Dr Anna Kawalek

This book discusses the role of Problem-Solving Courts within the Criminal Justice System from a therapeutic jurisprudence perspective.

Although therapeutic jurisprudence ("TJ") is increasingly well-established internationally, particularly within the United States of America ("US"), to date it remains relatively unacknowledged within the United Kingdom ("UK"). This article will explore the opportunities presented within contemporary UK society for the greater promotion, and eventual mainstreaming, of TJ. It will also consider the challenges faced during this process and how best to overcome these. Its first key area of focus will be upon the potential role of legal education in the UK in educating law students (and academics) about TJ, considering which approaches are likely to be most effective in incorporating TJ perspectives, at what stage this should occur and to what extent TJ is likely to impact on the existing curricula at a time when proposed changes relating to entry into the legal profession are heavily influencing the work of Law Schools. The article will then move on to consider the receptiveness of the UK legal profession to the TJ paradigm in light of recent attempts to move to a competency-based approach to practice and to reconceptualise professionalism to meet the challenges of increasing fragmentation and corporatisation. The third key area it will explore is the UK's recent plans to reintroduce problem-solving courts ("PSCs") into its criminal justice system. The authors will discuss the downfall of the six UK Drug Court ("DC") pilots originally established in 2005 theorising upon their failures and reflecting upon whether the current UK criminal justice system is truly able to support a fresh round of PSC initiatives. The article will end with recommendations for ways in which the international TJ community should begin the process of mainstreaming TJ within the UK. It will conclude that there are currently significant opportunities to be utilised, but that this requires significant commitment and mobilisation amongst existing TJ scholars and practitioners.

This paper aims to highlight some of the key issues surrounding the development and application of immigration law as it applies in the United Kingdom (UK) to refugees attempting to be reunited with their families living abroad. The right for refugees to be reunited with their families is enshrined in international law, but this is frequently frustrated by the legal and administrative systems used in the UK. Using content analysis and doctrinal analysis techniques, the paper provides an examination of how a philosophy which considers the emotional effects of the law, therapeutic jurisprudence, could be used not only to inform interpretation of current domestic laws, but also influence the drafting of future legislation. This is an aspect of current refugee law in the United Kingdom which has yet to be examined. It provides, we argue, a humanitarian direction to statutory interpretation which may provide tangible benefits to current and proposed legal systems.

Background: The aim of this study was to identify factors associated with concurrent illicit drug use of opiates and crack/cocaine use among individuals receiving of opioid medication-assisted treatment (MAT) in one English rural/urban County Council area. Methods: 776 opiate users in treatment were assessed using the Addiction Dimensions for Assessment and Personalised Treatment (ADAPT) assessment tool. The tool encompasses three domains and 14 subdomains covering addiction severity, recovery strengths and coexisting health and social needs. Data were opportunistically matched to the National Drug Treatment Monitoring System (NDTMS) and the Treatment Outcome Profile (TOP). Two backward stepwise logistic regression models were run to discern the nature of concurrent illicit drug use. Results: Addiction severity (Odds Ratio [OR] 12.55, Confidence interval [CI] 6.49–24.27), low recovery strengths (OR 2.30, CI 1.30–4.07) and no ‘urge/control’ (OR 27.45, 13.18–57.16) were strongly associated with concurrent use. Individuals with moderate psychological needs were more likely to be abstinent (OR 2.97, CI 1.67–5.29) compared to those with no need. Abstaining from injecting (OR 2.38, CI 1.15–4.93), alcohol consumption (OR 1.55, CI 1.05–2.30), increasing age (OR 1.03, CI 1.01-1.06) and increased quality-of-life (OR 1.05, CI 1.00–1.10) were associated with abstinence from concurrent use. Conclusion: Practitioner assessments with self-report data offer unique perspectives on service users’ holistic needs. Interventions addressing concurrent use during MAT should consider managing urges and control of illicit Class A use, injecting and alcohol consumption within a stepped-care approach. Packages for developing recovery strengths supporting psychological need and enhancing quality-of-life is recommended.

