The year in justice: a question of rights

After several years where problems with Police Scotland have taken the oxygen away from other areas of justice, there will have been relief all round that attention has now moved onto reform in other parts of the justice system.

But in a year of contentious justice policy reforms and proposals, balancing the rights of victims with the need to rehabilitate offenders has proved to be a particular area of challenge.

Police Scotland has made progress in its implementation of technology, presenting its £298m IT plan to the Scottish Police Authority in September.

Since then the rollout of handheld devices to officers has begun, which is expected to bring greater efficiencies, with police not now having to return to base to input data or access systems.

Police Scotland Deputy Chief Constable Malcolm Graham told Holyrood that lessons had been learned from previous IT failures and the force would be taking a more “iterative approach” in future.

However, Audit Scotland raised concerns about a “lack of clarity” over funding of the £298m plan, while separately, the Scottish Human Rights Commission and MSPs on the Scottish Parliament’s policing committee raised concerns about the rollout of ‘cyber kiosks’, devices that can scan mobile phones for evidence, without sufficient consideration of human rights and the legal basis for their use.

This led to a halt in the rollout of devices that had already been purchased. Meanwhile, a report to the Scottish Police Authority revealed a £56.2m gap between the proposed capital spending and Police Scotland funding.

But the contentious reform of railway policing has been shelved in favour of joint working between the Scottish Police Authority and British Transport Police.

Referred to as a “viable medium-term option” by Justice Secretary Humza Yousaf, it was called a “humiliating U-turn” by Scottish Labour, whose then justice spokesperson, Daniel Johnson, called full integration a “dead parrot policy”.

Meanwhile, plans to reduce the number of prisoners in Scottish prisons from one of the highest in Europe – and currently suffering from overcrowding – through community sentences, took a step back, in response to the murder of Craig McClelland, who was killed by James Wright while Wright was unlawfully at large after breaching the terms of his home-detention curfew (HDC).

Following HMIPS and HMICS reports outlining a number of changes needed to procedures, by both the police and the Scottish Prison Service, the number of prisoners on HDC dropped from around 300 to 60.

However, MSPs also passed legislation approving a presumption against short-term prison sentences of less than a year, which, if followed by the courts, may move more prisoners who would have served shorter sentences into the community.

Similarly, the passing of the Management of Offenders Bill, which expands the use of electronic tagging and reduces the length of time that certain convictions need to be disclosed, is intended to offer more alternatives to prison and to aid rehabilitation.

But other concerns have been raised about Scottish prisons, including delays to accessing rehabilitation programmes and the number of suicides.

The treatment of young offenders was questioned following the suicide of William Lindsay, a 16-year-old in prison for possession of a knife, while the parents of Katie Allen, who took her own life three months into a 16-month sentence in Polmont in June 2018, called the level of prison deaths “nothing short of a massacre”.

However, the rights and needs of prisoners have to be weighed against those of victims and concerns were raised about the impact of the move towards more community-based sentences and early release of prisoners on victims and their safety.

Justice Committee to investigate overcrowding in Scottish prisons

This comes as the Scottish Government has committed to making the criminal justice system more victim centred. In October it announced that it would set up a victims’ taskforce to feed into this change.

Justice Secretary Yousaf said: “Significant progress has been made in recent years to enhance victims’ rights and provide funding for appropriate support, while criminal justice agencies have set robust standards of service for victims and witnesses. However, we must go further to ensure the justice system does not exacerbate trauma and distress.”

One such improvement was the passing in of the Vulnerable Witnesses Bill in May, which will allow children who have been victims or witnesses of crime to pre-record evidence before the trial to avoid the trauma of being cross-examined in court.

The Scottish Government also gave £2m to the Scottish Courts and Tribunals Service to create new hearings suites for this.

Community Safety Minister Ash Denham said: “This is a milestone in Scotland’s journey to protect children as they interact with the justice system, and a key part of our wider work to strengthen support for victims and witnesses.”

Children, too, will no longer be considered criminals from the age of eight, after MSPs voted to raise the age of criminal responsibly to 12, while the Scottish Government indicated it may consider a higher threshold in the future.

And while the criminalisation of smacking was also contentious, with a majority of MSPs in favour of a ban, John Finnie’s member’s bill was passed easily with the backing of four out of the five parties.

Still unresolved, however, is reform of legal aid and regulation of the legal services profession, as well as possible changes to hate crime legislation.

Following a review of legal aid in 2018, the Scottish Government launched a consultation just before the summer recess on ways to make the system simpler to access.

However, the real issue that has seen large numbers of solicitors withdraw from legal aid work over the last few years is funding, and that is not included in the current consultation.

The reform of legal services is also still under consideration, with the government promising a consultation on changes following the Roberton review, with an improvement to the system of complaints handling to be undertaken in the short term.

Published in October 2018, NHS 24 chair Esther Roberton recommended creating a single regulator for the legal profession in Scotland, meaning the Faculty of Advocates and the Law Society of Scotland would lose their regulatory powers.

But resolution will not be easy, with the recommendation to create a new regulatory body creating polarised views.

Following the publication of the Bracadale review of hate crime legislation in May 2018, which recommended, among other things, introducing new statutory aggravations relating to gender, age and sectarianism, the Scottish Government launched a consultation on changes including creating a new crime of misogynistic harassment, age and specific criminalisation of sectarianism.

Concerns have been raised about the impact on free speech, though, while the responses did not provide much clarity, with no consensus about what form any new legislation should take and if indeed it is needed at all.

Undoubtedly, further discussion, and possibly consultation, will take place on all of the above, with the key challenge balancing the rights and wishes of different groups while undertaking reform where it is needed.