Policy paper

Problem solving courts pilots in the Police, Crime, Sentencing and Courts Bill: Equalities Impact Assessment

Updated 2 August 2023

This was published under the 2019 to 2022 Johnson Conservative government

Policy summary

A number of international jurisdictions have been successful in reducing reoffending and the use of custody by establishing ‘Problem-Solving Courts’ (PSCs), particularly in relation to offenders with substance misuse issues, based on the US drug court model. ^{[footnote 1]},^{[footnote 2]},^{[footnote 3]},^{[footnote 4]} PSCs offer an intensive community sentence with specific components as an alternative to custody for a particular cohort with underlying needs.

Historically elements of a problem-solving approach have been trialled separately across England and Wales. However, the full gamut of traditional PSC components has never been fully established here. Where some elements have been integrated into historic PSC pilots, evaluations were either limited in scope or did not take place.

Extensive work in this area was undertaken in 2016 when the then Lord Chancellor, Rt Hon Michael Gove, and the Lord Chief Justice established a PSCs Working Group which concluded that there is a clear case for a new PSC model that more closely resembles international best practice. We now intend to revisit this work from 2016 and explore the possibility of piloting a problem-solving approach in up to five Courts.

The 2016 Working Group considered the core components as: entry via a guilty plea (exception of domestic abuse cases); regular reviews of progress; oversight throughout by a single judge; graduated sanctions and incentives, including the imposition of short custodial stays for non-compliance before continuing on the programme, and judicial power over breach decisions. We do not necessarily think that eligibility would need to be limited to those who plead guilty. In order for an offender to be considered suitable for a PSC order, they must be assessed by a probation practitioner and be willing to comply with interventions.

Where the model is dealing with drugs and alcohol related crime, the Working Group felt that the court should have the ability to use frequent and random drugs testing and testing for alcohol misuse. The Working Group set out that each court should have accessible multi-disciplinary service provision and the pilots should be evaluated using a broad set of outcomes.

The PSCs pilot will have three intended areas of focus. Firstly substance misuse, which has been the traditional focus of problem-solving courts and is the area providing most of the international evidence base. ^{[footnote 5]},^{[footnote 6]} The second intended area of focus for the pilots is female offenders, given the high proportion of female offenders in receipt of short prison sentences and the recognition that crimes committed by female offenders are often attributed to many complex criminogenic factors. The third area of focus is domestic abuse perpetrators, aiming to address the underlying causes behind this behaviour and increase accountability of the perpetrators, though adaptations to the model would need to be made in these cases to take account of victim and protection concerns.

Equality duty

Under section 149 of the Equality Act 2010 (the EA) the Public Sector Equality Duty (PSED) legally requires Ministers and the Department, when exercising their functions, to have ‘due regard’ to the need to:

1. Eliminate discrimination, harassment, victimisation and any other conduct prohibited under the EA 2010. 2. Advance equality of opportunity between those who share a protected characteristic and those who do not; and 3. Foster good relations between those who share a protected characteristic and those who do not, when carrying out their activities.

Having ‘due regard’ needs to be considered against the protected characteristics under the EA: race, sex, disability, sexual orientation, religion and belief, age, marriage^{[footnote 7]} and civil partnership, gender reassignment, and pregnancy and maternity.

Equality considerations

Direct discrimination

For the majority of the PSC pilots, we believe there would be no direct discrimination within the meaning of the EA, and we do not consider that the proposals would result in offenders being treated less favourably because of their protected characteristic.

The intended area of focus for one of the pilot locations however is female offenders, so men would not be able to access the programme in this location. We deem this approach to be proportionate for a number of reasons. We have chosen this focus in light of the high proportion of female offenders in receipt of short prison sentences, the promising outcomes of the Manchester women’s problem-solving court model, and our commitment to addressing the underlying needs of female offenders.

A greater proportion of adult females than adult males sentenced to custody receive short custodial sentences. There is also a higher prevalence of reported needs among women in custody around for example substance misuse, trauma and mental health, with higher rates of self-harm and anxiety. ^{[footnote 8]} Almost 60% of women in prison have experienced domestic abuse.^{[footnote 9]} Further information on female offender needs is provided under the analysis section below.

