Procedural Justice Theory in Policing

Introduction

This essay will outline the concept of procedural justice theory and identify the main features of the theory. Procedural justice, in respect to policing, focuses on the encounter or interaction between the legal authorities and police and the public. This essay will critically assess this relationship from the perspective of procedural justice principles and its implication of the policies and practices. It will attempt to locate the theory within a larger framework of compliance principles. The essay is divided into two main sections. The first section will cover procedural justice and its key proponents. It will discuss relevant theories and principles around procedure justice, such as that of Thibaut and Walker (1975), Rawls’ four forms of procedural justice, Tyler’s theory of legitimacy vis-à-vis public perception of procedural justice, Leventhal scheme (1980) and theories such as instrumental theory, substitution theory, and expressive theory. This essay will discuss these theories and principles and critically examine their sufficiency citing notions of subjective justice, outcome fairness and procedural fairness, and other procedural justice criterions. The second section will examine the practical implications or applications of the theory and other relevant principles in respect to policing policy and practice. This essay will attempt to identify the issues in embedding procedural justice principle in the legal framework, especially in respect to policing, its policies and practices. It will address the relationship between treatment of public and public perception of police in respect to delivering fairness outcome. It will touch on factor of moral and social values by referring to police, judicial and other criminal procedures.

The essay will conclude with observation of the extent to which procedural justice bring efficacy to policing policies and practices. It will draw observation from the situations addressed and presented in the first and second section.

Procedural justice and its key proponents

Research publication of Thibaut and Walker, titled Procedural Justice in 1975 is considered the pioneering work in procedural justice. They and a group of affiliated scientists started applying procedural justice to empirical experiments. Their assumption is that different procedures of conflict resolution with the aid of a third party could act as a continuum of bilateral negotiations to arrive at dictatorial decisions by the third party. At one side, the participants in dispute posses complete process control and decision control. At the other side, these controls are with the third party. Thus, the control is with the parties and not with the courts and they determine relevant spectrum of facts and the methods and levels of evidentiary hearing. However, this theory is not free from limitation. It does not demonstrate real intention to cover subjective justice. It just describe the best procedure for a given circumstances. It does not necessarily describe the way fairness of procedure is evaluated. The best procedure approach cannot thus be read as the preferred approach. This theory does not arguably concern to identify the procedures that are mostly likely considered fair. Further, the theory defines procedural fairness from fairness of outcome perspective. It treats process control as the core determinants of fairness. This is very limited in approach. The limitation of fairness to control of evidence and arguments at trials may not always lead to individualized arguments, and fairer outcomes, which, for instance in psychology of process control, does not reflect the whole picture.

Procedural justice indicates the correct application of a procedure that may increase the chances of an outcome to being just. According to Rawls, it has four forms: perfect, pure, imperfect and quasi-pure. The first involves application of the procedure that ensures adequate approximation to just outcome. This presupposes the existence of a distributive justice. The second involves an application of the procedure due to absence of an independent criterion for the right outcome. The third is application of the procedure that may likely enable an adequate approximation to a just outcome, but this may not provide any guarantee to the just outcome. The fourth involves applying a rule of choice in a situation where there is an indeterminacy justice comprising equally just decision in a given range. Thus, the purpose of procedural justice is to serve as a means to achieve a specific outcome. It derives justification from criteria that are outside the procedure. Tyler stated that there are different variables considered potentially relevant for accepting a decision. They may be absolute outcome defining the quality of the outcome as a reward or a punishment; relative outcome expected by the participants; equal treatment outcome expected from considering similar cases; distributive justice outcome that participants deem just as per their own standards; legitimacy indicating evaluation of the concerned authority that conduct the procedure; and procedural fairness that leads to the outcome. Arguably, the participants and observers evaluate procedural justice independently, which further indicates that the acceptance of a decision is not subject to the outcome alone but also on procedural fairness. This is the procedural justice effect where the more parties get involved to evaluate fairness or justness of a procedure, the sooner they accept the distributive justness arising from the procedure. For instance in employment sphere, employees’ perception of fairness of the employment policies and procedures that are used while determining outcome distributions. Such perception of the procedural justice has significant impact on the perception of outcome fairness. They may be more willing to accept low pay of the procedure followed was fair. In this support, Lind states that that it may be too difficult, for even professionals, to arrive at an adequate judgment of outcome fairness. Professional justice acts as a shortcut for overall evaluation of justice.

