The Problem with Problem Solving Justice

Last night former Chief Judge of New York Jonathan Lippman extolled the virtues of problem solving justice to a distinguished audience at the Royal Courts of Justice. In a lecture hosted by the Centre for Justice Innovation, Lippman explained how he and other judicial leaders had, over the last 20 years, encouraged courts not simply to process cases through the system but to find ways of addressing the underlying problems of addiction and unemployment. Business as usual had been  sending the revolving door of jail spinning out of control, but Lippman  described how the Midtown and Redhook Community Courts and a number of mental health and drug courts in the State  have combined help and punishment in order to offer defendants a chance to change the trajectory of their lives. The lecture was well received, introduced by the Lord Chief Justice and concluded by Justice Minister Caroline Dinenage.

Strangely, there was not a single mention of the fact that we’ve been here before. Back in the 2000’s David Blunkett, Lord Woolf and many others (myself included)  visited Redhook and returned enthused. The North Liverpool Community Justice Centre, modelled on Redhook was established in 2004 at a cost of £4 million. 13 Community justice courts were set up from Middlesborough to Merthyr Tydfil as were specialist Domestic Violence and Mental Health Courts. Of this experience there was, last night, not a word.

That is maybe because the initiatives did not work as well as was hoped. Unlike evaluations of American schemes, research found no evidence that the North Liverpool court had a positive impact on re-offending for any particular type of offender. Moreover, offenders given court orders at the court were more likely to breach the conditions of their order than the comparator group for England and Wales. North Liverpool Community Justice Centre closed in 2013. The problem solving approach elsewhere has struggled to be sustainable.

The minister said last night that a working group set up to examine models of problem-solving courts and advise on new pilots had completed its work . Hopefully the group will have looked closely at the UK experience and how the context differs from the US.  Relative lack of welfare provision and low thresholds for prosecution may mean some at least of the problems in American courts are more straightforward to fix than over here. More developed options for pre-court diversion may mean that the police or CPS are better agents of change in England and Wales than the courts. Culturally, judges and magistrates here may be more reluctant to get involved in the implementation of sentences (as opposed to their imposition) and unwilling to express the kind of emotion Judge Lippman described on seeing a changed offender at a "graduation" hearing. Maybe performance measures simply don't allow courts the opportunity to identify defendants' problems and arrange the required response from health and welfare services already under stress.

Yet the climate may be more propitious for problem courts this time round although money is much tighter than it was . The Centre for Justice Innovation is able to provide the kind of technical assistance which was lacking with the initiatives in the last decade. The Judiciary is leading a major modernisation programme in courts which provides, at least, a strong following wind.  

A 2009 Policy Exchange Report on Problem-Solving Justice in England and Wales was entitled Lasting Change or Passing Fad. If it’s to be the former, and I hope it is, the question is not why problem solving justice but how. It’s a question of which Ms Dinenage’s father Fred would have been proud.