Go to jail?

Photo by 🇨🇭 Claudio Schwarz | @purzlbaum on Unsplash

Young offenders?

Well, not if you’re under 25 according to recent proposals published by the Scottish Sentencing Council as part of a public consultation process. The main function of the Scottish Sentencing Council is to demystify sentencing decisions and, therefore, educate the public about these matters.

The current proposal might seem very provocative and is bound to divide public opinion. Crime, after all, is a very emotive issue and everyone has an opinion about it whether you have been the victim or the criminal. The purpose of criminal law is about the State punishing those individuals who have broken the rules of the community by engaging in dangerous and/or anti-social activities.

The rationale for the Scottish Sentencing Council’s proposal is that scientific research (carried out by the University of Edinburgh) seems to show that the brains of people aged under 25 years have not fully developed i.e. matured.

Now, it is by no means certain that such a proposal will be implemented and the Scottish Sentencing Council is urging members of the public to respond to its consultation with their opinions on the matter.

https://consultations.scottishsentencingcouncil.org.uk/ssc/young-people/

It is certainly part of a wider strategy which fits in with attempts by the Scottish Government to reduce the numbers of people who are sent to prison each year. There is now perhaps a recognition that prison doesn’t always work. There has been a presumption operating for several years in Scotland, that people will not be sent to prison if the offence would normally be punished by a sentence of less than 6 months. Obviously, this presumption would be ignored if, for example, the offender was a person who persistently broke the rules.

Over the last year, this Blog has looked at a number of initiatives which have taken place which have been about taking different approaches to crime prevention or the rehabilitation of offenders.

In the Autumn (or Fall), I spoke to a group of students about an initiative called the “Call-In-Scheme” where Avon and Somerset Police in England were targeting first offenders aged between 16 and 21 who have been caught dealing drugs. The choice: go to court, be convicted with all the consequences this outcome will entail or go straight. Participants in the scheme were be selected by a panel. Predictably, such an approach sharply divided my audience.

Crime and kindness?

Last March, two American judges – Victoria Pratt and Ginger Lerner-Wren we’re invited to Scotland by Community Justice Scotland, a publicly funded body, where they were hoping to meet hundreds of people who deal with the Scottish criminal justice system.

The two judges were keen to emphasise that there should be more compassion in the criminal justice system when dealing with offenders. They pointed to impressive results in the United States – a New York court alone has seen a dramatic decrease of 20% in youth crime and a 10% reduction in crime overall by using radical methods to deal with offenders. One of the judges, Ginger Lerner-Wren established one of the first mental health courts anywhere in the world. The aim of this court (based in Florida) was to promote treatment of offenders as an alternative to traditional forms of punishment. Judge Pratt, on the other hand, specialises in “procedural justice” which works on the basis “that if people before the courts perceive they are being treated fairly and with dignity and respect, they’ll come to respect the courts, complete their sentences and be more likely to obey the law.”

The Glasgow Alcohol Court

This type of approach has already being piloted in Scotland: Sheriffs in Glasgow deal with cases where alcohol is a ‘contributory factor’ in crime. The Sheriff Alcohol Court has been operating since 2018 and its lifespan was extended in 2019. It now deals with domestic abuse cases involving alcohol. Punishments other than prison sentences are handed out by this court e.g. drug and alcohol treatment orders and community service orders. This approach recognises that criminals can turn their lives around and can become law abiding members of society. Being given a drug treatment order is not an easy option. Participants in schemes such as these are regularly tested and monitored. Break the rules and you will go to jail.

Age of criminal responsibility

In Scotland, in common with many penal systems around the world, we do use a person’s age to determine criminal responsibility. Currently, the age of criminal responsibility is 12 and there is a debate about whether this should be raised even higher. It is worth remembering that, for many years (until 2019 in fact), Scotland had one of the lowest ages of criminal responsibility anywhere in the Western World i.e. 8 years of age.

Somewhat mitigating this feature of Scottish criminal law was the fact that children were not tried in adult courts. The Children’s Hearing or Panel system was primarily set up for this very purpose. It was considered a revolutionary approach because it recognised that by stigmatising (and criminalising) children at a very early age, society could set them on a path from which there was no means of redemption. If you effectively abandoned a child at an early age, you were condemning them to a very grim future where they could (potentially) be in and out of prison for the rest of their lives.

Conclusion

The Scottish Sentencing Council’s proposal is very interesting and it will certainly form part of a lively discussion on how we continue to deal with crime in this country. The public now has 12 weeks to get involved in the consultation by giving their opinions on the matter.

It is important to appreciate that, under the proposals, judges will still be able to send people under 25 to prison if they think this is an appropriate punishment. What the proposals are allowing judges to do is to look more closely at a young person’s background e.g. mental health issues before sentence is passed. It remains the case that, where certain crimes are concerned, the imposition of a prison sentence will be most the appropriate action to take because the issue of public safety will be paramount. Clearly, someone like the notorious child killer Aaron Campbell, will not benefit from the proposals merely because they are under the age of 25.

