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Equally Safe - Reforming the criminal law to address domestic abuse and sexual offences

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Part One: An Offence of 'Domestic Abuse'

Background

1.1 It is an intolerable reality that domestic abuse blights the lives of too many people in Scotland. It is, by its nature, a largely hidden crime, typically occurring behind closed doors and in private. However, it remains widespread throughout society. In 2013-14, 58,976 domestic abuse incidents were reported to the police[1] and one or more crimes or offences were recorded in 56.7% of those domestic abuse incidents. The Scottish Crime and Justice Survey's Partner Abuse Module for 2012/13 found that 14% of adults (17% of women and 10% of men)[2] report having experienced physical or psychological partner abuse since the age of 16, and 3% report having experienced partner abuse in the previous 12 months. The Chief Constable of Police Scotland, Sir Stephen House, has stated that more than 20% of all police operational time was spent dealing with domestic incidents[3].

1.2 The Scottish Government is firmly committed to tackling all forms of violence against women, including domestic abuse. In 2015-16 the Scottish Government will invest £11.8 million from its equality budget on a range of projects to tackle violence against women and front line services to support those affected by violence and abuse.

1.3 The Justice system and justice agencies have responded to the particular challenges of this type of crime in a number of ways.

1.4 For example, the Crown Office have appointed a specialist National Prosecutor for Domestic Abuse, responsible for co-ordinating the prosecution service's response to domestic abuse cases from across Scotland. In addition to oversight of cases across Scotland, the role involves the on-going review of prosecution policy with regard to crimes of domestic abuse, further engagement with stakeholders to strengthen the collective response to domestic abuse cases, and working to raise awareness among prosecutors and the police.

1.5 Since it was established in 2013, Police Scotland has set up a National Domestic Abuse Task Force to strengthen the police's response to these crimes and target the most serious and prolific offenders. They have also established specialist domestic abuse investigation units in every local policing division across Scotland. On 25 November 2014, they launched their pilot Disclosure Scheme for Domestic Abuse, also known as 'Clare's Law' in Ayrshire and Aberdeen for six months. This scheme allows people to seek information as to whether their partner has a history of offending relating to domestic abuse, with the decision on whether to disclose information made on a case by case basis.

1.6 The Scottish Parliament has recently passed the Victims and Witnesses (Scotland) Act 2014, which will give victims of domestic abuse access to special measures, such as screens and video links, when giving evidence. In some areas, specialist courts have been introduced for domestic abuse cases.

1.7 Speaking at the Crown Office and Procurator Fiscal Service's (COPFS) Domestic Abuse Conference in May 2014, the Solicitor General, Lesley Thomson QC, called on the Scottish Parliament to consider the creation of a 'bespoke' offence of 'domestic abuse'. She stated that, in her experience of prosecuting domestic violence, the existing law does not always reflect the experience of victims of long-term domestic abuse because it focuses on specific instances of e.g. assault or threatening or abusive behaviour, rather than the long-term, repeated nature of much domestic abuse.

1.8 The Solicitor General also considered that a specific offence would provide recognition of the impact and consequences of all types of abusive behaviours, including non-violent tactics of control and abuse, and would make clear to the public and to law enforcement that such conduct is not acceptable.

1.9 In setting out the Scottish Government's Programme for Government in November 2014, the First Minister announced that the Scottish Government would seek views on whether a specific offence of domestic abuse would better reflect the true nature of much domestic abuse, including on-going controlling and coercive behaviour by perpetrators and make the prosecution of this kind of crime more effective, allow more people access to justice and, ultimately, reduce incidents of abuse.

Current Legal Framework

1.10 In Scotland there is no statutory criminal offence of 'domestic abuse' or statutory definition of what constitutes domestic abuse. However, in 2003, the then Scottish Executive's Strategy to Address Domestic Abuse defined it as:

"―Domestic abuse (as gender-based abuse), can be perpetrated by partners or ex-partners and can include

  • physical abuse (assault and physical attack involving a range of behaviour);
  • sexual abuse (acts which degrade and humiliate women and are perpetrated against their will, including rape) and mental and emotional abuse (such as threats, verbal abuse, racial abuse);
  • withholding money and other types of controlling behaviour such as isolation from family or friends)."

