The Glasgow drug court

On Monday 12th November, a man in his mid 20s with a string of previous convictions and facing ten complaints, became the first person to be made the subject of an order by the Glasgow Drug Court. On the same day the setting up of an equivalent Court in Fife was announced by the Deputy Justice Minister.

The first meeting of the Working Group which examined the feasibility of such a Court using existing Scots Law and procedures was held on 22 February 2001 and while in other circumstances a gestation period of just under nine months might not be regarded as remarkable it is a tribute to the flexibility of our system and to those who operate within it that a report was able to be made to the Minister in May 2001 and a detailed reference manual prepared by October.

The manual is described as an Interim First Edition and the implications of that description are felt acutely by all of us who are involved in this pilot venture.

Far be it from me to suggest that we do not know what we are doing but there is an element of feeling our way and the lessons learned will be incorporated in amendments to the manual as we go along.

I suspect however that there are some who do not know what we are doing and I shall try to explain as best I can.

What is a Drug Court?

Drug Courts began in the USA in the late 1980’s and have spread, for example, to Australia, Toronto and Dublin. The basic ethos is the same in each of them but they have all evolved in different ways depending on the particular legal system involved and, while recognising the debt owed to the American pioneers, it would be wrong to describe the Glasgow model as “U.S.-style” although the media seem incapable of referring to Drug Courts other than by that description. For example, in many American courts successful participation in a scheme may lead to a reduction in sentence or even a withdrawal of charges while in Glasgow the Drug Court order is a disposal in itself. Furthermore, the system of rewards and sanctions  and the manner in which the courts operate depend not only on the legal system but on cultural factors.

For the avoidance of doubt, the Glasgow Drug Court Sheriffs will not be on first-name terms with any of the offenders as appears to have been mooted in some media organs.

The point of these courts is to reduce the level of drug- related offending behaviour  by reducing or eliminating offenders’ propensity to misuse drugs by the use of  court-sanctioned treatment rather than traditional sentencing and thereby to tackle the so-called revolving door syndrome. It is hoped that the additional costs of such courts will be offset by the savings to the public brought about by the reduction in crime and early indications from abroad are optimistic in this regard.

For greater detail the reader is referred to Justine Walker’s paper on the International Experience of Drug Courts published by the Scottish Executive Central Research Unit in 2001.

How does it work?

In regard to matters of detail I commend to the reader the Working Group’s report and the manual but it is important to emphasise a number of points.

The Pilot can only cater for 150 to 200 orders per annum and so there will be many people who might seem suitable but who cannot be accommodated. We cannot deal with every drug-related crime in Glasgow.

In order to limit numbers certain criteria must be met.

• The offender must be over 21 and there must be an established relationship between a pattern of serious drug misuse and offending. We will not be dealing with first offenders. The nature of the drug misuse must be susceptible to treatment and cannabis abuse alone will not qualify.
• No case on Indictment will be considered and the existence of  outstanding matters on Petition will exclude an offender as will the existence of current Drug Treatment and Testing Orders from the High Court or Stipendiary Magistrate. Persons with a dual diagnosis of drug misuse and mental health problems will generally be excluded.
• The “trigger” case ( which need not itself be drug-related ) must have started life in the Custody Court  and must involve a substantive offence (not, for example, a failure to appear) committed after 15th October 2001 although if it fulfils these criteria other complaints can be rolled up and dealt with. Cases involving more than one accused will not be considered by the screening group before calling in the Custody Court but will thereafter be dealt with according to circumstances.
• It is expected that most cases will proceed on the basis of Pleas of Guilty although we will  not rule out referrals after trial and the manual deals with various alternative scenarios. It should be borne in mind, however, that international experience has shown that early intervention can be crucial and the longer the gap between the commission of the offence and the commencement of treatment the less likely it is that treatment will be successful.
• The offender will normally have been identified as potentially suitable by the police, who will inform the dedicated member of the Procurator Fiscal’s staff. The defence agent may also alert the Fiscal to potential cases if the police have missed them. If the Fiscal agrees, she will convene a pre-court screening meeting with the offender’s solicitor, the police and representatives of the Social Work Department and if they agree and a suitable plea is negotiated then this will be intimated to the Custody Court Sheriff who will be invited to defer the case for a full assessment, including drug testing, for a period of four weeks to call before one of the Drug Court Sheriffs and to admit the offender to bail.

