On 16 September 2020, the Ministry of Justice (MoJ) published a white paper, A smarter approach to sentencing (CP 292). In his speech to launch the paper, the justice secretary, Robert Buckland QC MP, committed the government to ‘a completely new approach to dealing with low-level offending’. Part of this approach is not so new: his speech included the commitment to establish five pilot ‘problem-solving’ courts, which is a reheated policy idea from a previous era.

The MoJ acknowledges that many offenders’ behaviour ‘is linked to substance misuse and other complex needs’ (para 168, page 54). The pilot courts would be based on similar courts in New York1Jamie Grierson and Owen Bowcott, ‘Ministers to pilot New York-style courts in reforms to sentencing’, Guardian, 16 September 2020. with regular reviews of a case by the same judge to ensure an offender engages with the treatment and other support services put in place to divert them from committing further crimes.

Also inspired by the courts across the Atlantic, the North Liverpool Community Justice Centre (NLCJC) opened in 2005. It was a Labour lord chancellor, Charlie Falconer, who was at the helm of the MoJ’s predecessor, the Department for Constitutional Affairs, at the time. Announcing the launch of the centre, he said: ‘This is an exciting initiative, which will put the community at the heart of helping to reduce crime and anti-social behaviour in their own neighbourhoods.’2‘Hunt on for first community judge’, Liverpool Echo, 29 June 2004.

An independent report on the NLCJC argued that it ‘delivered more effective justice than the traditional court model’ but acknowledged that it was difficult ‘to provide unequivocal evidence to support this claim’ (Professor George Mair and Dr Matthew Millings, Doing justice locally: the North Liverpool Community Justice Centre, Centre for Crime and Justice Studies, February 2011, page 98). In what Jane Kennedy, the Merseyside Police and Crime Commissioner, described as an act of ‘unnecessary vandalism’, the MoJ announced it was withdrawing funding for the court in 2013.3‘Save North Liverpool Community Justice Centre call’, BBC News, 28 August 2013.

The Family Drug and Alcohol Court (FDAC) has pioneered the ‘problem-solving court’ approach in family law. The white paper argues that FDAC’s ‘therapeutic approach can have a range of positive outcomes for participating families, in addition to being cost-effective’ (para 169, pages 54–55), but fails to mention the funding difficulties the service has experienced.4Steve Hynes, ‘Will the Family Drug and Alcohol Court survive?’, Guardian, 15 December 2011. See also September 2018 Legal Action 4.

‘Too often, governments fund pilots such as these courts only to drop them when funding constraints bite,’ said LAG interim director, Carol Storer. ‘This initiative will need thorough evaluation and, assuming it is proved to work, a long-term commitment from government to expand it across the criminal justice system.’

The white paper also includes proposals to make more serious and violent offenders spend longer in prison (paras 60–63, pages 28–29), as well as a new power for the justice secretary to ensure some offenders currently eligible for automatic release are first assessed on whether or not they are a risk to the public (para 64, page 29). Those deemed to be so will have to serve the remainder of their sentences.

Responding to the white paper, Campbell Robb, chief executive of the National Association for the Care and Rehabilitation of Offenders (Nacro), said that while some of the announcements were welcome, ‘these are outweighed by the pressure that longer sentences will put on an already stretched system and the need for fundamental reform’.5‘Nacro response to Ministry of Justice’s sentencing white paper’, Nacro news release, 16 September 2020. According to the impact assessment published with the white paper, civil servants’ ‘best estimate’ of the cost of the measures, including increased sentencing, will be £542.6m.