Legal Accents, Legal Borrowing by Nolan James L.;

Author:Nolan, James L.;
Language: eng
Format: epub
Publisher: Princeton University Press
Published: 2009-12-14T16:00:00+00:00

IRISH AND SCOTTISH DIFFERENCES

Thus, one finds in Scottish and Irish problem-solving courts a number of common qualities. Both countries introduced problem-solving courts at the same time and have developed and planned their courts in a slow and careful manner. In the planning processes, working groups have looked not only to the United States but also to each other and to other countries experimenting with problem-solving courts. Practitioners in both countries, moreover, rely on a harm reduction treatment philosophy, are more reserved in terms of what is regarded as acceptable judicial behavior, and have expressed disapproval of some of the more demonstrative and activist orientations of U.S. problem-solving court judges. Along with these common features, however, one also discovers important differences between Scottish and Irish problem-solving courts.

To begin with, though both countries are reserved compared to the United States, one finds in Scotland greater concern about the preservation of court formalities and the due process rights of individual offenders. According to Sheriff Donald of the Fife drug court, this has been a feature of Scottish legal culture “throughout our history.” He notes: “We’ve always been very, very cautious about the rights of the individual.” Consider several examples. Gillian Oghene, coordinator of the Fife drug court team, demonstrates such concerns for offenders’ rights in her reflections on U.S. drug court practices. Oghene “got the impression” from her visits to U.S. drug courts that “judges really can do just about whatever they want, and I was a bit leery as to people’s human rights.” Sheriff Raeburn, who has functioned as both a domestic abuse and drug court judge in Glasgow, says that in Scotland’s problem-solving courts, “the procedural due process is very strictly adhered to.” Moira Price says the same about Scottish problem-solving courts: “In Scotland these courts are still very much bound by the law and procedures, and we don’t really deviate from that.” Concern about due process, as such, was one reason that officials at the Glasgow drug court did not originally plan to have sheriffs attend pre-court meetings. They worried that it would be unfair for the sheriff to receive information about a defendant without the defendant present. Interestingly, officials from Dublin convinced Scottish officials to have pre-court meetings with the sheriff present. Consider Judge Haughton’s recollections of this meeting:

We brought about a radical change in their plans. They felt that the sheriff—the judge—should not, could not, attend the pre-court meeting, because he would be hearing things about a participant that may or may not be admissible in evidence. And they felt that that shouldn’t be the case, and when we went over and spoke to them about their plans and how we worked and how we operated, we actually persuaded them to change their view on that. And the sheriff does attend, and they do have pre-court meetings.

One area in which the Scottish clearly differ from the Irish is with respect to the role of lawyers in the drug court program. British criminologist Philip Bean highlights this difference in

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