Inside Crown Court

Personal Experiences and Questions of Legitimacy

Jacobson, Jessica, Hunter, Gillian, Jessica Jacobson, Gillian Hunter, Amy Kirby

• Publisher: Policy Press
• Year: 2016
• Print ISBN:
  9781447317067
• eBook ISBN:
  9781447321187
• Edition: 1
• Topic: Ciencias sociales
• Subtopic: Criminología

With a new Foreword by David Ormerod of the Law Commission. Within the criminal justice system of England and Wales, the Crown Court is the arena in which serious criminal offences are prosecuted and sentenced. On the basis of up-to-date ethnographic research, this timely book provides a vivid description of what it is like to attend court as a victim, a witness or a defendant; the interplay between the different players in the courtroom; and the extent to which the court process is viewed as legitimate by those involved in it. This valuable addition to the field brings to life the range of issues involved and is aimed at students and scholars of criminal justice, policy-makers and practitioners, and interested members of the general public.

SEVEN

Legitimacy: court users’ perceived obligation to obey, and what this is based on

In the preceding chapter, we have described the conformity of victims, witnesses and defendants at court as ‘reluctant’. Clearly, most have no desire to come to court: defendants are there because they have no choice in the matter, and there is also a degree of compulsion for witnesses, who can potentially be summonsed if they refuse to attend. We would contend, however, that court users’ conformity within the court process is at least partially voluntary rather than being entirely coerced: we are, in other words, distinguishing ‘voluntary acceptance from simple compliance (“I did what I was told to do.”)’ (Tyler, 2009, p 320).

On the basis of how court users described their experiences of court to us, and our own observations of behaviour in court, we are of the view that court users’ conformity is, in part, based on a belief in the legitimacy of the court process: that is, they obey the rules because they perceive an obligation to do so (Hough et al, 2010; 2013b). Our findings echo those of Fielding that, ‘Whether attentive and distressed, or disdainful and ostentatiously at ease, one thing lay participants rarely do is reject the legitimacy of the proceedings’ (2006, p 53) – albeit the sense of legitimacy is implicit rather than explicitly articulated. Similarly, Bottoms and McClean noted that defendants do not ‘struggle’ against the authorities in court (1976, p 227); and Ball has observed:

Participants in judicial proceedings… bring with them a willing suspension of disbelief. It is manifested in their willingness to observe the rules and forms of the proceedings, their willingness to abide by the outcome of the proceedings, and their willingness not to dismiss the legitimacy of the legal system, characterized though it may be by curious formulae, arcane rites and untoward results (1975, pp 108–9).

This final substantive chapter of the book will explore the various dimensions to the perceived legitimacy of the court process. We have discussed at length, above, the many and profound incongruities – and the degree of chaos – that often characterise court proceedings, and we have made it clear that attending court can be terrifying, humiliating, upsetting and frustrating. Why is it that, despite all this, court users largely accept the legitimacy of what goes on in court? This is a compelling question, with significant implications for how the public perceive and experience the criminal justice system more widely.

As discussed in the introduction to this volume, procedural justice theorists are particularly concerned with identifying the mechanisms which secure and sustain the legitimacy of criminal justice institutions. Broadly, they argue that individuals’ sense of the legitimacy of the justice system tends to reflect their direct interactions with it, and that the perceived fairness or otherwise of the outcomes of these interactions generally have less impact on overall views of the system and its legitimacy than the perceived fairness or otherwise of the processes in which individuals have been involved. Much of the work of procedural justice theorists has emphasised that there are two key dimensions of fair procedure: first, fair decision-making by the authorities; secondly, respectful treatment of members of the public by the authorities (Tyler, 2001, 2003, 2009; Fagan, 2008; Bottoms and Tankebe, 2012).

Our own research findings, to be elaborated below, support this contention of procedural justice theorists that fair decision-making and respectful treatment are important factors in shaping victims’, witnesses’ and defendants’ sense of the legitimacy of the court process. However, it also became apparent from our study that, in the stark setting of the courtroom, the outcome of a case – in terms of whether or not the defendant is found guilty and, following a conviction, the type of sentence passed – is a crucial determinant of court users’ perceptions of legitimacy.

Beyond the three factors of fair decision-making, respectful treatment and positive outcome, we would argue that there is a further important dimension of legitimacy for court users. This can be described as ‘moral alignment’. Here we are, again, drawing on the procedural justice literature, within which the ‘moral’ dimension of legitimacy is a key theme. Legitimacy is seen as that which ‘instantiates within the individual the moral and social norms of law’ (Fagan, 2008, p 139). Tyler (2006c, p 314) discusses the relationship between legitimacy and personal morality, both of which he defines as ‘social values’ which are internalised and help to regulate behaviour independently of concerns about the risk of being sanctioned for wrongdoing. The public’s sense of the legitimacy of legal authorities is reinforced to the extent that the authorities’ actions are seen as consistent with their own moral or ethical code. Such consistency thus enables the authorities ‘to activate the motivation force of morality’. Following David Beetham, Hough et al (2013b, p 246) argue that there are three dimensions to legitimacy: namely, ‘obligation to obey’, ‘legality’ and ‘“moral alignment” between power-holder and the governed, reflected in shared moral values’.

