Effective participation in criminal proceedings: principle and practice

Recent cross-jurisdictional research examined the meanings and functions of, and barriers to, ‘effective participation’ by court users.

Jessica Jacobson is Professor of Criminal Justice at the Institute for Crime & Justice Policy Research (ICPR), Birkbeck, University of London. Her research interests span many aspects of the criminal and wider justice system, and she has researched and published on such topics as prisons, youth offending, sentencing, criminal advocacy, and public experiences of the justice system. As Director of ICPR, she also oversees the institute’s programme of academically-grounded, policy-oriented research.

It is a long-established legal principle in England and Wales that people should be able to participate effectively in the court and tribunal proceedings that directly concern them. And yet the concept of participation is poorly defined in law and under-explored in legal research and analysis.

In criminal proceedings, the defendant’s exercise of their Article 6 right to a fair trial rests, in part, on their capacity to participate effectively, while the criteria for determining fitness to plead also support the principle of effective participation. Fair trial rights are not generally regarded as extending to complainants and other witnesses in criminal hearings: rather, support in law for their participation is largely framed in terms of improving the quality of the evidence they give in court. This, for example, is the main aim of the ‘special measures’ provisions introduced by the Youth Justice and Criminal Evidence Act 1999, whereby witnesses identified as vulnerable can give evidence from behind a screen, via live video-link, with assistance from an intermediary, or with other specified forms of help. More broadly, the Criminal Procedure Rules 2020 require the court, in preparing for trial, to ‘take every reasonable step … to facilitate the participation of any person, including the defendant’ (para 3.8(3)(b); emphasis added).

But what exactly does it mean for a defendant or witness to participate effectively in criminal proceedings? This question was addressed in a recent cross-jurisdictional study, conducted by the Institute for Crime and Justice Policy Research (ICPR) at Birkbeck, University of London, and funded by the Nuffield Foundation. As well as the criminal courts (both Crown and Magistrates’), the study encompassed the Family Court and some tribunals; the research entailed policy analysis, courtroom observations, and interviews with justice practitioners including judges, lawyers, court staff and providers of support services. 

The interviewed justice practitioners shared a general commitment to the principle of participation: arguing that justice could not be achieved in its absence and, moreover, frequently emphasising their own respective roles in helping court users to participate. In discussing participation, they did not draw upon ready-made or precise definitions of the concept, but rather articulated it in a range of ways. Six contrasting conceptualisations of what court users’participation entails could be identified in practitioners’ accounts: 

  • Providing or eliciting information for the court;
  • Being informed, such that they have understand the court process and outcomes;
  • Having legal representation;
  • Being protected: that is, not being exposed to excessive fear, distress or discomfort;
  • Being managed in such a way that they do not disrupt the court process;
  • Being present at proceedings.

The functions of court users’ participation were likewise described in various ways, among which the prominent themes were that:

  • Participation is, in and of itself, the exercise of one’s legal rights;
  • Court decision-making depends on the information provided or elicited by participating court users;
  • Court users who participate and thus have a ‘voice’ in proceedings are more likely to view the court process and outcomes as legitimate;
  • Participation potentially offers therapeutic benefits to court users.

From the courtroom observations conducted for the study, it was clear that the nature of court user participation varies according to the judicial setting, type of hearing, and the court user’s role or legal status. For example, the part a defendant might play in a criminal trial necessarily differs from that of a prosecution witness appearing in the case; while the scope of participation by a parent in a contested care hearing in the Family Court, or a claimant in an Employment Tribunal hearing, is very different again. Nevertheless, there were many commonalities to participation which cross-cut the jurisdictional and other divides. Most notably, almost every case had at its heart a story of conflict, loss and disadvantage; and each court user’s ‘participation’ was, in effect, a process by which they told, or had told on their behalf, their own version of that story. This process was facilitated by courtroom professionals and practitioners who were, very predominantly, courteous, kind and respectful in their dealings with court users.

However, the observed court proceedings did not simply entail the telling of court users’ stories, but also – necessarily – their translation into legal questions and legal answers in order that decisions could be made and judicial outcomes achieved. And it was apparent that this process of translation was also a process of disempowerment. The formality and complexity of court language, concepts and structures, and above all the power differentials they embodied, had the effect of marginalising and silencing court users and, ultimately, disconnecting them what was going on around them.

