Domestic Abuse (Scotland) Bill

The Convener

Item 5 is our second evidence session on the Domestic Abuse (Scotland) Bill. I refer members to paper 4, which is a note by the clerk, and papers 5 and 6, which are Scottish Parliament information centre briefing papers.

It is my pleasure to welcome Clare Connelly, who is from the Faculty of Advocates; Grazia Robertson, who is a member of the Law Society of Scotland’s criminal law committee; Andrew Tickell, who is a lecturer in law at Glasgow Caledonian University; and Lindsey McPhie, who is a past president of the Glasgow Bar Association. You are all welcome. I thank you for your submissions, which are helpful for the committee’s scrutiny of the bill.

I will start the questions. The Faculty of Advocates submission says:

“the criminalisation of behaviours, such as those listed in section 2(3) of the Bill, requires to be contextualised if the legislation is to achieve its aim.”

Will you tease out the distinction between common couple violence and coercive control, which you said needs to be looked at?

Clare Connelly (Faculty of Advocates)

There is a substantial amount of international research on domestic abuse. Over the years and recently, an understanding has developed that distinguishes violence and conflict that arise within a couple from domestic abuse. Common couple violence is defined as violence and aggressive language that are used intermittently by individuals when a dispute arises in a couple but which are not underpinned by on-going coercive control. The distinction that has been drawn between such behaviour and domestic abuse has been very much welcomed.

Unfortunately, some people resolve interpersonal disputes by using violence, but such behaviour is different from the underpinning coercive control that is the main factor in domestic abuse. As members know, historically, people talked about domestic abuse as wife battering—that is how it was originally spoken about in the 1970s. Gradually, as time has gone on, domestic abuse—or domestic violence, as it used to be called in Scotland—has come to be understood as something much wider than physical violence that one partner uses against the other. The prevalent features are physical violence and sexual violence, but they may be episodic; what underpins domestic abuse in a relationship is a desire by one partner to control the other. Recognising coercive control becomes extremely important when we look at the victims of domestic abuse who are at the highest risk of homicide, which mainly occurs either when the victim leaves the relationship or after they have left.

In the 1970s, our understanding was that domestic violence was violence between partners to resolve disputes. We now understand that coercive control is the main feature of domestic abuse. That is why, for example, homicide risk heightens when the relationship is brought to an end—basically, it is because the controlling partner cannot handle that fact.

Our concern is that some of the behaviours that are listed could easily occur outwith a relationship that is underpinned by coercive control. Without accurate identification of the context of coercive control, it might become difficult to criminalise the behaviour that the bill seeks to criminalise and to maintain public confidence in what the Parliament is trying to achieve.

The Convener

Is that linked very much to the provisions on a course of behaviour?

Clare Connelly

Those provisions certainly go some way towards addressing our concern. The normal lens of the criminal law is a narrow lens—it is single-incident focused. The bill has gone some way towards contextualisation by talking about a course of behaviour.

We realise that the point that I just made is difficult to legislate on. We recommend in our latest submission to the committee that, for the bill to be successful, it must be accompanied by a public and professional education programme. That is the best way to achieve recognition of the distinction that I refer to. Personally, I do not think that it is possible to legislate for it. In an ideal world, it would be great if we could do so but, practically speaking, I am not sure that we can.

The Convener

Are there any other comments from panel members?

Grazia Robertson (Law Society of Scotland)

On behalf of the Law Society of Scotland, I agree with those comments, which are mirrored to an extent in our submission. It mentions the lack of clarity, which relates in part to the fact that, as Clare Connelly said, there is no distinction between situations that ideally we would not wish to be criminalised and situations where the criminal law should intervene. That is the difficulty.

As practising lawyers, we see difficulties every day in addressing issues of domestic abuse under the existing legislation. I sit on a committee that is full of practising criminal lawyers, and we are in the courts day and daily. We see difficulties regarding legislation that seeks to protect innocent individuals in a domestic setting. Difficulties that are being experienced even now include witnesses not attending; witnesses attending court and not speaking to their original statement, which seemed to support the allegation; and breaches of special bail conditions. All those situations result from difficulties in the current legislation.

