"\"Y Thilemost researched, my experience is that process is open to doubt. This is %/V/ commentators and knowledge of it can not be said because there are stages in T T criminologists in the to bite very deep. Scottish criminal process which UK seem to be aware that The study of the Scottish are designed to be inquisitorial in Scotland has a separate criminal system therefore ought to be nature, taking the form of justice system, few seem to know viewed as an opportunity not just something more like the that much about it; what its to expand knowledge by learning continental search for the truth of institutions are like, how they about how one more system the facts of the case than of a work or what policies are works - although this is contest. Many of the pre-trial followed within them. My inherently valuable in its own procedures in Scotland take this impression is that if 'outsiders' right - but also as an opportunity form. The Criminal Justice think about the Scottish system to refine and add to the (Scotland) Act, 1995, for at all, then they do so in terms of explanatory agenda. example, requires the accused a mixture of stereotypes and normally to attend an assumptions. The stereotypes A different vocabulary intermediate diet if the case is being decided by summary portray the Scottish system as The conceptual vocabulary that procedure, or a preliminary diet being highly punitive (the high is commonly used to analyse if it is being decided by solemn use made of imprisonment) but a criminal justice in the literature is procedure. The point of these bit quaint (three possible verdicts one derived almost entirely from in a criminal trial). diets is to allow the sheriff to ask questions about the state of preparation of both the prosecution and the defence and ascertain whether there is any The peculiarities evidence that is shared. No plea needs to be entered and the sort of cross-examination of the accused permitted at the trial is not allowed. These procedures of the Scots may take place in court but they can also be held in private. The Peter Young examines some aspects of the crimi- style of committal for trial in court, a principle of adversarial nal process, north of the border. systems, is conspicuous by its absence. An analysis of these procedures couched in terms of People have heard, I think, about the study of the two 'big' concepts such as 'due process' or the procurator fiscal, the main criminal justice systems about 'crime control' would miss their public prosecutor in Scotland, which most has been written - point and style altogether and but seem not to know in any real those of the USA and that of could lead to a serious detail how the fiscal works. England and Wales. For example, misunderstanding of procedures Ironically, perhaps the Scottish most analyses of the police, the which are a characteristic of the institution that is best known is criminal courts and of Scottish system. one which is not formally part of prosecution are couched in terms the criminal justice system at all. which presumes that the This is the Children's Hearing procedures governing these key The role of the fiscal System the distinctive system of stages in the criminal process is Similar issues surround the role juvenile justice, which is part of best described by employing and place of the procurator fiscal. the local authority social work such concepts as 'due process' The fiscal is a much more services department. Although and 'adversarial system'. powerful agent in the Scottish the Hearing has been in operation The relevance of these system than is the crown for over twenty years and has concepts to the Scottish system prosecutor in England and Wales; been quite extensively is, however, a matter of real the fiscal is in charge of police debate. While the trial in the complaints, handles fatal Scottish system is clearly accident inquiries and also has adversarial, the relevance of this formal control of police concept to other stages of the investigations as well as

"Perhaps the Scottish institution that is best known is one which is not formally part of the criminal justice system at all. This is the Children's Hearing System the distinctive system of juvenile justice, which is part of the local authority social work services department."

