Interview: Michael Matheson on an evidence-led approach to justice

Justice secretary Michael Matheson - Image credit: David Anderson/Holyrood

At first glance, looking through the glass wall, it appears that Michael Matheson is sitting alone in his office with his head in his hands in despair.

However, on closer inspection, he is just very intently reading some documents on the table in front of him. Silently focused.

Quietly spoken and unassuming, the current justice secretary is a very different character to his predecessor.

Whereas Kenny MacAskill has often been a controversial and outspoken figure in the media, both during his time as justice secretary and in the two years since, Michael Matheson, on the other hand, gives the impression of preferring to get on quietly with things outside of the limelight, saying what needs to be said, but not going out of his way to get attention.

What has it been like following on from MacAskill? And has he consciously taken a different approach?

“Well, everyone takes their own approach when they come into a portfolio,” Matheson responds, “and given that I’ve got a health background professionally and I was also a health minister, I’m much more keen on looking at evidence-based practice and outcomes that can be achieved by using evidence-based practice.

“And that’s an approach that I’ve sought to bring into the justice portfolio, [which] was to look at trying to make sure that the approaches which we were taking, whether it be in penal policy, and whether it be around looking at changing the way our courts are operating as well, is what does the evidence tell us, what’s a more effective approach in achieving better outcomes, both for victims and individuals and the way in which we actually operate our penal policy.”

“It’s probably fair to say that I’m a quieter person, but that’s just me as a person, that’s just me as an individual,” he adds.

Although no stranger to the justice brief before taking over from MacAskill in November 2014, having been shadow deputy minister for justice from 1999 to 2004 and serving on various iterations of the Justice Committee for nearly seven years, unlike MacAskill, who was a solicitor before he became an MSP, Matheson was an occupational therapist, hence the reference to his health background.

So is it an advantage in some ways that he’s not a lawyer, to have come in with a fresh eye?

“I think there’s always a benefit in having someone who isn’t necessarily a person who’s wedded to particular positions within the justice system because of their own professional experience – and I’m not for one moment saying that that was what Kenny did. I think the level of reform that Kenny as justice secretary took through in this portfolio has been very significant and the justice system’s in a better place as a result of many of those reforms – but I no doubt bring a different approach to it and I look at things in a different way because I’m not steeped in a legal background.”

One aspect of being from outside the profession, Matheson says, is he often finds himself questioning why things are done in a certain way simply because that’s the way they always have been.

His vision for reform is one in which the system is centred on the needs of people who come into contact with it, particularly victims.

He explains: “So, for example, again, if I draw on my experience in health, a big challenge around primary care is that the patient has to move around the system, and one of the changes we need to make, I believe, is to make sure that the system moves around the patient more.

“Well, I think it’s the same in justice. Too often, victims are pushed around the justice system. What we need to do is get a system that’s much more focused on moving around individuals and rather than it being for the benefit of ‘that’s how we’ve always done things’, it should be about ‘well, actually, in 21st century Scotland, should we be doing it a better way for those who are coming into contact with our justice system?’ and to identify models and approaches that can assist in achieving that more.”

Asked what it would look like in practice to make the justice system more victim centred, he mentions as an example that he finds it “unacceptable” that children and young people can still be cross-examined in Scottish courts.

“We’ve made significant progress in improving things for victims within our justice system, but there’s a significant way we still have to go and the way in which we still treat children within our justice system, I believe, is non-acceptable, that even with protective measures they can still find themselves being subject to very difficult circumstances because of the adversarial nature of our court system.”

He is looking at alternatives from other countries, particularly the ‘barnehus’ (children’s house) model that is used in Norway, which allows for children who have been victims of a crime to be interviewed away from the court in a less intimidating place, removing the need for the child to go to court and be cross-examined altogether.

“I think we need to take a much more radical approach to how we’re dealing with these matters,” Matheson says. “What that means is taking a much more child-focused approach to it.

“What’s in the best interests of making sure we get the necessary evidence from this child, but at the same time also recognising the vulnerability of that child and the fact that they’ve been traumatised as a result of the crime which they’ve experienced.”

In terms of other reforms on the agenda, one of the stated aims of the Scottish Government is to move away from short sentences into more community sentences and non-custodial alternatives, but in 2015/16 30 per cent of custodial sentences were still sentences of up to three months. Have they just not got very far along this route?

Matheson points out that the policy on this is not new and there was debate around reducing the female prison population and reducing the prison population overall when he first came into parliament in 1999.

But, he says, despite the efforts of successive governments and justice ministers they haven’t been able yet to create the level of change he thinks is necessary.

Instead, over that time the female prison population has almost doubled and the male population has also increased.

Scotland currently has the second highest per capita prison population in Western Europe, after England and Wales, something Matheson is unsatisfied with. “[T]he present levels are clearly not reflective of a progressive penal policy and approach to tackling offending behaviour,” he says.

