Warm words but no action: the fate of restorative justice in Scotland?

Steve Kirkwood, is a lecturer in social work at the University of Edinburgh. Mary Munro is managing editor of Scottish Justice Matters and visiting senior fellow at the University of Strathclyde.

On the face of it there has been no shortage of political recognition of restorative justice in Scotland. The problem is implementation. Former Justice Secretary, Kenny Macaskill, writes that “Restorative justice is something that every Justice Secretary has supported. I did and both my successor and my predecessors likewise” (MacAskill, 2017). Similarly, in a recent tweet, Dr Richard Simpson records that “as Labour Deputy Justice Minister Scot Parl. I supported work on restorative Justice nice to be proved right. Need much more” (http://bit.ly/2ooC6zz).

However, there are still too few services offering restorative justice to victims and offenders. Those that exist tend to be for younger people who have committed ‘lower tariff’ offences: and some activity that is labelled ‘restorative justice’, is not.

Scottish administrations have tended to duck their responsibilities in relation to restorative justice provision under successive relevant EU directives on services to victims. The Victims and Witnesses Act 2014 would have ignored it completely if it had not been for the advocacy work of the Restorative Justice Forum (Scotland). Consequential statutory guidance on access to and delivery of restorative justice sevices is expected this summer. One of the legacies of this neglect has been that there few practitioners trained to deliver quality restorative justice services in Scotland. Local courses are coming on stream in 2017 to begin to address this capacity trap, as you will see from notices from Sacro (Khalil) and the University of Strathclyde.

It is worth repeating that the relative neglect in Scotland is rather odd given developments of restorative justice in other parts of the UK, across Europe and in jurisdictions across the world. Why is this so and what can be done about it?

Part of the problem is that there are misconceptions about restorative justice that tend to dominate a presumed ‘knowledge’ of the topic. False knowledge is even more dangerous than ignorance in that it closes down on evidenced based innovation. Here are some examples we have often heard across Scotland. Links are to the articles in the special issue of the SJM.

“It is only suitable for diversion / low tariff / young offenders”.

No.

As Joanna Shapland indicates, evidence suggests that restorative justice is perhaps most helpful to both victim and offender following serious crime. Furthermore, thinking of restorative justice predominantly in terms of diversion from court for young people or adults, misses the point that as a potentially victim led practice, it should be offered in parallel with rather in place of, the criminal justice system. It is perfectly possible for a restorative process to run after conviction, sentence and perhaps during, a prison term, if that timing is best for the person harmed. Writing as a Sheriff, David Mackie sees there being little problem in taking communicative restorative processes seriously as part of community orders.

The range of possible applications is also beyond that commonly considered, as we see in Hazel Croall‘s article on corporate crime, Jenny Johnstone and Ian McDonough’s reflections on historic child abuse, Rania Hamid on thinking about responses to hate crime, Estelle Zinsstag’s note on sexual violence and the Bill Whyte and Niall Kearney‘s work on the RiSC (Restoration in Serious Crime) project.

Paradoxically, as Stewart Simpson and David Orr suggest, even in youth justice, restorative practices seem to have declined in recent years as practitioners negotiate the complex but potentially creative policy landscape and try to understand how restorative justice might find a place within it.

“It doesn’t work”.

Yes it can.

Part of the problem locally seems to be that an early evaluation by of restorative services for young people in Glasgow was reported as being equivocal in its impact on young offenders, and this was widely reported, incorrectly, as a finding that restorative justice did not work (Dutton and Whyte, 2007). It is sometimes said that the evidence on restorative justice was “a mile wide but an inch deep”. Although the quality of research and evaluations on any justice intervention varies considerably, it must be stressed that we now have an increasing body of analysis that suggests both where and how restorative justice is helpful, and also in some cases, where it is not (Strang and Sherman, 2015).

Having said that, there is a risk that ‘working’ is only understood in terms of the impact for change on the part of the person responsible for the harm (the offender) perhaps as a boost in the desistance process. There is evidence that this can happen, although the interaction between behaviour change and participation in a restorative process is likely to be complex.

So what works for victims? Restorative justice works for many victims. Restorative justice should be thought of as a process that will be helpful to many people harmed and should be assessed on that basis, albeit that this is trickier to capture statistically. This is why we invited Catherine Bisset to think about how logic models of evaluation might be a useful tool to understand processes and outcomes.

“It is the same as mediation”.

No it is not.

Although the language of mediation is used in some European jurisdictions, the practice of restorative justice assumes that there is no moral ‘level playing field’ between the people involved. It is axiomatic that the person responsible for the harm accepts it, and that there are no matters of contention or doubt as to the evidence for culpability that carry forward into the restorative process.

“It is the same as reparation, or community payback, or victim awareness courses”.

No it is not.

Restorative justice is about a potentially healing communication between the person responsible for harm and the person who has been harmed by that same offence, and possibly the wider community. Some form of reparation may be an agreed outcome of the restorative process but this may be less important to the person harmed than the opportunity to have their questions answered and undertakings by the offender to take steps to change their behaviour.

Moreover, often the forms of ‘reparative justice’ used in Scotland, such as unpaid work within a community payback order, have little or no connection with the original offence, and the direct victims of crime are unlikely to have a say in what they should involve. This means that the likelihood that these activities will increase people’s understanding regarding the impact of their crimes, feel as if they constitute making amends, or are experienced by victims of crime as genuine forms of restitution, is extremely limited.

It is interesting to reflect that the four Rs of criminal justice social work in Scotland, restrictions, rehabilitation, reparation and rehabilitation, do not include restoration. Such services may work on behalf of victims of crime, in the sense of trying support those who commit crime to make amends, to protect the public, and ultimately to prevent further victims of crime, but they rarely work with victims of crime. The consideration of restorative practices in relation to criminal justice social work has a lot of scope to enhance its transformative potential as well as likelihood that victims of crime feel that such work is really being done in their interests. At the same time, as Fergus McNeill outlines, there are connections between desistance and restorative justice in theory and practice.

