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Courts, communities and the 'big society'

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Anti-social behaviour is a serious and pernicious social problem in a significant number of areas and communities across Britain; its effects must not be understated or minimised. Consequently, efforts to enhance levels of engagement between affected communities and the courts should be welcomed. However, strategies to improve liaison between the judiciary and communities are certainly not unproblematic for a variety of reasons which I will discuss below. Drawing upon my own recent research (Donoghue 2010; also 2008 and 2007), I will identify the challenges and opportunities ahead for improved engagement between magistrates’ courts and our communities.

For more than a decade, the rather ubiquitous term ‘community engagement’ has consistently featured in political rhetoric and policy discourse around crime prevention and community safety. New Labour in particular, repeatedly emphasised the importance of community participation and involvement in creating cohesive and ‘safe’ neighbourhoods. The last Labour government were also keen to try to facilitate better contact between the courts and the communities that they serve. Long-standing complaints that the lower courts were not meeting community needs, together with reports of low levels of public confidence in local courts, led to attempts to incorporate community engagement more fully into the court process.  

The Coalition government too, has emphasised the fundamental importance of community engagement in criminal justice strategies and initiatives and it appears that the Government wishes to inculcate the notion of community engagement into policy in a broader and more systematic way, and specifically through the vehicle of its ‘Big Society’ project [1]. The Government has emphasised the role that communities can and should play in justice processes and the Home Secretary, Theresa May, has called for communities to become more responsible for tackling problem behaviour in local neighbourhoods. The promotion of community engagement is aimed at creating a new relationship between citizens, communities and the agencies of crime control. However, it is also intended that such an approach could help increase confidence in the criminal justice system, diminish anxieties about crime and relieve punitive pressures on the CJS (Cabinet Office 2009).

In this article, I discuss the potential and the limits of such an approach to community engagement in criminal justice policy, specifically in the context of the magistrates’ courts in England and Wales and their treatment of anti-social behaviour (ASB) related cases.

Efforts to Improve Engagement

In 2007, Her Majesty’s Court Service (HMCS) committed to embedding the underlying principles of community justice in all magistrates’ courts by the end of 2008. Community justice broadly refers to all types of crime prevention and justice interventions that explicitly include the community in their processes and set the enhancement of community quality of life as a goal (Karp and Clear 2000). Community justice is a method of addressing the problems of offending in a local area by engaging with the community, making the court more responsive to local people and working in partnership with criminal justice agencies, support groups and other stakeholders.

One of the main principles to be adopted by HMCS was that there should be significant liaison between the courts and the local community so that the community is able to put forward its views and the court has a view of the wider context of the crime. Similarly, in 2009 a Government Green Paper noted that community engagement and problem-solving were to be integral to the role of district judges and magistrates and that this was to be achieved through regular direct contact between the judiciary and the community.

Indeed, increased levels of engagement between the judiciary and the community fits with the government’s Big Society project and its associated concept of co-production. Co-production is central to current debates about the Big Society and relates to how communities and individuals connect and collaborate with public service providers to design and deliver solutions to social problems. The Government has indicated that co-production will be important for policing, enabling new interactions between police and residents that will help to foster social organisation and which are intended to encourage collaborative forms of informal social control. Improved liaison and engagement between communities/individuals and actors within the criminal justice system would also seem to form an important part of this co-production approach.

It is clear that there has been considerable effort made in recent years to try to prioritise community engagement as a central part of the lower courts’ function. But do the courts now actually engage more systematically with the communities that they serve? Or should we see these policy developments as an attempt to shoe-horn in what is actually an ill-fitting reform of the courts? What type of ‘engagement’ now takes place between magistrates and residents? And what are the current barriers to greater community engagement in the lower courts?

Recent Research on Community Engagement

I have recently finished a piece of research on community engagement and the courts in ASB-related cases in England and Wales, funded by the Economic and Social Research Council. Work was carried out with 17 different ASB teams across England and Wales and the cases that they were pursuing in court (generally for ASB orders and injunctions) were monitored by researchers who looked at the extent of community engagement before, during and after the court process.

The study found that in the majority of the 17 areas, there are very few, if any, significant links between magistrates and the community. In most areas, magistrates’ involvement did not ever go beyond attending occasional meetings with their local ASB unit. The research findings suggest that the creation of partnerships with the community, through informal links such as individual relationships and communication with residents, is extremely limited. Community groups too had very little engagement with the courts.

