During the snowy winter weather in early 2023 sixteen intrepid Scottish OU law students braved the elements to travel to their local Sheriff Court to witness justice happening in action in the criminal courts. Some returned two or three times within that month to observe the court hearings. Why were they there and what impact did their visits have?
The Open Justice policy clinic was contacted in 2022 by the Scottish Sentencing Council, an independent advisory body which carries out a range of work concerning sentencing in Scotland. They wanted to find out how the Scottish criminal courts dealt with offenders suffering from poor mental health, and whether this impacted on the sentence that was given. This was a perfect task for our online policy clinic. In the policy clinic, law students work in small groups to undertake research on behalf of not for profit organisations to provide them with evidence and analysis to support their policy and law reform activities. But how were we going to find evidence of how the courts dealt with poor mental health when sentencing offenders?
The Judiciary of Scotland publishes sentencing statements for criminal cases in the High Court and Sheriff Court (solemn) proceedings (where the case is heard by a Sheriff and jury). However it quickly became apparent that there was no documentary evidence concerning sentencing proceedings in the Sheriff summary courts, where Sheriffs hear more minor criminal cases alone. There was therefore a lack of available information about the sentencing of more minor offences. As the Sheriff Summary courts deal with over 70% of convictions in Scotland, compared to 1% in the High Court and 6% in Sheriff Solemn proceedings (1), this would have left a huge gap in our research.
The answer was to ask our Scottish law students to volunteer to travel to their local Sheriff Court to observe the sentencing proceedings taking place on that day. Fifteen students volunteered to attend their local court – though ‘local’ meant different things to different students. Some only went a few miles, whilst others in more rural Scotland had to travel over 50 miles to get to their nearest court. Students volunteered to spend between 1 and 3 days on this project, and in total sat through 35 days of sentencing hearings around Scotland. This was the first time information was collected on how the lower courts were dealing with sentencing and mental health on a day by day basis.
Students listened in total to 283 sentencing proceedings and completed a questionnaire for each hearing. This recorded whether the offender’s mental health was mentioned, in what way, and whether this had an impact on the proceedings. The results showed that the poor mental health of the offender was mentioned in around 12% of cases in summary proceedings, which was consistent with the proportion of sentencing report from the higher courts (16%).
However the mental health of the offender did not generally appear to be reflected in the sentence passed. One student volunteer reported that ‘it was a surprise to see how many cases were deferred until a later date and how few that had mental health as a focus point of the defendants case. Even cases where mental health was pertinent to the defence, it did not in my opinion have much of an impact when a sentence was decided. [..] The mental health of the defendant is likely to contribute to the behaviour of a defendant, thus mental health support rather than a custodial sentence may be more effective in the long term rather than short term custodial sentences.’
The policy clinic report recommended further research in this area, and that consideration was given to including all guidelines on sentencing and mental health in one document. The Scottish Sentencing Council is currently reviewing the research to decide whether they wish to take further action in this area.
As well as providing important information about the operation of the Scottish criminal courts, the students who attended the courts reported an extremely positive experience. One student was invited to meet the Sheriff in his chambers after the court hearings to discuss the criminal law, Scottish justice and their legal studies. Another student had the opportunity to speak with the local solicitors and advocates to discuss their work.
A third student reported that they were amazed by how welcoming and helpful their local was. They were given the opportunity to interact with all the legal professionals involved in the hearings as well as being invited to sit in the press box next to the Sheriff: ‘a fantastic experience for which I am hugely grateful’.
It is usually possible to observe court hearings in England, Wales, Scotland and Northern Ireland by sitting in the public gallery. Open justice, or the principle that justice should be seen to be done, is an important foundation of our legal system and essential for a functioning democracy. So next time you have a spare half day or day, do consider going to your local court to observe justice being done through the courts. If you need some further encouragement, you can read about one of our law student’s experience of visiting the Old Bailey in London here.
TOP TIP: It can be helpful to speak with the court ushers or local court officers to explain that you are a law student wanting to observe some court cases, as they will be able to suggest the most interesting hearings and court rooms to visit. There are more helpful suggestions on visiting court from one of our Student Experience Managers here.
(1) Figures from 2020-21, Scottish Government publication ’Criminal proceedings in Scotland: 2020-2021’. Available at 4. People convicted in court - Criminal proceedings in Scotland: 2020-2021 - gov.scot (www.gov.scot)
Image: DUNCAN SHAW / SCIENCE PHOTO LIBRARY / Universal Images Group
Liz is a senior lecturer-in-law at the Open University Law School. She has worked as part of the Open Justice Centre since 2016, supporting law students to carry out pro bono projects both as part of their law degree and on an extra curricular basis.
Liz leads the Open Justice online policy clinic and mediation project and is a supervising solicitor in the online law clinic. She is particularly interested in online learning and the use of technology in legal education, including the moving of clinical legal education online