The Criminal Justice System in Scotland

The criminal justice system in Scotland Katrina Morrison CHAPTER OUTLINE Introduction 2 Policing 2 Prosecution, courts, and sentencing 4 Community justice and other non-custodial sentences 8 Imprisonment 11 Juvenile justice 13 Conclusion 15 Further reading 16 References 16 2 THE CRIMINAL JUSTICE SYSTEM IN SCOTLAND Introduction Though many non-Scots may not be aware of it, Scottish (renamed by the Scottish Nationalist Party (SNP) as the criminal justice is quite distinct from that of the rest of ‘Scottish Government’). The first two terms of the Scottish the UK; it is underpinned by its own legal framework, set Executive were comprised of coalition between Scottish of institutions, actors and processes and, some would say, Labour and the Scottish Liberal Democrats (1999– set of values. Did you know, for example, that Scotland 2008) and, since 2008, the SNP has formed the Scottish has just one police force, that young offenders in custody Government twice as a minority administration (mean- are separated from the adult prison population until the ing it relies on the cooperation of other parties in order age of at least 21, that there are three possible verdicts that to pass legislation) and once as a majority administration. courts can reach in Scottish trials, that statutory commu- Since devolution, the Scottish Government has had nity justice services are provided by fully qualified social control over all aspects of Scottish criminal justice with workers, and that there is an ongoing political agenda the exception of national security, terrorism, firearms, and aimed at reducing the prison population? This chapter drugs, which remain under the competency of the British discusses the defining aspects of Scottish criminal justice, government in Westminster. The onset of devolution pre- beginning with its context and history and then providing cipitated a period of very significant reform of Scottish an overview of the key areas of Scottish criminal justice criminal justice, in domestic legislative activity and wider and practice. This will be structured to mirror the chrono- institutional reform (see Chalmers and Leverick 2013; logical criminal justice process, from police, prosecution, McAra 2008; Morrison 2012; Mooney et al. 2014). court system, victims’ services, community justice ser- An examination of Scottish criminal justice reveals vices, prison system, to the treatment of female and young points of continuity and departure with traditions and offenders in the system. practices in the rest of the UK and in recent years, this divergence appears to be extending (Garside and Ford 2015). Divergent practices in criminal justice can be at- History and context tributed to a number of factors: firstly, the long tradition of Scottish autonomy based on its own legal system and The Union of Parliaments in 1707 united the previously institutions; secondly, the freedom provided in gover- independent Scotland with England and Wales to form nance structures prior to devolution, which allowed for Great Britain. However, from 1707 until devolution in separate penal approaches to become embedded (McAra 1997, Scotland continued to operate under its own system 2005; Morrison 2012; Mooney et al. 2014); thirdly, its own of laws and institutions, and all laws and policies relating tradition and culture, which some claim is more welfarist to Scotland were made by a separate part of the British in orientation (McAra 2005) and which is certainly so in government based in Edinburgh. This autonomy allowed aspiration and in the self-perception of those who work in Scottish laws, institutions, and practices to develop along and around the system (Mooney et al. 2014); finally, the different trajectories to those of England and Wales in growing divergent political sphere, which is allowing— this time (McAra 2005; Morrison 2012; Mooney et al. and indeed promoting—a different sort of political con- 2014). Following the creation of the Scottish Parliament versation about crime and punishment (McNeill 2015) with devolution in 1997, the responsibility for Scottish and beginning to have tangible outcomes for some parts criminal justice was handed to the Scottish Executive of the justice system. Policing Policing in Scotland has long followed its own practices, of Police Scotland which is ‘to improve the safety and well- structures, and governance arrangements; however, the being of persons, localities and communities in Scotland’ recent seismic reforms of policing in both Scotland and (Police Scotland 2017a). It may be easy to critique cor- England and Wales have increased and deepened diver- porate ‘mission statements’ as not reflecting operational gent policing practices between the nations. This section realities but this difference nonetheless reflects differ- will outline some of the key features of Scottish policing, ent aspirations for the service and is in contrast to the emphasising in particular the areas of divergence with emphasis on crime control in England and Wales (Fyfe policing in the rest of Great Britain. 