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

Protection Prior to and During Trial

Bail Conditions

What is proposed - summary

11. A new standard condition of bail that prohibits an accused when they are charged with domestic abuse offences from obtaining precognitions or statements from a complainer except through a solicitor.

What is proposed - further detail

12. The standard set of bail conditions, which are applied in all cases where an accused individual is released on bail, are listed at section 24(5) of the Criminal Procedure (Scotland) Act 1995 ("the 1995 Act").

13. Amongst the standard conditions are requirements that the accused attends court as required, does not commit any further offences, does not interfere with witnesses or behave in a way that would cause witnesses alarm or distress, and that the accused must make himself or herself available for the purpose of enquiries or reports which would assist the court in dealing with the case.

14. Along with these standard conditions that apply whatever offence is alleged to have been committed, a particular standard condition applies (section 24(5)(e) of the 1995 Act) where the offence in question is one to which section 288C of the 1995 Act applies. Section 288C is a list of certain sexual offences.

15. The additional standard condition has the effect of prohibiting persons accused of any of the offences listed in section 288C from seeking to obtain precognitions or statements concerning the subject matter of the offence from the complainer, other than by way of a solicitor.

16. The reason for this existing standard condition operating in relation to certain sexual offences is to prevent an accused seeking to use the processes of the justice system to re-victimise the complainer. An accused may, for example, seek to intimidate the complainer by directly taking statements from them.

17. We consider that domestic abuse has a number of characteristics in common with sexual abuse. These include in particular the exercise of control in an especially intrusive and intimate way by the perpetrator over the victim. Indeed, the attempted exercise of such control is likely to be a more essential feature of domestic abuse offences than of sexual offences in general, given that the former must necessarily involve an intimate relationship between the accused and the complainer while the latter do not.

18. With this in mind, we consider the protection of an additional bail condition is appropriate in domestic abuse cases.

19. In terms of what domestic abuse cases this bail condition should apply to, we consider it should apply for anyone accused of the new domestic abuse offence.

20. In addition, we consider that the harm which the additional bail condition is designed to avert can take place in a wider range of cases than simply in relation to the new domestic abuse offence. For example, we consider such harm can take place where an offence is general in nature ( e.g. threatening and abusive behaviour) but was committed in the context of domestic abuse.

21. The Abusive Behaviour and Sexual Harm (Scotland) Act 2016 includes provision (section 1) that creates a new statutory aggravation where an offence consists of abuse of a partner or ex-partner. This domestic abuse aggravator will mean that offences associated with domestic abuse, but not fitting the specific terms of the domestic abuse offence ( e.g. where it consists of a single incident and there is no course of conduct) will officially be labelled as offences associated with domestic abuse.

22. We consider the new standard bail condition should also apply to where the domestic abuse aggravation has been added to an offence.

Benefit of what is proposed

23. The introduction of a new standard bail condition will help reduce the likelihood of accused persons using the processes of the justice system to exert undue control and influence over the complainer, helping minimise the trauma for the complainer while still ensuring the proper administration of justice is achieved.