The 1980 Leventhal scheme elaborately analysed special features of the procedural justice. They may be criteria for degree of subjectively perceived procedural fairness; information correctness, consistency, prohibition of prejudice, equal representation; decision review by appellate tribunals as well as ethical appropriateness. Leventhal considered the factors of both procedural and distributive justice as the determinants of the overall sense of justice in allocations circumstances. He suggested that the procedural rules are provided higher weights when these rules are treated as promoting the attainment of favourable outcome for the perceiver or of fair outcomes for all participants. Procedures have many structural elements, which are judge by selecting appropriate agents to collect information and making decisions; by setting some ground rules and criteria to receive allocation; by gathering information; by processing appeal(s) from decision; by safeguarding procedure through monitoring and sanctioning behaviour of participants; and by giving mechanism to change procedure, which is not properly working. These rules are observed to be potent, but there are situations when the rules involve multiple procedural justice criterions. For instance, this is seen in the representation rule that involves variation in decision control, expressive process control and instrumental process control. Laventhal’s theory may, therefore, be considered too broad a concept.

From a theoretical perspective, the instrumental theory requires the power of procedures that provides legitimacy is derived from the principle that they are appropriately suited to arrive at materially just decisions. The procedures facilitate ascertaining facts and searching appropriate standards for decision making. The rationality of the procedures has the subjective aspect, which involves participants’ evaluations that may consider eyewitness testimony as suitable evidence, and objective aspect that may consider such evaluation unreliable. A counterpart theory is the substitution theory that considers that there is no clarity about what a materially just distribution is. An example is the pure procedural justice example of achieving justice by a lottery. According to this theory, truth cannot be ascertained no matter what or only at a great cost. The standards of decision making may be vague. They may be completely lacking. Given the circumstance, it is the procedure that overrides and replaces material distribution standards. In addition to these two theories, there is the expressive theory, according to which expressive behaviour is not a means to an end. It is the end in itself and therefore it is opposite to the instrumental behaviour. For example, the procedures are not for profits or losses alone, but also are about self representation and participation. In this respect, Tyler states that public perception of procedural justice occupies a key antecedent of legitimacy. He states that a set of moral and social values, which are important in determining legitimacy, shapes legal compliance. He sets out two models of legal authority. The first constitutes the coercive authority that motivates legal compliance by threat of sanctions, and the second constitutes the consensual authority that encourages personal values and their role in eliciting their consent to law.

Implication of Procedural Justice in policies and practices

Procedural justice is reflected by fairness of decision making and of treatment received from the decision makers. They must demonstrate neutrality, trustworthy motives and respect and must give opportunity to recipient of getting heard. This is supported by government guidance on procedural justice. Extending this to encounters between public and the police, the way the police treat the complainant determines the quality of authenticity of the process. Treatment of the compliance, whether seriously or not, defines the public perception of the police. Good perception may temper disappointing outcome. Thus, procedural justice occupies an important role in public encounter with the police. However, this may not be the only way to deliver justice as well as shape the perception of the public. Formal procedure consumes time and resources and so, if for instance in police complain mechanism, an informal method like treating the complaint as a service complaint with informal solution set up, may bring satisfactory result to the complainants. The flexibility adopted here is one key characteristic of procedural justice. Procedural fairness is one of the most preferred flexible principles adopted by the courts in its judicial review. This could be seen adopted in many cases. In Office of Fair trading v IBA Health Ltd, Lord Carnwath LJ stated that the judicial review principles are flexible and they could adapt to particular statutory context. In R v Department for Education and Employment, Laws LJ states that the principles of fairness and reasonableness are objective in nature, which has made possible the existence of public law. However, the flexibility feature may not always provide the desired result. In respect to the adoption of informal resolution procedure, studies have not provided consistent results. In some jurisdictions, the results are positive whereas in others, it was negative. For example, a 2011 report by Hagger Johnson and Hipkin Chastagnol reviews cases appealed to the IPCC in the UK after having exhausted the informal resolution. The complainants were dissatisfied with the informal process and the outcome citing reasons such as large information gathering and issue of not being informed of the outcome. In a 2005 study conducted by Young, Hoyle, Cooper, and Hill, about complaint’s perception regarding informal decision in respect to restorative cases, 2/3rd of them were satisfied with the process.

