Domestic Abuse (Scotland) Act 2018: interim reporting requirement

3. Context and Background

Policy and Legislative Context

The Domestic Abuse (Scotland) Act 2018 came into force on 1 April 2019. This Act created a new statutory offence of engaging in a course of behaviour which is abusive of a partner or ex-partner.

The Act is intended to improve how the justice system responds to domestic abuse. The offence of 'abuse of a partner or ex-partner' is intended to ensure that the criminal law reflects that domestic abuse can often be a course of conduct which takes place over a sustained period of time and that a course of abusive behaviour can consist of both physical violence and threats which could have been prosecuted under previously existing laws, and psychological and emotional abuse which were much more difficult to prosecute under previously existing laws.

By enabling abuse of various types which takes place over a period of time to be prosecuted as a single course of conduct within a new criminal offence of domestic abuse, the criminal law better reflects how victims actually experience such abuse. It ensures that a course of conduct of entirely non-physical abuse of a person's partner or ex-partner is criminalised. Annex 4 provides further detail on the conditions and criteria for the offence to apply.

Along with the introduction of the new domestic abuse offence, the Act provided for a statutory sentencing aggravation intended to reflect the harm caused to children by domestic abuse. The aggravation can be applied where the perpetrator uses a child in committing the offence; directs behaviour at a child in committing the offence; where the child sees, hears or is present when the abuse is taking place; or where a child is likely to be adversely affected by the perpetrator's behaviour. Where the aggravation is proven, the court is required to take account of this in sentencing the offender and state how the sentence differed from that which the court would otherwise have imposed. This ensures that the harm caused to children by the abuse of their parent or carer is formally recognised and recorded.

The Act also provides for a number of associated reforms to criminal procedure, evidence and sentencing. These reforms are intended to reduce the possibility of an accused person using the processes of the justice system to further exert control and influence over the complainer and help to minimise the trauma for the complainer while ensuring the proper administration of justice is achieved (as set out in the Policy Memorandum). The reforms include prohibiting the accused from personally conducting their own defence or precognition of the complainer and providing for a presumption that the court shall impose a non-harassment order on a person convicted of domestic abuse unless, in the particular case, the court concludes such an order is not necessary to protect the victim.

The Reporting Requirement includes an obligation to report on statistical information, and to provide "information about the experience of witnesses (including witnesses who are children) at court" (Section 14; 2(f)) of both aggravated domestic abuse offences and DASA Section 1 offences. Additionally, the Act requires Scottish Ministers to request information from the Lord President of the Court of Session on how court business is arranged to ensure the efficient disposal of domestic abuse cases in Scotland's courts. The reporting period covers three years from 1 April 2019, the day on which section 1(1) of the legislation came into force. The full Reporting Requirement is provided in Annex 2.

Domestic Abuse in Scotland

The Scottish Government and statutory partners gather a range of data to understand the prevalence and trends over time of domestic abuse in Scotland. The latest statistics are presented briefly below. Further information is available in the links to the statistical bulletins described below.

Prevalence of domestic abuse in the Scottish population

The Scottish Crime and Justice Survey (SCJS) provides an estimate of overall prevalence of 'partner abuse'^[2] in the population, including unreported crimes. According to the SCJS in 2018/20, 16.5% of adults in Scotland said they had experienced at least one incident of 'partner abuse' since the age of 16. The proportion of respondents who in the 12 months prior to interview had experienced any partner abuse was 3.2%.

The survey shows that women (since the age of 16) 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. When looking at experiences of partner abuse in the 12 month period prior to interview, experiences of partner abuse were more common for women than men (3.7% and 2.6% respectively).

As noted above, a key aspect of the new legislation is the criminalisation of psychological abuse, including coercive and controlling behaviour, and, the recognition that domestic abuse is often a pattern or course of behaviour experienced over time.

