Justice + Legal October 2022
is a project funded by the National Lottery and run by Barnardo’s and Youth justice Voices, with the aim of giving prisoners a voice. At Polmont Young Offenders Institute (YOI) some inmates are drawing up an ‘Induction Pack’ for new arrivals. The décor of the prison itself is primary colours, and there is an area where inmates learn a new skill or listen to those who have turned their lives around.
Cabinet Secretary for Justice Keith Brown thinks locking people up is not the answer. The Bail and Release from Custody Bill aims to reduce numbers on remand by focussing on those who will be a danger to others if bailed, or a flight risk. He wants prisoners to be reformed by their time inside. Scotland now has a presumption against jail sentences of under 12 months, which is too early to evaluate, but is not universally popular on the outside.
Currently 28% of Scottish prisoners are on remand. Polmont is seeking to reduce numbers over time and re-educate prisoners, some of whom may be as young as 16. Keith Brown, like others, thinks Scotland’s prison population is too high, and believes that prison should support prisoners so that they do not repeat their mistakes.
Legal rights under threat
Three changes currently planned are a grave threat to anyone facing legal charges, according to many legal experts. Thomas Ross, KC, calls it ‘terrifying political interference that could turn Scotland into North Korea’. The ‘Not Proven’ verdict is currently under threat, as is corroboration and the right to trial by jury.
Corroboration is under threat
This is the requirement that any allegation be backed up by at least two sources of evidence. The SNP had to abandon an earlier attempt at abolition in 2015, but the government is now preparing a Criminal Justice Bill aiming to eliminate the Not Proven verdict. Low conviction rates in sexual crimes are alleged to be due to the need for corroboration which is unlikely to be in the form of witnesses. But if there is no forensic evidence, where are the safeguards for the accused against malicious allegations?
Not Proven Verdict
Part of the pressure to abandon the verdict surrounds the low conviction rates for sexual crimes, with a belief borne out by Scottish government research that juries would opt for ‘guilty’ if they did not have a third option. They also feel juries are less likely to believe the victim of sexual crime due to their own and society’s prejudices on what constitutes a victim.
Seven of the eight legal organisations which responded to a consultation on scrapping the verdict wanted to keep it, but appeared to be just ignored.
The idea is that a judge sitting alone would be more likely to deliver justice, by virtue of having no innate prejudice as it is claimed juries do. But is this true? Judges may have outdated views, as may juries, but where is the evidence? And a jury has other people on it who could silence outdated prejudices, unlike a single judge.
Scottish jury trials have 15 members, with decisions on a simple majority (8). The English jury system encourages unanimous verdicts, failing which a 10-2 majority. But hung juries are not uncommon in England, and retrials may well follow. The Faculty of Advocates appreciates the motives of those wishing to abolish Not Proven, but cautions against changing it solely to increase the number of convictions. Alistair Bonnington, former Honorary Professor of Law at Glasgow University, thinks the government is easy prey for interest groups who know nothing of the operation of the law in Scotland.
Last year a review group recommended the replacement of jury trials in sexual offences with judge-only trials, as well as the establishment of a new national specialist court dealing with serious sexual offences, both of which measures are strongly opposed by the Law Society of Scotland (LSS). The group was apparently swayed by anecdotal evidence by judges that juries sometimes do not convict in rape cases even where there is enough evidence, although this was not quantified.
Lord Advocate Dorothy Bain, KC, has even concluded that Scotland ‘has no historic right to a trial by jury’ thus no constitutional barrier to judge-only trials. This did not receive the public attention it needed due to covid. No-jury trials were actively considered at the beginning of the pandemic when courts were closed, but the idea was abandoned after an outcry.
The problem is that judges are appointed on the recommendation of the First Minister, so juries act as a powerful brake on abuse of power. And it is feared that judge-only trials may be extended to other serious cases.
Sex without consent
A conviction was recently obtained under domestic abuse laws rather than rape laws, when the High Court ruled a man had sex with a former girlfriend who had not given consent, as part of a pattern of violent and coercive behaviour. It is believed the Domestic Abuse (Scotland) Act 2018 could provide a remedy in certain cases, although the potential maximum sentence is not as high, 14 years against life in prison for rape.
