By Corey Beaton, Student Advisor and EDI Officer
Over the course of our recent summer break, I undertook a Diploma in Criminal Psychology through the online Centre of Excellence. While one would think that eight months of full-time studying for an LLB (Graduate Entry) degree would beget a desire for a peaceful summer break spent on a beach somewhere, I have always worked under the shared assumption that empty hands make idle minds, and so I thought that I would put both to good use!
Criminal psychology is not a subject which I happened to stumble across one day. I work part-time for a mental health service, Safe Harbour Inverclyde, which supports those in our community who are facing mental health issues or have suffered a past physical, mental, or sexual trauma. In particular, working with clients who have presented the latter issues has led to us supporting them through the criminal justice system, including the Scottish Child Abuse Inquiry in one client’s case.
Our clients’ experiences of the Scottish criminal justice system were certainly not positive ones – delays in trial dates being fixed, poor communication between them and the other services involved, and the inevitably brutal cross-examination by the defence agents all fed into their dissatisfaction and exacerbated their mental and physical health issues, with many of whom candidly sharing their experiences with the Lord Advocate for Scotland Dorothy Bain KC and the Solicitor General Ruth Charteris KC when they visited the service, last August.
Thankfully, we are now seeing sector-wide shift towards more trauma-informed approaches to supporting victims and witnesses of crime. Indeed, COPFS’ recent establishment of a pilot programme in domestic abuse cases heard in the summary Sheriff Courts, with a view to ensuring – among other outcomes – greater interaction between the prosecutor and the victim-survivor, has already yielded largely positive results, with 94% of reports proceeding to court. Further proposals as outlined in Lady Dorrian’s Sexual Offences Review, such as taking evidence on commission, have also proven effective in these types of cases, with the appropriate next steps currently being considered by the Scottish Courts & Tribunal Service and the Scottish Parliament.
One such proposal includes the pilot of so-called “juryless trials” in sexual offence cases, and while it is an initiative which is considered to be controversial among many across the profession, it is important to take stock of where we currently are in terms of the prosecution of sexual offences cases:
We learned last week that, while the number of sexual assault cases had decreased by 5% in 2022-23, the number of reports of rape and attempted rape had increased by 5% during that same time; when held against the fact that the waiting time for a solemn case to be called in the High Court is almost fifty weeks, it evidently continues to be the case that justice delayed is ultimately justice denied.
When faced with the prospects of an ordeal which only serves to retraumatise them, many of us can only imagine the courage that it must take for a victim-survivor to come forward, let alone acknowledge what happened to them in the first place. The very least we can do, then, in the words of Judith Herman, is “simply to ask survivors what would make things right – or as right as possible – for them,” for theirs are the voices which should matter most in this debate.
And while this is my position in respect of victim-survivors, we should not forget about those who are alleged to have committed other types of offences under Scots law. I say this not solely for the purpose of providing balance to this piece, but to accord with one of the tenets of the rule of law, that the law is administered and applied blindly to cases such as, among others, the recent case of HMA v Ryan McCabe in which the criminal justice social work report highlighted the prevalence of inequality, deprivation, and adverse childhood experiences (ACES) throughout the life of the accused.
I say this because psychologists like Freud, Bowlby, and Haward have all promoted their respective theories as to why some people choose to commit crimes, citing reasons such as upbringing and learned behaviours as two key contributing factors to this. We should not forget how malleable and impressionable we all were during the formative years of our cognitive development, so nor should we simply discount these adverse experiences. Instead, a case should be heard in as impartial and holistic a way as possible to achieve this equity among the parties.
Looking ahead, insofar as the proposed Victims, Witnesses and Justice Reform Bill is concerned, its contents ought to be met and debated on their merits alone. The debate on its contents thus far has been fractious and disappointing to say the least. As those who either have been or are about to become immersed in this field of law, we surely ought to be able to offer more to this debate than platitudes and ill-informed assertions.
To close by echoing the words of the Lord Advocate that she shared with the Criminal Justice Sub-Committee of the Scottish Parliament almost two years ago, the nexus of criminal prosecution is no longer a two-dimensional relationship between the Crown and the defence, but rather a three-dimensional one involving the Crown, defence, and the victim-survivor who came forward with their report in the first instance, all of whom share an involvement and varying experiences which we should bear in mind as we work towards a more equitable, trauma-informed, and fair justice system in Scotland.