Further investigation into that might shed some light on the dynamic of what is going on in those cases and the other cases that Clare Connelly referred to, which involve people who resort to violent outbursts because that is the only way in which they can respond to certain situations—that is how they are. I certainly do not disagree with anything that Clare Connelly said.

Lindsey McPhie (Glasgow Bar Association)

One concern of the GBA is that, if the bill is passed, prosecutors will be faced with a new set of legislative provisions. The GBA’s experience is that, when legislation is introduced, the Crown is understandably keen to use it. There are difficulties in the prosecution of such offences and there are issues of proportionality. Who will apply the reasonable person test? The Scottish Police Federation’s submission expressed concerns about police officers being the reasonable person, which the committee might explore in a later evidence session.

I echo Grazia Robertson’s comments that there are a lot of issues and complications even with the current domestic abuse provisions, which should be looked at closely before we tackle the very complicated area of domestic abuse that is being discussed.

The Convener

A lot of issues were raised in those opening responses. The course of behaviour, the time over which that takes place and what such behaviour includes are matters that other members will tease out. The issues point to this being a distinct offence.

10:30  

Mary Fee (West Scotland) (Lab)

Good morning. I will pick up on reasonable behaviour. Mr Tickle’s submission, in particular, talks about the reasonable person test. It says that that is not a “helpful approach” and that a

“key function of this Bill must be to discriminate between degrees of wrongful behaviour, not ... to distinguish wrongful behaviour from innocuous behaviour”.

Will you expand on those comments and give us a bit more detail on what should be in the bill to completely clarify that aspect?

Andrew Tickell (Glasgow Caledonian University)

At the risk of introducing “The Thick of It” this early in the proceedings, I say that my surname is pronounced “Tick-ell”. Everyone gets to call me “Tickle” once.

You have a difficult task in front of you in the sense that it involves discriminating between a wide range of behaviours. The abusive behaviour provision is broad and has to be so, because we are covering a range of behaviours that in one context would be innocuous and in another context would be profoundly problematic. The Crown Office and Procurator Fiscal Service and the Government have argued that there is a range of checks on that broad definition of abusive behaviour. The reasonableness test is one of those checks, and the accused person can offer that as a defence. I am not sure that defining criminal laws primarily in defence terms is particularly reassuring for the citizen because, to some extent, the burden of proving a defence falls on them.

The key aspect is ensuring that the thresholds for criminalisation are sufficiently high. In my submission, I directed you to the English legislation, which provides that the harm that is caused to the complainer has to be of sufficient severity and have a significant impact on their day-to-day life. There is nothing like that in the bill that would allow us to discriminate between more serious and less serious behaviour, but that would be the best way to ensure that the bill catches the right cases and criminalises those who are guilty, while ensuring that people who are behaving badly and not very pleasantly towards their partners are nonetheless outside the scope of the criminal law when their bad behaviour is not likely to cause significant harm to the complainer. That is the approach in England and it would be sensible to have that approach in Scotland, too.

Mary Fee

Would the definition of a significant impact have to be detailed? Where would you start with that definition and where would it end? I am sure that there are many different views on how to define a significant impact.

Andrew Tickell

One could say the same thing about reasonableness. Would a significant impact have to be defined exhaustively? Section 76 of the Serious Crime Act 2015 does not do so; it simply says that the impact has to cause significant or substantial harm or distress. To some extent, that is in the eye of the beholder, but it is a judgment about wrongfulness in context, because the pattern of behaviour is looked at. In most cases—summary cases—we would have to allow the judge to make that judgment; in jury cases, we would have to allow the jury to make it.