“It is about apology and forgiveness”.

Not necessarily.

The decision to forgive is a highly personal matter. The person responsible may apologise as part of the restorative encounter but there is no reciprocal expectation that the person harmed should respond by ‘forgiving’.

Just as our 2017 programme of dialogues and then our final deliberative conference in the autumn are open to all and any ideas as to how restorative justice might be developed in Scotland, the articles in this issue differ in their vision as to its place alongside or embedded in the system, and arrangements for funding, delivery, collaboration. We are not being presciptive here not least because it would be arrogant for a handful of (mainly) academics to presume what would work on the ground in local communities in local circumstances (see Webb) including where appropriate, our prisons. It is the informed dynamic creativity, imagination and wish to make things better on the part of many people across Scotland, that will take this thinking forward and translate evidence based restorative justice into actions best suited to this jurisdiction.

This issue of the the SJM has been supported by the Scottish Universities Insight Institute (SUII) ‘learning from other places’ programme of RJ dialogues led by us over 2017. The programme is a partnership between Edinburgh and Strathclyde universities, supported by colleagues from the Restorative Justice Forum (Scotland). This post is a version of our editorial.

References

Dutton K and Whyte B (2006) Implementing Restorative justice within an Integrated Welfare System: The Evaluation of Glasgow’s Restorative Justice Service CJSW Briefing Paper 8 http://www.restorativejusticescotland.org.uk/CJSWDC_Glasgow_YJ_Brief__2006_.pdf
MacAskill K (2017) ‘Is restorative justice languishing on the margins in Scotland? Scottish Justice Matters 5:1, 19.http://scottishjusticematters.com/wp-content/uploads/RJ-Languishing-in-Scotland-SJM_5-1_April2017-10.pdf
Scottish Universities Insight Institute (2017) Learning from other places: restorative justice http://www.scottishinsight.ac.uk/Programmes/Learningfromotherplaces/RestorativeJustice.aspx
Strang H and Sherman L et al (2015) ‘Are Restorative Justice Conferences Effective in Reducing Repeat Offending? Findings from a Campbell Systematic Review’
Journal of Quantitative Criminology volume 31:1 http://link.springer.com/article/10.1007/s10940-014-9222-9

Posted in restorative justice Tagged with:

Electronic monitoring: reflections on a GPS technology test

Michael MathesonCabinet Secretary for Justice, Michael Matheson, reports on a possibly unique electronic monitoring trial of GPS technology in Scotland using the first hand experiences of volunteers.

Earlier this year almost fifty volunteers from justice organisations across the country took part in a test of the GPS equipment being considered for use in the electronic monitoring of individuals in Scotland. The trial gave people the chance to experience daily life with an electronic tag, albeit without strict curfews, and to get a peek behind the scenes to see how the technology works. It was also a chance for them to start thinking about how GPS tags could be used by the justice system.

The volunteers were fitted with a GPS tag, onto either an arm or leg, and asked to carry on with their normal daily life while electronically tagged over the course of five days. As the tag was removed, they found out how their movements had been monitored and what data had been collected.

The test also gave us the chance to ask volunteers for their opinions of electronic monitoring both before and after the test, to find out how spending time being tagged, and learning about the processes behind the scheme, might inform their views.

Tag image supplied by G4SBefore the trial some volunteers recognised electronic monitoring as a useful tool, but considered it only as an alternative to custody. Some people were worried about how others might react to them wearing a tag, whether they would jump to certain conclusions. Others, particularly those already familiar with electronic monitoring, said they felt it was ‘under-used’ in Scotland, or used as a ‘blunt instrument’, and were keen to see how incorporating GPS could expand the use of tagging in the future.

Many recognised it as a technological improvement over the current system used, particularly the volume and accuracy of data collected, and this gave them greater confidence in the use of GPS electronic monitoring as a community sentence.

Spending a few days being tagged, and seeing the information that had been gathered about their movements, gave volunteers a far greater appreciation of the accuracy of GPS technology. Many recognised it as a technological improvement over the current system used, particularly the volume and accuracy of data collected, and this gave them greater confidence in the use of GPS electronic monitoring as a community sentence.

In particular volunteers were surprised by the wealth of data the device collected and how, with proper analysis, this could be used to build a detailed picture of a person’s lifestyle. At the same time, the implications of having access to this quantity and type of data was not lost on participants. Many sought assurances that the information gathered would be stored responsibly and only made available to those who required it. These questions echo those of the Electronic Monitoring Expert Working Group, which is working to ensure that any change to the electronic monitoring service takes data collection into account.

This gave volunteers a greater appreciation of how people with more chaotic lifestyles could find it difficult to meet their sentence conditions even if their intention was to comply.

The test also got people thinking about new and positive applications for the GPS technology. Many recognised that, as a tool on its own, simply wearing a tag is not enough in itself to ensure long term desistance once that tag is removed. Volunteers felt that GPS tagging will work best within a wider package of tailored support, or supervision.

This chimes with the Scottish Government’s own approach to community justice. We believe in taking a person-centred approach to people who have offended, supporting them to address their underlying issues that cause offending and encouraging a reduction in reoffending.
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Finally we asked volunteers if there was anything they found difficult about wearing an electronic tag. Many highlighted the burden of wearing the tag and the impact on their daily lives, particularly having to regularly charge the battery. This gave volunteers a greater appreciation of how people with more chaotic lifestyles could find it difficult to meet their sentence conditions even if their intention was to comply.

