Standardization and the Production of Justice in Summary Criminal Courts: A Post-Human Analysis

Date01 December 2019
DOI10.1177/0964663918792725
Published date01 December 2019
Subject MatterArticles
Article
Standardization and the
Production of Justice in
Summary Criminal Courts:
A Post-Human Analysis
Lucy Welsh
University of Sussex, UK
Matt Howard
Open University, UK
Abstract
Since the 1980s, successive governments have become increasingly distrustful of
professional judgment in those services which remain funded by the state, including the
criminal justice system. Against this background, governments sought to increase effi-
ciency in summary criminal courts. One way that this seems to have occurred is via the
use of standardized forms in case progression. During 2013, Welsh conducted empirical
research in which the reliance placed on standardized case management forms became
apparent. We argue, drawing on post-humanist vocabularies to inform our analytic
framework, that such documents may have shifted the temporality of summary criminal
justice, which has the (perhaps unintended) consequence of (further) marginalizing
defendant participation and limiting the types of legal issue that are litigated. These
documents and processes, therefore, participate in the development of a particularized,
and temporally situated, form of ‘justice’.
Keywords
Case management forms, criminal justice, magistrates’ courts, neoliberalism, post-
humanism
Corresponding author:
Lucy Welsh, School of Law, Politics and Sociology, University of Sussex, Brighton BN1 9QE, UK.
Email: l.c.welsh@sussex.ac.uk
Social & Legal Studies
2019, Vol. 28(6) 774–793
ªThe Author(s) 2018
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/0964663918792725
journals.sagepub.com/home/sls
Introduction
The election of a Conservative government in 1979 marked the beginning of a time from
which British governments became ever more distrustful of professional judgment in
public institutions (Le Grand, 1997), including the criminal justice system. Since 1979,
British governments became increasingly concerned that lawyers were ‘wasting time’
and prolonging cases to maximize profit (Sommerlad, 1999). As a result, those govern-
ments (irrespective of their traditional political leanings) sought to increase efficiency in
summary criminal courts.
1
Sanders (2010), for example, notes that New Labour adopted
a regulatory, managerialist approach to criminal justice. One manifestation of a politi-
cally driven desire to increase efficiency is the use of standardized documentary forms in
case progression, which operate to channel the way in which trials are conducted.
During the course of empirical research (an ethnographic case study of magistrates’
courts consisting of observation and semi-structured interviews; detailed below), Welsh
noted the frequency with which document-based forms were used in case progression.
The document that appeared to have the most influence was the case management form
(CMF) (see Ministry of Justice, 2014), which is completed at a pretrial hearing and is
used to determine which matters are in issue and parameters within which the trial will be
conducted (see below). Using the data gathered during ethnographic research, we argue
that the use of the form in this context increases processes of standardization, which
demonstrates how the documentary form is capable of constructing a particular under-
standing of ‘justice’. This supports the work of Brenneis (2006), who discusses how
neoliberal
2
governments’ distrust of public services created a desire for (further) effi-
ciency to be both maximized and monitored through forms. The use of forms to encour-
age efficiency leads to generalization of procedures, which direct the exercise of control
over cases and court users, so that routinization via standardization appears legitimate
(Hosticka, 1979; see also Howard and Freilich, 2007). Tata (2017) argues that indivi-
dualization cleans the criminal process of its impurities and presents the defendant as an
active participant. However, ‘bureaucratisation of decision-making ...emerges in oppo-
sition to norms of “individualised” treatment’ (Tepperman, 1973: 346). Increased
bureaucratization (and therefore standardization) means that defendants might be less
able to play a distinct role in the proceedings. The reliance placed on these forms thus
provides an example of the many practices i n which neoliberalism is produced and
sustained, but the forms’ active role, and creative capacity, is easily overlooked.
3
As
such, although the data obtained in this research are important, the analytic framework
that has been applied is of equal importance in terms of our conclusions about the
production of justice more generally. Following this, it seemed that the interpretation
of data needed to be capable of addressing the active capacity of objects such as forms.
As such, and rather than informing the method of data collection, post-humanist voca-
bularies are introduced and employed at the data analysis stage of this research. This
offers an opportunity to assess and identify both the merits of using such vocabularies in
interpretation of the data presented and the critical value of such approaches to criminal
justice research.
Documents can readily be seen as ‘simply standing between things that really matter,
giving immediate access to what they document [and denying their] mediating role’
Welsh and Howard 775

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