Whose Justice?

Two Scottish Executive publications from the end of 2001 share a concern for justice, though in different forms. "Making Scotland Safer" prepares the way for a Criminal Justice Bill to be published later this year, with the aim of promoting "the safety and security of individuals and communities", while the second Social Justice Annual Report reviews progress towards the Executive's targets and milestones for tackling poverty and social exclusion. This briefing paper summarises the key issues in both and suggests a theological context for assessing them.

In his foreword to this "white paper", Jim Wallace claims that the proposals represent a "significant package of improvements … designed to pursue our principles of effectiveness, efficiency and fairness". Although most of the headlines were captured by proposals on physical punishment of children, there is a wide range of measures running through the criminal justice system; many of these emerge from previous consultations, and this is not itself a consultative paper (although there will be the usual opportunities for input when the Bill is published). Key areas include:

The proposals on sex offenders have been informed by the report from an expert panel on sex offending ("Reducing the Risk"). This report contained 73 proposals, covering all aspects of sentencing and after-sentencing provision for sex offenders. The broad aim of their recommendations was to encourage a multi-agency integrated framework, and many of these do not require legislation. However, the Executive are consulting on legislation "to ensure that the court's decisions … are founded on the best available information … and that they have some objective information about the nature of the offence and any salient features on which to base their assessment of risk". There are also plans to strengthen the registration regime, which will ensure that the Scottish arrangements are similar to those south of the border. But Ministers have ruled out the inclusion of those who committed offences before the register was introduced in 1997, leading some campaigners to describe the proposals as "lamentably poor".

It is proposed to increase maximum sentences for possession of child pornography from six months to five years, and for possession and distribution from three years to ten years; there are also proposals for further minor changes to the law on sexual offences.

A range of measures is proposed to increase the effectiveness of the system of police checks on those working with children and with vulnerable adults; these include restrictions on who can apply for such certificates (currently under consultation), provision that those seeking certificates carry out reasonable checks on the identity of the people on whom they are seeking checks, and provision for informing employers when a person for whom a certificate has been issued is subsequently convicted (or when a conviction later comes to light).

The most controversial proposals are on physical punishment of children: "By setting clear statutory limits on physical punishment, we aim to safeguard children while protecting responsible parents … we respect the privacy of family life and the right of parents to set

the ground-rules for discipline within their own family … however, the state has a role to protect everyone from violence and assault". Following consultation last year, the Executive therefore propose (i) to set out in statute factors which should guide courts in determining what is "reasonable chastisement", such as the nature, context, duration and frequency of punishment, its mental and physical effects, and the sex, age and health of the child (ii) to outlaw blows to the head, shaking and use of implements to punish (iii) to ban completely physical punishment of children under 3, and (iv) to ban completely smacking in all regulated childcare, including by childminders.

Proposals to extend children's hearings to cover 16-17 year old offenders spring from a report by the Advisory Group on Youth Crime ("It's a Criminal Waste") which was published in June 2000. This report recommended setting up pilot schemes to see whether these teenage offenders (particularly, persistent minor offenders) could benefit from the children's hearing system. The white paper emphasises that significant preparation needs to be taken before a pilot scheme can be started – training of hearing members, extending the range of community based disposals for this group of offenders and ensuring that options for the hearing have a strong element of restorative justice.

As the new Drugs Treatment and Testing Orders are piloted in a further 7 sheriff courts, there are suggestions for greater flexibility in how Drugs Courts respond when these break down.

1. In light of successful piloting of the use of electronic tagging to monitor Restriction of Liberty Orders, these orders will be more widely available, and tagging will also be available as a condition of Probation Orders or Drugs Treatment and Testing Orders, and as a condition of prisoners' release on licence.
2. There will be Increased use of Supervised Attendance Orders, and increased penalties for breach of these
3. Determinate sentences will be allowed to run consecutively to a life sentence (at present they must run concurrently)
4. In stalking cases, there will be a power of arrest without warrant, when a Non-Harassment Order is breached
5. "Interim Anti-Social Behaviour Orders" will be available (to counteract delays in obtaining full ASBOs)

Changes to court and criminal procedures include:

1. A "legislative base" for the Executive's victims strategy
2. Transfer from Ministers to the Parole Board of powers to decide on early release of prisoners, and removal of Ministers' discretion about accepting Parole Board recommendations for recall of prisoners released on licence; Ministers will still be able to order recall where they consider it is in the public interest to do so; they will also be able to decide (normally after consultation with the Parole Board), when a crime is committed by a prisoner released on licence, whether the nature of that crime suggests an unacceptable risk to the public such that the licence should be revoked.
3. Powers for the police to retain fingerprints and DNA samples given voluntarily, and a relaxation of rules requiring high-level authorisation for the taking of DNA samples by mouth swab. Those accused of a crime will have the right to challenge a fingerprint certificate
4. Wider powers for civilian staff employed by the police eg in searching prisoners and visitors, carrying out fingerprinting, photographing and handcuffing, and in detaining people to prevent escape; this would clear the way for much greater use of such staff. Current requirements for prison officers always to accompany prisoners attending a police station for interview would be relaxed.

While it is difficult to see all these diverse proposals under one horizon, they are all billed as improvements in the system of "justice". Justice is a core Biblical description of God's action in the world, which goes beyond legal pronouncements of guilt or innocence to God's dynamic activity to put right injustice; the Biblical understanding of God as a judge is rooted more in Hebrew practice and the leadership of those described in the book of Judges than in Western models of legal decision-making.

