Justice in Scotland: vision and priorities

Current and emerging challenges

While there have been successes, there are, of course, re-current and emerging challenges.

There are a number of specific challenges that we face.

1. increasing inequality and its potential effects on crime, violence and civil justice problems

2. adverse childhood experiences and their impact on the justice system

3. delivering a further, decisive shift in resources to focus on prevention and early intervention

4. the concentration of crime, victimisation and civil problems in our most deprived communities

5. improving people's experience of the justice systems

6. the continuing high prison population in Scotland

7. the relatively poor physical and mental health and wellbeing of those in contact with the criminal justice system

8. emerging crimes and threats

9. BREXIT and its potential effects

1. Increasing inequality and its potential effects on crime, violence and civil justice

A number of challenges set out here are driven by, or related to, the levels of poverty and inequality we face in Scotland. As in many developed countries, income and wealth inequality is increasing. The latest data show a stretched income distribution in Scotland, resulting in low income households falling behind those in the middle and even further behind those at the top. Wealth inequality is starker. The wealthiest 10% of households in Scotland own 43% of private wealth.

Research shows that the increasing levels of income inequality in developed countries are associated with poorer health and social outcomes, including those related to crime and justice. Imprisonment, violence, drug use, physical and mental health, social mobility, trust, and child well-being outcomes are just some of the things that are significantly worse in more unequal rich countries. The consequences of income inequality are not isolated to particular groups in society, but affect everyone. Our current levels of income and wealth inequality are a cause for concern across government portfolios and will affect them in different ways.

Scotland's Economic Strategy sets out an overarching framework for how we aim to achieve a more productive, cohesive and fairer Scotland. It is based on the principle that delivering sustainable growth and addressing long-standing inequalities are reinforcing - and not competing - objectives. Creating a fairer society is not just a desirable goal in itself, but is essential to the sustained, long-term prosperity of the Scottish economy.

We must also remain focused on addressing gender inequality, a continuing challenge for the justice portfolio. 80% of the victims of domestic abuse are women, highlighting the gendered nature of this crime and the need for a specific course of action to ensure that women and girls are able to participate equally in society without the fear of violence, abuse or intimidation. Equally Safe, Scotland's strategy for preventing and eradicating violence against women and girls, is co-owned between the Scottish Government and the Convention of Scottish Local Authorities ( COSLA). The strategy regards violence against women and girls as a violation of their human rights.

Wealth is unequally distributed across Scotland

43%: The wealthiest 10 per cent of households owned 43 per cent of wealth. The top 2 per cent alone owned 20 per cent of all personal wealth in Scotland.

52%: The 'middle' 40 per cent owned around half of household wealth in 2010/12

5%: The least wealthy 50 per cent of households in Scotland owned less than 5% of wealth.

2. Adverse childhood experiences and their impact on the justice system

In recent years we have come to understand more about the relationship between Adverse Childhood Experience ( ACEs) and future offending and imprisonment. ACEs are traumatic experiences that can have a profound effect on a child's developing brain and body with lasting effects. There are ten recognised ACEs, categorised into three broad types - abuse, neglect and household dysfunction. The latter type of ACE includes having an incarcerated relative, a mother treated violently, substance misuse and mental illness in the household.

Adverse Childhood Experience ( ACEs)

Abuse

• Physical
• Emotional
• Sexual

Neglect

• Physical
• Emotional

Household dysfunction

• Mental Illness
• Mother Treated Violently
• Incarcerated Relative
• Substance Abuse
• Parental separation

Compared with people with no ACEs, those with 4+ ACEs are:

x4 times more likely to be high risk drinker

x6 times more likely to have had or caused unintended teenage pregnancy

x6 times more likely to smoke e-cigarretes or tobacco

x6 times more likely to have had sex under the age of 16 years

x11 times more likely to have smoked cannabis

x14 times more likely to have been a victim of violence over the last 12 months

x15 times more likely to have committed violence against another person in the last 12 months

x16 times more likely to have used crack cocaine or heroin

x20 times more likely to have been incarcerated at any point in their life time

The English ACEs study showed that people who have experienced four or more ACEs when compared to another person who has no experience of ACEs are almost 9 times more likely to experience incarceration. The Welsh ACEs study showed even starker results (see in previous page). Those with four or more ACEs were 14 times more likely to have been a victim of violence over the last 12 months, 15 times more likely to have committed violence and 20 times more likely to have been incarcerated at any point in their life time.

