Therapeutic Jurisprudence and Judging

Thinking about judging and the development of judicial technique has largely been about the processes of determining the facts, determining the law and applying the law to the facts to reach a judgement. Where the conduct of the judicial officer in the courtroom has been considered, it has mainly been in the context of controlling difficult parties, situations or where the judicial officer's conduct may render the process unfair.

The advent of therapeutic jurisprudence and problem-solving courts has stimulated interest in how the actions of judicial officers in courts and tribunals generally can either impede or advance justice system outcomes such as satisfaction in and respect for the justice system and the comprehensive resolution of criminal, civil, family and administrative law cases and their underlying issues. As a result there is ongoing work into how therapeutic jurisprudence principles can be applied in diverse areas of judging, including trials, sentencing, bail applications, appeals and tribunal hearings without compromising traditional judicial values such as independence and impartiality.

There have been three principal sources of thinking and practice in this area: findings from procedural justice research; findings from the behavioural sciences; and the experience of judicial officers applying therapeutic jurisprudence in their courts.

Australasian judicial officers are making a significant contribution to thinking and practice in this area and to the development of therapeutic jurisprudence generally. They have also written and spoken about possible ethical implications in taking a therapeutic approach in court and about how those issues may be addressed.

Resources

Bartels L and Richards K, 'Talking the Talk: Therapeutic Jurisprudence and Oral Competence' (2013) 38 Alternative Law Journal 31.

Billings J, 'Therapeutic Jurisprudence in the Tribunal Context' Presentation delivered to the 'TJ: Trendy Jargon or Tool of Justice?' conference 26 October 2006, http://www.coat.gov.au/vic_chapter

Brookbanks W, 'Therapeutic Jurisprudence: Implications for Judging' [2003] New Zealand Law Journal 463.

Cannon A, 'Therapeutic Jurisprudence in the Magistrates Court: Some Issues of Practice and Principle' in Reinhardt G and Cannon A (eds), Transforming Legal Processes in Court and Beyond (AIJA, 2007) 129.

Cannon A, Doley R, Ferguson C and Brooks N, 'Antisocial personality disorder and therapeutic justice court programs' (2012) 22 Journal of Judicial Administration 99, also available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2166131.

Dear G, 'Therapeutic Communications from the Bench: A Psychological View' (2006) 1 eLaw Journal (special series) 147, https://elaw.murdoch.edu.au/archives/issues/special/Therapeutic.doc.

Dive R, 'Judging in the Land of the Chaotic' (2011) 20 Journal of Judicial Administration 185.

Duffy J, ‘Problem-solving courts, therapeutic jurisprudence and the Constitution: if two is company, is three a crowd?’ (2011) 35(2) Melbourne University Law Review 394.

Freckelton I, 'Therapeutic Jurisprudence: Myth, Magic and Misinterpretations' Presentation delivered to the 'TJ: Trendy Jargon or Tool of Justice?' conference 26 October 2006, http://www.coat.gov.au/vic_chapter.

Freiberg A and Morgan N, 'Between Bail and Sentence: The Conflation of Dispositional Options' (2004) 15(3) Current Issues in Criminal Justice 220.

Heath S, 'Innovations in Western Australian Magistrates Courts' Paper delivered to the 2005 Colloquium of the Judicial Conference of Australia, http://www.jca.asn.au/content/attachments/2005-Heath_Paper.pdf.

Hennessy A, 'Reconnection to Community as a Sentencing Tool' in Reinhardt G and Cannon A (eds), Transforming Legal Processes in Court and Beyond (AIJA, 2007) 35.

King MS, 'Applying Therapeutic Jurisprudence From the Bench: Challenges and Opportunities' (2003) 28(4) Alternative Law Journal 172.

King MS, 'Innovation in Court Practice: Using Therapeutic Jurisprudence in a Multi-Jurisdictional Regional Magistrates Court' (2004) 7(1) Contemporary Issues in Law 86.

King MS, 'Therapeutic Jurisprudence and the Role of the Justice of the Peace' (2005) 51(1) JP WA Journal 10.

King MS, 'The Therapeutic Dimension of Judging: The Example of Sentencing' (2006) 16 Journal of Judicial Administration 92.