Some also found that their previous fears of how people reacted to them were realised. They found themselves being treated differently by people who didn’t realise they were taking part in a test. This was a concern not just for the volunteers, but others around them – in one case a volunteer’s grandmother was ‘horrified’ by the thought people would automatically judge their grandchild because they were wearing a tag.

This was an extremely useful test of GPS electronic monitoring technology and an opportunity for others to learn more about what it is like to wear a tag and how the system works in practice.

As part of the government’s work, it helped to highlight the important factors around the introduction of GPS technology – from the practical need for support to ensure people are not being set up to fail, to the questions around how the data is collected and used, and the potential role of GPS technology as an alternative to short prison sentences.

Further reading: www.gov.scot/Topics/Justice/policies/reducing-reoffending/Electronic-Monitoring

Posted in sentencing, surveillance Tagged with: , ,

Just Like You: BME young people speak about the Scottish justice system

Louise DownieWhat is it like for a young person in the criminal justice system? What is it like for a young person from a black and minority ethnic (BME) background in the criminal justice system? Do you know?

These are some of the questions that we at Youth Community Support Agency (YCSA) have explored with a number of BME young men who were able to give their first hand experience of the criminal justice system. They have shared with us the highs, the lows, the challenges and most importantly over coming these challenges. The young men that worked on this project had received support from staff members from YCSA whilst serving a sentence and continued to work with us post-liberation. For some it was a challenge to revisit their past, for others they were keen to get a message out to other young people who are displaying risky behaviours which may lead them down a destructive path.

We looked at different ways to encourage them to do this and ended up with a whole bank of amazing contributions such as photography, poems, raps, stories and interview footage which has all been collated into a booklet and an accompanying DVD*. Now for the challenging part; finding a title. We needed something that reflected the understanding that everyone has a different story yet we all face struggles, triumphs and tough decisions in our past, present and future. The young men felt it was important to focus on the similarities rather than the differences amongst us so from this Just Like You emerged.

Just Like You invites you to experience the journey of these young men from remand, through sentencing and re-entering the community. During this journey we have encouraged these young men to recognise negatives in their life and make a change. This is what we want this project to do, make a change. We want Just Like You to be a platform for the young men to have their stories heard, for it to be used as a resource to show other young people what prison is really like and for people to recognise that change is possible on whatever scale. This can be individual change or it can be used to affect change in support organisations, in the prison service or at the root of decision making which will go on to affect these young men and their future.

For those who took part in the making of the booklet and DVD we at YCSA offer our thanks and appreciation. The courage to speak honestly of their experiences and to do so in front of a camera without practice or preparation is what gives the film its power. This is why you should listen to what these young men have to say. They are the best people to answer the question “What is it like for a young person from a black and minority ethnic (BME) background in the criminal justice system?”

Lousie Downie is a development worker with YCSA with a particular responsibility for working with young men in YOI Polmont.

*Enclosed free with print copies of the June 2016 issue of Scottish Justice Matters. Here’s a preview of the Just Like You DVD on YouTube.

YCSA logo
For more information on this project or YCSA contact us on 0141 420 6600 or enquiries@ycsa.org.uk

Posted in Young people in prison Tagged with:

Letters to the Cabinet Secretary for Justice (2)

Beth Moran receiving her prize cheque from Alan Staff, CEO Apex Scotland and competition judge.

Beth Moran receiving her prize cheque from Alan Staff, CEO Apex Scotland and competition judge.

We ran our first competition for Advanced Higher Modern Studies students this spring with the following challenge.

“There will be a new Scottish Parliamentary session beginning after the election in May 2016. Write an email or letter to the new Cabinet Secretary for Justice in which you give advice on what his/her priorities should be over the next four-year term”.

The winning entry by Jodie White of George Watson’s College, Edinburgh will appear in our June issue: Stuart Anderson of Mackie Academy, Stonehaven, and Beth Moran, also of George Watson’s, were runners-up. This is Beth’s letter: Stuart’s letter is here.

Dear Sir,

While I’m sure you are perfectly aware of the problems which our Criminal Justice System is currently facing, there is one issue in particular which I would like to draw your attention to; the imprisonment of children.

It is well known that young people of or under the age of 18 who serve custodial sentences, become significantly more likely to repeatedly reoffend than those who are dealt with outwith the prison service. 67% of under 18’s go on to reoffend within a year of release. They are also more likely to sustain a longer and more serious criminal career than those who are imprisoned at a later stage. When a young person is locked up far away from their friends and family, often only being visited just once a week, their emotional and mental state is severely affected. Considering that upwards of 26% of female young offenders have had a history of suicidal behaviour prior to their incarceration, it seems to me that imprisoning them is not the best solution to their behaviour as these tendencies are only exacerbated by separation and the trauma of adapting to prison life. The reasons young people commit crime can differ greatly from the reasons older people partake in criminal activity, so why is it that we choose to punish them in the same way? Surely this is not the right response.

As you know, there are numerous non-custodial alternatives which prove to be highly successful in tackling the issue of repeated young offending. I feel that a wider use of restorative justice, in conjunction with rehabilitation programs and education programs for those who need them, could help to drastically reduce the rate of recidivism for young people in this country. Studies done on restorative justice and its effects highlight and further stress the beneficial and successful nature of the process. Those criminals who partook in restorative justice were found to be 14% less likely to reoffend than those who did not. Not only does restorative justice aid the offender by educating them about their wrongdoings and allowing them to apologise for the effects of their crime but it also helps in providing closure for the victim. 87% of victims who took part in a restorative justice program found it to be extremely helpful in coming to terms and dealing with the crime perpetrated against them.

