The right to an audience at court: Realities, risks and challenges. A qualitative study from the perspective of practitioners working in a Community Rehabilitation Company
| Author | Peter Salami,Rebecca Woolford |
| Date | 01 September 2019 |
| Published date | 01 September 2019 |
| DOI | 10.1177/0264550519859068 |
| Subject Matter | Articles |
Article
The Journal of Community and Criminal Justice
Probation Journal
The right to an audience
2019, Vol. 66(3) 303–317
ª The Author(s) 2019
at court: Realities,
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DOI: 10.1177/0264550519859068
risks and challenges.
journals.sagepub.com/home/prb
A qualitative study
from the perspective
of practitioners working
in a Community Rehabilitation
Company
Rebecca Woolford
Interserve Justice, UK
Peter Salami
Bangor University, UK
Abstract
A fundamental role of the probation service is to provide advice and information to
courts assisting in determining the most appropriate sentencing decisions. Historically,
all probation officers as part of their mandatory training had experience in a court
setting. Under the government’s Transforming Rehabilitation (TR) reforms, probation
services were divided into 21 new privately-owned Community Rehabilitation Com-
panies (CRCs) and a new public National Probation Service (NPS). This resulted in the
NPS assuming the right to an audience at court by statute and the withdrawal of a right
to an audience at court for CRCs. This qualitative study conducted during the summer
of 2017 seeks to gain an insight into the views of CRC practitioners on contemporary
court practice, specifically exploring their views on not having a professional role to
provide advice and information on their caseload in court. The interviews identified
four themes, reflecting both barriers to, and facilitators of, the withdrawal of the right
Corresponding Author:
Rebecca Woolford, Interserve Justice, Cunard Building, Liverpool, L3 1DS, UK.
Email: RebeccaWoolford@interservejustice.org
304
Probation Journal 66(3)
to an audience at court by the CRC. These themes illustrated that the initial develop-
ments in the courts post-TR did not give the opportunity for active CRC involvement,
resulting in increased scrutiny and criticism of their practice.
Keywords
courts, Transforming Rehabilitation, practitioners, probation
A brief overview of probation and court work
The criminologist Max Gru¨nhut (1952) provided one of the best summaries of the
essential elements of probation; these were ‘conditional suspension of punishment,
and personal care and supervision by a court welfare officer’ (Gru¨nhut, 1952:
168). However, this may be challenged as being an unrealistic ideal or ‘utopian’
view in the current climate of probation (Raynor, 2018). The historical journey of the
probation service has been subject to changes, contemporary conflict and ongoing
debates (McNeill et al., 2012). However, the perseverance and strength of the
probation service has been its ‘ability to withstand constant change’ and work with
‘some of society’s most neglected individuals’ (McDermott, 2016: 195). Academics
have actively engaged with the origins and development of probation in England
and Wales (for example Whitehead and Statham, 2006; Mair and Burke, 2012). It
could be suggested that the waves of changes in policy and practice have given an
insight into how probation has arrived at the present parlous state.
Historically, probation has had an important and enduring history of working in
a court setting: ‘it is the principal context in which sentencers come into contact and
interact with probation workers, and where many defendants will encounter
“probation” for the first time’ (Robinson, 2018: 316–17). Therefore, it may be
surprising that there has been little interest in probation’s role at court (Robinson and
Svensson, 2013). ‘Despite its importance, probation work in the courts has attracted
almost no research attention’ (Robinson, 2018: 317). Only a handful of empirical
studies have investigated the work of probation in a court setting, including Carlen
(1976), Carlen and Powell (1979), and Robinson (2017, 2018). As Robinson
(2018: 317) aptly notes: ‘where there has been an interest in probation court work
there has been a tendency to utilise the artefacts of that work’ – for example,
Gelsthorpe and Raynor’s (1995) study on the ‘Quality and Effectiveness in Proba-
tion Officers’ Reports to Sentencers’. However, during a climate of tremendous
change in the field of probation there has been an increase in interest from
researchers on probation court work (see Robinson, 2017, 2018; Raynor, 2018).
Therefore, this article exploring CRC perceptions of contemporary court practice is
timely and at the forefront of debate on TR.