The SCJS shows that psychological abuse is more commonly experienced than physical abuse. The proportion of respondents who said they had experienced at least one incident of psychological abuse since the age of 16 (14.6%) was higher than those reporting having experienced at least one incident of physical abuse (10.7%). 8.8% of respondents experienced both psychological and physical abuse. Victims were also more likely to have experienced psychological abuse than physical abuse in the 12 months prior to interview (2.9% compared to 1.3%). Women were more likely to experience psychological abuse than men (3.4% and 2.4% respectively). However, the proportion who experienced physical abuse did not vary between women and men (1.5% and 1.0% respectively).

In terms of a course of behaviour, the SCJS shows that partner abuse is often experienced on multiple occasions. Around two-thirds (67%) of those who experienced an incident of partner abuse in the 12 months prior to interview also experienced at least one incident prior to this period. Excluding those who responded "don't know/can't remember" or who did not wish to answer, around three-in-five respondents (59%) had experienced more than one incident.

Another key aspect of the Act is its recognition of the harm caused to children by domestic abuse. The SCJS shows that children were living in the household when a partner abuse incident took place in around a third of incidents (32%). In the majority of these cases (71%) the child was present in the most recent incident.

Domestic abuse reported to the Police

The definition of domestic abuse used by Police Scotland is:

"Any form of physical, verbal, sexual, psychological or financial abuse which might amount to criminal conduct, and which takes place within the context of a relationship. The relationship will be between partners (married, cohabiting, civil partnership or otherwise) or ex-partners. The abuse may be committed in the home or elsewhere including online"^[3].

Domestic abuse is an under-reported and often hidden crime. The SCJS shows that approximately one in six partner abuse incidents are reported to the police (16%).

In terms of recorded crime, statistics on Domestic abuse in Scotland reveal that just under 65,000 (64,807) incidents of domestic abuse were recorded by Police Scotland in 2021-22, a one per cent decrease from 2020-21 and the first year this figure has shown a decrease since 2015-16.

It is important to note that not all incidents result in a crime being recorded^[4]. Of the 64,807 incidents of domestic abuse recorded by the police in 2021-22, 39% (25,226) included the recording of at least one crime or offence. This equated to approximately 34,000 associated crimes and offences (i.e. more than one crime or offence may be recorded for some incidents). The most frequently recorded crime or offence was 'common assault' which accounted for 32% of all crimes and offences. This was followed by 'threatening and abusive behaviour' which accounted for 21% of all crimes and offences (Scottish Government, 2022a).

The latest Recorded Crime National Statistics show that there were 1,760 crimes recorded under the Domestic Abuse (Scotland) Act 2018 in 2021-22, the third year this legislation has been in place. This was a 7% increase compared to 2020-21 (from 1,641 to 1,760) and a 5% increase compared to 2019-20 (from 1,681 to 1,760). Of those crimes, 92% (or 1,627) involved a female victim and 8% (or 133) had a male victim. These proportions are similar to those in the previous year, at 94% and 6%, respectively.

As described in the Introduction section, crimes under the Domestic Abuse (Scotland) Act 2018 relate to a course of conduct of at least two incidents (all occurring after the Act came into force), where criminal conduct has been recorded between the same victim and perpetrator. However these circumstances alone do not necessarily amount to a crime under the Domestic Abuse (Scotland) Act 2018 and officers must consider which crimes and/or offences are the most appropriate to be recorded.

In line with the SCJS findings, the Domestic Abuse in Scotland statistics show that women are more likely to be victims of domestic abuse than men. Where gender information was recorded, around 4 out of 5 (81%) incidents of domestic abuse involved a female victim and a male suspected perpetrator, a slight increase from 80% in 2020-21; and 15% involved a male victim and a female suspected perpetrator, a slight decrease from 16% in 2020-21.

Prior to 2021-22, levels of recorded domestic abuse had been growing over the longer term. Although there was a 1% decrease in 2021-22, the number of incidents remains higher than in 2019-20 (Scottish Government, 2022a).

The Crown Office and Procurator Fiscal Service (COPFS) publishes data on DASA-related charges in its bulletin Domestic Abuse and Stalking Charges in Scotland 2021-22 which may be of interest to readers.

Detailed statistics on the prosecution of domestic abuse, including DASA-related charges, are provided in Chapter 4.