Community payback orders also provide a much more influential and useful punishment to young offenders than incarceration. Many of the vulnerable young people who are convicted benefit greatly from the routine instilled in them through a community payback order as well as the work ethic encouraged. With one of the leading causes of criminality being unemployment and poverty, community payback orders can play an instrumental role in helping these young people develop skills and abilities which will aid them in being able to find work. Not only do community payback orders help in this way, but they also prevent young offenders from tarnished with a criminal record for a mistake or wrongdoing they made as a youth, for the rest of their lives. As you are well aware, after one custodial sentence is served by an individual, they can very easily fall into the repeated cycle of crime as they struggle to gain employment and build strong healthy relationships, as a result of our society’s attitude towards those who have criminal records. I feel that it is imperative that we do all that we can as a country to help our vulnerable young people and prevent them from becoming trapped in a life of violence, poverty and crime.

Of course there will always be individuals whose crimes are so severe that there is no other alternative than to sentence them to a period of imprisonment. When this is the case however, I feel that much more needs to be done in relation to improving rehabilitation and education services for young people. Many young offenders admit to being addicted to either drugs, alcohol or both and we must endeavour to do all we can to help them rehabilitate and form healthy lifestyles.

I trust that you will take all that I have mentioned into consideration when developing new policies and amending old ones, with relation to young offenders and the part prison has to play in their rehabilitation and punishment.

Beth Moran

Beth has been a student at George Watson’s, Edinburgh, and hopes to go to the University of Leeds to study History of Art. She is interested in current affairs and how they have influenced art throughout the ages.

Posted in sentencing, Young people in prison

Letters to the Cabinet Secretary for Justice

Stuart's receives his prize cheque from Mackie Academy head, Louise Moir. Photo by Lynda Swanson.

Stuart receives his prize cheque from Mackie Academy head, Louise Moir. Photo by Lynda Swanson.


We ran our first competition for Advanced Higher Modern Studies students this spring with this challenge.

“There will be a new Scottish Parliamentary session beginning after the election in May 2016. Write an email or letter to the new Cabinet Secretary for Justice in which you give advice on what his/her priorities should be over the next four-year term”.

The winning entry by Jodie White of Edinburgh will appear in our June issue: Stuart Anderson and Beth Moran were runners-up and their entries are appearing on this blog.

Stuart Anderson has been a student at Mackie Academy, Stonehaven and hopes to move on to the University of Edinburgh to read Law and Economics. He hopes to be a lawyer and is already making a name for advocacy, having led his school team in the Bar Mock Trial competition run by the Citizenship Foundation The team are reigning Scottish Mock Trial champions and secured third place in the UK finals held recently at the Old Bailey in London.

Dear Cabinet Secretary,

Scotland is on its way to creating a fairer, safer society. However, there is still a long way to go. The Scottish court system is one of the fairest in the world, but there are still some issues that arise primarily in sentencing and in regard to the right to a fair trial.

Before a trial takes place, the jury should be unaware of the content of a trial and should be oblivious to the ins and outs of a case. The jury should reach their decisions based solely on the evidence that they have heard in court. Yet, in 2016 this may be an impossible task, especially cases that are high profile in their nature.

In the modern world, the traditional forms of media are in decline and more contemporary types are on the rise. In a survey carried out, 90% of people admit to having social media and 74% of those stated that they use it more than once per day. Social media and the internet is clearly now used by the vast majority of the population. On the internet it is possible for a juror to see things about their case, either accidently or intentionally, without anyone knowing. Take the case of the tragic stabbing an Aberdeen school last year. Within hours of the incident, a social media storm was brewing, with the case drawing its own “hashtag” and trending on Twitter. Very quickly, every person in Aberdeenshire was aware of what was going on and given the rarity of such an event, were taking a keen interest as it unfolded. A problem is presented here for the justice system because by subsequently holding the trial in Aberdeen, finding jurors with no prior knowledge of the case would have been nigh-on impossible as it would have been all over their social circles at the time it took place. Therefore, in a local area social media makes the right to a fair trial very difficult.

An issue which is currently being addressed is that of ineffective short sentences. Continuing to address this significant problem is of great importance in order to improve our country. Scotland currently has one of the highest rates of imprisonment in Europe which costs the state hugely. Much of the prison population consists of those on short term prison sentences which prove to be extremely ineffective and are out favour from experts. The reoffending rate in our country must be tackled and short sentences are not the way to do that. They effect people’s life hugely and can make it far harder to turn their life around. Short sentences interrupt employment, housing and family relationships making it much harder for a get their life back on track. Furthermore short sentences are not long enough for the prison staff to have an impact on the offender and are ineffective.

To solve this expensive problem alternatives to prison must be looked in to further. Community disposals must be researched further and tested to see which alternatives will suit Scottish society and prove to be most effective. Ideally it would be beneficial if sentences were properly tailored to each individual case in order for them to be effective. Alternatives such as drug treatment and testing orders would be beneficial in helping those with serious drug problems which lead them to crime in the first place. Each individual case is different and so each sentence should be different too.

There must also be attempt to change society’s attitude towards sentencing and prisons. The Scottish Sentencing Council is a step in the right direction in terms of this and educating the public about sentencing, however, more must be done. Currently the public like the idea of prison and harsh punishment but they must be educated about rehabilitative processes which are proving to more effective. Society’s attitude is far different in Norway where reoffending rates are much lower and where rehabilitative processes are pioneering the way for other countries.

Scotland should not only be open to looking to other countries and adopting methods that work but should also be the ones pioneering new techniques for others to look to. By tackling the key problems stated above Scotland would become a much safer and fairer place to live.

The Scottish Justice system exhibits excellent practice on a daily basis, however, if the things outlined above were focused on in the next parliament, it would become even fairer and more effective.

Kind Regards,

Stuart Anderson

Posted in Uncategorized

Justice Watch: Edinburgh Week 5

Maggie MellonIn her fourth post reporting on the Women for Independence #JusticeWatch initiative, Maggie Mellon queries waste, fines and poverty and something odd about domestic abuse cases.