According to Tyler, public perception of procedural justice occupies a key antecedent of legitimacy. His two models of coercive authority and consensual authority are reflected in successful policing, which relies on ability to secure compliance and public cooperation. Using physical force cannot be the only strategy given that there are negative concerns and focus on procedurally just approaches may result to generating public cooperation and compliance. In an observational research that explored compliance with police directives conducted by Mastrofski et al (1996), and McCluskey (2003) showed that police behaviour that are disrespectful reduces the chance of compliance but respectful behaviour showed otherwise. Use of force at the first encounter decreases likelihood of compliance. In another study conducted to explore the effect of fair procedures in respect with case of spouse assault by Raymond Paternoster et al, it was found that there were fewer repeat offences in situation where offenders believed that the police treated them with just procedures. The use of procedural justice has promoted legitimacy and legal compliance. However, the models of coercive and consensual model of legal compliance may present conflicting false positives and false negatives. If the public perceive the authority lacks legitimacy, they are still obliged to obey the law or trust them, or have the belief that the public and the authority share common normative outlook. This is conflicting. Likewise, the perception can be that of distrust for authorities, whose outlook can be different from the public, yet they may belief them to be legitimate and so obliged to obey them. Legitimacy index professes by Tyler may consider beliefs as indicating legitimacy or as lack of legitimacy, which may not be so. Also, the factor of moral values that will make public consensually obey law and that makes public see authority as possessing moral values may lead to doubtful analysis as moral values are confounding variable. There is no strict principle to determine moral values or definite and consistent standard of moral values. The failure of procedural justice are demonstrated in many cases such as R(Hoffman) v Commissioner of Inquiry, where the claimant declined a reasonable opportunity to give oral evidence; R (Elvington Park Ltd) v York Crown Court, where there was an elective failure to complain regarding exclusion of witness from the crown court hearing; or R v University of the West of England, where the claimant had not put up a request for particulars of contacts, which she cannot complain later of the lack of opportunity.

Policies and practices shape the manner in which the public obey the law and cooperate with legal authorities. Procedural justice has a significant role in this sphere. It can influence social motivation and public cooperation to policies and practices. This applies to dispositions, where policies and practices based on procedural justice doctrines can influence dispositions of concerned parties in a legal set up. This demonstrates that fact the legal authorities can create values. They can influence moral values and legitimacy. Procedural justice of the authorities occupies the central role. However, the conduct of the authorities and the way they handle the procedure may affect sense of procedural justice. This is true in case of corporate environment when underhanded investigatory tactics are employed by the management that may lead to distrust among the employee towards the company, and more important non-compliance of rules and policies. This is also seen in policing. Procedural justice is outwardly facing as it is concerned with interactions between public and the police. Procedural justice considerations are closely connected with public perceptions of police's distributive fairness. The concerned determination is whether the police authority fairly distributes its services across all social groups. Procedural fairness enhances perceived legitimacy and encouraged cooperative behaviour among the public. Procedural justice indirectly shapes compliance through mediating influence of legitimacy, demonstrated by findings in prisons regulatory context too. However, there may be administrative difficulties in converting procedural justice into a reality. There may be a tension between core view of procedural justice and view of order maintenance policing. Public perceptions of procedural justice are influenced by their beliefs about police legitimacy. However, certain order maintenance policing efforts emphasis on frequent stops of movement of vehicles and persons for suspected disorderly behaviour. Such strategy may dilute the perceptions of police legitimacy. It may happen in cases involving minor offenses and minor offenses that are not well‐defined. Such stops may be viewed as harassment and may create a negative implication for legal legitimacy and crime control efforts.

