Criminal Offence of Domestic Abuse Analysis of Consultation Responses

Further comments

The final consultation question asked respondents for any further comments on the draft offence.

Question 8: Do you have any other comments on the draft offence attached to this consultation?

In their further comments, some respondents re-stated views expressed elsewhere within their consultation response. The focus of the analysis presented here is on issues which have not otherwise been covered within this report.

Some comments considered or raised questions about how particular aspects of how the proposed offence would operate. These included:

• What will determine when the offence would be used as opposed to existing criminal behaviour, particularly serious offending, being prosecuted separately, possibly with a domestic abuse aggravator attached? For example, if violent behaviour includes sexual violence would that be charged under this offence or under the Sexual Offences Act? Would an additional dynamic be included to recognise the intimate partner/domestic abuse aspect of the sexual violence?
• There have been concerns about a rise in female perpetration linked to counter-allegations or dual reports of domestic abuse. Careful consideration of these issues is required in relation to the draft offence proposed. On one hand, the draft offence may address some of these issues by adopting a less incident-based approach in favour of one that recognises a course of conduct and the dynamics of coercive control. On the other hand, increasing the range of behaviours that constitute the offence of domestic abuse could inadvertently draw more individuals into the criminal justice system.
• How will the offence allow perpetrators committing serious crimes which merit the higher end of the sentencing scale for this offence to be identified? This will be particularly important in monitoring the offending history of repeat and serial offenders and the necessity of ensuring that this offence triggers the Sex Offender Notification requirements. More generally, how would the offence interact with other public protection processes.

The issue of corroboration was also raised. Two local authority, health or MAP respondents suggested that, given the current law on corroboration, consideration could be given to making specific provision in relation to its application to this new offence. In particular, it was suggested that if it is to be necessary to find corroborative evidence for each discrete incident in the course of conduct, then this may make it difficult to investigate or prosecute this offence. One of these respondents went on to suggest that there may be a case for stating that in a course of behaviour at least one relevant incident requires to be corroborated but other incidents could be evidenced from a single source. Another suggestion was that it could be provided that credible evidence from a single source to two instances of conduct could be deemed to be sufficient.

A law enforcement, legal or academic respondent noted that charges involving abuse and sexual violence against current and/or former partners commonly rely for proof on the rule of mutual corroboration. However, they were concerned that, as domestic abuse is to be defined by the effect of the behaviour, not by the conduct, mutual corroboration may arise between charges of domestic abuse where one is withholding money and the other (with a different complainer) is of serious assault or rape. These offences would potentially provide mutual corroboration because of underlying similarity of the coercive nature and effect of the behaviour and not the nature of the actual conduct. They suggested this would arguably lead to a widening of the doctrine of mutual corroboration as currently understood.

Other comments considered self-representation by the accused. It was suggested that, given the impact of domestic abuse, it is inappropriate to permit someone accused of the offence to represent themselves in court, thereby providing a platform from which to intimidate and potentially re-traumatise a victim. A specific suggestion was that the offence should contain an equivalent provision to section 6 of the Vulnerable (Witnesses) Scotland Act 2004, amending section 288(F) of the Criminal Procedure (Scotland) Act 1995, prohibiting the abuser from carrying out the personal conduct of his defence in relation to the domestic abuse offence.

It was also suggested that the creation of this new offence places renewed emphasis on the need to improve protections for child witnesses to ensure that children are not further traumatised by criminal justice process. A children's and young people's group raising this issue noted that children may be involved in the adult criminal justice system through cases of domestic abuse, as well as child maltreatment and abuse. They suggested that a specific offence of domestic abuse in the law will likely increase this and preventing secondary victimisation of children (and women) throughout the legal process must be regarded as a priority. They recommended that implementation of any new offence takes place in tandem with a clear commitment to progress reform of the criminal justice system, towards a multi-disciplinary and wholly child-centred system, as called for by Lord Carloway and elaborated through the Scottish Court and Tribunal Service's Evidence and Procedure review.

Many of the other comments focused on the resources required to identify, prosecute or otherwise implement the offence, or tackle domestic abuse more widely. This included a suggestion that consideration should be given to the capacity of the justice system to respond to domestic abuse beyond the identification of an offence. In particular, it was suggested that criminal justice services must be adequately resourced and equipped to deal with any increased workload if delays are to be avoided. Specific suggestions included:

• There should be an awareness campaign to promote the change to the public.
• Guidance will be required to ensure that LGBT people's experience of domestic abuse is not overlooked. In particular, the Scottish Government needs to clearly articulate within guidance how gender based violence, including domestic abuse specifically, can affect LGBT people.
• Appropriate resources will need to be available to ensure that key stakeholders receive training on any legislation to be introduced. Specific suggestions included support or training or in the new offence for police officers, Procurator Fiscals and Sheriffs.
• The Scottish Government should consider the resource implications for advocacy services, Women's Aid groups and other domestic abuse services.
• There is a huge shortage of abuse recovery services for children and their families in Scotland. This Bill could be an opportunity to address this issue by recognising that those who have experienced domestic abuse need access to specialist services. The Scottish Government should map and develop a clear understanding of what services are available across Scotland, as a first step toward ensuring recovery services are consistently available across the country.
• Consideration should be given to the support of effective perpetrator programmes to ensure that there are appropriate interventions to address offending behaviour.

Other issues identified as requiring consideration were:

• Changes to the content and procedure of risk assessment. It was noted that risk assessment and the Multi Agency Risk Assessment Conference procedure currently defines and focuses on women who are high-risk mainly as a consequence of physical abuse. How will control be covered and assessed where there is evidence of numerous and persistent controlling behaviours but little or no physical abuse present or reported?
• Monitoring of the implementation of the Act to assess its success in the prosecution of psychological abuse and controlling behaviour, and in particular whether there are any prosecutions where there is no evidence of physical or sexual violence.
• The links between the civil and criminal justice systems and proceedings. In particular, avoiding the civil legal system, and particularly child contact proceedings, being used against women to continue and further the abuse of them and their children.
• How a similar legislative approach might be adopted for familial relationships.