Blunders, mix ups and waste of time and money

After two previous court visits without even one women actually appearing in the dock, although several had been called but were not present, or whose cases were discussed but they had not been ‘ordained’ to appear, I was beginning to wonder how many cases actually arrive at any conclusion at all.

On one occasion, I was entertained by sitting in a court room from which the Sheriff was absent. The clerk, the PF, the defence lawyers, some defendants and friends sitting in the public gallery were all there as usual but the normal solemnity of the court was completely absent. The usher joshed about with young men who were due to appear, the defence solicitors flirted with one another and the atmosphere generally was of class without the teacher.

Most memorably, the Procurator Fiscal (the prosecutor) expressed total astonishment and, it has to be recorded dismay, that there were full sets of witnesses for two separate trials due to happen in that court: clearly unexpected – the defence and the prosecution witnesses all there, two cases ready for trial. But when the Sheriff did return to the bench she had to report to him that in one case she had not got the CCTV footage, and in the other she had not got the record of a 999 call that had been made. So all the witnesses were sent away. These would have included police witnesses, as well as civilian witnesses. All expected to go away and come back again weeks hence. I could not help wondering why, if this evidence was so important, it was not in the PFs hands at the time that they took the decision to prosecute? Had the PF heard the record of the phone call when they decided they had a case to prosecute? Had they seen the CCTV footage when they decided to prosecute the other case? Had the defence got copies? I understand that the defence has to have full disclosure of all evidence in advance. In which case, could they not have produced their copies? And why in any case did the PF not make sure to have it all in hand long before a long ordained court date?

These and other similar blunders and mix ups and wastes of time and money were a big focus of discussion at an informal week 4 meeting of Edinburgh Justice Watchers (see Facebook site: https://www.facebook.com/WFIJusticeWatch). Despite going on different days, at different times and to different court rooms in the building, we had none of us actually seen a trial or even a sentence.
Justice Watch logo

We decided at that meeting that it would be worth trying to get court statistics about performance to see how many cases were prosecuted to conclusion, how many fell by the wayside, how many were continued for over 6 months or even longer. More on that later when we find out about performance management in the courts. We also decided that it would be good to be a bit more proactive about speaking to people and hearing their stories, taking along leaflets and carrying ‘Justice Watch volunteer’ ID cards explaining what we are doing and asking if anyone wants to speak to us. But that is for another blog.

Fines and poverty

This week my visit to the court did allow me to witness an actual sentence. And a few other cases giving pause for thought about the nature of domestic issues and criminal justice.

The woman who was sentenced had pled guilty to a charge of theft of an item or items of a value given at £140 approximately. There had been full recovery: in other words she got caught leaving the store and the goods were recovered in full and intact. Her defence solicitor explained that she had a long standing substance abuse problem and that previous offences were all related to that. However, apart from two matters dealt with by fiscal fine and without a court case, she had not been in trouble for a number of years. He explained that at the time of the theft her prescription had been stopped and she had therefore tried to steal in order to pay for drugs. He went on to tell the sheriff that she had an 18 month old child and an 18 year old son and both were dependent on her, the baby entirely. This meant that she could not undertake a community payback order of unpaid work as she had no one to care for baby. He said that she did not enjoy good health. The family relied on benefits of £300 or so per week, which was to pay for rent, council tax, food, fuel, and all other expenses. He said that she could afford to pay a fine at £10 per week.

The sheriff considered the matter and concluded that he would fine her £300 to be repaid at £10 per week. He remarked to her that she should reflect that a fine of this level represented twice the value of the goods that she had tried to steal and that ‘it was not worth it’. I wondered how she would go about finding the £10 per week without going into debt with rent, or doing without food or whatever. This woman was fined,which will penalise the whole family including an 18 month old child, because she is a mother with children and is not free to work. So in this way, a whole family already in poverty suffers more poverty. Their domestic circumstances will get worse. If the fine is not paid, the penalty may well be imprisonment. So why are there not other non-custodial and possibly rehabilitative or restorative sentences for mothers and other people with full time caring responsibilities?

‘Domestics’

A number of other women were called. None were tried. Of the cases set for trial, three were granted bail on specific conditions of not being in contact with others who seemed to be family members. One was a child, contact with whom was to be supervised. Two others were partners. These seemed to be ‘domestics’: that is women who are being prosecuted for domestic abuse related offending. Because the definition of this has been extended to more than physical violence (‘wife beating’ as it was termed) women are being prosecuted for merely shouting threats. I remember that my mother used to say ‘I could swing for you’ when she was angry with me or a sibling, or all of us. This literally means, ‘I want to kill you so much I would risk the death penalty for doing so, so watch out or I will’. Of course she did not mean it. None of the women I have seen being dragged in front of the courts on this kind of charge look like thugs. In fact many of the men are not charged with anything more than a one off incident without any physical violence.

So what we are seeing is leading us to look ever more closely at the statistics. And these are instructive.

I understand that while there is an expansion of non-custodial sentences, there has been no corresponding reduction in adult prison numbers either on remand or on sentence. So what is happening it seems is that more people, men and women, are being dragged into the criminal justice system. And many of these are for relationship based incidents, often not violent or not causing any injury. This includes many young people, many young women. Is expanding the use of the criminal justice system the best way to ensure that everyone respects each other, learns how to deal with conflict, stress, unreasonable behaviour or demands?

Figures to think about

Here are what the figures show about the rising criminalisation for ‘domestics’ and the accelerated rate of imprisonment of women.

• Incidents of domestic abuse recorded by the police in Scotland with a female victim and a male perpetrator represented 79% of all incidents of domestic abuse in 2014-15 where gender information was recorded. Since 2005-06 this percentage share has fallen from 87%.
• The proportion of incidents with a male victim and a female perpetrator (where gender was recorded) has increased from 11% in 2005-06 to 18% in 2014-15.
Source: Domestic abuse recorded by the police in Scotland, 2014-15

And here are slightly older figures on daily prison population.