In the field of criminology, the continued dominance of neo-liberal values in sentencing may produce distorted accounts of the victim and the community harm. This has the tendency to prevent law enforcers to fully question social value and accountability. In such case, the notion of social harm may be replaced by a negotiated justice that relies on administrative and bureaucratic expediency. This may have an affect disproportionate to minority. It is also evident in the wider failure on the part of the state to address discriminatory practices in respect to legal and non-legal factors. In this respect, a control mechanism could be created within the penal ideology framework subject to core social values. Robinson argued that the enhanced legitimacy of procedural justice may tend to undermine the moral credibility of penal laws when the question of balancing fairness and justice comes into play. A change in the moral credibility will change public’s willingness to defer to judgment of procedural justice. As such, policy makers should attached moral credibility with procedural mechanism that would reflect social value in the outcomes. However, public may not always prefer attaching moral credibility. While exploring the role of procedural justice in implementation of anti-social behaviour interventions with youths, it was found that there were widespread and significant variations in ASB policies, the Crime and Policing Act 2014, and use of interventions and tools. The variations were observed to be not directly associated with risks distribution of victimisation, socio-economic deprivation, or disparities in local ASB problems. Instead, the variations occurred due to preferences of the locals for specific approaches to ASB interventions, selection of policy aiming a favoured balance between enforcement, support and prevention; inter-organisational partnership relations; key individuals’ to try new tools, and availability of local support services. No direct relationship could also be found between deprivation levels and number of youths, who have received ASB interventions. The policies and practices in place, thus, reflected inter-institutional cultures of tolerance, behavioural and authority regulation, informed by organisational and political choices. This finding is in line with that Tyler’s models of coercive authority and consensual authority, which seems to be blended in balance in this finding. From a criminal trial perspective, Thibaut and Walker’s principle of putting control with the parties and not with the courts may be treated as the reason for decline in traditional due process of law, which defines criminal trial as an adversarial exchange between the state and the defendant. In the twenty-first century, criminal trial procedure has changed to an extent that the due process of law no longer holds the quintessential form in order to mete out of procedural fairness and also testing of evidence of the state. There is a new form of control orders, amendments to evidence law, and accused’s right to confront the accuser. Along with this form, there is non-traditional agents of justice being included, especially the victims and community. These have brought about a new framework comprising substantive and procedural justice, which cannot be stated to be within the normative constraints of criminal trial. In furtherance to Thibaut and Walker’s principle, it provides for best procedure for a given circumstances. As observed, this best procedure cannot be the preferred choice. The absence of real intention to cover subjective justice could be seen in the study conducted regarding local perceptions of engagement opportunities and procedural justice in respect to electricity transmission grid projects in the UK and Norway. The study explored the participatory aspects of planning process and the framework covering public engagement and procedural justice. In both the UK and the Norway, it was found that perception of insufficient information and insufficient influences of the locals on the process largely form the characteristic of public engagement. Local perceived their involvement in the process as insufficient and also unjust. The inhabitants belong to diverse groups and have different levels of knowledge, engagement and time. Their request for more involvement forms a serious public engagement challenge. Moreover, the implication of procedural justice may include unintended or unexpected results.