King MS, 'What can Mainstream Courts Learn from Problem-Solving Courts'' (2007) 32 Alternative Law Journal 91.

King MS, 'Problem-solving Court Judging, Therapeutic Jurisprudence and Transformational Leadership' (2008) 17 Journal of Judicial Administration 155.

King MS, 'Therapeutic Jurisprudence, Leadership and the Role of Appeal Courts' (2008) 30 Australian Bar Review 201.

King MS, Solution-Focused Judging Bench Book (AIJA, 2009).

King MS, 'Judging, Judicial Values and Judicial Conduct in Problem-Solving Courts, Indigenous Sentencing Courts and Mainstream Courts' (2010) 19 Journal of Judicial Administration 133.

King MS, 'Realising the Potential of Judging' (2011) 37 Monash University Law Review 171.

King MS, 'Should Problem Solving Courts be Solution-focused Courts?' (forthcoming, 2011) Revista Juridica Universidad de Puerto Rico, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1725022.

King MS and Auty K, 'Therapeutic Jurisprudence: An Emerging Trend in Courts of Summary Jurisdiction' (2005) 30 Alternative Law Journal 69.

King MS and Auty K (eds), The Therapeutic Role of Magistrates Courts (2006) 1 eLaw Journal (Special Series).

King MS and Batagol B, 'Enforcer, Manager or Leader? The Judicial Role in Family Violence Courts' (2010) 33 International Journal of Law and Psychiatry 406, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1729092.

King MS and Wager J, 'Therapeutic Jurisprudence and Problem-Solving Judicial Case Management' (2005) 15 Journal of Judicial Administration 28.

King MS and Wilson S, 'Country Magistrates Resolution on Therapeutic Jurisprudence.' (2005) 32(2) Brief 23.

King MS and Wilson S, 'Magistrates as Innovators' (2002) 29(11) Brief 7.

King MS, ‘Therapeutic Jurisprudence’s Challenge to the Judiciary’ (2011). (2011) 1 Alaska Journal of Dispute Resolution 1.

Malcolm DK, 'At the Cutting Edge: Therapeutic Jurisprudence' Opening address to the conference 'At the Cutting Edge: Therapeutic Jurisprudence in Magistrates' Courts' Perth, 6 May 2005, http://www.supremecourt.wa.gov.au/publications/pdf/CuttingEdge-Therapeutic_%20Jurisprudence_%20Conf2005.pdf

Mack K and Anleu SR, ‘Opportunities for New Approaches to Judging in a Conventional Context: Attitudes, Skills and Practices’ (2011) 37 Monash University Law Review 187.

Malcolm DK, 'The Application of Therapeutic Jurisprudence to the Work of Western Australian Courts' (2007) 17 Journal of Judicial Administration 127.

Nicholson J 'When Sentencing Becomes a Walk into the Future with the Offender: The Griffiths Remand -Compulsion in Rehabilitation' (2008) 32 Criminal Law Journal 142.

Popovic J, 'Judicial Officers: Complementing Conventional Law and Changing the Culture of the Judiciary' (2003) 20 Law in Context 121.

Popovic J, 'Court Process and Therapeutic Jurisprudence: Have we Thrown the Baby out with the Bathwater'' (2006) 1 eLaw Journal (special series) 60, https://elaw.murdoch.edu.au/archives/issues/special/Court_processes.doc.

Popovic J, 'Meaningful v Meaningless Sentences: Sentencing the Unsentenceable' Paper presented to the 'Sentencing: Principles, Perspectives and Possibilities' conference, Canberra, 10-12 February 2006, http://njca.anu.edu.au/Professional%20Development/programs%20by%20year/2006/Sentencing%20Conference/Sen%20conf%20papers%202006/Popovic.pdf

Roach Anleu S and Mack K, 'Australian Magistrates, Therapeutic Jurisprudence and Social Change' in Reinhardt G and Cannon A (eds), Transforming Legal Processes in Court and Beyond (AIJA, 2007) 173.

Spencer P, 'To Dream the Impossible Dream? Therapeutic Jurisprudence in Mainstream Courts' (2012) 22 Journal of Judicial Administration 85, also available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2083370