• During 2011-12, the average daily prison population increased by 4% to 7,710 for men, while the female prison population increased by 8% to 468.

• The female prison population has risen much faster than the male rate over the past decade – 66% compared to 25%.
Source: Prison statistics and population projections Scotland: 2011-12

The number of women in prison has reduced from this level to just under 400 in the early months of this year. However an unacceptably high percentage of these are women on remand who will not go on to receive a prison sentence.

Posted in sentencing Tagged with: , , ,

Justice Watch: Edinburgh Day 3

Maggie MellonIn this third part of her #JusticeWatch blog Maggie Mellon finds court more and more interesting – and depressing. Where are the social workers?

This week I did not get to visit the court until the Friday after Easter weekend. I once again found myself in Sheriff Katherine Mackie’s court. As once again she seemed to have the majority of women listed to appear before her.

It just gets more and more interesting – and depressing too in equal measure. Here are the two things that interested and depressed me this week.

Although our specific aim is to see justice as it is dispensed to women in the dock, we do also sit through a lot of justice as it is dispensed to men. It is men who are the great majority of the accused in court. And here is interesting observation no. 1: most of them seem to be under 25. Yes, I know that we all know that, and the sheriffs and the solicitors and the policemen and the court clerks, and the G4S staff must all know it even more. But you have to wonder if the whole pantomime of court: the wigs, the grandeur, the mlords and mladys, the backing out backwards, the names shouted in the halls, the solicitors bobbing up and down to confer with clients they have just met, the turnkeys, the whole cost and endless rearranging of dates and times and witnesses – is this all just to deal with the bad behaviour of young men? Some with special needs but quite a few of them working young men who had got drunk and had a fight, dissed the cops, and landed themselves in a cell one Friday night. Surely we could work out a cheaper and better way? Quicker and more relevant justice – tied to helping them mature, become role models, get recognition for their contribution to community life. Or just keep them out of trouble with football, running, cycling, till they grow out of it?

And the second thing: the disproportionate representation from people of black and immigrant minority ethnicity. There were four black young people up in the dock on Friday morning: one young woman, two young men, seemingly of Ethiopian or North African origin who were charged together, and another young African origin man. There were also at least two Eastern European accused: maybe not disproportionate if one considers that many recent immigrants are poor and therefore concentrated in the section of the population which is most likely to be processed through our courts.

Of the four women who were in the dock in the morning, two were notably disabled, and middle aged rather than young women. One had a crutch, and the other limped heavily and needed support to walk and help negotiating the very shallow step down and then into the dock. This woman had the same name as her co-accused and they seemed to be mother and daughter. They were appearing for what is called an intermediate diet which means that they are pleading not guilty and are going to trial, but there is a court date set when the PF (the prosecution) and defence confirm that witnesses have been called, statements taken, all prosecution evidence disclosed etc and the trial date is confirmed or not. And not seems to be quite frequent occurrence. You don’t hear what they are accused of, but you do get a trial date and therefore notice of when they will be up again. Maybe.

Justice Watch logoOne young woman was brought up from custody having spent the night in the cells. It seemed that she had failed a Drug Treatment and Testing Order (DTTO), either by not attending for testing, or having failed the test. Sheriff Mackie was shown the test results, which seemed to show that she had mostly been attending and mostly been clean, but not all the time. She remarked that it was early days and asked if the young woman had been or could be referred to Willow, the Edinburgh health and social work project that is having great results with many women. But is still having to fight for every penny and has waiting lists – unlike the prisons!

The young woman volunteered that she was being referred to Willow via the DTTO which pleased the Sheriff, who therefore agreed to admonish the young woman and release her without further penalty until she came up for sentence on whatever her substantive offence had been later in the month.

What struck me again was that Sheriff Mackie was on several occasions in need of a solution that fitted with the vulnerability of the person in front of her. One of these was a young man with learning difficulties and perhaps a mental age much younger than his years. I would have put it at about 11 perhaps. He had been ordered previously not to go to his home town on being released on bail, but to present himself as homeless and get an address elsewhere. He had instead gone almost straight to his home, where his mother had had to arrange to have him put up in a hotel in another town. Sheriff Mackie was obviously frustrated with him but did not want to put him back in custody where he had been since the previous Saturday. The young man kept telling his lawyer that he just did not know where to go or how to go about it. Sheriff Mackie and the lawyer clearly don’t realise how frustrating and difficult the whole homeless system is (see another blog of mine about this in relation to my difficulties in getting help for young homeless man “The Line Goes Dead” in the Scottish Review March 2016). This young man was expected to get himself from the court to the homeless office in another town and get an address and inform the court of it. I somehow could not see this happening unless his mum did it for him, and she was not in the court, nor was any other relative.

It struck me that there was no social worker in the court, and if there had been, the problem would have been resolved immediately by asking that the young man be taken and steered through the process, an address obtained and the court informed immediately.

Why do we have the resources to pay for the whole wasteful process of processing and nothing for the simple things that could solve a lot of the problems and clear the courts business up. We need more social workers doing good practical things with people and not doing tick box assessments, breaches, and other unproductive things!

Justice Watch is a mass observation style initiative which will capture women’s experiences of justice in our courts in cities and towns, and bring these out to a wider audience of women. We are also watching national and local media for news about women in the courts. At the same time we intend to alert the public to the huge financial and social costs of using the criminal justice system including children who have to come into care, the loss of homes, and cost of rehousing, the impact on employment and opportunities for rehabilitation.We will be encouraging women across Scotland to take part over the course of the year, to make sure that we can cover every court in Scotland.

