Domestic abuse court experiences - perspectives of victims and witnesses: research findings

Footnotes

1. The research questions are in Appendix 1; child and adult expert victim-survivor consultants advised on an interview workbook to support interviews, which is shown in Appendix 5.

2. DASA charges accounted for 4.7% of all domestic abuse charges reported in 2020-21, (1,581 charges reported - an increase of 48% on the 2019-20 total of 1,065 then 3.5% of all domestic abuse charges reported). (Domestic Abuse and Stalking Charges in Scotland 2020-21, COPFS (PDF, 1MB))

3. 4 DASA cases also included additional DA aggravated charges

4. To note, 83% of all domestic abuse charges reported in 2020-21 were reported with a statutory aggravation under the Abusive Behaviour and Sexual Harm (Scotland) Act 2016 (27,658 charges)

5. See 9.3 Partner Abuse - Scottish Crime and Justice Survey 2019/20: main findings

6. See Domestic abuse: statistics recorded by the Police in Scotland - 2020/21

7. Domestic Abuse and Stalking charges in Scotland, 2020-21

8. Domestic abuse: statistics recorded by the Police in Scotland – 2020/21

9. Domestic Abuse and Stalking charges in Scotland, 2020-21

10. Criminal proceedings in Scotland: 2020-2021 (supporting documents)

11. Criminal proceedings in Scotland: 2020-2021 (supporting documents)

12. Policy Memorandum Domestic Abuse (Scotland) Bill 2017 Para 18 (hereafter referenced as the Policy Memorandum).

13. For example, threatening and abusive behaviour could be prosecuted under Section 38 of the Criminal Justice and Licensing (Scotland) Act 2010; behaviour that is abusive of a child could be prosecuted under Section 12 of the Children and Young Persons Act 1937.

14. To further specify, for the last category, S5(4) states that 'if a reasonable person would consider the course of behaviour, or an incident of A's behaviour that forms part of the course of behaviour, to be likely to adversely affect a child usually residing with A or B (or both)'. The Domestic Abuse (Scotland) Act 2018 Explanatory Notes Para 36 (hereafter referenced as Explanatory Notes) explains that it could cover circumstances when a child's general wellbeing and development is considered likely to be adversely affected.

15. Under the Abusive Behaviour and Sexual Harm (Scotland) Act 2016.

16. Policy Memorandum Para 19.

17. Policy Memorandum Para 149.

18. Additionally all COPFS legal staff undertake training on domestic abuse, which includes training on the dynamics of abuse, including coercive and controlling behavior. The DASA face to face training was supplemented by an e-learning module and detailed written guidance on the Act.

19. To note, if there is sufficient evidence, which includes evidence from at least two sources, there is a presumption in favour of prosecuting in domestic abuse cases

20. If VIA has not heard from an eligible victim/witness they will apply for certain standard special measures on their behalf

21. To note, the PF prosecutes the cases in the public interest in the summary courts and the Sheriff and Jury courts. Advocates Depute prosecute in the public interest in the High Court.

22. Specialist domestic abuse support and advocacy services - see Appendix 2. ASSIST (Advocacy, Support, Safety, Information, Together) covers most of the Central West of Scotland. EDDACS (Edinburgh Domestic Abuse Court Support) is part of Edinburgh Women's Aid.

23. See, for example, Morrison, F & Houghton, C 2022, 'Children's human rights in the contexts of domestic abuse and COVID19', International Journal of Human Rights. https://doi.org/10.1080/13642987.2022.2057963

24. The Vision for Justice in Scotland – see p.6

25. SCTS News - Reducing the Criminal Trials Backlog

26. The Vision for Justice in Scotland - Our Transformation Priorities, p.5.

27. The Vision for Justice in Scotland – Principles, p.30.

28. Equally Safe - Objectives and Vision for Justice - Transformation Priorities.

29. The Vision for Justice in Scotland, p.30

30. In particular the SCTS led work of the Evidence and Procedure Review. Information on that can be found here – SCTS Evidence and Procedure Review

31. Coronavirus (COVID-19): domestic abuse and other forms of violence against women and girls during Phases 1, 2 and 3 of Scotland's route map (22 May to 11 August 2020); Coronavirus (COVID-19): domestic abuse and other forms of violence against women and girls - 30/3/20-22/05/20

32. Houghton, C, Morrison, F and McCabe, L (2020) Domestic Abuse: Children's Rights Impact Assessment in the Independent Children's Rights Impact Assessment on the Response to COVID-19 in Scotland; Scotland in Lockdown Team (2020) Left Out and Locked Down: Impact of COVID-19 Lockdown for Marginalised Groups in Scotland; Morrison, F. & Houghton, C. (2022): Children's human rights in the contexts of domestic abuse and COVID-19, The International Journal of Human Rights; Morrison F, Malloch M & Friskney R (2022) Scottish Government Call for Evidence: Women in the Justice System – a strategic approach.