A recent study by the Scottish Children's Reporter Administration found that of a sample of one hundred 8-11 year olds referred to the reporter in 2012-13;

• 39% had disabilities and physical and/or mental health problems
• 53% had recorded concerns about their educational achievement, attendance or behaviour in school
• 25% had been victims of physical and/or sexual abuse; most by family members or associates of their parents.

Further, the SPS Prisoner Survey of Young People in Custody 2015 showed that a third of young people in custody reported being in care at some point in their life. Almost half of children in care have a diagnosable mental health disorder and two-thirds have special educational needs.

Incarcerated relatives and mothers being treated violently are recognised adverse childhood experiences. It is estimated that 20,000 children are affected by parental imprisonment in any year. Children of prisoners were more likely than other children to show antisocial behaviour and have mental health problems. Further, the immediate effects of parental imprisonment can include feelings of shame, social stigma, loss of financial support, weakened ties to the parent, changes in family composition, poor school performance and increased risk of abuse or neglect. Long-term effects can range from the questioning of parental authority, negative perceptions of police and the legal system, and increased dependency to impaired ability to cope with future stress or trauma, disruption of development and intergenerational patterns of criminal behaviour.

1 of 3 of young prisoners have been in care at some point

3. Delivering a further, decisive shift in resources to focus on prevention and early intervention

There is international evidence in favour of a preventative approach drawn from across health, criminal justice, education and other settings. For example we know that:

1. addressing the underlying causes of crime, such as protecting children from abuse or neglect, reduces the urge or need to offend.

2. lack of meaningful adult relationships is a key feature for young people who offend.

3. reducing the opportunities for crime is important so that those whose behaviour has not been moderated by deterrence strategies simply find it difficult to offend.

4. in civil matters, early intervention with good advice for problems that arise can prevent the involvement of the courts and can reduce hardship for a large number of people.

5. a "Whole Systems Approach" based on prevention, early intervention and multi-disciplinary support has been successful in diverting children and young people away from offending.

6. community-based interventions are more effective at reducing re-offending and social exclusion than short term imprisonment.

7. short custodial sentences offer limited opportunities for rehabilitation and some people leave custody with the same underlying issues as when they entered- and people are actually more likely to reoffend after serving a short custodial sentence, not less.

40 % The Christie Commission reported that it was estimated that 'as much as 40 per cent of all spending on public services is accounted for by interventions that could have been avoided by prioritising a preventative approach'.

We already have a track record in shifting towards prevention, including Scotland's recent success with youth justice. But as things stand, the cost of enforcement still outweighs the amount spent by the justice portfolio on primary prevention and early intervention many times over. The cost of criminal justice system itself is around £2.5bn per annum. In times of reduced public spending, a shift towards preventative spending is challenging, but it is more likely to be effective in the long term.

£2.5bn per annum: Cost of criminal justice system

4. The concentration of crime, victimisation and civil problems in our most deprived communities

Overall the risk of being a victim of crime in Scotland has fallen

• 5.9% pts decrease since 2008/09
• 2.4% pts decrease since 2012/13

But people in deprived areas are not experiencing the same fall since 2012/13

• 4.8% pts decrease since 2008/09
• no change since 2012/13

We understand more about the associations between poverty, victimisation, offending and imprisonment - and their concentration. Material deprivation may exacerbate the conditions for crime by increasing stress and making it more difficult to access support and services. In turn this can contribute to poor mental health, homelessness, substance misuse and difficulties in parenting effectively. We increasingly understand that simply reducing poverty through increasing income will not reduce offending as the underlying factors are complex and long standing.

The experience of crime and victimisation among our poorest citizens in Scotland is well established. The improvements in crime and victimisation referred to earlier are not experienced equally across our communities. While the risk of being a victim of crime has fallen overall, it remains unchanged in our 15% most deprived areas between 2012/13 and 2014/15. Overall, it is estimated that around 4.4% of adults experience 58% of all crime, suggesting high levels of multiple victimisation.

Civil legal problems can both contribute to, and result from, disadvantage and inequality. One-in-five (21%) adults had experienced at least one civil law problem in the last three years. The most common problems were problems with home, family or living arrangements (14%).

People living in our most deprived areas are at greater risk of:

1. being a victim of crime

2. civil law problems, including with neighbours, debt and housing

3. hospitalisation or death from alcohol or drug related causes

4. imprisonment and criminalisation

We understand more about the importance of place-making and the quality of the local environment in creating safe communities. Feeling safe in a community is fundamental for an individual and community to be resilient and thrive. Research shows that people use sophisticated strategies to avoid people and places where they feel unsafe. We also know that while improvements in physical living conditions are welcomed by residents in regeneration areas, addressing problematic relationships, abuse, victimisation and problems/disputes with neighbours are, overall, possibly more important and likely to have long term benefits.

