Direct Measures in Scotland: A conflict with the Principles of Justice?

McManus, Dan (2024) Direct Measures in Scotland: A conflict with the Principles of Justice? PhD thesis, University of Glasgow.

Abstract

This thesis is a critical analysis of the system of Direct Measures (DMs) in Scotland. The DM is an alternative to prosecution in a court and is controlled by the public prosecutor. DMs were first introduced in Scotland in Criminal Justice (Scotland) Act 1987, following the recommendation of the Stewart Committee, and the system was expanded in the Criminal Proceedings etc (Reform) (Scotland) Act 2007, following the recommendations of the McInnes Committee. This thesis explores the system of DMs in Scotland and sets out the historical development of the system and its current operation before moving to consider the system’s relationship with the principles of justice.

The purpose of undertaking this research was to seek to achieve three objectives. The first of these was to critically examine the original justifications for the introduction of DMs in Scotland and establish whether they remain valid. These original justifications centred around a prediction that criminal case numbers would increase significantly, but this prediction failed to materialise. However, the conclusion was reached that DMs are still a vital component of the system as even though case numbers have fallen since their introduction, if the cases presently dealt with by DM were introduced back into a criminal court system beset by delays, this would be highly problematic.

Having established that there is a justification for the system of DMs, albeit not the one that was originally proposed, the second objective of the research was to assess the extent to which the DM system conforms to the principles of justice. Three principles of justice were drawn from the McInnes Review – efficiency, effectiveness and fairness – but further work was needed to identify their key components. As such, efficiency was divided into time efficiency and financial efficiency. Drawing on literature relating to the aims of the criminal sanction, effectiveness was identified as having five component parts: retribution, deterrence, rehabilitation, protection of the public and reparation. Fairness was sub-divided into four key components: accuracy of outcome, consistency, proportionality and representation. The research then proceeded to analyse the operation of the DM system and it was concluded that there were a number of areas where it could not be said to align with the principles of justice.

The third aim of the research was to bring together the findings from the first two objectives and consider whether changes could be made to the Scottish system of DMs that would better align it with the principles of justice. As an aid to identifying possible developments of the Scottish system, this research undertook a comparative examination with the system of the Netherlands. As a result, a number of developments were proposed, namely: the introduction of improved data in the Scottish system; the undertaking of a full economic analysis of the Scottish system; the introduction of legal representation of accused persons in the DM system; and that consideration should be given to the adoption of a partially automated case marking system. It is argued that these developments, and the widening of the DM system in Scotland, is both possible and legitimate.

• Item Type: Thesis (PhD)
• Qualification Level: Doctoral
• Subjects: K Law > K Law (General); K Law > KD England and Wales > KDC Scotland
• Colleges/Schools: College of Social Sciences > School of Law
• Supervisor's Name: McPherson, Dr. Rachel and Leverick, Professor Fiona
• Date of Award: 2024
• Depositing User: Theses Team
• Unique ID: glathesis:2024-84566
• Copyright: Copyright of this thesis is held by the author.
• Date Deposited: 18 Sep 2024 08:27
• Last Modified: 18 Sep 2024 08:28
• Thesis DOI: 10.5525/gla.thesis.84566
• URI: https://theses.gla.ac.uk/id/eprint/84566