Practitioners in a number of units believed that a ‘culture change’ was necessary, where magistrates would move away from the idea of being completely impartial and would prioritise time to listen to the concerns of the local community. Others argued that magistrates should be made ‘more accountable’ and be ‘more involved in communities’, while some also suggested that magistrates ‘do not think about the impact of ASB on a community’, that the courts ‘do not understand the effect of ASB’ on certain areas and that the community has ‘no confidence in magistrates or the courts’.

However, through more formal mechanisms such as police community support officers, local ASB-victim ‘champions’ as well as the Magistrates in the Community project [2], this partnership approach was improving in some areas. Participants in one area identified that the CPS and the ASB unit make efforts to try to keep magistrates informed of community issues, while in another area magistrates will attend Police and Communities Together meetings as well as ASB unit meetings when asked. Participants in one ASB unit, however, did feel that magistrates actually have a high level of engagement with the local community and that they were willing to talk to residents, attend local meetings and become involved in the life of the community.

Overall however, in the areas studied, the courts appear to have very little involvement in community liaison at present. It is apparent that this is something that ASB units would like to see change, with there being much more significant liaison between the courts and the local community so that the community is able to put forward its views, and so that the court has a view of the wider context of crime and disorder in the community as well as the implications of the orders they grant.

Concerns about Judicial Independence

If current government objectives of connecting courts to the community, reintegrating offenders and building communities are to be achieved, many units involved in the research urged that a complete culture change is necessary. Such a substantial shift was needed in order to move magistrates away from the idea that they are completely impartial if they are going to embrace the community engagement role in any meaningful way. They argued that if magistrates were made ‘more accountable’ to the local community that this might improve public confidence in the criminal justice system and increase reporting of ASB incidents.

However, in the course of the study, it became apparent that concern about judicial independence and neutrality is one of the main reasons why there is not more liaison between courts and communities. Individual cases were not discussed at advisory boards or public meetings to avoid the appearance of partiality and it was reported that some magistrates had expressed reservations about travelling to meet residents or attend meetings where neighbourhood problems are discussed. For example, in one area, it was reported that magistrates used to go on visits to local areas to gain an insight into the problems being experienced in particular neighbourhoods and to speak with residents but had recently stopped doing so as they were worried about being seen to be influenced by locals.

Moreover, magistrates’ and courts’ involvement in community liaison have implications for how community expectations are addressed by the bench. The community justice approach advocates a problem-solving approach which requires the judiciary to be aware of local issues but also for there to be increased interaction between magistrates and offenders. This raises questions about the (changing) nature of the judicial role. The potential implications are that judges may go from being detached, neutral decision-makers to becoming the central figure in the justice process. A problem-solving approach means that judges are responsible for encouraging and rewarding compliance, as well as monitoring offenders and addressing sentence breaches.

Such an expansion of the judicial role may remove the protection that law has traditionally provided for the bench, since judges are no longer simply applying the law, but are involved in a subjective process of improving outcomes - for victims, communities and offenders. The emphasis placed upon the need for the judiciary to address the concerns and ‘frustrations’ of the local community in ASB case outcomes represents a significant departure from the current operational structures of the judicial system in England and Wales.

There was some evidence in the study that magistrates may feel uncomfortable and untrained in undertaking the kinds of tasks that are now being asked of them, in neighbourhoods that they may not have visited before. Government policy papers allude to this and note that magistrates’ require training, awareness sessions and support in assisting them to successfully engage with communities. Although HMCS and the Judicial Studies Board have jointly created training materials to support magistrates in their community engagement activity, this training has not been systematically implemented - so problem-solving and community engagement do not yet form part of the standard training for newly appointed magistrates.

Magistrates are often involved in other roles of responsibility within the community, such as sitting on housing trusts and police boards, where they play an important role in disseminating what goes on in court into these avenues as well. While these opportunities for engagement were viewed positively by participants in the study, they also argued that formal, regular activities are needed to strengthen ties between the courts and the community.

Interestingly, community impact statements (CIS) were not mentioned by any of the 17 units during the study period, nor were they present in any of the cases observed in court. Community impact statements were introduced by the previous Labour administration in 2009 and are designed to give an indication of the impact that the defendant's ASB has had on the community. The CIS is intended to provide information to the CPS and the courts, allowing them to reflect upon ‘community concerns’ when they consider imposing a sentence on an offender. That community impact statements were not used in any of the cases might suggest a policy ‘tick-box’ approach to community engagement, where the introduction of ‘tools’ to involve local residents in the justice process is used to provide legitimacy to new supposedly community justice-oriented initiatives but which, in practice, have very little real effect on the status quo. There are also obvious parallels here with the very limited use of victim personal statements in the courts.

