Chapter 12 Justice
The Justice portfolio is responsible for keeping our communities safe and administering justice in its various forms: civil, criminal and administrative. This includes Scotland's prisons, courts, tribunals, police, fire and rescue services, the legal aid system and criminal justice social work services.
Over the past decade, many of the key challenges facing the Justice portfolio are about addressing the changing nature of crime. The past decade has seen evidence that both overall levels of victimisation and recorded crime have fallen. However, this has been accompanied by increasing levels of recorded crimes, prosecutions and convictions relating to sexual offences and domestic abuse compared with 10 years ago.
The justice system in Scotland is underpinned by a set of fundamental principles relating to public safety, fairness, respect for human rights, independence of decision making and separation of powers between the state and judicial processes.
The justice system acts as a key foundation to support law and order and therefore economic confidence and sustainable economic growth, as well as equality which is necessarily at the heart of justice decision making.
Box 12.01 (overleaf) expands on this, and the difficulty of linking outcomes to defined budget lines. However, the decisions made by justice partners, and the implications that they have on those who interact with the justice system are very important, and this chapter focuses closely on these two topics.
Box 12.01: Whole Systems Approach to Justice
There are significant interdependencies within the Justice portfolio budget, with equalities analysis of one budget line in isolation often not possible without reference to the others.
For example, it may be the case that to specifically benefit women the Justice system should co-ordinate efforts to reduce the time it takes to reach a verdict in sexual crime cases. However, this is not something that could be done in isolation by a particular agent within the Justice System. It requires co-ordinated action and investment across the budget system in order to successfully achieve outcomes. Investment directly into the Scottish Courts and Tribunal Service would need to be complemented by investment in the Scottish Police Authority (to ensure evidence and/or forensics are available in a timely manner), prosecution (to ensure the case is ready to proceed), legal aid (to ensure the accused has access to a reasonable defence). This approach is being taken by the Scottish Courts and Tribunals Service (SCTS) in relation to improving the management of sexual offence cases, with a view to improving the experiences of complainers and witnesses without compromising the rights of an accused. Lady Dorrian is leading a review group that includes representation from all of the organisations listed above, as well as third sector organisations including Rape Crisis Scotland, Scottish Women's Aid and Victim Support Scotland. The review group will make recommendations in early 2020.
These interdependencies are not specific to this example, and make ascribing key equalities outcomes to one budget line in particular extremely difficult and necessitates the need for key portfolio policies to be considered (and delivered) across multiple budget lines, and with the input of numerous justice partners. The Scottish Government is facilitating this approach via the Justice Board and Justice Systems Planning Group.
Key Inequalities of Outcome
We know a significant amount about the characteristics of those who interact with the justice system – primarily as victims of crime, accused, convicted and employees, through various different data sources. A summary of this information is available online. The Scottish Crime and Justice Survey (SCJS) for example tells us about the characteristics of victims and their reporting of the characteristics of offenders. Recorded crime statistics can provide a useful geographical breakdown of crime and criminal proceedings statistics providing significant amount of information about the age and gender of those who are proceeded against. However, there is much that currently is not known about how different groups interact (or do not interact) with the justice system. Box 12.02 covers efforts that are being taken to address this and improve the evidence base.
Box 12.02: Improving the equalities evidence base for justice in Scotland
In February 2019, the Scottish Government published the research report 'Developing Information on Hate Crime Recorded by the Police in Scotland'. The report provides an update on work by Scottish Government statisticians and Police Scotland to review the availability of information on hate crime recorded by the police in Scotland.
The report also includes summary information on hate crime recorded by the police, for each of the four years from 2014‑15 to 2017‑18 in relation to race, religion, sexual orientation, disability and transgender.
Scottish Government statisticians are continuing to engage with Police Scotland as they develop the information they hold on hate crime. This includes plans for Scottish Government statisticians to review a large sample of police recorded hate crimes to investigate further the characteristics and circumstances of these cases. It is anticipated that a report on the findings of this exercise will be published in 2020.
Victims of crime
While the total number of crimes recorded by Police Scotland increased by 1 percentage point between 2017‑18 and 2018‑19, the recording of crime remains at one of the lowest levels since 1974. Higher levels of recorded crime per capita are seen in cities than rural areas. For example, over 700 crimes for every 10,000 people were reported in Glasgow compared with below 200 crimes for every 10,000 people reported in the Shetland Islands, Orkney Islands and Eileanan Siar.
