MARCEL DEKKER, INC.

270 MADISON AVENUE NEW YORK, NY 10016

2002 Marcel Dekker, Inc. All rights reserved. This material may not be used or reproduced in any form without the express written permission of Marcel Dekker, Inc.

SUBSTANCE USE & MISUSE Vol. 37, Nos. 12 & 13, pp. 15951614, 2002

DRUG TREATMENT COURTS, BRITISH STYLE: THE DRUG TREATMENT COURT MOVEMENT IN BRITAIN*
Philip Bean Midlands Centre for Criminology and Criminal Justice, Department of Social Science, Loughborough University, Loughborough, Leicestershire, LE11 3TU, UK E-mail: P.T.Bean@lboro.ac.uk

ABSTRACT There has been an uneven pattern of development of drug treatment courts throughout Britain. The Republic of Ireland has a drug treatment court and Scotland will have one by the end of 2001, but there are no drug treatment courts in England and Wales, or Northern Ireland, although in the latter there is a growing interest. It is suggested the Drug Treatment and Testing Order (DTTO) in England and Wales has acted as an impediment as this is a very weak version of drug treatment court and was proposed by the Prime Minister when Shadow
*In this chapter I have included the Republic of Ireland. Also, I have dealt separately with the various countries of the United Kingdom, that is Scotland, Northern Ireland, England and Wales, although for convenience England and Wales have been linked. 1595
DOI: 10.1081/JA-120014423 Copyright & 2002 by Marcel Dekker, Inc. 1082-6084 (Print); 1532-2491 (Online) www.dekker.com

MARCEL DEKKER, INC. 270 MADISON AVENUE NEW YORK, NY 10016

2002 Marcel Dekker, Inc. All rights reserved. This material may not be used or reproduced in any form without the express written permission of Marcel Dekker, Inc.

1596

BEAN

Home Secretary. Drug treatment courts in Eire and Scotland have adapted their program to t local conditions, although neither have opted for a fully edged drug user treatment court on the Miami model. Key Words: Drug courts; Drug treatment courts; Problem solving courts; Judicial supervision; Drug courts in Britain

INTRODUCTION: AN OVERVIEW OF DRUG TREATMENT COURTS That Britain and the United States share the same common law tradition would suggest that developments in one country would be examined and readily transferred to the other. Often this is so; for example, many drug policies, and research programs in the United States have been introduced into Britain.[1] Sometimes, however, there is a reluctance to accept transatlantic ideas; for example, Britain has tried and abandoned the use of a Drugs Czars and the United States has never been enthusiastic about the British system involving heroin prescribing. The questions to be asked here are, however, more specic; they are about introducing a specic type of program the Miami-style drug user treatment court, into Britain, and if so in what form? The aim of this paper is to determine to what extent Britain has accepted and implemented drug treatment courts, and if not in entirety then the drug treatment court model, or the drug treatment court idea. I want to look rst at some of the major features of drug treatment courts generally, and then describe the situation in Scotland and Eire, where drug treatment courts have been, or are to be, introduced. At the time of writing Scotland is to have a drug user treatment court in Glasgow in 2001, the Republic of Ireland has one in Dublin which began in 2001, but there are no immediate plans to introduce them in England, Wales, or Northern Ireland, although I understand Northern Ireland has expressed an interest. I want to look at why drug treatment court development has lagged behind in the U.K., or more specically in England and Wales, and show how, if at all, the situation might change. Underlying the discussion is the recognition that the drug problem in Britain is no less severe than in the United States. There may be dierences in the ethnic composition of the users, in the types of drugs used, or the method of ingestion, but many basic epidemiological features are similar.

MARCEL DEKKER, INC. 270 MADISON AVENUE NEW YORK, NY 10016

2002 Marcel Dekker, Inc. All rights reserved. This material may not be used or reproduced in any form without the express written permission of Marcel Dekker, Inc.

DRUG TREATMENT COURTS IN BRITAIN

1597

SOME MAJOR FEATURES OF DRUG TREATMENT COURTS The Miami model of drug treatment court, the form considered here, developed within the existing common law adversarial system of justice. The basis of this model is the emphasis on rehabilitation mixed with judicial control. Drug treatment courts require the oender to receive treatment, whether as an inpatient or outpatient, to seek and maintain employment, but to be tested regularly for drug use, and report to the supervising ocer and the court as required. Rehabilitative regimes dier from those aimed at punishing on the basis of retribution or deterrence. Rehabilitative regimes are problem solving. Justice is not their primary aim; it is to secure treatment. They do so within the philosophy of welfare, but operate within a framework of criminal justice. Transferring these rehabilitative measures to other common law jurisdictions would, on the face of it, present few diculties. In Britain there have always been opportunities to promote rehabilitation within the existing criminal justice system. Treatment, which accompanies punishment, i.e., as part of the sentence, is available for oenders on probation (as a condition of the probation order, and as inpatient or outpatient) or through the deferred sentence, or on a voluntary basis as part of a bail scheme. Recently, the Drug Treatment and Testing Order (DTTO)to be examined in greater detail laterhas extended the range and scope of treatment provisions for the courts. Extensive drug user treatment facilities are also available within prisons, where treatment, which if not part of the sentence, may nonetheless be a consideration for parole. Government policy encourages the growth of these rehabilitative measures. Moreover, the role of the judge in the drug treatment court has received much attention as the judge occupies a central position, that of team leader. Critics say this makes the judge a partisan gure, more akin to a social worker than an impartial judicial gure holding the legal ring. Yet judges have always been partisan in some respects; if not during the trial, then when passing sentence. The judicial role was never clear cut, and the judge never as detached as some of the drug treatment court critics appear to believe. The drug treatment court extends the judicial role, and changes the judicial style. It makes the judge a more proactive gure, which incidentally has the unintended consequence of placing greater emphasis on the personality of the judge, and on the personal interactions with the oender.[2] Again, it would not be impossible to introduce that type of system into Britain. A precedent was set in the 1970s in Yorkshire (England) in the juvenile courts, whereby school truants were placed on a deferred sentence

MARCEL DEKKER, INC. 270 MADISON AVENUE NEW YORK, NY 10016

2002 Marcel Dekker, Inc. All rights reserved. This material may not be used or reproduced in any form without the express written permission of Marcel Dekker, Inc.