A link to an article on the BBC News app about theScottish Sentencing Council’s proposal can be found below:

Draft sentencing guidelines say younger offenders should be treated differently because their brains are still developing.

Scottish courts urged not to jail ‘immature’ under-25s

Related Blog Articles:

https://seancrossansscotslaw.com/2019/05/08/the-age-of-criminal-responsibility/

https://seancrossansscotslaw.com/2019/02/27/criminal-responsibility/

https://seancrossansscotslaw.com/2019/03/12/crime-and-kindness/

https://seancrossansscotslaw.com/2019/02/19/dealing-with-alcohol-abuse/

https://seancrossansscotslaw.com/2019/08/30/once-a-criminal/

https://seancrossansscotslaw.com/2019/03/04/commit-the-crime-do-the-time/

https://seancrossansscotslaw.com/2019/04/02/victims-voices/

https://seancrossansscotslaw.com/2019/06/13/doing-time/

https://seancrossansscotslaw.com/2019/03/22/life-should-mean-life/

https://seancrossansscotslaw.com/2017/04/04/scottish-criminal-appeals/

https://seancrossansscotslaw.com/2019/01/29/crime-and-punishment-in-scotland/

Copyright Seán J Crossan, 28 February 2020

Doing time …?

Photo by Emiliano Bar on Unsplash

In a previous blog (“Commit the crime, do the time?” published on 4 March 2019), I examined the role of the Scottish Sentencing Council (established as a result of the Criminal Justice and Licensing (Scotland) Act 2010) in relation to the imposition of various sentences on convicted offenders. The Council took up its role from 2015 onwards.

On Monday 12 June 2019, the second most senior judge sitting in Scotland, Lady Dorrian, Lord Justice Clerk, announced that the Scottish Sentencing Council would conducting a public consultation in an attempt “to demystify” the factors by which a criminal court takes into consideration when imposing punishment on the offender.

The consultation exercise will tackle a perception which exists (rightly or wrongly) amongst the public that sentencing can be extremely inconsistent. It will address this problem by highlighting issues which are likely to be considered aggravating factors by a judge and thus lead to the imposition of a longer sentence. Aggravating factors would include whether the crime was premeditated or in situations where a weapon was used. Conversely, it is hoped that the exercise will pinpoint mitigating factors that a judge takes into account when a lighter sentence is passed e.g. genuine remorse shown on the part of the offender or any negative consequences that the offender’s children are likely to suffer.

Readers may wish to take part in the public consultation exercise and can so by clicking on the link below at the Sentencing Council’s website:

https://consultations.scottishsentencingcouncil.org.uk/ssc/the-sentencing-process/consultation/subpage.2019-05-29.0933048382/

In order to assist the public and other interested parties to complete the survey, the Council has provided a number of documents which can be accessed via the link below:

https://consultations.scottishsentencingcouncil.org.uk/ssc/the-sentencing-process/

The closing date for participation in this exercise is 6 September 2019.

A link to an article on the BBC website about the exercise can be found below:

https://www.bbc.co.uk/news/uk-scotland-48556439

The Scottish Parliament’s Justice Committee

This week, in a related matter, the Justice Committee at Holyrood (by 7 votes to 2) decided to support plans by the Scottish Government, which if carried, would extend the presumption against short prison sentences.

Currently, in Scotland, there is a presumption against the imposition of prison sentences of less than 6 months and the court will most likely impose an alternative punishment.

Interestingly, on 19 February 2019, Scottish Legal News reported that David Gauke MP, the UK Government’s Justice Minister, had stated that he would introduce legislation in England and Wales in order to follow current, Scottish criminal practice as regards sentencing i.e. a presumption against prison terms of less than 6 months:

https://www.scottishlegal.com/article/england-follows-scotland-s-lead-on-presumption-against-short-sentences

Copyright Seán J Crossan, 13 June 2019

Victims of crime

Photo by Cristian Newman on Unsplash

Crime is a hugely emotive issue – particularly so for the victims and their families. It is important to remember, however, that the primary purpose of the criminal justice system is to punish offenders who break the collective rules of society as a whole. It is the State which takes vengeance on behalf of the community or society. It is not about the individual rights of victims and, as such, we have a public system of prosecution in Scotland. As discussed in Chapter 1 of Introductory Scots Law, the State is extremely unwilling to allow private prosecutions to proceed and these remain very rare in practice.

In two previous Blogs (“Commit the crime, do the time” published on 4 March 2019; and “Life should mean life?” published on 22 March 2019), I discussed the issues of sentencing by the Scottish criminal courts and, specifically, what exactly a life sentence entails.

I now want to turn my attention to the matter of prisoners making an application to the Scottish Parole Board for release.

