Report, this report requires structural changes to take place and resources to be better coordinated and delivered in a more focused way. At the root, all of them rely on services being available or created. With limited resources available there is competition for there use, and this will become more acute with the danger that the setting up of judicially-driven service use will lead to them being used as ways of getting people into services. Of course, the risk in this is that people may become criminalised where previously they may have been diverted or used services directly.
Overall, the Lasting Change or Passing Fad report attempts to lay the ground work for taking the problem solving-court concept forward. Its recommendations are sensible in terms of recognising that the skill capital of the magistracy needs be built and that the concept needs to be championed, but at root it calls for new facilities which will make the model recognisable in a tangible form in our communities.
Our local courts will need to be seen as places of support, where those that can help are resident and the process of law is concerned with change and integration rather than retribution and separation. To that extent, our local courts will become places that we would seek out rather than avoid. That is a huge cultural change and is unlikely to be cheap.
There are, of course, people who believe that the courts and the law should remain outside the processes of intervention in the community, however, it seems an argument that is unlikely to prevail. It seems that problem-solving courts will not be a fad but they may evolve into something more like a social service.
Director of forensic services and personality disorders at Affinity Healthcare
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