Such legislation cannot be exhaustively precise. It is powerfully difficult to define such things. All that we can do is ensure that the decision maker has an eye to certain principles. I suggest that one of the principles that should be taken into account is the seriousness of the harm, and not whether it might give rise to distress, which is the test in the bill. Distress seems to be an incredibly low bar for criminalisation.

Mary Fee

Would the police be the first people who would have to judge whether something had a significant impact? If the police were called to a property where an incident had taken place, would they have to make the initial assessment of whether something that was of significant impact had occurred?

Andrew Tickell

Yes, although, equally, under the proposals, the police would have to decide whether the behaviour—or the course of behaviour—that was alleged to have taken place was likely to have one of the listed psychological effects on the complainer. In such a context, that does not seem to be a particularly straightforward task, either. I am not sure whether the task is qualitatively more difficult for police officers to do if they are made to focus on the seriousness of the harm, as opposed to considering simply whether harm has arisen.

Mary Fee

Does anyone else want to comment on that?

Grazia Robertson

I imagine that the suggestion that the police would have to assess such a scenario if they entered it is probably less likely in this situation, because the bill’s purported aim is to deal with issues that are on-going over time. It is not supposed to deal with a single, dramatic incident, such as the breach of the peace or the assault scenario, which is more likely to be covered by police officers attending a scene and having to assess a situation.

In our submission, we made the point that gathering evidence about on-going behaviour is difficult. I imagine that it would be unusual for police who had suddenly appeared on the scene to be able to form a view at that time regarding the behaviour.

Lindsey McPhie

I presume that, as Grazia Robertson said, it is envisaged that there will have been a continuous course of abusive behaviour. There are issues with gathering evidence in such a situation, because the people who have experienced such abuse will perhaps be extremely reluctant to come forward.

When will the trigger occur? Will it be when another party reports the abuse to the police but, meanwhile, the two parties still live together? What is involved is not like the current situation in which there is a single episode, the police arrive and, if there is a sufficiency of evidence, they immediately detain or arrest the person concerned, who is inevitably kept in custody overnight or over the weekend. It is hard to envisage a situation in which the police will be aware immediately that coercive control is on-going.

There will be difficult and, as we called them, marginal decisions for prosecutors. They have specialist training, but the GBA indicated that it is quite concerned about what the guidelines will be and that it would welcome input from people who represent those who are accused, if that is feasible.

The Convener

The evidence that we took from people who had experienced such abuse was that the trigger time always seemed to be the point at which they left the relationship. When they reflected back, they saw that a substantial body of evidence had built up.

Lindsey McPhie

Yes.

Stewart Stevenson (Banffshire and Buchan Coast) (SNP)

Mr Tickell, paragraph 4 of your submission says:

“Entering into any relationship inevitably restricts the ‘freedom of action’ of both parties.”

That goes to the heart of some of the decision making. Is that surrender of power voluntary or involuntary? Is that where you are trying to take us? Is the voluntary or involuntary character of the surrender a sensible way for the criminal justice system to think about the matter? Relationships are multifaceted; they change over time and are different in different instances. The degree of surrender or trading in of power and exchange for benefit will differ in every household in the country. Does that go to the heart of some of the difficulty?

Andrew Tickell

You could argue that it does. It is certainly worth reflecting on the fact that the definitions of abusive behaviours in the bill run through a spectrum. There are some at the high end of the spectrum—degrading behaviour, for example—that it is hard to see any healthy relationship participating in. Then there is behaviour at the possibly lower end of the spectrum—such as monitoring-type behaviours and making one person dependent on the other to some extent—that even the Scottish Government recognises might capture behaviour that is perfectly commonplace and sometimes benign, although it is sometimes not benign.

I see no way of capturing the broad gamut of behaviour that the bill aspires to capture without having a very broad definition of what abusive behaviour might look like. Unlike the Law Society, my core submission is that, to take that on to an appropriate level of criminalisation, we should have additional tests of sufficient severity. Given the range of behaviours that domestic abuse and coercive and controlling behaviours cover, from doing and saying things to not doing and not saying things, I do not see how we can have a straightforward, clear definition of abuse.

