Courtroom shake-up

Ben Rogers
22 September 2005

Democracy is destined to disappoint. The space between theory and practice is often an affront to anyone with a hint of idealism in them.

The courts are a case in point. In theory at least, the British court system is breathtakingly radical. Less serious cases are heard by lay judges in the form of magistrates. More serious cases are presented to a jury of randomly selected citizens. Which other of our practices is based on the principle of direct democracy – of ordinary people making public decisions – the purest and most thorough democracy of all? If trail by jury didn’t exist, we would never have the audacity to invent it.

Yet the reality is very far from the ideal. Jury service might be radical in principle, but there has been extraordinarily little innovation in the way it is practiced over the last hundred years, and our courts hardly feel democratic, let alone participatory. Rather than the system being designed around jurors, jurors wait on judges and other officials and have to adapt to their values and needs. Lay magistrates no doubt save the criminal justice system a great deal of money, and help maintain some connectedness between authorities and the public, but they are far from representative of the public. Moreover, they are required to act more like un-paid professionals than active citizens. I doubt that most people who come before magistrates are even aware that they are volunteers.

It doesn’t, however, have to be like this. The last couple of decades have witnessed a number of developments that could breathe new life into the old principle of trial by jury and narrow the gap between democratic ideal and democratic practice. Perhaps the most significant of these have been the use of “community justice panels” – tribunals made up of local volunteers – to deal with low-level disorder and crime. These panels typically take a “restorative justice” approach, and try wherever possible to bring victims and offenders together with members of the community to discuss the causes of the offence, agree on ways of making amends, and identify steps to stop the offender offending again. As court processes become ever more centralised, and local courts close, community justice panels offer a way of ensuring that the criminal justice system retains a local face.

This article forms part of the “Peer Power: Reinventing Accountability” debate. AccountAbility, openDemocracy’s partner in this debate, will hold a major event, “Accountability 21: Reinventing Accountability for the 21st Century” on 3-5 October in London.

Also in this debate

Bill Thompson, “The Democratic Republic of Cyberspace?”

Simon Zadek, “Reinventing Accountability for the 21st Century”

John Lloyd, “The responsibility of the harlot”

Becky Hogge & Geoff Mulgan, “Open source nation”

Sarah Lindon, “Talking Democratically”

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As is so often the case when it comes to social innovation, the US seems to be leading the pack. Drawing on earlier experiments in “restorative justice”, and partly inspired by Native American and Maori approaches to dispute resolution, Vermont (to take just one example) has been using community panels for around a decade, with apparently impressive results. The Midtown community court in Manhattan has similarly been using “victim impact panels” to drive home to offenders the effects of their conduct.

Britain is beginning to follow suit. I recently made a trip to Chard, in Somerset, to see a community justice panel in action. The panel was created by an enterprising councilor in response to complaints about the closure of the local magistrates court, decline in local police numbers, and increase in crimes such as drunk-driving, speeding, vandalism, and warring neighbours. The police and council responded by setting up a panel, served by local volunteers, who hear cases referred to them by the police and other local agencies.

No one is forced to go before the panel – cases can be dealt with through the usual channels – and it does not deal with people who deny guilt. But many choose to go before it, because the alternative could be being turned out of a council home or getting a criminal record.

All panelists are trained in the practice of restorative justice – and the aim of panel meetings is, where possible, to bring victims and offenders together. Where appropriate the panel will require offenders to apologise to the victim and to make reparations to either the victim or the wider community as well as to deal with the roots of offending behaviour (through drug treatment, say or anger-management courses), making sure that offenders get necessary support from public services. Probation professionals help ensure that the panel’s “orders” are proportionate to the offence.

The ethos is one of solving problems and making amends, not retributive punishment. Yet the panel received enthusiastic endorsement from local police, council and press, all relieved that something is at last “being done”.

Similar innovations have taken place in youth justice. Here the UK has made impressive headway. As a result of the reform of the English youth justice system five years ago, almost all children who come before youth courts for first offences are now referred to “youth offender panels” made up largely of lay people schooled in restorative justice. Interestingly the system has had little problem in securing volunteers to sit on these panels, volunteers are more representative than are magistrates, and the panels appear to be relatively effective in securing cooperation of offenders and preventing reoffending.

In a more radical innovation still, schools and youth justice services, in the US, UK and elsewhere, are beginning to experiment with “peer courts” or “teen courts” – courts for young people, manned by young people. Here too the results are encouraging – young people who disregard their elders are often surprisingly receptive to criticism and support when it comes from their peers.

These sorts of innovations will make many liberals a little queasy – they’ll worry about placing authority in the hands of ordinary people, with their wild convictions about crime and punishment. Yet survey after survey reveals that the public are much less punitive than liberals or Daily Mail readers suppose – and they become still less punitive when engaged in real-life cases. At the same time, the presence of locally-run, locally-manned tribunals and visible schemes of community reparation have been shown to increase confidence in public services, reassure the public about crime, boost community life social capital, and reduce pressure for harsher sentences.

In an age of when sociologists and social commentators are advocating the potential of “peer-networks” and “peer-run” organisations, it is only fitting that one of the most venerable forms of peer review – “trial by one’s peers” – should be reinvented.

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