The Research Context

This section provides a brief summary of some of the academic evidence on the experiences of victims of domestic abuse and other forms of gender based violence (GBV) of the criminal justice system (CJS) (predominantly) in Scotland. Evidence sources are mostly drawn from pre-pandemic research referenced in the research reports prepared for this Reporting Requirement. This means that there may be other relevant research which is not captured here. However, the evidence provides important context for the information presented in this report which echoes some of the key themes evidenced below.

Research on victim experiences of the criminal justice system highlights a range of issues. These include victims reporting feeling unsafe, powerless and unheard during the process; poor communication from justice organisations and the emotional cost on victims and witnesses of engaging with the CJS (Forbes, 2021; Brooks-Hay et al., 2019; Holder, 2015). Common themes are summarised below:

• Research undertaken in Scotland has reported victims feeling uncomfortable in police and court buildings, and highlighted concerns about their safety (Brooks-Hay et al., 2019). Wider evidence has reported on the way in which some perpetrators exploit the system to further their abuse and control of the victim, so called 'legal systems abuse' (Douglas, 2018) and 'procedural stalking' (Neilson, 2004).
• Research in Scotland has highlighted how victims of domestic abuse and related crimes have reported feeling marginalised and excluded from the legal process. Feelings of powerless can, it is argued, impact on victims' mental wellbeing and their ability to provide the best evidence (Brooks-Hay et al., 2019; Forbes, 2021). This is echoed in wider UK and international evidence, alongside reports of victims feeling that the accused is afforded more rights and representation than they are (Holder, 2015).
• A lack of or poor information provision about justice processes is reported in both Scottish and wider evidence, as is a concern about the lengthy duration of the process, including waiting in court, and the negative impact this can have on victims. (Brooks-Hay et al., 2019; Forbes, 2021; Holder, 2015).
• It is well-documented that involvement in the justices system can be distressing and re-traumatising for victims of gender-based violence (Forbes, 2021; Bell, 2007; Anderson, 2015, Thomson, 2015). Forbes, for example, reports that the criminal justice process is not equipped to deal with the depth and range of victims' and witnesses' emotional responses to abuse, and that support and advocacy can be ad-hoc and inconsistent. Other research has highlighted how the legal process does not adequately address the interests or needs of victims/survivors, and cites a lack of respectful and empathic treatment (Brooks-Hay et al., 2019; Holder, 2015).

Other themes reported in the evidence base include victims not being believed or listened to, and dissatisfaction with decision-making, particularly in relation to sentencing and charge negotiation (Holder, 2015; Murphy-Oikonen et al., 2020).

In contrast, victim satisfaction has been found to be associated with key aspects of 'procedural', 'distributive', 'effective' and 'therapeutic' justice which include a sense of inclusion in the court process, respectful and meaningful engagement, provision of adequate information, provision of support throughout and after proceedings, a sense of unbiased, fair delivery of justice and a belief that outcomes are fair and correct (SCCJR, 2019). Other evidence has found that, for some women, engagement with the CJS can be an empowering experience (Hoyle & Sanders, 2000; Lewis, 2004; Bell, 2007 - cited in Lombard et al., 2022).

A Crown Prosecution Service survey of victims and witnesses (of all crime types) in England and Wales (CPS, 2015) found that victim satisfaction was associated with:

• Perceiving the sentence to be fair and a guilty case outcome
• Effective communication from the CPS including a named contact
• Being informed when charges were dropped and having the sentence explained to them
• The case not being a sensitive offence (like a domestic abuse offence for example)
• Being treated with respect and having their needs met (e.g. giving evidence remotely, access to support services etc.)

In contrast, dissatisfaction was associated with the 'emotional effect' of the case (which we would expect to be greater for victims of domestic abuse), not being treated with dignity and respect, and feeling that the sentence was not severe enough.

Consideration of the evidence so far has related to female adult victims who form the majority of victims of domestic abuse. It is important to note, however, that for some types of victims and witnesses (e.g. men, children and young people, people of non-white ethnicity etc.), their experiences and needs may differ. Wider evidence in respect of this is referenced in the relevant sections in this report where appropriate. The following description is limited to a very brief coverage of some of the evidence on the experiences of children and young people. This is presented to provide context to the findings in this report on child witnesses, which the Reporting Requirement specifically refers to.