1598

BEAN

and had to come back to the justices at regular intervals to report on progress. The drug treatment court builds on that. Of course, many British judges might baulk at the more extreme evangelical stance occupied by some American drug treatment court judges, and at the robust regime favored by others, but this is more about style than content. Finally, consider the role of the ocers of the court of which the probation ocer is the best example. Probation ocers in Britain are, if not directly employed by the court, nonetheless part of the court team. They operate within a rehabilitative framework where the welfare of the oender is paramount (this in contrast to their American counterparts), and their insistence in retaining that welfare approach has led to some irritation from the Government, who would prefer a more supervisory role. Accordingly, they would nd no conict or diculty in working within the drug treatment court model as part of the drug treatment court team; they would have rather fewer duties and the numbers of probation ocers involved would be dramatically reduced but, that apart, they could adapt to the changes required. However, set against these evolutionary developments are a small number of revolutionary ones which would be more dicult to introduce, and require primary legislation. Three are identied here, which, when taken together, show how drug treatment courts have changed the face of criminal justice. That is, they have extended existing practices beyond the point where they can be absorbed into the existing structure, and in ways which have undermined the more traditional forms. These are the features which produce the most controversy, at least in Britain.[2] First, judicial supervision. It is not that the drug treatment court judge exercises additional controls over the oender that is revolutionary, but that the judge controls the treatment program, even to the extent of employing the treatment providers. Traditional systems such as those in Britain separate the roles and functions of the judiciary from other branches of the criminal justice process, so that oenders on, say, probation, are handed over to the probation service, or when sent to prison are under the jurisdiction of the prison service. Traditional courts lose their jurisdiction once the oender has been sentenced. Nor do these courts supervise oenders, or run or employ those operating the programs, i.e., they do not hire and re those whose task it is to run the programs, in this case the treatment providers. This level of judicial supervision is not appropriate under current legislation. Second, there are serious diculties about transferring to Britain the so-called problem-solving court using the team approach. This is the most radical of all the features of the drug treatment court, as it fuses criminal justice with rehabilitation in ways which transform the roles and

MARCEL DEKKER, INC. 270 MADISON AVENUE NEW YORK, NY 10016

2002 Marcel Dekker, Inc. All rights reserved. This material may not be used or reproduced in any form without the express written permission of Marcel Dekker, Inc.

DRUG TREATMENT COURTS IN BRITAIN

1599

functions of prosecutors and defenders. Lawyers, from whatever side of the adversarial divide, are required to shed their traditional stance and adopt an agreed position aimed at assisting the oender to be rid of the drug problem. Prosecutors must defray demands for heavier sentences, and defence counsel for lighter sentences; both must accept that the drug treatment court program is best for the oenders future and work within a team which sets the oenders goals. This requires more than a change of role, it requires suspension of a basic tenet of the adversarial system, that legal procedural requirements are more than administrative devices aimed at ensuring the court system operates smoothly. They are there to protect the oender from idiosyncratic decisions and corrupt practices. When supporters of the drug treatment court claim to be reinventing justice or that drug treatment courts are problem-solving courts to be used for all types oenders, including mentally disordered oenders, supporters of the traditional system are understandably nervous. Introducing the team approach into the British court system would only occur after a lengthy debate with all involved in the judicial system, and perhaps beyond, and require detailed legislation. Thirdly, there are the sanctions for noncompliance, whether for continuing drug use, or failing to attend the treatment centers, or failing to report to the court when so required. Underlying the drug treatment court is an assumption that addiction is a chronic relapsing condition, so that becoming drug-free is a long-term learning experience. Accordingly, failures are to be expected, especially in the early stages. However, failures must involve sanctions; these may include undertaking additional drug tests, or being required to report more often, or, in exceptional circumstances, being sent to prison, which may be for as long as 3 months, but more usually this lasts a few days. In contrast, if the oender makes progress there will be rewards; these may involve praise from the judge, or being given fewer reporting requirements, or taking fewer drug tests, and in some cases erasure of the original conviction from the le, an important reward if a three strikes policy operates. There are no provisions in Britain for the use of multiple sanctions; the nearest occur in the probation order, where breach of requirements allows the court to impose a small ne, and the order to continue. It would be regarded as unjust, and probably unlawful, to do this more than once on the same order. In the United States, many States have introduced primary legislation to meet these revolutionary changes, including extending the jurisdiction of drug treatment courts to include oenders in prison on release programs. In Britain no such legislation exists, and it is doubtful if the Lord Chancellors Department, the department responsible for the operation of the courts, would permit them to go ahead without statutory authority,

MARCEL DEKKER, INC. 270 MADISON AVENUE NEW YORK, NY 10016

2002 Marcel Dekker, Inc. All rights reserved. This material may not be used or reproduced in any form without the express written permission of Marcel Dekker, Inc.

1600

BEAN

as sometimes happened in the United States. Introducing a fully edged drug treatment court into Britain would therefore require legal changes. What is interesting, then, is to ask how Scotland and Eire have met these diculties, allowing them to develop their version of drug treatment courts yet retain their legal framework, and preserve the integrity of their legal systems.

DRUG TREATMENT COURTS IN SCOTLAND Scotland is ahead of the rest of the United Kingdom in that (the time) the rst pilot drug treatment court began in autumn 2001 in Glasgow. Its history is interesting. A Working Group entitled Piloting a Drug Treatment Court in Glasgow was established in February 2001, on the initiative of the Scottish Justice Department. The Sheri Principle for Glasgow and Strathkelvin, the senior judicial gure, Edward F. Bowen QC, was invited to convene and Chair the Group. The remit was to make proposals to the Scottish Deputy Minister for Justice, and report by Easter on a model within existing legislation of a Drug Treatment Court and on the arrangements for its operation in Glasgow Sheri Court by the Autumn of 2001. The timetable was commendably tight, and the terms of reference commendably clear; there were 23 months to prepare the Report, and a further 6 months to complete the preparations. Accordingly, the drug treatment court in Scotland was operational some 9 months after the Working Group was established. The Working Group argued that no drug treatment court should operate in isolation from the rest of the criminal justice system, for a drug treatment court is dependent on the availability of an infrastructure of treatment facilities. It argued that in isolation a drug treatment court can achieve little. As part of a wider criminal justice and treatment infrastructure it can make a positive contribution to the reduction of crime arising out of drug misuse through tackling oenders dependence on drugs.[3] The proposal was that the drug treatment court should operate within the current system, drawing on and assisting the criminal justice system generally. The drug treatment court is not to be a freewheeling court going its separate way, but integrated into the existing system. Accordingly, the Working Group proposed that the objectives for the Glasgow drug treatment court should be: 1. 2. To reduce the level of drug-related oending behavior. To reduce or eliminate oenders dependence on or propensity to misuse drugs.

MARCEL DEKKER, INC. 270 MADISON AVENUE NEW YORK, NY 10016

2002 Marcel Dekker, Inc. All rights reserved. This material may not be used or reproduced in any form without the express written permission of Marcel Dekker, Inc.

DRUG TREATMENT COURTS IN BRITAIN

1601

3.

To examine the viability and usefulness of a drug treatment court in Scotland using existing legislation and to demonstrate where legislative and practical improvements might be appropriate.

None of these was seen to be contentious, as the Working Group had accepted the principle that drug treatment courts were worthy of consideration, a step not yet taken by England and Wales. These objectives were derived from the Working Groups analysis of recent evaluations of drug treatment courts, mainly in the United States. They concluded that in comparison with other courts generally, drug treatment courts had been successful in engaging and retaining oenders in treatment services. The Working Group believed that drug treatment courts provided closer and more intensive supervision of drug using oenders, that criminal behavior was lower after participation, especially for graduates, and that drug treatment courts save money. Using reports on other courts, whether from Australia, Canada, or Eire, the Working Group identied a number of common features, which for these purposes the most important are: 1. 2. 3. 4. 5. 6. Mandatory, regular and random drug testing. Available and court-enforced treatment programmes. Court-enforced supervision in the community. Regular direct oversight by the Bench in Court of the oenders progress with the oender present. Multidisciplinary drug treatment court Team. Regular use by courts of instant summary sanctions for positive drug use tests or other compliance infractions, including short periods of custody or community service with treatment supervision programme continuing. Regular use of court as motivator as well as sanctions, including judicial approval for progress.

7.

All are key features of the drug treatment court, involving treatment mixed with mandatory testing and court-directed supervision. What was not clear at that stage, and to some extent still remains unclear, is what are to be the nature and powers of say, the multidisciplinary court teams, or the enforced treatment programmes? Are they to be the same as in Miami or are they to be a modied version? What the Working Group seems to be suggesting is that the Scottish drug treatment court model will adapt to local conditions, so that in its early stages it will take on board only as much as can be accepted within the legal and cultural norms of the country. To do otherwise might be disruptive. The objectives and principles under which the Scottish court will operate therefore are based rmly in the traditions of U.S. drug treatment courts,

MARCEL DEKKER, INC. 270 MADISON AVENUE NEW YORK, NY 10016

2002 Marcel Dekker, Inc. All rights reserved. This material may not be used or reproduced in any form without the express written permission of Marcel Dekker, Inc.

1602

BEAN

yet adapted to the local situation. The Scottish system did not go all the way along the drug treatment court track, yet has gone suciently far to qualify as a drug treatment court. That is to say in Scotland they have not taken on board all the revolutionary features described above, but have moved far enough along to meet the basic requirements. Nor have they taken some of the more extreme ideologies attached to the U.S. drug treatment court system; they do not, for example, claim to be part of a trend towards criminal justice programs that respond directly to, and are involved directly with, their communities, described in one drug treatment court manual as community judging which involves drug treatment courts linking up with their local communities through immediate personal and direct court services.[4] Theirs is an approach which focuses primarily on the need to reduce oending. In eect, the Scottish proposals operate within and according to the traditions of the Scottish legal system, which incidentally diers in important respects from the rest of the United Kingdom, it being developed well before the Act of Union of 1707. The most important dierence relates to the Oce of the Procurator Fiscal, although that of the Sheri also diers from the Magistrate in England and Wales. The oces and privileges of these ancient positions have been jealously guarded throughout the centuries, so that where changes are made they are accepted only after the most careful consideration, and then with guarantees that they will not aect radically the role and functions of these oces. The nal report therefore is a tribute to the skills of the Working Party, for it met traditional demands whilst taking advantage of the political will to push the matter forward. The procedure works thus:
.