However, he maintains that the direction of travel is right and that the number of people who are going on to community payback orders has increased over the last six years so they’re now at their highest level and that during that time reoffending rates have dropped to a 17-year low.

He’s keen, too, to highlight that this is not about taking a ‘soft’ approach.

“This is not about looking at penal policy through the lens of being soft or tough on crime; it’s about making the smart choices,” he says.

“What does the evidence tell us is more effective in reducing the risks of individuals reoffending and to be able to put something back into their community?

“And the evidence points towards community-based disposals as being more effective than using short-term prison sentences.

“Short-term prison sentences, you’re almost double, you’re twice as likely if you’ve been in a short-term prison sentence to come out and reoffend as someone who’s been through a community disposal.

“So the challenge is: what will promote greater community safety? Well, the evidence shows us that community disposals will actually help to support greater community safety because it reduces the risk of them reoffending.”

He notes, however, that there is also an increasing number of people who, when they do go to prison, are going for longer, but points out that the presumption against short prison sentences of three months or less is only a presumption and it’s up to judges to decide whether a person should go to prison.

“And I’m very clear, individuals that need to go to jail, that’s where they should go,” says Matheson.

“But where we can identify a more suitable alternative approach for an individual to reduce the risk of them reoffending, then we should be looking at that approach as well.”

Matheson says that in relation to youth offending a change in policy is already working, with Polmont Young Offenders’ Institution once “creaking at the seams” now “lying half empty” because of an improved approach, with work across the whole system on early intervention, diverting young people away from the criminal justice system at an early age and having services moving around them to address the issues that may lead them to come into contact with the system.

“It’s proving to be effective and successful,” says Matheson.

“What we now want to do, and what I want to do, is to take some of the learning from that and to use that at an adult level as well within our adult prison population.

“How can we make sure we capitalise on that and start to see that within our adult prison population?

“I’ve been very clear since I came into this portfolio, penal reform is a clear priority for me – the decision not to go ahead with the new female prison wasn’t just about bricks and mortar, it was also about sending out a very strong signal about us changing our approach to prison policy.

“And the new five community units that we’ll have for women are about changing that, being much more trauma focused, much more rehabilitation focused to these individuals to reduce the risk of them committing offences again in the future. So it’s about fundamentally changing our approach.

“And I suspect if we were to have a debate today about the possibility of building a new large female prison, there would be outright hostility towards it, because I think in the last year and half, already, we have made significant progress but there’s a still a lot more to do.”

Some of this will include the continued expansion of community payback orders and greater use of electronic tagging operating more effectively with other support services, he says.

The Scottish Government will also set out in the coming months where it thinks we should be going with the presumption against short prison sentences with a view to increasing it above the three-month threshold.

Matheson believes that a combination of all of these factors will assist them in taking “a much more effective evidence-based approach” to dealing with people when they come into contact with the justice system and help to support a reduction in the prison population.

The justice system doesn’t exist in isolation and experiences of crime can relate to inequalities. The vast majority of people who experience crime come from Scotland’s more deprived communities, but so too do those who are more likely to be involved in crime.

So improvements in educational attainment, employment opportunities are all key factors in helping to reduce the risk of individuals getting involved in criminal activity in the first place and of reoffending.

One of the things he is considering is reforming the Rehabilitation of Offenders Act, because that can have an impact on someone’s chances of getting a job in the future, and getting into employment after offending is one of the key ways to reduce the risk of reoffending.

“So what we need to ensure is we’re taking a whole system approach to how we deliver our approach to justice, making sure that we are reducing the risks of individuals coming into contact with the justice system, diverting them away where we can achieve that effectively.

“When they do come into it, making sure we’re taking an evidence-based approach to what is the best way in which to tackle their offending behaviour and to reduce the risk of them going on to commit offences in the future.”

Another area he’s keen to reform is the numbers held on remand.

“We need to make progress in reducing the number of people we have on remand in our prison system at any given time, because we know that someone who ends up on remand, there is less than half of them will end up receiving a custodial sentence once they have been through the court process.

“However, they could be on remand, they could have lost their job, they could have lost their house and their children may have been taken into care as a result of all of these things. We know all three of those things are absolutely key in reducing the risk of people going on to offend again.

“So if we can reduce the numbers of people who end up on remand unnecessarily, while supporting them in employment if they are, if they’re in housing and in order to go through the trial process, and if they get a custodial sentence at the end of that, that’s a matter for the courts, but where they don’t, trying to maintain these factors, because we know that they reduce the risk of them going on to commit offences in the future.”

With this in mind, there is testing going on in three sheriffdoms using improvement methodology – “again, something which I’ve brought from my experience in health” – to explore ways to reduce the use of remand   using more robust bail conditions, with a view to rolling out changes nationally.

The SNP government has been keen to highlight the cross-cutting nature of all its portfolio responsibilities and it is an approach that former health minister Michael Matheson has quietly been doing as he looks after the health of the justice system.