drug treatment courts british style the drug treatment court movement in britain

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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, LoughboroughUniversity, Loughborough, Leicestershire,

LE11 3TU, UKE-mail: [email protected]

ABSTRACT

There has been an uneven pattern of development of drugtreatment courts throughout Britain. The Republic of Irelandhas a drug treatment court and Scotland will have one by theend of 2001, but there are no drug treatment courts in EnglandandWales, or Northern Ireland, although in the latter there is agrowing interest. It is suggested the Drug Treatment andTesting Order (DTTO) in England and Wales has acted as animpediment as this is a very weak version of drug treatmentcourt and was proposed by the Prime Minister when Shadow

SUBSTANCE USE & MISUSEVol. 37, Nos. 12 & 13, pp. 1595–1614, 2002

1595

DOI: 10.1081/JA-120014423 1082-6084 (Print); 1532-2491 (Online)Copyright & 2002 by Marcel Dekker, Inc. www.dekker.com

*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, NorthernIreland, England and Wales, although for convenience England and Wales havebeen linked.



Home Secretary. Drug treatment courts in Eire and Scotlandhave adapted their program to fit local conditions, althoughneither have opted for a fully fledged drug user treatment courton the Miami model.

Key Words: Drug courts; Drug treatment courts; Problemsolving courts; Judicial supervision; Drug courts in Britain

INTRODUCTION: AN OVERVIEW OF

DRUG TREATMENT COURTS

That Britain and the United States share the same common lawtradition would suggest that developments in one country would beexamined and readily transferred to the other. Often this is so; for example,many drug policies, and research programs in the United States have beenintroduced into Britain.[1] Sometimes, however, there is a reluctance toaccept transatlantic ideas; for example, Britain has tried and abandonedthe use of a ‘‘Drugs Czars’’ and the United States has never been enthusias-tic about the British system involving heroin prescribing. The questions tobe asked here are, however, more specific; they are about introducing aspecific type of program the Miami-style drug user treatment court, intoBritain, and if so in what form? The aim of this paper is to determine towhat extent Britain has accepted and implemented drug treatment courts,and if not in entirety then the drug treatment court model, or the drugtreatment court idea.

I want to look first at some of the major features of drugtreatment courts generally, and then describe the situation in Scotland andEire, where drug treatment courts have been, or are to be, introduced. Atthe time of writing Scotland is to have a drug user treatment court inGlasgow in 2001, the Republic of Ireland has one in Dublin which beganin 2001, but there are no immediate plans to introduce them in England,Wales, or Northern Ireland, although I understand Northern Ireland hasexpressed an interest. I want to look at why drug treatment court devel-opment has lagged behind in the U.K., or more specifically in Englandand Wales, and show how, if at all, the situation might change.Underlying the discussion is the recognition that ‘‘the drug problem’’ inBritain is no less severe than in the United States. There may be differ-ences in the ethnic composition of the users, in the types of drugs used,or the method of ingestion, but many basic epidemiological features aresimilar.

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SOME MAJOR FEATURES OF


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 judicialcontrol. Drug treatment courts require the offender 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 officerand the court as required. Rehabilitative regimes differ from those aimed atpunishing on the basis of retribution or deterrence. Rehabilitative regimesare ‘‘problem solving.’’ Justice is not their primary aim; it is to securetreatment. They do so within the philosophy of welfare, but operate withina framework of criminal justice.

Transferring these rehabilitative measures to other common lawjurisdictions would, on the face of it, present few difficulties. In Britainthere have always been opportunities to promote rehabilitation within theexisting criminal justice system. Treatment, which accompanies punishment,i.e., as part of the sentence, is available for offenders on probation (as acondition of the probation order, and as inpatient or outpatient) or throughthe deferred sentence, or on a voluntary basis as part of a bail scheme.Recently, the Drug Treatment and Testing Order (DTTO)—to be examinedin greater detail later—has extended the range and scope of treatmentprovisions for the courts. Extensive drug user treatment facilities are alsoavailable within prisons, where treatment, which if not part of the sentence,may nonetheless be a consideration for parole. Government policyencourages the growth of these rehabilitative measures.

