Domestic Abuse (Protection) (Scotland) Bill: DPIA

Annex A

This annex sets out the Enquiry Form as submitted to the ICO on 23 May 2019, with the response attached at Annex B.

1. Annex A: Article 36(4) Enquiry Form

This form is for public authorities that are developing a legislative proposal or statutory guidance that relates to personal data. It will provide a template for you to enter information relevant to Article 36(4) of the General Data Protection Regulation (GDPR) in order to streamline the process of consulting with the Information Commissioner's Office (ICO).

Title of proposal:

Domestic Abuse (Protective Orders) (Scotland) Bill

Your department:

Scottish Government

Criminal Law, Practice and Licensing Unit

Criminal Justice Division

Contact email:

Linsay.Mackay@gov.scot

Data Protection Officer Contact email:

(If different from above)

Stuart.Gardner@gov.scot

Is your proposal primary legislation, secondary legislation or a statutory measure?

Primary legislation

Name of primary legislation your measure is based on (if applicable)

n/a

Provide a broad summary of which aspects of your proposal relate to personal data

Background to the Bill

On 1 April 2019 the Domestic Abuse (Scotland) Act came into effect which created a specific standalone offence of domestic abuse covering not just physical abuse but other forms of psychological abuse that were previously difficult to prosecute.

During the passage of the Domestic Abuse Bill, in response to the call for evidence at Stage 1, a number of third sector respondents raised concerns that there is a gap in protection available to victims of domestic abuse. A person wishing to obtain immediate or long-term protection, particularly in relation to keeping a perpetrator away from their home, can only obtain such protection if the perpetrator enters the criminal justice system or if the victim takes out a civil order against the perpetrator.

Following consultation with third sector organisations and a formal public consultation, the First Minister announced that the Scottish Government will introduce legislation in this Parliament to introduce a new scheme of protective orders for people at risk of domestic abuse.

The powers in the Bill are intended to fill a "gap" in that where someone is in a controlling relationship and experiencing domestic abuse (and where there may not be a sufficiency of evidence to the criminal standard of proof to pursue the matter through criminal justice channels) the victim is likely to lack the freedom of action to pursue, for example, a civil court process to remove a suspected perpetrator from a shared home.

The measures in the Bill are intended to protect victims of domestic abuse from having no choice but to render themselves homeless in order escape an immediate risk of abuse from someone living with them and to give them a safe space to begin to seek further, longer term interventions if desired. The intention is that during the time in which the police and court imposed protective measures are in place, the person at risk will have the space to consider their long-term housing options and take steps to secure their safety. Depending on the circumstances, this could be through the pursuit of an exclusion order, non-harassment order or interdict or steps to remove a person from shared tenancy.

Similar provision covering England and Wales, providing for 'Domestic Violence Protection Notices' and 'Domestic Violence Protection Orders' is contained at sections 24-33 of the Crime and Security Act 2010. Part 3 of the Domestic Abuse Bill, currently before the Westminster, contains provision which, if passed, will replace that scheme with a wider scheme of 'Domestic Abuse Protection Notices and Orders.

What the Bill does

The Bill provides the police with a power to issue a 'domestic abuse protection notice' where they have reasonable grounds to believe that the person to be subject to the notice ("person A") has been abusive towards their partner or ex-partner ("person B") and that they have reasonable grounds to believe that the issuing of the notice is necessary to protect person B from domestic abuse or the risk of domestic abuse, carried out by person A.

Where the police issue a 'domestic abuse protection notice' they are required to apply within a short period of time for a court-imposed 'domestic abuse protection order' which has effect for a longer period of time. The exact length of time the police note and court order run for is still to be agreed, but equivalent legislation in England and Wales requires that where a police notice is made, the court must determine whether to make an order within 48 hours, and the court order can run for up to 28 days.

The definition of abusive behaviour in the Bill reflects the same definition in the Domestic Abuse (Scotland) Act 2018, which created a "course of conduct" offence - enabling physical, psychological and controlling behaviour to be prosecuted at once. Like the 2018 Act, the scope of the orders are restricted to abusive behaviour (or suspected abusive behaviour) by a partner or ex-partner.

The exact details of the powers that a police notice/ court order can impose is subject to final agreement but in general terms, they may include prohibitions or requirements to protect the person at risk from further abuse e.g.

• A requirement to leave the home of the person at risk, and be prohibited from re-entering it while the order is in force;
• A requirement to refrain from approaching or contacting the person at risk;
• A requirement to refrain from coming within a specified distance of the home of the person at risk;
• A requirement to refrain from evicting or excluding the person at risk from the home and;
• A requirement to surrender keys to the shared home

These conditions reflect the sort of conditions that may be imposed when a suspected perpetrator is being investigated by police during the course of a criminal matter, where a suspect can be released on 'investigative liberation'^[1]; when a suspect has been charged with a criminal offence and is released from police custody on undertaking conditions^[2], or when an accused has appeared at court and the court imposes bail conditions.

It should be noted policy is still being finalised and provisions remain in draft at the present time.

