This article utilizes doctoral research on access to justice and clinical legal education to reflect on the positionality that the researcher embodies from their diverse professional affiliations. It adds a nuance to the debate on positionality by relaying it as a concentric experience. The article offers insights on navigating layered insider status through the use of reflexivity journals, removing familiarity in the interview environment and returning to the literature after fieldwork. Noting that one may still be perceived as ‘other,’ it outlines the role of go-betweens to access research participants, follow-up questions to allow for participant voices to be heard and a friendly demeanour to build rapport. The article supports training of novice researchers in reflexivity and grounded theory research as ways of facilitating rigour. It will be useful for socio-legal researchers who have a propensity to embody layered insider status from their diverse professional affiliations when researching in their own countries.
{"title":"An Insider Within","authors":"Anne Kotonya","doi":"10.19164/jlrm.v3i1.1378","DOIUrl":"https://doi.org/10.19164/jlrm.v3i1.1378","url":null,"abstract":"This article utilizes doctoral research on access to justice and clinical legal education to reflect on the positionality that the researcher embodies from their diverse professional affiliations. It adds a nuance to the debate on positionality by relaying it as a concentric experience. The article offers insights on navigating layered insider status through the use of reflexivity journals, removing familiarity in the interview environment and returning to the literature after fieldwork. Noting that one may still be perceived as ‘other,’ it outlines the role of go-betweens to access research participants, follow-up questions to allow for participant voices to be heard and a friendly demeanour to build rapport. The article supports training of novice researchers in reflexivity and grounded theory research as ways of facilitating rigour. It will be useful for socio-legal researchers who have a propensity to embody layered insider status from their diverse professional affiliations when researching in their own countries. ","PeriodicalId":212730,"journal":{"name":"Journal of Legal Research Methodology","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2024-02-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139789779","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Jose Pina Sanchez, Sara Geneletti, Ana Veiga, Ana Morales, Eoin Guilfoyle
Large research efforts have been directed at the exploration of ethnic disparities in the criminal justice system, documenting harsher treatment of minority ethnic defendants, across offence types, criminal justice decisions, and jurisdictions. However, most studies on the topic have relied on observational data, which can only approximate ‘like with like’ comparisons. We use causal diagrams to lay out explicitly the different ways estimates of ethnic disparities in sentencing derived from observational data could be biased. Beyond the commonly acknowledged problem of unobserved case characteristics, we also discuss other less well-known, yet likely more consequential problems: measurement error in the form of racially-determined case characteristics or as a result of disparities within the ‘Whites’ reference group, and selection bias from non-response and missing offenders’ ethnicity data. We apply such causal framework to review findings from two recent studies showing ethnic disparities in custodial sentences imposed at the Crown Court (England and Wales). We also use simulations to recreate the most comprehensive of those studies, and demonstrate how the reported ethnic disparities appear robust to a problem of unobserved case characteristics. We conclude that ethnic disparities observed in the Crown Court are likely reflecting evidence of direct discrimination in sentencing.
{"title":"Can ethnic disparities in sentencing be taken as evidence of judicial discrimination?","authors":"Jose Pina Sanchez, Sara Geneletti, Ana Veiga, Ana Morales, Eoin Guilfoyle","doi":"10.19164/jlrm.v3i1.1394","DOIUrl":"https://doi.org/10.19164/jlrm.v3i1.1394","url":null,"abstract":"Large research efforts have been directed at the exploration of ethnic disparities in the criminal justice system, documenting harsher treatment of minority ethnic defendants, across offence types, criminal justice decisions, and jurisdictions. However, most studies on the topic have relied on observational data, which can only approximate ‘like with like’ comparisons. We use causal diagrams to lay out explicitly the different ways estimates of ethnic disparities in sentencing derived from observational data could be biased. Beyond the commonly acknowledged problem of unobserved case characteristics, we also discuss other less well-known, yet likely more consequential problems: measurement error in the form of racially-determined case characteristics or as a result of disparities within the ‘Whites’ reference group, and selection bias from non-response and missing offenders’ ethnicity data. We apply such causal framework to review findings from two recent studies showing ethnic disparities in custodial sentences imposed at the Crown Court (England and Wales). We also use simulations to recreate the most comprehensive of those studies, and demonstrate how the reported ethnic disparities appear robust to a problem of unobserved case characteristics. We conclude that ethnic disparities observed in the Crown Court are likely reflecting evidence of direct discrimination in sentencing.","PeriodicalId":212730,"journal":{"name":"Journal of Legal Research Methodology","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2024-02-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139789737","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article utilizes doctoral research on access to justice and clinical legal education to reflect on the positionality that the researcher embodies from their diverse professional affiliations. It adds a nuance to the debate on positionality by relaying it as a concentric experience. The article offers insights on navigating layered insider status through the use of reflexivity journals, removing familiarity in the interview environment and returning to the literature after fieldwork. Noting that one may still be perceived as ‘other,’ it outlines the role of go-betweens to access research participants, follow-up questions to allow for participant voices to be heard and a friendly demeanour to build rapport. The article supports training of novice researchers in reflexivity and grounded theory research as ways of facilitating rigour. It will be useful for socio-legal researchers who have a propensity to embody layered insider status from their diverse professional affiliations when researching in their own countries.
