Geroge Julian

Whilst reading Laura Frampton’s thoughtful and balanced article on ‘Paedophile hunting and the Management of Sex Offenders’ (BJCJ 12th July), I reflected on some of the real dilemmas that sentencers face when judicial decision making constrained although not confined to working within existing sentencing guidelines, (in the interests of justice test is the fallback position when departing from prescribed guideline penalties for offences that often lie on the cusp between community and custodial outcomes). But impose an obligation to consider a condign sentence or reach a bail decision that adequately reflect levels of culpability and harm and the particular and often challenging circumstances of the defendant.

I have been sitting as a magistrate in a busy London court for over five years (having previously worked as a probation officer for twenty years) *. I wanted to share with the readership two particular but unsettling cases that stood out from the hundreds of cases that I have been involved with, as a winger in the magistrate’s court that touched on the thorny issue of sentencing/bail decisions. When defendants appeared before the bench either accused of sexual offences or when dealing with a challenging bail application in which sexual offending has occurred.

In the two cases referenced, due to the shortage of magistrates sitting in the local court, meant that I was the only winger sitting with a chair (now referred to as a presiding justice) In light of this vacancy shortfall, the normal practice of having three magistrates sitting on court hearings was usually reserved for trials.

The first case that I recall having to spend considerable time in deliberation on with a ‘fraught’ chair ( who had a pressing domestic emergency to deal with) involved a defendant who appeared toward the end of a particularly busy sitting in one of the remand courts (which normally deal with bail decisions and committal hearings to the Crown Court). The defendant was facing indictable offences of historic sexual offending (that is the alleged offences dated from a broken relationship that had concluded some years before). His advocate presented a well-argued case for conditional bail prior to trial and I was persuaded by this in light of all the relevant factors, including suitable and proportionate safeguards to protect the complainant.

My colleagues view differed, and we agreed to retire to discuss options before returning to court. He was adamant that the offences were too serious for bail (although offence seriousness is not in itself a reason to withhold bail) and we spent over half an hour in animated deliberation poring over the specifics of the case without reaching agreement. At this point the legal adviser, came into the retiring room to request that a decision be made or if no agreement could be reached; Then the case would need to go to another bench (or before the District Judge) with the defendant most likely held in custody overnight. At this point, my colleague ‘relented’ (it was apparent that his domestic preoccupations had been a critical factor in this decision) and we agreed that conditional bail could be considered with restrictions imposed commensurate with the concerns identified.

I experienced an uncomfortable few moments on returning to the courtroom, when the defendant’s legal representative, who had braced her client for a likely remand in custody, evinced some undisguised elation and my colleague let out a grittily voiced pronouncement with the usual warnings on the consequences of any breach of bail. I left the court at the end of the day, feeling most unsettled that the outcome of a bail application seemed to pivot on the pressing demands of a domestic emergency rather than a shared understanding that bail was fully merited!

The next case involved a defendant who appeared in custody, again I was the only winger sitting with a chair, who had pleaded guilty to an allegation of being in breach of the terms of his sexual offenders registration. The defendant had served consecutive short prison sentences for the same offence. As he was homeless, he was required to report to the nearest police station within seven days of release to notify the police of his ‘ whereabouts’. His disturbing presentation in the secure dock, a suggestion of mental illness mooted by the duty solicitor who was representing him and the fact that he was most likely known to the probation service. Prompted me to quietly nudge my colleague, that the case be put back for the preparation of a pre-sentence report.

I was more than a little shaken when the chair unblinkingly uttered (his comments were clearly audible to other court users) that ‘he is going down’! We retired and having previously robustly clashed with him on reaching a past sentencing decision, albeit in a more broadly measured and respectful way. I sensed that this could be another such likely denouement. We returned to the courtroom, he conceded that the probation service needed to offer the court an update on the defendant’s response to supervision. As all the courts were then at full stretch, ten minutes elapsed before the rather hassled looking probation worker appeared, as other cases awaiting the court’s attention were put back. The defendant was in fact in breach of his licence conditions, and it was looking distinctly unpromising that any non-custodial outcome might be on offer.

