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Procedural justice in the courts
Amy Kirby & Jessica Jacobson provides evidence-based best practice advice on procedural justice in the courts for the Clinks Evidence Library.

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Procedural justice

Yesterday (31 October 2022) Clinks published the latest article in its online evidence library that I am lucky enough to curate. The evidence library was created to develop a far-reaching and accessible evidence base covering the most common types of activity undertaken within the criminal justice system.

The latest addition has been produced by Dr Amy Kirby & Professor Jessica Jacobson of the Institute of Criminal Policy Research and examines the evidence base for procedural justice in the courts.

What is procedural justice…

Most of the research on procedural justice (sometimes called procedural fairness) has been focused on policing. Only a small amount of research to date has focused on other criminal justice institutions, such as prisons, probation or – the main focus of this review – the courts. Nevertheless, researchers have identified four main features of procedural justice in the courts:

  1. Voice: lay users should have the opportunity to ‘tell their side of the story’ before decisions are made
  2. Neutrality: decisions should be made by neutral decision-makers who follow legal rules in a consistent and transparent manner
  3. Respect: lay users should be treated with respect by all those involved in the court process
  4. Trust: the character of the decision-maker is important to people’s perceptions of legal authorities, therefore, lay users should feel as though they are treated in a sincere and considerate manner and that they are listened to and treated without prejudice by those in authority.

…and why does it matter?

Procedural justice is regarded as important for several reasons. It is argued that if members of the public feel that they have been treated fairly and respectfully by those in positions of authority, and are given the opportunity to express their views, they will be more willing to accept the outcome, even if the outcome is unfavourable to them.
Researchers have also found that procedural justice is closely connected to the concept of legitimacy. It is argued that for states and institutes to maintain a valid claim to authority they need to be seen as legitimate in the eyes of those they serve. 

Legitimacy sets limits on the power of authorities and provides a stronger basis for authority than the use of power alone. A vast body of research has found that procedural justice contributes to citizens’ perceptions of criminal justice authorities as legitimate. 

In other words, if individuals believe that they have been treated fairly by the authority in question, they are more likely to view it as legitimate.
It is argued that, in turn, legitimacy motivates cooperation with authorities, including compliance with the law, and ‘discretionary cooperation’ such as reporting crime to the police or acting as a witness in court. 

This cooperation is normatively grounded: that is, it is voluntary and based on shared moral or ethical beliefs between citizens and authorities, rather than being instrumentally motivated by incentives or fear of sanction. Further, it is argued that procedural justice can contribute to a sense of shared social identity between citizens and authorities.

Lessons from the field

Drawing from their own research Kirby & Jacobson identify four main ways in which procedurally just treatment might be achieved in practice in the courts. These are listed in the section below:

Promoting inclusive, supportive and humanising interactions

As a general principle, professionals and practitioners should interact with lay users in ways which are inclusive, humanising and supportive. This includes by helping lay users to understand and navigate proceedings and to feel that not only do they have a voice but that their voice is listened to. Also important is the avoidance of complex language and jargon, and reduction of ritual and formality.

Avoiding belittling cross-examination

The nature of the adversarial system means that victims, witnesses and defendants giving evidence may be subject to robust and rigorous cross-examination. However, questions have been raised about the acceptability of sarcastic or aggressive cross-examination. Research findings suggest that lay users can find the tone and manner of cross-examination, as difficult as, or even more difficult than, the questions themselves. For example, a victim in a Crown Court case involving sexual assault and other violent offences, understood the right of the defence to cross-examine her, but found the advocate’s gestures (acting in a smarmy  manner and making faces) off-putting.

Minimising ‘banter’ between professionals

Research suggests that court-based professionals should be mindful of the impact on court users of overt displays of camaraderie, or banter, during breaks in proceedings. Jokes and banter can not only make court users feel excluded, but also that the seriousness of proceedings is undermined.
For example, a defendant in a Crown Court case spoke of being bemused when, during a break in proceedings, he overheard his advocate discuss attending a Christmas lunch with the prosecution advocate.

Ensuring that lay users are informed at all stages of the process, including about waiting and delays

Being kept informed is of utmost importance to lay users. This includes being provided with updates and information before, during and after the court appearance and having their questions answered fully. For example, a witness described how the support he received from a Witness Service volunteer and court usher helped him to understand the process and made him feel included by showing him round the court room and explaining where the different participants would be sitting.

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