Criminal Justice Modernisation and Abusive Domestic Behaviour Reviews (Scotland) Bill: equality impact assessment

Key Findings

The EQIA process did not identify any direct discrimination through the policy intention for any of the provisions. The EQIA analysis will, however, be kept under regular review, with any new data or evidence analysed as it becomes available to monitor the ongoing impact of the legislation on the protected characteristic groups. It will also be applied as and when aspects of the domestic homicide and suicide review model are commenced and working in practice.

Criminal Justice Modernisation

Electronic signatures

The Scottish Government has considered the impact of this provision in the context of digital exclusion. Lack of access to remote technology, lack of digital skills and connectivity issues may present a barrier to electronic communication. However, it is important to note that the provisions will not remove the option of traditional means of communication. Instead, they will simply offer an additional option to those who wish to, and are able to, use electronic means.

Virtual attendance

It is acknowledged that the provisions relating to remote attendance for criminal proceedings may have more of an impact on some of the protected characteristic groups, in particular those with certain disabilities such as visual impairment or neurodivergence.

However, the court and tribunal in every case retains the power to make directions which take account of the specific circumstances affecting parties to the proceedings and the ability to adjourn where representations are made. This includes the power to direct that persons attend court where remote attendance would prejudice the fairness of proceedings or otherwise be contrary to the interests of justice. Courts must also ensure that proceedings are fair in terms of the article 6 ECHR right to a fair hearing, which includes ensuring that parties are able to participate effectively in their hearing.

Conversely, whilst they are not designed for this purpose, provisions relating to attendance by electronic means may be particularly beneficial to those with physical disabilities.

Fiscal fines

It is not anticipated that this measure will have an adverse impact on any person within the protected characteristics. Fiscal fines are not mandatory penalties and allow a person offered one to refuse the conditional offer by giving notice to the court to that effect. In such an event, the refusal is treated as a request by the person to be tried for the offence in which case the procurator fiscal will then decide whether to prosecute.

National calling from custody

It is not anticipated that this measure will have an adverse impact on any person within the protected characteristics.

Digital Productions

It is not anticipated that this measure will have an adverse impact on any person within the protected characteristics.

Alternative ways to authenticate copy documents

It is not anticipated that this measure will have an adverse impact on any person within the protected characteristics.

Domestic Homicide and Suicide Review Model:

The Bill is intended to identify what lessons can be learned and evidently applied following a death where abuse is suspected in order to help prevent future domestic abuse and domestic abuse related deaths.

The EQIA has highlighted that there may be greater impacts on some of the protected characteristics, most notably the protected characterisitc of sex. This has particular relevance to the provisions relating to:

Definition and scope of a domestic homicide or suicide review.

Sex

Women are more likely to be a victim of domestic abuse than men. Data recorded by Police Scotland shows that where the victim’s gender was known, the majority of victims of domestic abuse in 2022-23 were female (83%). Over four-in-five incidents (81%) of domestic abuse in 2022-23 had a female victim and a male suspected perpetrator. This was also the case in 2021-22.

Data from the Crown Office and Procurator Fiscal Service also highlights that in 2023-2024, 25,825 (86%) of the charges reported with a domestic abuse identifier were in cases where the accused was male.

In 2022-23 half (50%) of domestic abuse incidents, where the relationship between the victim and suspected perpetrator was known, were between current partners. Just under half (49%) of incidents were between ex-partners.

The Scottish Crime and Justice Survey 2019-20 found that, from the age of 16, women were almost twice as likely as men to have experienced partner abuse (21.2% and 11.2% respectively), similar to the position in previous years. A higher proportion of women than men reported psychological abuse, physical abuse, and both psychologcal and physical abuse since the age of 16.

In 2022-23, police recorded 52 victims of homicide in Scotland, the lowest number of recorded homicide victims since 1976. Within this, 25% (13) of the 52 recorded homicide victims were female. There were no children killed in 2022-23. The majority (54%) of male homicide victims were killed by an acquaintance (21 of 39 male victims). Female victims were most likely to be killed by a partner or ex-partner (46% or six of 13 female victims).^[1]

In 2022-23 there were eight homicide victims killed by a partner or ex-partner. The homicides comprised of six female victims (46% of all female homicide victims) and two male victims (5% of all male victims). Between 2018-19 and 2022-23 there were 42 victims killed by a partner or ex-partner (34 female victims and eight male victims). Between 2013-14 and 2022-23 there were 81 victims killed by a partner or ex-partner (63 female victims and 18 male victims).

The statistics demonstrate that domestic homicide is a gendered crime that is overwhelmingly committed by men against women. The lessons learned and applied following a death where abuse is suspected will therefore have more of an impact on women. Helping to prevent future domestic abuse and domestic abuse related deaths.

Further information on findings relating to protected characteristics

The EQIA process looked at the available demographics of victims of domestic homicides.

Age

According to homicide statistics from 2022-23, the 31-35 years old age group had the highest domestic abuse incident rate for both victims (277 incidents recorded per 10,000 population) and suspected perpetrators (245 incidents recorded per 10,000 population).

Between 2018-2019 and 2022-2023, there were 42 victims killed by a partner or ex-partner with female victims impacted higher than male victims (34 female victims and 8 male victims). The data also outlined a greater impact on women between 26 and 65 years old.

There is limited information on the number of child deaths in relation to domestic abuse and domestic homicide. Whilst the national homicide in Scotland statistics provide data on the number of children killed and the relationship between the child and the accused/ convicted, it cannot be determined which of those deaths were in a domestic abuse/ domestic homicide context which makes it challenging to determine the numbers of deaths within the remit of this work. However, there is approximately between 0 and 7 children killed per annum in Scotland by a parent.

