As children many of you will all have read the judge dredd comics. No doubt most will have fully supported Dredd as he dispensed his own brand of justice on the bad asses of Mega City One. Fortunately once Dredd had sent the baddies to prison for a long time children could return to reality, safe in the knowledge that they live in a democracy where justice is handed out not by the arresting police, but in a courtroom in which you can fight your case. That is until now. New laws are giving Scotland’s police officers new powers and Glasgow Bar Association boss Sara Matheson isn’t happy about how these laws are being sneaked in under our noses. Steven Raeburn reports.

It isn’t happening all at once, but a surge of new criminal procedures are being phased into the administration of justice. These relatively unheralded measures are claimed to improve the execution of criminal justice and create a ‘stronger Scotland’, say the Scottish Government. However, practitioners of the criminal law have found that the new procedures have granted draconian new powers to police on the street, and in a very real practical sense, have eroded fundamental principles of justice, in many cases reversing the presumption of innocence. The new rules appear to allow justice to be dispensed on the streets, and not in the courts, transferring judicial decision making to lay police officers, and taking the first steps to the creation of a de facto police state; all without fanfare or objection. Many of those at the front line of the law believe it may already be too late to protest against laws which have been on the statute books for over a year, but whose implementation is only now being gradually phased in.
The provisions are contained in the Criminal Proceedings etc. (Reform) (Scotland) Act 2007, passed in January, sections of which are coming on stream in staggered bursts. Sara Matheson, President of the Glasgow Bar Association is concerned that, despite raising concerns about the speed and direction of the reforms, the views of the profession have been disregarded.
“The Executive spend months, sometimes years, preparing their plans and then they issue it for consultation, giving you four to eight weeks to respond,” she says.
“We are a part time committee, all with full time jobs. So we are forced to cobble together a response, which broadly speaking was ignored.”
The raft of reforms seem to have resulted in the panic which followed the murder of Livingstone youngster Rory Blackhall in 2005. The chief suspect, who was found hanged, had been on police bail at the time, resulting in Jack McConnell’s firebrand speech at the 2005 Scottish Labour conference criticising existing bail measures. Reform in itself, if well conceived and executed, is rarely an issue among practitioners. However, the phased reforms in implementation of the 2007 act are both contradictory and counter intuitive, extending judicial accountability in respect of bail, yet shortening it in respect of police powers to impose bail conditions at street level. Matheson explains the dichotomy.
“The judge is now required to give an explanation for their decision they have made on bail. The difficulty with that is it is lengthening each appearance. The Sheriff has to go through and explain each of the conditions of bail, which is something the agents used to do in advance. The judge is now having to effectively justify their position.”
This first provision appears to be a direct attempt to avoid a repeat of the difficulties surrounding the Blackhall murder, which were indirectly blamed by the Government on the presiding Sheriff, although Sheriff Eddington was only executing the required procedure. As we all know, hard cases make for bad law, and it is feared that Sheriffs, deciding up to 80 or 90 cases per day, may find themselves swamped in drafting justifiable bail reasons, robust enough to survive scrutiny in the event of a similar scenario.
However in contrast to the more stringent measures applied to Sheriffs in granting bail, Matheson and the Glasgow Bar Association are concerned that new powers given to police to impose bail-type conditions without review, will lead to street justice without the right of appeal. In effect making the policemen judge, jury and executioner.
“Police can now impose bail conditions on anyone who is arrested,” explains Matheson’s colleague, advocate Gerry MacLay.
“The police can release anyone arrested on conditional bail, and as a condition of bail they can impose a curfew from 7.00pm until six in the morning or for instance to stay out of the city centre. That is not open to challenge until you turn up at court, which could be as much as 2 weeks later. So the police can basically restrict your liberty,”
“If a Sheriff imposes those conditions you have a right of review, you can go to the High Court. But during that period, until you actually get into court before the Sheriff, there is no right of review between the date the police impose the conditions and the appearance in court to answer the bail undertaking.”
Matheson agrees that transferring judicial powers to police officers who have a different set of priorities is a step in the wrong direction.
“It used to be a court procedure, which was considered very carefully. On the one hand they are bringing in the provision for Sheriffs to think about this a lot more, and on the other, they are saying a cop who has absolutely no insight, who only hears one side of the story, can do this. It is giving them carte blanche.”
