Yes, no, possibly, maybe: Community sanctions, consent and cooperation
| Date | 01 December 2014 |
| Published date | 01 December 2014 |
| DOI | 10.1177/2066220314549522 |
| Author | Rob Canton |
| Subject Matter | Articles |
549522EJP0010.1177/2066220314549522European Journal of ProbationCanton
2014
Article
European Journal of Probation
2014, Vol. 6(3) 209 –224
Yes, no, possibly, maybe:
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DOI: 10.1177/2066220314549522
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consent and cooperation
Rob Canton
De Montfort University, UK
Abstract
This article explores the significance of consent to community sanctions and measures.
The value of consent derives from the principle of autonomy and rights to freedom
and dignity. While normally these are rights that should be upheld and defended, the
question is complicated in the case of penal sanctions. The account goes on to discuss
the necessary conditions for meaningful informed consent and to inquire into the extent
to which these conditions apply to community sentences. The origin of consent to the
probation order and other community penalties in England and Wales is outlined – the
reason why it was originally expected and why it was eventually abolished. Yet even
if consent is not formally required, there is reason to think that England and Wales is
an example of a country where in practice consent is actively sought. The relationship
between consent and compliance – and the distinct concept of active cooperation – is
discussed. It is concluded that a formal expression of consent in Court has symbolic
value, but does not resolve the challenge of trying to secure consent and cooperation
that must persist throughout the duration of the community order.
Keywords
Community sanction, probation, consent, motivation
This article explores the significance of consent to and cooperation with community
sanctions and measures. Discussion begins with consideration of why it is that, in gen-
eral, consent is taken to be of such importance. It will be argued that its value derives
from the connection of consent with fundamental human rights of freedom, autonomy
and dignity. But while these are rights that should normally be upheld and defended, the
question is complicated in the case of punishment and penal sanctions: punishment
Corresponding author:
Rob Canton, De Montfort University, Applied Social Sciences, The Gateway, Leicester, LE1 9BH, UK.
Email: RCanton@dmu.ac.uk
210
European Journal of Probation 6(3)
always involves some restriction on people’s rights and some central conundrums in the
ethics of punishment hinge on the question of which rights are forgone and which should
be retained by people subject to punishment. The article goes on to discuss the historical
origins of the principles of consent to community sanctions in one jurisdiction (England
and Wales) and to explore what these principles might have amounted to when consent
was sought in circumstances of serious constraint and a marked imbalance of power. In
England and Wales, the consent requirement to community sanctions has been done
away with in most circumstances and the significance of this statutory change will be
discussed. Discussion will then turn to the matter of cooperation with a community sanc-
tion. It will be argued that this is conceptually distinct from, but sometimes confused
with, the formal expression of consent commonly required at the point of sentence. The
article concludes with some thoughts about the uncertain relationship between a formal
expression of consent in a court and achieving cooperation in practice.
The value of consent
James Griffin places the very foundation of human rights on ‘the values of personhood’.
(Griffin, 2008: 34) As Griffin argues, to be a person is to be a responsible moral agent
and this entails rights of autonomy, choice, the ability and liberty to act. If anything is
done to an agent without their consent, this appears to threaten their autonomy and
thereby to impinge on their very ‘personhood’. The value of consent, then, seems to fol-
low directly from the principle of autonomy. Many things are done to us without our
consent, of course, but liberal political traditions prize consent and in particular are wary
of the demands and impositions of the state. Arguably the venerable and influential
notion of a social contract is precisely a response to such concerns. Social contract the-
ory argues that the state’s power over its citizens is legitimate authority because they are
– or may be likened to – people who have entered into a contract and thus presumed to
have given their consent to the state’s demands (Boucher and Kelly, 1994).
These ideas are especially important to social work and probation1 and often encapsu-
lated in the principle of self-determination. This is one of the best-established values of
social work, articulated and emphasised by the ‘classic’ social work theorists, including
Felix Biestek (1961) and Florence Hollis (1964), and still affirmed prominently in Codes
of Ethics today (see, for example, British Association of Social Workers, 2012). The prin-
ciple is both pragmatic and ethical: pragmatically, it represents the belief that people will
typically do what they choose to do (within the boundaries of their abilities and opportuni-
ties); ethically, it is close to (and perhaps derivable from) the values of autonomy and
liberty. Consent could be considered as the formal expression of self-determination.
Punishment poses a distinctive difficulty here, however. Punishment always entails a
loss, suspension or circumscription of rights. Indeed, it has even been defined in such
terms, by scholars as far apart in philosophical tradition as Rawls (1967: 150) and
Foucault (1977: 11). But of course punishment must never involve the denial of all rights
and the ethical limits here must be robustly defended to prevent punishment degenerat-
ing into cruelty and oppression. Among the reasons why Council of Europe
Recommendations like the European Prison Rules and the European Probation Rules are
so valuable is that they represent a searching and principled attempt to clarify which
Canton
211
rights are to be defended and promoted for people subject to punishment, in circum-
stances where some rights are deliberately forfeit and others are vulnerable.
The law of many countries requires that consent must be given before certain com-
munity sanctions may be imposed (for the relevant legislative factsheets, see Flore et al.,
2012). It is to be noted that community sanctions are in this respect distinctive. To my
knowledge, no country seeks the consent of a defendant before imposing a term of
imprisonment or, for that matter, a financial penalty. In some European countries, a con-
sent requirement applies to all or most community sanctions and measures; in other
countries, for example England and Wales, formal consent is not normally required,
although once it was. The English experience will next be reviewed as an instructive
example of a jurisdiction that used to regard consent as important, how and why it came
to be abolished and its current significance.
Consenting to probation and other community sanctions:
The English experience
The English Probation Order, originally enacted in the Probation of Offenders Act 1907,
envisaged that an Order might be made where ‘it is inexpedient to inflict any punishment
or any other than a nominal punishment, or that it is expedient to release the offender on
probation’ (Section 1 (1) [2]). The 1907 Act made no reference to consent or associated
terms like willingness. On the other hand, the relevant sections empowered the court to
‘make an order discharging the offender conditionally on his entering into a recogni-
zance … to be of good behaviour and to appear for sentence when called on at any time
during such period, not exceeding three years’.
The word recognizance denotes an undertaking, bond or pledge and it is plain that a
pledge, like a promise, must be given voluntarily. The probation officer would give support
and encouragement to the individual probationer to help them to honour their promise, but
the responsibility rested primarily with the individual, who would be called to account if
the promise were broken. So among the most compelling reasons why consent was required
was that probation was, first and foremost, a pledge or promise and the moral imperative to
honour a promise derives from it being entered into willingly. A promise given under
duress, if it is a promise at all, lacks legitimacy and amounts to mere coercion.
Histories of English probation commonly identify a series of phases through which
probation is believed to have passed (for references and discussion, see Canton, 2007). It
may be that, as the meaning of probation changed, the significance of consent varied
with it. As the 20th century progressed, probation became secularised, professional and
scientific (McWilliams, 1985, 1986). A ‘classical’ understanding of offending based on
free-will gave way to a ‘positivism’ that finds the mainsprings of human behaviour in
(usually) psychological deficiencies (Newburn, 2007: Chapter 5). In that case, even a
sincere promise will not be enough: there will have to be intervention to ‘address’ these
causes of offending. But once probation is conceptualised as intervention or treatment,
the need for consent arises for rather different reasons. Things should not normally be
done to people without their consent. The idea of pledge or promise remains, but the
principle of autonomy requires that treatment shall only take place with the consent of
the...
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