The case was tried under domestic abuse laws not the Sexual Offences (Scotland) Act as there was no corroboration.
The campaigning legal group Trauma Aware Law promotes the idea that criminality in adulthood is often linked to adverse childhood experiences (‘A chance for change..’, The Ferret, Sunday National, 16/10/22). The film Resilience: the Biology of Stress and the Science of Hope, by James Redford, highlights how stressful experiences in childhood can affect brain development and lead to health and social problems in adulthood. Many offenders have drug addiction issues, some have mental health problems, and some have experienced childhood sexual abuse.
In January 2022 the Scottish Sentencing Council introduced guidelines for sentencing the under-25s which would acknowledge the impact of the developing brain on criminal behaviour, with rehabilitation a ‘primary consideration’ and trauma, adverse childhood experience, addiction and mental health issues needing to be considered.
The Scottish Conservatives called it soft justice, but the government and pressure groups want it to be a case of stopping people offending, while not minimising the impact on the victims.
Scotland has the highest imprisonment rate in Europe, with one third of prisoners on reman. People are not only imprisoned for serious offence, but for offences like breach of the peace and shoplifting, as well as drugs offences.
Almost 450 drug drivers
have had their prosecutions abandoned due to testing of roadside swabs and blood samples not being carried out within one year of them being taken, including 99 drivers previously convicted of similar offences.
10,000 data breaches
have occurred over the last five years in Scotland’s local authorities, including unauthorised staff access or data thefts, personal data or organisational information publicised on websites. Police were involved over a dozen times and nearly 50 people faced sanctions. Password sharing or laptops taken home also occurred, with some data breaches being criminal. Some staff in a number of local authorities had not yet had data protection training, which must also be refreshed.
It is policed by the Information Commissioner’s Office, who can issue fines, but the initial processes remain with local councils. Individuals whose data has been compromised should be notified in case remedial action is needed (by them!).
Scottish Limited Partnerships (SLPs)
have long been associated with money-laundering, criminality and corruption, although many are used legitimately for venture capital enterprises and agricultural tenancy holdings. They have struggled to dislodge those used for dishonourable purposes. Now a crackdown is being implemented through, of all people, Vladimir Putin, albeit in the Russian courts. Last year an SLP registered in an Edinburgh housing scheme took a 43% share in Kaliningrad port operating company, but a Russian court ruled that the business had now lost its rights due to being a corporate entity from an unfriendly nation. Russian courts may now go after other SLPs as well as limited companies and limited liability partnerships (LLPs) in a tit-for-tat retaliation against Britain over sanctions imposed on Russia. This even if they are wholly Russian-owned.
It is only in the last couple of years that the UK has begun to crack down on SLPs by introducing checks on the identity of owners.
is facing budget cuts which Chief Constable Iain Livingstone claims could cost the jobs of 4,500 police officers and staff. He says cuts of £300 million may result, especially if 5% wage rises have to be paid until 2026/27 with no annual percentage increases from the government. salaries form 86% of police costs and claims it is only achievable through pay freezes of by cutting jobs.
Kate Forbes says public services must ‘reshape and refocus’ in the coming years and police should prepare for a flat-cash settlement till 2026/27.
Police Scotland stand accused of misogyny against its own staff for failing to tackle a culture of ingrained misogyny within the force. The media campaigns against being ‘That Guy’ and now ‘Don’t Be That Guy’ asking men to call out misogyny in other men will fail, say critics, if police do not first put their own house in order, as highlighted by the recent cases of Gemma MacRae and Rhona Malone. This is at a time when Scotland is seeing soaring numbers of domestic abuse and sexual assault cases, up 9% and 18% respectively last year, with up to 38% of murdered women are killed by their partners. It is also a time when the courts’ treatment of female victims of sexual violence are still complaining that their treatment is inhuman and degrading to the point that they feel violated all over again.
Julia Pannell 24/10/22