In late 2015, the British Red Cross approached the lead author. It was increasingly evident that given the austerity-driven political agenda of the UK government in cutting public funding to advisory services, coupled with the developing refugee crisis and its impact on countries and regions, refugees in many parts of the UK were in need of legal and non-legal assistance. University law clinics were an obvious source of support given their objectives of developing students’ understanding and engagement with community groups. As our law clinic, based in the Helena Kennedy Centre for International Justice (HKC), was developed specifically to address the needs of groups such as refugees, and given the ground-breaking work of Wexler and Winick (in Therapeutic Jurisprudence) and Gould and Perlin (on its application to clinical legal education) on providing a therapeutically positive experience for users, we sought to base our clinic aligned with Therapeutic Jurisprudence (TJ) principles. This paper examines the development and practical operation of a law clinic from a TJ perspective.

Theories underpinning restorative justice (RJ) overlap significantly with work around addiction recovery, in particular, the concept of “recovery capital”. Whilst both movements are relatively new, RJ has a longer-standing history and a greater application in practice settings, yet both are inherently 'relational theories' and should be evaluated as such. There is great value in a comparative review of the concepts, assessing how the theories and practices align, as well as how each framework may inform the other. Granfield & Cloud (2001) have shown that recovery is enhanced by establishing previously non-existent social networks through building “social capital” to access support networks and resources in the community. Similarly, Zehr & Gohar (2002:23) posit that the third pillar of any legitimate RJ practice is a social process inclusive of dialogue and engagement with those who have a “legitimate interest or stake in the offense and its resolution”. Elsewhere, Best et al. (2015) have argued that a key component of recovery theory is “community capital” and the importance of community attitudes/resources as a predictor of recovery longevity, a model that draws on Braithwaite's reintegrative shaming theory from the RJ discourse (Braithwaite, 1989). This chapter aims to advance thinking and the Volume’s objectives of challenging the RJ field by suggesting that the common implication is that the effective implementation of these principles may facilitate the generation of a virtuous cycle enhancing the wellbeing of disputants and their communities and providing sustainable pathways to effective reintegration by building capital in communities and creating a 'therapeutic landscape' for restoration and rehabilitation.

Since its inception in the 1980s, the growing body of Therapeutic Jurisprudence scholarship has continued to challenge and optimise not only our understanding of what the law "is", but also how we can leverage its agency to improve the ways in which we apply, observe and evaluate the law. By focusing on the emotional, human and psychological consequences of legal processes, Therapeutic Jurisprudence empowers practitioners to design emotionally intelligent and remedial strategies to either minimise harmful consequences or enhance restorative legal goals and outcomes. As the influence of Therapeutic Jurisprudence scholarship and its practical applications has continued to gain traction in rapid and organic growth, collaborations brokered with a wide range of social science disciplines have called for a more robust focus on validated measurement scales. To that end, there is a clear and growing need for a suite of Therapeutic Jurisprudence specific tools for empirical evaluation. As there has been no formal attempt within the Therapeutic Jurisprudence research community to begin this process, this paper breaks new ground by providing a validated tool for empirical measurement of the therapeutic quality of judicial officers' behavioural and interactional styles in problem-solving court jurisdictions. Using original empirical data recently collected at a problem-solving court in England, the paper takes the reader through the journey of statistically validating the levied scaling systems by performing Principal Component Analysis and Cronbach's Alpha. In doing so, the paper offers an original contribution to Therapeutic Jurisprudence methodology.

Using the lenses and language of therapeutic jurisprudence, this paper will argue that the rights of pregnant workers are vulnerable in a post-Brexit climate. Whilst the sunset clause from the Retained EU Law Bill, which would have caused all retained EU law to automatically expire at the end of 2023 unless expressly stated otherwise by Ministers, was lifted, the original drafts of the Bill made clear the government’s lack of respect for and interest in protecting workers’ rights (amongst others). Furthermore, despite the abandonment of the sunset, the now legislated Retained EU Law (Revocation and Reform) Act 2023, aiming to deal with all laws that were once of European origin, still gives Ministers wide powers with limited input from Parliament to change EU derived legislation and replace with UK provision. Using an example from employment law, specifically, pregnant workers, this paper will show that the Act is a therapeutic jurisprudence unfriendly bottle as it has the potential to violate positive physical, social, and psychological outcomes. Recognising that these laws are currently vulnerable, we urge the government to keep intact (and potentially enhance) the laws protecting pregnant workers.

