This paper is the second in a series authored by our research team evaluating the Choices and Consequences (C2) and Prolific Intensive (PI) programmes. It is not necessary to go into detail about how the programmes work because this was done comprehensively in a 2014 report by the pioneering judge,1 and was later summarised in our recent 2020 research.2 However, to provide context, we will provide some core information below.
C2 and PI have been operating in two police forces in the English counties of Herefordshire and Bedfordshire since 2007 and 2011 respectively.3 They tackle root causes of reoffending (in most instances, addiction) amongst people who, keen to reform, have a long history of prolific burglary.4 The schemes are based on the following condition: if service-users fully disclose to the police all of their previous offending history (including unsolved crimes), in return, they can stay out of prison so long as they as they comply with the provisions of a (usually three year) Community Order under section 148 of the Criminal Justice Act 2003.5 Provisions may include “Buddi”6 and/or sobriety electronic tagging, regular drug and alcohol testing, education programmes, restorative justice, counselling, and/or alcohol and other drugs recovery programmes. Regardless of specific needs, all cases necessitate intermittent problem-solving court attendance.7
The deal offered to candidates enables unsolved crimes to be solved and comes into play when sentencing is deferred and the offender is released into the community.8 Significantly, breach of the Order (including failure to engage in rehabilitation) risks enforcement of the original sentence inclusive of crimes previously undetected.9 As such, given the prolificacy of the offending histories (many are three strike burglars automatically liable for three years imprisonment in accordance with sections 111(1) and (2) of the Powers of Criminal Courts (Sentencing) Act 2000),10 non-compliance of the order is likely to result in a fairly long custodial sentence.11 Theoretically, threat of sentence resurrection incentivises service-users to comply with (rehabilitative and other) conditions and deters new crimes from being committed, in turn reducing reoffending. By increasing the likelihood of new offences coming to light, the programme is thought to increase the certainty and celerity of being caught.12 Both programmes are highly localised and resource intensive, requiring considerable effort for all of those on the ground, including: the police, probation service, wraparound services, and judges. This means that they take just a small cohort of candidates at any one time.
The schemes sit under the auspices of the more dominant and well-known Integrated Offender Management (IOM) model of England and Wales, which provide an ‘enhanced level of surveillance and control to a range of different types of offender, while also providing rehabilitation for those who are willing to accept help.’13 However, what distinguishes C2 and PI from the standard IOM programme is the problem-solving court element (which tends not to be part of wider IOM schemes). This is considered the bedrock of the programmes, hosted in a Crown Court by a judge.14 It is this aspect of the programme that will be explored throughout this research paper.
“Problem-solving court” is an umbrella term applied to any specialist court that makes a collaborative effort to cater for specific needs that have been evidenced to provoke and sustain recidivism.15 The most famous members are: domestic violence, women only, community, veteran, mental health, family drug and alcohol, and drug courts, all of which tackle different areas.16 A plethora of literature, mostly of international origin, details their successes.17 The most heavily evaluated model is the drug court, which was created in response to Miami’s congested criminal justice system caused by the crack cocaine epidemic in the late 1980s.18 Coupling the then-emerging suite of research linking drug addiction to crime with their own experiences of repeatedly processing the same offending individuals, judges observed that repressive justice disposals (such as incarceration) could only provide short-term results. Innovatively, embryonically, and experimentally they setup a court trajectory that combined therapeutic treatment with criminal justice measures using their uniquely situated power and status in the justice system.19 The drug courts would act as a pathfinder to long-term change by tackling underlying addictive behaviours whilst diverting people away from the overburdened justice system more permanently.20 A key part of this involves judges recasting their role in the courtroom from neutral arbitrator of law to one more similar to a therapist whilst retaining their powers to resentence upon breach. Part of this entails linking candidates to relevant services whilst striking up meaningful relationships with them by communicating in styles exhibiting empathy.21 Now rolled out across the US and the globe more widely,22 the evidence-base depicts good results for drug courts globally in terms of its main and peripheral aims.23
Whilst the problem-solving court movement evolved without any particular philosophical underpinning in mind (based mostly on the intuition and best practice of judges), it soon required a theoretical framework to support its radical departure away from mainstream jurisprudence24 and began to operate under the auspices of therapeutic jurisprudence.25 The therapeutic jurisprudence literature rationalises that legal rules, procedures, roles, as well as the law itself have therapeutic and anti-therapeutic effects on stakeholders, whether intentional or not, ‘know it or not, like it or not’.26 Its scholarship has examined how we can apply the law in a way that enhances rehabilitative, remedial and restorative outcomes.27 As the success of the problem-solving court movement grew, therapeutic jurisprudence scholarly work enriched the courts’ practical features, resulting in a symbiotic relationship. The therapeutic jurisprudence community – comprising academics, practitioners, and policymakers – now offers an arsenal of matured and actively researched guiding principles to aid delivery of court innovation programmes.28 Returning to the inception of the courts, judicial motivation to launch new models has become a recurring theme for jurisdictions facing pressures and deficiencies including the UK.29 Like the international problem-solving court movement, inception of C2 and PI was galvanised by judges’ observations of the shortcomings of the justice system for reoffending cohorts.30 This means that despite the current repertoire of practice, their origins tend to be piecemeal, spurred by judges’ first-hand experiences of the shortcomings of the system.31
As will be shown, the narrative around the successes of problem-solving courts in England and Wales is different to the international picture.32 This may in part link to the fact that research for the UK problem-solving courts, not least C2 and PI, is scant.33 This gap led the Probation Reform Programme (an arm of the Ministry of Justice) to commission the last project to our team. It saw us tasked not only with helping to plug the identified research gap, but also to diagnose barriers preventing long-term success and comment on areas of good practice to conclude on prospects of replicability in the broader geographical landscape.
The current paper draws out our original aims, but this time developing an untapped theme from our dataset: the significance of judicial leadership (and the consequences if this were lacking). This paper’s findings are intended to have practical rather than theoretical uses. We observe that court innovation relies heavily upon strong leadership from a linchpin judge. The fact that C2 and PI have always benefitted from ample and ongoing support from competent judges have made them a success. However, this is a double-edged sword and could pose problems for the longevity of the schemes. First, long-term sustainability depends upon continual recruitment of judges willing to chair the problem-solving court; this requires luck in finding a person with the amenable personal capital (such as experiences, norms, values, and belief systems) that are consistent with the ethos model. New start-ups, which further require additional support and approval from the senior judiciary, will rely on the same factor being present further up the hierarchy. Second and relatedly, success requires a judge with a personality that can engage, motivate, and encourage service-user compliance and recovery, which is not necessarily malleable through training, and is thus luck contingent. We suggest that the best chance of breaking down these barriers in the longer-term is a wholesale cultural shift in UK penal models. We begin suggesting ways this can be done, including reducing the chasm between the national and international contexts.