Greater Manchester, which runs a PSC-type approach for women, has a lower annual average reoffending rate for female offenders compared to similar urban areas, and England and Wales overall (16% compared to 24% for the April 2017 to March 2018 cohort). However, this is based on a simple cohort comparison rather than on a robust counterfactual therefore findings should be interpreted with caution and it can’t be assumed that the difference arises from the PSC approach.^{[footnote 10]} The court is part of the local Whole System Approach to vulnerable women in the criminal justice system, which seeks to address their often complex needs, including experience of abuse and trauma, by bringing together statutory and third sector agencies to provide joined up, holistic support. The key actors involved attribute the positive outcomes above to this approach.

Our Female Offender Strategy (June 2018), which sets out our plan to improve outcomes for women in the community and custody, makes clear that we want fewer women serving short sentences in custody and more being managed in the community, in recognition of their particular needs and characteristics. This includes women with young children, babies or other caring responsibilities. In order to advance equality of opportunity for those with protected characteristics, in this case women, we must take steps to meet the specific needs of these individuals, keeping them in the community where this can be done more effectively, with the ultimate aim of reducing reoffending and protecting the public.

Whilst, resources permitting, there would be advantages in a national roll out to having joint services available to both men and women, with a gender-sensitive approach embedded throughout, there are also ways in which we think a joint service could be less effective. Therefore, we propose trialling a Female Offender pilot in a particular location to test this and as such it would be less effective to offer a joint service to males and females in this particular circumstance. For example, the pilot involves regular court reviews, and best practice suggests that, for vulnerable women, female-only spaces are recommended. If it were not possible to fund a Women’s Centre for supervision appointments to take place, it has also been considered less effective for particularly vulnerable women to attend appointments in male-dominated probation offices.

Limited resources also mean that we are choosing in one location to target a particularly vulnerable group and to test the pilot’s impact. For example, we would anticipate the location for a Female Offender pilot to incorporate specific services designed for women and women-only spaces, including within a Women’s Centre, which ensure the safety and well-being of traumatised and injured women. It would not be reasonably practical at this stage of testing to provide joint services of a sufficient standard in every location.

Furthermore, it is important to recognise that this is a pilot and lessons learned both on impact and levels of resource required, will help determine what any broader roll out might look like. Male offenders will still be eligible for the PSC programme in the remaining pilot sites.

Indirect discrimination

We believe that offenders with substance misuse issues, female offenders and those with mental health needs will be overrepresented in the cohort participating in the PSC pilot compared to other offenders on the ‘community sentence / short sentence cohort’ and compared to the remainder of the offender population who will not have access to the programme. It is anticipated that offenders with those characteristics will be better protected by the PSC pilot. However, even if it were established that in some cases these effects constituted a particular disadvantage for offenders with certain protected characteristics, implementation of the PSC pilot represents a proportionate response to our legitimate aim of supporting effective rehabilitation and reducing reoffending.

The Lammy Review highlighted that individuals of BAME background are less likely to plead guilty in court.^{[footnote 11]} The latest available data of offenders sentenced in 2019 to outcomes eligible suggests that 91% of BAME offenders pleaded guilty, compared to 95% of White offenders.^{[footnote 12]} Eligibility for the PSC will not be limited to those who plead guilty, but they must be willing to comply with interventions. However, once the judge or magistrates have made the decision that an individual fits the PSC criteria, the individual can choose whether or not to participate in the programme: the programme would not be forced upon them and should someone wish not to enter the programme they would continue within the existing criminal justice process. PSC staff assessing and liaising with offenders about entry to the programme should take into account the need to make sure this cohort is fully informed of the opportunity being offered to them and how they could try to elicit positive engagement.

Higher-level offenders sentenced to over two years custody would not be eligible for the programme. We deem this to be appropriate and proportionate in relation to our overall objectives as the policy intention is to assess the effectiveness of a PSC approach on the rates of reoffending through community sentencing compared to long prison sentences. Furthermore, the maximum period of imprisonment that can be suspended is two years.

More broadly, for any disadvantage that could potentially arise for those who are not eligible to participate in the programme, there are three important points to take into account.

First, the proposal is for pilots in the first instance, as opposed to an immediate national roll out of the model. We are therefore far away from making a decision as to what a full PSC model would look like if rolled out nationally. Second, in choosing locations, we will consider the most diverse areas in order to enable the broadest selection of people to be incorporated. Third, the evaluation will consider how equalities are impacted, including collecting data on protected characteristics, and this would inform any wider roll out of the model.

Discrimination arising from disability and duty to make reasonable adjustments

We do not think that this policy should detrimentally affect disabled offenders. There are offenders with particular disabilities for whom we believe the policy should have positive outcomes. More broadly, it remains important to make reasonable adjustments for disabled offenders to ensure appropriate support is given.

