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by Margaret Taylor
15 September 2022
Seeking justice: Service cuts pose a threat to the success of community justice

Seeking justice: Service cuts pose a threat to the success of community justice

When he introduced the Community Justice (Scotland) Bill in 2015, then justice secretary Michael Matheson said the aim was to reform the penal system so it reflects “the values of a modern and progressive nation”. Key to doing this, he stressed, would be to do away with short-term prison sentences and find a more humane, community-based way of getting to the bottom of offending behaviour.

Fast forward to 2022 and the body established to oversee the change, Community Justice Scotland, has just been handed an updated strategy from the Scottish Government that sets out how it sees help rather than punishment as the best way of preventing offending and recidivism and helping people with a range of often complex needs get their lives back on track.

The plan is, says the organisation’s specialist advisor Keith Gardner, to see agencies including the police, health service, social work and local authorities come together to devise localised solutions to localised problems.

“We’ve revised the strategy because there’s a legal requirement to do that every five years but also so much has changed in the past five years or so,” Gardner says.

“The big focus now is on things like diversion from prosecution. That looks at people whose needs outweigh the act that they are alleged to have done. We’re never going to have diversion for murder or embezzlement – it’s not high-tariff stuff – a lot of it is about drugs and mental health.

“The idea is that the procurator fiscal will look at a case and see that the person has a lot of needs and it would be better if the local authority and other partners worked with them [rather than prosecute them]. It gives an opportunity to deal with issues, doesn’t leave a mark on their criminal history and allows them to exit the criminal justice system early.

“The justice system, if you hover at the edge of it, it will suck you in. Diversion turns off the tap a bit of people flowing further down the system.”

The justice system, if you hover at the edge of it, it will suck you in. Diversion turns off the tap a bit of people flowing further down the system

Despite figures from the Scottish Prison Service showing a downward trend in convictions over the past 10 years, Scotland continues to have one of the highest incarceration rates in western Europe at 135 per 100,000 in April this year compared to 102 in France and 66 in the Netherlands. With the cost of keeping just one person behind bars far exceeding £30,000 a year, the benefits of diversion to the public purse are clear.  

Gardner stresses that the value of community justice goes far beyond the monetary, though, with the renewed focus on helping people work through the trauma that often lies at the bottom of their offending having a knock-on positive impact on the communities they live in. And, as the perpetrators of crime also make up the bulk of crime’s victims, that positivity is expected to be self-perpetuating.

The experience of victims of crime has come into sharp focus in recent years, with Humza Yousaf, who replaced Matheson as justice minister for the period between 2018 and 2021, launching a victims’ taskforce as one of his first acts in office. His successor, Keith Brown, has taken up the mantle, with the Scottish Government recently consulting on two major reforms that seek to foreground the victims of serious crimes.

Much of that centres on the impact low conviction rates in sexual offences cases has on victims. The focus of one consultation was whether Scotland’s three-verdict system of guilty, not guilty and not proven should be reduced to just two – something the Scottish Government has now committed to taking forward in the current parliament – while the other is looking at how the justice system could better “empower and protect victims of crime”.

The not proven verdict is often painted in a controversial light, with critics saying it gives uncertain juries a get-out – especially in sexual-offences cases, where the burden of proof is notoriously difficult to ascertain – while at the same time leaving exonerated accused with a mark against their name.

Though it is a verdict of acquittal, there is thought to be confusion among the public that it is just another way for juries to say ‘we think you did it, but are unable to prove it’. Indeed, when he launched the not proven consultation last December, Brown noted that research had highlighted “inconsistent views on the meaning and effect of the not proven verdict and how it differs from not guilty”.

The Scottish Government has committed to bringing forward legislation that will abolish the not-proven verdict

The second consultation, meanwhile, sought to, in Brown’s words, find ways to “improve victims’ experiences of the justice system”.

“We know that victims of crime should be heard and be provided with information in an accessible and timely manner; that they should feel safe and have confidence in the structures that are designed to protect them; and that they should be treated with compassion, at every stage of their journey through the justice process and beyond,” Brown wrote in the consultation’s foreword.

As part of that, specialist sexual offences courts have been mooted and – controversially – judge-only, juryless trials.

That consultation closed earlier this month and the responses have not yet been published, but of the 200 individuals and organisations that took part in the not proven consultation the majority (62 per cent) favoured moving to a two-verdict system, reasoning that it would be easier to understand, fairer and more straightforward. First Minister Nicola Sturgeon announced in her programme for government that the change will go ahead, though it may not prove to be the panacea supporters are hoping for.

It is perhaps unsurprising that defence solicitors and advocates are less than enthusiastic about the prospect of the change, the common assumption being that they are opposed to it because it would make it harder to secure acquittals for their clients. Scottish Criminal Bar Association chair Tony Lenehan says the reality is far more nuanced.