Over recent years, the HMCTS court reform programme has introduced many policy changes with the stated aim of ‘building a modern system for administering justice which will benefit everyone who uses it’. Notwithstanding a continuing focus within the programme on access to justice, aspects of the reforms have created potential new barriers to effective participation: particularly, the wide-scale court closures and accompanying expansion of remote and online proceedings. At the same time, availability of legal advice and representation has been severely impacted by sweeping cuts to legal aid. Today, the Covid-19 pandemic – which has given rise to large case backlogs and rapidly accelerated the trend towards ‘virtual justice’ – adds far greater urgency to the task of developing and implementing a principled approach to supporting participation. Such an approach should be based on a clear understanding of what exactly participation means, why it matters, and what can be done to ensure it is genuinely effective across all judicial settings. The findings of ICPR’s research will, it is hoped, significantly advance this understanding.

The findings of the study are published in the book Participation in Courts and Tribunals: Concepts, Realities and Aspirations (editors Jessica Jacobson and Penny Cooper), available from Bristol University Press and as an open access e-book. A policy briefing and practitioner toolkit based on the study findings are also available.

Contact

Jessica Jacobson, Professor of Criminal Justice

Institute for Crime & Justice Policy Research (ICPR)

Birkbeck, University of London

Email: j.jacobson@bbk.ac.uk

Website: https://www.icpr.org.uk/people/jessica-jacobson

Images courtesy of the author

A Seminal Moment for America’s Campus Police?

Demonstrations at U.S. colleges and universities over alleged improprieties by campus police are forcing schools to rethink all aspects of these agencies.

John J. Sloan III is Professor emeritus of criminal justice at the University of Alabama at Birmingham. His research interests include specialized police agencies, criminal justice policy, and professional ethics. His work has appeared in outlets such as Criminology, Criminology & Public Policy, Justice Quarterly, and Social Forces.

In recent months, demonstrations have been occurring at multiple U.S. colleges and universities over alleged improprieties by campus police that include charges of  racial profiling, using excessive force, and increasing “militarization.” Questions have also arisen over the legitimacy of campus police and whether they are “real” police. Demonstrators’ proposed solutions  have included disarming, defunding, and even abolishing campus law enforcement agencies found at 95% (n=905) of all U.S. colleges and  universities enrolling over 2,500 students. A movement is clearly underway at many U.S. colleges and universities that is forcing institutional administrators to rethink all aspects of having “cops-on-the-campus.”

Having studied and worked with campus police agencies since the 1990s,  I am not surprised a day-of-reckoning has arrived for them and suggest three specific reasons why this reckoning is occurring. First, the historical roots of campus police reveal they were specifically created to address student unrest on campus and protect school property from the damage that often accompanied it. Second, in creating campus police agencies, school administrators adopted mimetic isomorphism as the mechanism for creating them and imbuing them with legitimacy. Finally, in an effort to further professionalize campus policing and increase its perceived legitimacy, nearly all aspects of campus law enforcement ranging from officer training to within agency specialization have mirrored those associated with municipal police more broadly. Because campus police sought legitimacy by mimicking the structure of, and processes associated with, municipal police departments, they are also confronting the same existential threat faced by the police more broadly.

Sworn police officers – those having the power to detain and arrest – have patrolled the campuses of American postsecondary institutions since 1894 when Yale University hired two off-duty City of New Haven police officers to patrol the campus. However, as they are now known and configured on American college campuses, campus police have only existed at U.S. colleges and universities since the late 1960s and early 1970s when American college and university campuses increasingly became sites of protests over U.S. involvement in the Vietnam War, civil rights, the “free speech movement,” and the rise of the “new American left.”  Many of these protests became violent when student protestors confronted local or state law enforcement, or in some tragic instances the National Guard, that had been ordered to campus to restore order and protect institutional property. School administrators soon realized that unless they did a better job controlling the protests, outside political authorities, such as governors, would do so for them. What to do?

With assistance from existing law enforcement agencies and state legislators, postsecondary administrators decided to create institutionally-based law enforcement agencies, dubbed “campus police departments,” that would be part of the fabric of the campus community but also have state-accorded power to address lawlessness on campus. State-level enabling legislation was quickly drafted and passed by multiple state legislatures, and thus was born a new, specialized, police agency whose jurisdiction (at least initially) was limited to the geographic boundaries of the postsecondary institution but whose sworn officers would enjoy full law enforcement power and authority including the use of deadly force.

Senior-level postsecondary administrators quickly hired upper-echelon commanders from local (county or municipal) agencies to oversee creation of the new campus police department. Because these individuals came from law enforcement, they chose a familiar organizational model, that of the municipal police department,  to adapt to a new set of circumstances. Like its municipal counterpart, the new campus police agency would have a rank structure, a chain of command and a paramilitary orientation, task specialization, and training, both academy-based and in-service. Officers employed by the department would have full arrest powers and be decked out in the accoutrements of law enforcement, including uniform with name tag, badge, rank, and shoulder patch with department name sewn onto it, and the familiar utility belt holding weapon(s), handcuffs, communication devices, chemical weapons, and baton. By copying the look and feel of municipal police departments, postsecondary administrators believed the new officers would be accorded legitimacy by students, faculty members, staff, and visitors. Campus cops are real cops!