But I stood by the view that a homeless defendant, with a troubled history of mental health and sexual offending and who had now served consecutive prison sentences for the similar offences (failing to register with the police due to his unstable personal circumstances), should be afforded an updated probation/mental health assessment. The mien and disposition of my colleague, in a packed open court, was most unnerving, but I was convinced that this was a just and proportionate outcome. The sheer futility of imposing yet another costly custodial sentence without post release support seem unarguable, at least to me! (one of the determining factors in pushing ahead with the much contested government’s TR reforms being to obviate such revolving door scenarios!)

In the event, the legal adviser, to resolve the split decision suggested that the case be transferred to another bench for sentencing or maybe even an updated assessment! The bemused defendant was escorted to the cells and we proceeded with the next case on the list. At the end of the day, in the post-court review, my colleague averred that it was my probation background that had bolstered my judicial resolve! But it seemed evident that the approach to judicial decision making in such cases, whilst offering scope for other perspectives, appeared more aligned to what I perceived as deeper philosophical differences and contextual understanding (again my probation background seeping through) in the way certain forms of judicial outcomes were reached. Not least when cases that involved sexual offending appeared before the court. The expression ‘ intuitive synthesis ‘ is one that does not readily trip off the tongue in a busy court setting.

But when faced with the judicial responsibility to pass sentence or consider bail, there are many and varied interstitial moments of contestation and outlook to consider that are often lost to view in a busy court setting, but which might offer researchers a richer heuristic appreciation of some of the more hidden aspects of justice embedded in what is referred to as ‘ structured decision making’ drawn from sentencing guidelines which feature prominently in the rather paltry professional training currently offered to magistrates .

I hope that these few observations culled selectively from a wider palette of judicial decision making highlight that even before those convicted of sexual offences are ‘managed’ in/out of custody and in the community. There is a broader hinterland of ‘under -researched’ and often contested judicial deliberation taking place daily in the retiring rooms of the magistrate’s court.

Mike Guilfoyle – is a retired probation officer/magistrate and writes a monthly blog for the Centre for Crime & Justice Studies( CCJS).

Why be interested in trust?

Throughout our lives, most of us are taught that trust is important between people, whether that be in a romantic and/or work relationship. But what about people with convictions, the vast majority of whom, the evidence suggests, have had poor relationship and/or work role models? How do they view trust? What does trust mean to them? My interest in this notion of trust in probation practice was piqued whilst studying as a mature student during my undergraduate degree in criminology. It became clear from my reading that there was more to it than we realised. Perhaps if we could develop a deeper understanding of the role of trust in probation supervisor and service user relationships, we could help those working in the criminal justice system with their relational work.

Think about the centrality of the relationship between the service user and the probation practitioner. Yes, the ‘relationship’ is widely held to be at the very heart of the job (McCulloch, 2015). But why? Well, because this is where the key relational practice processes such as collaboration, cooperation, coproduction, and compliance are initiated, negotiated, and developed. But what makes all that tick or go awry? What are its nuts and bolts? What is central to the relationship being deemed a success or failure? I am convinced that part of the answer to these questions is the ‘special sauce’ of relational trust, that can both hold things together and help get stuff done. If we understood it better, and the positive role that it can play in the practitioner/service user relationship, then maybe it can be mobilised more effectively to improve desistance outcomes.

Why does trust matter between the probation supervisor and service user?

If we look at studies examining ‘quality’ in probation practice, they tell us that service users won’t actively participate in ‘relational work’ unless, or until, they trust the practitioner (Robinson et al., 2014). If they don’t, then practice processes like the negotiation and delivery of probation conditions, rigorous risk assessments, and the provision of social support services are more difficult to do. So, trust seems to be doing a lot of work in the relationship, but at the same time, how practitioners mobilise, negotiate, and develop trust or not with service users remains poorly understood, and too often neglected as an integral part of successful probation practice. I think that the role that trust plays in effective probation supervision represents a critical blind spot in current offender rehabilitation and desistance research. So much so, that I am now undertaking a doctoral study investigating the role of trust in the service user-practitioner relationship.

