It was an absolute honour to speak at the Scottish Women’s annual conference this year and to see familiar faces present from so many different agencies.
There was a real energy in the room which, I believe, comes from our shared sense of purpose. We need to work collaboratively to understand and uncover offending; to prosecute those who have offended, to support those affected and prevent future offending –with our common goal being to eradicate domestic abuse from modern Scottish society.
The focus of the conference is another significant milestone in the journey toward addressing domestic abuse in Scotland – the Domestic Abuse (Scotland) Bill.
The Bill, if passed, will signify a seismic change in the law. It will make criminal the insidious abusive behaviour that at present we are unable to prosecute.
It sends a clear signal as to what modern day Scottish society aspires to – equality and respect between genders – and what collectively we will not tolerate – abusive behaviour in all its forms, whether that be physical, sexual, verbal, financial or other forms of non-physical abuse coercive and controlling behaviour. A lot of progress has made from a legal perspective on domestic abuse in recent years, and police and prosecutors have continued to refine their approach.
In 2013, The Crown Office and Procurator Fiscal Service (COPFS) appointed the first National Procurator Fiscal for Domestic Abuse, Anne Marie Hicks, to enhance our response to tackling domestic abuse.
Earlier this year, COPFS and Police Scotland relaunched our Joint Protocol on domestic abuse, after in-depth stakeholder consultation. The Protocol commits both of our organisations to a consistent and robust approach to domestic abuse and recognises the significant and enduring impact which domestic abuse can have on victims and children.
Over the past year, the law in relation to domestic abuse has evolved with the creation of the statutory aggravation of domestic abuse, which courts must take account of in sentencing, and the specific offence of intimate image abuse, a crime which has been made all the easier to commit by advances in technology.
While there are significant challenges for prosecutors in domestic abuse cases, there has also been a gap in the law, which has meant that some of the controlling, demeaning, isolating behaviour that often epitomises domestic abuse has not been recognised as criminal. This type of behaviour has existed in a kind of netherworld – not acceptable, but also not, of itself, illegal.
I’m proud of the role of the Crown, particularly my predecessor Lesley Thomson QC, in galvanising action to criminalise the full extent of domestic abuse. As Solicitor General, in 2014 she led the way by calling for the creation of a specific offence of domestic abuse, to recognise the true experiences of victims of long-term abuse.
The new Domestic Abuse (Scotland) Bill creates an offence of engaging in a course of abusive conduct towards a partner or ex-partner with intention of or recklessness about causing that person physical or psychological harm. The course of criminal conduct may include behaviours already recognised as criminal, such as violent, threatening or intimidating behaviour, but can also include behaviour intended or likely to isolate, humiliate, degrade, subjugate, frighten, punish, control, regulate, monitor, or deprive or restrict the victim’s freedom of action.
The creation of the domestic abuse offence will assist prosecutors in holding more perpetrators to account by enabling us to prosecute courses of abusive behaviour not currently recognised as criminal, including coercive and controlling behaviour. By enabling us to prosecute the totality of the abusive behaviour, rather than simply isolated incidents of violent or threatening behaviour, this will more naturally reflect the very real, lived experiences of victims of domestic abuse and put the true picture of offending before the court.
There was a lot of interesting discussion at the conference on the challenges and opportunities that the Bill will bring.
From a prosecutors perspective, evidence-gathering in relation to a coercive control type offence may be a more challenging process than, for example, for an assault or breach of the peace.
A more nuanced offence will require evidence to be gathered in innovative ways. The evidence gathering process must be robust to enable the whole picture to be presented. Evidence sources may include friends, family, children, neighbours or work colleagues who may have been aware of some of the behaviours and the impact on the victim. The police may look for evidence from other sources too, such as social media.
We also recognise that proof of the new offence will usually require victims, and in some cases, children, describing their experiences; this is not an easy task in an adversarial criminal justice system where the burden of the proof is on the Crown. We are committed to doing all we can as a criminal justice system to recognise that and, working collaboratively with other agencies and organisations, to find ways of supporting victims to give their evidence in the best way possible.
The new provisions in the Bill also recognise the harm that domestic abuse does to children and the need to offer them better protection. The creation of an aggravation of involving a child in domestic abuse will allow the likely impact on children to be recognised, recorded and taken into account in sentencing. The enhanced provisions in relation to non-harassment orders, allowing the court to grant an order in respect of a child, residing with either the victim or the perpetrator, or for whom the child aggravation relates, could also offer additional protection and reassurance to children after the court proceedings have ended.
I am very conscious of the responsibility of the Crown to use the new legislative provisions to the full, to prosecute robustly and effectively in the public interest; meeting the evidential and legal challenges that this type of offending presents by our professionalism and expertise in the field. This ground-breaking legislation will give us important new weaponry in the fight to rid our nation of this insidious crime.
The criminal justice response is only one part – an important part – of a wider societal response. There is a need to raise awareness among the public and create a society where domestic abuse is not only recognised as a crime but is universally condemned as unacceptable.
The Lord Advocate and I and the Crown Office and Procurator Fiscal Service are committed to playing our part in tackling domestic abuse, and other forms of gender-based violence. We shall continue to work effectively with other partner agencies and organisations, including Scottish Women’s Aid, to prevent and hopefully one day eradicate abuse in our society.
– Solicitor General Alison Di Rollo