Moreover, the role of the judge in the drug treatment court hasreceived much attention as the judge occupies a central position, that ofteam leader. Critics say this makes the judge a partisan figure, more akin toa social worker than an impartial judicial figure ‘‘holding the legal ring.’’ Yetjudges have always been partisan in some respects; if not during the trial,then when passing sentence. The judicial role was never clear cut, and thejudge never as detached as some of the drug treatment court critics appearto believe. The drug treatment court extends the judicial role, and changesthe judicial style. It makes the judge a more proactive figure, whichincidentally has the unintended consequence of placing greater emphasison the personality of the judge, and on the personal interactions with theoffender.[2]

Again, it would not be impossible to introduce that type of system intoBritain. A precedent was set in the 1970s in Yorkshire (England) in thejuvenile courts, whereby school truants were placed on a deferred sentence

DRUG TREATMENT COURTS IN BRITAIN 1597



and had to come back to the justices at regular intervals to report onprogress. The drug treatment court builds on that. Of course, manyBritish judges might baulk at the more extreme evangelical stance occupiedby some American drug treatment court judges, and at the robust regimefavored by others, but this is more about style than content.

Finally, consider the role of the officers of the court of which theprobation officer is the best example. Probation officers 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 theoffender is paramount (this in contrast to their American counterparts),and their insistence in retaining that welfare approach has led to someirritation from the Government, who would prefer a more supervisory role.Accordingly, they would find no conflict or difficulty in working within thedrug treatment court model as part of the drug treatment court team; theywould have rather fewer duties and the numbers of probation officersinvolved would be dramatically reduced but, that apart, they could adaptto the changes required.

However, set against these evolutionary developments are a smallnumber of revolutionary ones which would be more difficult to introduce,and require primary legislation. Three are identified here, which, when takentogether, show how drug treatment courts have ‘‘changed the face ofcriminal justice.’’ That is, they have extended existing practices beyond thepoint where they can be absorbed into the existing structure, and in wayswhich have undermined the more traditional forms. These are the featureswhich produce the most controversy, at least in Britain.[2]

First, judicial supervision. It is not that the drug treatment court judgeexercises additional controls over the offender that is revolutionary, but thatthe judge controls the treatment program, even to the extent of employingthe treatment providers. Traditional systems such as those in Britainseparate the roles and functions of the judiciary from other branches ofthe criminal justice process, so that offenders on, say, probation, are handedover to the probation service, or when sent to prison are under the jurisdictionof the prison service. Traditional courts lose their jurisdiction once theoffender has been sentenced. Nor do these courts supervise offenders, orrun or employ those operating the programs, i.e., they do not hire andfire those whose task it is to run the programs, in this case the treatmentproviders. This level of judicial supervision is not appropriate under currentlegislation.

Second, there are serious difficulties about transferring to Britain theso-called ‘‘problem-solving court’’ using the ‘‘team approach.’’ This is themost radical of all the features of the drug treatment court, as it fusescriminal justice with rehabilitation in ways which transform the roles and

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functions of prosecutors and defenders. Lawyers, from whatever side of theadversarial divide, are required to shed their traditional stance and adopt anagreed position aimed at assisting the offender to be rid of the drug problem.Prosecutors must defray demands for heavier sentences, and defence counselfor lighter sentences; both must accept that the drug treatment courtprogram is best for the offender’s future and work within a team whichsets the offender’s goals. This requires more than a change of role, it requiressuspension of a basic tenet of the adversarial system, that legal proceduralrequirements are more than administrative devices aimed at ensuring thecourt system operates smoothly. They are there to protect the offender fromidiosyncratic decisions and corrupt practices. When supporters of the drugtreatment court claim to ‘‘be reinventing justice’’ or that drug treatmentcourts are ‘‘problem-solving courts’’ to be used for all types offenders,including mentally disordered offenders, supporters of the traditionalsystem are understandably nervous. Introducing the team approach intothe British court system would only occur after a lengthy debate with allinvolved in the judicial system, and perhaps beyond, and require detailedlegislation.

Thirdly, there are the sanctions for noncompliance, whether forcontinuing drug use, or failing to attend the treatment centers, or failingto report to the court when so required. Underlying the drug treatmentcourt is an assumption that addiction is a chronic relapsing condition, sothat becoming drug-free is a long-term learning experience. Accordingly,failures are to be expected, especially in the early stages. However, failuresmust 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 usuallythis lasts a few days. In contrast, if the offender makes progress there will berewards; these may involve praise from the judge, or being given fewerreporting requirements, or taking fewer drug tests, and in some cases erasureof the original conviction from the file, an important reward if a ‘‘threestrikes’’ policy operates. There are no provisions in Britain for the use ofmultiple sanctions; the nearest occur in the probation order, where breach ofrequirements allows the court to impose a small fine, and the order tocontinue. It would be regarded as unjust, and probably unlawful, to dothis more than once on the same order.