Over the next few decades, the number of campus police departments steadily  grew and with that growth came a push to professionalize campus law enforcement. As campus departments recruited and hired new officers, they were sent to training at established police academies around the country. There, they received basic law enforcement training over the course of 4-5 months alongside new recruits who had been hired by state, county, and municipal police agencies. Also included in the push was creation of a professional association of campus law enforcement officials, the International Association of Campus Law Enforcement Administrators (IACLEA), whose articles of incorporation were filed in the State of Georgia in 1980 and which was recognized by the U.S. Internal Revenue Service (IRS) as a non-profit organization in 1981. What had been a monthly newsletter for the organization became a full-fledged publication, the Campus Law Enforcement Journal which continues to publish six issues annually and is “the” trade publication for the industry.

The end result of the push to professionalize campus police is that they have become increasingly like their municipal counterparts both tactically and organizationally. Tactically, because it is now the norm for new hires to attend basic law enforcement training at one of the over 600 police training academies operating in the U.S., as part of basic training new hires learn not only about firearms and use of deadly force, but also about use of “less-lethal weapons” including batons, chemical irritants (e.g., tear gas, “pepper spray”(oleoresin capsicum)), and conducted energy devices (e.g., Tasers). Campus officers now carry on their person an approved set of “tools” that includes both lethal and less-then-lethal weapons that become available for officer use during encounters with students, faculty members, staff, and visitors but the presence of which has been shown to elicit variation in constituent perceptions of the officers as hostile, helpful, friendly, and answerable for their actions.

Organizationally, campus departments are becoming more specialized in their operations, including creating “tactical operations teams” (i.e., SWAT teams). To illustrate, during 2011-2012 – the most recent years for which data on campus police agencies are available – 27 percent of campus police agencies using sworn officers indicated they had officers assigned to a tactical operations (SWAT) team. What this translates to is that of approximately 615 campus police departments using sworn officers, about 167 had a unit using specialized military tactics and/or equipment to address so-called “high-risk” situations (e.g., threats of terrorism, for crowd control, or to address a hostage-taking situation) that exceed “ordinary law enforcement” capabilities. 

The militarization of the campus police may simply reflect a growing trend by different types of police agencies in the United States to utilize SWAT teams to perform routine tasks (e.g., serving search warrants) that can ultimately lead to unnecessary casualties and property damage. Peter Kraska was among the first to note this trend when he spoke of the “militarization of law enforcement” back in 2007, while Radley Balko’s Rise of the Warrior Cop became a best-seller in 2013.

A second organizational trend is extension of both arrest and patrol jurisdiction of campus police to areas well-beyond the physical boundaries of the campus itself. During 2011-2012, for example, 86% of campus police agencies’ arrest jurisdiction included properties adjacent to campus and 71% of agencies’ jurisdiction included areas beyond the area immediately surrounding the campus. Also during 2011-2012,  81% of agencies employing sworn officers had patrol jurisdiction that extended to properties immediately adjacent to campus and 57% of agencies’ patrol jurisdiction extended even beyond properties immediately adjacent to campus. Thus, it is now common for campus police to engage in routine patrol in the neighborhoods surrounding the campus and have the power to arrest people in those areas.

For several decades, campus police agencies in the United States have grown larger, become more professionalized, and more complex organizationally. Gone are campus “watchmen” and “rent-a-cops” of bygone eras. They have been replaced with sworn police officers trained at state- or nationally-accredited academies, who are then equipped with all the tools of 21st century policing including weapons and technology, and whose patrol jurisdiction and arrest powers are steadily expanding. However, like their municipal counterparts, campus police are also encountering significant pushback and criticism. This past June, for example, Johns Hopkins University announced it was putting on hold for two years a plan to create its own campus police agency in light of protests over the school’s plan to create such an agency. Campus police are also being criticized for their opacity, militarization, use of excessive force, and racial profiling. Whether and how campus police in the United States weather this seminal moment in their history remains an open question.

Contact

John J. Sloan, III, Dept. of Criminal Justice, University of Alabama at Birmingham

Email: prof@uab.edu

Images courtesy of the author and “IL – Benedictine University Campus Police” by Inventorchris is licensed under CC BY-NC 2.0