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Justice Watch: Launch Day Edinburgh Part 2

Maggie MellonIn this second part of her #JusticeWatch blog Maggie Mellon reflects on women accused of domestic abuse.

There were three women listed as having been in police custody over the weekend or part of it, and friendly court staff told us that hey would not be up till the afternoon. Before that there were all those listed to appear in one of the 8 court rooms devoted to sheriff summary proceedings.

We spent the morning sitting in the courts in which women were listed to appear. The most striking thing from this experience was that while the court rooms and surroundings are modern enough, in many respects the court processes seem not to have changed since the 19th century: the sheriffs in their wigs, the lawyers in their gowns. Dickens would have been quite at home satirising the pompous gravity of ‘justice’. One major difference is of course that there are now women sheriffs, prosecutors and defenders, but that is one equality of opportunity that I for one can’t really celebrate. Most of the accused seem to be guilty of severe poverty rather than any evil. Their clothes, their pallor, their crimes all speak of their poor circumstances, lack of choices, and of lives lived perpetually on the edge.

What struck us all when we met during a break was the enormous waste of time and money involved. At a time when the internet makes communication instant, the courts still run on paper systems. Files and files and files. The Procurator Fiscal, prosecuting, seems to have to present cases which they have often only set eyes on that morning. They have no idea if the case information has been disclosed to the defence, or whether warrants have been properly served on accused or on witnesses. Cases were adjourned when prosecution and defence witnesses didn’t show, or if the witnesses are present, the prosecution was not ready or the defence is not prepared, or legal aid had not been granted yet, or specialist reports had not been produced, or the accused was not there.

So, in the morning, I did not see any of the cases of women that had been listed to appear in court 6 where I was sitting. But from 2 o’clock I sat in court room 4 where Sheriff Katherine Mackie was hearing domestic abuse cases. And this is where most of the women appearing in court that day were appearing. Not as victims but as the accused. Yes, three women were brought in front of the sheriff having spent all or part of the weekend in police custody. All charged with domestic abuse.

Justice Watch logoThe first woman brought out was no more than 5ft tall, seemed to be barely out of her teens. She had breached bail conditions not to approach or attempt to approach her boyfriend. He was very agreeable and had apparently invited her into his home. Who called the police to tell them she was there? Who knows? But the police went and apparently felt they had no option but to arrest her and hold her in the cells since Saturday. The court was told by her defence solicitor that she had two children aged 1 and 2 years old, both of whom were being looked after by their father. Sheriff Mackie explained to her as clearly as she could that breaching bail was serious, and that no matter what her boyfriend said or thought about it, she was the one who would be in trouble and not him if she accepted any more invitations. Trial was set for a few weeks hence.

The second woman had spent the whole weekend in custody. A grandmother in her late forties or early fifties with no previous convictions, she was accused of ‘domestic abuse’ because she had hit and shouted at her ex boyfriend in the pub. He had been drinking in her local, miles from his home area, in what may have been an attempt to wind her up.

A third woman was a young mother whose anxious husband and mother had been waiting in the court all day for her to be brought up from the cells. She also had no history of offending, and was obviously distraught and humiliated and wretched, and just sobbed throughout the short hearing. Her defence solicitor explained that there had been some sort of altercation at home, the husband and wife under stress, and that police had decided to arrest and charge her. Sheriff Mackie was again noticeably kind towards her and asked the PF whether this was a case that they might consider whether the public interest would be served by proceeding to trial. The PF said indeed that would be considered, implying that they might not proceed to prosecution.

It was a little reassuring to know that the public interest is sometimes felt to be served by not proceeding with a case rather than by prosecuting to the maximum of the law. But not reassuring enough. These cases are expensive. Not a single person except the women concerned and their children seem to have suffered from the incidents. The men were uninjured, the offences seemingly nothing more than drunken altercations, possibly fuelled by drink but equally perhaps just by stress and desperation.

As I remarked in part 1 of this blog, the Sheriff Court is an expensive building, all marble and glass and stone. The defendants seemed almost all to be poor. In the case of the women and at least one of the defendants who appeared in the domestic violence court, they seemed to be vulnerable and at risk themselves.

I remember when the police used to attend ‘domestics’ where a woman had been terrified and just remove the man down the road, warning him not to go back that night. I remember being howled down in the mainly male trades council in Edinburgh for raising the scandal of domestic violence and calling on trade unions to take a stand against it (“that’s a private matter, not a union matter!”). It seems that the penalty that women are paying now for the failure to acknowledge male violence is that justice is not only gender blind, but manages to equate a threat and actual violence by a man against a woman, with a woman shouting I’ll bloody kill you, or words to that effect. An impotent threat of violence by a woman, no matter how risible, is now prosecuted as severely as a very real threat by a man against a woman. That is bonkers. And a waste of time, of money, and not in the public interest AT ALL.

Knowing as I do that women who are victims of domestic violence are now losing their children to care because of being held responsible for exposing their children to emotional abuse I believe that in many ways, justice is as unenlightened about domestic abuse as it has always been. It’s the woman who has to pay, one way or the other.

This is going to be a big issue in our Justice for Women campaign . . . just watch and see.

Justice Watch is a mass observation style initiative which will capture women’s experiences of justice in our courts in cities and towns, and bring these out to a wider audience of women. We are also watching national and local media for news about women in the courts. At the same time we intend to alert the public to the huge financial and social costs of using the criminal justice system including children who have to come into care, the loss of homes, and cost of rehousing, the impact on employment and opportunities for rehabilitation.We will be encouraging women across Scotland to take part over the course of the year, to make sure that we can cover every court in Scotland.

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Justice Watch: Launch Day Edinburgh Part 1

Maggie MellonMaggie Mellon on Day 1 of Justice Watch.

Like a good few other women I spent yesterday watching justice in Scotland’s courts.