2 The evidence so far
2.1 Policy and research: the UK statistics
England and Wales face persistent problems with recidivism. The latest statistics suggest that adult and youth offenders recidivate at a rate of 29.3% overall.34 Adults released from custodial sentences of less than twelve months reoffend at a rate of 62.2%.35 Proven reoffending rates have fluctuated between 26% and 28% since 2003. Nevertheless, there has been an overall decline in England and Wales’s crime rates since 2007.36 The fact that crime rates have fallen whilst reoffending rates climb makes recividists an interesting, albeit frustrating, cohort for policymakers, legislators, and government ministers. The realities of these statistics present serious issues and problems for society: for victims (who fall ill to this behaviour), wider communities (which become increasingly dangerous), legal practitioners (who have to continually deal with this issue) and, of course, justice involved individuals themselves (who are being let down by a failing system). It raises questions such as: who are these individuals, what causes them to reoffend, and what can be done to support them to lead crime free lives?
A body of national and international research links criminal activity to drug use.37 The UK literature suggests that around three-quarters of people in the criminal justice system have substance abuse problems38 and approximately 60% of individuals arrested for most crimes test positive for illegal drugs under the Misuse of Drugs Act 1971.39 More specifically, research shows that a large number of acquisitive crimes (such as: shoplifting, burglary, vehicle crime and robbery) are linked to addiction.40 Evidence also suggests that 81% of arrestees using heroin and/or crack at least once a week reported committing an acquisitive offence within the previous 12 months (compared with 30% of other arrestees).41
UK statistical data show that there are gaps and deficiencies in regular sentencing models, a fact that is known to officials. In their latest response to the problem, the government released the 2020 ‘White Paper: a smarter approach to sentencing.,42 where it pledged to:
…bring forward plans to pilot problem-solving courts, which will incorporate a number of evidenced problem-solving components such as regular judicial monitoring and the use of graduated sanction and incentives, for offenders with a high level of needs and often prolific offending behaviour. We intend to pilot these problem-solving court models in up to five courts.43
This statement appears sanguine for the future of British problem-solving courts. It further suggests that implementation will be in line with international understandings. However, the White Paper does not acknowledge that England and Wales have a chequered history in this field.44
In the 2000s, problem-solving courts in England and Wales appeared to have a strong place going forward. At the forefront were the six jettisoned drug courts, operated by magistrates and established as pilots by the Ministry of Justice from 2005 to 2008 as an attempt to mirror successful US frameworks.45 However, over the course of 5 years, they slowly petered out with little explanation or justification.46 Recent research found that conflicting priorities at state level (such as centralisation, privatisation, and austerity measures) overpowered the possibility for authentic practice.47 However, this is not just true of the drug courts; two English and Welsh community courts were established and fell by the wayside within the same timeframe.48 The most prominent example here was Liverpool Community Court, which was overseen by a district judge (Judge Fletcher) in a Justice Centre in Merseyside. Although no research has expressly considered causes for its downfall, available information suggests that this could be linked to the departure of the charismatic judge, Judge Fletcher, combined with similar uncompromising political forces at state level.49 The departure away from what had once seemed like a strong trajectory in the 2000s was perplexing and unexpected, particularly so for international advocates with a keen interest given the successes delivered in their own jurisdictions.
However, there have also been some trailblazing pockets of success for England and Wales in this field. The Centre for Justice Innovation50 recently published a national map to demonstrate where innovative criminal justice practice is being carried out.51 This includes the fifteen English family drug and alcohol courts (FDAC), which – like similar programmes – are operated by charismatic judges. However, unlike similar programmes in England and Wales, FDAC has benefitted from high-profile research demonstrating success, a recent £15 million private reinvestment scheme to prevent them from being closed down, as well as expansion following their pilot period. These courts have also received special support from the Centre for Justice Innovation, leading the centre to be awarded the Family Law Community Interaction Award in recognition for their input.52 However, the fact that FDAC’s journey has been rocky, with closedowns a near miss saved by independent financial bodies, furthers the argument that problem-solving courts have faced formidable challenges in England and Wales, even in their most successful and visible models.
Looking elsewhere in the England and Wales problem-solving court landscape, Manchester Magistrates’ Court hosts a respective female and male problem-solving court as part of the broader drug rehabilitation requirement under sections 210 and 211 of the Criminal Justice Act 2003.53 Recent research has appraised the strong leadership of the magistrates,54 though prior to 2021 there had been no empirical evaluation for the men’s court, which seemed to be operating in a bubble away from the national radar.55 Across the UK, the centre’s map of innovation points to other positive research outcomes within the youth justice problem-solving field.56 Thus, successes in England and Wales in this area have been inconsistent with many schemes benefitting only from intermittent support.57 It is against this backdrop that the ground-breaking work of the C2 and PI programmes (established around the same time) is highlighted, not least in terms of durability, where our research suggests that this could be due to the enthusiasm and competence on the part of local judges. This context also makes the publication of the recent White Paper 202058 particularly interesting.
2.2 Choices and Consequences (C2) and Prolific Intensive (PI): literature review
Until recently, C2 and PI were relatively unknown both nationally and internationally.59 Lack of evaluation is linked to their lack of visibility, although it is unclear whether lack of visibility has caused or is a consequence of the research gap. Either way, this points to lack of national understanding of the programmes. As previously stated, in 2014, Judge Baker provided a detailed overview of the sentencing process from the first-hand perspective of a working judge (and its pioneer), bringing some national publicity to the schemes, though not enough for them to be considered well-known.60
Elsewhere, a closed-accessed report from the Hertfordshire County Community Safety Unit quantitatively evaluated the extent to which key programme objectives had been met between 2007 to 2016 against tight measures of “hard” successes (such as recidivism and resentencing). However, only a small sample of 90 cases were analysed (itself reflective of the small number of partaking candidates).61 Whilst this research reported a 75% reduction in offences for that period, a large proportion of individuals had had their sentence revoked (78%)62 suggesting that results against rigid success measures were mixed. Unfortunately, we were unable to obtain more current data from the Justice Data Lab to update the evidence base using these benchmarks. Furthermore, peripheral successes were not captured by the measurements, thus giving little indication of the impact that the programme may be having on “soft” outcomes (e.g., relationships, homelessness, reduction (rather than complete cessation) of drug use, and employment).
Elsewhere, there is an unpublished process evaluation from 2015 carried out by a research team from Leicester University.63 They indicated that a number of areas posed problems: a lack of brand identity, general strategy, and long-term goals; absence of guiding coalition amongst the multi-disciplinary services resulting in an “us and them” mentality between the police and probation services and; a blurring of roles causing confusion as to what each role of the practitioner entails.64 An analysis of these data through the lens of Kotter’s theory of organisational change concluded that synthesising a multidisciplinary team may be difficult when each organisation brings with it is own occupational norms and values.65 Notably, when identifying barriers for success, we did not identify the same areas as problematic.66
Finally and most recently, our 2020 research sought to understand both facilitators and barriers to success to consider the possibility of wider implementation of C2 and PI in the English and Welsh probation landscape.67 Through thematic analysis, six key themes emerged from our data: the need to reframe programme outcomes towards alternative measures of success (beyond rigid reoffending statistics); intensity of resources; communication and partnership working; personalising support; deterrence and; relationships between service-users and practitioners.68 Our data suggested that there is considerable potential for rollout of this programme to other areas of the UK, which could have wide-ranging impacts, including reduced reoffending amongst drug addicted offenders, as well as creating therapeutic pathways for individuals seeking to make positive life changes.69 We also identified a further theme that was not explored in that paper: the significance of the judge in the problem-solving court on guaranteeing these successes. As such and in line with our previous research aims, we will consider the positive aspects of this key feature as well as whether there may be barriers replicating or sustaining it.
