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by Margaret Taylor
27 September 2021
Raising awareness: taking a trauma-informed approach to justice

Raising awareness: taking a trauma-informed approach to justice

There was not a lot of happiness in the Glasgow home that David [not his real name] and his two siblings grew up in. Both their parents struggled with addictions and, with the chaos that brought to family life, there was little room for love or affection.

“We didn’t get told they loved us, there were no cuddles, there were all sorts of horrible things happening in the house and we were constantly moving from one housing scheme to another,” David, who is now in his late 40s, recalls. Amid it all he began smoking cannabis at the age of 12 before quickly progressing to alcohol.

When his brother passed away from appendicitis at the age of 16 David, who was two years older, was in prison serving a sentence for violent crime. Within the family the death passed with barely a comment; within prison David became hooked on heroin. His life from there became a seemingly endless downward spiral of addictions and convictions.

David’s experience is far from unique. Council of Europe figures show that, at 146.6 per 100,000, Scotland has one of the highest prison population rates in Western Europe while statistics compiled by the Scottish Government indicate that a large proportion of those serving time – 66 per cent – are repeat offenders.

Like David, many of those people will have experienced adversity and trauma growing up. Indeed, a report issued by the Scottish Prison Service (SPS) last year found that at least a quarter of the adult prison population had spent time in care in their youth. Though that compares with just five per cent in the wider population, the charity Who Cares? Scotland says that, because the SPS survey required individuals to self-identify as care experienced, the true proportion is likely to be much higher.

For Iain Smith, a solicitor at law firm Keegan Smith Defence Lawyers, the figures – and experiences like David’s, where endless prison sentences have exacerbated rather than eradicated offending behaviours – highlight a major flaw in the criminal justice system.

“The justice system focuses on retribution and punishment for something that requires repair and rehabilitation,” he says. “We do it that way because we’ve always done it that way, but the high prison population tells us it’s not the solution; drug and alcohol deaths tell us it’s not the solution. Judges focus on the problem with offenders being their drug misuse, when in fact the problem is what’s underneath the misuse. What is it they are hoping to repair by using drugs?

“I wasn’t taught soft skills at university like compassion, empathy and listening to clients to understand trauma and why it’s important. No one likes talking to clients about the horrors of their childhood and the things that have caused their trauma – neither do judges. The problem is that by not talking about it we continue with the same cycle.”

Smith is convinced that breaking that cycle is the only way to deal with Scotland’s revolving-door recidivism, which rips families apart, devastates communities and costs the taxpayer hundreds of millions of pounds a year, not to eliminate but to sustain. He and his colleague Darryl Lovie have made it their mission to make judges aware of the adverse childhood experiences (ACEs) that influence their clients’ behaviour with the hope that alternatives to custody – or, when a stronger punishment element is necessary, sentences that have been tailored to individual circumstances – can change those behaviours and stop the reoffending.

It is not an easy task. Last December Smith and Lovie formed campaign group Trauma Aware Lawyers along with fellow solicitors Melissa Rutherford and Tony Bone to raise awareness of the impact trauma is having on the justice system. Together they have run a programme in all Scotland’s law schools and are working on a filmed resource that can be used in school settings.

Those initiatives have been well received and the Law Society of Scotland is now considering making trauma awareness a mandatory component of a law degree. Yet Rutherford says that getting through to judges and sheriffs – who are steeped in traditional methods while also holding the key to breaking the relationship between trauma and criminality – has in many cases proved challenging.

“It’s a mixed bag with sheriffs, with some saying ‘but they chose to behave in that way’,” says Rutherford, a solicitor at the law firm Rutherford Sheridan. “There is an element of choice there, but these are not bad people – something bad has happened to them and they have gone on to do a bad thing. That’s often lost when we try to explain it to the sheriff.”

This is frustrating, she says, because the evidence shows that even small acts on the part of the judiciary can make a huge impact on an individual’s life; if those were to be compounded across the system the overall effect would be profound. Recalling one client who went on to accumulate “a terrible record” after being both the victim of a sexual assault and witness to a sexual assault at the age of 14, Rutherford says the woman’s life was transformed when one sheriff took that into account and gave her a non-custodial sentence.

“She was delighted – she would have lost her job and her tenancy otherwise – and went to see her social worker wanting to do more work,” she says. “We spend millions a year on prisons at the moment. If that money could be spent helping people, it wouldn’t need to be spent on jails because the jails would be empty.”