{"title":"An Insider Within","authors":"Anne Kotonya","doi":"10.19164/jlrm.v3i1.1378","DOIUrl":"https://doi.org/10.19164/jlrm.v3i1.1378","url":null,"abstract":"This article utilizes doctoral research on access to justice and clinical legal education to reflect on the positionality that the researcher embodies from their diverse professional affiliations. It adds a nuance to the debate on positionality by relaying it as a concentric experience. The article offers insights on navigating layered insider status through the use of reflexivity journals, removing familiarity in the interview environment and returning to the literature after fieldwork. Noting that one may still be perceived as ‘other,’ it outlines the role of go-betweens to access research participants, follow-up questions to allow for participant voices to be heard and a friendly demeanour to build rapport. The article supports training of novice researchers in reflexivity and grounded theory research as ways of facilitating rigour. It will be useful for socio-legal researchers who have a propensity to embody layered insider status from their diverse professional affiliations when researching in their own countries. ","PeriodicalId":212730,"journal":{"name":"Journal of Legal Research Methodology","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2024-02-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139849650","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article examines the intricacies of researcher positionality in a study examining women in policing in China. It aims to shed light on the manifold ways in which researcher positionality – the researcher’s relationship with the participants, gender and other identities – impacts the research process. The study draws from my own experiences, as a female researcher and former insider, engaging in qualitative interviews with both female and male police officers in the context of a feminist inquiry into women in Chinese policing. This article explores the advantages and challenges of outsider-insider research, dissects the role of gender in shaping the research landscape and probes how the researcher’s myriad identities may influence research access, information gathering, data analysis, findings and conclusions. Moreover, it discusses strategies adopted to overcome research barriers. By presenting this outsider-insider research as a case study, the article underscores the vital role of researcher reflexivity in unearthing the truth regarding women’s experiences and upholding academic rigour. It not only advocates for the use of qualitative interviewing as a tool for knowledge production, but also makes important contributes to the fields of feminist research and qualitative inquiry. In addition, it offers compelling narratives of women within Chinese law enforcement, thereby enriching the discourse on gender policing studies.