“I think we’re less emphatic about it than people expect,” he says. “It’s about keeping a balance which avoids the risk of innocent people going to jail. Scotland is the only system I’m aware of where a single vote tips the balance from guilty to not guilty.

"It’s been recognised that the existence of the third verdict operates as a safeguard for those marginal cases. So we’re not convicting people on poor evidence, what we insist on is that you keep the balance point the same – if you remove that safeguard then you have to look at a qualified majority.

"If you slide one measure one way then you have to slide another measure the other way. The gut feeling I have is that some people want to simply slide the balance out one way so more people are convicted on poor quality evidence.”

It may seem contradictory for the Scottish Government to pursue reforms that could increase conviction rates and therefore the prison population while at the same time developing strategies aimed at reducing both those things.

Yet on the face of it a justice system that uses compassion rather than punishment to prevent low-level offending from escalating, and ensures the most serious of crimes are dealt with in a way that victims have the right to deserve, seems to make perfect sense.

The problem is that for that to become a reality, the entire justice system needs to be a well-oiled, well-financed machine, when as things stand that is far from being the case.

If someone is threatening to kill themself it’s entirely appropriate for the police to attend then, when we get them to safety, hand them on to other partners, but we’re not able to get them taken off police hands at an early stage

David Hamilton, chair of the Scottish Police Federation, says tightened budgets and dwindling staff numbers – 700 officers quit in the last year alone – mean that Police Scotland is under enormous pressure to maintain a service it has a statutory duty to provide. Yet when cuts to other services are factored in, the job of policing is, he says, becoming close to unmanageable.

“There’s an issue because partners are retrenching into their core businesses and are walking away from partnerships,” he says. “That leaves us holding the baby on many occasions. Mental health services are under huge pressure. We understand and sympathise with our colleagues in that sector, but the problem is that someone has to deal with what’s left and we’re that last safety net in society.

“If someone is threatening to kill themself it’s entirely appropriate for us to attend then, when we get them to safety, hand them on to other partners, but we’re not able to get them taken off police hands at an early stage. The lack of ongoing care means we are seeing more people come into the community who would normally have more help and they are coming into contact with us more.

“There’s only so far we can stretch Police Scotland. Eventually that’s going to burst and we’ll have to say ‘we can’t do that’. We will fail communities. We’re starting to feel that.”

Getting help for mental health or addiction issues sits right at the heart of the Scottish Government’s diversion from prosecution policy, but if Police Scotland cannot pass the people it is dealing with onto an appropriate service, in many cases it will have no choice but to keep them in the justice system.

Not only does that mean community justice has failed at the first hurdle, but that vulnerable people are funnelled further along into a system that has the potential to fail them further.

Julia McPartlin, president of the Scottish Solicitors’ Bar Association, says ongoing disputes about the amount of money available for publicly funded legal work have led to large numbers of solicitors leaving the profession, something that is also having an impact in the Justice of the Peace court, where breach of the peace and other less serious cases are heard. 

“In the Justice of the Peace court the justice is a lay person but the clerk is a solicitor who will give the justice directions on what the law is and what they can and can’t do,” she says.

“They’ve had a similar problem with people leaving and there are just three legal advisers covering Edinburgh, Lothian and the Borders – because there are so few of them and they all need to get holidays we’ve had a number of days where there has been no Justice of the Peace court at all. I’ve never seen anything like that before.”

The impact of that, McPartlin says, is that rather than cases calling in order for the justice to determine how they should proceed, every matter that was supposed to be looked at on those days was continued to trial, ensuring the people involved have been pushed further along into the justice system when at least some could have expected the case against them to fall.

Similarly, McPartlin says that staff shortages mean she and colleagues in Edinburgh have struggled to have clients assessed for drug treatment and testing orders, something that is supposed to prevent those with health-related needs being, in Gardner’s words, continually sucked back into the justice system.

“In Edinburgh they’re struggling to recruit staff and we can’t get clients assessed for drug treatment orders,” McPartlin says.

“The most obvious disposal and most helpful disposal the court has is not available. The next best thing is to put them on supervision. Quite often that involves meeting with a social worker, sometimes once a week or every fortnight depending on resources, but that’s nothing like the drug treatment and testing order programme, which involves meeting with a doctor or nurse. It’s quite intensive – they don’t just look at your drug problem but look at getting you into stable housing, back into work. It’s much more holistic.”

For Community Justice Scotland, the success of its revamped strategy hinges on partners coming together at a local level to find solutions that work for their particular community. Gardner says that has happened in pockets since the organisation was launched, but adds that “we now need to go from that happening to that being the norm”. 

Given that it hasn’t become the norm in the years leading up to now it is, Gardner concedes, quite the task in the current climate, though he remains optimistic that the organisation’s vision will be a success.

“There’s never enough services and there will never be enough services,” he says, adding: “The money will come back, it always does. It will all level out and then we’ll get back to a bit of normality.”

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