5. Improving people's experience of the justice systems

The proportion of criminal cases dealt with in 26 weeks has fallen

• 74% : 2008/09
• 64%: 2015/16

We know that those who come into contact with the justice system want to feel valued and respected, and have their diverse needs met, without unnecessary time and delay. We know that people want our justice systems to be visible, transparent, fair and open to all, but that it can be difficult for people to access the right information at the right time to help them understand how our justice systems work.

The efficiency of prosecuting criminal cases through the sheriff court system affects victims, witnesses, accused people and others. Overall, there have been changes in what the system has been handling over recent years. In particular, the complexity of cases being considered has increased, with greater focus on cases involving domestic abuse and historical sexual offences. Despite successful efforts by justice organisations to mitigate the effects of this change in caseload, the time taken to conclude a case in the justice system (caution and charge to verdict) is still longer than it was 5 years ago.

The Scottish Courts and Tribunals Service's Evidence and Procedure Review has indicated that the digital transformation of the summary criminal justice system could substantially reduce the number of witnesses cited to court, repeated hearings and delays. Pre-recording of evidence should reduce the trauma of children and other vulnerable witnesses attending court.

Within the civil justice system, a Scottish Government Stakeholder Summit on Family Justice Modernisation in 2016 acknowledged that legal proceedings in family justice cases involving children are often subject to delay, slowing the decision making process and impacting negatively on children and carers. Studies of parents undertaking court action in respect of contact have reported high levels of stress. The Summit also found that interaction between the civil and criminal justice systems is not always consistent or effective.

£10,000,000: Cost of cases repeating stages unnecessarily (2014/15)

6. The continuing high prison population in Scotland

All else being equal, the fall in overall crime levels should have led to less pressure on the criminal justice system. But at the same time, the system has become increasingly effective at bringing the perpetrators of crime to justice through improved clear-up rates, particularly for serious violent crime.

As a result, the 41% fall in crime has not been reflected in an equivalent fall in court convictions. Over the same period, court convictions fell by 21%, and the number of custodial sentences fell by 17%. Further, over the same period, average custodial sentence lengths increased by 23%. This reflects the more complex and serious cases that the prosecutors and courts are handling.

The number of individuals in prison per 100,000 of population

While it appears that crime may be falling more quickly in Scotland than in most other Western societies over a number of years, Scotland's prison population remains stubbornly high, although now stable. It remains higher than any other Western European jurisdiction, other than England and Wales.

Prison will always be required for those people whose offences are serious, or where there are significant risks to public safety. Custody can provide an important opportunity for recovery. The Scottish Prison Service's organisational review (2013), Unlocking Potential, Transforming Lives, aims to help build a safer Scotland by unlocking potential and transforming lives and supporting former prisoners' reintegration back into the community.

Further, the SPS's vision for young people in custody aims to use the time a young person spends in custody to enable them to prepare for a more positive future. An ambitious new approach to custody for women, drawing on international evidence and the recommendations of the Commission on Women Offenders (2012) is also underway.

Nonetheless, the international evidence shows that prison can have damaging effects through weakening social ties, creating stigma, adversely impacting on employability and housing stability, ultimately increasing the likelihood of reoffending.

Evidence also shows that imprisonment for short periods is counterproductive. Short prison sentences do not prevent reoffending. Over half of those released from a prison sentence of 6 months or less are reconvicted within a year, and over two-thirds of those who are reconvicted end up back in prison. For some people, prison continues to be a revolving door.

7. The relatively poor physical and mental health and wellbeing of those in contact with the justice system

The population in contact with the criminal justice system is a vulnerable one in health and wellbeing terms, with people experiencing high levels of mental health problems, trauma, learning difficulties (sometimes undiagnosed) and challenges with problem alcohol and substance use. These commonly co-exist with long term social disadvantages that are now well understood as the wider determinants of our health. Addressing the health and social needs of this population can contribute to reducing health inequalities and strengthen a human rights approach to health.