To summarise, despite the schemes being in operation for a considerable amount of time, there is still little understanding about them from a research perspective with much of the available evaluative data either unseen or hard to access. Since no literature for C2 or PI has paid special attention to the judge in the problem-solving court (in itself surprising given it is a distinguishing characteristic), this article plugs that gap by focusing exclusively on this component.
The scholarly work of therapeutic jurisprudence informs this paper’s evaluative framework. Although its fame was heightened through its affiliation with problem-solving courts throughout the 1990s, the therapeutic jurisprudence movement has been assigned new usages during its expansion.70 In terms of its application to research methods and methodology,71 the two-tiered ‘liquid’ and ‘bottle’ analytical framework is widely adopted, which can be used as a mechanism to explore the therapeutic proficiency and potential of legal settings. The ‘liquid’ element refers to the quality of practitioners’ techniques, skills, skillsets, and methods of engagement, where insights are garnered by the cognitive behavioural sciences, including psychology, procedural justice, criminology, motivational interviewing, and social work.72 The ‘bottle’ refers to wider structural factors such as: policy, organisational strategy, and legislation, which are harder to manipulate than is the ‘liquid’ element.73
Within this broader framework, we specifically use mixed and multi methods to collect data. The findings gleaned from all methodological vantage points are presented at ‘liquid’ and ‘bottle’ levels using the lens and language of therapeutic jurisprudence to understand our data.74 First, we conducted semi-structured (qualitative) interviews with service-users, senior officials, and a variety of practitioners. The sample totalled 26 people and they were engaged through opportunistic and snowball sampling as follows. Following approval from the HMPPS National Research Committee, we recruited practitioners by contacting senior staff in the police and probation services via email. They acted as key intermediaries and provided us with contact details for the relevant practitioners, which enabled us to organise mutually suitable interview dates. Following our court observations, where we met some staff in person, we were able to identify and liaise with other practitioners willing to participate. Early interviews were conducted face to face in confidential spaces at probation offices, police stations or in the court, whilst later interviews took place over the phone. We recruited service users primarily through their probation officers, who introduced us and organised dates, times, and venues for the interviews. Interviews lasted between thirty minutes to an hour and a half. All interviewees gave informed consent to participate, and interviews were recorded with permission and then transcribed. The breakdown of participants was as follows including two current judges and one retired judge:
- Site 1 (C2): practitioners: 6; service users: 7.
- Site 2 (PI): practitioners: 7; service users: 3.
For practitioners, we asked about how the project is implemented and administered, what works well and less well. Interviews with this group also explored how the project facilitates certain types of working, such as partnership working or desistance focused practice. The interviews with service users concentrated on their experiences of being referred to the project, benefits they have gained, and how they experienced being supervised by the court.
During the second phase of data collection, a researcher overtly undertook visual observations (both structured and unstructured) from the courtroom public gallery. At this level we focused on the interactions and behaviour of the judges. The structured part of the observations involved a quantitative method by implementing a series of standardised scales for empirically measuring therapeutic jurisprudence ‘liquid’ within problem-solving court jurisdictions. The tool has three scales comprising eighteen variables entitled: harnessing therapeutic support, engaging therapeutic dialogue, and inspiring therapeutic change.75 These eighteen variables were arranged on a standardised protocol, filled in by the researcher for every case, structuring courtroom observations through a quantitative Likert measurement of 1–5, resulting in numerical data that warranted quantitative analysis. We did this by calculating the mean of scores given to each the eighteen variables across all cases to provide an overall statistical average of how well the judge had scored across each of these benchmarks. This could give us mean results for the three respective skills. For more detail on the how and why the eighteen variables are organised on the three dominant skills in this way, please refer to the relevant paper, which used the statistical analyses of principal component analysis and Cronbach’s alpha to validate the intercorrelations between the variables.76 In addition, unstructured notes were taken during the observations by the researcher of qualitative variety, which substantiated the statistics using triangulation analysis. Results from qualitative (unstructured) and quantitative (structured) observations are presented in Tables 1, 2 and 3.
|HARNESSING THERAPEUTIC SUPPORT (SKILL 1)|
|COLUMN A||COLUMN B||COLUMN C|
|SUBSKILLS||QUANTITATIVE SCORE||QUALITATIVE DATA|
|The judge takes a holistic approach by considering service-users’ broader life circumstances||4.6 (therapeutic)||
“Have you made that appointment to see the doctor?”.
“I think this links to your negative thoughts”.
“You did well last month considering your circumstances”.
“I appreciate that you have an exceptionally difficult background and going into a programme with a stringent set of rules is difficult”.
Observations by research team:
Emphatic references to the service user’s partner as a factor in recovery. Strongly suggested that he should reconsider his partner’s role in his life.
|The judge is realistic about drug and/or alcohol problems||4 (therapeutic)||
“I understand that this isn’t easy at all”.
“Don’t beat yourself up”.
“Occasional relapses are expected”.
“It has been a very difficult month”.
“Be emotionally and mentally ready for those bumps in the road and don’t see it as a total disaster if you do make a mistake”.
Observations by research team:
The judge changed the curfew to allow for the attendance of rehabilitation groups.
|The judge has hope and faith that service-user will make progress||2.6 (non-therapeutic)||
“It will remain difficult, but you can do it”.
“This is a very good start”
|The judge listens to the point of view of service-user||3.6 (therapeutic)||
“Is there anything else that you would like to raise with me?”.
“I am pleased that you have been more open with the team. I know that you find it difficult but look at the difference it’s made to you”.
|The judge praises the service-user when they are doing well||4 (therapeutic)||
“I am extremely encouraged to see this”.
“Congratulations on an excellent month”.
“That is an incredible achievement”.
“I am really impressed”.
|The judge is personable and empathetic||4.5 (therapeutic)||
“You look a lot better”.
“I am very proud of you”.
“We are here for you”.
“I was concerned about you last time”.
“You repeatedly put yourself in positions of vulnerability”.
|The judge reiterates goals so that they are clear||4.6 (therapeutic)||
“Call if you can’t remember your goals”.
“Remember to write me a letter and engage with probation”.
“Please remember to consult the community rehabilitation company”.
Observations by research team:
The judge was very clear on the goal setting part of the review and emphasised goals that were felt to be particularly important.
|The judge motivates service-user||3.5 (therapeutic)||
“Keep doing what you are doing”.
“You need to push yourself to do well”.
“Keep it up”.
“I hope this is the first of many”.
“I am pleased with your work – just keep going”.
|Overall score:||3.95 (therapeutic)|
|ENGAGING THERAPEUTIC DIALOGUE (SKILL 2)|
|COLUMN A||COLUMN B||COLUMN C|
|SUBSKILLS||QUANTITATIVE SCORE||QUALITATIVE DATA|
|The judge empowers service-user during conversation||3.8||
“I urge you to continue to progress over the next month”.