First there is a referral to drug treatment court, where, at this rst point of contact, the police sift all custody cases according to an agreed set of criteria. Stage 2 is where the Procurator Fiscal (often called the Fiscal) reviews the cases identied by the police, and decides which if any should go for further consideration. Stage 3 refers all suitable cases to the defence agent (the lawyer) and social work department. (There is no probation service in Scotland, probation and social work are merged, so that to talk of social work is to mean probation.) The social work department interviews and considers each applicant on the basis of an initial suitability assessment, looking at motivation, nature of drugs misuse, its pattern and history, along with the living and home circumstances. It then decides which oenders should go forward to a screening group. The screening group is made up of the Fiscal,

MARCEL DEKKER, INC. 270 MADISON AVENUE NEW YORK, NY 10016

2002 Marcel Dekker, Inc. All rights reserved. This material may not be used or reproduced in any form without the express written permission of Marcel Dekker, Inc.

DRUG TREATMENT COURTS IN BRITAIN

1603

defence agent (who will have discussed the possibility of a drug treatment court sentence with his client), social worker, and the police, who then decides who shall be referred. The Fiscal notes whether a guilty plea has been given, and if it has draws this to the attention of the custody court sheri, who schedules the case to appear before the drug treatment court. The Working Group emphasised that the whole process should take less than one month from the time the oender is charged and arrested to the time a drug treatment court order is made. Up to the point at which the sheri is notied the process should take no longer than 24 h. The court operates in the same way and has the same authority as other courts, there are the same range of powers on sentence and disposal available to it as are available to any other sheri sitting in a summary court, again repeating the point made earlier that the intention was to integrate the drug treatment court into the existing system. Whilst the intention was to establish and introduce a dierent or new type of court, the fear was that were it to be seen as special in some way it would create the wrong impression, whether for oender or judge. The Working Party said: This is not considered to be a disadvantage in itself. It ensures that oenders realise that referral to the drug treatment court does not mean they are guaranteed a noncustodial disposal. The corollary is also important. The sentencing powers of sheris . . . should not be restricted by the introduction of drug treatment court. This implies that no disposal should be the exclusive preserve of drug treatment court. The Scottish proposal therefore avoided another of the major pitfalls and defects of the American system. It was not to be a system within a system, operating according to its own rules, procedures, precedents, and ideologies. It also avoided creating the impression that drug users are uniquely important. Consistent with this approach are the sentences to be available. They were already in existence:
. . . .

Probation Order with a condition of drug user treatment Drug Treatment and Testing Order (DTTO) Concurrent DTTO and conditional Probation Order Deferred Sentence.

The Scottish drug treatment court therefore pulled into it existing sentences but imposed on them the new drug treatment court practices. So, for example, the standard probation order has within it conditions about requiring the oender to report regularly to the probation ocer, be of good

MARCEL DEKKER, INC. 270 MADISON AVENUE NEW YORK, NY 10016

2002 Marcel Dekker, Inc. All rights reserved. This material may not be used or reproduced in any form without the express written permission of Marcel Dekker, Inc.

1604

BEAN

behavior and lead an industrious life, plus any additional conditions that may be inserted regarding treatment. Under the Scottish proposals drug treatment court extend these conditions to include the following: 1. To submit to treatment (specify whether as a resident or nonresident) by or under the direction of (name of treatment provider) at (name of institution) with a view to the reduction or elimination of dependency on or propensity to misuse drugs. To conform to the directions of the treatment provider. To provide for the purpose of ascertaining whether he/she has any drugs in his/her body samples, of such description at such times in such circumstances as the treatment provider may determine and at such minimum frequency as the court may require. To attend each court review hearing the rst review to be heard on (date and time). Insert any further condition(s) particular to the circumstances of the individual oender.

2. 3.

4. 5.

The same goes for sanctions. Under the earlier system, i.e., pre drug treatment court system, there were a number of sanctions that could have been imposed where conditions of a probation order were broken. Where the order had been breached as opposed to the commission of a further oense during the order, the court had a number of powers. It may have believed it was not worth continuing with the order, in which case it could have imposed any sentence it could have made in the rst instance. If, however, the court wished to continue with the order then it would choose either to take no action, and perhaps warn the oender, or impose a ne, or a community service order (which is not available for DTTOs) or vary the order including making it longer, but not beyond 3 years overall maximum. Second, where the oender commited a further oense, then the court would take no action or revoke the order, again as with the standard probation order. However, under the new proposals the drug treatment court can impose new sanctions. So, for example, at one of the regular reviews where progress is not seen to be maintained (missed appointments, testing dirty, etc.) the drug treatment court could increase the contact with the treatment provider, increase drug use tests, increase frequency of reviews, or any combination of those. It could be argued that the court would already act in this way under the DTTO, so that at one level the Scottish drug treatment court system appears to be doing little more than operating akin to an expedited case management court. But that is misleading; it is doing something much more and oering a system which takes many of the features of the Miami system but recasts it to t the Scottish experience. It has introduced several

MARCEL DEKKER, INC. 270 MADISON AVENUE NEW YORK, NY 10016

2002 Marcel Dekker, Inc. All rights reserved. This material may not be used or reproduced in any form without the express written permission of Marcel Dekker, Inc.