This research paper examines the significance of the judges in the problem-solving courts of England and Wales’s Choices and Consequences (C2) and Prolific Intensive (PI) programmes using the lenses and language of therapeutic jurisprudence. These unique schemes mobilise an intensive combination of strict control measures (with a view to deterring people from reoffending) alongside a personalised package of rehabilitative support overseen by a judge in a problem-solving court. Our findings strongly indicate that the judge-led problem-solving court is the bedrock of the schemes. Acknowledging that this practice relies upon strong leadership from a judge as a community convener with the authority and profile to initiate and sustain the programme, this paper identifies the strengths and barriers that this finding may pose. Our data also points to the difficulties of achieving support for the model at all judicial levels. Readiness (or lack of) within judges in the future could hamper the prospects of both current and new schemes. Moreover, finding a judge with a susceptible personality lowers chances. The authors conclude that the UK’s current punitive, rapid results ethos of the justice system is not working. The international problem-solving court movement has shown that long-term success often ensues when practices are embedded into a broader culture of rehabilitative justice supported by visible communities. By tapping into the broader international community, the key will be a changing cultural process to make keen and compatible judges easier to come by.

In 2007 Mark Stokes et al., conducted research into the understanding of stalking and social and romantic functioning, of 25 autism spectrum disorder (ASD) adolescents and adults, in comparison to 38 typically developing (TD) adolescents and adults. Overall findings were that those with ASD did differ from their TD counterparts in both the sources of their learning, and their levels, of social and romantic functioning. ASD individuals were more likely to display inappropriate and intrusive behaviour with a propensity to exhibit stalking behaviours, towards all targets of interest. Subsequent research had similar results, although many participants and case study subjects were ASD males.  This thesis examines the understanding ASD females have of social and romantic boundaries in comparison to ASD males by replicating the 2007 Stokes et al., study. To my knowledge this is the first study to compare levels of understanding in this area by gender, with a focus on female gender, using only ASD diagnosed participants. Findings of this study had similarities to the original. For example, lack of understanding by ASD participants in navigating the boundaries and social nuances wrapped up with dating and forming relationships. What was also discovered within analysis was that in many areas, such as length of pursuit of a romantic interest, ASD females were found to give higher response numbers than their ASD male counterparts. ASD females would pursue their target for longer than ASD males. In some cases, even with a negative response from that target of interest. Previous research has highlighted the numbers of autistic men who have found themselves the subject of warnings from police to refrain from certain inappropriate behaviours, yet many have expressed not understanding why. The implications of findings within this study suggest that there may be numbers of autistic women suffering the same confusion regarding their behaviours who simply have not yet been identified. Further research is needed in this area to discover a truer picture of the numbers of ASD individuals, particularly female, impacted, and importantly to discover what those individuals feel would help them avoid future warnings or criminal justice involvement.

Reframing the English and Welsh Drug Courts Anna Grace Kawałek ... It was concluded that where the current UK criminal justice system is emphasising managerialism, centralisation and ... As such, both models breached the gold standard.

© International Association for Court Administration. Over the last 25 years problem solving courts have developed internationally to provide a response to entrenched criminal justice related issues including addiction and mental health problems. These courts operate in adherence with the concept of Therapeutic Jurisprudence, which recognises the court and its officials as therapeutic agents, who work collaboratively to achieve the best possible outcomes for those appearing before the court. In an Irish context, problem solving courts have been in operation since 2001 when the Dublin Drug Treatment Court was established. This, however, remains the only problem solving court in operation within the Irish criminal justice system. This paper considers the wide ranging international literature on drug courts before casting a critical eye over the Dublin Drug Treatment Court, from its inception to the present day. It considers the workings of the court against the theoretical backdrop of Therapeutic Jurisprudence. This paper argues that while there seems to be a lack of overt engagement with Therapeutic Jurisprudence principles on the part of the Irish judiciary involved with the Dublin Drug Treatment Court, many tenets of the Court actually adhere to Therapeutic Jurisprudence principles, and the authors contend that calls for further empirical analysis. The paper builds on the works of Butler and Loughran et al., which has already provided an excellent grounding for any future studies on the Dublin Drug Treatment Court.

