"QUIET please”, reads the screen. “Court is in session.” Livingston’s busy summary court sits obediently silent while today’s sheriff reads the reports one more time and looks up at the 20-year-old woman sitting opposite him.
Jen, as we’re calling her, is here because when she encountered the man she accused of raping her she “saw red”, lashed out, and ended up with a charge for assault.
It is a charge that, on paper, could lead to a prison sentence. But as her lawyer, Iain Smith of Keegan Smith Defence Solicitors, tells the court, she has never been in trouble with the law before and is “extremely vulnerable”, having been subject to a “large number of traumatic incidents in childhood”.
He asks that sentence be deferred – a request for the decision to be delayed to prove that she will not re-offend. The hope is the charge will then be “discharged”, meaning it can only be considered as a previous conviction if she is convicted of another crime in the future.
The procedural summary court is where crimes considered too minor to be dealt with by a jury are dealt with.
There are no witnesses called; neither the victim nor the accused can speak. So when Smith finishes his submission, Jen’s future will be in the sheriff’s hands.
A sentence of up to 12 months or a fine of up to £10,000 can be handed down here. And 49% of those given a sentence of 12 months or less will be reconvicted within the year, according to the most recent figures.
It is argued by lawyers, academics, psychologists and others that many here have long-standing indicators of childhood trauma.
The Ferret previously covered the link between criminal justice and trauma in our From The Margins series, which also looked at addiction and mental health.
In March, an Edinburgh University study added weight to an increasing body of evidence to support the connection, finding that people who have suffered extreme difficulties in childhood are more likely to commit crimes in adulthood.
Now, while it’s still considered controversial in some spheres, Scotland’s judiciary and policymakers are increasingly exploring what that means for how the state deals with offending.
Helping lead the charge are lawyers such as Smith and other professionals, who formed the campaigning group Trauma Aware Law to promote the idea that joining the dots between adverse childhood experiences and bad behaviour is not soft on crime. Instead, they argue that it’s a way to prevent offending in the first place.
Smith understands the difficulty some have in making that leap. “I didn’t see it for the first 25 years of my career,” he admits.
Then, late in 2017, he attended a screening of Resilience: The Biology Of Stress And The Science Of Hope – a documentary by Hollywood actor Robert Redford’s son, James – which explores how stressful experiences in childhood can affect brain development, leading to health and social problems in adulthood.
“And that was the lightbulb moment,” says Smith. “It describes about 80-90% of my clients.”
Now he sees the dramas played out in court differently.
In the courtroom where Jen’s case is being heard, the sheriff has already dealt with six cases out of a total roll of 44. All but one so far have drug addiction issues. Three have explicit mental health concerns. Smith claims many of his clients have disclosed childhood sexual abuse.
In this court, there’s a grieving man who smashed up the windows of his mother’s house and threatened police when they attended. He’s “no stranger to the court”, notes the sheriff as he sentences him with a community payback order which, he hopes, will help address his drug use.
In another court, a woman appears at a review hearing in connection with a fire-raising charge. She tried to set her own flat on fire when she no longer wanted to live. She has a long criminal record and serious mental health issues – but she is also a victim of domestic abuse.
The next woman – “unco-operative” with her community payback order and her drug use escalating – lost a baby at full term.
Behind their crimes, there are victims, too – ex-partners, mothers, friends, neighbours and strangers.
Jen’s situation is different from many in the courtroom. She has a job, no addictions and no prior convictions.
Finally, the sheriff closes the report in front of him and asks Jen to stand. Her sentence is deferred for six months. If she can “keep out of trouble” he will look on this “leniently”, he says.
In this case, there may have been good reasons to avoid hefty penalties anyway. But to Smith, this is one case where guidelines for under-25s introduced by the Scottish Sentencing Council on January 26 this year can be seen to be effective.
The guidelines seek to acknowledge the impact of the developing brain on criminal behaviour, and a sentence should be mindful of that link.
Rehabilitation will be a “primary consideration” and trauma, adverse childhood experience, addiction and mental health issues will be taken into consideration.
When they were launched, the Scottish Conservatives claimed they were an example of “soft justice” that put too much emphasis on the offender rather than the victim.
Earlier this year, the party – which has raised concerns that more custodial sentencing could compromise public safety – proposed that victims of crime and their families were given the right to review sentences considered over-lenient.
But others argue the guidelines for young people will help reduce re-offending and are victim-focused as a result.