The 2017‑18 SCJS found that the proportion of adults in Scotland experiencing crime has fallen from around one in five in 2008/09 to one in eight.
The SCJS also shows that the likelihood that an individual is a victim of crime varies significantly depending on their characteristics. For example, just 3.4 per cent of adults in Scotland are estimated to have experienced 57 per cent of all crime recorded. Furthermore, the likelihood of experiencing crime is higher for people living in the 15 per cent most deprived areas (18.0 per cent) compared with people living in the rest of Scotland (11.5 per cent). The difference between the most deprived areas and the rest of Scotland is more pronounced for violent crime (3.8 per cent compared to 2.1 per cent, respectively). Similarly, gay and bisexual men and women are more likely to be victims of violent crimes than heterosexual men and women (4.5 per cent versus 2.6 per cent, respectively), as are younger people when compared with those over 60.
There was no significant difference in the proportion of men and women who reported that they were victims of crime in SCJS (2017‑18), at 12.8 per cent and 12.1 per cent respectively. However, for many types of crime, specific groups will be more adversely affected. For example, a much higher proportion of women than men reported experiencing at least one type of serious sexual assault since the age of 16 (6.2 per cent compared to 0.8 per cent, respectively).
In addition to sexual crimes, other types of crime are also disproportionately experienced by those with protected characteristics. According to the Scottish Household Survey in 2018, just over one in 20 adults reported that they had experienced either discrimination (7 per cent) or harassment (6 per cent) in Scotland at some point over the preceding three years. Among those that had experienced discrimination, 30 per cent believed the reason behind this was their ethnicity or nationality. Aside from 'other' reasons, the next most common motivating factors were said to be the respondent's age or disability.
Accused and convicted
Criminal proceedings statistics show that men are over four times more likely to receive a conviction than women. This difference holds for every age group, but men between the ages of 18 and 40 most likely to be convicted. Men are also far more likely than women to receive a custodial sentences, and the Scottish Prison Service (SPS) estimate that men accounted for around 95 per cent of the total prison population of around 7,500 in 2017-18.
People in prison experience multiple disadvantages, with women in the criminal justice system being particularly at risk. While there have been significant positive developments in youth justice, with a fall in the number of under 18s being prosecuted in court and a decrease in under 18s in custody, the number of older people in prison has been increasing steadily over the last 10 years.
It is possible to say more about how specific groups are affected directly by justice spending as a result of being employed by a justice partner.
Police officers comprise the majority of Police Scotland employees (around three-quarters). Police officers are disproportionately likely to be men, white and not have a recorded disability. As of 31 March 2018, 30 per cent of police officers were women, 1 per cent were minority ethnic and 3 per cent disabled. The majority (63 per cent) of police staff overall were women, but the higher proportion of women held only for lower paid positions. For example, over 60 per cent of police staff paid salaries of over £65,000 per year were men.
The proportion of women employed by Scottish Fire and Rescue Service (SFRS) was 13 per cent in 2019 and the a large majority of (all) staff were aged between 30 and 59.
For the Scottish Prisons Service (SPS), almost 70 per cent of staff are men (both in terms of full terms equivalent staff and headcount), with 8.5 per cent disabled. The majority of staff did not disclose their ethnicity but, among those that did disclose, over 98 per cent of staff were white.
However, some progress is being made in terms of staff diversity. For example, over 48 per cent of SPS recruits in 2018‑19 were women. In 2017-18, 33 per cent of newly appointed Police Officers were women and there was some sign of progress with 5 per cent of newly appointed police officers identifying as BME. Police Scotland regularly report on Equality and Diversity Mainstreaming and Outcomes, with a focus both on workforce, and a commitment to rights based approach to policing. SFRS are implemented a plan to balancing the workforce. The key aims of this Action Plan are to address the Gender Pay Gap and broaden the organisation's workforce profile.
Much like the Crown Office and Procurator Fiscal Service (which has it's own chapter within this document), around two thirds of Scottish Legal Aid Board (SLAB) and Scottish Courts and Tribunals Service (SCTS) staff are women. In the SLAB four out of 13 senior managers and above grades were women in 2018-19, with 35 women occupying 71 senior managers and above positions in SCTS.
Cost of crime
More broadly, the economic and social costs of crime in Scotland are estimated at around £4 billion per annum across Scotland. These costs disproportionately affect communities that are more deprived. The Justice portfolio plays a key role in promoting equality by, for example, tackling the causes of crime, which are often rooted in inequality, through an increased emphasis on prevention and rehabilitation. It is also crucial for targeting specific types of crime, such as violence against women and girls, and all forms of hate crime.