The Everyday Heroes Report on Justice (Houghton & MacDonald, 2018) reported on children and young people's priorities for action in relation to gender-based violence and inequality in Scotland. The research which involved 47 children and young people and captures their experiences of:

• Not being heard and/or their views not being taken seriously (e.g. on contact with the accused);
• Children feeling excluded and not knowing what was happening;
• The need for accessible, consistent and specialist support earlier in the process;
• Children feeling that the process was too long;
• Not being child-centred or victim-centred with some children feeling that they or their mothers were made to feel that they were 'to blame';
• The need for more training of professionals on understanding children's lives, diversity and best practice in taking their views into account;
• Experiences of ongoing abuse; and,
• The lack of regard towards domestic abuse in family courts^[5].

Key priorities for children were the importance of choice, the need for more accessible, child-friendly and victim-centred information and processes, the importance of professionals being knowledgeable about GBV, children's rights and meaningful participation, and, specialist support from a known, trusted adult.

Challenges with capturing victim experiences

A final note in this brief summary of evidence is how challenging it can be to robustly measure domestic abuse victim experiences. Small sample sizes (number of research participants) are fairly typical of this type of research because of the sensitivities involved. Measuring victim experiences with larger samples is rarely undertaken (e.g. via a representative survey). In the CPS survey discussed above, for example, there were only 113 responses^[6] from victims of domestic abuse, out of sample of over 8,000 domestic abuse cases (who received an invitation to participate). As a result, the findings for this group were limited and could not be generalised to the wider population^[7].

Implementing the New Legislation During the COVID-19 pandemic

It is important to note that two of the first three years (2020-2022) of the implementation of the Domestic Abuse (Scotland) Act 2018 coincided with the COVID-19 pandemic. This inevitably impacted on the workings of the justice system, associated services and the lived experience of victims of domestic abuse. This section sets out a brief summary of some of the evidence around the impact of the pandemic on the justice system and on the prevalence and nature of domestic abuse in Scotland. This is important context for understanding the circumstances in which the Act was implemented and the evidence presented in this report.

Impact of the pandemic on the justice system

The COVID-19 pandemic significantly impacted on the operations of the justice system. Court closures increased the backlog of civil and criminal cases and placed additional strains on organisations, affecting the delivery of critical services by justice partners (Scottish Government, 2021a). Restrictions placed limitations on the types and volume of cases which could be heard in court. The effect was more significant for cases tried on indictment because of the particular difficulties in holding jury trials while implementing social distancing measures. No jury trials took place between April and July 2020. High Court trials re-commenced in July 2020, though the number of trials was considerably reduced due to public health measures. Sheriff and jury trials re-commenced in October 2020, with measures in place to enable juries to participate remotely, though again, initially, not to pre-pandemic volumes.

Pressures on the justice system resulted in the adoption of new measures such as increased use of virtual and electronic technology, remote proceedings and early prison releases. The Scottish Government's 'Justice Vision and Priorities delivery report- key achievements and impact of Covid 19' noted that, despite the work undertaken by statutory partners to mitigate the impact of delays, these had been particularly felt by witnesses and victims of crime - potentially increasing the risk of them withdrawing from cases and reducing the quality of the evidence gathered (Scottish Government, 2021b).

The impact of the pandemic on the justice system included but was not limited to changes in:

• offending behaviour and the types of crime reported to and recorded by police;
• case processing and prioritisation by COPFS and SCTS; and,
• reductions in court capacity and the types of court available for cases to be heard (Scottish Government (2021c).

The Criminal Proceedings in Scotland National Statistics goes into more detail on the impact of the COVID-19 pandemic on the justice system. Chapter 9 describes some of the measures taken to prioritise domestic abuse court cases during the pandemic.

