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On justice

Written by Iain Smith, criminal defence expert and Scotland’s lawyer of the year

13 January 2020

Scotland’s lawyer of the year talks of injustice in our courts

You may have read this morning about Lisa Montgomery, a 52-year-old woman who was given a lethal injection today at a prison in Terre Haute, Indiana, after a last-minute stay of execution was lifted by the US Supreme Court. In 2004, Montgomery murdered a pregnant woman in a truly abhorrent attack, before removing and kidnapping her baby. The case has attracted huge attention, not only due to the nature of Montgomery’s crime and the punishment that has now been meted out, but because of her history.

It is said that Montgomery was severely mentally ill as a result of trauma caused by serious sexual and physical abuse by her father and trafficking by her mother as a child. Her lawyers argued that her treatment was so violent that it amounted to torture.

When I look at her case I immediately ask: “what happened to her?” Rather than: “what is wrong with her?”

For more than 25 years, I have observed the futility of the revolving door of the Scottish criminal justice system. What I failed to understand at the beginning of my career, and I know now, is that the biological impact of trauma and stress on my clients as children has had devastating lifelong consequences for them as adults. Their battles for justice begin at birth, behind closed doors, unfathomable to onlookers. Many have been sexually abused, neglected, assaulted and lived in fear. This experience often forces people to self soothe using drugs and alcohol; anger stems from an inability to self-regulate due to relentless exposure to stressful environments.

It is imperative for me as a criminal defence lawyer, then, to steer the narrative in court from the consequences of a crime to its root causes. In doing so, I never seek to excuse criminal wrongdoing but to explain it. If Scotland wants a truly just legal system and society, then it is incumbent upon us all to understand the impact of adverse childhood experiences. A fixation on crime and punishment will only lead us to ignore valuable background information.

As author and professor emeritus at York University, Stuart Shanker, wrote: “See a child differently. See a different child”. A better understanding of the horrors many in the criminal justice system face when they are young would melt even the coldest judicial heart.

I also believe that greater recognition of this reality might enable more resource and attention to be directed at early intervention and prevention in young people’s lives. This will reduce stress and trauma, and not only lead to a reduction in crime, but to a happier country.

Some may criticise this view and accuse me of being soft on crime and ‘criminals’. This is not about being hard or soft, but about being clever, or as Karyn McCluskey, chief executive of Community Justice Scotland, says, “smart justice”, which is to get to the root cause of why people offend. Offering to provide help and provide solutions to the underlying problems is not only a compassionate response but a wise and economic one.

It is to our great shame that Scotland has the highest incarceration figures in Europe per capita (over 8,000) and the highest levels of drug related deaths (1,264 in 2019). Doing nothing is not an option.

But I am hopeful for change. Dr Caroline Bruce has just been appointed head of trauma strategy and Angela Constance, my local MSP, is now drugs minister. Fresh eyes on old problems will work, provided all voices are listened to and properly heard, in particular those with lived experience.

For me, the public health approach to addiction is key. This view, championed by the Violence Reduction Unit and Sir Harry Burns, has been around for years but expensively ignored. I have further cause for hope, in that the Scottish Sentencing Council has published draft guidelines about how to deal with young people, recognising that the brain is malleable until around 25 years of age and that trauma in childhood should be considered.

I watch as kids float seamlessly from the care system, to the justice system and then into the prison system. This cruel and illogical conveyor belt needs to stop. Only then will Scotland be able to boast about having a truly just legal system, and one that has its foundations in compassion and respect.

Iain Smith is a criminal defence expert and was named lawyer of the year at the Scottish Legal Awards 2020. Iain started his career in 1993 and formed Keegan Smith, based in Livingston, West Lothian, five years later. He is actively involved in creating a fairer criminal justice system and is the leading trauma-informed lawyer in Scotland. He is a core group member of West Lothian Adverse Childhood Experiences Hub and a trustee of the charity Aid & Abet, who assist people in getting out of the cycle of offending.

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