Protecting the vulnerable on both sides of the criminal divide

Balancing justice - Image credit: Holyrood

“As we reform the justice system, it remains vital that we improve the support we give to the victims of crime.

“We are already taking important steps to do that through, for example, the Vulnerable Witnesses Bill that we introduced last year.

“This year we will go further. I am announcing today a major package of reforms that will better protect victims in the criminal justice system,” said Nicola Sturgeon as she presented the Programme for Government last month.

There then followed a series of announcements about changes to the criminal justice system to make it more victim centred.

These included working with Victim Support Scotland (VSS) to try to eliminate the need for victims to retell their stories multiple times, an expansion of the range of offences where the victim has a right to make an impact statement to court, improved information and support for victims and families when prisoners are released, and a consultation on greater transparency in the parole system.

The Scottish Government also announced an extra £1.1m to help sexual offences come to court more quickly and £2m over three years to support those affected by rape and sexual assault, with £1.5m of it to go to rape crisis centres.

Following the passing of the Domestic Abuse Act, Sturgeon also announced that the Scottish Government will consult on introducing new protective orders that would bar perpetrators from victims’ homes.

She also repeated a previous announcement about the creation of a new support service for families who have been bereaved by murder or culpable homicide, which is backed by £13.8m funding.

Victim Support Scotland will be running the homicide support service and working on the victim-centred system to avoid the traumatic repetition of the same story.

The charity is co-producing the support service with families who have been bereaved by murder and other organisations who provide specialist support to those bereaved by homicide.

It intends to have the service in place from April 2019. A dedicated worker will support bereaved families and link them to other specialist services as appropriate.

Kate Wallace, chief executive of Victim Support Scotland, told Holyrood that the measures to make the justice system more victim focused were “welcome”, but when asked what more she would like to see, she suggested a more widespread change in thinking was needed too.

“I would like to see a culture change across the whole criminal justice system so that everyone involved in its delivery is more aware of the experiences of victims,” she said.

“I would like them to understand the impact that being affected by crime has on people’s lives so that they have a more compassionate and understanding approach to their criminal justice roles.

“There are many people who have this approach and I would like to see this happening more.”

Wallace said there was more to be done and that VSS would continue to push for better support for anyone affected by crime.

They particularly want to make sure that better support is put in place for those whose needs are currently unmet, which she said includes victims of cybercrime, children and young people and hate crime victims.

“We are hopeful that the new victims’ taskforce will garner the support of organisations involved in the criminal justice system and that this will help drive a change in culture across the criminal justice sector,” she told Holyrood.

Justice Secretary Humza Yousaf announced the creation of a victims’ task force at the recent SNP conference.

The new body, to be formed later this year, will be made up of senior members of the justice system as well as representatives from bodies representing victims of crime and it will hear directly from victims.

But some have said this is not enough and called for the creation of a victims’ commissioner.

Wallace has welcomed Yousaf’s announcement and said she looked forward to playing an active role in it to bring about “meaningful change” in how victims and witnesses are treated by the criminal justice system.

However, regarding a victims’ commissioner, she suggested VSS would want to “carefully consider” any proposals to ensure there were no unintended consequences such as diverting resources away from services to help victims and witnesses of crime.

The Vulnerable Witnesses Bill, which is currently making its way through parliament, is intended to bring about further changes.

The bill aims to allow vulnerable witnesses, such as children and those who have experienced sex crimes or domestic abuse, to give pre-recorded evidence away from court ahead of the trial so they don’t experience the trauma of being cross-examined in a courtroom.

The Scottish Government is also looking at the Nordic barnahus model, which allows children to be interviewed in an unthreatening, homelike setting.

In addition, VSS recently established a short life working group with the Scottish Prison Service to assist with any improvements being planned in relation to their Victim Notification Scheme.

It is hopeful that the Scottish Parole Board will join this group so that they can take forward improvements such as those called for via Michelle’s Law, which was set up in the name of Michelle Stewart, who was killed by her ex-boyfriend, after her killer was granted temporary release into the community just nine years into his sentence.

The campaign calls for greater rights for victims of crime.

But on the other hand, it is acknowledged there are better ways to support offenders.

Given that a lot of offending behaviour is driven or exacerbated by other issues, including addictions, mental health problems and chaotic, traumatic life experiences, any measures that can aid rehabilitation and prevent further offending, in turn minimises the creation of more victims of crime.

The Management of Offenders Bill, for example, will allow an expansion of tagging and reduce the amount of time that a criminal record will have to be disclosed, which, along with a presumption against short-term sentences of less than a year, is hoped will help to aid rehabilitation.

However, there are concerns that Scotland will be seen as a soft touch and that community or treatment-based sentences let people off too lightly.

Indeed, the bill has been held up as the Scottish Parliament’s Justice Committee awaits reports from the HMIPS and HMICS into the case of James Wright, who murdered Craig McClelland in Paisley in July 2017 after breaching a home detention curfew, before it completes its stage one report on the legislation.

The issue of whether more punitive measures should be used has come up repeatedly and arose again during a recent BBC Question Time at the Scottish Parliament, where Aberdeen MP Ross Thomson called for harder measures to tackle drug use and was challenged by Stirling University criminologist Dr Hannah Graham.

Graham and colleagues had in fact just completed a review of what is being called the Aberdeen Problem Solving Approach (PSA), a pilot that has been running since November 2015 for women and August 2016 for young men.

It works with people with complex needs, and a history of repeat low-level offending, to combine the power of the court to impose a sentence with the offer of rehabilitative opportunities to address the underlying causes of their offending.

