A dilemma that raises questions about Scottish ‘justice’ – Karyn McCluskey

A massive backlog of unworked Community Payback Orders has built up during lockdown writes Karyn McCluskey.

Community service was suspended during the lockdown as part of measures to stop the spread of the Covid-19 coronavirus (Picture: Richard Gardner/Shutterstock)
Community service was suspended during the lockdown as part of measures to stop the spread of the Covid-19 coronavirus (Picture: Richard Gardner/Shutterstock)
Community service was suspended during the lockdown as part of measures to stop the spread of the Covid-19 coronavirus (Picture: Richard Gardner/Shutterstock)

We’ve seen changes recently which, while not quite a return to normality, have given us a taste of what we used to take for granted. Hugging grandkids, having loved ones in our homes and going to the hairdressers. A few months have made these simple things most precious.

However a few months has also had an dangerous impact on our most complex and interdependent systems; courts in hibernation, services unable to deliver vital one-to-one support, prisons struggling to keep staff and those imprisoned safe and healthy. The list is long and the potential repercussions even longer.

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The institutions and organisations that make up our justice system are beginning to flex and adapt – in some cases restart. This has inspired some innovative solutions to age-old problems but will also require some uncomfortable and difficult decisions.

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Scots offenders could have unpaid community work hours cut

I’ve written of other difficult, uncomfortable decisions we’ve taken during this pandemic and which we, as a country, have approached and discussed with a pragmatic head. Releasing those nearing the end of their sentence to relieve the pressure on overcrowded prisons was the right decision; they were perfect breeding ground for the virus and put everyone, inside and out, at risk. A decision which would have been written off as too unpalatable, both politically and with the public, only five months ago, was made without the anticipated howls of outrage.

Which brings me to what’s currently occupying my mind – and I’m asking you to let it occupy yours, to turn it over and think it through. To resist your initial reflex and pause to consider what our response should be.

Lockdown meant that local authorities had to suspend unpaid work – the part of a Community Payback Order (CPOs) which involves carrying out work in the community. This was vital to stop the virus spreading further, comply with lockdown and re-assign staff to Covid-related work. There was no option but to cease unpaid work – it was the right decision, made for the benefit of everyone.

But the other side of the coin is, what do we do now? The impact is a backlog of 700,000 unpaid work hours – a backlog that, if unmitigated, could have a catastrophic impact on the effective operation of the justice system.

A backlog which will imminently be exacerbated by the resumption of court business, inevitably resulting in more CPOs, increasing the already tottering stack of unpaid work hours. Social work, already overwhelmed, will be consumed. Analysis shows no reasonable possibility of ‘catching up’. The situation is unsustainable and, without bold action, will only get worse.

So what’s the solution? Yes, we should pool brains and resources to come up with alternatives but the bold – and difficult – first step is to cut the number of outstanding unpaid work hours. Those who need it would continue to be supervised and the elements of CPOs focusing on offending behaviour (alcohol, drugs and mental health support for example) would continue, but the unpaid work component would be cut.

I understand the quandary this poses about what ‘justice’ means. Reducing the hours may make victims feel cheated or let down in their own personal journey for healing. But is justice served by an arbitrary or indefinite increase of the length of a sentence for those willing, but prevented from completing hours? We must listen to victims’ voices and work hard to support and alleviate their pain.

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Still, we need to ask ourselves the practical questions – was it wrong to cease unpaid work? Of course not, it was unquestionably the right thing to do for public health. But having taken that decision, how do we practically deal with the consequences without crippling vital public services? How do we safely release the building pressure? The right answer is rarely the easy one, but we need to be the type of country that is able to accept it.

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