DRUG TREATMENT COURTS IN BRITAIN

1605

distinguishing features that set it apart from existing procedures and show that it has something interesting to oer. These retain the spirit and procedures of its American parent but are very Scottish in their approach. The distinguishing features are: 1. 2. It has a specialist Bench, consisting of a Sheri who will develop a considerable measure of expertise. This is new. A multiagency drug treatment court team will oversee its operation and development. That team will include the drug treatment court Sheri, who will chair the meetings, the Fiscal, a senior medical practitioner, treatment ocials contracted into the team also from the private sector, a representative of the Bar Association, a police ocer etc. Again this is new, but does not go as far as giving that team the powers and responsibility of the U.S. system. Regular and random drug testing of oenders on all orders, including probation. This too constitutes a departure from existing practices. Regular reviews in court of oenders progress, with the oender present, again constituting a departure from existing practices, although using the precedent provided by the DTTO. Multidisciplinary screening group and interagency working. What is innovative here is that the Fiscal has given up his role to this multiagency screening group, so that in this respect it moves closer to the Team approach. Fast track procedures where the aim is to get the oender into drug treatment court within one month, in contrast to the seemingly endless waiting period under the present system. Initiation of all breach actions for noncompliance by the Bench (through invitation to the supervising ocer). Again this is new. Use of summarily sanctions at reviews.

3.

4.

5.

6.

7. 8.

Point number 8 is additionally interesting. Whilst there are sanctions at reviews, there were no proposals or facilities for multiple sanctions. The Working Group, however, noted a lacuna in local provision. Short custodial sanctions on breach or review cannot be imposed without terminating the order. Accordingly:[3] The Group believes that in the light of international experience and local need the sanctions currently available to the drug treatment court to use summarily are too restricted in nature. In particular we believe the operation of the court would be enhanced if it was able to impose short terms of custody or community service,

MARCEL DEKKER, INC. 270 MADISON AVENUE NEW YORK, NY 10016

2002 Marcel Dekker, Inc. All rights reserved. This material may not be used or reproduced in any form without the express written permission of Marcel Dekker, Inc.

1606

BEAN

summarily without prejudice to the continuance in force of the treatment order. The Working Group therefore recommends that legislative change be considered to increase the range of sanctions that may be employed by a drug treatment court without prejudice to the continuance in force of the order itself. Scotland then will be the rst country in the U.K. to introduce multiple sanctions, but of course only after primary legislation. Supervision will be undertaken by the DTTO unit to be upgraded to form the core of the drug treatment court Treatment and Supervision teamthis team also undertakes all assessments and reports. Accordingly, there is a newly trained team, reecting what has been learned under the DTTO, which simply drafted in probation ocers to deal with the testing and supervision and with little training. The result was and is fairly predictable. The new team requires treatment to meet the aim of the reduction or elimination of the misuse or propensity to misuse drugs. The court aims for abstinence but will permit say, methadone maintenance, but then only as part of an integrated treatment plan, i.e., it will not permit maintenance prescribing or other forms of indenite harm reduction. It was expected that the Glasgow drug treatment court will take some of the so-called hard to treat drug users. It was thought that about 8000 drug users in Glasgow could benet from drug treatment court treatment, although the drug treatment court can only take between 150 and 200 per annum. The age group will be 21, but the expected mean age is likely to be higher. In exceptional circumstances those aged 1620 will be considered. A major predicted disadvantage of the drug treatment court is that non-drug-user oenders could be left behind when it comes to providing treatment, as treatment facilities will be disproportionately provided to drug treatment court oenders. It is hoped, however, that this will be oset by advantages, one of which is to deal with those oenders that no one else wants to treat. If the experience of other countries is to be relied on, then procedures will change as experience dictates. Questions about breach proceedings may dominate; for example, the re-oending and reconviction rate whilst on an order is expected to be high, at least 30% are expected to be reconvicted, with many oenders testing positive throughout, and especially in the early stages of the order. There are also questions about the review. For example:
. .

How best to secure the interests of the oenders? How often should reviews be undertaken, and who is to be present at the reviews? Finally, there are perennial problems of testing; how best to test, and how to reduce the unit costs?

MARCEL DEKKER, INC. 270 MADISON AVENUE NEW YORK, NY 10016

2002 Marcel Dekker, Inc. All rights reserved. This material may not be used or reproduced in any form without the express written permission of Marcel Dekker, Inc.

DRUG TREATMENT COURTS IN BRITAIN

1607

In summary, then, the Scottish system has used to great eect the evolutionary features of the drug treatment court, whilst studiously and rather cleverly leaving the revolutionary ones aside. It modies and softens the drug treatment court team to make it evolutionary, and it does likewise with the question of judicial supervision. Elements of the Miami model are present, but diluted to t existing legal demands. The Scottish drug treatment court will lead the way in drug treatment courts for the U.K., and its experience will doubtless be used if and when others come on stream.

DRUG TREATMENT COURTS IN EIRE The First Report of the Drug Court Planning Committee (Pilot Project) was published in Dublin in August 1999,[5] having been set up in January 1999. Briey, it recommended that a drug treatment court pilot project be introduced to run for 18 months, with a built-in evaluation. In the event of the pilot being successful, and proven to be so following an evaluation, additional resources will be provided to extend the program. The rst drug treatment court in Eire began in January 2001. As with Scotland, the Irish project is conned to one city, Dublin, which has a large drug use(r) problem. Estimates suggest that in 2001 there were between 10,000 and 15,000 heroin addicts in the Greater Dublin area alone, with many others using a variety of other drugs. The drug treatment court began in January 2001, its function and nature dened as such:[5] A Drug Court while being similar to all Courts in the State shall have as its primary aim the reduction of crime through rehabilitation of the oender but not excluding punishment should the circumstances so merit. Its purpose is to provide a scheme for rehabilitation under the auspices and control of the Court. Emphasis should be laid rstly on rehabilitation as many of the oenders come from grievously disadvantaged backgrounds and on the application, enforced or otherwise, of structured supervision to help them escape the cycle of oending and in so doing cease criminal activity. The background to the Irish experience is that in February 1998 the Working Group on a Courts Commission commenced a study of American drug treatment courts at the request of the Minister for Justice, Equality and Law Reform. In February 1998 it published its report and recommended that a drug treatment courts planning committee be set up, and that a drug treatment courts coordinator be appointed as soon as possible. It concluded