The Parole Board is a statutory Tribunal independent of the Scottish Ministers.

Should the victims of crime or their family members have a say in whether the Parole Board decides that a prisoner ought to be released?

This issue has received some media attention because, on 27 March 2019, the Scottish Government closed its Consultation into the Parole system (Transforming Parole in Scotland).

A link to the Consultation can be found below:

https://www.gov.scot/publications/consultation-transforming-parole-scotland/

The Faculty of Advocates responded to the Consultation and agreed, with certain reservations, that the opinions of victims should be taken into account at parole hearings, but on a limited basis and within clear terms of reference.

Essentially, the Faculty believes that any input from victims in parole proceedings should be restricted to the submission of a Victim Personal Statement which would be considered by the Board. The Faculty had misgivings about allowing victims or their families to attend parole hearings and for the Board to release detailed reasons for its decisions.

As the Faculty noted, the primary purpose of the Board “is assessment of risk, and that should remain central in consideration of any reform.”

A link to the Faculty’s response to the Scottish Government’s Consultation can be found below:

http://www.advocates.org.uk/media/3060/final-faculty-response-28-march-2019-3.pdf?utm_source=Scottish+Legal+News&utm_campaign=74a64823a5-EMAIL_CAMPAIGN_2019_04_01_08_23&utm_medium=email&utm_term=0_07336e1dbf-74a64823a5-66775629

Conclusion

The response by the Faculty of Advocates to the Government’s Consultation is unlikely to please everyone, but it does recognise that victims of crime and their families have a role to play (albeit a somewhat limited one). As the Faculty, critically, argues the role of the Parole Board is to assess the risk to the public of releasing a prisoner from incarceration. The opinions of the victims and their families must necessarily take second place here.

Copyright Seán J Crossan, 2 April 2019

Crime and Punishment in Scotland

Photo credit by niu niu on Unsplash

In Chapter 1 of Introductory Scots Law, the Scottish criminal justice system is discussed.

As of today (29 January 2019), the Scottish Government has published its annual statistics on the number of accused persons who have made an appearance before Scotland’s criminal courts. The statistics cover the period 2017/18.

The figures clearly demonstrate three things:

1. Fewer people in Scotland are being charged with criminal offences (a decrease of 11% from 2016/17);

2. There is a decrease in the number of guilty verdicts being handed down by the Scottish criminal courts (a reduction of 10% from 2016/17); and

3. There has been a significant reduction in the number of community sentences (a decrease of 10% from 2016/17).

These figures are in marked contrast to media grabbing headlines such as the one in The Scottish Daily Express on 12 May 2018 which highlighted the fact that the Renfrewshire and Inverclyde Police Division had the highest murder rate (11 homicides) in the UK for 2017/18!

A link to the Scottish Government’s statistics can be found below:

https://www2.gov.scot/Publications/2019/01/2354/2

A link to the BBC website providing analysis and commentary can be found below:

How are Scotland’s courts dealing with offenders?

Community sentences drop as figures show another decline in the number of people appearing in criminal courts.

Copyright Seán J Crossan, January 2019

Scottish Criminal Appeals

Photo by David von Diemar on Unsplash

In two of my previous blogs (Life should mean Life? published on 22 March 2019 and Commit the crime, do the time? published on 4 March 2019), I discussed the sentencing process in relation to individuals who have been convicted of criminal offences in the Scottish Courts.

In Life should mean life?, I looked at the sentencing of the teenage murderer, Aaron Campbell by Lord Matthews in the High Court of Justiciary in Glasgow. Campbell was convicted of the murder of 6 year old Alesha MacPhail. Lord Matthews imposed a prison sentence of 27 years on Campbell. This is the minimum term which Campbell must serve before he is eligible to apply for parole. It does not mean that he will be released at the end of this term.

We learned today (4 April 2019), that Campbell‘s legal team has lodged a note of appeal against his sentence. He is not appealing against his conviction.

It will be interesting to see whether the Criminal Appeal Court of the High Court of Justiciary upholds the original prison term. There is always a risk for appellants like Campbell that the Criminal Appeal Court may increase his prison term.

A link to a BBC article discussing Campbell’s appeal can be found below:

Alesha MacPhail killer Aaron Campbell lodges appeal against sentence

Aaron Campbell, 16, is challenging the 27-year jail term he received for the murder of six-year-old Alesha MacPhail.

Postscript

On Tuesday 10 September 2019, Aaron Campbell successfully appealed against the length of the life sentence (27 years) that Lord Matthews had imposed on him following his trial and conviction for murder at the High Court of Justiciary in Glasgow. His prison sentence was reduced by 3 years. This decision was made by 3 senior Scottish judges sitting in the Appeal Court of the High Court of Justiciary in Edinburgh

Please see the link below to an article on the BBC website about the story:

Alesha MacPhail killer has sentence cut by three years

Copyright Seán J Crossan, 4 April and 10 September 2019