This blog post was written by Niamh Wade. Niamh is an IRC-funded PhD student in the Department of Law, Maynooth University. She lectures in Criminal Law and Evidence. She has previously written an RTE Brainstorm piece on community courts which you can read here.
Twitter: @niamhwade27
Problem-Solving Courts
Problem-solving courts are an innovative court model that seek to address a particular problem or target group. Examples of problem-solving courts include drug courts, mental health courts, domestic violence courts, youth courts, family drug and alcohol courts, and community courts. These courts usually operate separately to traditional criminal courts, and they often have a dedicated building in which hearings take place. However, some traditional courts have allocated days on which problem-solving cases will be heard. Drug courts or drug treatment courts are perhaps the most well-known problem-solving court model in Ireland and in the UK. This piece will discuss England and Wales’ relationship with problem-solving courts in light of the model’s most recent political resurgence in the 2020 sentencing white paper. Ireland’s current position in relation to problem-solving courts will also be considered.
Problem-Solving Courts in England and Wales
There have been periods of support for problem-solving court models in the UK since they became popular in the US in the 1980s. The level of support has usually depended on the type of government and the economic situation. In September 2020, A Smarter Approach to Sentencing, was published in England and Wales, which states:
“We will 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.”
Drug Courts were the first type of problem-solving court to inspire a British counterpart, following West Yorkshire police chief constable Keith Hellawell’s visit to the drug court in Miami in 1995 (Nolan, 2009). This visit sparked a chain of events that resulted in two drug courts being introduced in West Yorkshire. Following this, Drug Treatment and Testing Orders (DTTOs), were introduced as a sentencing option in traditional courts in certain pilot areas. DTTOs were also inspired by the American system and were put on a legislative footing in 1998 in the Crime and Disorder Act (Nolan, 2009). DTTOs were overseen by the Probation Service and following initial success, the pilot was extended across all probation services in Britain in 2000 (Nolan, 2009). The DTTO sentence required a multidisciplinary approach with teams consisting of probation officers, medical staff, and drug treatment specialists. Hales (2002) notes that the success of DTTOs was often impeded by funding cuts and staff shortages within the health sector. DTTOs became part of a larger community order process through the Criminal Justice Act 2003 and became known as a Drug Rehabilitation Requirement (DRR). DRRs were described as “tougher and more tailored to the specific circumstances of individual clients” (Nolan, 2009: 46). DRRs are a combination of drug treatment, drug testing, and constant probation supervision (Donoghue, 2014). It was just eight months after DRRs came into effect that the drug court, in its initial form, experienced a revival, with one being set up in West London and one in Leeds. The Probation Service were heavily involved in the drug courts, DTTOs, and DRRs in the UK which is a core difference to the primarily judge-led American drug courts (Nolan, 2009).
The journey towards community courts, another type of problem-solving court, in England began in 2003 when then British Home Secretary David Blunkett and then Lord Chief Justice Harry Woolf went to New York to visit the Red Hook Community Justice Centre. The planning of an English community court started soon after this visit and following a conference in which the Red Hook judge, Alex Calabrese, spoke to over 300 criminal justice stakeholders in England (Nolan, 2009). In 2003, Lord Falconer reported that a community court would be introduced in Liverpool in 2004, following his own visit to the Midtown Community Court in New York (Nolan, 2009). The North Liverpool Community Justice Centre (NLCJC) was opened in 2005. The NLCJC operated for eight years but was closed in 2013 due to the expense involved in its continued operation and failure to adequately meet the aims of the model. Such aims involved dealing with cases more swiftly than in traditional courts, reducing re-offending rates and crime rates in the catchment areas, increasing levels of compliance with community sentences, and increasing community involvement. Another problem that impacted the success of the NLCJC, was the interdependency upon rehabilitative services that were continually having their funding reduced (Murray and Blagg, 2018).
In 2015, then justice secretary Michael Gove met with the judges of some US problem-solving courts and expressed an interest in the court model. This was only two years after the closure of the NLCJC. Nolan (2009) notes a key difference between the development of community courts in the US and in England – in the US, they were a grassroots movement, whereas in England they are government-led. However, community courts being led from the top down is not an immediate sign that they will fail, as is demonstrated by the very successful Neighbourhood Justice Centre (NJC) in Melbourne. Evaluations have shown that the NJC is responsible for savings to the state due to lower recidivism rates and savings on prison days (Victorian Department of Justice, 2010). The NJC has also had a positive impact on crime rates in the City of Yarra (Ross, 2015), which meets the model’s goal of preventing and reducing criminal and other harmful behaviour in the Yarra community (NJC, 2019). A court user survey conducted by the NJC in 2017 showed that clients of the NJC had very positive court experiences (NJC, 2020). The NJC was also based on the Red Hook Community Justice Center in Brooklyn and is the first community justice centre outside of the US to be awarded International Mentor Community Court status.