33. See, for example, DAHLIA-19 reports and international synthesis.

34. This categorisation reflected those of partner advocacy services, recognising that the experiences (and possibly rights) of young complainants (who may still legally be children during court processes) were distinct from both adult victims and other child victim/witnesses.

35. Just 1 DASA case involved S5 aggravation in relation to a child (child aggravator).

36. Across the sample 3 NHOs included both a child (or children) and adult.

37. Across the study only one child interviewee related to an adult interviewee, both of whom discussed the same court case. One other interviewee discussed two distinct court cases meaning that 22 distinct court cases were discussed across the dataset.

38. Cases described by interviewees in this study took place across 11 distinct court sites. One interviewee described two cases in different court sites accounting for a total of 23 court cases across 22 interviewees.

39. NVivo 12 is a computer assisted qualitative data analysis programme.

40. See Coronavirus (COVID-19): domestic abuse and other forms of violence against women and girls during Phases 1, 2 and 3 of Scotland's route map (22 May to 11 August 2020); Houghton, C, Morrison, F and McCabe, L (2020) Domestic Abuse: Children's Rights Impact Assessment in the Independent Children's Rights Impact Assessment on the Response to COVID-19 in Scotland

41. Policy Memorandum Para 18.

42. Policy memorandum Para 18

43. These victims spoke of a pattern of abuse post-April 2019 (some but not all also spoke of pre-2019).

44. This victim was the outlier in that he did not describe ongoing psychological harm and fear in relation to his ex-wife; as the only male victim of a female perpetrator in this study no generalisations can be made but is an area of interest in the field.

45. The Explanatory Notes to the Act capture this well (18-23).

46. To note overlap between stalking and partner abuse offences. There has been a significant reduction in stalking cases with a DA marker since DASA came into effect.

47. The UK Communications Act 2003 Section 127 relates to improper use of public electronic communications network through sending 'a message or other matter that is grossly offensive or of an indecent, obscene or menacing character'.

48. Policy Memorandum Para 65.

49. A separate prosecution for threatening and abusive behaviour towards a friend was mentioned by one participant. Abusive behaviour to a child could be prosecuted, for example, under Section 12 of the Children and Young Persons (Scotland) Act 1937 but there were no examples of this in this study.

50. The criminal proceedings bulletin figures 2020/21 indicate that, of 381 convictions under DASA, 90 had a child aggravation proven. It would be of interest to ascertain and scrutinise: numbers of children affected by DASA cases/ number of aggravators applied; number of child cited witnesses in DA cases.

51. Reflecting DASA S2(2)(b)) - behaviour directed at a child of B that has relevant effects on B.

52. This includes 'causing the child to suffer fear, alarm or distress' (S10(10)) and the Explanatory Notes elaborate 'likely that a child's general wellbeing and development would be adversely affected' (Para 36).

53. Children's evidence and statements are not normally taken by the police by telephone interview. It is likely that this interview was conducted by telephone due to the pandemic and the public health measures that were in place at that time.

54. To note, whilst this young person describes 'grooming' behaviour (as did some older women), the 'grooming' offence (at S1 of the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005) itself applies where a child is under 16 (the age of consent for sexual activity), so the police could not pursue it as such for a 16 year old. 'Abusive behaviour' and 'relevant effects' as defined under DASA do offer an opportunity to prosecute such a course of behaviour from an older/more powerful perpetrator and there is no lower age limit as to the 'partner/ex-partner'.

55. All victims of domestic abuse are entitled to use standard special measures. In addition to standard special measures other non-standard special measures can be applied for. The Victim Information and Advice service (VIA) are responsible for contacting eligible witnesses in advance of the trial to explore appropriate special measures with them.

