We need to transform our justice system

A speech by Maggie Chapman MSP as part of a Parliamentary debate on the Bail and Release from Custody (Scotland) Bill.

I welcome this Bill and thank the Cabinet Secretary for the open and frank conversations we have had about its provisions, and for the sensitivity which he has shown in responding to issues raised by members of the Criminal Justice Committee.

I am acutely aware of the concerns of organisations representing victims and survivors, especially of sexual violence and domestic abuse. I refer members to my register of interests and my experience in organisations supporting those who have experienced rape and sexual assault.

It is vital that the specific safety needs of such survivors are not only clear on the face of the bill but that all necessary frameworks of support, protection and information, including for children, are in place, properly funded and freely accessible. Survivors need the whole system to work for them, and incarceration of offenders is only a part of the justice, care, recognition and respect which they so greatly deserve.

For one of the tragedies of our society is this – that the effects of violence and abuse upon women do not always lead to their being recognised as victims or survivors. Often they lead to situations where the women themselves are charged with criminal offences.

There is a real danger for us, in our relative comfort and privilege, of viewing perpetrators and victims of crime as binary categories, of imagining a bright line between those who are prosecuted and those we seek to protect.

For the sake of those women, for the sake of us all, we cannot and must not forget the fundamental principle: that each accused person is entitled to a presumption of innocence, unless and until they are proved guilty. That is why bail is a right, not a privilege.

And this bill is, to a great extent, about underlining and strengthening, with all necessary care and attention, that fundamental reality.

So, where situations arise where bail has to be refused, it is only right, as this bill provides, that written reasons are given by the court.

If a person not convicted of any crime is to be denied their liberty, they have the right to know why, and to have that information communicated in way that they can understand and consider properly, not just hear briefly amidst the confusion and emotion of the hearing.

This bill is not about prison numbers, not about statistics, but about people, people who are, not always, but very often, the most disadvantaged, the most vulnerable, the poorest and the most excluded.

We know, as illustrated by the scandal of deaths related to drug use, that Scotland is a deeply traumatised society, one in which many have experienced childhoods of loss and deprivation, have missed the essential experiences of being properly parented, have never known emotional availability, a sense of control without risk taking, stillness that does not reawaken trauma.

That trauma, to our collective shame, is both exacerbated and newly created by experiences of the criminal justice system and by prison in particular. There is a reason why we have to talk so much about reintegration, for incarceration itself is a process of disintegration. And that disintegration, that trauma, those losses, are inflicted not just upon the imprisoned person, but upon those who love and depend on them.

It is not the case that locking people up is a risk-free option. It is accumulating risk for the future – for that person, for their family, community and wider society. We are taking people who need care and punishing them for that need. It is no surprise that the pressure, for many, is unbearable.

This bill, I hope, can be part of a wider move away from incarceration as our default solution to social harm, away from the idea that only by imprisonment can society express disapproval, away from the toxic media language of monsters and thugs and scum. For we know that the most serious of harms, social and environmental, perpetrated by the crimes of powerful, are met with quite a different response. ​

Prison, like war, is an easy sounding so-called ‘solution’ that merely avoids dealing with the real causes of harm. We know what those causes are – inequality, misogyny, poverty. And we know much about how to address those causes, about what works. We know that more, much more, is required in many ways, not least in terms of time, staff and resources for our public and third sector agencies.

Because prison is not a place of safety, not a place of recovery, not a place of rehabilitation.

In implementing the law contained in this bill, we will need to use the best tools at hand, including bail conditions, with real support when and where it’s needed.

And, where it’s truly appropriate, electronic monitoring, as a last alternative to custody. For such monitoring is essentially punitive, a fundamental interference by the state with the liberty of an unconvicted person. It must not be used simply because it’s there.

There is much to be done, within and outside criminal justice, to transform a system that is currently failing everyone: victims, survivors, perpetrators and the public.

This bill includes some vital provisions, including ending Friday releases, which must be part of a wider and deeper framework of support. People leaving prison need to be able to access basic services: healthcare, social security and most fundamental of all, appropriate housing. It is truly shocking that for many women, prison is seen as the safest place to be.

We need credible non-custodial responses to crime, including more restorative and community justice. For those already in the prison system, we need support, therapeutic communities, humane and healing places to live and thrive, places like the new Bella Centre in Dundee. We need this bill, supported by frameworks of resource, cooperation and protection, as part of the transformational change that Scotland deserves.

We need to take this seriously, desperately seriously, but the need for more funding and support, the need to grow capacity, shouldn’t be an excuse for not moving in the right direction.