{"title":"Positionality, Gender and Reflexivity in Outsider-Insider Research","authors":"Anqi Shen","doi":"10.19164/jlrm.v3i1.1320","DOIUrl":"https://doi.org/10.19164/jlrm.v3i1.1320","url":null,"abstract":"This article examines the intricacies of researcher positionality in a study examining women in policing in China. It aims to shed light on the manifold ways in which researcher positionality – the researcher’s relationship with the participants, gender and other identities – impacts the research process. The study draws from my own experiences, as a female researcher and former insider, engaging in qualitative interviews with both female and male police officers in the context of a feminist inquiry into women in Chinese policing. This article explores the advantages and challenges of outsider-insider research, dissects the role of gender in shaping the research landscape and probes how the researcher’s myriad identities may influence research access, information gathering, data analysis, findings and conclusions. Moreover, it discusses strategies adopted to overcome research barriers. By presenting this outsider-insider research as a case study, the article underscores the vital role of researcher reflexivity in unearthing the truth regarding women’s experiences and upholding academic rigour. It not only advocates for the use of qualitative interviewing as a tool for knowledge production, but also makes important contributes to the fields of feminist research and qualitative inquiry. In addition, it offers compelling narratives of women within Chinese law enforcement, thereby enriching the discourse on gender policing studies.","PeriodicalId":212730,"journal":{"name":"Journal of Legal Research Methodology","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2024-02-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139850402","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article examines the intricacies of researcher positionality in a study examining women in policing in China. It aims to shed light on the manifold ways in which researcher positionality – the researcher’s relationship with the participants, gender and other identities – impacts the research process. The study draws from my own experiences, as a female researcher and former insider, engaging in qualitative interviews with both female and male police officers in the context of a feminist inquiry into women in Chinese policing. This article explores the advantages and challenges of outsider-insider research, dissects the role of gender in shaping the research landscape and probes how the researcher’s myriad identities may influence research access, information gathering, data analysis, findings and conclusions. Moreover, it discusses strategies adopted to overcome research barriers. By presenting this outsider-insider research as a case study, the article underscores the vital role of researcher reflexivity in unearthing the truth regarding women’s experiences and upholding academic rigour. It not only advocates for the use of qualitative interviewing as a tool for knowledge production, but also makes important contributes to the fields of feminist research and qualitative inquiry. In addition, it offers compelling narratives of women within Chinese law enforcement, thereby enriching the discourse on gender policing studies.
{"title":"Positionality, Gender and Reflexivity in Outsider-Insider Research","authors":"Anqi Shen","doi":"10.19164/jlrm.v3i1.1320","DOIUrl":"https://doi.org/10.19164/jlrm.v3i1.1320","url":null,"abstract":"This article examines the intricacies of researcher positionality in a study examining women in policing in China. It aims to shed light on the manifold ways in which researcher positionality – the researcher’s relationship with the participants, gender and other identities – impacts the research process. The study draws from my own experiences, as a female researcher and former insider, engaging in qualitative interviews with both female and male police officers in the context of a feminist inquiry into women in Chinese policing. This article explores the advantages and challenges of outsider-insider research, dissects the role of gender in shaping the research landscape and probes how the researcher’s myriad identities may influence research access, information gathering, data analysis, findings and conclusions. Moreover, it discusses strategies adopted to overcome research barriers. By presenting this outsider-insider research as a case study, the article underscores the vital role of researcher reflexivity in unearthing the truth regarding women’s experiences and upholding academic rigour. It not only advocates for the use of qualitative interviewing as a tool for knowledge production, but also makes important contributes to the fields of feminist research and qualitative inquiry. In addition, it offers compelling narratives of women within Chinese law enforcement, thereby enriching the discourse on gender policing studies.","PeriodicalId":212730,"journal":{"name":"Journal of Legal Research Methodology","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2024-02-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139790588","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Jose Pina Sanchez, Sara Geneletti, Ana Veiga, Ana Morales, Eoin Guilfoyle
Large research efforts have been directed at the exploration of ethnic disparities in the criminal justice system, documenting harsher treatment of minority ethnic defendants, across offence types, criminal justice decisions, and jurisdictions. However, most studies on the topic have relied on observational data, which can only approximate ‘like with like’ comparisons. We use causal diagrams to lay out explicitly the different ways estimates of ethnic disparities in sentencing derived from observational data could be biased. Beyond the commonly acknowledged problem of unobserved case characteristics, we also discuss other less well-known, yet likely more consequential problems: measurement error in the form of racially-determined case characteristics or as a result of disparities within the ‘Whites’ reference group, and selection bias from non-response and missing offenders’ ethnicity data. We apply such causal framework to review findings from two recent studies showing ethnic disparities in custodial sentences imposed at the Crown Court (England and Wales). We also use simulations to recreate the most comprehensive of those studies, and demonstrate how the reported ethnic disparities appear robust to a problem of unobserved case characteristics. We conclude that ethnic disparities observed in the Crown Court are likely reflecting evidence of direct discrimination in sentencing.