Disparities in Policy and Practice

Current government policy on crime and disorder continues to emphasize the central importance of community engagement with the courts to improving community ‘quality of life’, particularly in relation to ASB. Indeed the coalition Government’s approach remains underpinned specifically by community justice principles:

Community justice is about making sure that people who are affected by bad behaviour and crime have a say in how things are sorted out in their community. This means getting involved in the ‘justice process’ – like helping courts and the police focus on the crimes that local residents say are causing them the most problems…a judge or magistrate could meet regularly with community members to find out about the effect of crime on their neighbourhoods. This makes sure they are aware of the impact of crime locally. [3]

This approach suggests that engagement with the courts should be reciprocal: individuals and ‘communities’ should become more involved with the courts (particularly in respect of communicating information about problems in their areas) and it appears that the courts also have a community liaison role to play in understanding and responding to the needs of the community. In fact, the research discussed in this article suggests that the reality is significantly different and that very limited community engagement with the courts in ASB cases is taking place in practice.

Conclusion

Policy-makers argue that community engagement with the courts is important for enhancing community confidence in the justice process. But despite the policy attention paid to establishing community justice principles in the lower courts, the influence of ‘the community’ remains extremely limited. Undoubtedly, some magistrates are sceptical about the reforms and the impact that they might have upon judicial independence. Others do not feel sufficiently knowledgeable about or trained in community engagement.

However, on a more optimistic note, in some areas there is also evidence of pro-active attempts to better engage local communities with the courts through ASB-victim champions and Magistrates in the Community activities, resulting in positive outcomes and enhanced confidence amongst residents in the justice process. Unfortunately, these types of activities were the exception rather than the rule and only in one of the 17 areas studied was it felt that magistrates had a ‘high level’ of engagement with the local community and that they were willing to talk to residents, regularly attend local meetings and become involved in the life of the community.

The concept of community justice proposes the explicit incorporation of the community into the judicial process as a way of improving the justice system and empowering local communities. However, if community justice is to be successfully embedded in the lower courts in any significant way, community engagement would need to become a formal, standardised part of magistrates’ training both for those entering the magistracy as well as for those existing district judges and magistrates. It is also important that community engagement becomes formalised as part of the roles and responsibilities of district judges and magistrates.

The research discussed in this article suggests that in the absence of these types of formal facilitative structures, improved community engagement with the courts will be unlikely to develop. Consequently, at present there is little prospect of improved engagement between magistrates’ courts and our communities.

Jane Donoghue, Ph.D., Lecturer, Centre for Criminology, University of Oxford.

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References

Cabinet Office (2009) Engaging Communities in Criminal Justice, Green Paper, April 2009. London: Cabinet Office.

Donoghue, J. (2010) Anti-Social Behaviour Orders: A Culture of Control? Basingstoke: Palgrave Macmillan.

Donoghue, J. (2008) 'Antisocial Behaviour Orders in Britain: Contextualizing Risk & Reflexive Modernization' 42 Sociology 337-355

Donoghue, (2007) 'The Judiciary as a Primary Definer on Antisocial Behaviour Orders' 46 Howard Journal of Criminal Justice, 417-430

Karp, D. R., & Clear, T. R. (2000). Community justice: A conceptual framework. In C. M. Friel (Ed.), Boundary changes in criminal justice organizations (Vol. 2, pp. 323–368). Washington, DC: National Institute of Justice.



[1] According to the Conservative Party Manifesto (2010: 38), the Big Society is ‘a society with much higher levels of personal, professional, civic and corporate responsibility; a society where people come together to solve problems and improve life for themselves and their communities’. It involves ‘redistributing power from the state to society; from the centre to local communities; giving people the opportunity to take more control over their lives’ (p.39).

[2] The Magistrates in the Community Project is a Magistrates' Association initiative that has developed over the past few years to increase public awareness of the role of magistrates in the criminal and civil justice system.

[3] Available at http://www.direct.gov.uk/en/CrimeJusticeAndTheLaw/CrimePrevention/DG_072139 (last accessed 18 May 2011)

 

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