Finally, for defendants (if not for victims and witnesses) there is a fifth factor related to the above four dimensions of legitimacy: namely, a passive acceptance of the court system. This is similar to what Bottoms and Tankebe (2012, p 165) have characterised as ‘pragmatic acquiescence’ or ‘dull compulsion’, whereby an individual’s perceived obligation to obey the law is based on the sense that ‘I have to do this’ rather than a sense of moral duty. For Bottoms and Tankebe, this (at best) morally neutral aspect of ‘dull compulsion’ thus distinguishes it from ‘true legitimacy’. However, it is our view that defendants’ passive acceptance extends beyond pure resignation to varying degrees of belief in the internal logic and coherence of the vast machinery of the criminal courts. In other words, it is the conception that the court system is as it is because this is how it has to be, even if there is no clearly or explicitly normative aspect to this belief. In these terms, passive acceptance can be said to contribute to a weak sense of the legitimacy of the court process – where the individual’s compliance is not entirely coerced but is based on a sense of obligation to obey, if not necessarily a sense of moral obligation.

In short, then, we have identified five, inter-related dimensions of legitimacy, each of which will be considered in turn over the remainder of this chapter:

a. moral alignment;

b. positive outcomes;

c. fair decision-making;

d. respectful treatment;

e. passive acceptance.

In considering court users’ responses to the court experience in terms of the above dimensions of legitimacy, the diversity of those responses becomes immediately apparent. If, as noted above, an overarching theme is that most court users largely accept the legitimacy of the court process, the specific factors that make it legitimate vary from individual to individual. And while it is, therefore, difficult to generalise, there would appear to be some broad differences between type of court user: with ‘passive acceptance’ prominent among defendants but not others, and a concern with ‘respectful treatment’ more evident among victims and witnesses than defendants.

Crucially, three of the dimensions of legitimacy are related to specific court experiences: namely, ‘positive outcomes’, ‘fair decision-making’ and ‘respectful treatment’. Any or all of these three factors can be present or absent in any given individual’s experiences (or any individual’s interpretation of those experiences, since they are largely subjective) and hence can, variously, support or undermine the individual’s sense of legitimacy. What became clear from our interviews, however, is that negative experiences and attitudes relating to outcomes, decision-making or treatment were often outweighed by the presence of other (positive) legitimating factors. In other words, our respondents’ overarching sense of the legitimacy of the court process tended to reside in differing combinations of the five factors listed above, but very rarely, if ever, in all of them simultaneously.

Moral alignment

For most of the witnesses and victims we interviewed, there appeared to be a taken-for-granted sense of moral alignment with the work of the courts: they had witnessed, or had themselves experienced, a wrong, and the court process was a matter of bringing the wrongdoer to justice:

‘I feel strong about justice and I want things to be right. If you’ve done something you have to answer for it. So if I would witness something, some crime, I would go again of course. It doesn’t matter if I wouldn’t like it, or it would be something more serious or less serious, whatever. It’s just I believe that there must be justice done.’

[Helga; witness]

The securing of justice in their own respective cases was seen, by the victim and witness respondents, as something that should quite straightforwardly contribute to the wider public good, as it would help to prevent others suffering what the initial victim had been through. The act of giving evidence was thus couched in moral terms – as, for example, in the case of Elaine, who said that in considering whether to give evidence against her son, charged with the sexual assault of her daughter (his half-sister), she had to ask herself: “What do you do as a person – not just as a mother, but as a person?”

Attached to this, individuals also sometimes expressed a sense of personal achievement or some pride at having overcome their anxieties about giving evidence. Rhona had acted as a witness in a sexual assault case, and described being called afterwards by a women from the Witness Care Unit: “She rang us and said, ‘Thanks for all your help.’ She was grateful. I thought: I’ve done my bit as well.” Maggie said of having acted as a witness that it was “just one of those situations that you’ve got to go in and face and do it”. She described her feelings about giving evidence as follows:

‘[I was] nervous, very nervous, very hot, because I was nervous, I suppose. But other than being really nervous, I was there to do what I had to do for [the victim], and I knew that I was doing the right thing, so... I was nervous, but knew I was there for the right reasons.’

For many victim and witness respondents, their sense of moral alignment with the criminal justice process was shaken by aspects of their experience in court: what they perceived to be poor outcomes, decision-making or treatment undermined rather than reinforced their general and pre-existing belief in the legitimacy of the process. Usually, however, this did not result in a complete breakdown of the criminal justice system’s legitimacy in their eyes: they tended to express their continuing, if qualified, support for a system which had disappointed but not entirely alienated them. This was most apparent in what they said about the prospect of giving evidence in court again, should they ever witness another crime. Tracey, who had witnessed the stabbing of her partner and had been very upset by the not guilty verdict in the trial at which she gave evidence, said that she would report another crime and would be willing to appear in court again, “but I would just be a little less optimistic next time”. Debbie, who had witnessed a non-residential burglary to which the defendant pleaded guilty on the day of trial, said that she would be willing to act as a witness again only in a case involving a more serious crime, and that she would do so “with a bit of a heavy heart knowing how much hassle it was going to come to, that I would have to go through”. Ryan had been the victim of a serious assault and was dissatisfied with a court process that had eventually resulted in a conviction, but had been stressful and long drawn out. Nevertheless, he insisted that he maintained some trust in the system:

‘I think in the end I would end up [giving evidence] again. I wou...

Table of contents

• Cover
• Title Page
• Copyright
• Epigraph
• Contents
• List of figures and tables
• Acknowledgements
• One: Introduction
• Two: The system: what is the Crown Court and what are its functions?
• Three: Court process and performance: constructing versions of 'the truth'
• Four: Them and us: the divide between court users and professionals
• Five: Structured mayhem: the organised yet chaotic nature of court proceedings
• Six: Reluctant conformity: court users' compliance with the court process
• Seven: Legitimacy: court users' perceived obligation to obey, and what this is based on
• Eight: Conclusion
• Appendix: Details on court user respondents and outline of observed cases
• References