Yes, no, possibly, maybe: Community sanctions, consent and cooperation

Abstract

This article explores the significance of consent to community sanctions and measures. The value of consent derives from the principle of autonomy and rights to freedom and dignity. While normally these are rights that should be upheld and defended, the question is complicated in the case of penal sanctions. The account goes on to discuss the necessary conditions for meaningful informed consent and to inquire into the extent to which these conditions apply to community sentences. The origin of consent to the probation order and other community penalties in England and Wales is outlined – the reason why it was originally expected and why it was eventually abolished. Yet even if consent is not formally required, there is reason to think that England and Wales is an example of a country where in practice consent is actively sought. The relationship between consent and compliance – and the distinct concept of active cooperation – is discussed. It is concluded that a formal expression of consent in Court has symbolic value, but does not resolve the challenge of trying to secure consent and cooperation that must persist throughout the duration of the community order.

Consent and probation: An analogy with contract law

“…We have seen that the contractual construct of consent is not ‘legally simplistic’ or based on a ‘yes/no’ binary notion (Canton, 2014: 218). The elaborate theory of modern contracts has met most of its promises.…”

“…Consent should also be about knowing (Canton, 2014) – and weighing – all of the available options. In many legal systems, an attorney can be present in order to better choose whether to accept a plea bargain or other out-of-court transaction; a similar solution should apply for release and important supervision decisions, a sentences’ implementation being the last phase of a CJS continuum that starts with the arrest by police (Herzog-Evans, 2015: 467).…”

“…In contract law, equivocal consent is null and void. However, such is not the case when, as Canton (2014) labels it, an offender’s consent is given with misgiving, or as Weaver and Barry (2014) put it, it is ‘mixed’ in the sense that the offender only consents to avoid prison or in order to be released.…”

“…The authors of this special edition have reminded us that, today, the issue of offender agency, collaboration and substantive compliance, have become key, both in practice and in academia (see e.g. Canton, 2014; Morgenstern and Robinson, 2014; Raynor, 2014; Weaver and Barry, 2014). For indeed, in most legal systems, consent is required when there is mandatory work, mandatory treatment, when an electronic device is used, for prisoners’ early release, or for protective mandatory supervision.…”

‘Penal Drift’ and the Voluntary Sector

“…The involvement of VSOs in the delivery of sentences raises questions about ‘coercing’ offenders into specific forms of rehabilitation or treatment: in other words, requiring them to participate, with the threat of sanctions (including imprisonment) for non‐compliance. The argument against coercion is based partly on ethical principles (Canton ; Day, Tucker and Howells ; Powell ; Seddon ). It also reflects the widely‐held belief that the effectiveness of rehabilitative work depends heavily on service users’ motivation and willingness to genuinely engage with the intervention and those delivering it: coerced participation, it has been argued, is likely to be perceived primarily as punishment, reducing their motivation and making them more likely to simply ‘go through the motions’ rather than commit to a change process (Farrall ; Raynor and Vanstone ).…”