1.11 Police Scotland and the COPFS work to a nationally agreed definition of domestic abuse for the purpose of investigating and prosecuting such conduct. This definition, which is contained within their published Joint Protocol entitled 'In partnership challenging domestic abuse' defines domestic abuse as:

"Any form of physical, sexual or mental and emotional abuse which might amount to criminal conduct and which takes place within the context of a relationship.

"The relationship will be between partners (married, co-habiting, civil partnership or otherwise) or ex-partners. The abuse can be committed in the home or elsewhere."

1.12 While there is no specific statutory offence of 'domestic abuse' in Scots law, a range of existing common law and statutory offences can be used to prosecute many of the elements of the spectrum of offending behaviours set out in the definitions of domestic abuse noted above.

1.13 Where prosecution of an offence is taken forward and it is considered that it should be classed as an incident of domestic abuse, e.g. an assault by a person carried out on their partner or ex-partner, a 'domestic abuse identifier' attaches to the offence. In the event of conviction, this identifier will appear on the person's criminal record to show that the offence for which they were convicted was one involving domestic abuse.

1.14 Figures produced by COPFS in June 2014 showed that in the year 2013/14, a total of 36,552[4] charges relating to domestic abuse were reported to them by Police Scotland for consideration of prosecution.

1.15 Violence between people who are in or have been in a relationship is clearly criminal just as it is when violence is perpetrated by a person against a stranger or acquaintance. Offences such as common law assault, sexual assault and rape apply regardless of the relationship between the perpetrator and the victim, and whether or not the conduct occurs in a domestic setting. Figures compiled by COPFS in June 2014 showed that 12,680 charges of common assault, 554 charges of serious assault and attempted murder, 430 charges of rape and attempted rape and 164 charges of sexual assault which were reported to them by Police Scotland related to domestic abuse.

1.16 Common law assault can extend to some circumstances where there is a threat of imminent violence, even where no physical assault takes place, such as making a threatening gesture or presenting or brandishing a weapon at the victim. More generally, there are a number of offences which can be used to prosecute domestic abuse where the conduct constituting domestic abuse does not involve overt physical violence.

1.17 Depending on the facts and circumstances of the particular case, non-violent abusive behaviour can be prosecuted using the offence of 'threatening or abusive behaviour' at section 38 of the Criminal Justice and Licensing (Scotland) Act 2010 ("the 2010 Act"). This makes it a criminal offence to behave in a threatening or abusive manner which would be likely to cause a reasonable person to feel fear or alarm, where the perpetrator either intends to cause such fear or alarm or is reckless as to whether their behaviour would cause fear or alarm.

1.18 The effect of the introduction of this offence in 2010 was to ensure that behaviour which could previously have been prosecuted using the common law offence of 'breach of the peace' could continue to be prosecuted without the need for a 'public element' (which was, following a court judgement, required to convict an offender of a breach of the peace).

1.19 The offence of 'stalking' at section 39 of the 2010 Act may also be used to prosecute non-violent abusive behaviour. The offence provides that a person (A) stalks another person (B) where A engages in a course of conduct (involving conduct on at least two separate occasions) which causes B to feel fear or alarm, where A either acts with the intention of causing B to feel fear or alarm or where A knew or ought to have known that engaging in the course of conduct would be likely to cause B to feel fear or alarm. Conduct is defined in section 39 as encompassing a wide spectrum of activities.

1.20 More generally, statistics collected by the police and COPFS show that a range of other offences are committed in the context of domestic abuse, including vandalism, theft, and offensive weapons offences. Figures compiled by COPFS in June 2014 showed that in the year 2013/14, 14,600 charges in the 'breach of the peace etc.' category (which includes the threatening or abusive behaviour offence), 1,651 charges of vandalism, 451 offences of theft (including of a motor vehicle) and 114 offences of handling offensive weapons which were reported to them by Police Scotland related to domestic abuse.

Should there be a specific offence of domestic abuse?

1.21 As noted above, there is at present no specific offence of domestic abuse. It is clear that violent behaviour occurring in an intimate relationship is criminal, just as it would be in any other context. A range of other offending behaviour which occurs in the context of an abusive relationship, including threatening or abusive behaviour, theft and damage to property can be dealt with using the existing law.