“I know you want that as well”
“I believe you can do this”
“You need to make that choice”.
Observations by research team:
The judge would hand some responsibility for goal setting over to the service-user.
|The judge spoke slowly, clearly, and loudly||4 (therapeutic)||
Observations by research
The judge slowed down when the service-user asked for clarity.
The judge spoke using clear English.
The service-user stood closer in proximity to the judge enabling them to hear clearly.
|The judge does not rush or interrupt when service-user is speaking||4.1 (therapeutic)||
Observations by research
The judge makes eye contact.
The judge encouraged participation from the service-user.
|The judge is sincere||4.3 (therapeutic)||
“I am glad it is going well”.
“You need to speak to your doctor about that”.
“The court’s sympathy will not last beyond another breach”.
“You haven’t given me cause for optimism… Prove me wrong”.
“Otherwise it will have to be a custodial sentence”
Observations by research team:
They clearly were having a sincere conversation after a bad month with the service-user saying, “anything you want, judge” when setting new goals.
|The judge is attentive when service-user is speaking||4.3 (therapeutic)||
“I completely understand”.
“That is a very good idea”.
“That is exactly what we need to hear”.
Observations by research team:
The judge would look up from the written report when the service-user was talking.
Judge nods to show understanding.
|Overall score:||4.1 (therapeutic)|
|INSPIRING THERAPEUTIC CHANGE (SKILL 3)|
|COLUMN A||COLUMN B||COLUMN C|
|SUBSKILLS||QUANTITATIVE SCORE||QUALITATIVE DATA|
|The judge allows participant to ask questions||4.4 (therapeutic)||
Observations by research
The judge would check if there were any remaining questions before finishing the review.
The judge invites questions from service-user to be directed at any member of the team.
|The judge is realistic when we set my goals for next review||4 (therapeutic)||
“Pay your rent arrears”.
“Engage with your courses”.
“If you don’t get the job, don’t lose heart”.
Observations by research team:
There was an understanding that progress will be slow, and so goals were set incrementally.
|The judge helps build upon strengths||3.4 (therapeutic)||
“Please continue to engage with the support”.
“I think it will be helpful for you to demonstrate a week free from alcohol and drugs”.
Observations by research
The judge frequently encourages them to see the positives and highlights things they can be proud of about their behaviour and progress.
Various outcomes were explored to encourage (name) to consider how to manage them.
|The judge makes service-user feel positive about the future||3.2 (therapeutic)||
“I am very pleased that you got onto the programme”
“This is a very good report”
“Let’s leave this on a positive”.
“Good luck for the next one”.
“I am encouraged by the progress over the last few weeks”.
|Overall score:||3.75 (therapeutic)|
4 Analysis and findings for the therapeutic jurisprudence “liquid”
Our participants considered the problem-solving court as the backbone of the schemes, which led us to conclude previously that ‘this aspect of the programme should remain front and centre going forward.’77 We have a significant amount of unpublished data to nuance and substantiate the finding, of which some key quotations are sampled below.
It still keeps him motivated; it still gives him his little virtual pat on the back from the judge saying, ‘you’re doing this and look how your life has changed.’ That means the world to them.78
It’s a good interactive environment. It is still very much, ‘oh, I’m going to court, so I have to be on my best behaviour’. I think it works well. It also gives each officer an opportunity to sometimes catch up on what other people are doing.79
To use a bit of an analogy, it’s a little bit like when you’re a child and you’d done something good or done something bad and you’d want to tell your parent about it, they all put it like that with them going to court, because very much if they make a mistake it will very much be, ‘What is the judge going to say in court?’
Court reviews can kick people back in to gear if needs be.80
The importance of the court for supporting the key outcomes of the programme runs throughout many of the interviews. As evidenced, the court reviews were prized by all stakeholders (not least, service-users) for encouraging compliance through accountability to the original sentencer. The implication is that without regular check-ins with the judicial body within the problem-solving court forum, the programmes yield fewer successes amongst primary outcomes (reduced recidivism, resentencing and drug use). This indicates that the problem-solving court is a key facet of the scheme, and it should be replicated in the anatomy of any new models going forward.
Since our qualitative data indicated that the problem-solving court bolstered primary outcome delivery, a deeper evaluation of its key practical features (‘liquid’) is presented in the next sections. The purpose is to better understand some of the precise elements worth replicating. In line with our research aims, we comment on both strengths and barriers to advise on process delivery for wider rollout (both nationally and with some findings extendable to international courts).
4.1 The court layout and stakeholders
Typically, service-users would attend court every 6 to 8 weeks.81 Reviews would not include lawyers,82 rather a multidisciplinary team including: the police, probation officers (who provided links to the wraparound services), and the judge (and on some occasions, family members) all attend court.83
[There is] nobody else is in the courtroom apart from the IOM team, myself, the defendant and my court clerk of course, but no other counsel or barristers, there’s nobody else there and we have a chat.84
The unorthodox physical layout of the court, key for relationship-building between the judge and service-users, was not dissimilar to a restorative justice circle of support,85 albeit within a more formal context.
They don’t see it as them and me…Just the physical layout, we don’t have a dock officer there when they come along, they come and stand closer to me than the probation officer is to me, they hand me the letter and they’re within touching distance… we speak to each other, I’m speaking to him, he’s speaking to me and all of a sudden, I wouldn’t quite say it’s friends, but we’re in a completely different relationship.
That said, the formality of the court setting itself acted as a powerful reminder that non-compliance could result in criminal sentencing. The judge’s capacity during review to revoke an order or custodial sentence was understood to be a deterrent:
I mean having those regular reviews and that regular correspondence with the Crown Court judge that sentenced them to the scheme initially, it just holds them to account, it keeps them, well, hopefully motivated but if not then they know that actually ultimately the judge can take that away from them at any point but it’s rewarding for them.86
The judge could represent authority rather better and on a rather more distant basis which is quite helpful I think.87
4.2 Consistency of judge
Another feature of the court review process was the consistency of judge where candidates saw the same judge each review. Consistency enabled judges to take a personalised and consolidated approach to reviews, and for meaningful relationships to flourish. Linking back to section 4.1, this created the right atmosphere for enabling key outcomes through a system of accountability.
I feel like I’m getting to know the judge now if that makes sense. Not on a personal level but he knows about me, he must know my body language, my facial expression… I wouldn’t like going to a different doctor every time. I don’t know. He’ll know what I’m like. He knows me. He doesn’t have to read a bit of paper to be able to know me.88
I’ve got a relationship with her… She’s seen me progress.89
I can pass her in the street and say hello now, do you know what I mean. That’s how good our relationship is with the judge.90
I think you need the same judge, so they get to know you. If you had a different Judge every week they can’t really evaluate how you’re getting on.91
Regularity of judge is a key international problem-solving court ingredient92 shown to support and sustain relationships not dissimilar to those from therapeutic practices outside of the legal context (for instance: counselling, coaching, or even physical personal training and nutrition) requiring a consistency of practitioner. With that in mind, seeing a different judge for each review would have obvious detrimental effects.
