Perceptions of Summary Criminal Justice in Scotland

6 Discussion

Main Findings

6.1 The main findings from the work are that:

• There was limited and often inaccurate knowledge of the criminal justice system in Scotland among people involved in this research, for both summary and solemn procedures. There was also, however, an appetite to know more about the system.
• People’s perceptions and understanding of the system were based largely on media and popular television presentations of justice, especially in the absence of direct personal or vicarious experience. People acknowledged, however, that such sources may provide factually inaccurate accounts of justice.
• Although not well understood, lay justice was something participants seemed to engage well with and view as a reasonable way of administering localised, community sensitive disposals.
• Participants did not feel sufficiently well informed to comment on the efficiency of the system, yet quite confidently expressed that the system was not fair, effective, quick or simple despite having little or no direct personal experience of it. This was largely because they perceived that victims and witnesses were often treated unfairly, that re-offending rates were increasing and that cases took too long to progress through court. The use of legal jargon in the system was also perceived to make it inaccessible to lay members of the public.

• Both before and after receiving factual information about the justice process, people wanted to see greater respect for victims and witnesses in the system, including better treatment at court and the receipt of case progress information at all stages of the justice process.
• The public court experience was perceived to be intimidating and not easy to understand, and this was compounded by perceptions that professionals working within the court system (including defence and prosecution agents) were unsympathetic to how daunting the experience may be for members of the public.
• Participants perceived the current system to be skewed in favour of the accused, and people shared the view that the court and prison system was not taken seriously by some offenders. This was evidenced in some offenders’ public behavioural displays of contempt for justice when at court, as well as in their perceived failure to comply with court orders. In contrast, participants perceived that the current system treated victims and witnesses with less respect than they deserved.
• People’s views on sentencing were complex and few people expressed a desire for a ‘one size fits all’ approach. Most people wanted to see proportionate sentencing that takes into account previous offending history as well as the personal circumstances of the offender. Being able to use community sentences as an alternative to fines where they could not be paid was something that participants proffered and generally supported.
• Community sentences and community payback were generally well supported by all participants as a means of delivering ‘visible justice’, which directly benefited those affected by the crimes. Views on custodial sentences were more varied, with some people perceiving prison as the ultimate sanction, and others questioning its current effectiveness.
• Restoring and improving social values of respect for justice and authority overall was seen as a key underlying challenge to reducing re-offending in the future. There was no suggestion, however, that responsibility for this should necessarily sit with the justice system.

Findings in Context

6.2 The research revealed relatively little understanding of the justice system in Scotland, and this concurs with self-report data from the most recent Scottish Crime and Justice Survey in which most people expressed that they knew ‘not very much’ or ‘nothing at all’ about the Scottish Criminal Justice System^[14]. This research also supports the Crime Survey data with regard to people knowing even less about the Crown Office and Procurator Fiscal service. Indeed, this was perhaps the area that respondents knew least about, along with lay justice and Justice of the Peace courts. Similar lack of understanding of this component of the system was also reported by victims and witnesses in the earlier SJR Victims, Witnesses and Public Perceptions evaluation report^[15], along with the common misunderstanding that Fiscals were personal advocates for victims.s

6.3 As Wilson’s (2012)^[16] literature review revealed, in the absence of personal experience of the justice system, people often make judgements about the system from other sources of information available to them, such as the media. This research has shown that the media may, indeed, play a key part in informing some peoples’ perceptions of the system and also their understanding - although many people recognised that they may in fact ‘misunderstand’ the system, due to what they perceived as skewed or inaccurate media reporting of actual court cases. The fact that those recruited to the focus groups were deliberately screened to ensure that they had no recent personal experience of the system is likely to mean that the impact of the media for these research participants was even greater than in the wider population. The work also supports Wilson’s observations that vicarious experience can also be influential in directing views of the system and this was apparent from the many anecdotal accounts of friends’, families’, colleagues’ and neighbours’ experiences of the justice system that emerged during the events.

6.4 This work showed that some people do not think that offenders take the system seriously. This was linked to offenders’ perceived behaviour at court as well as non-appearance at court. In essence, people felt that more needed to be done to ensure that accused complied with Orders from the court, including better monitoring of bail. This concurs with evidence from the recently published SJR Bail Evaluation^[17] which showed that professional staff involved in the justice system view that, for some, bail conditions would always be breached and would never be taken seriously (and, indeed, a rise in breach rates may suggest that bail conditions are not being taken seriously). Participants in that research suggested that there may be a need for different strategies for dealing with repeat offenders other than those already set out. Whilst supervised bail may provide one way of achieving this for some offenders, Wilson and Perman’s (2012)^[18] evaluation of supervised bail in Scotland shows that the uptake of this service has declined in recent years. They report that, despite good compliance rates and a reported positive influence of supervised bail on encouraging desistance from future offending, more needs to be done to achieve buy in from the judiciary and wider social work and third sector partners to maximise its potential. At the time of writing, this is something that is now being explored by the Scottish Government.