Personal data

Personal data gathered and processed by the police and courts in the relation to a protective notice or protective order is the same personal data they ordinarily would obtain and process in a suspected case of domestic abuse where the perpetrator (or 'person A') is dealt with through the criminal process i.e. name, address, details of why the police consider a person has been subject to domestic abuse or is at risk of domestic abuse, which necessitates further action, in this instance, the issuing of a protective police notice for onward application to a court for a protective court order. The information would be the same or similar as to that which is gathered and processed e.g.

• during the police investigative phase involving suspected cases of domestic abuse
• following perpetrator's arrest, charge and report to the Crown Office and Procurator Fiscal Service
• during the course of subsequent court handling once criminal proceedings have been raised.

The only difference in this instance is that the police will apply to a civil court (and not report the matter to our prosecution authority for proceedings in a criminal court) for imposition of the court protective order.

It is worth highlighting that there are existing civil remedies available to a person who is at risk of domestic abuse e.g.

• it is possible for a person at risk to apply to a court for a civil 'exclusion order' to exclude the perpetrator from a shared home. A person can apply to court for an exclusion order which can suspend the rights of a person's spouse, civil partner or, in certain circumstances, cohabitant from living in the family home. An exclusion order can be granted by the court if it appears to the court that the making of the order is necessary for the protection of the applicant or any child of the family from any conduct or threatened or reasonably apprehended conduct of the other party which is or would be injurious to the physical or mental health of the applicant or child.
• A person at risk of domestic abuse to apply to the civil courts for an interdict or for a non-harassment order (NHO). An interdict or NHO can include conditions such as prohibiting the subject of the order from phoning, texting or otherwise attempting to contact the person who has taken out the order, approaching or following them, or loitering outside their home or place of work.

Accordingly, there are existing examples of civil courts processing the type of personal data that is gathered and processed for the protective measures under the Bill when in a domestic context..

Under the Bill, breach of a police notice or court issued order is a criminal offence and therefore normal criminal channels are used which does not involve the processing of data that is not already routinely carried out.

What stage is your legislation or statutory measure at and what are your timelines?

The Bill is currently being drafted with a view to introduction in Parliament in Autumn 2020.

While a matter for Parliament to determine, we anticipate the following timeline:

Stage 1 debate: early January 2021

Stage 2 debate: early February 2021

Stage 3 debate: late February 2021

Royal Assent: April 2021

Question

What issue/public need is the proposal seeking to address?

Comments

As above, the powers in the Bill are intended to fill a "gap" in that where someone is in a controlling relationship and experiencing domestic abuse, they are likely to lack the freedom of action to pursue, for example, a court process to remove a suspected perpetrator from a shared home.

The measures in the Bill are intended to protect victims of domestic abuse from having no choice but to render themselves homeless in order escape an immediate risk of abuse from someone living with them and to give them a safe space to begin to seek further, longer term interventions if desired

Does your proposal create a new power or obligation for the processing of personal data?

As above, the measures in the Bill provide the police and courts with a new power to issue protective notices/orders for persons at risk of domestic abuse. However, it is the same data that would be processed during the course of a criminal investigation of suspected domestic abuse or criminal proceedings. It is just being used for a different purpose i.e. for processing by a civil court to impose a civil order.

Does your proposal relate to the collection of personal data?

Yes - personal data of suspected perpetrator (or "Person A") of domestic abuse and personal data of the person at risk (or "Person B") and potentially any children living in the shared home.

If you've answered yes to the above question, what data items might this include?

(a) the name and address of the suspected perpetrator ("Person A");

(b) the name and address of person at risk ("Person B");

(c) the name and age of any children living in the shared home;

(d) welfare concerns in relation to a child living with Person A

(e) representations made by Person A or Person B

(f) the grounds on which the police notice or court order has been issued i.e. details of the abusive behaviour by Person A towards Person B and necessity of a protective police notice or court order.

And is this information collected directly from the data subject or from elsewhere? Please provide further details.

Directly from data subject(s) or from other information obtained by the police in the course of investigating alleged domestic abuse which could come from third parties.

Would your proposal affect a specific group? E.g. children, vulnerable individuals, elderly?

Persons at risk of domestic abuse and suspected perpetrators of domestic abuse

Does your proposal relate to the processing 'special categories' of personal data, or 'criminal convictions or offences data'?^[3]

No

Does your proposal involve the sharing of personal data with another government department or 3rd party that you were not previously sharing with?

The proposals involve the police making an application to a civil court for a civil court order - and therefore the sharing of personal data with the court.

Is there anything potentially controversial or of significant public interest in your policy proposal?

Significant public interest - to ensure there is no gap in the protections available for victims of domestic abuse

Have you conducted a data protection impact assessment on your proposed legislation?

A data protection impact assessment will be completed as part of the accompanying documents for the Bill.

Next Steps

This form should be reviewed by your Data Protection Officer before being submitted to the ICO.

To submit the form, email a copy to the ICO inbox at legcon@ico.org.uk.

You should copy and paste the below text into the subject line of your email to ensure your request is dealt with promptly.

Email subject line: Art 36(4) - Consultation request - [insert your department] - [insert title of proposal]