What do we currently know about trust?

Having read a lot of the literature in this area, the long story short is that trust, and how it operates in the probation context, is not well understood. What we do know is that placing our trust in someone else involves individual risk and vulnerability, and it’s not always easy, precisely because in trusting the other person we are taking a risk and leaving ourselves open to who we give our trust to. Neither can trust ever be taken, it requires consent, and to whom consent is given depends on situational and contextual conditions being met (Josang & Presti, 2004).

To illustrate, it is widely held that some individuals have a general propensity to trust others and conversely, there are individuals who have a general propensity to distrust others. But these are not opposites. What they are is an individual’s prior relationship experience(s) of similar relationships, situations and/or contexts, which then shapes their expectations and preferences in that specific situation and/or circumstance (Van Der Werff & Buckley, 2017; Constantino et al., 2012).

So, this results in people making assessments on whether to trust someone else from the very first encounter, and what we each look for in potential trustees is trustworthiness, which turns on individual characteristics such as competence, benevolence, and integrity (Colquitt et al., 2007). In simple terms, the explicit factors which affect our decision to trust or not, are the perceived legitimate use of another’s status and power to communicate their values/goals, both respectfully and non-judgementally, whilst simultaneously having positive regard for our own values and goals. So, trust develops as a result of positive exchanges of regard and esteem between both parties. This doesn’t happen overnight. It’s a staged process and it’s nuanced, complex, multifaceted, and multi-layered, and requires courtship, mobilisation, curation, cultivation, often repair, and continuous validation. In short, it’s complicated!

How does new research plan to address these gaps?

If I’m right, then building trusting relationships with service users involves sensitive, complex negotiations, undertaken in unique circumstances that necessitate personal risk to both the practitioner and the service user alike.

If we know more about the dynamics, mechanisms, and stages of these complex processes, then we would have a clearer picture of how the process of trust interrelates with the essential practice features of compliance, cooperation, collaboration and/or coproduction. It is this ‘inter-relation’ that my research study delves into, and whilst the main aim is to provide a deeper understanding of trust and its relationship with probation practice, it could also result in practitioners being better placed to understand, review, and consolidate these processes as an aid to goal attainment in the relational probation practice milieu.

Author:

Denis Sidebottom (Doctoral Researcher), Huddersfield University; denis.sidebottom@hud.ac.uk

References:

Colquitt, J.A., Scott, B.A. and LePine, J.A. (2007) ‘Trust, trustworthiness, and trust propensity: A meta-analytic test of their unique relationships with risk taking and job performance’. Journal of Applied Psychology, 92(4):909.

Constantino, M.J., Ametrano, R.M. and Greenberg, R.P. (2012) ‘Clinician interventions and participant characteristics that foster adaptive patient expectations for psychotherapy and psychotherapeutic change’. Psychotherapy, 49(4):557.

Jøsang, A. and Presti, S.L. (2004, March) ‘Analysing the relationship between risk and trust’, in International Conference on Trust Management (pp. 135-145). Springer: Berlin, Heidelberg.

McCulloch, T. (2015) ‘Beyond compliance: participation, co-production and change in justice sanctions’. European Journal of Probation, 7(1):40-57.

Robinson, G., Priede, C., Farrall, S., Shapland, J. and McNeill, F. (2014) ‘Understanding ‘quality’ in probation practice: Frontline perspectives in England & Wales’. Criminology & Criminal Justice, 14(2):123-142.

Van Der Werff, L. and Buckley, F. (2017) ‘Getting to know you: A longitudinal examination of trust cues and trust development during socialization’. Journal of Management, 43(3):742-770.