The Justice portfolio plays a role beyond criminal justice, with civil courts and tribunals playing an important role in society – including in the protection of children and vulnerable adults, as well as in addressing discrimination. It is also known that some people are more likely than others to experience civil justice problems. For example the Crime and Justice Survey results show that an estimated 38 per cent of disabled people experienced a civil law problem compared with 28 per cent of non-disabled people.
Key Strategic Budget Priorities
The 'Vision for Justice in Scotland' published in July 2017 sets out the way in which we will work towards a safe, just and resilient Scotland. It seeks to build on recent success and progress across the Justice portfolio, identifies current and emerging challenges and sets out our priorities to tackle these challenges.
There are a number of strategic priorities that are key to promoting greater equality. We continue to work toward delivering on these priorities. These include penal reform where there is a fundamental shift towards prevention and rehabilitation, informed by evidence that community-based interventions are more effective at reducing reoffending than short-term imprisonment. In line with this evidence, we have extended the presumption against short periods of imprisonment to include sentences of 12 months or less and will monitor the impacts of this change over the course of 2020-21.
The Scottish Government is committed to taking the actions necessary to address the challenges that have arisen as a result of a rapid increase in the prison population from 2018-19 onward. Compared with a decade ago, far fewer people now receive custodial sentences each year. However, those that do receive custodial sentences on average receive longer sentences and are increasingly complex to manage (for example, as a result of the increase in convictions for sexual crimes and serious organised crime seen over recent years). We will take forward a series of actions aimed at managing the current prison population and reduce the number of people in prison in the longer term. Work is also continuing to take forward work to modernise Scotland's prison estate to meet the changing demands of the prison population and to transform the lives of people in our care. This includes work towards the building of a replacement for HMP Barlinnie.
There is also a strong focus on tackling violence against women and girls as we continue to implement Equally Safe, Scotland's strategy to tackle and eradicate violence of this nature. We continue to work with justice agencies to find ways to reduce the trauma, improve the experience of victims of gender-based violence within the justice system and strengthen the criminal justice response to tackle men's behaviour through supporting integrated behaviour change programmes.
The Domestic Abuse (Scotland) Act 2018 introduced a specific offence of domestic abuse covering both physical and psychological abuse. We will continue to support agencies to understand the full spectrum of domestic abuse as defined in the legislation through a range of activities. These include the development of resources for professionals in housing, social work, health and schools to enhance a shared understanding of domestic abuse and information sources where further support can be found.
We are committed to improving the experiences of victims and witnesses and support a range of measures to help individuals and communities feel empowered, resilient and safe and put the protection of victims' rights at the centre of our justice system. Work is being progressed through, for example, the Victim's Task Force co-chaired by the Cabinet Secretary for Justice and the Lord Advocate to better support victims and witnesses of crime.
The Children (Scotland) Bill was introduced into the Scottish Parliament on 2 September 2019-20. The Bill aims to ensure that the views of the child are heard in contact and residence cases and to ensure that the welfare of the child remains the primary consideration in these cases. It introduces a new special measure into the Vulnerable Witnesses (Scotland) Act 2004 prohibiting a party from personally conducting the remainder of their case in certain circumstances. The Bill also includes a provision which gives the court the power to order a range of special measures if attending or participating in a Child Welfare Hearing is likely to cause distress that could be alleviated by use of a special measure.
Equalities Implications of The Scottish Budget 2020-21
To reduce reoffending and inequality, it is essential that we address the underlying causes of offending. These underlying causes can involve multiple inequalities and risk factors, including deprivation, adverse childhood experiences and health problems. Community Justice Scotland, the national body launched in 2017, supports this holistic approach to prevent and reduce further offending and reports against local Community Justice Outcome Improvement Plans annually. Funding for our approach to community justice and reducing reoffending is provided through the Community Justice Services budget, as well as central grants to local authorities for criminal justice social work services.
A central element of our vision for reducing reoffending is that our criminal justice system uses prison less and has an even stronger emphasis on robust community sentences, including greater use of electronic monitoring. Evidence shows that community sentences are more effective at reducing reoffending than short prison sentences. They can also help to prevent some of the detrimental impacts of prison. These detrimental impacts can be particularly acute for marginalised groups, such as women, young people, older prisoners and children of people in prison. We have extended the presumption against short periods of imprisonment to cover sentences of 12 months or less and keep a continued focus on robust and effective community disposals, such as community payback orders, as well as promoting the use of other non‑custodial interventions, including diversion from prosecution and structured deferred sentences.
