‘Children’ of 25 and a failed court system in thrall to New Age waffle
THE verdict has been delivered and the accused’s extensive criminal record rehearsed – a litany of charges from assault to housebreaking.
It’s clear that the unrepentant repeat offender has run out of chances and is set for another spell behind bars for the latest batch of transgressions.
But when his defence lawyer stands up, the mitigation he offers is more than a little unusual: his client, he advises, is aged 24, and therefore his brain is still developing.
Given that his brain is immature, so too is his behaviour, which is rash and impulsive, and in effect he cannot be held entirely to blame for what is – after all – an unalterable genetic fact.
It’s a bold gambit, but the sheriff must take into account the latest guidance from the Scottish Sentencing Council (SSC), which stipulates that the brain is still maturing until the age of at least 25.
On this occasion, the sheriff says, a custodial sentence is not appropriate – a spell of community service will suffice; and, with a wry grin, the serial thug walks free from court – and resumes his criminal career.
Even by the standards of soft-touch courts that have relentlessly prioritised the rights of perpetrators over those of their victims, this is barmy stuff: but it’s about to happen, with major repercussions for the justice system.
True, at the moment the notion of treating criminals as young offenders until the age of 25, on the basis of new research on brain development, is the subject of consultation, and not yet set in stone, but increasingly it seems a done deal.
After all, it chimes with any number of gimmicky theories which encourage us to view criminality as the product of a troubled upbringing rather than necessarily the consequence of bad choices, meaning the accused – like our lucky 24-year-old recidivist – can only be held partly responsible for their actions.
Justice is always susceptible to this kind of woolly thinking, and policing is awash with talk of officers being ‘trauma-informed’: they are being trained to recognise that suspects might have had a tough life, and treat them accordingly.
At a conference last week on the soaring number of drug deaths, I listened to top brass admitting that police had succeeded only in making the crisis worse, and in future they would be less heavy-handed and more ‘nuanced’.
High-profile ‘days of action’ where dealers’ doors are kicked down might look good, but it could scare away the addicts (now called People Who Inject Drugs, or PWID), who need medical help.
But then there is the small matter of the rule of law – which is, as far as illicit drug use is concerned, routinely flouted, with the possession of small or ‘personal’ amounts of cannabis now effectively decriminalised.
When those charged with enforcing the law are prepared publicly to say it’s no longer working, and indeed that they’re stepping back from the very business of enforcement, it’s clear we’re in a looking-glass realm where police are, more than ever before, just another branch of social work departments.
The idea that – whatever your background – there is a price to be paid if you break the law appears no longer to be in vogue, and the SSC’s latest draft sentencing guidelines reflect the extent to which that basic principle simply no longer applies.
It’s all part of a culture of excusal, based on explication and indeed absolution, which inevitably benefits offenders more than the communities they terrorise.
And yet, if the SSC gets its way, there may well be far-reaching ramifications: Young Offenders’ Institutions could be compelled to accommodate criminals up to the age of 25, rather than 21; the upper age limit for children’s hearings is 18, but that threshold might have to be revised upwards.
(Porridge: but could brain ‘immaturity’ be a get-out-of-jail-free card?)
You can sense criminals already rubbing their hands with glee at the prospect of a more lenient disposal based on their limited brain-power, backed up by the latest scientific study (commissioned by the SSC) – there’s nothing like the stamp of approval from someone in a lab coat to bestow a smidgen of credibility to the battiest of ideas.
The 12-member SSC, comprised largely of sheriffs and lawyers and chaired by Lady Dorrian, the Lord Justice Clerk, produces guidelines for sentencers which they have to take into account – and if they don’t, they must explain why they haven’t.
Its ideas about re-defining ‘young offenders’ have been discussed for the last few years: back in 2017, one of the key points raised at an SSC meeting was that ‘removing or de-emphasising punishment as a purpose [of sentencing young offenders] should be considered’.
The document also stated that ‘use of custody may be cheaper than alternative options with a focus on rehabilitation, but offer worse outcomes over a long period’.
From those initial cosy brainstorming sessions (all of those brains were presumably fully matured) the initial idea has blossomed into a fully fleshed-out proposal.
So the direction of travel couldn’t be clearer, but nor could the scale of the disconnect between the hand-wringers coming up with this doubtless well-intentioned nonsense, and the taxpayers who bankroll their activities.
You can join the Army at 16, and Nicola Sturgeon backs plans to allow 16-year-olds to ‘self-declare’ their gender without a medical diagnosis or treatment: decisions that, by any reckoning, are life-changing.
By our mid-twenties, many of us are married, holding down jobs, paying bills and mortgages, bringing up children, and indeed voting – unhindered by the handicap of our apparently still-developing brains.
But if we step out of line and break the law, it’s a different story, and the criminal justice system is prepared to cut us some slack on the grounds of our cerebral shortcomings.
As for the potentially traumatic effect of watching the criminal who assaulted them go free on the grounds of their relative youth, well, no-one seems to have given that much thought – or perhaps they don’t care.
The subtext to these developments is a prison population that is outgrowing a creaking estate that in some places – such as Barlinnie in Glasgow – is in danger of literally falling apart.
On the basis that prison supposedly doesn’t do anyone much good (apart from the victims, who get some brief respite), more and more offenders are being electronically tagged, or not being jailed at all, relieving pressure on cell space.
It never occurs to ministers that improving prisons so that they do successfully rehabilitate criminals – or, heaven forfend, actually punish them – would be a better alternative to letting them out, or ‘diverting’ them from custody in the first place.
That ‘diversion’ is now the sole focus of an emasculated judicial regime in thrall to infantilising New Age waffle that has found an all too willing audience among legal practitioners.
Perhaps it’s time they stepped out of their parallel universe and acknowledged that in the real world victims are crying out for a justice system that doesn’t diminish their suffering by finding ever-more specious reasons to let their aggressors off the hook.
*This column appeared in the Scottish Daily Mail on March 3, 2020.
.