1.22 However, it is perhaps much less clear whether the existing criminal law covers all forms of non-violent behaviour that constitutes domestic abuse as defined by the police and COPFS' working definition.

1.23 Some forms of emotional and mental abuse may fall within the scope of existing criminal offences. For example, the offence of 'threatening or abusive behaviour' criminalises behaviour which is threatening or abusive, provided that it would be likely to cause a reasonable person to feel fear or alarm. This would enable COPFS to prosecute in a case where, for example, a person makes threats or is overtly verbally abusive towards their partner.

1.24 However, it is less clear if this offence can be used to prosecute more subtle forms of controlling or coercive behaviour, such as preventing a person from seeing friends and acquaintances, or exerting control over a person's financial affairs or movements in such a way as to ensure their dependence on the abuser.

1.25 In some cases, there may be a history of past violence or threatening behaviour committed by the abuser against the victim, such that the fear instilled in the victim enables the abuser to exert this this control without using overtly threatening behaviour or the physical violence. The threshold set out in the offence of 'threatening or abusive behaviour' that the behaviour would be likely to cause a reasonable person to feel fear or alarm may not be met.

1.26 A consequence of this is that even victims whose cases are successfully prosecuted can be left thinking that their experience as a victim of domestic abuse has not been fully recognised by the courts.

1.27 In such cases, a long term pattern of abuse is prosecuted as discrete incidents of, for example, assault or threatening behaviour. Significant aspects of the abuse, which could be described as 'coercive and controlling behaviour' or emotional or financial abuse, may not clearly fall within the scope of any existing criminal offence. Behaviour like preventing the victim from having contact with friends or family or exerting undue control over the victim's financial affairs can limit their scope for independent action and undermine their autonomy.

1.28 The severity of the specific incidents of violence or threatening behaviour for which the abuser is prosecuted can only be fully understood against the background of on-going psychological abuse and controlling behaviour. However, at present, it is not formally recognised by the courts and judges and sheriffs must sentence the offender on the basis of the offences which were proven in that particular case.

1.29 We consider that there is a case for creating a specific offence of 'domestic abuse' which would criminalise the kind of on-going coercive and controlling behaviour in a relationship which is not covered by existing criminal offences such as threatening or abusive behaviour. A single specific offence of 'domestic abuse' which used a definition of domestic abuse, based, for example, on the working definitions used by the police and COPFS, would enable a court to consider the whole context of an abusive relationship - both the incidents of threats and violence and acts of emotional abuse and psychological control, when prosecuting an alleged offender.

1.30 In this regard, it is perhaps worth considering the parallel with the existing law of 'stalking' at section 39 of the Criminal Justice and Licensing (Scotland) Act 2009. This enables a course of conduct constituting 'stalking', which may consist of many separate acts, not all of which would necessarily be considered to be criminal if considered in isolation, to be prosecuted as a single charge of 'stalking'.

1.31 However, we consider it is important to ensure that any new offence is defined in such a way as to draw a clear distinction between, on the one hand, emotionally abusive, controlling and coercive behaviour which is often motivated by a desire to humiliate a person and undermine their autonomy, and, on the other hand, ordinary arguments and friction that can occur in almost any relationship and which should not be regarded as constituting a criminal offence, unless they involve threatening behaviour or violence.

1.32 In February of this year, the UK Parliament passed the Serious Crime Act 2015. Section 76[5] of that Act provides for an offence of 'controlling or coercive behaviour in an intimate or family relationship'. This makes it an offence for a person to repeatedly or continuously engage in behaviour which is controlling or coercive towards a partner or family member, where that behaviour has a serious effect on the partner or family member and the accused person knew or ought to have known that it would have a serious effect.

1.33 If domestic abuse is to be prosecuted effectively, it is vital that the police, the courts and the public are clear about what constitutes criminally abusive behaviour within an intimate relationship. With this in mind, we would welcome views on whether a specific offence would be of assistance in prosecuting domestic abuse and whether it would provide greater clarity for the public regarding the criminality of different forms of abuse within a relationship.