That Biblical insight would suggest a broad sympathy with attempts to make the criminal justice system work more effectively and efficiently, alongside an awareness of the need for safeguards to ensure that possibilities for injustice are minimised. For example, support for what are presented as common sense easing of restrictions on what civilians in the police service are empowered to do may be tempered by a concern about the dangers of a privatising agenda in this field.

Protection of the vulnerable is at the core of justice, though that does not preclude debate as to who are the most vulnerable in a given situation and how best to protect them. What is labelled "political correctness" may be a necessary corrective to past moral blind-spots, or may become a new moral absolute rejecting other insights. Bodies such as CARE and the Christian Institute have been among the most vocal in resisting proposals to set statutory limits to the physical punishment of children, basing their arguments on the central role of parents and asserting parental rights to discipline their children and their freedom to choose limited physical punishment as one form for that discipline. Others in the churches have approached the matter more from a child protection perspective and awareness of real damage done within families, which has made them more sympathetic to the Executive's proposals.

The increasing interest in "restorative justice" reflected, for example, in the Executive's victims strategy seems to fit well with the Biblical understanding, and there are positive signs of co-operation between churches and the Executive on this and on issues of the through-care of offenders.

Although we normally distinguish criminal or legal justice from social justice (as is done in the division of Executive responsibilities), this is not so clearly a Biblical distinction. The dynamic understanding of justice as sketched above has the restoration and renewal of lives and of relationships at its core. So the Biblical vision of justice embodies the "preferential option for the poor", being oriented towards tackling the injustices that blight especially the lives of the most vulnerable. On that basis, it seems reasonable to consider briefly, alongside the criminal justice white paper, the second Social Justice Annual Report published at the end of last year.

For those who have welcomed the Executive's commitment not only to targets and milestones but to an annual report on progress towards these, it seems disappointing that the second such report generated so little public (or, rather, media) interest.

The Parliamentary debate (not helped by a change of Minister responsible) was discouragingly predictable: the Executive were defensive of the progress that has been made; the SNP quibbled about some moving of the goalposts and "massaging" of figures while arguing that only a Parliament with full powers could deliver social justice; the Tories argued that only in an enterprise culture with business freed from tax and "red tape" will poverty be reduced; Tommy Sheridan argued for real socialist solutions to redistribute wealth; and Donald Gorrie said we were still asking "what can we do to help you" instead of "what can we do to help you to help yourself?". Perhaps this simply highlights the well-worn lines of debate on achieving social justice, along with the difficulty of keeping real people in mind while engaging effectively with such a weight of social statistics.

More worrying was a sense that this was not seen as a major Parliamentary event. The value of this process depends on keeping commitments to social justice at the heart of policy, even when there are other worthy priorities which may be more electorally attractive. Johann Lamont, Convener of Parliament's Social Justice Committee, recently spoke to the Scottish Churches Social Inclusion Network (SCSIN) about tensions between a focus on delivery of public services and prioritising the poorest, particularly when it is the articulate middle class who shout loudest about issues like the SQA fiasco. Effectiveness also depends on finding the policies that will actually deliver change, and directing resources to that, while trusting local groups to make decisions about best use of resources in their community.

The Report (the Executive summary of which accompanies this briefing) highlights data "moving in the right" direction in 16 out of 29 Social Justice Milestones, "data broadly constant, no clear trend" in eight, "insufficient data" to measure in four, and "moving in wrong direction" in one (the number of 16-19 year olds not in education, training or employment).

In releasing the report, the Executive highlighted findings that:

• the percentage of children living in low income households has dropped from 34% in 1996/97 to 25% in absolute terms and 29% in relative terms
• the percentage of children in workless households fell from 19% in 1997 to 15% in 2001
• lone parent employment is up from 42% in 1997 to 53% in 2001
• fewer people now need to sleep rough in Scotland due to improved level of direct access accommodation, and support services for those with complex needs
• more women are breastfeeding, up 1% more in 2000 compared to 1999
• fewer pregnant women are smoking, down to 25%
• increase in internet access among disadvantaged and rural households .

While these are clearly positive steps forward, both the top-down nature of the target-setting and the lack of independence in monitoring (previously raised by SCSIN as criticisms of this process) remain concerns. There are positive signs both of commitment to more detailed and local data collection and of adjustment of policies where progress is not being made towards targets; but there are ongoing suspicions that producing good scores on targets may not always be the same as making a real difference on the ground.

The Scottish Ecumenical Assembly closing statement spoke of the "the shared commitment of the Church and our political leaders to deliver social justice" and placed at the heart of that 

commitment the need to "empower communities in areas of urban and rural deprivation to eradicate poverty of opportunity, hope and aspiration by allocating adequate resources directly to them". This has been pursued in follow-up meetings with Jim Wallace and with Iain Gray.

Work initiated in SCSIN to assist communities in determining their own social justice targets and monitoring progress is now under way through Kathy Galloway and Church Action on Poverty. Kathy is currently holding some regional meetings around the country, and the Minister for Social Justice, Iain Gray, has agreed to attend a national gathering which will bring together some of the work of these groups at St Columba's by the Castle in Edinburgh on 15 June (further details of this project are available from Kathy on 0141 333 1890).