The exercise of judicial discretion in rent arrears cases - Sheffield ...

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The interview data suggests that relationships of trust between district judges and claimants (who are generally repeat players) is significant. Whilst the relationship between trust and outcome is merely suggestive, the interview data suggests that relationships of trust do impact on the process. This was particularly the case in the busier courts in our sample, where the district judges were scheduled to hear a case every few minutes or so. The overarching theme behind this was personnel management by district judges of claimants’ representatives, and there was evidence of a reverse effect as well (that is, management of judges by claimants’ representatives). This was made possible by a number of factors which might combine together – the shift to housing officers appearing on behalf of claimants; the ‘training’ process in which district judges tend to engage claimant representatives and vice versa; those representatives length of time in post; levels of confidence placed in those representatives; and the nature of the claimant as a ‘social landlord’. There is a wide variety of ways in which tenants’ circumstances and participation in the proceedings impact on judges’ use of discretion. Virtually all the judges interviewed considered attendance and payment history to be important factors they took into account when exercising their discretion, although given that decisions are being made about individuals in inevitably subjective ways there was less consistency in the way in which judges assessed tenants’ motivation. Thus the mere fact of attending the hearing did not necessarily result in a more favourable outcome for the defendant. Much greater consistency in approach and outcomes was noted in relation to the impact of the personal circumstances of tenants, for example, dependant children, problems caused by age, mental health problems or an inability to understand the proceedings. This suggests that while participation per se is not a key influence on outcomes, unless tenants attend hearings judges may not be made aware of factors which could have a significant impact on their decision-making process. So far as the level of arrears is concerned, some judges interviewed operated a ‘rule of thumb’, but said that these were always used flexibly so that other factors could be taken into account. Unsurprisingly the quantitative data indicates a relationship between the level of arrears and the outcome of possession cases, affecting the likelihood of the three main orders: outright possession, suspended possession and adjournment. As noted above housing benefit was a particular issue which emerged. Housing benefit problems are contributing to the increased number of adjournments. Claimants accept that adjournments are frequently necessary. The analysis of the database of recorded cases 103
shows that the vast majority of those cases where housing benefit was raised as an issue, across all the courts, resulted in an adjournment. An analytical approach Thus, a wide and diverse range of factors was reported by judges as being influential in how they exercised their discretion in individual cases. There was no evidence of judges having regard to inappropriate factors, simply that they approached the task in the different ways set out above. What we have sought to do in this final section is to seek to understand and conceptualise the network of influences that inform how judges use their discretion in housing possession cases. In doing this, Lawrence’s work (1995) on sentencing processes provides a useful starting point. By analysing the forces influencing the use of discretion in judicial sentencing she develops a methodology which recognises sentencing as a complex cognitive process that is located within a system of interacting micro and macro factors and influences. The macro forces are summarised as social/cultural attitudes and values, legislative and legal factors and institutional and bureaucratic arrangements. When dealing with specific offences and offenders however, these broad structural influences are mediated through individual judges’ interpretation and understanding. Rather than seeking a single dominant causal explanation of sentencing outcomes, decisions, Lawrence concludes that these are located within individual contextualised, interactive and interpretative processes. She claims that individual judges: “construct meanings for cases, apply their own objectives and beliefs, and respond to contextual factors with varying biases and varying levels of self awareness“ (Lawrence 1995, p 70). Lawrence’s theoretical model of the way in which decision-making is informed by both structural and individual variables provides a useful starting point to explore the complexity of factors which impact on the use of discretion in housing possession cases. Macro factors Social/Cultural Attitudes and Values The impact of macro social and cultural attitudes and values is not uniform but it is clear from interviews with judges that the local context and wider culture exert some influence on the use of discretion. Reference to normative values and judicial consensus were not uncommon as the following comment about Scenario 8 illustrates: 104
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The exercise of judicial discretion
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The Research Unit, Department for C
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Contents Executive summary i Chapte
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Executive summary The research ques
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the shift to housing officers appea
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Conclusions A wide and diverse rang
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on the role of judges under the exi
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Northern 1 court hears over 1500 ho
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significance to a particular respon
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The application may be adjourned; t
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such forms are completed in less th
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In November 2001, the Legal Service
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Levels of arrears Although the reas
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Table 2: Rent levels from ODPM stat
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Table 5: Changes in outcomes of ini
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Table 6: Impact of participation on
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The focus group participants consid
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consideration in this chapter, the
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Neither of the judges seemed to con
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chambers, where the possession list
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Most of the district judges felt th
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The views of the claimants’ group
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Qualitative and quantitative data f
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anything to say, and wants to stay
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Table 7: Sources of training and up
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sought with what they know the judg
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Chapter 5: Judges and landlords Int
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Chart 7: Orders granted by requests
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some unevenness in the impact of re
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Thus it can be seen that the type o
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District judges differed on how muc
Page 65 and 66: There were three other, more genera
Page 67 and 68: Conclusions In this chapter, we hav
Page 69 and 70: Chapter 6: Judges and tenants Intro
Page 71 and 72: approach he was more confident in t
Page 73 and 74: “I think in terms of exercising d
Page 75 and 76: Family make up The broad powers of
Page 77 and 78: are trying to deal with the particu
Page 79 and 80: “I wouldn’t dream of making an
Page 81 and 82: interpreter. Similarly, many of the
Page 83 and 84: Judges are human too - personal rea
Page 85 and 86: understand the proceedings, a great
Page 87 and 88: What must be emphasised is that whi
Page 89 and 90: also the most common explanation gi
Page 91 and 92: anomalous case of West Country cour
Page 93 and 94: District judges’ knowledge. Some
Page 95 and 96: Two of the judges interviewed felt
Page 97 and 98: DJ: I’d be inclining towards the
Page 99 and 100: how he dealt with the housing benef
Page 101 and 102: Chapter 8: Particular decisions: gr
Page 103 and 104: Table 10: Outcomes in Ground 8 case
Page 105 and 106: Others were, however, prepared to g
Page 107 and 108: It is perhaps not surprising that,
Page 109 and 110: the basis of the original possessio
Page 111 and 112: Chart 13: Impact of family make up
Page 113 and 114: The advice to the tenant was often
Page 115: Chapter 9: Conclusions Where the la
Page 119 and 120: important determining factors is th
Page 121 and 122: Thus it is likely that that even th
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Page 125 and 126: Lawrence J (1995) “Sentencing pro
Page 127 and 128: give a typology of the characterist
Page 129 and 130: In analysing cases percentages have
Page 131 and 132: Appendix 2 - Research instruments 1
Page 133 and 134: What factors would you ascribe thos
Page 135 and 136: 20. Typically, how would you descri
Page 137 and 138: with a duty desk representative who
Page 139: DCA Research Series No. 6/05 The ex
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