Recent data shows:

• 39% of those detained in police custody have a mental health disorder
• up to 34% of those in police custody have hazardous alcohol intake or alcohol dependency
• over 70% of male prisoners had an Alcohol Use Disorder with over a third possibly dependent
• over 70% of prisoners test positive for illegal drugs at reception
• over 25% of prisoners stated they had used NPS ('legal highs') before going into prison
• 72% of prisoners smoke compared to 21% of the general population

Those who experience imprisonment can have particularly poor health outcomes. People imprisoned in Scotland between 1996 and 2007 experienced excess mortality that is only partly explained by levels of deprivation. Men who had been imprisoned had a relative risk of dying that was more than three times that of men in the general population. Women's relative risk was over seven times higher. The majority of deaths occurred outside prison, commonly in the two weeks after release.

Those who experience imprisonment have a higher relative risk of mortality than the general population

Risk of death

x3 Men

x7 Women

Risk of suicide

x3.5 Men

x11.4 Women

Risk of dying from suicide was 3.5 times that of the general population for men who had been in prison and 11.4 times for women. We know that in comparison to the general population, the prevalence of mental illness experienced by offenders is high. Such high levels of psychiatric morbidity are consistently reported in prisoners from many countries over four decades.

Justice agencies are commonly dealing with situations where the main issues are around mental health and distress, where no offence, or only a minor offence, has been committed. Police Scotland officers attended 42,000 incidents where mental health or distress was a factor in 2014-15. In England and Wales, estimates from different sources suggest that between 2% - 20% of incidents that the police attend have a mental health link. Analysis also suggests that this appears to be increasing.

Unsurprisingly, the prisoner and offender population is ageing too, in part due to the 'cohort' effect and historic crime capture. We continue to have an ageing cohort of drug users, often in poor health, reflected in both death and hospitalisation data. The over-35 age group accounted for 73% of the number of drugs deaths in 2015 with a median age at death of 41 years old.

Given that people aged 50 and over are the fastest growing age group in the prison estate, the challenges associated with responding to the needs of older prisoners are likely to become more pressing in the future. These include dementia, managing other ageing related disease and palliative care. Given the health challenges set out above, those in prison are likely to experience poor health sooner than average.

8. Emerging crimes and threats

The nature of crime and associated demands on the justice system are subject to constant change. Over recent years, there has been substantial growth in the volume of cases involving domestic abuse and sexual offences, due to increased confidence amongst victims in reporting these crimes and the actions of justice agencies. However, we know that these crimes remain under-reported and we expect these pressures to continue.

Alongside existing pressures, we know that we are faced with a number of emerging crimes and threats such as cyber-enabled crime and terrorism. The growth of the internet has also brought many opportunities to both legitimate and criminal activities. As the internet becomes more and more part of our daily lives, the impact of, and potential disruption caused by, internet crime is likely to increase for individuals and businesses.

The breadth of crime that could be committed on the internet presents particular challenges to the criminal justice system. For example, the potential reach of the internet where one offender could be in contact with multiple victims across a wider geographical area than would have been previously possible. Internet crime can cover such diverse areas as serious organised crime groups conducting mass fraud or business extortion, fraudulent on-line sellers, sexual crime and harassment.

Finally the terrorist threats the UK faces are more diverse than ever before. We face an unpredictable situation, with the potential for more frequent terrorist attacks. Counter-terrorism policy in the UK is reserved to the Westminster Government, but many aspects of preparation, prevention and dealing with the consequences of a terrorist act in Scotland are managed by the Scottish Government, Police Scotland, Crown Office and Procurator Fiscal Service, local government and other agencies. The challenge of preventing and addressing radicalisation and extremism also requires strong links with a wide range of stakeholders and a focus on information and intelligence.

9. BREXIT and its potential effects

BREXIT poses a certain challenge for Scotland in the area of Justice and Home Affairs ( JHA), with the potential for significant destabilisation in the coming decade. European law is woven into the fabric of law in the UK and Scotland. Withdrawal from the European Union will remove a source of law from the Scottish legal system that has been there for over forty years. There are numerous EU instruments and agreements which facilitate cross border co-operation in the areas of law enforcement, criminal law and civil law.

In the criminal domain this includes Europol, Eurojust, the European Arrest Warrant, prison transfer and the package of EU measures which keep people safe and secure. Civil law interests relate to measures which require reciprocity. This includes jurisdiction, recognition and enforcement of civil and commercial judgments (Brussels Ia - which provides that the choice of jurisdiction by parties to a cross-border dispute should be upheld) and the choice of jurisdiction by parties to a cross-border dispute and recognition and enforcement of judgments on divorce, separation and responsibility for children (Brussels IIa - which sets out private international law relating to cross-border matrimonial matters, parental responsibility and international child abduction).