Bone, who completed a law degree and set up Kilmarnock-based Tony Bone Legal after a long career as a police detective, agrees, saying he became convinced that the current system is not fit for purpose after ending his policing career with a two-year stint in Police Scotland’s violence reduction unit (VRU).

He says that in the early part of his career he was part of a “service of last resort that turned up at a time of crisis”, but that working in the VRU, which runs a number of projects aimed at addressing trauma rather than simply punishing violence, “crystalised the doubts in my mind about what I’d been doing all my police service”. 

“When I first started with the police then was later lucky enough to be promoted back into that same area I discovered I was dealing with the next generation of the same families,” he says. “Millions of pounds were being spent on public services but nothing had changed. Crime and disorder is a symptom of what’s going on underneath and if we don’t take a public health approach we will be firefighting this forever.”

Outside the justice system there is a growing awareness about the impact that childhood trauma and ACEs can have on people’s lives, with the Scottish Government five years ago establishing a National Trauma Training Programme to “support the skills and knowledge of the whole Scottish workforce”. In its recently published programme for government, the government announced that that scheme is to be extended by two years to 2023 while “an understanding of trauma” will be used to inform the development of its impending mental health quality standards. The government also said that “the standard of support across public and third sector organisations” needs to be raised, but made no specific mention of how the justice system could benefit from a trauma-informed approach.

Kirsty Giles, a project manager at the VRU, believes that is an opportunity missed. Much of the work the unit does focuses on helping people who have been in and out of prison come to terms with their own pasts, educating them on how their early experiences will have shaped the way they behave and using peer mentors to help guide them down a different path. The VRU has been so successful its model has been replicated in Australia, England and Norway, but Giles says the instinct to punish rather than understand remains prevalent within the Scottish justice system.

“A lot of these journeys lead back to adversity in childhood, but if people are full of shame and hatred you’ll never punish them into another way of being,” she says. “We’re not going to punish our way out if this – if we were, we would have the best rehabilitation system on the planet rather than the highest prison population.”

There are signs that those at the top of the justice system are willing to accept that some form of change is needed. Earlier this month, the Scottish Sentencing Council recommended that trauma and ACEs should be taken into account when sentencing people up to the age of 25, with Lord Justice Clerk Lady Dorrian saying that judges should place greater emphasis on the “personal circumstances of the young person and their intellectual and emotional maturity”.

The Judicial Institute for Scotland, which says it has already “provided information to judges about the impact of trauma and adverse childhood experiences both in relation to sentencing and the treatment of vulnerable witnesses”, says further training will be offered to the judiciary both this year and next.

Smith says this is “massive” and offers a “glimmer of hope” for the future, though notes that changes to the sentencing guidelines, which are yet to come before High Court judges for approval, should go further. “What about the 50-year-old heroin addict who was sexually abused as a child?” he asks. Rod Anderson, peer adviser network coordinator at the charity St Giles Trust, which works with the VRU on projects that help people like David turn adverse past experiences into positive futures, agrees. 

“Why cut off at 25?” Anderson says. “Do people over 25 not suffer from ACEs? Do they go away? We know that they don’t, they sit behind the behaviour of almost every person I have ever met who has been an addict or prisoner.”

When the Scottish Sentencing Council consulted on the changes it wants to bring in, Lady Dorrian said the focus was on younger offenders because their immaturity “may reduce their culpability for the offence” and that they would have a “greater capacity for change” through rehabilitation than an older person.

David is living proof that that is not the case. He took it upon himself to start attending Narcotics Anonymous after being released from a long prison sentence in his mid-40s and, in addition to volunteering for the youth charity Children’s Wood, is working towards a mentoring qualification with the help of St Giles Trust and the VRU. While once his life was dominated by violence, addiction and hopelessness, his ambition now is to get a job at Polmont Young Offenders Institute “helping young offenders by showing them that there is a way out”.

He is one of many people St Giles Trust has watched flourish since it began running programmes in Scotland last year. Anderson is convinced that if the justice system shifted its focus away from retribution and instead gave offenders the opportunity to address what lies behind their offending the majority would be successfully rehabilitated too.

“For people who have lived through adversity this is a big deal and we’ve had some great results,” he says. “About half the candidates who joined in our first cohort have moved into employment, most in the same place they did their placements. We predominantly place people [with organisations focused on] criminal justice, addiction and recovery, and youth work. We place people where they are interested in being and usually their interest is where their lived experience is.”

For Giles, the knock-on positive impact of making that available to everybody that enters the criminal justice system would be transformational. “Hurt people, hurt people,” she explains, “but healed people want to heal.”

 

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