In the United States, many States have introduced primary legislationto meet these revolutionary changes, including extending the jurisdiction ofdrug treatment courts to include offenders in prison on release programs.In Britain no such legislation exists, and it is doubtful if the LordChancellor’s Department, the department responsible for the operation ofthe courts, would permit them to go ahead without statutory authority,




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

DRUG TREATMENT COURTS IN SCOTLAND

Scotland is ahead of the rest of the United Kingdom in that (the time)the first pilot drug treatment court began in autumn 2001 in Glasgow. Itshistory is interesting. AWorking Group entitled ‘‘Piloting a Drug TreatmentCourt in Glasgow’’ was established in February 2001, on the initiative of theScottish Justice Department. The Sheriff Principle for Glasgow andStrathkelvin, the senior judicial figure, Edward F. Bowen QC, was invitedto convene and Chair the Group. The remit was ‘‘to make proposals to theScottish Deputy Minister for Justice, and report by Easter on a model withinexisting legislation of a Drug Treatment Court and on the arrangements forits operation in Glasgow Sheriff Court by the Autumn of 2001.’’ The time-table was commendably tight, and the terms of reference commendably clear;there were 2–3 months to prepare the Report, and a further 6 months tocomplete the preparations. Accordingly, the drug treatment court inScotland was operational some 9 months after the Working Group wasestablished.

The Working Group argued that no drug treatment court shouldoperate in isolation from the rest of the criminal justice system, for a drugtreatment court is dependent on the availability of an infrastructure oftreatment facilities. It argued that in isolation a drug treatment courtcan achieve little. As part of a wider criminal justice and treatment infra-structure it can make a positive contribution to the reduction of crime aris-ing out of drug misuse through tackling offenders’ dependence on drugs.[3]

The proposal was that the drug treatment court should operate within thecurrent system, drawing on and assisting the criminal justice system gener-ally. The drug treatment court is not to be a freewheeling court going itsseparate way, but integrated into the existing system.

Accordingly, the Working Group proposed that the objectives for theGlasgow drug treatment court should be:

1. To reduce the level of drug-related offending behavior.2. To reduce or eliminate offenders’ dependence on or propensity to

misuse drugs.

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3. To examine the viability and usefulness of a drug treatment court inScotland using existing legislation and to demonstrate where legis-lative and practical improvements might be appropriate.

None of these was seen to be contentious, as the Working Group hadaccepted the principle that drug treatment courts were worthy ofconsideration, a step not yet taken by England and Wales. These objectiveswere derived from the Working Group’s analysis of recent evaluations ofdrug treatment courts, mainly in the United States. They concluded thatin comparison with other courts generally, drug treatment courts had beensuccessful in engaging and retaining offenders in treatment services. TheWorking Group believed that drug treatment courts provided closer andmore intensive supervision of drug using offenders, that criminal behaviorwas lower after participation, especially for graduates, and that drugtreatment courts save money. Using reports on other courts, whether fromAustralia, Canada, or Eire, the Working Group identified a number ofcommon features, which for these purposes the most important are:

1. Mandatory, regular and random drug testing.2. Available and court-enforced treatment programmes.3. Court-enforced supervision in the community.4. Regular direct oversight by the Bench in Court of the offender’s

progress with the offender present.5. Multidisciplinary drug treatment court Team.6. Regular use by courts of instant summary sanctions for positive

drug use tests or other compliance infractions, including shortperiods of custody or community service with treatmentsupervision programme continuing.

7. Regular use of court as motivator as well as sanctions, includingjudicial approval for progress.

All are key features of the drug treatment court, involving treatmentmixed with mandatory testing and court-directed supervision. What was notclear at that stage, and to some extent still remains unclear, is what are to bethe nature and powers of say, the ‘‘multidisciplinary court teams,’’ or ‘‘theenforced treatment programmes?’’ Are they to be the same as in Miami orare they to be a modified version? What the Working Group seems to besuggesting is that the Scottish drug treatment court model will adapt to localconditions, so that in its early stages it will take on board only as much ascan be accepted within the legal and cultural norms of the country. To dootherwise might be disruptive.

The objectives and principles underwhich the Scottish court will operatetherefore are based firmly in the traditions of U.S. drug treatment courts,




yet adapted to the local situation. The Scottish system did not go all the wayalong the drug treatment court track, yet has gone sufficiently far to qualifyas a drug treatment court. That is to say in Scotland they have not taken onboard all the revolutionary features described above, but have moved farenough along to meet the basic requirements. Nor have they taken some ofthe more extreme ideologies attached to the U.S. drug treatment courtsystem; they do not, for example, claim to be part of a trend towardscriminal justice programs that respond directly to, and are involved directlywith, their communities, described in one drug treatment court manualas ‘‘community judging’’ which involves drug treatment courts ‘‘linking upwith their local communities through immediate personal and direct courtservices.’’[4] Theirs is an approach which focuses primarily on the need toreduce offending.