Physical disability

We will continue to make reasonable adjustments for all people with disabilities throughout their journey in the criminal justice system, which would apply equally to their treatment within a PSC programme. The access and facilities available for disabled users in court buildings are listed on court and tribunal finder, including any accessibility restrictions. Any requests for reasonable adjustments are considered on a case-by-case basis.

Neurodiversity

We recognise that neuro-divergent offenders in general are likely to need additional support to undertake Community Order requirements and effectively engage. As part of efforts to obtain a clearer picture in the area of neuro-divergent offenders, HM Inspectorate of Prisons and Probation has been commissioned to conduct an independent Call for Evidence (CfE) on neurodiversity, and training on neurodiversity will be improved across the criminal justice system including through the development of a national training toolkit to upskill frontline staff.

Piloting will enable us to assess to what extent the PSC model creates a system in which neurodivergent conditions are recognised and sentences better individualised.

Mental health

We know that many offenders have mental health and/or substance misuse needs, including in particular the ‘short sentence cohort’.^{[footnote 13]} Whilst alcohol and drugs addiction are not recognised disabilities under the EA, offenders may have an underlying illness which is recognised and caused by one of these addictions.

Management information of offender needs assessments, based on a snapshot of caseload data from 30 June 2018, highlights that for those with a Layer 3 (full) OASys (Offender Assessment System) assessment: 64% of offenders in prison on custodial sentences of 12 months or less had a drugs need, compared to 33% of those assessed on community orders and 31% on suspended sentence orders. A third (33%) of those on custodial sentences of 12 months or less had an alcohol need, compared to 27% of those assessed who were on community orders and 23% on suspended sentence orders.^{[footnote 14]}

It is highly likely that many offenders with mental health needs will have co-occurring substance misuse problems. The PSC model is specifically intended to address these needs via the increased use of Mental Health Treatment Requirements, Drug Rehabilitation Requirements and Alcohol Treatment Requirements. It is envisioned that combining a structured and mapped treatment pathway with progress reviewed through regular court reviews will help these offenders to break the cycle of reoffending, form a positive part of society, and develop strong family relationships.

Advancing equality of opportunity

Consideration has been given to how these proposals impact on the duty to advance equality of opportunity by meeting the needs of offenders who share a particular characteristic, where those needs are different from the need of those who do not share that particular characteristic.

We believe this policy will positively affect:

1. People suffering from mental health issues (classified under ‘disability’) will benefit from a structured and mapped treatment pathway and enhanced support and supervision, helping them to break the cycle of reoffending, form a positive part of society, and develop strong family relationships. This also applies to people with illnesses covered under ‘disability’ which are caused by drug and alcohol misuse, as they will also be able to access substance misuse treatment and testing alongside incentives and sanctions which are intended to increase their chance of reducing substance misuse and reoffending, and support their rehabilitation.

2. Women (classified under ‘sex’) will benefit from targeted interventions in the community which help to address underlying needs which drive offending, ranging from mental health and substance misuse to domestic abuse and a lack of stable accommodation, whilst maintaining family ties.

3. People with children (‘maternity and pregnancy’) will benefit from serving their sentence in the community and developing a personalised relationship with the judiciary who will be aware of their responsibilities and can reflect that in their review hearings and any use of graduated incentives and sanctions. This will help them to maintain strong, trusting family relationships.

Judges and Magistrates will make the initial decision, with regard to whether the particular case fits the PSC criteria. At the centre of the PSCs is a community-focused approach to rehabilitation and will include a consent process, where an offender has to consent to take part in the interventions. The Lammy Review identified that BAME individuals have little trust in the criminal justice system. The PSC pilots will benefit individuals from a BAME background, as the PSC eligibility criteria is not limited to individuals who enter a guilty plea and by focusing on an individual’s core needs and building relationships via services within the community, while promoting transparency via the consent process at the sentencing stage where the PSC Order will be explained to the individual. This will address some of the concerns identified in the Lammy Review.

Fostering good relations

Fostering good relations involves tackling prejudice and promoting understanding between people who share a protected characteristic and others.