{"title":"Can ethnic disparities in sentencing be taken as evidence of judicial discrimination?","authors":"Jose Pina Sanchez, Sara Geneletti, Ana Veiga, Ana Morales, Eoin Guilfoyle","doi":"10.19164/jlrm.v3i1.1394","DOIUrl":"https://doi.org/10.19164/jlrm.v3i1.1394","url":null,"abstract":"Large research efforts have been directed at the exploration of ethnic disparities in the criminal justice system, documenting harsher treatment of minority ethnic defendants, across offence types, criminal justice decisions, and jurisdictions. However, most studies on the topic have relied on observational data, which can only approximate ‘like with like’ comparisons. We use causal diagrams to lay out explicitly the different ways estimates of ethnic disparities in sentencing derived from observational data could be biased. Beyond the commonly acknowledged problem of unobserved case characteristics, we also discuss other less well-known, yet likely more consequential problems: measurement error in the form of racially-determined case characteristics or as a result of disparities within the ‘Whites’ reference group, and selection bias from non-response and missing offenders’ ethnicity data. We apply such causal framework to review findings from two recent studies showing ethnic disparities in custodial sentences imposed at the Crown Court (England and Wales). We also use simulations to recreate the most comprehensive of those studies, and demonstrate how the reported ethnic disparities appear robust to a problem of unobserved case characteristics. We conclude that ethnic disparities observed in the Crown Court are likely reflecting evidence of direct discrimination in sentencing.","PeriodicalId":212730,"journal":{"name":"Journal of Legal Research Methodology","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2024-02-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139849604","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Quantitative research on judicial decision-making faces the methodological challenge of analysing disposal types that are measured in different units (e.g. money for fines, days for custodial sentences). To overcome this problem a wide range of scales of sentence severity have been suggested in the literature. One particular group of severity scales that has achieved high validity and reliability are those based on Thurstone’s pairwise comparisons. However, this method invokes a series of simplifying assumptions, one of them being that the range of severity covered by different disposal types is constant. We undertook an expert elicitation workshop to assess the validity of that assumption. Responses from the six criminal law practitioners and researchers that participated in our workshop unanimously pointed at severity ranges being highly variable across disposal types (e.g. much wider severity ranges were identified for suspended custodial sentences than for fines). We used this information to re-specify Thurstone’s model allowing for unequal variances. As a result, we obtained a new, more robust, scale of sentence severity.
{"title":"Enhancing the Measurement of Sentence Severity through Expert Knowledge Elicitation","authors":"J. Pina-Sánchez, J. P. Gosling","doi":"10.19164/jlrm.v2i1.1241","DOIUrl":"https://doi.org/10.19164/jlrm.v2i1.1241","url":null,"abstract":"Quantitative research on judicial decision-making faces the methodological challenge of analysing disposal types that are measured in different units (e.g. money for fines, days for custodial sentences). To overcome this problem a wide range of scales of sentence severity have been suggested in the literature. One particular group of severity scales that has achieved high validity and reliability are those based on Thurstone’s pairwise comparisons. However, this method invokes a series of simplifying assumptions, one of them being that the range of severity covered by different disposal types is constant. We undertook an expert elicitation workshop to assess the validity of that assumption. Responses from the six criminal law practitioners and researchers that participated in our workshop unanimously pointed at severity ranges being highly variable across disposal types (e.g. much wider severity ranges were identified for suspended custodial sentences than for fines). We used this information to re-specify Thurstone’s model allowing for unequal variances. As a result, we obtained a new, more robust, scale of sentence severity.","PeriodicalId":212730,"journal":{"name":"Journal of Legal Research Methodology","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-11-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126968754","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
O. Olusanya, W. Collier, S. Marshall, Victoria Knapp, Alex Baldwin
Participatory action research (PAR) methods aim to position the people who are most affected by the issue being studied as equal partners in the research process through a cyclical process of data gathering, data analysis, planning and implementing action and evaluation and reflection. In doing so, it ensures that the research better reflects participants’ ideas, priorities, and needs, thereby enhancing its validity and relevance and the support for the findings and proposed changes. Furthermore, it generates immediately applicable results. In this paper, we reflect on our experiences of developing the UK’s first access to justice platform for veterans and their families through an ongoing PAR project that brought together armed forces veterans, representatives from veterans' service providers, and the Veterans Legal Link team members comprising of legal academics, lawyers, sociologists, computer software designers and graphic designers to collect, interpret, and apply community information to address issues related to the delivery of access to justice. We present findings from Stages 1 and 2 of our three-stage iterative research process which includes the following steps: Understanding and cross-checking the lived experience of the veteran community (Stage 1), developing and testing a prototype of the access to justice platform (Stage 2) and creating the final product and giving real users an opportunity to use the platform (Stage 3). Data collection and analysis from Stage 1 of the study informed the themes that underpinned Stage 2. Specifically, data was collected through the following methods: co-facilitated focus group discussions, a web survey that was codesigned with veteran community stakeholders and remote and digitally enabled ethnographic research methods. We include several reflections that may help legal practitioners and researchers interested in applying PAR within the area of access to justice and the field of legal research.