22 Cjm no. 26 Winter 96/97 "As successive general elections have policy is still, probably, the how to encourage sentencers to Children's Hearing System but make greater use of community shown, Scotland has quite clearly resisted there are more recent ones which sanctions - but the solution was the impact of Thatcherism." deserve to be examined. different. In Scotland, sentencers were to be encouraged by convincing them that these receiving all reports from the in England and Wales. This is not A welfare philosophy sanctions were effective, not by police on crimes and making the to say that a punitive rhetoric and The more recent policies are recasting them in a more punitive decision to prosecute. The fiscal stance has been entirely absent those which have emerged in the form, but because, in the long will also decide the procedure by north of the border - indeed these area of social work services for term, they would lead to a fall in which the case will be dealt; have increased in the last few offenders and in Scottish prisons. crime by tackling the causes of there is no 'right to trial' in the years with the appointment of a It is here that one can see most the behaviour. The policy thus Scottish system in the sense of new Secretary of State - but more clearly the resistance to the drift was not 'punishment in the the accused being able to choose that it has not bitten so deep to punitiveness. community' but social work to appear before a jury. The either at the level of political In Scotland, social work supervision in the community. office of the procurator fiscal is a representation or at the level of services for offenders, including It is important to realise that well established one in the institutions and policy. The probation, community service the spur for this policy in Scottish system and, as a reasons for this are complex but orders and through care, are the Scotland was the then Secretary prosecutor, dates back to at least have to do with the different responsibility of local authority of State Malcolm Rifkind, in an the eighteenth century. civic and political culture of social work departments. These address to the Howard League Significantly, however, there Scotland, on the one hand, and arrangements were created by the (Scotland) in 1989. Moreover, has been a sea change in practice with the distinctive institutional 1968 Social Work (Scotland) Act this has remained the in the last ten years. While, arrangements within the criminal which abolished a separate Government's policy in Scotland traditionally the fiscal prosecuted justice system and for making probation service in Scotland. despite the replacement of the most cases on which a report was policy on the other. This Act also introduced a policy of punishment in the received, now about 45% of As successive general generic social work philosophy, community in England and cases are diverted to a variety of elections have shown, Scotland sometimes called the Kilbrandon Wales by the yet more punitive alternatives all of which have has quite clearly resisted the idea, as the framework within policy of 'prison works'. greatly expanded the fiscals' impact of Thatcherism and this which offending was to be It is easy to overlook the power. The procurator fiscal now has meant that the policies analysed and services delivered. significance of this difference has quasi-judicial powers; the closely associated with it, This institutional and ideological and to presume that what fiscal is able to offer fixed including those in the criminal nexus has proved to be fairly happens in England and Wales penalties, and fiscal fines as they justice area, have, as a matter of robust and resistant precisely must happen in Scotland. It is are known, as well as warnings practical politics, lacked appeal because it has continued to tempting to do this partly and diversions to social work and and failed to resonate. Also, and receive support from the policy because most criminologists reparation and mediation again as a matter of practical making network, especially The seem to have a tacit theory that schemes. In 1993 out of a total of politics, successive governments Scottish Office Social Work what happens in big systems 317,848 reports received by the throughout the twentieth century Services Group but also other must happen in small ones fiscal, there were 46,496 fixed have effectively turned over large key players, including sometime later. Such penalties, 16,469 fiscal fines, areas of domestic policy making politicians. Though central assumptions are not only 14,742 fiscal warnings and 1,160 in Scotland to a local policy government has increasingly met factually wrong but also diversions; in 35,681 cases there making network. This includes the costs of offender services sociologically misleading. were no proceedings; 183,638 The Scottish Office, that works since 1991, the underlying, broad Different penal systems have persons were proceeded against through Edinburgh rather than welfare philosophy has prevailed different cultures and in the courts for crimes and London. The interaction of these even if it is now expressed in institutional arrangements and offences. These developments two factors has created a 'space' different terms. The emphasis on those must be analysed in their are interesting in their own right within which distinctive Scottish treatment has declined and there own terms if they are to be and mark a change in the culture policies have emerged. Indeed, in is now a focus on types of social understood and explained. of prosecution in Scotland as the area of law and order this work intervention that are seen to substantial as that brought about space is reinforced by the be effective in encouraging I began by observing that the by the introduction of the crown constitutional settlement which offenders to address the causes of criminal justice system in prosecution service in England established the UK. The Act of their offending behaviour. Scotland tends to be perceived and Wales. The considerable Union 1707 guaranteed the through stereotypes. The expansion in the powers of the continued existence of three existence of stereotypes should, Effective interventions of course, immediately alert one fiscal also places the fiscal indigenous Scottish institutions This has had a considerable service in a position that is the educational system, the that something is at stake. impact on such key documents as Stereotypes always have the role directly comparable with public church and the law. This created the National Objectives and prosecutors in some of the a geographic and metaphoric of poiicing the 'power- Standards for Social Work in the knowledge' relationship and systems of continental Europe. barrier within which policy Criminal Justice System. This making networks have been able masking deeper structures in document emerged slightly later knowledge and power. It is A less punitive to insist on policies designed (1991) than its equivalents in only for Scottish conditions or perhaps time, as the fashion goes, climate? England and Wales but was to begin their deconstruction. ^^ else to argue that 'national' significantly different in style. If There is another aspect of the policies need to be adapted if the organising concept of the Scottish criminal process that is Peter Young, Reader at the they are to be effectively English document was the idea worth recording and this is its Centre for Law and Society, implemented here. There are of punishment, then, in Scotland, resistance to the drift toward University of Edinburgh, is the numerous examples of both in it was effective intervention. The punitiveness that has been such a author of Crime and Criminal the criminal justice area. The background problem was similar predominant feature in the Justice in Scotland (1996) pub- clearest example of a unique to that in England and Wales - development of policy recently lished by the Stationery Office.

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