MARCEL DEKKER, INC. 270 MADISON AVENUE NEW YORK, NY 10016

2002 Marcel Dekker, Inc. All rights reserved. This material may not be used or reproduced in any form without the express written permission of Marcel Dekker, Inc.

1608

BEAN

that it believed that this programme can make a major contribution to reduce drug-related crime in Ireland. The evidence from abroad is not persuasive; it is conclusive. In February 1999 a drug court planning committee was established; its terms of reference were:[5] To initiate develop and oversee a Drugs Courts Planning Programme with clearly dened goals and objectives. . . . . .involving court supervised treatment programmes as an alternative to custodial services aimed at reducing drug-based crime and other sociological problems arising from drug abuse. The Minister accepted the report and a small subcommittee was formed to plan the project. Briey, that planning committee proposed that a drug treatment court be evaluated by outside evaluators with a control group of similar oenders who were not in a drug treatment court. It suggested that a drug treatment court should not begin until all the treatment services were in place and services guaranteed to the drug treatment court for the duration of the pilot. A steering committee would oversee the project and, in consultation with the evaluator,ne tune as it progressed. The drug treatment court was to have facilities for immediate random drug use testing and for bench warrants, which were to be issued for oenders who failed to appear, and the warrants executed promptly. Finally, where defendants through failure were expelled from the program, any sentence imposed should be fully served, i.e., not suitable for remission. The thinking behind the Irish drug treatment court was that whilst it had to be based on the American system it recognized there are many dierent models or paths to the truth. Therefore, as long as the nal proposal remained within the framework of a program of judicially supervised and enforced treatment, it was best to do what suits your particular situation.[6] To this end, the Irish drug treatment court operates in a way quite unlike its Scottish counterpart. The Dublin Court is a Bail Bond Court, that is, it operates with the oender on bail. The period of bail is up to 2 years, and on completion of the program the conviction stays on the oenders le. Being on bail the oender can opt out at any given time, the oender has not been sentenced, but whilst on bail, and on the program is oered the guarantee of not being sent to prison at the end of the program, although the oender may be put in custody for short periods during the program on breach of bail. The Irish Bail Act says it is a breach of bail if the oender is no longer of good behavior, and this is what gives the court its powers. The Irish drug treatment court aims to take the serious cases; it is not for rst oenders. For example, of ve oenders currently on the program, all have 10 or more previous convictions, and all are serious long-term heroin users, all inject,

MARCEL DEKKER, INC. 270 MADISON AVENUE NEW YORK, NY 10016

2002 Marcel Dekker, Inc. All rights reserved. This material may not be used or reproduced in any form without the express written permission of Marcel Dekker, Inc.

DRUG TREATMENT COURTS IN BRITAIN

1609

and all are unemployed. They have a prole well known to those who see long-term drug users within the criminal justice system. The drug treatment court team consists of two probation ocers, a liaison nurse, two community guards, and an education/vocational training assessor. Cases are referred from other courts after a guilty plea or a conviction and following a probation report. After one week, consisting mainly of assessments by the probation ocers, the oender, if considered suitable, will be released on a drug treatment court bail bond and required to sign an authority (a release) in relation to medical records. This covers matters of condentiality. Thereafter, the oender will enter the program. The program takes those aged 18. In the rst 4 months or so from January 2001 to May 2001 there were 22 referrals and already lessons have been learned; for example, homelessness of participants causes grave problems, and tensions arise because the time taken to arrange treatment is a problem. Paradoxically, it is also a problem for those not on the program, as it appears that those who are in the drug treatment court are favored, as they receive treatment more speedily than others do. The other lesson learned is that in those cases where voluntary treatment has failed, the drug treatment court is able to deal with those so-called hard core oenders. It is interesting to compare the Scottish system with the Irish system. Both agree that it is necessary that oenders always come before the same judge, and also agree that they will not employ the treatment providers. Judge Haughton, the Dublin Drug Treatment Court judge, says (Personal communication) he does not employ the treatment providers. They are the experts. I supervise the programme. Of course treatment must be approved by the drug treatment court team who agrees upon the nature and form of the program, but the providers are employed by an outside agency. The Scottish system has within it a multiagency drug treatment court team to oversee the operation and development of the court, with lawyers, police, the sheri, and the Fiscal being members. The defense agent (lawyer) brings knowledge of the oender, including background drug misuse, oense, and living circumstances to the notice of the Fiscal.[3] Lawyers therefore have a part to play, although one suspects that as the court gains more experience the precise nature of their role might change. However, in the Dublin court lawyers were excluded from the outset. Prior to the opening of the court the drug treatment court Judge, Gerard Haughton, organized a seminar in the Law Society under the aegis of the Criminal Law Association. He outlined his views on how the drug treatment court would operate and pointed out that it was basically a court overseeing medical treatment for the long-term benet of the clients, and that participation by the oender was voluntary. He suggested that lawyers, therefore, should not attend court as this places a third party between the court and the accused. I believe that

MARCEL DEKKER, INC. 270 MADISON AVENUE NEW YORK, NY 10016

2002 Marcel Dekker, Inc. All rights reserved. This material may not be used or reproduced in any form without the express written permission of Marcel Dekker, Inc.

