Vol. 9 No. 12 (December 1999) pp. 554-557.
CRIMINAL JUSTICE IN SCOTLAND by Peter Duff and Neil Hutton (Editors). Brookfield, VT: Ashgate Publishing
Company, 1999. 412 pp. $ 87.95 Cloth.
Reviewed by Cynthia G. Hawkins-Le¢n, College of Law, Syracuse University.
This collection of essays - edited by Peter Duff, a Professor of Criminal Justice in the Law Department at Aberdeen
University and Neil Hutton, a Senior Lecturer at the University of Strathclyde Law School -- is described in the
book's Preface as "the first publication ever to present such a comprehensive and expansive account of Scotland's
criminal justice processes and agencies" (p. xiii). The anthology has two self-described purposes: first,
to explicate the Scottish criminal justice process in its entirety, and, second, to situate the Scottish process
within relevant global political and theoretical schema. Thus, the book seeks to provide a socio-legal context
for the Scottish criminal process. The editors note in the Introduction that the various contributors to the volume
correctly assert that it is inappropriate to refer to criminal justice in Scotland as a "system." Instead,
because of the lack of "a strong element of rational co-ordination amongst the agencies involved [in criminal
justice,]" there is a Scottish criminal justice "process" - rather than a system (p. 2). In sum,
the anthology is an attempt to provide a cohesive and coherent understanding of the system, its origins and future
evolution and/or development.
Contrary to statements in the Introduction, the volume does not appear to follow a concise organizational format.
For example, after summaries of crime statistics in Scotland from the 1950s to the present provided in Chapters
2 and 3, the anthology provides an additional seventeen essays on disparate aspects of the Scottish criminal justice
process - from bail abuse to privatization - in no particular order.
Since the essays are not organized by subject matter, the reader is left to achieve this through their individual
reading and analysis. The reviewer independently organized the 19 substantive chapters into the following subject-matter
categories: Statistics and Trends: Crimes, Perpetrators and Victims (6 chapters); Crime Prevention (3 chapters);
Criminal Procedure (4 chapters); Sentencing (4 chapters); and Public Policy Issues (2 chapters). Once organized
and read in this fashion, the collection accomplishes its stated goal of providing the studious reader with an
in depth account of the Scottish criminal justice process.
Statistics and Trends: Crimes, Perpetrators and Victims
Unlike the United States, according to four national surveys (conducted in 1982, 1988, 1993, and 1996) crime peaked
and leveled-off in Scotland in the 1980s. This was not a result of an increase in the likelihood of imprisonment
or severity of punishment. Since the exact causation was unclear, further research is necessary.
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Similar to U.S. statistics, in 1996, less than 0.1% of those persons who were convicted received a psychiatric
disposal or commitment. Annually, committed offenders represent a mere 0.5% of the total number of patients admitted
to psychiatric hospitals. Similar to the United States, the use of the insanity plea is statistically rare in
Scotland - although, findings of unfitness in Scotland are more frequent than in England. However, it should be
noted that -- contrary to a public misperception of the nature of their crimes -- the majority of these so-called
mentally disordered offenders had committed minor offenses. Unfortunately, although the Scottish government is
currently considering the matter, unlike England, Scotland has no universal policy for the provision of services
to mentally disordered
offenders.
In Scotland, women comprise less than 14% of the total conviction rate. Although, similar to the worldwide trend,
women "hardly feature" (p. 285) as perpetrators of violent crimes. In Scotland, women constitute approximately
3% of the prison population. Thus, it can be assumed that although 14% of the total convictions are of women,
considerably fewer numbers are imprisoned as a result.
In 1991, ethnic minority groups comprised 1.3% of Scotland's total population. England and Wales' minority population
was 5.9%. In Scotland, persons of Pakistani, Chinese, and East Indian ethnic origin comprise two-thirds of the
total ethnic minority population. Thus, Scotland has "proportionately far fewer" (p. 302) ethnic minorities
of African and/or Caribbean ethnic origin than England and Wales. Undoubtedly because of the limited population,
scant research has been conducted in Scotland about ethnic minorities and crime or victimization. Circumscribed
results from victimization studies show that white respondents are somewhat more likely to sustain housebreaking
but ethnic minority respondents are more likely to sustain assault. It should be noted that concern for and attention
to
victims' rights is a relatively new concept in Scotland. In this regard, Scotland is far behind the United States.
Interestingly, a 1996 International Crime Survey evidenced that Scottish citizens were less likely to be crime
victims than citizens of England and Wales and the Netherlands.
Crime Prevention
Similar to concerns of specialists in the United States, criminologists in Scotland have sought to devise effective
crime prevention initiatives. In a novel approach to addressing the rise in crime through crime prevention techniques,
in the late 1980s both the English and Scottish governments implemented the Safer Cities Program in targeted so-called
deprived cities. The common objectives were to: "reduce crime; lessen the fear of crime; and create safer
cities where economic enterprise and community life could flourish" (p. 76). To achieve these goals, each
project had a strategy developed to meet the specific needs of the target area. City projects
involving increasing home security, finding work for idle youth, and youth education programs were the most prevalent
tools utilized. The article noted that the results of the Program were mixed. Since funding for the Program sites
ended nearly five years ago, this reviewer conjectures that a quantitative study is necessary to fully measure
and evaluate the Programs' long-lasting effectiveness.