Between 2018-19 and 2022-23 there were three children killed by a parent. Between 2013-14 and 2022-23 there were 18 children killed by a parent. It should be noted that where a child has been killed by a parent these will predominately be due to child abuse or neglect.

The Bill proposes inclusion of children and young people in the review model. This includes someone killing their children or the children (of any age) of their partner or ex-partner, alongside connected deaths of children and young people who may or may not be related to the victims.

The inclusion of children and young people in the model is based on the consultation findings, highlighting there was strong support for inclusion of domestic abuse related family homicide (98%) where the perpetrator kills their partner/ex-partner and related children. There was also strong support for including children who die in a domestic abuse context (90%). This could be where a child is killed as a means to cause additional harm and abuse to the primary victim of domestic abuse, but it also includes connected children who die in a domestic abuse context, for example, whilst on a play date.

Within the consultation, professionals expressed that children should be included in reviews to provide more information surrounding the source of risks. Involving children in the review process if they choose to participate, will help give a voice to children and young people who have been affected by domestic homicide and suicide. However, it is essential that children’s participation in a review is done in a person centred, trauma informed and age appropriate way. It is also acknowledged that depending on the age and stage of children, it may not be appropriate for them to participate in a review. If they do participate it will be essential that they are supported to do so before, during and after a review. The support for children and young people relates to the Bairns’ Hoose approach to delivering child protection, justice, and health support and services to child victims and witnesses of abuse and harm.

Disability

Although no specific barriers have been highlighted in the research of the EQIA, as part of the consultation, it was noted that the need for accessibility for those with mental disability or hearing/sight impairment and dementia would need to be considered for those contributing to the Domestic Homicide and Suicide Review process.

Pregnancy and maternity

The Scottish Government’s Pregnancy and Maternity Evidence Review, published in 2013 quotes research and evidence that pregnant women face and “increased risk” of domestic abuse, and that “abuse often starts in pregnancy and gets worse when the child is born”. Domestic homicide and suicide victims who are pregnant or who have children are included within the review model scope.

Race

Some evidence suggests that minority ethnic women and girls experience higher rates of gender-based violence and domestic abuse and face greater barriers to accessing support services.

Further evidence also suggests that minoritised ethnic women are particularly vulnerable to domestic abuse and other forms of gender-based violence (GBV) because of the intersection of socio-cultural factors such as patriarchal norms and structural factors such as racism and immigration status.

Following the consultation with stakeholders and in considering the consultation responses in respect of familial homicide, there was support for ‘honour killings’ to be included in the model. However, at present there is not a definition of what so called ‘honour based abuse’ and in turn, ‘honour killings’, means in a Scottish context.

The Scottish Government is committed to including honour killings in the review model however, in order to ensure such deaths are reflected appropriately within the model and legislation, further work is required in this area.

This work will be progressed once the commitment under the Scottish Government and COSLA co-owned Equally Safe Strategy^[2] and the refreshed Equally Safe Delivery Plan^[3], to develop an approach to address honour based abuse, including consideration of a statutory definition, has concluded. Consultation will also need to be undertaken to ensure the review model captures and reflects honour killings in a way that responds to how it is experienced by black and minority ethnic women in Scotland.

The enabling power within the Bill will mean that following the completion of this work, further consideration could be given whether to include honour killings within the model.

More broadly, there is a gap in terms of data in relation to domestic homicide and suicide and ethnicity. Through the review model, a greater understanding and data in relation to ethnicity will help to inform change and improvement to better protect victims and prevent abuse.

Further provisions:

Enabling power to modify the scope and name of the review model:

As a means to futureproofing the legislation, a power is being taken in the Bill to enable the extension of the review model to other relationships and/ or to events other than death in future.

Within the accompanying policy memorandum for the Bill, it is acknowledged that the scope of the review process is already broader than that of the current definition of domestic abuse which amounts to criminal conduct as outlined in the Domestic Abuse (Scotland) Act 2018. This is in recognition of the strong support and opportunity for domestic homicide and suicide reviews to go further. That distinction is recognised in how the review model has been defined. This is considered an important aspect of futureproofing the model which may in time see it depart further from the definition of domestic abuse within the 2018, in recognition of changing social circumstances and may enable more individuals and circumstances to be covered in the future..

Provision to establish a review oversight committee, chair, deputy chair, case review panels and chair:

The review oversight committee chair and deputy chair are to be public appointments. This is to ensure that the model is independent, robust, resilient, fit for purpose and inspires trust in those engaging in the process. This approach is very distinct from that taken in other jurisdictions, where the absence of confidence and engagement with the model has undermined its ability to deliver effective change as a result of its deliberations. In addition to the chair and deputy chair, the review oversight committee is to consist of representatives from a number of public authorities and will include victim support representation. The review oversight committee will comprise of key agencies and organisations with the ability to include and remove those listed in the Bill.

Provisions requiring the notifying body to notify of any death which meets the review criteria:

It is not anticipated that this measure will have an adverse impact on any person within the protected characteristics.

Provisions to ensure a review does not prejudice any other live investigation or proceedings:

It is not anticipated that this measure will have an adverse impact on any person within the protected characteristics.

Provisions to ensure co-operation, participation and recovery of information:

It is not anticipated that this measure will have an adverse impact on any person within the protected characteristics.

Reporting requirements:

It is not anticipated that this measure will have an adverse impact on any person within the protected characteristics.