1610

BEAN

this reduces the obligation on the accused to account for his own conduct.[6] Accordingly, lawyers do not attend and Judge Haughton sees this as one of the major achievements of the Dublin court. Under the heading Lessons learned Judge Haughton says: The exclusion of lawyers is particularly successful. Finally, by way of comparison, in the Scottish system there are proposals to seek primary legislation for multiple sanctions, whereas in Eire a dierent situation has been accepted. That is, that multiple sanctions can be applied as a condition of bail. Whether the Superior Court would accept this is a dierent matter. Judge Haughton (personal communication) again: Anyone in Drug Court on a Bail Order sentenced to multiple sanctions can go to the High Court and challenge the Order under a writ of Habeas Corpus. He will win. The consequences are ne for the State. And the Client will be out of prison within 3 or 4 days. But he will also be out of Drug Treatment Court, and all that means in terms of his addiction. Clearly, the use of multiple sanctions has been accepted, and once the oender is in a drug treatment court the lawyers have agreed to step aside. This does not, of course, resolve questions about justice, although it may satisfy those who see rehabilitation as the goal. It reawakens also other criticisms of rehabilitation made in the 1960s, namely that it gives unbridled power to those intent on rehabilitating the oender. Nonetheless, there is little doubt that drug treatment courts in Ireland, as in Scotland, oer a radical departure from the traditional criminal justice system, and for judges also. There is little doubt, too, that drug treatment courts in Ireland and Scotland will be for the serious, long-term drug user, there is no suggestion of net widening, nor any attempt to take only rst oenders, or the so-called minnows of the criminal justice system. The intention is to take the hard-to-treat. This is based on the assumption that if drug treatment courts have anything to oer they need to be able to deal with those oenders who cannot be dealt with elsewhere. Drug treatment courts must therefore justify their existence on this basis, and take those who have failed hitherto, this being the justication for investing in a new system and changing existing practices. It will be interesting to see how matters develop.

DRUG TREATMENT COURTS IN ENGLAND AND WALES Whilst key bodies such as the Home Oce or Youth Justice Board have shown an interest, as have some senior members of the judiciary, alongside the occasional comment from the Prime Minister and other

MARCEL DEKKER, INC. 270 MADISON AVENUE NEW YORK, NY 10016

2002 Marcel Dekker, Inc. All rights reserved. This material may not be used or reproduced in any form without the express written permission of Marcel Dekker, Inc.

DRUG TREATMENT COURTS IN BRITAIN

1611

senior Ministers, there are no immediate plans in England and Wales to follow Scotland or Eire. Occasionally, there have been experiments with a drug treatment court type model, as in Wakeeld (Yorkshire), but although the inuence of drug treatment courts is there, the outcome turns out to be little more than a special type of probation order. That is of a probation order where a magistrate takes a special interest, and sees the oenders regularly. England and Wales have retained faith in the Drug Treatment and Testing Order (DTTO). There is no doubt that the DTTO incorporates some features of the drug treatment court, and there are claims that the DTTO is a drug user treatment court in all but kind. If it is, then it is a drug treatment court of a very weak form, lacking the essential features which the Scottish and Irish systems have already introduced. The legal provisions for the DTTO are found under Section 61 of the 1998 Crime and Disorder Act, and DTTOs apply to all countries in the United Kingdom, including Ireland. A DTTO requires convicted oenders to undergo treatment for their drug problem, either alone or in tandem with a Community Service Order (CSO). The DTTO can be for not less than 6 months or not more than 3 years. It includes the following requirements and provisions. These are that there will be: a treatment provision that the oender shall submit during the whole of the treatment and testing period to treatment by or under the direction of a specied person having the necessary qualications or experience, (the treatment provider) with a view to the reduction or elimination of the oenders dependency or propensity to misuse drugs. This Section also gives the court powers to order the oender to be tested. A Drug Treatment and Testing Order shall include a requirement (the testing requirement) that for the purpose of ascertaining whether he has any drugs in his body during the treatment and testing period at such times or in such circumstances as may (subject to the provisions of the order) be determined by the treatment provider, samples of such description as may be determined. In practice this means the following:
.

A DTTO includes a treatment requirement which may be residential and it must identify the treatment provider. Treatment providers are required to give a number of drug use tests and submit their results to the supervising probation ocer, who will report them to the court.

MARCEL DEKKER, INC. 270 MADISON AVENUE NEW YORK, NY 10016

2002 Marcel Dekker, Inc. All rights reserved. This material may not be used or reproduced in any form without the express written permission of Marcel Dekker, Inc.

1612
. .

BEAN

The order applies to oenders over the age of 16 years. Supervision is by the probation service and includes a provision for the order to be reviewed at intervals of not less than one month. The oender is required to attend a review hearing, although if progress is maintained the oender need not attend. Where treatment is not satisfactory, or the oender commits another oense, the court may sentence the oender for the oense for which he was made subject to the order.