In effect, the Scottish proposals operate within and according to thetraditions of the Scottish legal system, which incidentally differs in importantrespects from the rest of the United Kingdom, it being developed well beforethe Act of Union of 1707. The most important difference relates to the Officeof the Procurator Fiscal, although that of the Sheriff also differs from theMagistrate in England and Wales. The offices and privileges of these ancientpositions have been jealously guarded throughout the centuries, so thatwhere changes are made they are accepted only after the most carefulconsideration, and then with guarantees that they will not affect radicallythe role and functions of these offices. The final report therefore is a tributeto the skills of the Working Party, for it met traditional demands whilsttaking 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 first

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 identified 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 atmotivation, nature of drugsmisuse,

its pattern and history, along with the living and home circum-

stances. It then decides which offenders should go forward to a

screening group. The screening group is made up of the Fiscal,

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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 sheriff, who schedules the case to

appear before the drug treatment court.

The Working Group emphasised that the whole process should takeless than one month from the time the offender is charged and arrested tothe time a drug treatment court order is made. Up to the point at which thesheriff is notified the process should take no longer than 24 h.

The court operates in the same way and has the same authority as othercourts, there are the same range of powers on sentence and disposal availableto it as are available to any other sheriff sitting in a summary court, againrepeating the point made earlier that the intention was to integrate the drugtreatment court into the existing system. Whilst the intention was to establishand introduce a different or new type of court, the fear was that were it to beseen as special in some way it would create the wrong impression, whether foroffender or judge. The Working Party said:

‘‘This is not considered to be a disadvantage in itself. It ensures that

offenders 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 sheriffs . . . 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 pitfallsand defects of the American system. It was not to be a system within asystem, operating according to its own rules, procedures, precedents, andideologies. It also avoided creating the impression that drug usersare uniquely important. Consistent with this approach are the sentencesto 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 existingsentences but imposed on them the new drug treatment court practices.So, for example, the standard probation order has within it conditions aboutrequiring the offender to report regularly to the probation officer, be of good




behavior and lead an industrious life, plus any additional conditions thatmay be inserted regarding treatment. Under the Scottish proposals drugtreatment court extend these conditions to include the following:

1. To submit to treatment (specify whether as a resident or nonresi-dent) by or under the direction of (name of treatment provider) at(name of institution) with a view to the reduction or elimination ofdependency on or propensity to misuse drugs.

2. To conform to the directions of the treatment provider.3. To provide for the purpose of ascertaining whether he/she has any

drugs in his/her body samples, of such description at such times insuch circumstances as the treatment provider may determine andat such minimum frequency as the court may require.

4. To attend each court review hearing the first review to be heard on(date and time).

5. Insert any further condition(s) particular to the circumstances ofthe individual offender.

The same goes for sanctions. Under the earlier system, i.e., pre drugtreatment court system, there were a number of sanctions that could havebeen imposed where conditions of a probation order were broken. Wherethe order had been breached as opposed to the commission of a furtheroffense during the order, the court had a number of powers. It may havebelieved it was not worth continuing with the order, in which case it couldhave imposed any sentence it could have made in the first instance. If,however, the court wished to continue with the order then it wouldchoose either to take no action, and perhaps warn the offender, or imposea fine, or a community service order (which is not available for DTTOs) orvary the order including making it longer, but not beyond 3 years overallmaximum. Second, where the offender commited a further offense, then thecourt would take no action or revoke the order, again as with the standardprobation order. However, under the new proposals the drugtreatment court can impose new sanctions. So, for example, at one of theregular reviews where progress is not seen to be maintained (missed appoint-ments, testing ‘‘dirty,’’ etc.) the drug treatment court could increase thecontact with the treatment provider, increase drug use tests, increase fre-quency of reviews, or any combination of those.

It could be argued that the court would already act in this way underthe DTTO, so that at one level the Scottish drug treatment court systemappears to be doing little more than operating akin to an expedited casemanagement court. But that is misleading; it is doing something much moreand offering a system which takes many of the features of the Miami systembut recasts it to fit the Scottish experience. It has introduced several

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distinguishing features that set it apart from existing procedures and showthat it has something interesting to offer. These retain the spirit andprocedures of its American parent but are very Scottish in their approach.The distinguishing features are:

1. It has a specialist Bench, consisting of a Sheriff who will develop aconsiderable measure of expertise. This is new.

2. A multiagency drug treatment court team will oversee its operationand development. That team will include the drug treatmentcourt Sheriff, who will chair the meetings, the Fiscal, a senior

medical practitioner, treatment officials contracted into theteam also from the private sector, a representative of the BarAssociation, a police officer etc. Again this is new, but does not goas far as giving that team the powers and responsibility of the U.S.

system.3. Regular and random drug testing of offenders on all orders,

including probation. This too constitutes a departure from existing

practices.4. Regular reviews in court of offender’s progress, with the offender

present, again constituting a departure from existing practices,although using the precedent provided by the DTTO.