In a study that evaluated qualitative process related to the Scottish Community Engagement Trial (ScotCET) in respect to the effect of ‘procedurally just’ modes of road policing on the public perceptions of police, ScotCET failed to give the hypothesised results. Instead, it produced significant and unexplained negative effects on core aspects of the public perception. The trial invoked common aspects of police culture to facilitate non-compliance with the ScotCET intervention. This led to implementation failures and might have disseminated negative effect on attitudes and behaviour of the participant officers. The study observed that organisational structure and its processes as well as coercive top-down direction cannot sufficiently ensure successful implementation of policing research. It also cannot ensure, by implication, any policing reforms that require alternative ways of policing and monitoring citizens. As corrective measure, it requires organisational justice and openness to evidence oriented knowledge. This may find support in the statement made by Robinson, mentioned earlier that enhanced legitimacy of procedural justice may tend to undermine the moral credibility of penal laws when the question of balancing fairness and justice comes into play. Fairness of procedures is a necessary component of a claim to legitimacy in challenging circumstances, such as certain treatments and services being in publicly funded health systems being subject to litigation. It is not just the procedural fairness, but also expertise in the evaluation of evidence that is required in validating the legitimacy. This is somewhat reflective of a combination of the instrumental, pure procedural and expressive theories, as discussed above. Drawing relevance with the trials of restorative justice conferences conducted over two decades in the UK and Australia, it was found that Initial reductions in repeat offending among offenders personal victims who participated in the RJC lear benefits in both short- and long-term measures, including less prevalence of post-traumatic stress symptoms. Moderator effects across and within experiments showed that RJCs work best for the most frequent and serious offenders for repeat offending outcomes, with other clear moderator effects for poly-drug use and offense seriousness. The concept of procedural justice relates to the way individuals arrived at their judgments regarding fairness and outcomes given their interactions with others. Considerations of procedural justice are closely tied with perception of the public and hence, legal authorities are always encouraged to adapt policies, practices and procedures in respect to the encounter with the public so as to promote procedural justice. The question that may always remain is the extent to which procedural justice bring efficacy to such policies and practices.

Conclusion

This essay presents a few core characteristics that may define the effectiveness and the extent of application of procedural justice in general and also specifically to policing.

Firstly, process control cannot always be core determinants of fairness, as what Thibaut and Walker stated. Situations may demand for subjective justice, which may demand for a descriptive fairness procedure. Procedural justice, thus, needs to see procedural fairness beyond determination fairness from outcome perspective. It should continue enforcing its characteristic of flexibility with application of a balanced formal and informal approach. Secondly, there is going to be a continuum of balancing between different legal principles to arrive at the correct application of a procedure, which will create chances of a just outcome. Rawls’ forms of procedure justice and Tyler’s concept on variables connected to determine it may be closely relevant here. The form of perfect, pure, imperfect and quasi-pure and the variables of absolute outcome, relative outcome, equal treatment and legitimacy may present a wholesome framework to deliver just result acceptable to all stakeholders. As seen in the second section, the two models of coercive authority and consensual authority of Tyler are reflected in successful policing. The legal authorities should create the system that focuses on the beliefs and social and moral values while promoting procedural justice. Thirdly, as off-shoot of the second characteristic, the participation of all actors in evaluating procedural justice independently may advance procedural fairness in facilitating outcome fairness and its acceptance. This can draw reference from the Leventhal scheme that covers both procedural and distributive justice as the determinants of the overall sense of justice. It would require subjective test of the procedural fairness, submitting correct information, consistency in procedure, equal and non-prejudical representation, decision review on appeal and appropriate ethical standards. The participation of all actors demonstrates the new form of control orders, which captures both substantive and procedural justice. As seen earlier, local perceptions of engagement opportunities may favour fairness procedure and outcome. Fourthly, in order to specify appropriate procedure to specific cases and to not open up broad and vague procedures, supplements in the form of legal rules are necessary. This characteristic will have to imbibe a mix of formal and non-formal procedures within the strict framework of law and legal enforcement. It will require one absolute authority that could implement the coercive authority and consensual authority to elicit and enforce compliance of law. This will prevent unexplained negative effects as seen with the case of ScotCET. It is worth stating that all elements of organisational structure and processes, coercive authority, with organisational justice and openness to participating are needed in prohibiting enhanced legitimacy of procedural justice that may undermine moral credibility of penal laws, and to instead advance a balance framework to achieve fairness and justice.

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