Clearly, the model for the DTTO is that of the U.S. drug treatment court, although nowhere is there any public acknowledgement that this is so. The DTTO uses some of the features of drug treatment court in that treatment is provided by outside agencies, called treatment providers in the legislation, itself a U.S. term. Treatment is backed by drug use testing and is reinforced with supervision, in this case from the probation service. Frequent court appearances review the oenders progress. However, important dierences remain. The DTTO as it currently operates is not very dierent from an ordinary probation order. Drug use testing is undertaken by the probation service, with few of the stringent controls undertaken in the drug treatment court. Judicial supervision is not formally linked to the aims of the treatment program except in a general way; it takes the form of judicial interest rather than judicial involvement. Nor is it clear what are the aims of the DTTO in terms of continuing substance misuse. Are they abstinence or harm reduction? Most of all, the court does not initiate the review hearing; this is more a matter for the probation ocer and treatment provider. The history of the DTTO is interesting. It was rst introduced by the then Shadow Home Secretary, Tony Blair, in the mid-1990s. It was not evidence-based, but there was a stated belief that treatment would greatly reduce the extent of criminality. (The British Parliamentary system allows the Party not in oce to shadow or act as opposition spokesmen to key oces of State.) When Mr. Blair became Prime Minister, it was made Government policy and became the centrepiece of the Governments criminal justice strategy. Perhaps this help explains why England and Wales have kept faith with the DTTO; Government spokesmen have made it clear there is no place for the drug treatment court until the DTTO has run its course. In contrast the Irish say[5] that this situation (i.e., failure to use it,) is testament to the fact that legislation without resources to implement it is almost useless. Ireland also says it no longer uses the DTTO due to the inadequacy of the treatment and probation services. Scotland has not rejected it, but modied it to improve and develop it. England and Wales have done neither.

MARCEL DEKKER, INC. 270 MADISON AVENUE NEW YORK, NY 10016

2002 Marcel Dekker, Inc. All rights reserved. This material may not be used or reproduced in any form without the express written permission of Marcel Dekker, Inc.

DRUG TREATMENT COURTS IN BRITAIN

1613

It is dicult to explain why this should be so. Supporters of the drug treatment court have lobbied and made their case, but there has been no Government Minister or Department eager or enthusiastic enough to want to take hold of the debate and move the cause along, as clearly happened in Scotland or Ireland. Isolated comments, usually in favor, have been the more typical response. Yet once the debate begins it is suspected there will be widespread support. For example, the voluntary agencies will see drug treatment courts as likely to produce an increase in funding, as well as providing an opportunity to increase their hold over the treatment programs. Support is also likely to come from individual members of the judiciary, who like their U.S. counterparts a decade earlier, are dissatised with the current system and conditions, and have little to hope from the DTTO. The media would also be expected to oer support, as they complain constantly about the inadequacy of the existing system. There would, however, be opposition. Whilst direct opposition from the courts may be less than expected, it will come certainly from those agencies within the court system that are reluctant to embrace change. Most of this formal opposition would come from the probation service, which after all has the most to lose. A drug treatment court would replace the DTTO in importance, and thereby relegate the probation service and probation ocer to a more lowly position. It is interesting that there is no probation service in Scotland, and in Eire it lacks resources, and thereby inuence. There is also likely to be opposition from the treatment providers in the statutory agencies, including the medical profession, as these are likely to lose their independence. How powerful and coordinated that opposition will be is dicult to see. Nor is it clear how much longer will they be able to stand out against a seemingly strengthening tide, for, irrespective of whether drug treatment courts are to be introduced, the days of the freewheeling professional treatment provider are over. Supervised treatment, whether from the court or elsewhere is the likely next stage of development. In the meantime this group may continue to wield its inuence. Opposition at the moment takes more of the passive form, showing itself as inertia, or what can be called structural temerity. It comes in the form of we dont need drug treatment courts, we have already the appropriate mechanisms for dealing with the problem. Those who were in the vanguard of the drug treatment court movement in the United States in the 1990s will recognize the syndrome, and see the parallels. The solution may therefore be political and sociological, where political bullets need to be red and structural changes proposed alongside reassurances about the future. This is what happened in the United States and is also likely to happen in England and Wales. There is little doubt that drug treatment courts in some form will be introduced in England and Wales within the next decade, if only because

MARCEL DEKKER, INC. 270 MADISON AVENUE NEW YORK, NY 10016

2002 Marcel Dekker, Inc. All rights reserved. This material may not be used or reproduced in any form without the express written permission of Marcel Dekker, Inc.

1614

BEAN

the present system cannot meet the demands placed upon it. They will be seen as one solution to the persistent drug-using criminal who has resisted all earlier treatment programs; that is their appeal.

REFERENCES 1. Bean, P.T. Drugs and Crime; Willan Publishing: Devon, England, 2001. 2. Nolan, J.L. Reinventing Justice; Princeton University Press: Princeton, NJ, 2001. 3. Report of a Working Group for Piloting a Drug Court in Glasgow. Mimeo, May 2001. 4. Tauber Judge, J. Drug Courts: a Judicial Manual; Judicial Council of California: Los Angels, 1994. 5. Drug Court Planning Committee. The First Report of the Drug Court Planning Committee. Pilot Project; The Stationery Oce: Dublin. 1999. 6. Haughton, G. Dublin Metropolitan Drug Court; Address to Scottish Seminar on Drug Courts, Mimeo, May 2001.

THE AUTHOR Philip Bean is Professor of Criminology and Director of the Midlands Centre for Criminology and Criminal Justice, University of Loughborough. From 1996 to 1999 he was President of the British Society of Criminology. He is the Author/Editor of 20 books and numerous articles, mainly on drugs and crime or mental disorder and crime, and has conducted research for the UN, the British Government and various other national bodies. He has held Visiting Professorships in Canada, the United States, and Australia. He has been reporting on drug treatment courts for the Home Oce for the last 6 years.

Copyright of Substance Use & Misuse is the property of Taylor & Francis Ltd and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use.