5. Multidisciplinary screening group and interagency working. Whatis innovative here is that the Fiscal has given up his role to thismultiagency screening group, so that in this respect it moves closerto the ‘‘Team approach.’’

6. ‘‘Fast track’’ procedures where the aim is to get the offender intodrug treatment court within one month, in contrast to the see-mingly endless waiting period under the present system.

7. Initiation of all breach actions for noncompliance by the Bench(through invitation to the supervising officer). Again this is new.

8. Use of summarily sanctions at reviews.

Point number 8 is additionally interesting. Whilst there are sanctions atreviews, there were no proposals or facilities for multiple sanctions. TheWorkingGroup, however, noted ‘‘a lacuna in local provision.’’ Short custodialsanctions on breach or review cannot be imposed without terminating theorder. Accordingly:[3]

‘‘The Group believes that in the light of international experience andlocal need the sanctions currently available to the drug treatmentcourt to use summarily are too restricted in nature. In particularwe believe the operation of the court would be enhanced if it was

able to impose short terms of custody or community service,




summarily without prejudice to the continuance in force of thetreatment order. The Working Group therefore recommends thatlegislative change be considered to increase the range of sanctionsthat may be employed by a drug treatment court without prejudice tothe continuance in force of the order itself.’’

Scotland then will be the first country in the U.K. to introducemultiple sanctions, but of course only after primary legislation.

Supervision will be undertaken by the DTTO unit to be upgraded toform the core of the drug treatment court Treatment and Supervisionteam—this team also undertakes all assessments and reports. Accordingly,there is a newly trained team, reflecting what has been learned under theDTTO, which simply drafted in probation officers to deal with the testingand supervision and with little training. The result was and is fairly predict-able. The new team requires treatment to meet the aim of ‘‘the reduction orelimination of the misuse or propensity to misuse drugs.’’ The court aims forabstinence but will permit say, methadone maintenance, but then only aspart of an integrated treatment plan, i.e., it will not permit maintenanceprescribing or other forms of indefinite harm reduction.

It was expected that the Glasgow drug treatment court will take someof the so-called ‘‘hard to treat’’ drug users. It was thought that about 8000drug users in Glasgow could benefit from drug treatment court treatment,although the drug treatment court can only take between 150 and 200 perannum. The age group will be 21þ, but the expected mean age is likely to behigher. In exceptional circumstances those aged 16–20 will be considered.A major predicted disadvantage of the drug treatment court is thatnon-drug-user offenders could be left behind when it comes to providingtreatment, as treatment facilities will be disproportionately provided to drugtreatment court offenders. It is hoped, however, that this will be offset byadvantages, one of which is to deal with those offenders that no one elsewants to treat.

If the experience of other countries is to be relied on, then procedureswill change as experience dictates. Questions about breach proceedings maydominate; for example, the re-offending and reconviction rate whilst on anorder is expected to be high, at least 30% are expected to be reconvicted,with many offenders testing positive throughout, and especially in the earlystages of the order. There are also questions about the review. For example:

. How best to secure the interests of the offenders?

. How often should reviews be undertaken, and who is to be presentat the reviews?

. Finally, there are perennial problems of testing; how best to test,and how to reduce the unit costs?

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In summary, then, the Scottish system has used to great effect theevolutionary features of the drug treatment court, whilst studiously andrather cleverly leaving the revolutionary ones aside. It modifies and softensthe drug treatment court team to make it evolutionary, and it does likewisewith the question of judicial supervision. Elements of the Miami model arepresent, but diluted to fit existing legal demands. The Scottish drugtreatment 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 January1999. Briefly, it recommended that a drug treatment court pilot project beintroduced to run for 18months, with a built-in evaluation. In the event of thepilot being successful, and proven to be so following an evaluation, additionalresources will be provided to extend the program. The first drug treatmentcourt in Eire began in January 2001.

