The exercise of judicial discretion in rent arrears cases - Sheffield ...
The exercise of judicial discretion in rent arrears cases - Sheffield ... The exercise of judicial discretion in rent arrears cases - Sheffield ...
away, but somebody’s home is actually one of the most fundamental things, it seems to me.” (DJ H) Some judges clearly felt there to be a tension between their role as an adjudicator on matters of law and their emotional reaction to depriving some one of their home which they reconciled by trying to make a difference. A few judges managed this tension by stepping outside their judicial role and intervening in a more practical and creative way by, for example, referring defendants to advice agencies and even contacting support agencies on behalf of defendants. “Some of them, they don’t come to the attention of any sort of authority until something goes wrong with the rent and then they come along here… (Pause) and so yes, I mean it does make a difference what I do, but only to a certain extent.” (DJ O) Others felt that their decisions could not be based on sympathy and that the extent to which they could intervene was very limited as one judge explained: “Again, it’s very difficult to sort of move out into being a sort of social welfare person, rather than a judge” (DJ F). In this context the exercise of discretion involving a human element was seen as being very important: Conclusion “It’s up to the particular judge to exercise his discretion as he thinks fit on the particular day, and we can’t do it by tick-box, we’ve just got to do it…we’ve got to have that sort of human element in it.” (DJ I) Judges’ relationships with tenants are complex. There is a wide variety of ways in which tenants’ circumstances and participation in the proceedings impact on judges’ use of discretion. The explanations as to why judges valued the opportunity to engage with tenants differed, but in general terms it was seen as being important in terms of ensuring that the type of order made was both fair and sustainable. Virtually all the judges interviewed considered attendance and payment history to be important factors which they took into account when exercising their discretion, not least because it enabled them to find out more about a tenant’s circumstances and their motivation to keep to the terms of an order. There was, however, less consistency between judges in the way they assessed tenants’ motivation, so the mere fact of attending the hearing did not necessary result in a more favourable outcome for the defendant. Interestingly much greater consistency in approach and outcomes was noted in relation to the impact of the personal circumstances of tenants. For example, in the scenarios involving dependant children or problems caused by age, mental health problems or an inability to 71
understand the proceedings, a greater uniformity of outcomes was achieved across the sample of judges. 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. The analysis of the importance of judges’ relationship with tenants highlights a number of practical problems that need to be addressed to ensure that judges have access to relevant information prior to making a decision as to whether to evict someone from their home. For example, it is clear that language difficulties do impact on judicial decision-making process with hearings adjourned for interpreting services to be found. In particular judges need to know what interpreting services are available in their locality and how to ensure that defendants can gain access to impartial and independent services that meet their needs. 72
- Page 33 and 34: Table 6: Impact of participation on
- Page 35 and 36: The focus group participants consid
- Page 37 and 38: consideration in this chapter, the
- Page 39 and 40: Neither of the judges seemed to con
- Page 41 and 42: chambers, where the possession list
- Page 43 and 44: Most of the district judges felt th
- Page 45 and 46: The views of the claimants’ group
- Page 47 and 48: Qualitative and quantitative data f
- Page 49 and 50: anything to say, and wants to stay
- Page 51 and 52: Table 7: Sources of training and up
- Page 53 and 54: sought with what they know the judg
- Page 55 and 56: Chapter 5: Judges and landlords Int
- Page 57 and 58: Chart 7: Orders granted by requests
- Page 59 and 60: some unevenness in the impact of re
- Page 61 and 62: Thus it can be seen that the type o
- Page 63 and 64: 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: Judges are human too - personal rea
- 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 and 116: Chapter 9: Conclusions Where the la
- Page 117 and 118: shows that the vast majority of tho
- 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
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- Page 131 and 132: Appendix 2 - Research instruments 1
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understand the proceed<strong>in</strong>gs, a greater uniformity <strong>of</strong> outcomes was achieved across the<br />
sample <strong>of</strong> judges. This suggests that while participation per se is not a key <strong>in</strong>fluence on<br />
outcomes, unless tenants attend hear<strong>in</strong>gs judges may not be made aware <strong>of</strong> factors which<br />
could have a significant impact on their decision-mak<strong>in</strong>g process.<br />
<strong>The</strong> analysis <strong>of</strong> the importance <strong>of</strong> judges’ relationship with tenants highlights a number <strong>of</strong><br />
practical problems that need to be addressed to ensure that judges have access to relevant<br />
<strong>in</strong>formation prior to mak<strong>in</strong>g a decision as to whether to evict someone from their home. For<br />
example, it is clear that language difficulties do impact on <strong>judicial</strong> decision-mak<strong>in</strong>g process<br />
with hear<strong>in</strong>gs adjourned for <strong>in</strong>terpret<strong>in</strong>g services to be found. In particular judges need to<br />
know what <strong>in</strong>terpret<strong>in</strong>g services are available <strong>in</strong> their locality and how to ensure that<br />
defendants can ga<strong>in</strong> access to impartial and <strong>in</strong>dependent services that meet their needs.<br />
72
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