Matthew McGovern

The Appeal Court have spoken: Sean Hogg’s conviction has been overturned (this is the accused who had received a Community Payback Order after being convicted of raping a 13-year-old girl). Given the appeal against conviction was successful, the Crown appeal against sentence was rendered moot. The Hogg case caused an extraordinary amount of coverage and, indeed, outrage – some of it justified, some of it hysterical and, in the case of those seeking to exploit the case for political advantage, some of it contemptible.

Whilst I accept that the Scottish Sentencing Council’s Sentencing Young Person Guideline caused concern in how it was applied to Hogg, my experience of the Guideline – almost exclusively at Sheriff Court level – is very positive. My local court is Hamilton Sheriff Court which has a Structured Deferred Sentence court which deals exclusively with those accused to whom the Guideline applies. The SDS involves an intensive intervention program involves the accused which is closely supervised by dedicated SDS Sheriffs, who are able to track the progress of the young person appearing before them.

The success rate of the SDS court is impressive: clients benefit from the support that is put in place by the court, rehabilitation is achieved in the majority of cases and the utilitarian benefits for society are enormous. I have been involved in the criminal justice system long enough to remember the days when young people were remanded to Polmont for short periods before being granted their liberty at the next calling of the case. The short, sharp shock rarely, if ever, worked. The conditions in custody at present are such that it is, frankly, unacceptable to subject young people to them unless there are significant issues of public protection.

It is also worth noting the backgrounds of the young people who end up becoming involved in the criminal justice system: they have grown up witnessing domestic abuse, raised by parents who themselves battle drug and/or alcohol addictions, enjoyed very little (if any) education beyond primary school. It is a damning indictment on our society that their life chances were determined even before they were born. We all owe a duty to young people who become involved in the criminal justice system and the Sentencing Young Person Guideline helps them try to break the cycle of offending. The SDS court at Hamilton is infinitely more successful than any other alternative means of dealing with young people involved in the criminal justice system.

There is also a Youth Court which operates in Glasgow Sheriff Court that offers another example of the Guideline working well in practice. I recently appeared in the Youth Court with a client who I’ve acted for since he was 16. In this time, I’ve never known him to comply with any alternative to custody, whether that be a Restriction of Liberty Order, Unpaid Work or even Supervision. The Youth Court Sheriff was supervising the client’s Community Payback Order. The latest progress report was terrible and I asked the Sheriff if he wanted to be addressed on other options (I had already told the client I thought he would be lucky to walk back out the court) but the Sheriff said that two factors – he now had a job and hadn’t offended whilst subject to the CPO – tilted the balance, albeit narrowly, in favour of liberty.

The Sheriff then addressed the accused, making it clear to him that his attitude and effort weren’t good enough and that if there wasn’t a significant improvement by the next time he appeared at court, the Sheriff would be imposing a period of detention (the Big Lie of the Guideline is, of course, the misrepresentation that the Guideline prevents young people receiving a custodial sentence). He treated the accused with respect and calmly explained his position, leaving my client with no doubt about what would happen if there wasn’t a significant improvement in his compliance with the CPO. The client left court recognising that he been treated fairly but he was on his last chance.

When he appeared in the Youth Court last month, there was a remarkable transformation detailed in the progress report. He had attended all appointments on time and whilst maintaining his job. It was a complete vindication of the Sheriff’s approach. The Sheriff could have easily imposed a period of detention but, frankly, what would that have achieved? Does anyone seriously believe society would be better off if my client had been locked up for what would have ultimately been a couple of months?

The Guideline might be controversial but it gives young people an opportunity to escape the system, rather than spending their lives trapped within it. Rehabilitation of the offender also protects the public at large by preventing reoffending so rehabilitation should always be, in my opinion, the primary consideration when sentencing a young person.

Those of us who work in the criminal justice system have witnessed a legal system which has made the remarkable transformation from being the envy of the world to an international embarrassment: Legal Aid decimated, malicious prosecutions, Extradition requests refused because of the conditions in our prisons, the Scottish Government trying to rig the outcomes of trials in favour of convictions by getting rid of juries and then marking judges’ homework. This is not a criminal justice system I’m particularly proud to serve.

I am, however, proud of the impact that the Sentencing Young Persons Guideline has had across the criminal justice system. The lives of the young people affected by the Guideline are better but, more importantly society is better because of the Guideline. The test of any society is how we treat the vulnerable members of it. It is a test we all too often fail. The Guideline is perhaps the exception to that rule.

There will be always be extraordinary cases – both good and bad – but we should champion the Guideline for all of the positive changes it has delivered within the criminal justice system.

Matthew McGovern is a defence lawyer and partner at McGovern Reid