We are grateful to the committee for its scrutiny of this important bill. The bill aims to address a fundamental gap between the current criminal law and our modern understanding of the true nature of domestic abuse in relationships between partners and ex-partners.
The bill was informed by an extensive process of consultation and engagement with a wide range of key stakeholders.
Ahead of the committee’s questions, I want to set out the Scottish Government’s position on two specific matters that have been raised during scrutiny of the bill. First, we know that the committee has heard from stakeholders who want a separate parallel offence of domestic abuse of a child to be created. It is intended that that would recognise that a child who is living in an environment in which their caregiver is being abused is himself or herself a victim of abuse. That is clearly an important issue, so I want to explain the Scottish Government’s position on the matter.
Where abuse is directed at a child, criminal law can already be used. For example, abuse can be charged using the offence of child cruelty or neglect in section 12 of the Children and Young Persons (Scotland) Act 1937. We are very aware of concerns that the existing offence may not adequately deal with psychological abuse of a child, which is why the Minister for Childcare and Early Years announced to Parliament in March that the offence is being reviewed to consider whether it requires to be updated to reflect a modern understanding of what amounts to abuse of a child.
However, it appears that what is being proposed in respect of the bill is different. Our understanding of what seems to be being proposed, based on the evidence that has been given to the committee, is that it should be possible to charge an accused person with two different offences in respect of a single course of abusive behaviour that has been directed against their partner or ex-partner. One offence would be the offence contained in the bill, when the partner or ex-partner is the victim of a course of conduct of abusive behaviour. Our understanding is that the separate offence would result from exactly the same conduct and would seek to criminalise the harm that occurred to the child of the partner or ex-partner through the abuse that had been directed at that partner or ex-partner.
We are absolutely clear that growing up in an environment in which domestic abuse is occurring harms children. However, we do not think that the way to address that is to create a mechanism through which a person can be charged with two separate offences for one course of behaviour. That is why we have included a statutory child aggravation in the bill. The aggravation is intended to capture the harm that is caused to a child by ensuring that the court formally takes account of it when making sentencing decisions in such cases, and by ensuring that it states how that has been taken account of in determining the sentence. That will ensure that no separate offence is needed in order for the child to be regarded as a victim and for the impact on that child to be recognised.
I would also like to comment on concerns that have been expressed about the threshold for when an offence has been committed. The view has been offered that the inclusion of “distress” in the definition of “psychological harm” that is contained in the offence risks setting the threshold for criminalisation too low. We are, of course, happy to consider views on that. However, we have included “distress” as part of the definition of “psychological harm” because we consider that merely referring to “fear” or “alarm” would mean that courses of conduct that should be criminal as a matter of policy would not be included in the scope of the offence.
The courts will interpret the word “distress”, taking into account its dictionary definition. “Distress” is not synonymous with mere upset or annoyance, as some people might consider, or as might have been suggested in earlier evidence. The “Concise Oxford English Dictionary” defines “distress” as “extreme anxiety or suffering”.
The committee has heard from a number of stakeholders, including the Crown Office and Procurator Fiscal Service and Scottish Women’s Aid, that behaviour that gives rise to extreme anxiety or suffering should be included within the scope of the offence. Our position is that abusive behaviour that causes extreme anxiety or suffering ought to be covered by the offence, and the threshold has been set with that in mind. It is important to remember that the offence is committed only if all elements of the threefold test that is set out in the bill are met.
I am always happy to discuss and consider alternative ways of achieving policy goals in both the areas that I have mentioned, and that includes considering specific suggestions that the committee makes in its stage 1 report, or that stakeholders have suggested would improve the bill.
I am, of course, happy to take questions.