A common criticism of problem-solving courts is that they are a failed transplant from America. Although it is true that the various English problem-solving courts were inspired by the American models, it cannot be said that they are all directly transplanted. At times it appears that the ‘tailoring’ of these courts to suit an English cultural context, for example through the development of DTTOs and DRRs, is more an exercise in cost-saving than in cultural adaption. The same cost-saving exercise was evident with the Salford Criminal Justice Initiative (SCJI), which was originally meant to be a community court like the NLCJC. However, the SCJI was set up in an established Magistrates’ Court in 2005 to see if the principles of community justice could be implemented in a traditional court setting. This approach would then avoid the costs associated with setting up a community court as a separate entity (Brown and Payne, 2007; Mair and Millings, 2011). Many elements of the original American models were subsequently lost through these alterations, such as the relationship that builds between a single dedicated judge and the defendant over time. It is possible that the elements of problem-solving courts that were removed in the English versions were fundamental to the successful operation of the court models.
The Irish Context
There is a drug treatment court (DTC) currently operating in Ireland. The Dublin DTC was launched as a pilot in 2001 and was made permanent in 2006. There were commitments to expand the DTC programme made in The Agreed Programme for Government 2007-2012. However, the programme was never rolled out further due to issues with how the existing DTC was operating. An evaluation of the DTC was conducted in 2010 to determine why there were such low levels of referrals to the court and how this could be improved (Department of Justice, Equality and Law Reform, 2010). Recommendations were made to improve management support, co-ordination and promotion of the DTC, as well as increasing data collection to allow for future evaluation (Department of Justice, Equality and Law Reform, 2010). The Dublin DTC has received further criticism due to the lack of referrals, low completion rates, and the cost of keeping the court running (Gallagher, 2019). A Substance Misuse Court (SMC) was established at Belfast Magistrates’ Court in 2018 as a collaboration between the Northern Ireland Courts and Tribunals Service, Probation Board for Northern Ireland, and Addiction NI (O’Hare and Luney, 2020). The SMC has been yielding positive results according to an initial evaluation conducted in 2019. It will be interesting to see how the SMC pilot develops over the next few years as it may inspire reform of the Dublin DTC.
In 2007, a report was published by the now defunct National Crime Council which recommended that a community court be introduced in Ireland, specifically located in Dublin. This recommendation was not further acted upon until 2014 when the Joint Committee on Justice, Defence and Equality again proposed a pilot community court in Dublin. The purpose of the 2014 discussion by the Joint Committee on Justice, Defence and Equality was to examine the feasibility of the introduction of a community court system in Ireland. A working group was advanced to further investigate the implementation of a community court. Findings from the working group were not made publicly available and no further developments have been made in relation to establishing a community court in Ireland. However, Gavin and Sabbagh (2019: 17) state, “if community courts are allowed to develop in the same fashion as restorative justice has done, by making slow and steady progress, they may also have a strong future in Ireland.”
Looking to the Future – Problem-Solving Courts in England and Wales
As the popularity of problem-solving courts continues to fluctuate in England and Wales, those who follow the development of such innovations would be forgiven for being cynical about the most recent revival of the court model in ‘A Smarter Approach to Sentencing’. However, Phil Bowen, the Director of the Centre for Justice Innovation, takes a different approach, as is evident in his recent piece for Counsel Magazine, ‘Problem-solving courts: hope over despair’. Bowen (2021) sees the reinvigoration of problem-solving courts as a renewal of hope that the justice system can produce positive results, even when the outlook is most bleak. He sees it as an acknowledgement that the traditional court system is not the only option, and oftentimes, is not the best option for justice. Bowen explains:
“For behind this repeated call is the persistent hope that there can be solutions to recurring problems; that there can be keys to overcoming the seeming inevitability of high re-offending rates by repeat and prolific offenders; that there can be antidotes to the pessimism felt right across the whole justice system at the pointlessness of short custodial sentences; that there are cures for the suffering of offenders trapped in an endless cycle of deprivation and punishment.”
Bowen is optimistic about the latest development in the problem-solving movement and contends that “the latest government announcement is really simply the latest landmark on a journey that was started long ago in the UK.” The UK now has a real opportunity to learn from past mistakes and is hopefully more aware of the consequences of ignoring the evidence of what works best within these problem-solving court models.