The fact that this international component was adopted in C2 and PI is noteworthy because England and Wales have faced particular challenges in the area.93 Highlighted by the 2011 research for UK drug courts, researchers found ‘partial continuity’, meaning that the same magistrate sat on the bench (comprised of two or three individuals) across two consecutive drug court hearings.94 The researchers noted that this was often difficult to orchestrate due to other conflicting deployment priorities.95 A similar finding was reflected in more recent research (from 2021) for Manchester’s problem-solving courts, demonstrating that consistency of magistrates for the drug rehabilitation requirement reviews was nearly impossible to achieve due to court centralisation initiatives, resulting in service-users seeing a new bench each time they attended their review.96 Significantly, the 2021 research illustrated that abandonment of this key feature made it impossible for service-users to strike up meaningful relationships with court officials, in turn depleting its positive effects in terms of both primary (“hard”) and secondary (“soft”) outcome delivery. This led an evidence-based report to recommend that Manchester problem-solving courts review this area.97 Elsewhere, following closure of the drug courts, these difficulties led a UK critic to conclude that it was ‘almost perverse…’ that the UK had failed to respond to the strong international evidence base indicating the significance of this courtroom feature.98 Both the 2011 and 2021 findings show that other courts in England and Wales have fallen significantly short of the ideal when compared to international courts.
Although C2 and PI are chaired by judges rather than magistrates and in this way are different to the Manchester courts, the UK backdrop highlights this as a strength of the schemes. This is especially true when considering that our data also suggested that consistency could be hard to arrange, requiring commitment, flexibility, and organisation from the judge chairing the review.99 First, this suggests that there is (and must be) impetus on the part of the C2 and PI judges to make it happen. This augments our broader thesis (presented largely in section 6) that an authentic programme requires enthusiasm and willing from judges on the ground. Secondly, it indicates that judges may have the power and autonomy to effect and sway necessary change (perhaps unlike magistrates). If successes are somewhat linked to the overall power of the presiding judiciary, this could explain why there have been inconsistencies in problem-solving court durability across the UK; courts chaired by judges are likely to have more autonomy compared to magistrates’ courts that are governed more closely by the state. Given its importance for primary (reduced reoffending and drug use) and peripheral (therapeutic) outcomes, consistency of judge should be prioritised in models seeking specific replication of C2 and PI, as well the new courts from the White Paper, by empowering practitioners at local and community levels.
4.3 Letter writing
A key courtroom engagement strategy was letter writing. Spearheaded by the pioneering judge and now carried out by the current circuit judges, judges asked candidates to write them a letter providing first-hand reflections on progress since the last review.100 The content was not stipulated beforehand, but would often detail personal (for instance, family or relationships, children, housing, jobs, or hobbies) and formal progress (drug use and compliance), insights, thoughts and ideas, which helped the judge to substantiate the review hearing (alongside the formal report from the probation services which included drug test results).101 Our data suggest that letter-writing was highly effective for developing empathy and rapport, as well as enabling the court reviews to become therapeutic spaces for open conversation and recovery. For judges, it also was evidenced to afford job satisfaction.
They write the letter they realise that actually she is interested, she does read the letter, she wants to know about it. ‘You said you’ve got this job now in catering. Well, what did you learn?’ ‘Tandoori chicken.’ ‘Well, what are the ingredients?102
I don’t have them standing at the back of the court talking to me through a dock officer. I don’t have any lawyers coming on the review. I have them write me a letter and they can say what they want, and the letter has as much or as little as they want.103
I would try to pick up the encouraging elements first and try to develop them often by reference to the letter which I had which I would always refer to and always ask them about so we could develop a conversation.104
They write it down. They have to reflect on it themselves and they come back and they have a chat with me and we try and get them back on that way.105
I think it affects the offenders confidence in the programme if they feel that the judge doesn’t understand something that’s happened or hasn’t been informed about something that’s happened so I’ve learnt to be very, very clear to ensure that I’ve got all of the information before embarking on the review.106
I’ve got a gist of how it’s going and how they’re feeling and it’s great.107
The letter-writing strategy corresponds to some international best practice, such as that of Magistrate Pauline Spencer, who presides in Victoria’s (Australia) drug court. Spence asks service-users to write goals onto a staircase diagram, breaking them into smaller incremental subgoals (steps), to manage and track progress, whilst helping to develop personalised sessions.108 Alternatively, Magistrate Michael King (from the same court) asks for a written form to be filled out with a solution-focused plan, which is devised and developed alongside the magistrate. Although national and international strategies chime with one-another, letter-writing itself is not commonplace within the practice of international problem-solving courts. However, our data indicates high impact and success. Its universal applicability is important, not only to new UK courts, but also to other problem-solving court jurisdictions. As therapeutic jurisprudence best practice and “what works” philosophy has been shared within its rapidly growing community, we propose that this technique could be added to that bank of resources.
4.4 Interactional and behavioural styles of judges
C2 and PI are couched in an ethos of honesty, openness, and transparency. Although this permeated each of its various parts, principally, this tone was cultivated by the interactional and behavioural styles of judges during court reviews. In our previous report, we summarised these as: authoritarian, personable, motivational, positive, and praise giving.109 The judges spoke to participants humanely, with compassion, understanding, and respect (for more information, see Tables 1, 2 and 3):
[I] talk to them as human beings, engage in conversation, try and find out the good things that were going on and try to concentrate on those to emphasise them but at the same time be realistic
You always know that there’s a human element to every defendant that you’re sentencing.
Internationally, these are considered unusual, but constructive and powerful techniques, signalling to the probationer, often for first time, that someone in authority cares about their wellbeing and believes in their potential to succeed.110 Echoed within our data:
A lot of these offenders have had precious little praise in their lives, and they certainly had precious little praise from a judge in a courtroom and hearing that I think can be very powerful for them.111
They love it. It’s just fresh to them to get praise for something, particularly in that setting. So, I think it can be a very powerful motivator.112
I do think that they [Judges] are very, very good and I think that it’s a key part of it really.113
The forthcoming sections capture the core tenets of C2 and PI judge-craft using the bespoke measurement scales from the aforementioned therapeutic jurisprudence paper.114 The findings are presented in line with the measurement systems and grouped variables from the 2020 therapeutic jurisprudence paper that developed this tool, and corresponding advice on how to conduct replicable therapeutic jurisprudence research.115 Column A displays each of the eighteen comprising variables. Column B displays a quantitative average score of these interactions using the numerical data from our dataset, where replicating a method from existing research, we use a cut off point of “above 3” to represent a therapeutic score and “2 or below” to represent a non-therapeutic score; this transposes the qualitative wording from the 5-way Likert scale to present the data authentically, as it was recorded.116 In the final row, we take an average of these to compare the three skills more broadly. Each of the three main skills are then given an overall mean score. Column C then displays qualitative data that is organised thematically into the eighteen variables, which includes unstructured notes taken by our research team during observations and direct quotes from the judges. Naturally, some data qualitative samples cut across variables and could be coded in more than one category; as such, this was cross-checked across individuals from our research team to ensure interrater reliability.
