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Sunday, June 04, 2006

Scotland Also Has Criminal Justice System Problems

The Sunday Times – (Scotland)
June 4, 2006

Comment: Gillian Bowditch: Justice takes a vacation

Conclusive proof that travel narrows the mind comes courtesy of Kilmarnock Sheriff Court where “floating” Sheriff Donald Ferguson has relaxed the bail conditions of a 16-year-old youth charged with murder in order to let him go on holiday to Bulgaria.

Talk about taking the Pliska! The teenager, who cannot be named for legal reasons, is one of four accused of punching and kicking to death Bryan Drummond, 51, from Ayrshire. The youth, who denies the charges, is currently tagged and confined to his home between the hours of 7pm and 7am.

Understandably, there is outrage. Sheriff Ferguson, it has been implied, is not so much floating as completely detached from reality. In mitigation it should be pointed out that the Crown inexplicably failed to oppose the change to the bail conditions. And, from a completely pragmatic point of view, Sheriff Ferguson may have decided it was in the community’s best interests for the accused to spend a fortnight in Bulgaria with his family rather than a fortnight home alone.

But even without the “bail or jail” debate raging in Scotland, it was a decision nuttier than a pistachio plantation. If you want to make a complete mockery of the justice system, what better way to do it than to equip those accused of the most heinous of crimes with a passport and a ticket to the sun and wave them bon voyage? If the stooshie in the parliament is anything to go by — and Jack McConnell has ordered an urgent review of the situation — Sheriff Ferguson can expect more than a postcard through his letter box.

As ever, I find myself two outrages behind everybody else. The Bulgarian incident is jaw-droppingly surreal but at the risk of sounding naïve, what floors me is the idea of a gang of teenagers kicking to death anybody in the streets of a small Scottish town. The accused in this case are, of course, innocent until proven guilty, but the death of Bryan Drummond is not an isolated incident.

We seem to have become inured to the casual but extreme violence taking place throughout our once thriving towns and villages. For 40 years Stanley Kubrick’s film of A Clockwork Orange was withheld from cinemas because of its horrific content, but every week in Scotland incidents similar to those chronicled in Anthony Burgess’s novel occur.

Young thugs and hooligans appear before the courts day-in and day-out charged with the most appalling acts. But apart from a few well-chosen words from the judge at the time of sentencing, they are processed in a moral vacuum, free to avoid confronting the true nature of their crimes.

That our legal system, once a model for the free world, is under strain is not in doubt. Scotland’s most senior judge, the lord president, Lord Hamilton, is reportedly being treated in a private psychiatric hospital for a stress-related illness.

The Glasgow Bar Association, the largest group of court lawyers in Scotland, last week voted to refuse to represent people accused of sexual offences in a row over legal aid fees that could throw the courts into chaos and allow criminals to walk free.

Senior judges, sheriffs and advocates have in the past few weeks voiced concerns that the Scottish executive’s proposals to place the control of all Scotland’s courts under one person, the lord president, will undermine judicial independence. This is of huge importance. We may be on the brink of losing one of the most important assets of our democracy.

Even if these fears, which are widespread among the legal profession, are not realised, the executive’s plans, far from protecting the acknowledged superiority of the Scottish legal system, will make it a pale imitation of the English one. Is this really what devolution was designed for?

Serious though these concerns are, there is a more fundamental flaw at the heart of our criminal justice system: its failure to reflect the views of the electorate.

The late Lord Denning said that in order to maintain respect for the law, it was essential that punishment adequately reflected the views of the majority of citizens. The “vacation bail” row shows just how far we have strayed from this ideal.

What ministers fail to appreciate is that voters are outraged not simply at the idea of the courts casually amending the bail terms to allow an accused a fortnight of sun in Sofia, but at the concept of somebody accused of murder being out on bail at all. It is true that the criminal proceedings bill will tighten up the law on bail, but when the sound of thundering hooves is echoing throughout the land, it is a bit late to be discussing the merits of locks on stable doors.

When a crime is committed against the ordinary citizen, he has little expectation of its being satisfactorily investigated, which is why, according to an ICM poll, one in seven victims of crime no longer bothers to report it. The sentencing of serious criminals is a concern, but the non-sentencing of lesser criminals is an equally worrying problem.

If the alleged perpetrator of a crime as serious as murder can be treated by the courts in such a cavalier manner what hope can victims of lesser offences have of seeing justice done?