2014). The Scottish approach orientates policing based on It is a truism to say that the work that police do on a harm-reduction and well-being, although this plays out day-to-day basis is broad and spans more than crime con- against the complex and competing demands of a service trol alone, and this is reflected by the main stated mission adjusting to new structures, political imperatives, and an POLICING 3 economic environment predicated on efficiencies, part- (the highest in the UK) compared with 40 per 1,000 people nership working, and prevention. in Lothian and Borders (Murray 2014). It was therefore difficult to make claims about any ‘one’ Scottish approach to policing during that time. Actors and structure In Scotland, the tension between approaches in policing characterised by prevention and partnership versus In common with policing in other jurisdictions, policing more centralised and exclusionary practices has ebbed and in Scotland is marked by a number of features. There are flowed over recent history (Fyfe 2010). Prior to devolution, now more actors involved; although there is a diminished more heavy-handed approaches to policing were seen in role for the private sector (certainly in comparison with the certain parts of Scotland, most notably in Strathclyde’s privatisation of some areas in England under the Common adoption of a zero-tolerance approach to low-level Platform Programme (CPP) reforms), the private security crime and disorder in the mid-1990s, named ‘Operation industry continues to play an important and dominant Spotlight’, though this was notable for diverging from ap- role in the commercial, sporting, and night-time economy proaches followed in other parts of Scotland (Fyfe 2010). contexts (Fyfe 2010). In Scotland, police pluralisation has Following devolution, policing developed along both of occurred with the creation of ‘community wardens’ who these approaches: partnership and reassurance on the one are employed by local authorities and do not have any po- hand (e.g. the creation of 1,000 new community police of- lice powers but who do have a role in providing assurances ficers and a commitment to ‘reassurance policing’ in 2007), and acting as a ‘bridge’ to other agencies (Brown 2013). and on the other hand, the adoption of antisocial policing Additional policing functions are provided by ‘special approaches in Scotland by the New Labour-led Scottish constables’, who are unpaid part-time volunteers (Police Executive, provided a means of introducing more draco- Scotland 2017b), and ‘neighbourhood watch schemes’. nian approaches in the vein of policing in England and Questions emerge, however, in relation to the equity of Wales (Fyfe 2010). During the New Labour era in Scotland the pluralisation of policing and security—the provision of (1999–2008) and England and Wales (1997–2010), polic- services in Scotland is often not correlated with the degree ing in Scotland therefore reflected the flows of influence in of need in particular areas (Fyfe 2010). criminal justice policy between the two jurisdictions. The creation of a single police force, Police Scotland, In the climate of public sector austerity since 2008, the in 2013 represented a period of radical change to polic- Scottish Government claimed the fragmentation of policing in Scotland and cemented divergence from practices ing over the relatively small area of Scotland was waste- in England and Wales. As policing in England and Wales ful and inefficient, with the Cabinet Secretary at the time becomes more devolved with greater opportunity for stating ‘we cannot afford to do things eight times over’ democratic involvement via the creation of Police and (MacAskill, quoted in Fyfe 2014: 498). However, it is also Crime Commissioners (PCCs), policing in Scotland has true that these reforms took place in the context of in- been centralised, the initial period of which was marked creasing central control over policing, which has been by central top-down control and the erosion of localised ongoing since the creation of the devolved Parliament approaches (Fyfe 2016). in 1999—it is seen, for example, in the creation of the Prior to 2013, chief constables in the existing eight po- Scottish Policing Board in 2009, created in order to create lice forces were afforded a degree of autonomy to formu- national strategic priorities (Fyfe 2014). Whether the cre- late strategic and operational objectives (Donnelly and ation of Police Scotland was motivated by

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