Book reviews: December 2023

Emma Forbes

PUBLISHER: EMERALD PUBLISHING
ISBN: 978-1801173896
PRICE: £30

Emma Forbes begins her book with an arresting image. Police officers in the 1970s routinely dealt with men accused of hitting their wives by driving them to the edge of town, emptying their pockets and leaving them to walk home. The rationale was that the man would have cooled down and sobered up by the time he got back and domestic abuse was not seen as a criminal matter. Scotland may have come a long way since then, but Police Scotland still responds to a domestic abuse call every nine minutes. Scottish society is entitled to ask whether its criminal justice system is responding appropriately to those calls.

Dr Forbes is well placed to conduct that enquiry. She is a Scottish prosecutor with over 20 years’ experience in the field, including as the first prosecutor in Glasgow’s pilot domestic abuse court. That alone would merit consideration of what she has to say on the subject. But what makes this work unique – and deserving of a wide readership in Scots law and policy – is that Forbes has surveyed the latest research on how domestic abuse is dealt by criminal justice systems generally and conducted her own in-depth interviews with victims of domestic abuse to discover their experience of the Scottish criminal justice system. 

The results are striking and more than a little disheartening. Forty years of reform have led to better policies, more attuned laws, and the incorporation of international conventions and practices, but their implementation is patchy. There is a lack of early support when victims first speak to the police, leading to poor witness statements and inaccurate risk assessments. Court practitioners focus on court dates and other milestones but do not understand what dates and milestones are important to victims. Nor do they fully understand the real emotional effect of waiting at court, of delays and postponements, or the difficulties of concurrent criminal and civil proceedings. The result is a “stubborn misalignment” between the policy vision, the legal framework and women’s reality.

There is, Forbes argues, a need to move towards a model of “procedural justice”, the idea that any system which is fair, inclusive and respectful will command the respect of those who experience it. The strength of this book is that Forbes does not stop there. From that flow a series of practical, policy and legal recommendations to improve the entire Scottish criminal justice process and its response to domestic abuse. There are many, ranging from immediate practical steps such as better waiting areas at court, and safe entrances to all court buildings (it is striking to realise that not all have them), to other changes that will require radical reform and primary legislation, such as the provision of advocacy services, to all complainers, both at the early stage of reporting to the police and in court.

The result of all of this is a book which is unique not just for combining the author’s experience, the latest research and the telling of victims’ experiences, but because of Forbes’ ability to combine intellectual rigour and deep empathy for those who are the subject of her work.

There are some minor shortcomings. There is an over-citation of academic references that can be distracting, as ideas and theories are introduced but not always developed, and many could have been pruned without any loss to the text. 

Though Forbes makes the case for Scotland adopting the English system of registered intermediaries (qualified experts who assess witnesses and then assist them in giving evidence in court), it is a system that is far from enjoying universal support among practitioners in England & Wales, and the need for intermediaries now receives much closer scrutiny from the courts (R v Little [2020] EWCA Crim 117), suggesting greater caution is required in recommending their introduction in Scotland.

Finally, Forbes rightly criticises many features of the Scottish criminal justice system that flow from its adversarial nature – for instance, that a guilty plea deprives a victim of the opportunity to give her account fully to the court. But she stops short of criticising the adversarial system itself, appearing to accept that this is an immutable feature of our law, and any policy recommendations have to fit around it. That is a pity. Scotland’s mixed legal system has made it able to import the best of civil law systems and surely must now make it able to import the best of inquisitorial systems, including the institutional role given to victims/complainers and the greater protection and care for them that can follow. More could therefore have been said on what Scots criminal law can learn from outside our own system and, though there is reference to the Barnahus model (and the Improdova and GREVIO information-sharing networks), if Forbes had pursued this line of enquiry further it would have been interesting to know what other recommendations for change could have followed. 

None of this significantly detracts from a book that ought to be widely read so that those working in Scottish criminal justice hear the voices of those who experience it, and so that serious consideration can be given to implementing practical and policy recommendations that Forbes makes. Not everyone will agree with all of Forbes’s recommendations, but they should carry great weight because of they are the product of experience, learning and original research, and because they are conscientiously and constructively made. The book is illustrated by art produced through the GlassWalls/Daisy Project. The proceeds from the book will, through the Daisy Project, fund rehabilitative art classes for victims of domestic abuse. That is a further reason to buy and read this impressive book.

Paul Harvey, advocate