1.34 The existing definition of 'domestic abuse' used by the Police and COPFS is concerned with people who are or were in a relationship with each other. We are aware, however, that the UK Government's cross-government definition of domestic abuse extends to cover family members who are not partners:

"any incident or pattern of incidents of controlling, coercive, threatening behaviour, violence or abuse between those aged 16 or over who are, or have been, intimate partners or family members regardless of gender or sexuality. The abuse can encompass, but is not limited to:

  • psychological
  • physical
  • sexual
  • financial
  • emotional"

1.35 We recognise that abuse can be committed by family members. However, we know that such abuse can have a different dynamic to abuse that occurs between partners or ex-partners. With this in mind, we would welcome views on whether any specific offence of domestic abuse should be restricted to abuse committed by a person against their partner or ex-partner, or whether there would be merit in adopting a definition which includes abuse committed by any family member. It is worth noting that the definition used by the UK Government is restricted to those over the age of 16, presumably because it is not considered helpful to conflate domestic abuse and child abuse.

Questions

1. Does the existing criminal law provide the police and prosecutors with sufficient powers to investigate and prosecute perpetrators of domestic abuse? Yes; No (if No, please specify how the existing law should be strengthened)

2. One of the ways in which it has been proposed the law could be strengthened is through the creation of a specific criminal offence concerning domestic abuse. Do you agree that this would improve the way the justice system responds to domestic abuse? Yes; No.

3. What behaviours which are not currently criminalised should be included within the scope of a specific offence?

4. Should any specific offence of 'domestic abuse' be restricted to people who are partners or ex-partners, or should it cover other familial relationships?

5. Are there any other comments you wish to make about the creation of a specific offence of domestic abuse?

A Domestic Abuse Aggravator

1.36 We would also welcome views on whether the introduction of a statutory aggravation available for any offence that occurred against a background of domestic abuse would assist the prosecution of domestic abuse cases.

1.37 Statutory aggravations exist to assist in the identification and prosecution of a number of different types of crime. For example, the Offences (Aggravation by Prejudice) (Scotland) Act 2009 provides for statutory aggravations for any crimes committed through a motivation of malice or ill-will towards an individual based on their sexual orientation, transgender identity or disability. This could, for example, be an assault motivated by ill-will towards a disabled person. Where offences are proven to be as a result of such malice or ill-will, the court must take that into account when determining sentence. Evidence from a single source is sufficient to establish the aggravation.

1.38 Section 74 of the Criminal Justice (Scotland) Act 2003 makes similar provision for offences aggravated by religious prejudice and section 96 of the Crime and Disorder Act 1998 provides for a statutory aggravation that an offence was motivated by malice and ill-will towards the victim based on their membership (or presumed membership) of a racial group.

1.39 The Human Trafficking and Exploitation (Scotland) Bill will, if passed by Parliament, establish a statutory aggravation that an offence was committed against a background of human trafficking. This recognises that many cases involving other offences, for example, producing false documents, immigration offences, brothel keeping and drugs offences, are committed in the context of human trafficking, even though there may be insufficient evidence to raise proceedings for a specific human trafficking offence.

1.40 A statutory aggravation that an offence or offences were committed as part of a course of conduct that amounted to domestic abuse may provide an alternative means of ensuring that the courts recognise the victim's experience. In a domestic abuse context it would be helpful that the aggravation can be proved by evidence from a single source. By placing a statutory duty on the courts to take into account domestic abuse when sentencing the offender, as they are required to do by existing legislation concerning offences aggravated by prejudice, victims can have greater confidence that the sentencing decisions of the courts in, for example, assault or breach of the peace cases, reflect the fact that the offence occurred as part of an abusive relationship. A statutory aggravation for domestic abuse could be considered either as an alternative to a specific offence, or, as is the case with the human trafficking aggravation, in addition to it.

Questions

6. Do you think that there should be a statutory aggravation that a criminal offence was committed against a background of domestic abuse being perpetrated by the accused? Yes/No if no, please give reasons for your answer

7. If you think that there should be a statutory aggravation of this kind, do you think this should be in addition to, or instead of, a specific statutory offence of 'domestic abuse'? Give reasons