A key study that has been utilised throughout this article is Robinson’s (2018)
study entitled ‘Transforming Probation Services in Magistrates’ Courts’. This
exploratory study incorporated both observations and interviews to explore con-
temporary probation working in Magistrates’ courts. One of the key findings was
the ‘cultural bubble’ the NPS court team existed in: preserving ‘central values and
Woolford and Salami
305
skills’ of probation whilst entering the wider court culture of ‘formality’ and ‘con-
temporary speed of sentencing’. Although providing a more optimistic outlook on
probation in a court setting, Robinson (2018) acknowledged a number of potential
mitigating risks the NPS court team may face, such as ‘isolation’ and ‘dislocation’
from the wider probation field. In contrast, Raynor’s (2018) study, entitled ‘Back to
the Future? The Long View of Probation and Sentencing’, paints a less optimistic
picture of the current climate, suggesting that TR is ‘at best a failure and at worst a
disaster’ (Raynor, 2018: 341). Reviewing the history of probation’s contribution to
sentencing and revisiting changing theories, Raynor’s (2018) article suggests that
many attempts have been made to improve probation’s contribution to sentencing
but have often been supported by ‘little evidence’ and therefore have progressively
‘eroded’ the institutional framework. Raynor (2018) reaches out to policy-makers to
restore ‘probation’s traditional contribution to sentencing and the criminal justice
system’ (Raynor, 2018: 343). This article therefore builds on the emerging body of
literature and aims to fill the gap of current knowledge by presenting a platform for
CRC practitioners to voice their perceptions of the changes to contemporary court
practice.
A brief overview of Transforming Rehabilitation
Last year around 600,000 crimes were committed by those who had broken the law
before. Nearly half of those released from prison went on to re-offend. . . . Despite
increases in spending under the previous Government re-offending rates have barely
changed. This can’t go on. (MOJ, 2013: 3)
The above quote from the former Secretary of State for Justice, Chris Grayling
describes the snapshot rationale for the implementation of the TR reforms. In May
2013, the Conservative- Liberal Coalition Government published its strategy paper,
‘Transforming Rehabilitation: A Strategy for Reform’ (MOJ, 2013). The biggest
change in the probation service was the formation of 21 privately owned CRCs,
alongside the publicly governed NPS. In the most simplified explanation, the CRC
would be responsible for the ‘low to medium risk’ offenders and the NPS would be
responsible for ‘high risk’ offenders. There was a failure to address concerns
regarding what constituted ‘high risk’ put forward by practitioners and academics
(Hedderman and Murphy, 2015). The TR agenda not only changed probation at a
structural level but also dramatically altered many practices with the implementation
of three new initiatives: Offender Rehabilitation Act (ORA), Rehabilitation Activity
Requirements (RAR) and Payment by Results (PbR).
At the heart of the reforms was the extension of supervision to approximately
45,000 additional offenders a year, who are released from short-term prison sen-
tences of less than 12 months. This had a significant impact on the number of
offenders the CRC and NPS supervised. A feature of ORA was the implementation of
RARs to encourage innovative rehabilitative activities, allowing flexible and efficient
sentencing. However, HM Inspectorate in their 2017 report ‘The Implementation and
306
Probation Journal 66(3)
Delivery of Rehabilitation Activity Requirements’ (HMIP, 2017a) expressed concern
with the delivery of RARs in meeting the government’s policy aims. PbR was intro-
duced as a financial incentive for CRCs to reach their service level metrics linked to
reducing re-offending. The TR reforms aimed to promote flexibility and innovation for
the probation sector so that providers were able to deliver services effectively. Similar
models of outsourcing and privatisation had previously been pursued by the gov-
ernment, for example in the much-criticised Work Programme of the Department for
Work and Pensions (DWP). Therefore, the introduction of PbR was an area of great
contention for practitioners in the probation service, evidenced in ‘The Final and
Interim Proven Re-offending Statistic for the Community Rehabilitation Companies
and National Probation Service’ (MOJ, 2018), which dealt with the results of the
one-year proven re-offending measure for adult offenders. The results from this
report create a puzzling picture for CRCs; the re-offending rate is down (binary re-
offending rate) but the frequency of re-offending is up (frequency re-offending
rate). Therefore, the question still remains: can a PbR initiative...
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