Measuring courtroom interactions against these benchmarks demonstrates strong results for the judges. The grids evidence that each principal skill was operated therapeutically (m = 3.75; 3.95; and 4.1). The most well applied skill was ‘engaging therapeutic dialogue’ (skill 2); this suggests that the conversation methods used by the judge, mobilised by its comprising variables, were very well implemented (as demonstrated by Table 2). The data demonstrate no concerning areas of weakness. Since our participants emphasised the importance of the problem-solving court, inclusive of judicial engagement styles, for outcomes delivery (see section 4.1), the implication is that the captured techniques help to reduce recidivism and drug use amongst the cohort. Although approaches in C2 and PI have been developed in a piecemeal fashion, placing these findings into an international context resonates with cross-jurisdictional problem-solving court engagement methods. These include voice, validation, and voluntariness,117 compassion and compassionate motivation,118 and empathy, respect, active listening, a positive focus, non-coercion, non-paternalism, and clarity.119 These grids be a useful toolkit for new judges in newly implemented courts. This is made possible by the standardised therapeutic jurisprudence measurement tool, which facilitates externally valid datasets and replicability by providing an international relevant means of analysis.
5 Analysis and findings: a solution within the bottle?
Having highlighted areas of the programme at practice level (‘liquid’), we can turn our attention to the bottle, including areas that might thwart success going forward as well as possible solutions. As stated earlier in this paper, the ‘bottle’ refers to rigid, structural, and macro factors such as: policy and legislation and organisational strategy120 or culture, expectations, and norms and values.121 Having found few issues at practice level (the most problematic area being organising the reviews to ensure consistency of judge), our data suggested that most barriers to long-term success were systemic. We identify two main barriers at this level, which we will explore in the next sections.
5.1 Barrier 1: gaining support from judges at all levels
Our participants perceived the judge as the linchpin of the programme. Not only did they conduct the reviews, but were uniquely situated to liaise with other core agencies such as: the criminal justice board, police, probation, and other members of the senior judiciary. Therefore, success of the schemes requires strong judicial leadership.
The judge… has lead responsibility for it all.122
Being a judge it’s much easier to have a higher profile within the county than being a police officer or operation officer so I’d get it across to other parts of the county.123
This is reflected in the international literature, where the gold-standard of practice highlights that judge must be prepared to act as a community connector pulling together the various aspects of the programme.124 The literature suggests that the unique authority and seniority of judges makes for effective leadership of community agencies and stakeholders.125 However, acting in this capacity requires judges to fully buy into the model and its underpinning ethos. If we trace the first scheme back to its roots, as earlier sections of this paper showed, like the US courts, C2’s inception was spurred by Judge Baker’s own insights into the shortcomings of the justice system, particularly for tackling drug fuelled reoffending. This provoked fresh thinking about alternative and innovative justice methods – the same thinking that inspires participation amongst the current judges. As such, judicial engagement is sparked by an interest in rehabilitative justice:
What appealed to me was the concern I have that for a substantial number of offenders, that’s particularly those with an established pattern of offending and reoffending, the existing structures of rehabilitation and reintegration into lawful society are under resourced… I was very keen to see what I could do to help.126
I think it’s strengthened my interest in doing what can be done, which is strikes me at the moment is precious little, to try to improve the availability and effectiveness of rehabilitation within the criminal justice system.127
[It requires] a complete change of attitude and mindset.128
However, this at least somewhat hinges upon personal attitudes, outlook, experience, and norms and values. Whilst the current judges clearly possessed conducive ideologies, our data highlighted that this was not shared by all potential practitioners:
I’m a very keen supporter of the scheme. There were other judges who were not very keen supporters of the scheme, so didn’t volunteer.129
It’s a difficult one to sell, I think, for the press. For this sort of a sentence, I would have sentenced you to six or seven years in prison. Instead I’m going to give you this IOM for three years, it’s intensive, you’ve got to do all these things and that’ll be the end of it.130
More explicitly, our data suggests that many police forces across the country are keen advocates of the programme and wish to imitate C2 and PI in full within their local constabularies (that is, with the support of a judge willing to chair to problem-solving court and act as the programme linchpin). However, police forces cannot accomplish full fidelity, or full impact, without the support of keen circuit judges willing to chair the court. Without the problem-solving court, the IOM programme in isolation becomes more of a probation model with potentially fewer impacts on primary and secondary outcomes, and its distinction from other programmes in the UK becomes less clear.
Resistance from judges could be explained by a further underlying theme from our dataset: judges may feel that there are risks in chairing an unevaluated model considered disjointed from traditional penal norms and values. The role carries responsibility – it caters for prolific offenders who would otherwise be in prison. The judge is accountable for successful programme delivery and justifying why these individuals have been released back into communities mean that not all judges are willing to get involved.
It was our responsibility so if anything went wrong it was our heads that would roll.131
He’s sentencing outside of sentencing guidelines so they really are putting their head on the block really because if things do go wrong, it will be them that will be questioned in regards to, well, you knew this, why did you not resentence and why did you sentence to this programme?132
A judge is responsible for what goes on in their own court and in sentencing terms no other judge other than by appeal can really become involved.133
Although the above theme is worth noting, our data pointed more heavily towards the influence of judges’ attitude and ideology in creating this barrier. This same barrier was also found amongst senior judges. To fully understand the significance of this in this context, there must be some appreciation of the relevant members of the judicial hierarchy in the UK under the Courts Act.134 After magistrates, on the second rung of the ladder is the district judge; they are followed by the circuit (resident) judge (who currently chair the problem-solving courts discussed); on the next level are high court judges (responsible for a collective judges within circuit); above that are presiding and senior presiding judge for the circuit and; finally, there is the Lord Chief Justice, who heads the judiciary and acts as president of the courts of England and Wales under the Constitutional Reform Act 2005.135 All judges are employed by the Judicial Office, trained at the Judicial College, and appointed formally by the Queen.136 Linking back to the inception of C2 (which was the original scheme that proceeded PI):
In 2006 the senior presiding judge who was then Lord Justice Thomas (who subsequently became Lord Chief) was going to make a visit to St Albans. I had been in conversation with a chap who was Detective Chief Superintendent who had pioneered in Hertfordshire a sympathetic way of interviewing prolific offenders… and he come to me and asked how can we deal with these people without just giving them a very much longer sentence if they have all their offending taken into consideration? At that time there was a change in the law over delaying sentences which enabled conditions to be imposed during the period of delay to see whether someone behaved themselves and I thought we might be able to adapt that in order to make it credible to give them possibly a non-custodial sentence but I wasn’t disposed to go ahead without getting the support of the Senior Judiciary so it was convenient that the senior presider was coming down.137
He of course subsequently became the Lord Chief and he retained an interest and kept in touch throughout his time in other roles and so he was always a very useful support to have. So that’s how it started.138
Thus, in addition to Judge Baker being willing to chair the review court on the ground, start-up approval also came from (then senior presiding judge) Lord Justice Thomas. This means that senior members of the judiciary must also endorse any new scheme being proposed. However, this requires senior judges to also share the thinking behind the models.