An additional £2.8 million (2018-20) has been invested to expand the innovative Caledonian programme to provide court ordered rehabilitation services to male perpetrators of domestic abuse, which target the underlying causes of their actions. Nineteen local authorities now deliver this fully integrated behaviour change programme and all local authority hubs are actively taking on referrals. This, broadly speaking, means that 75 per cent of the population of Scotland live in local authority areas which now deliver the Caledonian programme. Funding contributes to outcomes aimed at reducing reoffending, prevent offending and to tackle the underlying causes of crime. To support the ongoing delivery of this programme funding will continue into 2020-21.
We know that many women who offend have multiple disadvantages, including experience of trauma and abuse. With the Scottish Prison Service and other key agencies, will continue to progress transformation of the female custodial estate to address the specific needs of women offenders. This includes continuing the development of two innovative community-based custody units in Glasgow and Dundee by the end of 2020 that were mentioned in the 2019-20 Equality Budget Statement, as well as the construction of a smaller national facility at HMP Cornton Vale. These facilities will help women in custody to overcome issues such as alcohol and drug abuse, mental health and trauma, which evidence shows can drive offending behaviour.
The Justice portfolio's continuing investment to tackle violence against women and girls (VAWG) will have an ongoing and positive impact on women and young people. In 2020-21, we will invest in specialist front line services to help victims to engage with the justice system and support a pilot to visually record police statements in rape and attempted rape cases to reduce secondary victimisation or traumatisation through the criminal justice process.
There will also be investment in measures to improve the experience of victims of rape and other forms of sexual offending of the justice system. In line with our commitment in the Equally Safe Delivery Plan, we will continue to explore the application of the Barnahus concept for immediate trauma-informed support for child victims of serious and traumatic crimes within the context of Scotland's healthcare and criminal justice system.
People of other nationalities make up a large proportion of those who are referred to human trafficking-related services. Support services must therefore take account of a wide variety of cultural and social factors, as well as providing psychological trauma support. We will continue to work with partners to implement Scotland's trafficking and exploitation strategy with the explicit vision of eliminating human trafficking and exploitation, through actions to identify victims and support them to recovery, identify perpetrators and disrupt their activity, and address the conditions that foster trafficking and exploitation.
Scotland is committed to meeting the benchmark set by international treaties and obligations to tackle violence against women and girls – as a modern democratic country, we aspire to the creation of an inclusive Scotland which protects, respects and realises the human rights of everyone. Recognising the links between human trafficking and the exploitation of women through prostitution as a form of violence against women, we will bring forward a consultation on approaches to challenge demand for prostitution among men and support work to reduce the harms associated with it and help women to exit.
Legal aid helps people to defend or pursue their rights if they cannot afford to do so and resolve disputes and problems in their lives. We have considered the report of an independent review received in February 2018 and opened a consultation on the key recommendations. The Scottish Government response to this will improve access to justice, taking a user-focused approach to the provision of advice and legal services. This tackles inequality and builds individual and community resilience. The legal aid fund pays for legal services provided by solicitors employed by the Scottish Legal Aid Board and private solicitors who are registered to provide legal aid.
We are continuing to focus and align our efforts to reduce the inequality gap through our ambition to Build Safer Communities. Through our support to the Inspiring Scotland Link Up programme, our funding of the Scottish Violence Reduction Unit; Medics Against Violence; No Knives, Better Lives; the Crimestoppers Fearless programme and the Navigators' initiative amongst others we will support a number of positive outcomes for communities.
We know that families living in deprived areas, young children and older people are more likely to experience unintentional harm. We continue to work in partnership with the Scottish Fire and Rescue Service, Royal Society for the Prevention of Accidents (RoSPA), Child Accident Prevention Trust (CAPT), the Scottish Community Safety Network, as well as COSLA and local partnership networks to support initiatives that raise awareness and share good practice and approaches that help reduce unintentional harm.
Following the public consultation on the sale and use of fireworks in Scotland, which received 16,420 responses, we are progressing our ambition that everything possible is being done to ensure fireworks are used safely and appropriately. We have heard clearly how fireworks can cause distress and alarm to those who have noise sensitivity and the impact in particular on persons with autism and armed forces veterans. The Firework Review Group chaired by Alasdair Hay, will report its ideas for change in the summer 2020.