56. All cases of domestic abuse and cases with child witnesses are referred to the Victim Information and Advice Service (VIA) within COPFS. With the victim's permission and where services are available, VIA may refer the victim to specialist support or advocacy services and share information with these services about progress and outcomes of the case.

57. Policy Memorandum Para 44

58. Policy Memorandum Para 7

59. When considering reports of domestic abuse, the Procurator Fiscal must first assess whether there is sufficient corroborative evidence that a crime has been committed by the accused. If there is insufficient evidence in law, no proceedings can be taken. Where there is a sufficiency of evidence, there is a presumption in favour of prosecution in all cases of domestic abuse. In cases involving violence or the threat of violence, there is a further presumption that proceedings will be taken in the Sheriff Court or High Court.

60. Policy Memorandum Para 152

61. The Caledonian Programme is a perpetrator programme and can be imposed alongside community sentences.

62. An NHO is an order a court can make following conviction to protect the victim from further harassment. It can require the offender to refrain from such conduct in relation to the victim as may be specified in the order for such period (which includes an indeterminate period) as specified in the order. Breach of an NHO is a criminal offence, punishable by up to 5 years imprisonment on conviction on indictment. In domestic abuse cases, an NHO can also include conditions intended to protect a child who usually lives with the victim or in respect of whom the child aggravation in the Domestic Abuse (Scotland) Act 2018 has been proven.

63. To note that partners in the research explained that this was a way that advocacy workers supported victims/witnesses to 'manage expectations' and 'reframe disappointment' in outcomes.

64. See Chapter 2 for a full discussion of this.

65. DASA intentions in Policy Memorandum (Para's 19 and 149).

66. Based on 19 of 22 cases; we do not have waiting period data.

67. See Appendix 1 and 3.

68. Using the principles of the Victims and Witnesses (Scotland) Act 2014 (S1 and 1A) outlined in Chapter 1.

69. Using the principles of the Victims and Witnesses (Scotland) Act 2014 (S1 and 1A) outlined in Chapter 1.

70. As per the Vision for Justice Way Forward.

71. Counter to principles set out in sections 1 and 1A of the Victims and Witnesses (Scotland) Act 2014.

72. DASA Policy Memorandum Para 152.

73. Reflecting the safety concerns of rape and sexual violence in Brooks-Hay and colleagues (2019).

74. Vision for Justice Transformational Priority.

75. This was a commonly used phrase by participants alongside the need to battle/fight for their rights.

76. A Vision for Justice transformational priority.

77. Also found in Brookes-Hay and Colleagues (2019).

78. As per principles set out in sections 1 and 1A of the Victims and Witnesses (Scotland) Act 2014.

79. In this study all such cited services were provided by ASSIST, EDDACS or Scottish Women's Aid.

80. Training for justice professionals as part of Scotland's National Trauma Training Programme is being developed.

81. See, for example, The Vision for Justice in Scotland, p.30.

82. Participants in the study found it difficult to discern different roles, they connected most criminal justice professionals to 'court' and felt the system was confusing.

83. This protocol outlines the procedures and practices that will be followed by Police Scotland and COPFS in the investigation, reporting and prosecution of allegations involving domestic abuse. Joint domestic abuse protocol | COPFS

84. See paras 12-19 of the Joint protocol

85. SCIM Scottish Child Interview Model is being piloted in several local authorities, prioritising solemn cases. It focuses on best evidence at the earliest opportunity through pre-recorded 'evidence in chief' – the aim is to remove the need for children to give evidence in court and reduce trauma

86. The Children's Hearings (Scotland) Act 2011 introduced a specific ground of 'close connection with a person who has carried out domestic abuse'; in 2021/22 this was the ground of referral for 1811 children.

87. Vulnerable victims and witnesses (special measures)

88. Different default special measures apply depending on the age of the witness – but these are defaults in the event that the witness does not request different standard measures

89. In compliance with the 1995 Act s271AZA

90. A NHO can be applied in DASA or DA aggravated cases and can, in addition to the victims, include a child usually residing with the victim/perpetrator or both, or/and a child subject of a s5 child aggravator.

91. The duties of SCTS/staff are set out in part 4 of the Judiciary and Courts (Scotland) Act 2008

92. SCTS portal

93. To note that ASSIST has specific court advocacy services for children and young people whereas EDDACS does not but links closely with Edinburgh Women's Aid children's service and provides such services where possible.