The committee should really think about whether the thresholds in the bill are sufficiently high. I suggest that they are not.

Stewart Stevenson

We come to the heart of it: do we need a definition in the bill or should we simply leave it to the courts? I am not sure whether anyone who is in the room was present when we debated curtilage in the Land Reform (Scotland) Bill in 2002. Ultimately, after many months of deliberation, we concluded that it was not possible to define curtilage; we had to let the courts consider the individual circumstances and specifics of each case. Are we back in that territory?

That question is directed not just at Mr Tickell but at other panel members.

Andrew Tickell

I do not think that you necessarily are back in that territory. I am not suggesting by any means that you try to define abusive behaviour exhaustively.

It is worth emphasising that it is the Scottish Parliament’s function and your democratic legitimacy to make the laws. The procurator fiscal is not elected by anybody. It would be inappropriate to insist on a very broad definition of the crime that gives substantial discretion to prosecutors. I suggest that that would be an abrogation of your functions.

The issue of definition raises fundamental questions about European convention on human rights compliance, because the bill as a whole is a significant intervention in the private life of citizens of this country. Under the European convention on human rights, any intervention in people’s private lives must be sufficiently clear, pursue a legitimate aim and be proportionate. In many cases that will not be a problem, but the named persons case in the UK Supreme Court should remind us of the importance of having laws that are sufficiently clear, such that the citizen can understand them.

Stewart Stevenson

You said that they should be “clear”, but do you mean “certain”?

Andrew Tickell

I am a lawyer and so I am allowed to quibble. What distinction do you see between the two?

Stewart Stevenson

“Clear” means understandable and “certain” means delivering a certain legal outcome. They are rather different things. Clare Connelly is nodding at that distinction and might want to come in.

Clare Connelly

I would use the term “legal certainty”, because to be convention compliant, a law has to be legally certain. I would use the term not only for that reason. Since its creation, the Scottish Parliament has made huge inroads in improving our legal and social response to domestic abuse: one of the first pieces of legislation to be passed by the Parliament was the Protection from Abuse (Scotland) Act 2001.

If we are trying to both protect individuals and empower them to seek legal protection that was not previously available to them because of the limited domestic abuse behaviours that have been covered by the existing criminal law, legal certainty is very important, in terms of making law that is enforceable and convention compliant and empowering individuals and giving them the knowledge that their lifestyle and the behaviours that they have endured and suffered are not condoned by law, but criminalised by it.

You have an extremely difficult task before you, as I said in my submission. I am by no means suggesting that it is easy. There has to be some guidance, and using a general term, without offering any definition or examples, is problematic. I come back to the point that for the bill to achieve its aim, context is everything.

Stewart Stevenson

You used the word “guidance”, but do you mean that in a specific legal sense? Should there be extra-legal writings that inform the courts and the procurators fiscal when they make decisions, or should the guidance be incorporated in the primary legislation and supporting secondary legislation?

Clare Connelly

It cannot all be incorporated in the legislation. As the Faculty of Advocates has suggested in our submission, an education campaign for the public would be helpful, and front-line professionals involved in enforcing the legislation would have to receive some sort of training. That is something that is well understood by agencies such as Scottish Women’s Aid and the Women’s Support Project, and it is internationally evidenced in research on domestic abuse. For the legislation to be fully effective, it must be backed up by an improved general understanding of the importance of context of behaviours.

Lindsey McPhie

I echo Clare Connelly’s comments. I appear daily in the domestic abuse court, and the response from the Scottish Parliament in improving awareness and understanding the dynamics of domestic abuse, the provisions for vulnerable witnesses, the ASSIST—advice, support, safety and information services together—project and specialised courts and training for sheriffs are all hugely welcome.

I wonder whether we are yet at the stage where we should be assessing the impact of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016, which has just come in. It is only in the last two to four weeks that I have seen domestic aggravations appearing on the face of the complaints. The 2016 act says that section 1(1) applies where it is

“libelled in an indictment or specified in a complaint that an offence is aggravated by involving abuse of the partner or ex-partner”.

The offence is so aggravated if

“(a) the person intends to cause the partner or ex-partner to suffer physical or psychological harm, or

(b) in the case only of an offence committed against the partner or ex-partner, the person is reckless as to causing the partner or ex-partner to suffer physical or psychological harm.”

We are talking about contextualisation of offences, and provision has just been enacted for sheriffs to give cognisance to whether the motivation behind the contravention of section 38 of the Criminal Justice and Licensing (Scotland) Act 2010 or the assault is in fact to perpetrate physical or psychological harm. There are many provisions at the moment that are working well. Perhaps those could be refined further before we introduce yet another piece of legislation, which I think that everybody agrees can be problematic.

10:45  

The Convener

We will cover the definition of psychological harm. We might assume that the coercive aspect is subsumed in that, but, given the discussion that we have had about coercion, perhaps that is where the gap is.

Rona Mackay (Strathkelvin and Bearsden) (SNP)

I want to ask about the impact of the bill in relation to children and, in particular, the concerns that the Glasgow Bar Association and the Law Society raised about clarification of the statutory aggravation in relation to a child. Will you expand on those concerns?

Grazia Robertson

The Law Society produced an example. The law needs to be clear in its terms so that everyone can understand it. It is a criminal law, and people should not be able inadvertently to contravene that. The bill must be quite clear about what kind of criminality it is seeking to address, to attack and, hopefully, to form a solution to.

One example that my committee came up with was the fact that the bill acknowledges that children can sometimes be used as a weapon by one party as a way of hurting the other party or controlling their behaviour. Above all, children, as eminently vulnerable people, must be protected. There are other protective and child welfare measures that can come into play in a scenario in which children are being adversely affected by the behaviour of one or both of the partners—both might be at fault. Those protective measures should always be properly in place and working well to protect the children. That is the front line. Those scenarios require not a criminal standard of proof, but a civil standard. People can become involved in helping children in such domestic scenarios without worrying about whether they reach the required high standard of proof for criminal matters.

In the bill, a child is defined as anyone who is

“under 18 years of age”.

When my committee was chatting about that, we wondered what would happen if the couple were 17-year-olds, or their friends were. We could have a scenario in which there was an aggravation because a couple’s young friends were in the house during an altercation between the couple. We assumed that that was not the aim of the bill and that it was to do with younger children, but that is not expressed in the bill. There could be a scenario in which a 17-year-old is on the periphery of a situation—perhaps they have not been given money to go out or something—and are then captured in that aggravation. What are the terms of the aggravation? Are such situations really what the Parliament is looking at? Will people be caught up by chance in a situation where there is an aggravation involving children?

As criminal lawyers, we know the shortcomings of the criminal justice system—it is quite a rigid system, as I was saying to colleagues. It can go for the extremes of behaviour, but it is not good with the subtleties. That subtle behaviour can have a bad impact on children. Civil remedies such as the involvement of social work and the children’s referral system should be the front-line safeguard for children, given that they do not require such a high standard of proof. My hope would be that social work and the children’s referral system would always be rigorous and well resourced and that that side of the situation would be dealt with by well-trained professionals who can enter into an environment and protect children, even in a scenario in which no criminal conviction would succeed against anyone.

Rona Mackay

Thank you. Would anyone else like to comment?

Lindsey McPhie

The GBA also addressed the point that Grazia Robertson mentioned, on which I am sure that the committee will have had submissions from the Scottish Children’s Reporter Administration.