As with Scotland, the Irish project is confined to one city, Dublin,which has a large drug use(r) problem. Estimates suggest that in 2001there were between 10,000 and 15,000 heroin addicts in the GreaterDublin area alone, with many others using a variety of other drugs. Thedrug treatment court began in January 2001, its function and nature definedas such:[5]

‘‘A Drug Court while being similar to all Courts in the State shallhave as its primary aim the reduction of crime through rehabilitationof the offender but not excluding punishment should the circum-stances so merit. Its purpose is to provide a scheme for rehabilitationunder the auspices and control of the Court. Emphasis should belaid firstly on rehabilitation as many of the offenders come fromgrievously disadvantaged backgrounds and on the application,enforced or otherwise, of structured supervision to help themescape the cycle of offending and in so doing cease criminal activity.’’

The background to the Irish experience is that in February 1998 theWorking Group on a Courts Commission commenced a study of Americandrug treatment courts at the request of the Minister for Justice, Equality andLawReform. In February 1998 it published its report and recommended thata drug treatment courts planning committee be set up, and that a drugtreatment courts coordinator be appointed as soon as possible. It concluded




that it ‘‘believed that this programme can make a major contribution to reducedrug-related crime in Ireland. The evidence from abroad is not persuasive;it is conclusive.’’ In February 1999 a drug court planning committee wasestablished; its terms of reference were:[5]

‘‘To initiate develop and oversee a Drugs Courts PlanningProgramme with clearly defined goals and objectives. . . . . .involv-ing court supervised treatment programmes as an alternative tocustodial services aimed at reducing drug-based crime and othersociological problems arising from drug abuse.’’

TheMinister accepted the report and a small subcommittee was formedto plan the project. Briefly, that planning committee proposed that a drugtreatment court be evaluated by outside evaluators with a control group ofsimilar offenders who were not in a drug treatment court. It suggested that adrug treatment court should not begin until all the treatment services were inplace and services guaranteed to the drug treatment court for the duration ofthe pilot. A steering committee would oversee the project and, in consultationwith the evaluator,‘‘fine tune’’ as it progressed. The drug treatment court wasto have facilities for immediate random drug use testing and for benchwarrants, which were to be issued for offenders who failed to appear, andthe warrants executed promptly. Finally, where defendants through failurewere 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 hadto be based on the American system it recognized there are many differentmodels or paths to the ‘‘truth.’’ Therefore, as long as the final proposalremained within the framework of a program of judicially supervised andenforced 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 itsScottish counterpart.

The Dublin Court is a Bail Bond Court, that is, it operates with theoffender on bail. The period of bail is up to 2 years, and on completion ofthe program the conviction stays on the offender’s file. Being on bail theoffender can opt out at any given time, the offender has not been sentenced,but whilst on bail, and on the program is offered the guarantee of not beingsent to prison at the end of the program, although the offender may be putin custody for short periods during the program on breach of bail. The IrishBail Act says it is a breach of bail if the offender is no longer of goodbehavior, and this is what gives the court its powers. The Irish drugtreatment court aims to take the serious cases; it is not for first offenders.For example, of five offenders currently on the program, all have 10 or moreprevious convictions, and all are ‘‘serious’’ long-term heroin users, all inject,

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and all are unemployed. They have a profile well known to those who seelong-term drug users within the criminal justice system.

The drug treatment court team consists of two probation officers,a liaison nurse, two community guards, and an education/vocationaltraining assessor. Cases are referred from other courts after a guilty pleaor a conviction and following a probation report. After one week, consistingmainly of assessments by the probation officers, the offender, if consideredsuitable, will be released on a drug treatment court bail bond and requiredto sign an authority (a release) in relation to medical records. This coversmatters of confidentiality. Thereafter, the offender will enter the program.

The program takes those aged 18þ. In the first 4 months or so fromJanuary 2001 to May 2001 there were 22 referrals and already lessons havebeen learned; for example, homelessness of participants causes graveproblems, and tensions arise because the time taken to arrange treatment isa problem. Paradoxically, it is also a problem for those not on the program, asit appears that those who are in the drug treatment court are favored, as theyreceive treatment more speedily than others do. The other lesson learnedis that in those cases where voluntary treatment has failed, the drug treatmentcourt is able to deal with those so-called ‘‘hard core’’ offenders.

It is interesting to compare the Scottish system with the Irish system.Both agree that it is necessary that offenders always come before the samejudge, and also agree that they will not employ the treatment providers.Judge Haughton, the Dublin Drug Treatment Court judge, says (Personalcommunication) he does ‘‘not employ the treatment providers. They are theexperts. I supervise the programme.’’ Of course treatment must be approvedby the drug treatment court team who agrees upon the nature and form of theprogram, but the providers are employed by an outside agency.