6.5 This report also supports earlier evidence that, perhaps more than anything else, people want a system that is fair, neutral and respectful (Wilson, 2012). Fairness, as described by the participants in this research, includes the provision of tailored information for victims and witnesses at all stages of the justice process, but especially at verdict and sentencing stages. People want to see protection of victims and witnesses at all times, and respectful treatment by all criminal justice professionals, with cases progressed in a timely fashion. Most of all, delaying tactics by the accused should not be allowed and sentences should flexibly reflect crimes.

Attitudes Towards Sentencing

6.6 It is difficult to draw any conclusions about attitudes towards sentencing in its totality and, as with previous research, the workshop participants demonstrated a wide range of complex attitudes towards sentencing. Participants here did express views that sentencing per se seemed to be too lenient, especially for repeat offenders and many existing sentencing options were not seen as credible. Wilson’s (2012) review similarly reported evidence on public sentencing attitudes and preferences, showing that people have nuanced sentencing preferences but that they do generally underestimate sentencing practice. At the workshops, even when information had been imparted about the respective sentences that might be imposed for different types of offences, people felt these were not sufficient. This perhaps suggests a need for further exploratory work to enable better management of expectations in relation to sentencing, and thus avoid public feelings of undue leniency.

6.7 What the work was clear on was that participants wanted to see repeat offenders treated differently from first time offenders. This supports the earlier findings from Anderson et al (2002)^[19] whose work showed that more severe sentences were preferred by members of the public for repeat offenders. People wanted to know what proportion of summary justice offences were committed by re-offenders and there is perhaps mileage in making re-offending rates more publicly accessible. Whilst prison sentences were perceived to be too lenient by some, and prison conditions too comfortable, re-offending was seen as being quite significant and rising. As discussed above, actual reconviction rate data, which can be used as a proxy for re-offending, shows that there has in fact been a decline in reconviction rates over the previous seven years and so the sources and roots of this conjecture perhaps need further exploration. Again, popular media depictions of justice may be responsible, and this was one aspect of media reporting that people seemed to accept without question.

6.8 Also on sentencing, Nicholson’s (2003)^[20] work showed that half of respondents were in favour of sentence discounting for early pleas; 38% were against. A less favourable view seems to have been expressed in these workshops, with almost all respondents viewing discounting as threatening the credibility and likely punitive impact of sentences.

6.9 The messages revealed here regarding community sentencing also concur with previous research in the field. In 2002, surveys and focus groups were undertaken with members of the public as part of a project specifically to explore attitudes towards sentencing and alternatives to imprisonment (Anderson et al, 2002). This showed support for community based sanctions. Focus group research specifically exploring attitudes to community sentencing in Scotland, carried out in 2007^[21], also showed that people wanted tougher sentences for criminals whilst also recognising that punishment alone would not facilitate offenders’ re-entry into society. This previous research also showed a need for public reassurance that short-term community and societal benefits were being achieved from community service, and there were calls for greater visibility of community service work being done. The current research shows that there is still notable support for community sentencing as an alternative to custodial sentences for lower-tariff offenders, and especially as an alternative to fines where fines cannot be paid. The participants expressed a desire for community service to be more visible. One of the main changes brought about by the Criminal Justice and Licensing (Scotland) Act 2010 was to make sentences served in the community more robust, immediate and visible through the creation of the Community Payback Order. The strong support for community sentences that was expressed here suggests that the introduction of community payback is timely and publicly supported.

6.10 It is difficult to draw any real conclusions about participants’ overall preferences in terms of fines compared to community sentences. Some participants thought that community service was a better way than financial penalties to punish people, and that it would hit offenders harder, act as a visible deterrent and potentially lead to rectifying the social damage, thus leaving victims and society better off than before. Others thought that fines were the best way to go for offenders - ‘hit them in their pockets’.

6.11 In terms of prison sentences, the participants who took part considered that a lengthy jail term was the ultimate penalty, but only if it acted to rehabilitate offenders. The biggest concern was that short-term sentences do nothing to break the cycle of offending, and that the conditions of prison are not sufficiently off-putting to make it seem a real punishment. Another of the changes introduced by the 2010 Act was the presumption against short prison sentences of three months or less. The views expressed by participants who took part in the workshops shows support for such measures because short-term prison sentences were perceived to have no inherent rehabilitative value.

6.12 The establishment of a Scottish Sentencing Council under the Act, to ensure greater transparency and consistency in the sentencing process, also seems to be something that is timely. The public consulted here expressed some views that the current sentencing process may not be consistent or open, especially in respect of geographical variations and differential treatment for first-time and repeat offenders.

6.13 Overall, it seems that, alongside fairness, participants also wanted to see effectiveness and this can be most clearly achieved by the system in terms of its sentencing. They wanted to feel that all evidence has been made available to the court, including the victim’s voice, that the appropriate verdict was thereby made and that the offender’s history (and wider social circumstances) are taken into account when sentencing. Participants also want punishment to be visible as they considered that this was likely to be a deterrent to re-offending and to offer reassurance to victims, witnesses and the public that punishment had been handed out. A system which reduces re-offending to its barest level is one which would be considered (cost) effective.

