Domestic abuse: justice partners group - letter to the Criminal Justice Committee

From: Cabinet Secretary for Justice and Home Affairs Angela Constance MSP
To: Audrey Nicoll MSP, Convener, Criminal Justice Committee

Thank you for your further correspondence as part of your post legislative scrutiny of the Domestic Abuse (Scotland) Act 2018 (DASA). The response to each of your questions is provided at the Annex and I thought it would also be helpful to outline the consideration which has taken place since our last correspondence. 

Tackling incidents of domestic abuse continues to be a priority for the Scottish Government and our justice partners. We recognise that there is more that can be done and that there are areas where improvement must take place, particularly the need to scrutinise and review the effectiveness of existing legislative interventions, the time taken for cases to progress through the court process and the experiences of those who interact with the justice system and support services. We have developed a short paper which sets the current key priority areas of work for the Scottish Government and also areas for development in our approach to tackling domestic abuse. A copy of that paper is attached to this correspondence. 

To support consideration of matters and as was referred to in my earlier correspondence, a group of justice partners who considered the implementation of the Domestic Abuse (Scotland) Act 2018 was reconvened. That group met in August to discuss the recent review reports and agreed to further roundtable discussions to provide regular and collective updates on the work that is being progressed and considered to tackle domestic abuse. A copy of the minutes from that meeting are attached. 

Key areas of focus for the Scottish Government to be discussed in that group over the next 12 months include:

• improving the evidence base
• improving victim experience 
• tackling perpetrators
• improving multi agency working
• early intervention/prevention and changing societal attitudes

The group is scheduled to meet again in November and we will ensure that the outcome of that discussion, including the finalised terms of reference for the group, which are under development, are shared with the Committee. 

I hope this information is of assistance. 

Angela Constance

Annex - response to Criminal Justice Committee - post legislative scrutiny of the Domestic Abuse (Scotland) Act 2018 (DASA)

• what further steps could the Scottish Government take to encourage COPFS and Police Scotland to make maximum use of the child aggravator provision in the Act, accepting that these are operational matters in the first instance?

The child aggravator was included in the Act to reflect the harm that can be caused to children by domestic abuse. The inclusion of the child aggravator means that in relevant cases, this harm can be reflected through, amongst other matters, emphasising to the court the need to consider appropriate sentencing in these cases. 

It is, as your letter states, an operational matter for COPFS to decide in which cases the child aggravator may be used. This will of course depend on the facts and circumstances of each domestic abuse case being considered. as you know such decisions are made entirely independently by COPFS, however I can reassure you that COPFS consider carefully in each case whether the child aggravator can be applied. 

To assist the Committee on this matter, the COPFS position was sought. They advise they have provided significant training and detailed guidance to prosecutors to ensure a clear understanding of the evidence required to prove a DASA offence and any child aggravation in terms of the Act. 

COPFS and Police Scotland agreed a Joint Protocol on Challenging Domestic Abuse which sets out that when investigating incidents of domestic abuse, the police will ensure that all possible lines of enquiry are rigorously pursued, and all available evidence is secured. The Joint Protocol which was updated in May this year can be viewed at: joint-domestic-abuse-protocol.pdf (copfs.gov.uk). The Protocol specifies the information which the police require to provide to prosecutors when reporting a case involving domestic abuse, including cases reported under the DASA legislation. The police will provide information on whether the DASA offence was aggravated by reason of involving a child, as set out in the Act, and information on the impact of the abuse on the child or children. This information is taken into account by prosecutors in considering the appropriate prosecution response in each individual case.

In the first three years following implementation of the Act, court proceedings were commenced in 98% of charges with a child aggravation. In 2022/23, court proceedings were commenced in 99% of charges with a child aggravation.

COPFS have highlighted the most recent official statistics which are published at domestic-abuse-publication-2022-23-final-1.pdf (copfs.gov.uk)

If the Committee has any further queries regarding the operational use of the aggravator, you may want to raise directly with COPFS.   

• your response indicates you will give consideration to a new awareness campaign, members agree that public awareness campaigns are an important part of the overall response to domestic abuse. I would be grateful for any more detail you can provide on this proposal

We are currently undertaking insight gathering to inform future consideration of this issues. A key matter for consideration by the Implementation Group will be around early intervention/prevention and changing societal attitudes which would include consideration of the development of an approach to awareness raising and associated communications strategy on VAWG. 

All of the campaign assets developed as part of our successful “Belongings” campaign are available online and we would encourage all to make use of these resources. 

• whether you support in principle our recommendation for consideration to be given to a single court/judge model when cases involve both civil and criminal matters?