The review, carried out jointly by Ipsos MORI Scotland and the Scottish Centre for Crime and Justice Research/University of Stirling, found that participants self-reported reduced reoffending, reduced substance use, improved housing situations, improved mental health and wellbeing, and improved social skills and relationships.

Professionals also concurred with these outcomes, although they noted that the PSA was less successful for those with more entrenched problems.

Overall, the reviewers said the approach “shows promise” and recommended other parts of Scotland give it consideration.

As part of a drive to raise public awareness and understanding of community sentencing, Community Justice Scotland recently launched a campaign called Second Chancers, which aims to challenge perceptions of community sentences and features people who have been in the criminal justice system talking about their experiences and how they turned their lives around.

One of those, Malky, says: “Community service was harder than prison.

“Prison was quite easy, to be honest, just having that structure.

“I never had that before, never had that sort of boundaries from a young age, and I had a bed, I had somewhere to sleep that was mine.

“And it was probably the most peaceful five months of my life"

He talked about the challenge of being outside prison and having to negotiate housing and benefits, a common circumstance.

Indeed, last week, following freedom of information requests, the Scottish Liberal Democrats published figures showing that in the last two years, local authorities received 3,814 homeless applications from people identified as leaving prison, suggesting that around 20 per cent of those released become homeless.

This is not just a concern for those convicted, but also for those on remand, who have not, and may not be, convicted.

Despite the intention that remand is only used where the accused is considered to pose a risk to the public or is thought to be a flight risk, those on remand still make up 15.4 per cent of prisoners, with many afterwards not receiving custodial sentences.

Concerns have been raised repeatedly about levels of remand in Scotland and the effect on the individual and their family of even a short period in custody prior to trial, most recently, by the outgoing Chief Inspector of Prisons, David Strang, in his final report published in September.

He said: “Many of the people held on remand do not receive a custodial sentence. In some cases, it appears that remand is used as a heavy-handed way to ensure that the accused attends court for their trial.”

The Scottish Parliament’s Justice Committee carried out an inquiry into remand in Scotland earlier this year. Its report was published in June and a debate was held in the Scottish Parliament just before the autumn recess.

Evidence given to the committee found that remand can result in the loss of housing, employment, benefits and family life.

But the key issue raised was that while the number of prisoners on remand in Scotland seems high, the lack of data on why people were remanded rather than bailed prevents a discussion of the issues or measures being in place that could divert people from remand in some circumstances.

Justice Committee convener Margaret Mitchell told Holyrood: “The committee was quite clear that if we’ve to try and understand why remand appears to be higher – we know it fluctuates sometimes, but the general opinion is, the remand levels are too high – if we are to understand that, then we must know the reasons that the judges give for refusing bail.”

She said one case study looked at 60 cases in a sheriff court and then started to break down how many were for a single reason. Five gave a single reason for refusing it, and of those five cases, three were no fixed abode.

She continued: “Of course, the committee is fully cognisant that [judges have] got all the facts at their fingertips and they will make a reasoned judgment to refuse [bail] or otherwise, but if it’s because of something like they’ve no alternative, no fixed abode, then that’s something that can be fixed.”

Mitchell said it would not be possible to get “a meaningful analysis” from looking at the currently available statistics of how many people are on remand.

She said: “I don’t doubt the statistics are there, but what we were saying, very powerfully, I think, in the chamber [during the debate], we were rebutting the idea there’s enough there, saying we need a new system, like the proforma and that could be worked up so that we’re really beginning to get to the heart of what needs to be done.”

Some of the alternatives to remand include increasing supervised bail, which the Scottish Government is looking at, and electronic monitoring.

But unfortunately, although an expansion of electronic monitoring is part of the Management of Offenders Bill, this only covers those who have been convicted, so to be able to use electronic monitoring as an alternative for remand, new legislation would be needed.

Mitchell explained: “We heard from a lot of people electronic monitoring would be good… as long as the resources were there and whatever they were offending or they were charged with was being looked at, they could be out in the community.

“But we heard a lot of evidence [too] about remand and how it would work quite well there and then we were told quite clearly, by the Law Society and others, that this is the Management of Offenders Bill and people on remand are innocent until proven guilty, they are not offenders.”

A new opportunity this year, for all the Scottish Parliament committees, is to undertake pre-budget scrutiny and in this, the Justice Committee is following the money on various actions it has called for – or the Scottish Government has promised – and it is taking evidence from witnesses and calling for the budget to reflect priorities, including alternatives to remand.

Mitchell says: “Change that budget, put that into something that’s going to work better for the remanded person, give them some support and stop them appearing back into a cycle of being on remand… because sometimes people go into remand, they meet people, it’s a cycle of getting into further offences.

“So if you can do something now that gives them the appropriate support, whether that’s bail supervision, whether that’s electronic monitoring, whether that’s giving them an address, then that makes sense for everyone; it’s a win-win situation.

“So we’re not just leaving it with the debate, we’re then following it up when we’re looking at our budget scrutiny – it’s like a second bite of the cherry – and really saying, ‘Why not put it in there?’

“You know, [it’s been] ten years now, everyone’s signed up to this, we’ve got an opportunity to do something and we know pretty well what to do.

“If you’re still unsure, then let’s do the proforma thing and get the reasons and sort of nail down why bail isn’t being granted when sometimes it perhaps could be.”

Clearly, in the criminal justice system just now, there seems to be a dilemma: between caring for victims in a much more focused way while recognising and finding better ways to work with offenders to challenge their behaviours and achieve a societal ‘win-win’.

It’s a question of balance. Can that circle be squared? Government initiatives and funding are showing a willingness to try. But will it remain a perennial debate?