Problem-solving justice approaches tend to re-appear when the social consequences of punitive penal policy become too great to ignore. The return of this court model can be viewed as an acknowledgement that the ‘tough on crime’ approach is not producing positive outcomes and shows a commitment to try to remedy this. The rise and fall of problem-solving courts has provided a clear idea of what does not work in relation to this court model in both the UK and in Ireland. The Centre for Justice Innovation has published a briefing, ‘Delivering a Smarter Approach: Piloting Problem-solving Courts’, which outlines the valuable lessons that must be taken into account during the implementation of the problem-solving courts proposed in the 2020 sentencing white paper. While problem-solving courts continue to come into focus in England and Wales, they have never been entirely embraced as a model. Close attention must be paid to the international evidence associated with these courts. Large amounts of resources must be invested in both the court and the surrounding services, meaningful evaluations must be carried out regularly, and their recommendations must be implemented continuously. The problem-solving court model is not one that can be established and ignored, it needs to be able to adapt to challenges that arise over time. However, it is evident from both the Red Hook Community Justice Center and the NJC that the outcomes can be well worth the time and resources it takes to get problem-solving courts right.
References
Bowen, P. (2021) ‘Problem-solving courts: hope over despair’, Counsel Magazine, January 2021. Available at: https://www.counselmagazine.co.uk/articles/problem-solving-courts-hope-over-despair [Accessed 11 January 2021].
Brown, R. & Payne, S. (2007) ‘Process Evaluation of the Salford Community Justice Initiative’, London: Ministry of Justice.
Centre for Justice Innovation. (2020) ‘Delivering a Smarter Approach: Piloting problem-solving courts’, Available at: https://justiceinnovation.org/sites/default/files/media/document/2020/cji_psc_2020.pdf [Accessed 17th February 2021].
Department of Justice, Equality and Law Reform. (2010) ‘Review of the Drug Treatment Court’, Available at: http://www.justice.ie/en/JELR/Drug%20Court%20Report%20final.pdf/Files/Drug%20Court%20Report%20final.pdf [Accessed 17th February 2021].
Donoghue, J. (2014) Transforming Criminal Justice? Problem-solving and court specialisation. London: Routledge.
Gallagher, C. (2019) ‘Drug treatment court: A failed experiment imported from the US?’, Irish Times. Available at: https://www.irishtimes.com/news/ireland/irish-news/drug-treatment-court-a-failed-experiment-imported-from-the-us-1.3934948 [Accessed 17th February 2021].
Gavin, P. & Sabbagh, M. (2019) ‘Developing Community Courts with Restorative Justice in Ireland’, 00(0) British Journal of Community Justice 1-22.
Hales, L. (2002) ‘Do Drug Treatment and Testing Orders Really Work?’, 47:1 Criminal Justice Matters.
Joint Committee on Justice, Defence and Equality. (2014) Report on hearings in relations to community courts. Dublin: House of the Oireachtas.
Mair, G. & Millings, M. (2011) ‘Doing Justice Locally: the North Liverpool Community Justice Centre’, Centre for Crime and Justice Studies 6.
Ministry of Justice. (2020) ‘A Smarter Approach to Sentencing’, Available at www.gov.uk/official-documents [Accessed 19 January 2021].
Murray, S. & Blagg, H. (2018) ‘Reconceptualising community justice centre evaluations – lessons from the North Liverpool experience’, 27:2 Griffith Law Review, 254-269.
National Crime Council. (2007) ‘Problem Solving Justice: The Case for Community Courts in Ireland’, Available at: https://www.drugsandalcohol.ie/24889/1/Crimecouncil.pdf [Accessed 17th February 2021].
Neighbourhood Justice Centre. (2019) ‘Strategic Plan 2019-2023’, Available at: https://www.neighbourhoodjustice.vic.gov.au/about-us/our-story/strategic-plan2019-23 [Accessed 19th January 2021].
Neighbourhood Justice Centre. (2020) ‘Results’, Available at: https://www.neighbourhoodjustice.vic.gov.au/about-us/our-story/results [Accessed 19th January 2021].
Nolan, J.L.J. (2009) Legal Accents, Legal Borrowing: The International Problem-Solving Court Movement. Princeton: Princeton University Press.
Northern Ireland Courts and Tribunal Service, Northern Ireland Statistics and Research Agency. (2020) Evaluation of the substance misuse court pilot. Belfast: Department of Justice, Northern Ireland.
O’Hare, G. & Luney, P. (2020) ‘Tackling Substance Misuse from a Problem-Solving Justice Approach’, 17 Irish Probation Journal 43-62.
Ross, S. (2015) ‘Evaluating neighbourhood justice: measuring and attributing outcomes for a community justice program’, Trends and issues in crime and criminal justice. No. 499, Australian Institute of Criminology.
Victorian Government Department of Justice. (2010) ‘Evaluating the Neighbourhood Justice Centre in Yarra 2007-2009’, Available at: http://library.bsl.org.au/jspui/bitstream/1/3713/1/njc_evaluation_main_document.pdf [Accessed 19th January 2021].