A spokesperson for the Scottish Sentencing Council told The Ferret that many young people who have committed offences are “more likely than the general population…to have adverse childhood experiences, such as emotional, physical and sexual abuse, neglect, domestic violence and household substance misuse”.
It admits it simply does not yet have the data to evidence how much impact the guidelines are having. But the spokesperson claims “most respondents” to its consultation “felt the guideline would have a positive influence on sentencing practice”.
Karyn McCluskey (above), chief executive of Community Justice Scotland, is one of those advocates, describing the guidelines as “a significant step change”.
She believes that if we “continue to follow the evidence” we can help to “stop people offending and keep communities safe”.
“Whilst the harm done to the victim must rightly be front and centre, a focus on rehabilitation should also be a central consideration,” she adds. “This has to be good for us all.”
Scotland still has the highest incarceration rate in Europe with remand rates at almost one in three prisoners.
The number of under-25s has been falling. In 2010-11 there were 2147 under-25s in prison out of a total population of 7816. Ten years later that number was just 858 out of 7337 prisoners.
Some are in prison because they present a danger to society. On an average day in 2020-21, there were almost 700 people in prison for homicide and 772 for rape.
But on a daily basis, there were also 568 people behind bars for drug offences, 300 for breach of the peace and 52 for shoplifting.
McCluskey agrees that there is still some way to go but believes it is important to see the positives.
“I see problem-solving sheriffs and defence lawyers making a huge difference in the most difficult of situations,” she says. “I meet people in all walks of life who have made positive changes in their lives and are shining examples of what can be achieved with the right support.”
David McKie, who retired as a sheriff from Alloa Sheriff Court after 15 years in 2019, would be considered a “problem-solving sheriff”.
“Quite often a remand court is more like a clinic than a court,” he says. “Almost everyone has mental health issues, seriously traumatised backgrounds.”
For him, the point of the justice system is to try to prevent offending and reoffending.
“I regarded my job as helping people get out of the criminal justice system,” he says. “Because once you learn that the things that help people desist from offending are a home, a strong relationship, family ties, then you see that our job is to help people find that.”
McKie says there are lots of sheriffs who think like him. “But there are others who have a more restricted view,” he says. “So in terms of achieving consistency [the sentencing guidelines for young people] are quite radical.”
Yet some would like courts to go further. Suzanne Zeedyk, a developmental psychologist who specialises in trauma, contributed to the guidelines and welcomes them warmly.
But she also isn’t convinced that putting in place a set of guidelines will make the cultural shift she claims is needed to cut reoffending.
“Our laws are borne out of our cultural ideas of bad behaviour,” Zeedyk says. If we instead embrace the idea that offending is often rooted in past trauma and not always best prevented by punishment, “well-intentioned people have to realise that they might have previously done harm”.
Accepting that “is the crucial part of change”, she says. “The guidelines try to push that cultural shift into procedure. But we won’t see real change unless we have those bigger cultural conversations.”
FOR Emma Jardine, policy manager for the Howard League Scotland, work to reform the justice system needs to start further upstream.
“A lot of these cases may be the result of people not getting the care and support they need,” she says. “If there is insufficient community-based mental health provision, the chances are that the first people that come into contact with someone in crisis are the police.
“But we should not be sending people to prison not because they are a danger to themselves, but because they are a danger to society.”
In her work, she comes across those sent to prison for minor offences after they breached conditions of non-custodial alternatives, sometimes due to addiction or mental illness.
The ongoing difficulty getting treatment has been well documented, most recently by the Mental Welfare Commission in a report that described people “abandoned” by a broken system.
“What does the judiciary do if leaving someone in the community means they are not going to get the help?” Jardine asks. “They can feel like they no longer have an alternative.”
Back in Livingston, Iain Smith is preparing for an afternoon in court. Next week there will be more familiar stories and different victims.
To him, supporting sheriffs to keep making different choices is key.
He says: “Our system is so steeped in retribution and punishment that I still see judges struggling to counterintuitively say to someone who is caught up in offending, ‘There’s a chance for you to change, there’s some hope. Keep going. I think you can do this’.
“But I also see that if they actually do that, it makes a difference.”
Considering trauma, Smith insists, is not about making excuses for crime. “It is about understanding how they’ve got there, why they may behave as they do, so that we can try to ensure there are no further victims. And that’s something I have to push for.”
The Ferret is an editorially independent, not-for-profit co-operative run by its journalists and subscribers. You can find it at https://theferret.scot/ and can subscribe for £3 a month here: https://theferret.scot/subscribe/