The concerns are echoed by practitioners on the east coast, suggesting that the groundswell of opinion within the criminal practice fraternity is widespread. John Scott of the Edinburgh Bar Association says the new measures are reversing centuries old principles of the criminal law.
“We are putting more power into the hands of the police, and it is not clear that sufficient safeguards are there,” he says.
“We are also putting more power into the hands of the fiscal who will have significant discretion in relation to a whole range of crimes cases that are presently dealt with through the courts. It is not clear that the supervision there will be adequate. Particularly considering that people will have to opt out of the penalty they are offered.”
“It is almost as if some crime has been downgraded. Recently in Edinburgh a £1,200 fraud was dealt with by a fiscal fine of £70.”
“Because of the pressures of resources on the system there will be cases that should be dealt with at a higher level that will be dealt with either by the police, without reference to the fiscal, or by the fiscal, without reference to the court.”
Of particular concern to both Edinburgh and Glasgow Bar Associations is the shift in the onus of responsibility attached to the new conditional offers of fines issued, which contain an implied reversal of the presumption of innocence, triggering court procedure automatically if immediate guilt is not acknowledged. Sara Matheson thinks their introduction is tied in to reducing court costs, at the expense of the administration of justice.
“It is justice on the cheap,” she says.
“You get income coming on, for no judicial expenditure. At the moment, even to bring a summary case to court costs a certain amount of money. Whereas this way, you send one letter, and (hopefully) get money back. The difficulty is that it is giving the prosecution complete discretion, and the incentive on the person is not to challenge it.”
“It used to be that you would get an offer of a fixed penalty, and if you did nothing, then you were cited to come to court. If you get the offer of a fixed penalty, you have to actively challenge it or you are deemed to have accepted it. There is an incentive to accept this,”
“From the Executive’s point of view, it is tied in –undoubtedly in my mind- to conviction rates. You are effectively counting a fixed penalty as a conviction, and the crime is ‘solved’.”
John Scott agrees that the overriding agenda of cutting costs is leading directly to shortcutting judicial efficiency, denying justice to the accused.
“The collection of changes suggests that the criminal justice system is viewed in budgetary terms. It is all about trying to spend less money. It is looking at justice as a commodity that you can put a price on, and that price is significantly lower than it was before.”
The position taken by the Scottish Government is somewhat different. Introducing the new legislation, Justice Minister Kenny MacAskill was keen to try to emphasise what he considered the benefits to the public would be.
“\"Our justice system is built on traditional values of independence and fairness but we must also adapt with Scottish society as it changes, modernising to cope with new challenges while retaining the principles on which its reputation has been built,” he said.
“We need to face some home truths about the system as it currently stands. There is simply too much delay and inefficiency at the moment. These reforms will help introduce a system that is more responsive to the needs of victims and witnesses but remains firmly rooted in the principles of fairness, independence and integrity on which our entire justice system is based.”
MacAskill did not directly link the introduction of new bail procedures on Sheriffs to the Rory Blackhall incident, but there was a clear suggestion that they were linked to the bad press which followed it.
“\"I\'m concerned that public confidence in the framework within which courts make bail decisions has been eroded in recent years. As Justice Secretary that is simply unacceptable,” he said.
“Tough enforcement action, including increased maximum sentences for bail
breach, will send a clear message that bail breaches will not be tolerated.
“Together with our summary justice reform programme I am determined to help introduce a system which is more focused on the needs of victims, witnesses and the accused.”
But is this being achieved? The grave doubts expressed by those who work with the system each day of their lives are not mere gripes about procedure. They are expressing deep rooted concerns about the introduction of a de facto presumption of guilt, and the introduction of street level justice akin to the Judge Dredd scenario, where frontline officers are making the decisions on guilt or innocence, rather than reporting on the circumstances of crime and allowing them to be taken to the next level where the facts are considered.
“There is 12 month imprisonment for breaching this police bail. Will people properly understand this?” asks Matheson.
“The courts are now moving to a situation where everything about bail has to be explained properly. Will that be explained fully by the police?”
Consolidating this kind of power in the hands of police officers is a step nothing short of radical. In practice is likely to be applied to accused who are unlikely to fully comprehend the implications, and be without legal representation at the crucial moments.
Power of judgement and sentence has never been at the discretion of street level police before. Taking them out of the hands of experienced Sheriffs and giving over to beat police officers whose experience, education, training, priorities and perspective is a radically different proposition, and in the eyes of the criminal advocacy profession, a step too far.