The Creation of a Specific Offence of Domestic Abuse - Proposed Associated Reforms to Criminal Procedure

Purpose and Overview

1. The purpose of this document is to provide details of a number of reforms proposed to criminal procedure that relate to the creation of a specific offence of domestic abuse.

2. The Scottish Government has been exploring the creation of a specific offence of domestic abuse. We held a consultation between April and June 2015 on the principle of developing such an offence. The analysis of responses received to this consultation revealed broad support, but a range of views as to how best to develop the offence.

3. We therefore prepared a further consultation on the terms of a specific domestic abuse offence that was held between December 2015 and April 2016. An analysis of responses received to this second consultation was recently published. The Scottish Government is currently considering the views offered in respect of how the draft offence could be improved. This paper does not, therefore, respond specifically to those issues which are being considered separately.

4. However, in developing a specific offence of domestic abuse, we have also been considering whether some associated changes to criminal procedure and the law of evidence are merited to accompany the creation of the offence. Some consultees also raised the issue of whether some specific associated changes to criminal procedure were required in responding to the most recent domestic abuse offence consultation.

5. Our consideration was informed by views offered by stakeholders that there are clear parallels between some types of sexual offending and domestic abuse in that committal of both types of offences can often be accompanied by the exercise of control by the perpetrator over the complainer in a particularly intrusive and intimate way.

6. There are well-established rules of criminal procedure and evidence contained within the Criminal Procedure (Scotland) Act 1995 that relate only to certain sexual offences. This document outlines four reforms we are considering including in the forthcoming Bill, as announced by the First Minister in the Scottish Government's Programme for Government on Tuesday 6 September 2016 that will create a new domestic abuse offence.

7. These reforms are linked to existing provision in the area of sexual offending, but we have considered each reform on its own merits. We are proposing them as we consider they are a necessary and proportionate approach to take in respect of ensuring the creation of a domestic abuse offence is accompanied by necessary safeguards to stop the potential for further abuse of the complainer to take place through the court process and to provide courts with contextual information to assist with decision-making.

8. In this document, we refer to 'the accused', 'the complainer', 'the offender' and 'the victim'. These are used where the context requires it and are legal terms used in this document given the specific context of the policy under discussion.

9. By accused, we are referring to the person accused of committing the alleged domestic abuse offence. By complainer, we are referring to the person against whom the alleged domestic abuse offence is said to have been committed. By offender, we are referring to the person convicted of the domestic abuse offence. By victim, we are referring to the person against whom the domestic abuse offence has found to be committed.

10. If you would like to offer views, details of how to do so are contained in the ' What Happens Next' part of this document.