Therapeutic Jurisprudence is a legal philosophy concerned with the human effects of the law. Its scholarly work promotes greater interaction between law and the social sciences to draw attention to the therapeutic and/or anti-therapeutic side-effects of law. Despite significant headway having been made in therapeutic jurisprudence scholarship during its relatively short lifespan, there remain gaps in theory, not least, in terms of the ontological and epistemological commitments that underpin and drive its research, as well as how its methodology resonates with those from its predecessor schools: legal realism and sociological jurisprudence. This essay will respond to these gaps and, in doing so, will also acknowledge some of the key similarities and differences in the methodological underpinnings of the claims from legal realism and sociological jurisprudence (as well as legal positivism and formalism).

Drugs courts can be praised for the rehabilitative health-treatment response they deliver to people with drugs dependence problems. This is when contrasted with traditional courts that operate on adversarial and retributive justice principles and do little to alleviate cycles of repeat drugs offending. Whilst drugs courts have been met with success and embraced in several jurisdictions worldwide, fundamental points need to be raised on the model that is re-emerging in England and Wales. Indications are it will involve drugs testing and a 'graduated sanctions and incentives system' that comprises short custodial sentences for non-compliance. This essay discusses the newly emerging drugs court model as signposted within different legislative and public policy documents and raises questions relating to the precise model these courts will take; whether they prioritise harm reduction or if 'abstinence' goals will predominate. We question whether people with drugs dependence problems should be sanctioned to short custodial prison sentences if in breach of a drugs court order. And perhaps more fundamentally: do we need drugs courts in the English and Welsh justice system?

Child justice systems are specialized jurisdictions set up for the purpose of providing justice related services to children. In an effort to resolve many of the systemic injustices expereinced by justice involved children, Kenya recently legislated the Children Act 2022. This new law is viewed as a paradigm shift from previous children acts as it incorporates constitutional provisions, UN conventions, minimum rules and other international protocols that Kenya is a state party to. The Act seeks to transform the child justice system into a jurisdiction which is more amenable to prioritising the mental wellbeing of children. The current study sought to examine the practices applied by state child justice agencies and whether these were therapeutic or non- therapeutic. This would clarify areas where the Act may need to be amended or reviewed to further its own goals. The findings revealed that the most non-therapeutic procedures centred on the courtroom such as the formal court environment and children facing perpetrators in court as well as limited access to mental health services. Therapeutic practices included ensuring children access treatment, use of child friendly interviewing techniques and testifying in camera. These may guide justice actors as to how they apply the Children Act 2022 within their own contexts whilst developing rules and standards that embody the principles of therapeutic jurisprudence.

This thesis examines the Modern Slavery survivor pathway from intervention to recovery and assesses the support systems available to survivors throughout this process. It also explores links to other traumatic crimes and investigates how the role of “witness” in the criminal justice system impacts survivors’ experiences. The work showcases findings from interviews with frontline practitioners alongside analysis of Government publications and independent reports.  This research builds on existing literature and draws on a range of sources to develop a broad and detailed picture of the survivor support system in the UK. Against this backdrop, the thesis offers a unique perspective based on the experiences of frontline practitioners within the survivor support system and provides a holistic contribution to the current body of work in this field.  This thesis posits that the current Modern Slavery legal framework is failing survivors of this horrific crime. The UK Government is falling short of its commitment to protect and support survivors and much of the financial cost of support is subsidised through the voluntary sector’s own fundraising efforts. Combined with a greater Governmental focus on immigration enforcement, many survivors end up homeless or in immigration detention. Poor monitoring and communication practices mean that many survivor outcomes are not known at all.  The findings emphasise the importance of holistic care pathways with a consistent, benchmark standard of support across all services, including advocacy for each individual. The thesis further argues that the UK Government needs to extend its anti-slavery efforts towards long-term support and understanding of survivor needs, which should include a focus on survivor narratives and input. This would not only improve recovery outcomes but would advance the criminal justice process in this area through witness retention and stronger evidence.