At the moment, there is no specific offence of domestic abuse in Scotland, but an abuser’s behaviour often breaks lots of other laws, like stalking, threatening and abusive behaviour, assault, and rape. Police Scotland take domestic abuse very seriously.
If politicians in the Scottish Parliament vote in favour, Scotland will soon have a new law that brings all these behaviours under one offence, but until then here are some answers to the most commonly asked questions about domestic abuse and the law.
What happens if I contact the police?
If you contact the police they will investigate to see if a crime has been committed. This may involve taking a statement from you and from any others who may have seen or heard what happened. They will also gather other forms of evidence which will help them show that your partner did what you have said (this can include copies of emails, text messages, screenshots from social media, voicemails, photos of bruises).
If the police gather enough evidence to show that your partner/ex-partner has committed a crime, he will be charged with an offence and may be held in custody to appear in court or he could be released on police bail to appear in court at a later date.
The police will send a report to the Procurator Fiscal (PF) who will decide if there is enough evidence to proceed with the case.
Is it my choice whether my partner is prosecuted?
It is the PFs decision whether your partner is prosecuted, not yours. The PF will make this decision based on whether it is in the public interest to proceed and whether there is enough evidence. The PF will also decide whether the case should be heard before a sheriff, before a sheriff and jury, or in the high court. This will depend on the seriousness of the crime.
What happens if my partner is prosecuted?
If the PF believes there is enough evidence then your partner will have to appear before the sheriff and enter a plea of guilty or not guilty. If he pleads not guilty he may be released on bail until the case comes to trial. Whether your partner is bailed to appear or held on remand (in prison) will depend on his history and the crime he is alleged to have committed.
If he is bailed there will be certain things he will be told he’s not allowed to do, such as not contacting you in any way. If he breaks these rules then he would be in breach of bail which is a crime. If he is bailed the police will check in with you and make sure you know what the bail conditions are.
What happens if my partner pleads guilty?
If he pleads guilty the sheriff may sentence him in that moment, or they may ask for court reports before they make a decision about the sentence. Sentences for domestic abuse can include:
- Deferred sentences where a judge can postpone a sentence, usually for good behaviour, to a later date. If the abuser stays out of trouble during that time, the judge will normally give a lesser sentence than if they get into trouble.
- A fine where the offender must pay money to the court within a certain amount of time.
- Unpaid work as part of a Community Payback Order, where an abusers has to pay back to his community for the damage their crimes have caused, and to deal with the underlying causes of his offending behaviour.
- Non-Harassment Orders where he is ordered to stop the behaviour that causes fear, alarm and distress. This can include unwanted texts or shouted abuse.
- Orders to work with criminal justice social work to change his behaviour.
- A custodial sentence, where the abuser is sent to prison.
I’m worried about giving evidence - what will happen?
Remember, you are allowed to ask to give evidence behind a screen if you want to, so that you don’t have to see your partner or ex-partner.. If you do need to give evidence then first the PF will take you through your statement and ask you some questions.
Then the defence solicitor will ask you questions. It’s their job to defend your partner or ex-partner, so they might ask you if you are telling the truth, or suggest you are mistaken.
It is then up to the sheriff or the jury to make a judgement about whether your partner/ex-partner is guilty or not guilty.
What happens if my partner pleads not guilty?
If your partner or ex-partner pleads not guilty then two dates will be set. The first is for an intermediate diet which you don’t have to attend, and the second is for the trial which you would have to attend. You will receive something called a citation, which is a letter telling you to attend court to give evidence. You don’t need your own lawyer for this because you are part of the evidence that the PF will provide to the court.
If you receive a citation to go to court it is against the law not to go. If you don’t attend, this could mean that the case is continued, and you could be arrested and have to explain why you didn’t attend to the sheriff. If you are feeling worried about going to court, it’s a good idea to speak to your local women’s aid group who can support you to attend.
Victims of domestic abuse can apply to have special measures to help them to give the best evidence they can; these have to be applied for before the trial. If you or your children need to give evidence then you can give evidence behind a screen so that you don’t have to see your partner/ex-partner. They will be able to see you on a video screen. You can also have a supporter with you as you give evidence; usually this is someone from the witness service who you will meet on the day of trial. In some situations you may be allowed to give evidence by video link, but this has to be agreed by the sheriff.
Before the trial you are allowed to visit the court so that you know what to expect, and you are allowed to see the statement you gave to the police to refresh your memory.
Most of the time cases before a sheriff are heard within 12 weeks (although trial dates can be set and then rearranged) and cases before a sheriff and jury can take over a year to be heard. High Court cases (for the most serious of crimes) can take over 2 years unless your partner is on remand in jail, and then the cases normally have to be heard within 140 days.
At the trial your partner/ex-partner can still plead guilty before you give evidence, either at the intermediate diet or on the day of trial. This sometimes happens because the PF and the defence solicitor come to an agreement called a plea deal, which might mean your partner or ex-partner pleads guilty to a less serious charge, or just some of the charges they have been accused of.
If they are found not guilty then the case ends and any bail conditions will stop.
If they are found guilty then the sheriff might ask for reports before they decide on a sentence. Usually bail conditions will remain in place until the sentence has been decided.
Lots of women find that going through court can be a very stressful and difficult process. You should know that you are definitely not alone and that your local women’s aid group can support you from start to finish.
If you feel you are in immediate danger
If you think you are in immediate danger then you should call the police on 999. If you wish to make a report you can call 101.
If you feel scared of or around your partner or if you are worried about someone you know, get in touch with Scotland’s 24 hour Domestic Abuse and Forced Marriage Helpline on: