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

6. Sentencing and Protection

Headline findings

• For many participants, the legal process did not deliver a fulsome sense of justice. There were significant concerns that the prosecution and subsequent sentencing for domestic abuse offences did not reflect the sustained nature or severity of abuse they had experienced nor the impact it had on their lives.
• Participants reported concern that court disposals did not prompt change in the accused's abusive behaviour and thus did not prevent domestic abuse.
• There were a range of views about the efficacy of Non-Harassment Orders (NHOs) as a protective measure. For some, NHOs offered a sense of protection. However, for many participants, NHOs were not an adequate form of protection.
• Even with NHOs being in place, some participants experienced continued abuse and harassment. Several reported being especially fearful that when an NHO lapsed abuse would restart. This had negative consequences for participants' wellbeing and their ability to 'move on' and live free from abuse.
• Where the accused had been found not guilty or admonished, participants were especially negative about the justice system. This group were left especially vulnerable, with bail conditions and other protective measures ending abruptly, leaving them without ready access to protective measures like NHOs.

Introduction

In this section we report on findings of victims' and witnesses' experiences on sentencing and protection. The Domestic Abuse (Scotland) Act 2018 (DASA) reforms aimed to ensure sentencing reflected the seriousness of domestic abuse and ensure that the safety of victims and associated children were a key consideration of court during sentencing. Most cases in this study (and most domestic abuse cases in Scotland) were heard in summary court where a S1 DASA conviction can be imprisonment for a maximum of 12 months or a fine (maximum £10,000) or both (S9(a)); in Sheriff solemn proceedings imprisonment can be for a maximum 5 years; High Court imprisonment can be for a maximum of 14 years or a fine (or both) (S9(b)). When sentencing, courts must have particular regard to ensure the victim is not subject to a further such offence and must consider whether to make a Non-Harassment Order (NHOs) to protect victims and associated children (Schedule 1 to the Act, paragraph 9) from further harassment and abuse, recognising the high incidence of repeat offences in domestic abuse cases^[60] and harm to children. To note that one limitation of the Act is that abuse pre-April 2019 cannot be included in the offence and therefore reflected in sentencing.

We discuss the views of victims' and witnesses' in this study on court outcomes resulting from the prosecution of domestic abuse. As with other stages of the court journey, participants were often unclear on what sentences had been imposed, what offences these related to, and the rationale for sentences. We begin by providing an overview of court outcomes for participants that were interviewed. We then explore in more detail victims' and witnesses' views on court outcomes and disposals and the implications these had for their sense of justice and protection from abuse.

An overview of court outcomes

These tables use advocacy service administrative data and participants' accounts to provide a summary of court outcomes and disposals. This includes protective measures that were made.

Divergence between experiences of domestic abuse and court outcomes

While most cases resulted in a guilty verdict, the majority of participants reported that the final court outcome did not reflect the severity of their experience of domestic abuse. This included cases where the accused had been found guilty of offences as well as those where the accused had been found not guilty. Views were linked to the bargaining and plea deals that occured throughout the legal process, which led to charges being dropped and/or guilty pleas to lesser offences accepted. For example, one participant described a charge of assault, that had resulted from an attempted strangulation, being reduced to a charge of breach of the peace. This had implications on the sentencing options available and contributed negatively to her overall sense of justice.

Participants were concerned and angry that offences, relating to abuse that had been sustained over many years, were 'rolled up' into singular or 'minor' charges. While some abuse predated the introduction of DASA, as discussed in Chapter 1, participants maintained the view that charges did not reflect the scale or the severity of abuse they had experienced since the implementation of the Act (April 2019). Nor was it perceived by participants to adequately address the impacts that abuse had and continued to have on their lives. These points are reflected well in the following extracts from an interview with a child:

I think they could have got a conviction if they'd looked at all of this stuff. 'Cause it's like the wee, tiny bit of the iceberg they looked at, when there's all this stuff underneath. And like they said that they'd do everything, but they just left a whole big chunk out. So, it was quite frustrating that they didn't do their job, kind of. (Child 3)

Thus, we see key divergence between victims' and witnesses' views about the appropriate sentence in light of their experience of domestic abuse and the sentences imposed. There may be evidentiary and other prosecutorial reasons underpinning decisions on what charges are progressed, the verdicts reached and the sentences then ordered. However, participants were mainly unaware of these reasons and/or had not understood them. This lack of knowledge, contributed to strongly held views that the whole of the domestic abuse 'iceberg' was not exposed or addressed in the court process, and justice had therefore not been achieved.

As shown in the table 3, when the accused had been found guilty, most court disposals involved fines, community payback orders and/or referral to a perpetrator programme. In such cases, participants were not persuaded that these sort of court disposals were adequate or appropriate for addressing offending relating to domestic abuse or keeping them safe.

A contrary and minority view was expressed by one adult. She highlights the importance of the symbolic nature of the legislation in protecting victims and describes a community payback order as an effective way to ensure accountablity and provide some sort of 'payback' for the abuse that she had experienced:

I'm actually happy that he actually got those sentences and got the court order, because the fact is that he now is learning that it's the payback for his behaviour. And I'm hoping that he's going to learn his lesson that if you do something then you have to pay for it. And he understands that there is a law to protect his wife and children, there is a law that he cannot really hurt his wife or abuse his wife and children. (Adult 5)

Limitations in sentencing

As illustrated in the Sentencing Overview a minority of court disposals involved a custodial sentence (n=3). Participants reported frustration that sentencing options were limited and less severe owing to the domestic abuse offences they experienced being heard in Summary Courts rather than Solemn Courts. In the extract below, an adult reflects on the differences in sentencing options in these different contexts:

So, you know, if [accused] had been dealt with in a Solemn Court, the fact that he had those charges, he would have had up to five years [custodial sentence]. Where he's now been given nothing, where now he's got three years of doing community payback and social work and stuff like that. But, you know, again, it doesn't make me feel any better, because to me that's [a] pittance compared to what he's done to me. (Adult 4)

Participants expressed anger that sentences for multiple offences could be served concurrently and sentences served were likely to be less than those that had been ordered by the Court.

Despite these strong views on the limitations of sentencing, some participants described feelings of guilt and responsibility for court disposals, unveiling the complexity and at times contradictory emotions victims and witnesses may experience in the prosecution of domestic abuse. These are highlighted in the following extract from an interview with a child participant reflecting on their father's sentence:

He's pled guilty, he's going to get a punishment. There was an element of justice there. And then there was also the feeling of feeling terrible for him because you once cared about this person, and we've had to go to court against him and you never picture yourself in that. You never want to. So, it's, sort of, really difficult to find the balance of having sympathy for them and realising that they did wrong and that needs to be addressed. (Child 5)

Protection offered by Non-Harassment Orders^[62]

When the accused had been found guilty, 15 out of 18 participants were granted an NHO. Across this group, the duration of NHOs (where known) varied, with the shortest NHO lasting 1 year and the longest 10 years. For some participants, an NHO offered a sense of protection for the future; it gave confidence that, should abuse and harassment continue, there was an efficient route back into the criminal justice system. This is illustrated in the following quotation from a young complainant:

I knew he wasn't going to get the jail. That was what I was wanting. But I knew he wasn't going to get it. So, I said to myself, like, a non-harassment order is the next best thing. None of this, like, rubbish where, oh I need to phone the police to report it. And at least now if he does anything, he gets the jail on the spot and there's no of this messing about going back and forth to courts and all that all the time, because that's what does pure drain you 'cause it's like, is this going to happen, is it not going to happen? (Young Complainant 1)

When considering the protection offered by NHOs, participants frequently weighed whether a custodial sentence or an NHO would offer longer protection. While these measures are not mutually exclusive, several concluded that an NHO would likely outlast any custodial sentence ordered^[63]. While NHOs were viewed as offering protection for longer, participants also highlighted key areas where they felt NHOs fell short.

Individuals who are included or excluded from an NHO

Several adult participants were critical that the NHOs did not extend to their children. In some cases, the court's decision to exclude children from an NHO, was perceived to be because of the accused's current or future child contact arrangements. This limited the protection NHOs offered to adult victims. It also shows how risk may be considered and mitigated differently across adult and child victims. This is notable in the following example, where the duration of NHOs varied across family members, with the youngest child (perhaps the most vulnerable) having protection from an NHO for the shortest period:

Yeah, so my mum got 20 years for her non-harassment order, and me and my wee brother got 10 years, and my wee sister got 18 months, because it's his child, so I think the court kind of need to give him a chance. (Child 4)

Concerns about who was included or excluded from an NHO extended to adult children, new partners and wider family members and friends. NHOs cannot be used to protect adult children, however participants reported that adult children and other individuals were often subject to abuse and harassment from the accused and were concerned that they were not included in NHOs, as demonstrated in the following extract:

No, the NHO was just about me. It was just on me, definitely. Because when he approached [my younger son]'s car, the two of them work for the Council … and [younger son]'s like that, 'If you're going to hit me, hit me.' And he's like that, he says, 'It's your mother I can't hit.' He says, 'But I'll fucking hit you.' He says, 'But I can't do it just now, I'm at my work.' So as far as I'm concerned, he would assault my son, when he's not at work. (Adult 3)

NHOs purpose as a deterrent or a 'quicker route' to future protection

While NHOs may act as deterrent to some, participants tended not to conceptualise NHOs in this way. Rather, NHOs were viewed as a future route to protection, a route only accessible after abuse and harrassment had continued. Participants were anxious that NHOs did not change behaviour nor did they necessarily stop abuse. In the following extracts, an adult reflects that while glad to have an NHO in place, she remained hyper-vigilant, ensuring she always had a copy of the NHO with her:

Yeah. I've actually got photocopies of [the NHO] and got it laminated so I've got one in my bag, I've got one in the car. I'm fully prepared so I've always got one on my person. If anything does come up, I can just whip it out and say, 'I've got this.' So yeah, I'm pleased that I've got that. (Adult 13)

In this second extract, another adult participant elaborates on her views on the limitations of NHOs:

But it's whether he's going to acknowledge that he needs to stay away from us, and it just depends on him. Some people actually listen and keep by that piece of paper, but others might not. And at the end of the day, it is just writing on a piece of paper. It just depends on the person that it's been given against. (Adult 13)

The view that the protection offered by an NHO relies on the accused's acceptance of its conditions was shared by many participants. There was a further shared view that NHOs in and of themselves were not an adequate deterrent for abuse nor did they change abusive behaviour. Thus, NHOs were not seen to offer the immediate protection that a custodial sentence might; rather they were viewed as a route to future protection in the event of abuse continuing. Such concerns are outlined in the following extract where an adult describes her distress in learning that an NHO had been ordered following the accused's repeated breach of bail conditions:

The Procurator Fiscal phoned me to tell me that he's been given a non-harassment order and not to contact me, at which point I just burst into tears on the phone, totally inconsolable. Because I'm like, what is the point, what is the actual point of giving the non-harassment order when he's done this, he's breached … he's up in the one court case, the first court case, he was up for four different separate breaches of bail, and now you've given a non-harassment order. At which she said, 'But it's the judge that has passed this this time, so if he breaches it, he'll go to prison.' Well, he's breached it [NHO] twice, plus more and he's still walking free. (Adult 1)

Breaching and manipulating the conditions of NHOs

Several more participants provided vivid accounts of breaches of NHOs. They also gave examples of the conditions of NHO not being breached but perpetrators' behaviour continuing to be a source of distress and fear. One participant described occasions where the perpetrator would turn up to places where she was and watch her. While this did not breach the conditions of her NHO, it caused her considerable distress. Other participants highlighted social media as being a particular route to continue to harass and not breach the conditions of the NHO that were in place. The limits of NHOs, when the conditions are not expansive enough, were highlighted in the extract from an adult's interview:

Unless he directly contacts me, he's not breaching it, so it's got to be direct communication with me, and because he doesn't… I think they have to…especially in cases involving domestic abuse, they need to widen the scope of what a non-harassment order can cover, because the psychological impact of all the posts online and the threats that are being held over me and the threats that he's given to friends and so on, is having a huge impact. (Adult 2)

A temporary form of protection

Participants viewed NHOs as a temporary form of protection. Several participants had significant concerns about what would happen once an NHO had lapsed. They described feeling very frightened and anxious that once the NHO lapsed, abuse would restart. These views, are articulated in the following extract from a young complainant:

I mean, he's got a non-harassment order for me for three years. That's only a bit of paper telling him not to come near of me. After three years, it's just going to go back to normal. And he's just going to keep doing it because he's never …he's not had anybody tell him, 'Oh it's wrong.' That won't matter to him anyway.… I mean, he just keeps getting chance after chance. (Young Complainant 1)

Once an NHO had expired, study participants feared that there was the risk of abuse continuing or 'going back to normal'. Further, for victims whose NHOs were about to end the fear of then becoming individually and financially responsible for seeking their own legal protective measures was already causing great stress.

When the accused was found not guilty

Where the accused had been found not guilty or given an absolute discharge, participants had significant concerns about their safety and protection. In these cases, once concluded, all protective measures ended. For example, special bail conditions ended, security alarms installed by the police stopped, and routes to protective measures like NHOs were closed. This group of participants reported feeling incredibly vulnerable and fearful of the repercussions of taking part in criminal proceedings. An adult victim's description typifies these feelings:

You've got protection during the court process. Because I had the bail conditions in place. He wasn't allowed to come near us. People were phoning and checking in on me, making sure I was okay. Getting safety alarms sent to the house, and then suddenly, once the court's finished and the not guilty has happened, then that all gets taken away. And then you're just left that he could come to my door again. (Adult 10)

These accounts revealed the impacts of ending protective measures on victims' and witnesses' sense of safety.

Post-court domestic abuse

For many participants abuse continued, even after sentencing, including custodial sentences and the implementation of protective legal measures like NHOs. For example, continuing to harass victims with unsolicited mail and encouraging family members to engage in harassment. This has especially negative consequences for participants' wellbeing and their ability to 'move on' and live free from abuse. The continued and pervasive impacts of domestic abuse, the on-going constraints domestic abuse imposed on victims' lives and shortcomings in the justice system's ability to protect victims were highlighted in the following extracts from an adult interview:

I don't go out ever. If I go out, my daughter-in-law is either with me or my son. I don't go out myself and I'm struggling to move on. (Adult 3)

This shows that even when participants had 'positive' court outcomes, their everyday lives continued to be impacted and indeed curtailed by domestic abuse. Some felt the only escape would be to move significant distances away, in secret. This underlines the need for sentencing to challenge and squarely address abusive behaviour. It also highlights the need for continued risk management of perpetrators of domestic abuse post sentencing and continued support for victims and witnesses once court cases have concluded.

There was one outlier in relation to the common experience of ongoing abuse and fear:

Because right from the very beginning, I'd been saying, look I don't want this to proceed, I'm not worried about anything, like, I don't feel, like threatened by her, or anything like that. Because I don't, like. But then they've obviously gone on the cautious side with it, because of the nature of some of the offences, and stuff like that. And they've given her a non-harassment order, and stuff, so like, you know, the legal system has been a lot more concerned about it, than I have. (Adult 9)

Ways forward from participants' perspectives

Ensure sentencing better reflects the seriousness of the domestic abuse suffered by victims and any associated children. Victims and witnesses need to be informed of the rationale for sentencing decision-making and to feel their views and experiences 'count'.

Sentencing and NHOs need to provide enhanced safety and protection to victims and any associated children; their views on safety are important factors in decision-making.

Consideration needs to be given to the safety and protection of 'third parties' including adult children, family and friends.