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

Protection During Trial:

Accused Persons Conducting Their Own Defence

What is proposed - summary

24. A ban on the accused conducting their own defence when they are charged with domestic abuse offences.

What is proposed - further detail

25. Sections 288C, 288E and 288F of the 1995 Act contain provisions prohibiting an accused person from conducting their own defence. Section 288C imposes the prohibition in relation to certain sexual offences. Section 288D does so in relation to certain serious offences involving child witnesses under the age of 12. And section 288F gives the court a power to prohibit the accused from conducting their own defence where a vulnerable witness is to give evidence. Vulnerable witness is defined in section 271(1) of the 1995 Act to include complainers in offences involving domestic abuse.

26. Under these arrangements, the court must notify the accused that the hearing must be conducted by a lawyer. Section 288D of the 1995 Act provides that the court may appoint a solicitor at its own hand for this purpose. Under section 22(1)(dd) of the Legal Aid (Scotland) Act 1986, legal aid is automatically available where section 288D applies.

27. We consider it is appropriate to extend this ban to any accused charged with the domestic abuse offence. We consider similar considerations as noted in the proposal to prohibit the precognition/taking of statements by an accused also apply in this area.

28. In particular, the risk of the trial process being misused to further intimidate and control the complainer, which the existing prohibition addresses in sexual offence cases, is just as real in domestic abuse cases.

29. It is the case that complainers in cases arising from the new domestic abuse offence might be protected as vulnerable witnesses by existing legislation. However, this is not automatic and we consider there is a clear justification that an explicit ban should operate to avoid any doubt about an accused being able in any circumstances to conduct their own defence in domestic abuse cases.

30. For similar reasons as noted above, we consider the ban should also operate in relation to where the domestic abuse aggravation has been added to an offence.

Benefit of what is proposed

31 The introduction of an outright ban on accused persons conducting their own defence in domestic abuse cases will be to help reduce the likelihood of accused persons using the processes of the justice system to exert undue control and influence over the complainer, help minimise the trauma for the complainer while still ensuring the proper administration of justice is achieved.

Expert Evidence Relating to the Behaviour of the Complainer

What is proposed - summary

32. The introduction of expert evidence relating to the behaviour of the complainer in domestic abuse offence cases.

What is proposed - further detail

33. In criminal trials, assessing a witness's credibility is considered a matter for the jury. The evidence of expert witnesses regarding normal human nature and behaviour is usually inadmissible, and evidence as to the credibility of a witness is generally not admissible unless it is also relevant to a fact in issue at the trial or is evidence of mental illness.

34. Section 275C of the 1995 Act was introduced to allow expert evidence to rebut any inference adverse to the complainer's credibility or reliability as a witness which might otherwise be drawn from her or his behaviour or statements after the offence was committed. This is an exception to the usual rule that the credibility or reliability of any witness is a matter for the jury. This exception operates in relation to certain sexual offences.

35. The exception was made because there is considerable research that demonstrates that an alleged victim of a sexual offence may respond in a number of ways and their reaction may be something with which members of a jury may be completely unfamiliar. For example, a complainer may appear very calm and not demonstrate distress, and the court or jury members may expect distress to be shown in a 'normal' reaction.

36. We consider the same situation can arise with domestic abuse in that the complainer may well - for example - continue to reside with the accused, give all the appearance of being in a happy relationship and may well co-operate with their partner/ex-partner in the matter of the upbringing of children during and following an offence being committed. For the court or members of a jury, such activity by the complainer could seem to undermine the credibility of the allegations they have made.

37. In this situation, expert evidence could demonstrate to the court/jury why actually such behaviour may be seen as an understandable reaction in the situation the complainer finds themselves in.

Benefit of what is proposed

38. The introduction of permitting expert evidence relating to the behaviour of the complainer in domestic abuse cases would enable the court/jury to be provided with expert opinion on the range of reactions and decision-making typical of persons traumatised by domestic abuse, i.e. on matters that may be beyond the experience of the court/jury and on which they may harbour misconceptions. This will assist the court/jury in reaching a just decision.