Specialist Prosecution Units and Courts: A review of the literature

Professor Patrick Parkinson AM

Faculty of Law, University of Sydney

March 2016

ISBN 978-1-925289-42-8

Executive Summary

The Royal Commission into Institutional Responses to Child Sexual Abuse commissioned this literature review to discern the potential benefits of using specialist prosecution units and courts to deal with child sexual abuse cases. Given the paucity of literature on specialist prosecution units or courts for sex offences, this review considers what can be learned about the advantages and disadvantages of specialist courts generally, and from family violence courts in particular.

Appropriate search terms were used to conduct a detailed examination of more than 200 legal publications. While the notion of a specialist prosecution unit is relatively straightforward, it is much more difficult to define a specialist court. Some jurisdictions identify courts with specialist labels when in reality the court is merely a specialist docket within a generalist court. Many specialist courts do not have specialist judges. Rather, judges work in a specialist jurisdiction for a few weeks or months before moving to other duties. In addition, it is possible to have de facto specialisation within generalist courts. Evaluations of specialist courts need to be read in this context.

According to the literature on specialisation generally, specialist prosecution units and courts bring the generic benefits of specialisation, including efficiency gains from prosecutors and judges gaining expertise by concentrating on a particular subject matter. Specialists can usually work faster than generalists because they are more familiar with the tasks. Specialisation may have benefits not only for the specialist jurisdiction but also for the generalist courts because general criminal law judges and prosecutors will not need to keep up with, or receive training in, aspects of the criminal justice system or the laws of evidence relating to the work of the specialist court. Evidence shows efficiency gains for courts of summary jurisdiction that combine specialisation with effective case management in dockets with high levels of guilty pleas. ‘Problem-solving courts’ are examples of specialist courts of summary jurisdiction. These are courts, such as drug courts, that aim to deal with a particular social problem by focusing on strategies to address the offender’s criminal tendencies and to reduce recidivism. Typically, they require a guilty plea as a precondition for the court dealing with them.

Another generic advantage of specialisation is seen to be improved quality of decision-making. Experts are likely to make more knowledge-informed decisions than generalists, and are less likely to make significant errors of judgment. However, research does not support the claim that specialist judges are likely to be more free from what psychologists term ‘cognitive illusions’ than generalist judges. Other claimed advantages are greater uniformity in decision-making and better case management.

Specialisation brings the risks of inefficient management of judicial resources and difficulty attracting the most capable judges and prosecutors because of the problem of burnout, the narrowness of the work and the lower prestige of some specialist courts. Judicial and prosecuting staff are also said to be at risk of losing objectivity, although the evidence to support this is lacking. Another issue is the level of centralisation that may be needed for a specialist court to function and therefore the travel time for witnesses to reach the court location. Other risks are particular to problem-solving courts.