Thu 09 May 2019

Scotland Takes a Stance on Domestic Abuse

Scotland is leading the way with the introduction of a ground-breaking piece of legislation, the Domestic Abuse (Scotland) Act. The Domestic Abuse (Scotland) Act creates a specific offence for “abusive behaviour towards a partner or ex-partner” for the first time. As well as covering physical abuse, the law extends to psychological abuse, emotional abuse, coercive and controlling behaviour. Such behaviour which seeks to isolate the victims from their friends and family and also any attempt to control finances. Importantly, the new law takes into consideration the impact that domestic abuse has on children within the family home. This new act is the latest in a line of legislation to reportedly combat crime within domestic relationships. According to criminal solicitors, the novelty of the act is criminalising behaviour that was previously very difficult to prosecute and much of which was not a crime in any case.

MSPs have made clear from their commentary on the new law, that domestic abuse will no longer be tolerated and they will continue to safeguard the victims of such behaviour.  Substantive training has been delivered to raise awareness across the justice system which looks to educate members on what qualifies as coercive and controlling behaviour and the different forms this can take. With the introduction of the new legislation, there is a presumption in favour of prosecution. In these circumstances, there is a risk that a counter complaint may not be investigated and it shall be for the Police to decide who the ‘principal perpetrator’ is. In short, the new act brings with it, the introduction of a ‘victimless prosecution’. However, whilst the arrival of the new legislation has been positively welcomed by many and has been the result of many years of hard work and campaigner of domestic abuse charities, some criminal solicitors fear that it may lead to disproportionate sentencing and long term damage to the career and the relationships of the those accused whether or not they have been found guilty. 
The inclusion of psychological abuse is of key significance in this new piece of legislation. The difference now is that domestic abuse, previously dealt with under common law, is an offence in itself. Physical abuse has always had the ability to be prosecuted under common law Assault. In addition, verbal abuse (such as shouting and swearing) has been prosecuted as Breach of the Peace under Section 38 of the Criminal Justice and Licensing (Scotland) Act 2010. Prior to this new legislation, crimes of assault and Breach of the Peace were aggravated in domestic situations and were capable of bigger sentences.

Behaviour that constitutes domestic abuse
Whilst the most obvious form of abusive behaviour is recognised as physical abuse, the legislation brings clarity on the varying levels of abuse, each of which has the same impact on the victim.  Such behaviour includes the following:
  • Violent, threatening or intimidating behaviour towards a partner or ex-partner
  • Behaviour that has the following impact on its victim:
  • Making the victim dependant or subordinate, such as controlling finances by not allowing them access to cards or cash, therefore limiting their ability to access money.
  • Isolating the victim from friends, family and other sources of support, such as forcing them to stay at home, cancel plans and preventing them from meeting friends and family.
  • Controlling, regulating or monitoring the victim’s day to day life - this could include excessive phone call and text messages and punishing the victim when they do not get back to them. In addition, this could extend to preventing them for accessing or checking their social media or monitoring their social media.
  • Frightening, humiliating, degrading or punishing the victim, such as making up stories, accusing the victim of actions which are unfounded, intimidating or humiliating them or putting them down in front of others. 
  • Depriving the victim of, or restricting, freedom of action such as preventing them from going to appointments, going out or getting a job.

In circumstances where the abusive behaviour is directed at or witnessed by a child, the offence is aggravated and a higher sentence will be imposed under the new legislation. This includes where a child is the direct victim of the abuser or where a child has been witness to the domestic abuse of a parent.

There have been no reported cases yet under the new act but criminal lawyers are waiting to see how this new law might be proven in court. They are bound to need significant supporting evidence from a witness.  We are talking about psychological abuse, a crime which is often committed within the privacy of the home. Corroborative abuse may be difficult for the prosecutor however, a contrast in circumstances before and after may be best source of evidence for the prosecution to prove a case.  Certainly evidence of behaviour out with the relationship in contrast to evidence within the relationship would be most favourable for the Crown to bring the case.

Unlike an allegation of Assault or Breach of the Peace (where there may be physical injury or eye witnesses to the event), because of the nature of this new offence, more resources from the Police may be required in order to prove the case. 

Section 8 of the Domestic Abuse (Scotland) Act deals with the conviction of domestic abuse offenders. In respect of such conviction, the legislation sets out that a court may impose a period of imprisonment or a fine depending on the circumstances if they are found guilty of such an offence on indictment. 

Notwithstanding the above, there is one defence which may be afforded to the perpetrator which brings us back to the ground of reasonableness. In circumstances where a perpetrator chooses to exercise such defence, they would be called upon to prove that their behaviour was reasonable.  On the face of it, it is hard to imagine when a victim has been subject to any physical or emotional abuse that it could be argued that this was reasonable. However, the Act sets out to protect people who have been forced to take reasonable steps against a partner who may have, for example, drug or alcohol issues. Such steps may include preventing their partner from going out where there is a high chance of alcohol consumption or restricting funds where their partner has a gambling issue. Both could be considered to be reasonable behaviour depending on the individual circumstances of the case and provided there was sufficient evidence to prove it.

There is no doubt that this law, which has been designed to recognise the reality of what many victims face on a daily basis, will have a significant impact.   The question is whether or not a possible conviction will make offenders think twice before committing an act of domestic abuse? This is certainly the hope and victims can now be assured that domestic violence, in its many different forms, is very high on the political agenda and it will see those who are convicted of committing acts of domestic abuse punished for their actions.

This article was co-authored by Neil Hay of MTM Defence Lawyers Ltd.

For more information, contact our Family Law team.

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