Domestic abuse courts: report

Practical considerations for Scotland

There are certain, specific implications for Scotland regarding the implementation of IDACs that are highlighted in the literature.

Not guilty and not proven verdicts

The first relates to instances in which not guilty or not proven verdicts are given in criminal trials. A not guilty or not proven verdict does not preclude a case's entry into the IDAC, however it may prejudice it. MacDowell (2011) contends that IDACs present a problem of "all eggs in one basket" for victims, i.e. in cases where an accused person had been found not guilty, it may be in the victim's favour to have a different judge for the civil case, who might be more inclined to hear the circumstances of the domestic abuse, rather than the judge presiding at the criminal case who won't allow time for further evidence they deem as irrelevant following a not guilty verdict.^[63] If the abuser is found not guilty in the criminal proceeding, MacDowell expresses that the judge would be predisposed - or perceived by the victim as predisposed - towards the accused.^[64]

Legal prejudice, burdens of proof and rights of audience

There are also implications with regard to legal prejudice.^[65] The establishment of the Croydon IDVC was complicated by concerns around a single judge hearing all matters being prevented by existing human rights legislation.^[66] Two stated cases from England further guide this issue. In the cases of Hammerton v Hammerton (2007) ruling found that hearing a criminal contempt of court charge alongside a child contact case "placed the defendant in an impossible position".^[67] In Morris v Morris (2016), it was decided that a judge hearing both a criminal case of unpaid child maintenance alongside a civil case on application to vary the maintenance again prejudiced the defendant, specifically in relation to an accused's right to remain silent in a criminal case.^[68] It was identified that the issue of legal prejudice presents a barrier to the use of 'one family, one judge' and the further establishment or expansion of IDVCs in England.^[69]

Defence counsel in Toronto expressed concerns around the different burdens of proof in the Toronto IDVC.^[70] A family law solicitor stated "I worry about saying something in family court that the criminal court will hear and use".^[71] A criminal lawyer pointed out that, regardless of plea, complainers will be present at criminal trials (because they will be present at the IDAC for the civil matter) and their presence may unduly influence the prosecution.^[72] A judicial representative in New York stated: "I found the appearance of a man in handcuffs one minute (when his criminal case was called) and then not the next (when his family case was called) rather jarring in terms of information seepage".^[73] Some research from the New York IDVCs evidenced that cases were more likely to settle - by means of a guilty plea or dismissal - in the integrated court compared to the traditional criminal court.^[74] Research from New York indicated that there was a perceived pressure to settle amongst victim and offender advocates within the court.^[75]

With regard to jurisdiction within the Scottish court, there are implications for solicitors' rights of audience within the court. This would be of particular concern in cases where there are cross-border contact disputes, as there are a number of examples of English barristers being refused rights of audience in Scottish civil cases. In addition, there may be concerns regarding the capacity of Scottish sheriffs to preside over both civil and criminal cases.

Consent and information-sharing

Consent and information-sharing provide an additional challenge. One desired outcome of IDACs is to allow information between the civil and criminal courts to be free-flowing.^[76] The process of information-sharing is necessary to facilitate effective decision-making within IDACs, however there are implications related to consent and data protection that result from this process. The scope of this project does not allow for the full implication of information sharing between courts to be explored, however it is likely that the process would be complex. In the Ontario IDVC, the IDVC originally required consent from all parties in the process to be involved - including the prosecutor's and family court judge's to initially transfer the case from the criminal court to the IDVC. The process was "cumbersome and confusing" and prevented some cases from accessing the IDVC at all, thus it was subsequently abandoned and all cases transferred without the consent of the parties involved.^[77]

This analysis is a non-exhaustive list and wider consultation with relevant partners and further research would be required to better inform this section. Other practical considerations for Scotland could include the provision of additional specialist training for those involved with IDACs working in civil and criminal law; and standardised and augmented court advocacy provision. There is also the potential that the introduction of IDACs may lead to an increased demand for independent representation and a possible increase in the demand for an integrated approach to addressing men's domestic abuse i.e. an increase in demand for court-mandated programmes such as the Caledonian System.