Regulating criminal justice: The role of procedural justice and legitimacy in the inspection of probation in England and Wales

Published date01 April 2024
DOIhttp://doi.org/10.1177/14624745231211292
AuthorJake Phillips
Date01 April 2024
Subject MatterArticles
Regulating criminal justice:
The role of procedural
justice and legitimacy in
the inspection of probation
in England and Wales
Jake Phillips
Reader in Criminology, Sheff‌ield Hallam University,Sheff‌ield, UK
Abstract
Criminal justice institutions are held to account in a number of ways yet there is limited
knowledge as to how these systems of regulation function. One primary method for
regulating systems of punishment is through the use of independent inspectorates, yet
very little empirical research has explored how inspectorates engage with the organisa-
tions they inspect nor how inspection is received by inspected organisations. Procedural
justice theory has been used to understand compliance with laws. It can also shed light
on compliance with systems of accountability, although there is a dearth of research in
this area. Thus, our understanding of how regulation works in situ is limited. This article
uses procedural justice theory to analyse data that were collected in England and Wales
to explore how His Majestys Inspectorate of Probation garners legitimacy from those it
inspects. The article suggests that the Inspectorate is seen to be trustworthy and impar-
tial, treats people with respect and provides them with a voice although there is variance
between groups. The article contributes to (1) our understanding of how regulation
works in the f‌ield of probation and (2) procedural justice theory by exposing the
mechanisms that underpin compliance with regulatory regimes in institutional settings.
Keywords
probation, regulation, procedural justice, inspection
Corresponding author:
Jake Phillips, Department of Law and Criminology, Sheff‌ield Hallam University, Collegiate Crescent, Sheff‌ield
S10 2BQ, UK.
Email: Jake.Phillips@shu.ac.uk
Article
Punishment & Society
2024, Vol. 26(2) 283303
© The Author(s) 2023
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/14624745231211292
journals.sagepub.com/home/pun
Introduction
Community sanctions are partly legitimated through being positioned as alternativesto
custody, reserved for people who have caused insuff‌icient harm nor pose suff‌icient risk to
the public to warrant detention. Although re-offending rates amongst people who have
served short custodial sentences are higher than amongst those who had served a commu-
nity sanction (Hamilton, 2021) garnering suff‌icient legitimacy for probation services has
proven diff‌icult over the years. As a result, successive governments in England and Wales
have resorted to the language of toughening upprobation instead of focusing on its
rehabilitative efforts (Robinson and Ugwudike, 2012). However one chooses to justify
and legitimise community sanctions, there needs to be evidence that probation services
are delivering what they are tasked to do. As such, Ministry of Justice analysts and inde-
pendent researchers undertake analysis and evaluations of effectiveness, although histor-
ically community sanctions have remained invisible and poorly researched when
compared to other criminal justice institutions (Robinson, 2016). Criminal justice agen-
cies are also scrutinised by bodies such as the Ministry of Justice which carries out such
tasks through internal monitoring, quality assurance and independent inspection. These
methods of accountability are poorly understood, with the National Audit Off‌ice
(2015) identifying a lack of knowledge on the impact of inspection across the criminal
justice system.
This article explores the regulation of criminal justice institutions by analysing data
collected in research on the impact of inspection on probation through the lens of proced-
ural justice (Tyler, 1990). The article examines stakeholdersexperiences of inspection to
explore His Majesty Inspectorate of Probations (HMI Probation) perceived trustworthi-
ness, impartiality, respectfulness and the extent to which inspected people have a voice in
the process. This analysis sheds light on how inspectorates generate legitimacy to ensure
recommendations are implemented. In doing so the article makes a contribution to pro-
cedural justice theory by exposing the mechanisms which underpin the nature of compli-
ance with regulatory regimes in institutional settings.
Regulating criminal justice
Regulation exists to steer the f‌low of events(Grabosky, 2010: 73) and can relate to both
criminal justice as an activity (in that punishment seeks to change behaviour) and for the
purposes of this article criminal justice practice as a regulated activity. Since the f‌inal
decade of the twentieth century audit and inspection activities have increased partly due
to a declining lack of societal trust in organisations (Power, 1997). Whilst audit may have
laudable aims (improving practice and service delivery) it can also bring unintended side
effects. For example, Power (1994) notes that audit can provide comfort to stakeholders
who are remote from day to day practicesbut also bring an end to dialogue around how
to improve. Moreover, Power (1994: 39) argues that whilst audit is directed at evoking
good feelings about organisational practices it may also become a new form of image
managementinstead of substantive analysis. Whilst inspectorates exist to drive
system change(HMI Probation, n.d.) there is little evidence on how or indeed
284 Punishment & Society 26(2)

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