The Scottish system has within it a multiagency drug treatment courtteam to oversee the operation and development of the court, with lawyers,police, the sheriff, and the Fiscal being members. The defense agent (lawyer)‘‘brings knowledge of the offender, including background drug misuse, offense,and living circumstances’’ to the notice of the Fiscal.[3] Lawyers thereforehave a part to play, although one suspects that as the court gains moreexperience the precise nature of their role might change. However, in theDublin court lawyers were excluded from the outset. Prior to the opening ofthe court the drug treatment court Judge, Gerard Haughton, organized aseminar in the Law Society under the aegis of the Criminal Law Association.He outlined his views on how the drug treatment court would operate andpointed out that it was basically a court overseeing medical treatment for thelong-term benefit of the clients, and that participation by the offender wasvoluntary. He suggested that lawyers, therefore, should not attend court asthis places a third party between the court and the accused. ‘‘I believe that




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 ofthe major achievements of the Dublin court. Under the heading ‘‘Lessonslearned’’ Judge Haughton says: ‘‘The exclusion of lawyers is particularlysuccessful.’’

Finally, by way of comparison, in the Scottish system there areproposals to seek primary legislation for multiple sanctions, whereas inEire a different situation has been accepted. That is, that multiple sanctionscan be applied as a condition of bail. Whether the Superior Court wouldaccept this is a different matter. Judge Haughton (personal communication)again: ‘‘Anyone in Drug Court on a Bail Order sentenced to multiple sanctionscan go to the High Court and challenge the Order under a writ of HabeasCorpus. He will win. The consequences are fine for the State. And the Clientwill be out of prison within 3 or 4 days. But he will also be out of DrugTreatment Court, and all that means in terms of his addiction.’’

Clearly, the use of multiple sanctions has been accepted, and once theoffender is in a drug treatment court the lawyers have agreed to step aside.This does not, of course, resolve questions about justice, although it maysatisfy those who see rehabilitation as the goal. It reawakens also othercriticisms of rehabilitation made in the 1960s, namely that it gives unbridledpower to those intent on rehabilitating the offender.

Nonetheless, there is little doubt that drug treatment courts in Ireland,as in Scotland, offer a radical departure from the traditional criminal justicesystem, and for judges also. There is little doubt, too, that drug treatmentcourts in Ireland and Scotland will be for the ‘‘serious,’’ long-term druguser, there is no suggestion of net widening, nor any attempt to take onlyfirst offenders, or the so-called ‘‘minnows’’ of the criminal justice system.The intention is to take the ‘‘hard-to-treat.’’ This is based on the assumptionthat if drug treatment courts have anything to offer they need to be able to dealwith those offenders who cannot be dealt with elsewhere. Drug treatmentcourts must therefore justify their existence on this basis, and take thosewho have failed hitherto, this being the justification for investing in a newsystem and changing existing practices. It will be interesting to see howmatters develop.


IN ENGLAND AND WALES

Whilst key bodies such as the Home Office or Youth Justice Boardhave shown an interest, as have some senior members of the judiciary,alongside the occasional comment from the Prime Minister and other

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senior Ministers, there are no immediate plans in England and Wales tofollow Scotland or Eire. Occasionally, there have been experiments with adrug treatment court type model, as in Wakefield (Yorkshire), but althoughthe influence of drug treatment courts is there, the outcome turns out to belittle more than a special type of probation order. That is of a probationorder where a magistrate takes a special interest, and sees the offendersregularly. England and Wales have retained faith in the Drug Treatmentand Testing Order (DTTO).

There is no doubt that the DTTO incorporates some features of thedrug treatment court, and there are claims that the DTTO is a drug usertreatment court in all but kind. If it is, then it is a drug treatment court of avery weak form, lacking the essential features which the Scottish and Irishsystems have already introduced. The legal provisions for the DTTO arefound under Section 61 of the 1998 Crime and Disorder Act, and DTTOsapply to all countries in the United Kingdom, including Ireland. A DTTOrequires convicted offenders to undergo treatment for their drug problem,either alone or in tandem with a Community Service Order (CSO). TheDTTO can be for not less than 6 months or not more than 3 years. Itincludes the following requirements and provisions. These are that therewill be:

‘‘a treatment provision that the offender shall submit during the

whole of the treatment and testing period to treatment by or under

the direction of a specified person having the necessary qualifications

or experience, (the treatment provider) with a view to the reduction

or elimination of the offender’s dependency or propensity to misuse

drugs.’’

This Section also gives the court powers to order the offender 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 (sub-

ject 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:

. ADTTO 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 officer, who

will report them to the court.




. The order applies to offenders 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 offender is required to attend a review hearing, although if

progress is maintained the offender need not attend.