Whether or not the Sheriff agrees will be entirely a matter for him or her.

Assuming the case is so deferred it will call in the Drug Court where the full range of Summary sentencing options will be available.

What kind of disposals can be expected?

Obviously each case will be dealt with on its merits and there is no guarantee that a case calling in the Drug Court will result in the offender’s participation in the programme.

However, we expect to be utilising Drug Treatment and Testing Orders, probation orders with conditions of drug treatment, deferred sentences on conditions and combinations of these disposals. It will be a standard condition that the offender report to Court for frequent reviews.

Reviews of DTTO’s are a familiar statute-based creature (See S. 234B-K of the Criminal Procedure (Scotland) Act 1995) but they cannot be held any more frequently than once a month.

There has been some discussion as to whether it is appropriate or competent to order the offender to attend court  perhaps fortnightly as a condition of a probation order.

Such an order is imposed as a condition of bail in the Toronto Drug Treatment Court and it is submitted that Section 229 of the1995 Act (which allows a probation order to contain “…such requirements as the court, having regard to the circumstances of the case, considers-

(a) conducive to securing the good conduct of the offender or for preventing a repetition by him of the offence or the commission of other offences…”)

is sufficiently flexible to allow for frequent reviews.

That is on the basis that, as the international experience has shown, frequent court appearances are themselves an integral part of the treatment process and assist the offender to carry on, thanks not only to judicial admonitions where there has been some failure to carry out the conditions of the programme but also to the encouragement and words of praise which will come from the bench when an offender has done well.

It will be seen at once that these tools are already available but, uniquely, the Drug Court Sheriff will, with the offender’s consent, meet the various agencies involved at pre-court review meetings where progress or lack of it will be discussed as a team and solutions sought to problems such as by increasing the frequency of testing. Where an offender has done well a range of rewards may be available and these will be developed as we go along. The Sheriff will have the final say but this team approach is one of the fundamental features of Drug Courts and a major contributor to their success.

As it happens the team has had several opportunities to blend and to learn about each other’s disciplines thanks to the attendance of many of us at an international Drug Court conference in Toronto last September followed by an intensive three-day  training seminar. Members of the team have visited the Dublin Drug Court and we will be updating our training on a regular basis in order for the lawyers to learn more about addiction, its causes and treatment and for the social workers, medical personnel and addiction workers to learn from each other and from us.

Resort will be had, where appropriate, to the provisions anent amendment of DTTO’s and probation in the 1995 Act (Ss.234E-F, S.231 and Schedule 6) as well as to those provisions relating to breaches but no decision adverse to the offender will be made at a pre-court hearing. Any such matter will require to be aired in open court.

We do not expect miracle cures and recognise that relapse into drug abuse will be common but we do expect  the offenders to be honest with us, to turn up for their appointments, to participate in the counselling sessions and to refrain from further offending.

These are early days but we are already having to deal with problems.

It is not always easy in a busy court like Glasgow to have meetings start on time with all of the agencies present, not all of the assessments have been completed on time  and while provision has been made for Legal Aid cover it is not entirely clear how that is going to work in practice. In addition not everyone is as yet familiar with the criteria for inclusion.

The Drug Court team consisting of representatives of the various agencies involved will be meeting on a regular basis to look at these and other problems and we will be glad to hear of any difficulties or suggestions.

This is no panacea but we think that this project can make a difference not only to some of those who are unfortunate enough to be caught in the grip of drugs but also to those who might otherwise have been their victims.