My understanding is that currently there are fairly rigorous provisions. As I mentioned, under section 67(2)(f) of the Children’s Hearings (Scotland) Act 2011, there can be a ground of referral without there being a criminal conviction; it only has to be established, on the balance of probabilities, that the child has been in a house in which domestic abuse has occurred. For example, I understand that in the situation where a partner leaves a relationship in which there have been recorded incidents of—though not necessarily convictions for—domestic abuse and forms a relationship with a new family, the fact that there have been previous recorded incidents will form an automatic ground of referral.

There are fairly strong provisions at the moment. However, the children’s reporter might feel that there is a gap, and in its evidence to the committee it might say that the current provisions are not stringent enough.

Rona Mackay

In their submissions, some of the children’s organisations said that the provision about the child being in the house was not strong enough. They asked whether that meant that the child had to be in the room or whether, for example, it was enough that they were listening in the bedroom and could hear the abuse happening. Would you like to see specific clarification on such points?

Lindsey McPhie

Clarification is always welcome. I know that this will probably not answer Rona Mackay’s question, but we observed that, even without specific legislation, a prosecutor will always draw such things to the court’s attention. Where children were in the house, sheriffs will certainly take a very strict view of an incident occurring in their presence, whether or not they heard the abuse or were even in the same room, and that would always influence a sheriff’s disposal.

Rona Mackay

Thank you. To go back to your point about 17-year-olds, would you advocate putting a limit or threshold on the age?

Grazia Robertson

I am here on behalf of the Law Society of Scotland. In our discussions, we did not go into suggestions as to how the bill could be altered. We looked at it from the point of view of perceived difficulties, problems and anomalies.

On the point about children being present in the house, there would presumably have to be some way of establishing that the perpetrator of the crime knew that they were there. It would be invidious to have an aggravation that could conceivably mean an increased punishment for someone without their being aware of that scenario. Regard must be given to how a case would be presented in the course of a trial in a criminal court setting, and what evidence would have to be led to establish the aggravation. We took the pragmatic view that the protection of children in such scenarios is paramount. We asked ourselves how we would best protect them, and our view was that front-line measures such as social work involvement and referral to the children’s panel would be best suited to dealing with such scenarios, rather than there being an aggravation in the form that is in the bill.

Rona Mackay

Okay. Thank you.

Clare Connelly

I want to add one thing. There is substantial research that has shown that children who hear domestic abuse are often more adversely affected by it than are those who see it. What is evidenced is that children who hear but do not see abuse become much more distressed, because they cannot see how badly their parent is being injured. If we are trying to control children’s distress at exposure to abuse, the value of making a distinction between their being in the same room or not is not supported by the evidence.

Mairi Evans (Angus North and Mearns) (SNP)

Rona Mackay touched on a couple of the questions that I was going to raise, and she has made important points on them. In other legislation that we have looked at, we have discussed the definition of a child, and the panel has just answered my question on that, too.

I found the submissions of Children 1st and the National Society for the Prevention of Cruelty to Children interesting. They said that the aggravation should go further, to recognise that, where children live in a domestic abuse situation, they are inevitably victims of that abuse. Regardless of whether they see or hear it, it will have an impact on them. The submissions also list all the studies that have been done on that. Would the wider impact that they mention be recognised under the bill?

Clare Connelly

The aggravation provision in the bill allows that to be taken into account. The information required as to whether it is appropriate to have the aggravation—such as knowledge that children were present—will be before the person who marks the papers and the person who will prosecute the case. The bill can make only so much detailed provision for that aggravation and, as drafted, it allows flexibility. I agree with my colleagues about the civil provisions, but I would expect agencies that represent children to be keen to have an aggravation attached to the criminal offence where children were present. The research results on the impact on children certainly support that because, although children are not direct victims, they are consistently secondary victims of domestic abuse in a household.

Mairi Evans

I would also like your views on the requirement to consider non-harassment orders. A lot of the written submissions that we have received agree with that requirement. The evidence that we have had so far indicates that non-harassment orders are not issued frequently. What are your views on that? At the moment, a lot of people have to resort to the civil process to get action.