. Where treatment is not satisfactory, or the offender commits

another offense, the court may sentence the offender for the offense

for which he was made subject to the order.

Clearly, the model for the DTTO is that of the U.S. drug treatmentcourt, although nowhere is there any public acknowledgement that this is so.The DTTO uses some of the features of drug treatment court in that treat-ment is provided by outside agencies, called treatment providers in thelegislation, itself a U.S. term. Treatment is backed by drug use testing andis reinforced with supervision, in this case from the probation service.Frequent court appearances review the offender’s progress.

However, important differences remain. The DTTO as it currentlyoperates is not very different from an ordinary probation order. Drug usetesting is undertaken by the probation service, with few of the stringentcontrols undertaken in the drug treatment court. Judicial supervision isnot formally linked to the aims of the treatment program except in a generalway; 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 continuingsubstance misuse. Are they abstinence or harm reduction? Most of all, thecourt does not initiate the review hearing; this is more a matter for theprobation officer and treatment provider.

The history of the DTTO is interesting. It was first introduced by thethen Shadow Home Secretary, Tony Blair, in the mid-1990s. It was notevidence-based, but there was a stated belief that treatment would greatlyreduce the extent of criminality. (The British Parliamentary system allowsthe Party not in office to ‘‘shadow’’ or act as opposition spokesmen to keyoffices of State.) When Mr. Blair became Prime Minister, it was madeGovernment policy and became the centrepiece of the Government’scriminal justice strategy. Perhaps this help explains why England andWales have kept faith with the DTTO; Government spokesmen havemade it clear there is no place for the drug treatment court until theDTTO 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 withoutresources to implement it is almost useless.’’ Ireland also says it no longeruses the DTTO due to the ‘‘inadequacy of the treatment and probationservices.’’ Scotland has not rejected it, but modified it to improve anddevelop it. England and Wales have done neither.

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It is difficult to explain why this should be so. Supporters of the drugtreatment court have lobbied and made their case, but there has been noGovernment Minister or Department eager or enthusiastic enough to wantto take hold of the debate and move the cause along, as clearly happened inScotland or Ireland. Isolated comments, usually in favor, have been themore typical response. Yet once the debate begins it is suspected therewill be widespread support. For example, the voluntary agencies will seedrug treatment courts as likely to produce an increase in funding, as well asproviding 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 dissatisfied with thecurrent system and conditions, and have little to hope from the DTTO. Themedia would also be expected to offer support, as they complain constantlyabout the inadequacy of the existing system.

There would, however, be opposition. Whilst direct opposition fromthe courts may be less than expected, it will come certainly from thoseagencies 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 replacethe DTTO in importance, and thereby relegate the probation service andprobation officer to a more lowly position. It is interesting that there is noprobation service in Scotland, and in Eire it lacks resources, and therebyinfluence. There is also likely to be opposition from the treatment providersin the statutory agencies, including the medical profession, as these are likelyto lose their independence. How powerful and coordinated that oppositionwill be is difficult to see. Nor is it clear how much longer will they be able tostand out against a seemingly strengthening tide, for, irrespective of whetherdrug treatment courts are to be introduced, the days of the freewheelingprofessional treatment provider are over. Supervised treatment, whetherfrom the court or elsewhere is the likely next stage of development. In themeantime this group may continue to wield its influence.

Opposition at the moment takes more of the passive form, showingitself as inertia, or what can be called ‘‘structural temerity.’’ It comes in theform of ‘‘we don’t need drug treatment courts, we have already the appropriatemechanisms for dealing with the problem.’’ Those who were in the vanguardof the drug treatment court movement in the United States in the 1990s willrecognize the syndrome, and see the parallels. The solution may therefore bepolitical and sociological, where political bullets need to be fired and struc-tural changes proposed alongside reassurances about the future. This iswhat happened in the United States and is also likely to happen in Englandand Wales. There is little doubt that drug treatment courts in some form willbe introduced in England and Wales within the next decade, if only because




the present system cannot meet the demands placed upon it. They will beseen as one solution to the persistent drug-using criminal who has resistedall 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 Office: 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 Criminologyand Director of the Midlands Centrefor Criminology and Criminal Justice,University of Loughborough. From1996 to 1999 he was President of theBritish Society of Criminology. He is theAuthor/Editor of 20 books and numerousarticles, mainly on drugs and crime ormental disorder and crime, and hasconducted research for the UN, the BritishGovernment and various other nationalbodies. He has held Visiting Professor-ships in Canada, the United States, andAustralia. He has been reporting on drug

treatment courts for the Home Office for the last 6 years.

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