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Another recurring theme in Scottish crime prevention involves the curtailment of children and youth offenders.
The Kilbrandon Committee, a national commission, was established in the mid-1960s "to consider the provisions
of the law of Scotland relating to the treatment of juvenile delinquents ... and, in particular, the constitution,
powers and procedures of the courts dealing with such juveniles" (p. 243). The Committee's 1964 report served
as the philosophical basis of the Scottish juvenile justice system for the next thirty years. In compliance with
the Committee's recommendations, in 1971, a hearing system for children was established which had the stated goal
of considering and effectuating the child's welfare. Panels of three lay examiners, rather than members of the
judiciary, now
govern informal administrative tribunals in disputes involving the child and its parents. The purpose of the tribunal
is not to determine guilt or innocence but to determine whether the child is in need of "compulsory measures
of care and what such measures should be" (p. 245).
Recent legislation poses a threat to the Kilbrandon philosophy of juvenile justice. Specifically, the Children
(Scotland) Act of 1995 embraces the stance that a child's welfare can be overruled if protection of the public
from serious harm is at issue. This philosophical change mirrors a practical shift towards addressing matters
of public safety and protection. This shift in philosophy is evidenced by the following: the general application
of more punitive sentences or measures; setting the age of
majority in Scotland for criminal responsibility at 8 years of age (one of the lowest in the world); and, the public
identification of child offenders for the sake of public security. It is predicted that this trend will move Scotland
in ways counterproductive to the tenets espoused by the United Nations' Convention on the Rights of the Child.
Peter Young describes a third avenue for possible preventative measures to crime - the fine. The fine and other
monetary sanctions are espoused as "the most commonly used of all penal measures" (p. 182). For example,
in 1994, 71% of all disposals in Scotland were fines while imprisonment was only 7% of all disposals. Since the
sanctioning structure in Scotland is not unique within western society, it is concluded that, "the fine constitutes
the hub of the modern penal system" (p. 183). This observation may be correct, but unfortunately, the fine
is virtually ineffective as a preventative measure since historically Scotland has an abysmal incarceration
rate for fine defaulters.
Criminal Procedure
Christopher Gane situates Scottish criminal procedure as predominantly "adversarial" as opposed to "inquisitorial"
and as conforming to Damaska's "co-ordinate" rather than "hierarchical" model -- thus, "plac[ing]
Scottish criminal procedure in the same 'family' as Anglo-American criminal procedure systems" (p. 56). Therefore,
the Scottish system is part of the common law tradition as commonly defined in United States law.
The Scottish prosecutor possesses a significant amount of professional discretion and independent decision-making
power. Under the guidance of the Lord Advocate, the Scottish public prosecution service is accountable only to
Parliament. Although there are some internal controls and accounting measures, primarily statistical reports,
placed upon the prosecutor by the Lord Advocate, there are extremely limited
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external controls available to the Scottish citizenry. For example, victims dissatisfied with a decision not to
prosecute do not have a right to
challenge the decision in court.
Sentencing and Policy Issues
Some significant and compelling differences between the English, American and Scottish criminal procedure and sentencing
systems are that in the Scottish system: (1) there is no sentencing bargaining; (2) an accused has no right to
a jury trial; (3) lay juries consist of fifteen members; (4) as of 1995, there is no general right to a peremptory
challenge of individual jurors; (5) a verdict of not proven is allowed; (6) a majority verdict is accepted despite
the fact that the jury decides whether the prosecution has proved their case beyond a reasonable doubt (for example,
if seven jurors support a guilty verdict, five support a not guilty verdict, and three
support a not proven verdict, the defendant will be found not guilty); and (7) the right of the accused to appeal
a sentence and/or conviction has only been recognized since the Criminal Justice (Scotland) Act of 1980. These
differences provide a stark contrast of the American and Scottish systems, despite the fact that both are categorized
within the Anglo-American criminal procedure system.
When reviewed in its entirety, the volume serves as a primer on crime statistics and the criminal justice process
in Scotland. The anthology provides a broad overview of ideological approaches and underlying public policies
and Scottish cultural issues as well as many of the resultant laws, programs and policy statements. This dialogue
about the Scottish system is particularly enlightening when situated within the global sphere -- from a historical
perspective as part of the United Kingdom; and, in the future under the control of a Scottish parliament. All
told, the editors Peter Duff and Neil Hutton are correct in their introductory description of the book's socio-legal
perspective as "more concerned with what happens in reality on a day-to-day basis rather than with the more
abstract and distant
legal rules which govern the [Scottish criminal justice] system" (p. 1).
CRIMINAL JUSTICE IN SCOTLAND is a "must read" for criminal law scholars either undertaking a comparative
discourse or seeking expertise in Scottish
criminal justice.