{"title":"Access to Justice software development, Participatory Action Research Methods and Researching the Lived Experiences of British Military Veterans","authors":"O. Olusanya, W. Collier, S. Marshall, Victoria Knapp, Alex Baldwin","doi":"10.19164/jlrm.v2i1.1240","DOIUrl":"https://doi.org/10.19164/jlrm.v2i1.1240","url":null,"abstract":"Participatory action research (PAR) methods aim to position the people who are most affected by the issue being studied as equal partners in the research process through a cyclical process of data gathering, data analysis, planning and implementing action and evaluation and reflection. In doing so, it ensures that the research better reflects participants’ ideas, priorities, and needs, thereby enhancing its validity and relevance and the support for the findings and proposed changes. Furthermore, it generates immediately applicable results. In this paper, we reflect on our experiences of developing the UK’s first access to justice platform for veterans and their families through an ongoing PAR project that brought together armed forces veterans, representatives from veterans' service providers, and the Veterans Legal Link team members comprising of legal academics, lawyers, sociologists, computer software designers and graphic designers to collect, interpret, and apply community information to address issues related to the delivery of access to justice. We present findings from Stages 1 and 2 of our three-stage iterative research process which includes the following steps: Understanding and cross-checking the lived experience of the veteran community (Stage 1), developing and testing a prototype of the access to justice platform (Stage 2) and creating the final product and giving real users an opportunity to use the platform (Stage 3). Data collection and analysis from Stage 1 of the study informed the themes that underpinned Stage 2. Specifically, data was collected through the following methods: co-facilitated focus group discussions, a web survey that was codesigned with veteran community stakeholders and remote and digitally enabled ethnographic research methods. We include several reflections that may help legal practitioners and researchers interested in applying PAR within the area of access to justice and the field of legal research.","PeriodicalId":212730,"journal":{"name":"Journal of Legal Research Methodology","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-11-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122819621","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The Mental Capacity Act 2005 (MCA) regulates decision-making for people without capacity. Post-legislative scrutiny of the Act in 2014 by a House of Lords Select Committee concluded that the MCA was neither well understood nor working well in practice. The aim of the research discussed in this article was to consider how the Act’s principles are understood and interpreted in hospice practice, specifically considering the patient’s role in the decision-making process. The research proceeded through four distinct, but linked, phases which, together, offered a ‘life story’ of the MCA from legislative intent to current hospice practice (in 2019). The research was informed by relational theory and legal consciousness theory and the methods described are underpinned by a narrative approach to analysis. Phase one was an innovative genealogical analysis of policy and legislative documents (n=24) influencing the ‘coming to be’ of the MCA. In phase two, a systematic review of Court of Protection judgments (n=63) ‘historicises’ the empirical research, which was the focus of phases three and four (group interviews and individual interviews, respectively). Staff from two participating hospices participated in two group interviews and six individual interviews (13 participants), providing empirical data. Template analysis was used in all four phases of the study, and adapted to facilitate a synthesis of the findings across the study as a whole.
