Imagine, if you can, being the victim of the most horrendous crime of violence. Then imagine the unbelievable courage it takes to report your attack to the police, undergo the most invasive medical examination to help gather evidence, and finally be persuaded that you were doing the right thing by going to court to seek justice.
Imagine further the trauma of reliving the whole horrific ordeal in all its microscopic detail – at least once to the police, and finally in court – Its effects on you and knowing you will carry the devastation with you for the rest of your life. Finally, imagine your sense of overwhelming fortitude and defiance as you give your evidence to see your assailant convicted. Every one tells you how unbelievably brave you were – for you were, that it’s all over, and that justice will finally be served. You still have a long road to travel but it feels that little bit easier. A huge weight has been lifted as you begin to believe you can shape your future and not be defined by your past.
Then imagine as your world crashes down once more as you’re told your assailant couldn’t be bothered to turn up in court to finally learn his fate, has skipped bail and is on the run. His cowardice continued to the last. You will have a thousand questions: what was the point? Am I safe? What if he comes for me? But the one you keep returning to time and again is how? How could this happen?
And the truth is every bit as cruel as you feared as you braced yourself for answers. You were failed by the system. That horrendous bastard system we all hear about but most of us are spared exposure to. A system designed with all the odds stacked against you, and one which, absent having to consider the impact on the real lives of real people, our political classes hail as transformational, fair, and without a hint of irony – victim centred.
None of these things happens by accident – every consequence is entirely foreseeable, has been warned about – ignored – then implemented regardless.
Your attacker should never have been on bail and in any fair and just world would have been remanded in custody from the moment he was first locked up. You are angry with the courts and the Crown for not only was he not remanded, his bail wasn’t even opposed. The system didn’t care about your fears for he had shown himself to be of good intention as he turned up to court of his own accord having first been bailed by the police. No sheriff in the world is going to buy a claim of risk or danger where the accused has turned up to court under his own steam.
The senior counsel in the Crown Office overseeing your case is incandescent. (S)he knows that in bygone days the accused would have appeared from custody and that bail would have been opposed. There is every likelihood he would have been remanded in custody pending trial. But modern, progressive Scotland doesn’t live there any more and thousands of victims of crime are let down daily as a result.
In an ideal world where the justice system worked effectively and quickly it would be hard to disagree with the use of remand and especially for those who commit crimes of violence. The accused should appear in court from the police cells and a trial set in a reasonable period of time. The police and Crown used to be adept at recognising those who posed particular risk and the question of bail wouldn’t even raise its head.
But we don’t live in an ideal world and as such we can’t have those merely accused of crimes spending years on remand as the court system is in chaos and overwhelmed. We can’t expect the fairness of a defence to an accused to be delivered by a legal aid system past breaking point, adding even more delays, making lengthy time on remand even more of an affront to justice. But rather than fix these problems our legislature has decided to create new ones to avoid having to do so.
Speaking in a rare interview after announcing his retirement last month, Lord Carloway, whose recommendations led us to where we are today, was asked if he thought too many people were in prison in Scotland. Answering “yes” he then went on to speculate as to why before observing “there can be good reasons for that … we are prosecuting a lot of sexual crime and domestic abuse, and rightly so but the inevitable consequence of prosecuting a lot more people is a lot more people are going to be in prison.”
I am sure Lord Carloway’s presumption of liberty was well intentioned but in concentrating on a symptom rather than its systemic failures, Scotland’s justice system has been given a decade and a half to avoid having to do so. That mistaken good intention is what allows those who run rampage through our towns and cities to never see the inside of a police cell, those who commit acts of violence in public or at home to be wandering the streets while their victims are still being treated in hospital, and what allows those accused of crimes like rape to be free to skip trial and ultimately evade justice.
A presumption of liberty sounds so righteous. It has however done nothing to fix the problems that lay at its design and has simply created countless others. Its victims will be largely be out of sight and mind as the privacy they crave will render them silent. That is one of the greatest injustices of them all.
Calum Steele is a former General Secretary of the Scottish Police Federation, and former general secretary of the International Council of Police Representative Associations. He remains an advisor to both.
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