The Scottish Government agrees that in principle the single court/judge model for cases involving both civil and criminal matters is worth consideration. We are committed to understanding what can be done to improve the interaction between the civil and criminal courts. Consideration of single court/judge models could certainly form part of the workshops discussions we are planning following the research on “Domestic Abuse and Child Contact: The Interface Between Criminal and Civil Proceedings”. These workshops will consider the issues and potential solutions in this area and will inform a Scottish Government discussion paper on improving interaction between the criminal and civil courts, as committed to in the Family Justice Modernisation Strategy.

The Committee will also wish to be aware of new court rules which have just come into force in relation to family actions which contain provision so that, where possible, a single sheriff is to preside over all hearings in a family case to provide judicial continuity. These rules are at Act of Sederunt (Ordinary Cause Rules 1993 Amendment) (Case Management of Defended Family and Civil Partnership Actions) 2022

When looking at the single court/judge model for cases involving both civil and criminal matters, there would be a number of cost implications as well as practical challenges relevant to the application of this model to consider, including:

• which model to use. The literature review the Scottish Government published on Integrated Domestic Abuse Courts Domestic abuse courts: report noted there were a number of models in operation around the world
• what the jurisdiction of any new model would be. There would be a need to consider which criminal offences would be covered and which civil areas. In relation to civil areas, there could be questions on whether an integrated model would just cover child contact and residence actions or whether it would be wider than that 
• consideration of how multi-crave actions would be dealt with by any integrated criminal/civil model as family actions can be “multi-crave”: an individual case can involve a number of different legal remedies sought by the pursuer such as, for example, divorce, financial provision on divorce, child contact, and civil protection orders against domestic abuse
• if a new court were to be established, how many courts would there be, where they would be located, and would they use the existing court estate. How the judiciary would be deployed – ie would they be full time in a single court/judge model or would they work part time in the model and part time on other cases. Further judicial training might be needed, which is entirely a matter for the Judicial Institute, and training might also be needed for court staff and other professionals working in the justice system
• consideration of timescales, ie timings of a criminal case and a civil case could very likely be different
• consideration of what would happen if an accused person in this model is found not guilty – would any civil case continue in this model or would it be referred to the ordinary courts.
• consideration of different approaches taken in the civil and criminal systems to the admissibility of evidence and the burden of proof
• consideration of whether any integrated model would cover cases that would otherwise have been heard in the Court of Session as whilst most child contact cases are heard in the Sheriff Court, some are heard in the Court of Session. There could also be questions arising in relation to rights of audience
• whether we would run two parallel court systems for child contact and residence cases. An integrated model when there is a criminal prosecution and the ordinary civil courts when there is no prosecution
• whether there would be any points arising on who would hear appeals of decisions from the integrated model, or whether the existing appeals mechanisms would be used.
• would any changes would be required to legal aid
• consideration of need for primary and secondary legislation and changes to court rules and court IT systems  

Given the range of policy and practical issues that would need to be worked through, any consideration would be for the longer term and in consultation with the Lord President and other members of the judiciary, as well as with other justice partners, stakeholders and users. 

I noted the comments made by Russell Findlay MSP on this matter at my evidence session on 27 September and believe it would be sensible to consider whether there are any reflections from the Committee in relation to its scrutiny of the Victims, Witness and Justice Reform (Scotland) Bill which could help to inform our consideration on this matter.

In addition to integrated or single court models, there are other investigative and problem-solving approaches to the family courts that could also be considered, such as the Pathfinder pilots in England and Wales. The Scottish Government is following the progress of those pilots and, when they are fully evaluated, we will consider whether there could be any application within the Scottish context.   

• when you will convene the short-life implementation group for this Act to consider the issues around implementation raised in this report and whether this will include the courts, Crown Office and the police service, as well as academics and those providing support to victims of domestic abuse?

The Scottish Government absolutely values the contributions of those providing support to victims of domestic abuse and academics in the field, as well as our justice partners. This is why a number of workstreams relevant to domestic abuse are being co-developed in this way. An example of this is the work to develop Scotland’s first national multi-agency Domestic Homicide Review Model. The model aims to learn lessons following a death where domestic abuse is suspected. This work is underpinned by a Taskforce comprised of senior members from across justice, health, local government, social work, victim support organisations and academia to provide leadership on the development and implementation of the model. The Taskforce is committed to working together collectively to help prevent domestic abuse related deaths.
As has been outlined above, the justice partners group has also reconvened for a series of roundtable discussions to provide a forum to consider the particular recommendations emerging from the research which was undertaken with victims of domestic abuse and those who support them. Scope for specific engagement with support services and academics will form part of the discussion within the group and can be explored further in the Terms of Reference for the group.