The problem-solving approach to justice has the potential to increase awareness and understanding around the fact that certain groups of high-needs offenders offend (often prolifically) as a result of chaotic lifestyles, driven by instability linked to health, accommodation, employment and a range of other issues. It should also demonstrate how this can be addressed as result of targeted treatment and other interventions. Those who attain an immediate insight into this dynamic in the pilots would be the judiciary, however, should these pilots be successful, such outcomes could be communicated to the wider public in terms of the benefits of a more holistic approach to certain offenders – including those with disabilities, such as mental health conditions, which we hope will help to tackle disability and other forms of prejudice.

Analysis

Race

In 2019, 58% of White offenders sentenced to immediate custody in the Crown court received a sentence of 2 years or less, compared to 48% of BAME offenders.^{[footnote 15]} BAME offenders may therefore be less represented in the pilot as a proportion of their overall offender population compared to White offenders. This is due to the types of offences that groups typically commit, are charged, and convicted for. We deem this to be proportionate to our overall objective of supporting the rehabilitation of a particularly high needs and often prolific under 2-year custody cohort in order to reduce reoffending and better protect the public.

Sex

One of the focus areas of the pilots is likely to be female offenders. A greater proportion of adult females than adult males sentenced to custody receive short custodial sentences. In 2019, over three-quarters (77%) of females sentenced to immediate custody received sentences of 12 months or less.^{[footnote 16]}

Often primary caregivers, going into custody can cause huge disruption to the lives of these women’s families and children. Women in prison face particular issues in maintaining family ties. In 2015, it was estimated that 24 to 31% of women in prison have dependent children.^{[footnote 17]} Data from a 2004 survey also showed that women were more likely to live with their child before custody than men: 58% of women compared to 43% of men who reported having dependent children also reported living with them before custody.^{[footnote 18]}

Whilst prevalence of needs for both males and females is high when serving short prison sentences, there is a higher prevalence of reported needs among women in custody around for example relationship needs, drugs, and alcohol^{[footnote 19]}, with higher rates of self-harm.^{[footnote 20]} Females in custody had a higher prevalence of relationship needs (80%) than males in custody (69%), as well as accommodation (64% compared to 56%), drugs (50% compared to 45%), alcohol (22% compared to 17% and employability needs (66% compared to 62%).^{[footnote 21]} Almost 60% of women in prison have experienced domestic abuse.^{[footnote 22]} According to caseload data from June 2018, of females assessed and serving short sentences of 12 months or less, 74% had a drugs misuse need compared to 63% of assessed males; 82% had a relationship need compared to 75% of assessed males; and 63% had an accommodation need compared to 59% of assessed males.^{[footnote 23]}

We know that for female offenders, in many cases certain vulnerabilities can be a contributing factor in their offending. This pilot will provide an opportunity for female offenders who would have otherwise served a short custodial sentence or a less targeted community sentence, to enter into a more holistic programme with tailored interventions to address their needs and thereby address their offending behaviour.

Age

The eligibility criteria requires participants to be over 18 years old. The latest available data of offenders sentenced in 2019 shows that the majority of those sentenced to 2 years or less in custody were aged 30-39 (37%), which is consistent with all custodial sentences (35%). There is a higher proportion of younger (Aged 18-24: 25%) and older (Over 50: 12%) people sentenced to longer sentences and they therefore may not be in scope of the policy (compared to 18% and 8% respectively in the under two years cohort), however this is because of certain violent and/or sexual offences that some cohorts within these ages typically commit. ^{[footnote 24]}

Age Range (where known)	Sentenced to custodial sentences of 2 years or less	Sentenced to custodial sentences of over 2 years	Total
18-24	18%	25%	19%
25-29	19%	20%	19%
30-39	37%	29%	35%
40-49	19%	15%	18%
Over 50	8%	12%	9%
Grand Total	56,336	17,982	74,318

Whilst the proportion of older offenders in the short sentence cohort is relatively small, the opportunities and approaches to support an offender’s rehabilitation will differ along the offender’s chronological journey and we would expect court and probation staff involved in the pilots to take this into consideration in the way they would for any non-PSC cohort.

The approach taken in youth courts is similar to a problem-solving model in a number of ways and working well. We recognise the interest in developing a similar model for use in the youth court and will monitor the implementation of the adult pilot in order to learn lessons and build the evidence base.

Gender reassignment

The proposal includes the possibility of a short custodial stay in custody as a sanction for non-compliance, before continuing on the programme in the community. Our existing transgender policy is that following a court appearance, any transgender person sentenced to custody would initially begin their sentence in a prison matching their legal gender (this is usually their birth gender, unless they have a Gender Recognition Certificate), unless a pre-sentence Complex Case Board has been able to be convened and decided to allocate the individual to an estate not matching their legal gender. At all times, they should be allowed to express their chosen gender, for example through clothing or make up. We would expect a short custodial stay for non-compliance in a PSC pilot to follow the same path.