Through Scottish Budget 2020-21, we will continue to support the Scottish Violence Reduction Unit (SVRU) and Medics Against Violence to deliver the public health approach to preventing violence. This involves treating violence like a disease which can infect communities much like a virus can. Therefore, their work will continue to focus on stopping violence happening in the first place among particularly vulnerable groups and within deprived communities. Much of our work to eradicate sectarianism will also promote prevention – through education; changing attitudes and challenging unacceptable behaviours.
Risks to safety, such as fire, vary by protected characteristics, including disability, and by deprivation. We will continue to invest in the Scottish Fire and Rescue Service (SFRS) to support its plans to modernise and redesign services to achieve a transformational shift to prevention and collaboration where the need of local communities is greatest. Over 2020-21, SFRS transformation efforts will include expanding prevention activities to encompass a wider range of risks faced by older and vulnerable people in their homes. This underlines the Scottish Government's commitment to ensuring that SFRS can broaden its contribution to the public sector and directly target equality groups.
For policing, by continuing to protect the revenue budget of the Scottish Police Authority in real terms, we will continue to support Police Scotland and the Scottish Police Authority to implement 'Policing 2026', the long-term transformational strategy for policing in Scotland. The strategy, which builds on the Scottish Government's Strategic Police Priorities, is a direct response to the changing demands policing is facing, with efforts increasingly focused towards addressing vulnerability and the consequences of inequality. For example, a key priority in Scottish Budget 2020-21 is improving multi-agency responses to those who present to police in mental health distress. It will support efforts to ensure that the police workforce is properly reflective of the people it serves and that Scotland continues to benefit from a modern and responsive police service that is fit for the future.
Tackling hate crimes continues to be a key priority. Linking with Connected Communities portfolio, policies will be progressed to help prevent and address hate crime in all its forms. Legislation will shortly be introduced in the Scottish Parliament that will consolidate and reform existing hate crime law with the aim of providing for a modern, easily understandable set of hate crime laws that can be used to help hold to account those who commit offences motivated by prejudice and hatred.
Fairer Scotland Implications of The Budget
In 2020-21, the Scottish Government will continue to deliver reforms to justice system in Scotland to improve access to justice and address the experience and consequences of poverty and socio-economic disadvantage. This includes continuing to support robust and effective community disposals, such as community payback orders and electronic monitoring, alongside the extension of the presumption against short sentences to 12 months.
Disadvantaged communities experience higher rates of crime. We are also establishing a dedicated Victim's Task Force to ensure victims' voices are heard and to streamline their journey through the criminal justice system. The task force will be informed by direct evidence from victims. We are also continuing to fund advice services and ensuring that those most in need can access publicly-funded legal assistance.
Crucially, a number of initiatives to reduce violence continue to be funded in 2020‑21, including the Violence Reduction Unit (VRU) and Medics Against Violence (MAV). Addressing the underlying cause of crime by investing in diversionary activities continues to be a priority and investment continues in Cashback for Communities, which focuses on young people aged 10-25. We are also implementing the Serious Organised Crime (SOC) Strategy for Scotland, addressing the presence, visibility and opportunities for SOC in our most deprived communities.
The Justice portfolio remains committed to advancing equality and providing a forum to address the causes of inequality. We are taking forward a range of system wide measures to prevent offending and reduce re-offending as outlined in this document. That will help to protect and support various equality groups, including women, children, gay men and women and older people, from the detrimental effects of crime and accidental harm. These investments and reforms continue to provide an opportunity to maintain and develop an accessible and effective justice system that can meet our wider ambitions to tackle inequality.
3. All of these data sources are available at: https://www2.gov.scot/Topics/Statistics/Browse/Crime-Justice/Datasets
5. These statistics are taken from the Scottish Household Survery 2019 – available at: https://www.gov.scot/publications/scotlands-people-annual-report-results-2018-scottish-household-survey/pages/1/
6. Much of this information can be found in the most recent annual reports of justice partners, with the exception being the Police Scotland Equality and Diversity Mainstreaming and Outcomes Progress Report for 2017-19, which captures a significant amount of important equalities information in regard to not only police staffing, but also wider outcomes. It is available at: https://www.scotland.police.uk/assets/pdf/138327/243045/mainstreaming-report-2017-2019?view=Standard