His cynical take on it is this; if you commit a third domestic burglary then you will go to sentence for at least three years unless you happen to be in St. Albans, in which case we’ll give you a nice cosy community service.139
The present resident judge… does not approve… but he has always said he wouldn’t in any way stand in the way of it, so there’s not in any sense opposition from him, he’s just a principled objection.140
Although resistance from senior judges was evident and puts up barriers for wider rollout, this was not causing issues for programmes already in place so long as there was a judge willing to practice on the ground. However, new models will need to consider how to overcome resistance on numerous judicial levels. Put differently, under barrier 1, two issues potentially come into play – first, there must be a circuit judge willing to chair the review hearings; since these are not always easy to find, this could cause issues for the sustainability of current and future schemes. Second, although circuit judges have the freedom to be creative in their practice and can propose suggestions for change, establishing new models also relies upon additional support from those more senior in the judiciary. Ultimately, lack of will at any level boils down to the same factor: readiness of judges’ attitude, experience, and outlook, which can be difficult to come by, especially in context of external pressures. C2 was first established during a time when there was political receptivity, not only locally, but at national level – when problem-solving courts in other guises were also being established.141 This did not directly impact PI and C2 (whose impetus came from local judges rather than the state), but they did benefit from sitting comfortably with current politics. However, as seen, problem-solving courts have experienced intermittent enthusiasm and support in England and Wales, and have often been vulnerable to changes in the political weather.142
Although C2 and PI have so far been supported by enthusiasm at local level by judges, willingness can be influenced by the political environment and related cultural processes. In an empirical report from 2018, criminal justice researchers evidenced that support for justice innovation can fall into a vicious circle.143 Culture itself is a complex nexus, but the report shows that political rhetoric conditions public perception into support for punitivism, which diminishes trust and confidence in smart justice, a process exacerbated by distorted media coverage.144 Public perception then spurs politicians either keen to get elected or who fear demotion to react with overly punitive projection plans and conversations.145 Through confirmation bias, this in turn compounds public perception that rehabilitative justice is not fit for purpose, which then continues to contour political rhetoric, and so the cycle continues.146 Within a chicken and egg type scenario, it is hard to determine what comes first, but these processes have the power to shape language, beliefs, outlook, and norms and values, including those of practitioners. The 2018 research suggested that a rehabilitation revolution could be on the horizon for the UK if unhealthy discourse within public conversation and media coverage can be dislodged.147 The recent White Paper may spark fresh interest amongst a cadre of new judges. However, in a politically charged and changing landscape, plans and thinking patterns can soon change. Not only does this mean that the establishment of any new schemes is precarious (for both extendable C2/PI models and the White Paper courts), but could pose issues for the sustainability of the current ones.
5.2 Barrier 2: judicial personality
A second barrier emerged at bottle level. As delineated by our grids (section 4.5), the competency of the judges at C2 and PI is stark. However, what makes these findings stand out is that judges had received no specialist training (beyond rudimentary judicial training) and were isolated from the shared best practice afforded by international collaboration.148 As demonstrated:
A lot of the time it’s about trying to work out for yourself through your own knowledge of the world and your experience of individual defendants what is going to work best to put those individuals at ease.149
He was obviously at great pains to assure me he wasn’t trying to tell me how to do the role, but he was just giving me some tips and hints and thoughts from his perspective which I did find extremely useful.150
Although our evidence suggested that some best practice was shared at local level between successive judges, judges were chiefly relying upon their own well-developed interpersonal skills, intuition, and life experience to guide courtroom interactions. We can infer from that courtroom successes are, at least somewhat, contingent on the personality of the judge. This taps into a widely known critique from the international problem-solving courts, famously articulated by US expert, Professor Perlin: ‘the success of the courts is overly-dependent on the personal charisma of the presiding judge’.151 This factor could pose problems for the longevity of the schemes when judicial roles get reassigned or expire.
In the UK, under the Constitutional Reform Act 2005, the Judicial College (as part of the Judicial Office) is responsible for training judiciaries in England and Wales, although statistics suggest that funding has stifled opportunities in recent years.152 Even if opportunities were plentiful, it is doubtful that (or at least unclear if) they would be channelled into training tailored for therapeutic court practice due to points already raised about politics, culture, and receptivity to justice innovation. This could of course stabilise over the next few years if pledges from the recent White Paper play out.153 Regardless, our data suggested that judicial training (or lack of) would not necessarily create barriers to long-term success. This is evident both from the grids (from which judicial proficiency speaks for itself) and from interviews where participants stated that training would not add much value to what, they felt, was intuitive practice.154 This is not to say that training would not be successful if it were available;155. But it does suggest that a lack of training opportunities would not create a barrier because successful practice compels a certain mould of personality, which cannot be easily created or recreated even with good training opportunities.
Across the broader landscape, evidence suggests that compatible personalities do exist within UK judiciaries if only in small pockets, and despite the tendency for punitive sentiments to overshadow mainstream justice practice, theory, and policy. As shown earlier in this paper, the now closed Liverpool Community Justice Centre demonstrated early successes when Judge David Fletcher presided over hearings.156 Judge Fletcher’s approach, character, and attitude was reported to be comparable to famous therapeutic jurisprudence champions, as well as the judges at C2 and PI.157 In 2008 and 2011, two research reports respectively found that magistrates from the now-closed drug courts were of a similar ilk.158 Updating the evidence-base, recent UK research found that the pool of 25 magistrates from the Manchester problem-solving courts possessed therapeutic engagement styles.159 Similar results were found for the FDAC models.160 This handful of examples not only demonstrates that well-suited personalities exist, but also that there is interest in rehabilitation from UK judiciaries practicing on the ground (linking back to barrier 1).
Personality cannot be easily changed, and some people will be a better fit for the role than others (as is the case for any job). As problem-solving courts have illustrated, finding the right judicial personality will always be somewhat dependent on luck. Although this has not been a problem at C2 and PI so far, it could thwart sustainability. Issues already arise from getting judges on board with the schemes. When coupled with the added requirement for a therapeutic personality, this makes the current judges appear indispensable. This could leave programmes without a chairperson and without a problem-solving court, as well as causing problems for new models. Without cultural susceptibility, judicial personalities with the appropriate outlook become more difficult to find, and filling the shoes of competent judges is harder.
Our data demonstrated links between the judges’ operation of the problem-solving court and primary outcomes (reduced drug use and recidivism). Most prominently, touching base with the original sentencer with revocation powers kept service-users on track through the dual mechanism of holding people to account and deterring them future offending. As such, we recommend that new schemes should ensure replication of the problem-solving court going forward as opposed to rolling out models that do not bear this key feature.
