Senior Lecturer in Law, School of Law, Politics and Sociology, University of Sussex
I think it is fair to say that neither Matt nor I predicted, when we both began our PGR studies at Kent Law School back in 2011, that we’d end up writing an article together. Matt specialises in issues relating to land law, and is interested in exploring the role objects play in mediating peoples’ relationships to law. I specialise in researching access to justice in the criminal process, and in using empirical research methods to track the impact of policy change. These two areas of expertise don’t obviously lend themselves to collaborative work, but we were keen to see how our seemingly disparate interests could be used to complement and further our respective fields of research.
I had been keen to explore how documents are used to shape criminal process and, by extension, the administration of justice since I noticed how prolifically forms were used in magistrates’ courts while conducting observations for my doctoral research. As a former criminal defence practitioner, I had been used to completing forms in criminal cases, but it was only when I stepped back as an observer that I realised how much they seemed to govern every stage of the process in a criminal case. I spent the equivalent of one month observing magistrates’ courts from the public gallery in a particular region and then interviewed both Crown prosecutors and defence lawyers about magistrates’ court practices. Subsequent to the observations, I included some interview questions about the use of forms. As a result, I ended up with a rich set of raw empirical data about the use of, and attitudes towards, document-based forms in magistrates’ courts.
However, that was something that was only tangentially relevant to my PhD so I was (wisely – thank you Rosemary Hunter and Helen Carr) advised to set the issue aside until I had actually finished what I set out to do. It was a year later that Matt and I had the idea to collaborate. Both of us were excited by the idea that documents, though seemingly benign bureaucratic instruments could actually shape the way that justice is delivered. It was fortunate that we had both read the seminal work of Annelise Riles, and that interest in how documents (somewhat insidiously) shape legal process was growing. So, when we presented our ideas at the SLSA Annual Conference in Bristol in 2018, we were met by a sympathetic audience which gave us plenty of useful feedback.
We quickly realised the need to make clear to audiences that we were not suggesting that documents have agency, but that documents – particularly the way they are structured for guided, limited response – can collectively shape thought processes and behavioural patterns that directly affect, via standardisation, the way that cases are managed. When a particular group is already susceptible to their work being standardised (in this case, the court workgroup, in consequence of funding cuts), the use of forms to further standardise case management presents as simply another streamlining tactic. But it is a tactic that ignores (or chooses to ignore) the process by which justice is administered, making the participants more passive and the system less reactive to the particularities of any given case. It is, of course, possible for those who directly engage with such documents to perform micro acts of resistance, for example, by ignoring sections or rewording a standard question and answer format. However, we were keen to examine how a seemingly inoffensive instrument was actually loaded with assumptions and instructions that directly affect an individual’s experience of the state administration of justice. We concluded that one must not ignore the seemingly mundane procedures through which cases are managed, because they have the potential to quietly transform (and undermine) traditional interpretations of justice.
There are areas in which we would welcome development of these ideas. For example, are people in fact performing micro acts of resistance in the way that they complete documents? To what extent do they feel that what is written in a form is merely performative and can be circumvented at a later stage? To what extent is this simply another example of the neoliberalisation of public services, and what, if anything, can or should be done about that? Ultimately, to us, the paper served as a warning – a warning not to simply accept seemingly nonthreatening practices as necessary, and to examine the use of disciplinary tools (broadly defined) from critical perspectives. We hope also to alert others to the creative possibilities of combining disciplines and perspectives. We enjoyed both being challenged to think about our work in a different way, and hope others enjoy reading it as much as we enjoyed writing it.
This blog follows the publication of L Welsh and M Howard, ‘Standardization and the Production of Justice in Summary Criminal Courts: A Post-Human Analysis’ (2019) 28(6) Social & Legal Studies 774-793
The article is free-to-view for a limited time at this link (correct on date of publication).
About the author
Lucy Welsh has a long-standing interest in all aspects of criminal law and criminal justice. She spent 10 years working as a criminal defence solicitor before moving into academia. Prior to joining Sussex Law School, Lucy previously held posts at Kent Law School, University of Kent. Lucy is currently co-authoring (with Dr Layla Skinns (Sheffield) and Prof Andrew Sanders (Warwick)) the 5th edition of Sanders and Young’s Criminal Justice (OUP). She is also undertaking research commissioned by the Criminal Cases Review Commission and funded by the Economic and Social Research Council on the impact of legal aid cuts on criminal appeal cases. Lucy has a particular interest in analysing policies which facilitate or hinder access to justice, both in terms of legal representation and legal process. Lucy uses empirical research methods to examine the impact of policy on procedures which affect due process.