The day started for me with a trip to BBC Scotland’s Edinburgh studio at 7.30 for a quick interview on the Good Morning show about the launch of Justice Watch that day.

What are our plans? To do what it says on the tin and just watch justice, for women, in our courts. Women for Indy was, I explained, going in to see why and how Scotland imprisons women at a higher rate than than any other country in the British islands? And many other countries in Europe? Four times the rate of the Republic of Ireland. And – shock – even higher than England, that bastion of unfairness and injustice. Despite the commitments of several governments over many years to cut the number of women unnecessarily in prison, the number keeps going on. Why and how? The government has yet again committed to reducing the number of women in prison, to ‘radical changes’, but will these actually happen?

Our suspicion is that far too much attention is being paid to prison and not to the services outside prison that actually work. There is no queue for prison. There are queues for Willow and Tomorrow’s Women and other services – that are scrambling for money and face closure every year. Yet as I got to explain to BBC Good Morning audience, they had been proven to be more effective, much better than prison.

Justice Watch logoWere women a special case? No, men matter too, and the waste of short sentences is wrong for men too. But when a man goes to jail, the home and children are not destroyed. When a woman goes to jail, a whole family can be devastated. Homes lost, children in care, the woman herself terrified about what is happening outside. Women who have lost their children and families because of prison can become fodder for the revolving door of repeat petty offending, alcohol and drug self medication.

So thanks to BBC Scotland for allowing the time to explain this properly. And off to Edinburgh Sheriff Court. I had the list of planned appearances from the Scottish Court website and had marked the names of women and the courts and sheriffs they were to appear in. Sara Sheridan was already there at 9,15 and we both went in to look at the lists of appearances, including the list of people being held in police custody having been arrested over the weekend. The staff were very friendly and helpful. And I saw this repeated throughout the day when bewildered relatives, and defendants, and witnesses asked for assistance and help. So something is working well in the malls of justice.

And these are pretty grand malls. The court is beautifully and expensively constructed, full of marble and stone and glass. The courtrooms are modern and comfortable. But my god – the contrast between the well heeled lawyers and sheriffs and even the more lowly paid clerks and security staff and the defendants was stark.

The poverty of the accused is what hits you first and foremost. These are people whose obvious ill health, and poor and cheap clothing, should be an accusation against society and its courts, and yet they are the accused. Teenagers milling about. Many without parents or family to guide and support them – leading me to suspect that these are children unfortunate enough to have been ‘looked after’ in care of their local authority. Not a named person to be seen here. Perhaps we should appoint sheriffs or legal aid solicitors? Certainly the only people with an interest in them are their legal aid solicitors, representing so many people that the attention they can afford is fleeting, if kindly.

So much to observe and we have not even sat in court yet! The group has assembled and we take our ‘I’m watching Justice’ selfies and pictures and distribute ourselves in two’s around the courts where women are listed to appear.

Justice Watch is a mass observation style initiative which will capture women’s experiences of justice in our courts in cities and towns, and bring these out to a wider audience of women. We are also watching national and local media for news about women in the courts. At the same time we intend to alert the public to the huge financial and social costs of using the criminal justice system including children who have to come into care, the loss of homes, and cost of rehousing, the impact on employment and opportunities for rehabilitation.We will be encouraging women across Scotland to take part over the course of the year, to make sure that we can cover every court in Scotland.

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FGM in Scotland – where are we now?

Nina Murray
Nina Murray is Women’s Policy Officer at the Scottish Refugee Council.

Just over a year on from the launch of our report, Tackling Female Genital Mutilation in Scotland: towards a Scottish model of intervention, and three years from Niki Kandirikirira’s article on FGM in Scotland in the inaugural edition of SJM, International Women’s Day 2016 (#IWD2016) feels like a good time to check-in on Scotland’s progress and its role in the global fight to #endFGM.

2015-2016 has seen the Scottish Government take important strides towards addressing FGM within the context of its wider work under Equally Safe to prevent and combat violence against all women and girls in Scotland, in all its forms. This year’s International Day of Zero Tolerance to FGM on 6 February saw the Scottish Government launch a comprehensive National Action Plan to Tackle FGM 2016-2020, which had been a key recommendation of our research.

FGM coverScottish Refugee Council welcomed the plan and its focus on the need for agencies and communities to work together across Scotland to prevent FGM, protect women and girls from the practice, and respond to the needs of survivors. Alongside the action plan, the Government will soon be publishing new multi-agency guidelines for practitioners to support all frontline agencies, both statutory and voluntary, who are working with communities affected by FGM in Scotland. But what we were most pleased to see reflected in the plan, was our call for investment in support for communities affected by FGM to have a voice and a clear role in this process of change, to influence policy and practice, as well as engaging with and influencing change within their own communities.

In the week leading up to International Day of Zero Tolerance to FGM, the Equal Opportunities Committee held an event at the Scottish Parliament to showcase some of the ongoing work in this area. Scotland-based third sector organisations, Dignity Alert Research Forum (DARF) and roshni, have been piloting an exciting new project, MyVoice, with young people, men and religious leaders, using participatory ethnographic evaluation and research (PEER) for the first time to tackle FGM in Scotland. A range of other organisations working hard to provide support to women in communities affected by FGM, raising awareness with men in specific communities in Glasgow, and delivering training and awareness raising workshops to statutory services right across Scotland, were also represented at the event.

All of this work is essential. However, as Alex Neil MSP, Cabinet Secretary for Communities and Social Justice, recognised at the launch of the action plan last month: a plan is just the beginning. What we now need to see is sustained commitment from the Government, statutory, third sector and community organisations, to implementing the plan and investing in this work, to ensure that these and other projects can be sustainable and foster a real contribution to the global movement for change towards ending FGM in a generation.

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