Impact of the pandemic on experiences of domestic abuse

Emerging academic evidence indicates that the pandemic exacerbated experiences of domestic abuse in Scotland due to restrictions in movement and an increase in social isolation (e.g. Scotland in Lockdown 2020^[8]). International evidence suggests that restriction measures led to an increase in both the incidence and severity of domestic violence during the pandemic (Sharma & Borah, 2022).

As noted above, levels of recorded domestic abuse incidents have been growing over the longer term, with a small decrease (1%) in 2021-22. In 2020-21, the 4% increase in domestic abuse incidents year-on-year is the same as that seen in 2019-20, when the pandemic was not a factor. Some caution is therefore advised before necessarily attributing observed changes in domestic abuse incidents solely to COVID-19^[9] (Scottish Government, 2022a).

More statistics on the impact of COVID-19 on domestic abuse incidents can be found in the monthly Coronavirus (COVID-19): Justice Analytical Services monthly data reports. These reports were published monthly between June 2020 and March 2022. Findings showed an increase in recorded incidents of domestic abuse at various points during the pandemic. For example, the June 2020 report showed an increase of 9% between April and June 2020 (during the first lockdown) compared to the equivalent period of the previous year (Scottish Government, 2020a).

Research involving interviews with service providers undertaken by JAS (Scottish Government, 2020b,c,d) which explored the impact of COVID-19 restrictions on people experiencing domestic abuse and other forms of violence against women and girls, highlighted a number of challenges for victims and specialist services. These included:

• disruptions in criminal court processes resulting in long delays associated with increased anxiety and stress among victims and loss of trust in the justice system;
• difficulties for individuals to leave their abusers and access specialist support;
• children experiencing domestic abuse more severely during lockdown, and perpetrators extending their abuse via child contact;
• victims experiencing significant mental ill health;
• impact of changes to criminal justice procedures on the increased risk of domestic abuse (e.g. early prisoner release; delayed court cases and extended periods of police undertakings);
• reduced capacity amongst key service providers.

Similar findings were also flagged by the Scotland in Lockdown report (Armstrong & Pickering, 2020) which was funded by the Scottish Government's Chief Scientist Office. The research found some indications that abuse had intensified during lockdowns. It also reported challenges for victims in accessing services and increased risk of abuse and neglect of children and difficulties in detection (due to school and childcare closures)^[10]. Challenges in victims leaving abusive situations and accessing support were compounded by a lack of emergency accommodation, leaving victims feeling unsafe. There were also reports of new forms of digital abuse (e.g. via child contact).

"Covid-19 significantly disrupted the operation of both criminal and civil justice processes; the cessation of court business over lockdown led to a backlog of cases, and delays in justice processes impacted on survivors in numerous ways. Service providers and survivors spoke of delays and uncertainties about criminal and civil justice processes, and a lack of communication regarding, for example whether trials, or child welfare hearings were going ahead, and whether they were taking place digitally or in-person." (p85)

In contrast, some research participants, who were not living with the abuser, reported feeling more safe as a result of reduced contact due to COVID-19 restrictions^[11]. However, subsequent research with survivors separated from their abusive partners reported an increase in economic abuse, online abuse and the manipulation of child contact arrangements during the pandemic (Brooks-Hay et al., 2022).

Other research has identified comparable findings including increases in severity of abuse and service demand, lack of housing, the impact of bail on victim safety, perpetrators using lockdown as a tool of abuse, and heightened anxiety due to court delays and uncertainties (SWA, 2020; Pederson et al., 2021).

Emerging evidence suggests consistent themes in relation to impacts on children, in particular challenges in detecting and supporting children experiencing domestic abuse (remotely), an increase in child contact-related abuse, the limited participation of children in remote hearings and decision-making, and major delays/uncertainties in criminal trials causing fear and distress for children (e.g. Morrison & Houghton, 2022; SWA, 2020).

Taken together, this evidence demonstrates how the pandemic significantly impacted on the experience of victims of domestic abuse, and how associated changes to the justice system negatively impacted on victims and their families. Some of the issues raised echo those of the evidence presented in this report in particular the impact of long delays/uncertainty and poor information provision and communication on victims.