Increasing Public Confidence

6.14 In revisiting this general public workshop data, it was hoped that core messages could be extracted to shed light on those things that are most likely to give or increase people’s confidence in the justice system.

6.15 It seems clear from the discussions with these participants that there is an absence of ‘good news’ in relation to justice, and no-one who took part could recall a recent situation or media story where thought that ‘justice was served’. Although this is perhaps more a reflection of the nature of media reporting, it does perhaps highlight a need for alternative ways of reaching the public to ensure that more balanced and rounded depictions of justice are conveyed.

6.16 Although few people who had taken part in the groups had direct experience of going to court as either a victim or witnesses, almost all felt that they could comment on previous contact with the police or vicarious contact with the police. Few negative sentiments were expressed with regard to police contact and, in most respects, the participants seemed to endorse the experience of victims and witnesses as reported in the SJR evaluation report, that responses from the police were speedy, efficient and generally positive. The way in which the police initiate and maintain regular contact with victims in the pre-court stages of justice may be taken as an example of good practice which could, ideally, be replicated by other criminal justice organisations.

6.17 Indeed, although little mention was made specifically of interactions with police as part of this work, there was implicit in a number of discussions the notion that the police provided a stable source of access to justice for the community and still remain perhaps the most widely understood and visible part of the system for members of the public. Findings from the Scottish and British Crime surveys have also shown increasing public confidence in the police over time.^[22] This perhaps suggests that lessons may be learned from exploring police practice in relation to interactions with the public which could be applied to other parts of the system, including the courts and Procurators Fiscal service, such that members of the public feel that they too are accessible. The research shows that members of the public perhaps currently feel intimidated by the courts and Procurators Fiscal service, primarily because they do not understand them.

6.18 Achieving greater public awareness of the different components of the justice system, and ensuring that those who do become involved with the system have direct personal contact (including written correspondence) from named and designated individuals who represent different justice agencies may increase public confidence and trust in the system. Indeed, research in England has shown that direct communication between the police and the community is something which may increase confidence or reassurance (Charlton, 2010)^[23] and there is no reason to believe that the same principles would not apply to other agencies. It would, it seems, create a greater connectedness between people and the justice system which at present seems to be isolated at the front-end, with police-public interactions. This may also reduce the risk of the police being wrongly viewed by some members of the public as responsible for justice in its totality, simply because they are visible representatives of the system.

6.19 The current work has revealed that communication at all stages of the justice process was important to informing people’s perceptions of whether the system was supportive to lay members of the public who became involved with it as victims, witnesses or accused. What the work also suggests is that communication need not be written; face-to-face or telephone contact with justice professionals, at key stages in the justice process (from reporting a crime through to court appearance or post-sentencing) is also welcomed. The main desire is for victims and witnesses to be told of what to expect from the system, case progress and case outcomes. Further, it seems that people want such communication to be proactive and automatic, i.e. victims in particular should not have to go looking for information themselves.

6.20 The research has also shown perceptions that some sentencers (Sheriffs and Judges) may lack empathy with the general public experience of crime. Because of this, the idea of Justices of the Peace, who may be more representative of their communities, was welcomed by these participants. This is not new, and research in Scotland by Anderson et al (2002)^[24] also showed that people felt that Judges and Sheriffs were generally out of touch with what ordinary people think, something which they associated with the age and social background of sentencers. Knowing, therefore, that Justices may have shared empathy with ‘ordinary people’ seemed to evoke feelings of confidence among some participants.

6.21 Arguably, the strongest message to emerge from the workshops is that people need to feel that the system is user-led, rather than being process-focussed, and that members of the public see victims, witnesses and society as the end users of the system as well as accused or professionals working within it. At present, it seems that people do not perceive the system as being designed in such a way that it serves the public and, in fact, to the contrary, people expressed beliefs that it was tailored to be flexible to offenders, and constrained by bureaucracies and protocols of criminal justice agencies. Perhaps the ultimate iniquity committed by the system in the eyes of the participants is when the process appears to let victims down. In short, participants wanted victims and witnesses to feel that they were the most important element in the process in order to restore confidence in the system.

6.22 Finally, one of the unprompted messages to arise from the workshops was a feeling among participants that the justice system could not be isolated from wider social patterns in terms of social cohesion and respect for authority. Work by Van de Walle and Raine (2008)^[25] and Jackson and Sunshine (2006)^[26] has also shown that attitudes towards the justice system are embedded in a wider set of attitudes towards public institutions and government. For this particular group of respondents, a perceived declining lack of respect for authority in general and a need for wider social encouragement of respect for authority and the law, especially among parents, was seen as something that was necessary to address before confidence in the justice system could be maximised.

Conclusion

6.23 In conclusion, the work has shown that, at least among these participants, people know little but would like to know more about criminal justice in Scotland and, in particular, there is an appetite for factual knowledge about the system and how it works. A system that is seen as being designed and delivered with the public in mind seems to be fundamental to what people expect and ensuring that the system is end-user-led also seems to be key.