If a transgender individual wishes to transfer to a prison matching their preferred gender which is not consistent with their legal gender and a Local Case Board has been held that recommends the individual has met the threshold for a Complex Case Board, a Complex Case Board is arranged. Although extraordinary Complex Case Boards can be arranged in time pressured situations, they would not necessarily be ready for a PSC short custodial stay up to a maximum of 28 days). However, transgender individuals on a PSC pilot would be in no worse a situation than a regular transgender offender who would be waiting in their originally allocated prison until they could move. It can, and has, been facilitated for transgender individuals to be held separately when awaiting a Complex Case Board if felt necessary.

Moreover, it is generally recommended that complex cases such as those involving transgender individuals have a Pre-Sentence Report (PSR) - which PSCs would be expected to have. Preparation of the PSR would require a pre-sentence Local Case Board and if the board feels there is a risk of custody, and that the safest allocation would be to a prison that does not match the individual’s legal gender they could escalate it to a pre-sentence Complex Case Board and therefore have a different estate considered prior to custody.

Pregnancy and maternity

People with children will benefit from having the opportunity to serve their sentence in the community rather than in prison, and from a personalised relationship with the judiciary who will be aware of their responsibilities and can reflect that in their review hearings and any use of graduated incentives and sanctions. This approach is intended to help them develop strong, trusting family relationships. If there is not a dedicated space for breastfeeding in a court building, HMCTS commits to finding a suitable space. Where baby changing facilities are available in court buildings, they should be on court and tribunal finder.

1. Plotnikoff, J., & Woolfson, R. (2005), Review of the effectiveness of specialist courts in other jurisdictions. London: Department for Constitutional Affairs ↩

2. Belenko, S. (2001), Research on drug courts. A Critical Review. National Drug Court Institute Review, III (2) ↩

3. Wilson, D. B., Mitchell, O., & MacKenzie, D. L. (2006), A systematic review of drug court effects on recidivism. Journal of Experimental Criminology, 2(4), 459-487 ↩

4. Centre for Justice Innovation, (2016), Problem-solving courts: An evidence review ↩

5. Belenko, S. (2001), Research on drug courts. A Critical Review. National Drug Court Institute Review, III (2) ↩

6. Wilson, D. B., Mitchell, O., & MacKenzie, D. L. (2006), A systematic review of drug court effects on recidivism. Journal of Experimental Criminology, 2(4), 459-487 ↩

7. The characteristic of ‘marriage and civil partnership’ is relevant only when considering the first limb of the duty. ↩

8. MoJ Analytical Services (2013), ‘Gender differences in substance misuse and mental health amongst prisoners’ ↩

9. Ministry of Justice, Female Offender Strategy, June 2018 ↩

10. Proven reoffending statistics: January to March 2018, January 2020 ↩

11. The Lammy Review, September 2017 ↩

12. Criminal justice system statistics quarterly: December 2019, The Sentencing Tool ↩

13. Ministry of Justice, Surveying Prisoner Crime Reduction 2014 ↩

14. Identified needs of offenders in custody and the community from OASys, 2019 ↩

15. Ministry of Justice, Criminal Justice Statistics quarterly: December 2019, Sentencing data tool, 2020 ↩

16. Ibid. ↩

17. Ministry of Justice, ‘Female offenders and child dependents’ (October 2015) ↩

18. Figures derive from the Surveying Prisoners Crime Reduction Survey (SPCR) and are reported in: Ministry of Justice, ‘Prisoners’ childhood and family backgrounds’ (March 2012) ↩

19. MoJ (2019), Identified needs of offenders in custody and the community from the Offender Assessment System, 30 June 2018 ↩

20. MoJ (2021), Safety in Custody Statistics, England and Wales: Deaths in Prison Custody to March 2021, Assaults and Self-harm to December 2020 ↩

21. MoJ (2019), Identified needs of offenders in custody and the community from the Offender Assessment System, 30 June 2018 ↩

22. Ministry of Justice, Female Offender Strategy, June 2018 ↩

23. Published June 2018 caseload data ↩

24. Criminal justice system statistics quarterly: December 2019, The Sentencing Tool ↩