With this in mind, we turned our attention to barriers that might present themselves when attempting replication. The first barrier was gaining support from judges at different levels. Clearly success relies upon a collaborative effort on the ground, but it is those higher up (in the judiciary) that hold the power to imitate C2 and PI authentically by chairing the problem-solving court (practising judges), as well as granting start-up approval (senior judges). Like the international problem-solving court movement, inception of C2 and PI was galvanised by judges’ observations into the shortcomings of the system, particularly for tackling repeat offenders. In both contexts, judges were in the position to empower, sway, and influence change, and have enough respect from the community to act as a convener. As such, inception, longevity, and durability of the courts are, at least somewhat, attributed to an enthusiasm generated at local level by key judicial figures able to light the problem-solving court flame and keep it alive. C2 or PI so far have not faced sustainability issues because of local enthusiasm amongst circuit judges, who not only possess conducive outlook and personality, but also the seniority, profile, and influence to keep things alive even when those around and above them are not on board. This can perhaps be contrasted with the magistrates from the England and Wales drug courts; since magistrates have far less power and sway in the overall planning of justice, this makes those courts vulnerable to close down if broader priorities change.
For the current schemes, resistance presented itself in judicial members across the board. For senior judges, though this was evident, it remained unproblematic so long as a judge was willing to practice on the ground. However, reluctance demonstrated by potential replacements could hinder prospects when current judges retire or move on. Likewise, for abridged versions of the model (e.g., the IOM), we found that although many police forces across the country keenly advocate and wish to add problem-solving courts to broader IOMs, this has been met with resistance from some judiciaries, making wider rollout impossible; schemes cannot accomplish full fidelity, or achieve full impact, without this support. Similarly, devising new schemes in the future probation landscape will require both circuit judges and senior judges to buy into the plan. Thus, shortage of keen judges across the hierarchy puts the trajectory for current, abridged, and/or future models on shaky ground. The key to long-term success will therefore be strengthening the pool of resources to ensure that good judges are replaceable, where a larger supply increases the chances of appointing suitable personalities.
Lack of will at any level boils down to the same source as the discontinued drug courts: conducive attitude, politics, perspectives, experience, and ideology, which must align with rehabilitative justice theory and practice. This can be difficult to come by, especially when met with broader social, political, and cultural headwinds. Indeed, institutional support within the criminological, policy, and legal landscapes has come in waves for England and Wales. This has prevented rehabilitation from absorbing into the fabric of the justice system. This negatively influences a nexus of attitudes, outlook, and norms and values that crystalise within cultural ideologies. However, this also shows that barrier 1 (gaining support from the judicial) may have the capacity to be positively reshaped. Success is contagious as the international movement has shown;161 raising credentials of the models through visibility, tangible successes, and education convinces and motivates engagement and helps develop cultural susceptibility.162 As such, cultural change will break down barrier 1 by bringing confidence to judges endorsing and participating in the model.
The second barrier that we found is that courtroom successes are contingent on the personality of the judge. This potentially is less malleable than barrier 1 even with fruitful training opportunities to hand. This reinforces findings from the international problem-solving movement suggesting that courtroom successes almost exclusively rest upon judicial charisma. If judges can already be difficult to recruit (barrier 1), the aggregate effect is that barrier 2 further reduces recruitment options for suitable judges, which could pose problems for their trajectories. Therefore, under barrier 1, resistant attitudes and outlook towards court innovation can prevent success, but this can be reshaped and mediated through cultural processes. Under barrier 2, personality is less malleable. Deficits within both these factors can have direct impacts on shortages of judicial resources.
It makes sense that where there is no supportive culture for ‘smart justice’, practices do not become mainstream. When successes are less visible and practices less credible, engendering engagement becomes harder. However, when a system or method is perceived to be doing well, it follows that practitioners are keener, convinced, and motivated to contribute. We can infer that stabilising, embedding, and normalising a culture of justice innovation can create positive cycles that are able to shift perspectives by creating positive cycles that are able to shift perspectives and bring more judges on board. There will always been polarised views towards unorthodox practice – some (like the previous and current judges) will buy into the model, whereas others will not. However, somewhere in the middle there are individuals that are not yet sure – this pool should be capitalised on.
We propose that this can be achieved through cultural change, instigated by a stronger UK community supportive of this type of initiative. International evidence suggests that the convener role played by judges is a powerful and persuasive tool for engaging community stakeholders due to their unique and authoritative position.163 Lack of national and international collaboration and outreach has not impacted C2 or PI negatively. However, as we have identified, there could be sustainability risks in the future. Although relevant communities do exist in the UK (such as the Centre for Justice Innovation, Transform Justice, the Justice Gap and TJUK.org) expanding these circles will be key.
We can learn a lot from the courts globally, which have benefitted from collaboration within supportive, reputable, and observable, communities often led by judges.164 The starting point here could be building similar networks in the UK (many of which are already nascent). One mechanism for facilitating this has been proposed by co-founder of therapeutic jurisprudence, Professor Wexler, who recently called for ‘Amicus Justitia Briefs’, which are a ‘new type of legal writing’ designed to bring awareness to legal practices across the globe that possess therapeutic jurisprudence goals and orientation.165 Briefs may take the form of longer or shorter blogs, articles, or manuals, but are intended to be short, snappy, practical, and accessible, rather than academic or theoretical.166 With judges on board, England and Wales could engage in the following three-pronged process to stimulate national and international interest and outreach:167
- i. Create the first Amicus Justitia brief that draws attention to the therapeutic orientation of the court (particularly the grids) to initiate international dialogue and to spark interest amongst colleagues.
- ii. Exchange briefs with personnel from other national and courts globally.
- iii. Continue to moderate and edit the original grids to incorporate the best practice of others whilst incorporating changing local issues and finetuning local practice.
This process could be mediated by the Therapeutic Jurisprudence in the UK Chapter, which is a specialist interest group that forms an arm of the International Society for Therapeutic Jurisprudence. Next steps could be developing the first Amicus Justitia brief, which could enclose the grids from section 4.5 and the letter-writing strategy. The UK Chapter will foster and forge international relations by sharing the second brief with the international body, which in turn raises the external profile of the courts.168 Lessons from the international models show that collaboration can finetune and judges’ own practice through self-reflection and learning, build externality, credibility, and reputation, and bolster communities to empower a broader shift in culture.
Official statistics suggest that the English and Welsh justice system is not working, particularly for people with problematic drug use. Confidence and efforts to supersede punitivism, including court innovation, have often been left wanting with many new attempts in the UK short-lived.169 If legislators, lobbyists, and policymakers are unsure of and lack confidence in their own agendas and philosophies, a therapeutic solution stands little hope of longevity and becomes merely a fad that experts soon turn their back on.170 Political pressures have also meant that policymakers have been keen to turn around quick results to reduce reoffending, which no problem-solving court programme, in England and Wales or otherwise, could reasonably achieve when accounting for the complexity of desistance and recovery narratives.171
Although delivery of the recent White Paper brings fresh possibility and promise, we must err on the side of caution; long-term success often ensues when practices are embedded into an infrastructure that is receptive to rehabilitative justice. An overhaul of that system will not happen overnight. Rather it, requires progress in smaller pockets. Anchoring the court within the international community might spark interest, enthusiasm, and understanding. This in turn might help not only with the recruitment of new and inspiring judges, but on a broader level could pave the way for a shift in the way that we administer justice in England and Wales. In return, the UK could offer the international courts their own insights and best practice, and the hope is that this research might provoke such collaboration.