{"title":"From Legislative Intent to Hospice Practice: Exploring the Genealogy of The Mental Capacity Act 2005","authors":"C. Redhead","doi":"10.19164/jlrm.v2i1.1284","DOIUrl":"https://doi.org/10.19164/jlrm.v2i1.1284","url":null,"abstract":"The Mental Capacity Act 2005 (MCA) regulates decision-making for people without capacity. Post-legislative scrutiny of the Act in 2014 by a House of Lords Select Committee concluded that the MCA was neither well understood nor working well in practice. The aim of the research discussed in this article was to consider how the Act’s principles are understood and interpreted in hospice practice, specifically considering the patient’s role in the decision-making process. \u0000The research proceeded through four distinct, but linked, phases which, together, offered a ‘life story’ of the MCA from legislative intent to current hospice practice (in 2019). The research was informed by relational theory and legal consciousness theory and the methods described are underpinned by a narrative approach to analysis. Phase one was an innovative genealogical analysis of policy and legislative documents (n=24) influencing the ‘coming to be’ of the MCA. In phase two, a systematic review of Court of Protection judgments (n=63) ‘historicises’ the empirical research, which was the focus of phases three and four (group interviews and individual interviews, respectively). Staff from two participating hospices participated in two group interviews and six individual interviews (13 participants), providing empirical data. Template analysis was used in all four phases of the study, and adapted to facilitate a synthesis of the findings across the study as a whole.","PeriodicalId":212730,"journal":{"name":"Journal of Legal Research Methodology","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-11-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132528309","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The criminal defence lawyer is an essential component to the equality of arms, due process, the enforcement of the prosecution’s burden of proof, and to the right to a fair trial. Despite this, little attention has yet to be paid to what the different qualities of legal defence assistance—whether adequate, effective, sufficient, etc.—actually amount to. This article presents the methodology and results from a comparative empirical legal study on the quality of criminal defence advocates in England & Wales and Belgium. The study presented, and the wider PhD research to which it forms a part, seeks to construct a theoretical framework by which poor-quality (insufficient) defence representation may be identified, understood, contextualised, addressed and remedied. To this end, the empirical research undertaken and outlined in the article which follows focuses on a particular source of information: the data acquired from semi-structured interviews held with defence practitioners about their (own) perceptions, opinions and experiences of the quality of defence representation. The article discusses the extent to which lawyers are a reliable source of data and the usefulness of empirical research as a means by which legal theory may be developed, articulated and tested. If, for example, quality lawyering is to be defined in the hope of demarcating “sufficient” quality from “insufficient”, then it is both natural and necessary to involve the subjects of this research, the lawyers. A qualitative empirical study which utilises constructivist grounded theory and critical realism is, this article suggests, one means by which this delineation may be ascertained, one which also seeks to contextualise the data obtained whilst acknowledging the role and effect of the researcher in question.
{"title":"Take (what they say) with a pinch of salt: Engaging in Empirical Research to Understand the Parameters of the ‘Quality’ in ‘Poor-Quality Defence Lawyering’","authors":"Ashlee Beazley","doi":"10.19164/jlrm.v2i1.1289","DOIUrl":"https://doi.org/10.19164/jlrm.v2i1.1289","url":null,"abstract":"The criminal defence lawyer is an essential component to the equality of arms, due process, the enforcement of the prosecution’s burden of proof, and to the right to a fair trial. Despite this, little attention has yet to be paid to what the different qualities of legal defence assistance—whether adequate, effective, sufficient, etc.—actually amount to. This article presents the methodology and results from a comparative empirical legal study on the quality of criminal defence advocates in England & Wales and Belgium. The study presented, and the wider PhD research to which it forms a part, seeks to construct a theoretical framework by which poor-quality (insufficient) defence representation may be identified, understood, contextualised, addressed and remedied. To this end, the empirical research undertaken and outlined in the article which follows focuses on a particular source of information: the data acquired from semi-structured interviews held with defence practitioners about their (own) perceptions, opinions and experiences of the quality of defence representation. \u0000The article discusses the extent to which lawyers are a reliable source of data and the usefulness of empirical research as a means by which legal theory may be developed, articulated and tested. If, for example, quality lawyering is to be defined in the hope of demarcating “sufficient” quality from “insufficient”, then it is both natural and necessary to involve the subjects of this research, the lawyers. A qualitative empirical study which utilises constructivist grounded theory and critical realism is, this article suggests, one means by which this delineation may be ascertained, one which also seeks to contextualise the data obtained whilst acknowledging the role and effect of the researcher in question.","PeriodicalId":212730,"journal":{"name":"Journal of Legal Research Methodology","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-11-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127153061","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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