Clare Connelly

I was an academic before I went back into practice and went to the bar, and at that time Kate Cavanagh, Jane Scoular and I evaluated the Protection from Abuse (Scotland) Act 2001. As part of that, we looked at access to, and breach of, civil protection orders, and it became clear that the provisions that existed at that time meant that, before a prosecutor could move to get a non-harassment order, they had to be able to show a course of conduct and behaviour. Because the narrow lens of the criminal law meant that, generally, one incident of domestic abuse was prosecuted, it was not possible to show a course of conduct and therefore the prosecutor could not move for a non-harassment order. When I later worked with Rhoda Grant on the Domestic Abuse (Scotland) Bill, we suggested that the requirement for showing a course of conduct be removed from the bill, and that was done.

I believe that a non-harassment order should be available. In fact, it should be compulsory for sentencers to consider granting a non-harassment order, because women routinely cannot secure civil protection orders because of the contribution levels that are required under civil legal aid. A person who perpetuates domestic abuse, who is charged and who goes to court might access legal aid more easily than someone who is seeking protection. Given what we know about the trigger for increased violence and the increased risk of homicide where a person has left or is trying to leave a relationship and is taking formal steps to seek protection, it becomes extremely important that we join up our legal response to that in criminalising behaviours and, at the same time, offering the necessary protection.

Lindsey McPhie

Clare Connelly and I have discussed the issue of non-harassment orders previously. Clearly, they can be a very effective measure, but one of the issues that the Glasgow Bar Association raised in its written submission is how the measure will operate in practice. At the moment, there can be many situations where people appear from custody and plead guilty immediately. I think that it is envisaged that, as part of the inquiry and investigation that the Crown Office and Procurator Fiscal Service and ASSIST—the advice, support, safety and information services together project—will have carried out, the complainer will be asked whether they wish to have a non-harassment order. However, there could be a situation where that view has been sought on the Friday night and the accused appears from custody on the Monday and pleads guilty in court. If the view at that point is that a non-harassment order is welcome, the question is whether it should be put in place immediately without any further inquiry.

Often, the complainer’s views are the most persuasive issue, and that is very problematic when a non-harassment order is made. We said in our written submission that, as far as we can see, there is no provision at the moment for the recipient of a non-harassment order to ask for a variation of it. On numerous occasions, we have received letters from solicitors acting on behalf of a partner who has been the victim of domestic abuse to say that they wish the non-harassment order to be removed. However, there is no provision in the Criminal Procedure (Scotland) Act 1995 for them to make an application; it has to be done by either the prosecutor or the solicitor acting on behalf of the accused person.

11:00  

Sheriffs will obviously be very considered in their approach, but issues could arise when there has not been sufficient time for the views of the complainer to be sought after a period of time. Clearly, in cases where there is a record of domestic abuse, it might be immediately apparent that an order is appropriate or that the complainer is seeking one. Quite often, an application is made after a criminal justice social work report has been prepared, and the prosecutor and sheriff have time—as does the accused—to reflect on whether an order is appropriate. I worry that, if sheriffs are to be faced on every occasion with the decision on whether to make a non-harassment order, they might work on information that is new without even the complainer having had the chance to consider whether he or she wants it. Once an order is in place, it is strictly enforced. That is more a point about the practical application.

Clare Connelly is right that a domestic abuse interdict can be achieved under the Domestic Abuse (Scotland) Act 2011, and for that there does not have to be a course of conduct; one incident is sufficient. However, there are issues of funding for that.

Mairi Evans

The written evidence that we had from the charity Children 1st said that it would

“welcome an amendment to the Bill to include a mandatory duty on the court to consider whether to impose a non-harassment that includes the children in all cases where the statutory aggravation in relation to a child is applied.”

Evidence that we received from the NSPCC says that it heard from the bill team that

“there has been at least one domestic abuse case in Scotland where a court ... made a non-harassment order covering children”,

but the order

“was subsequently overturned in a civil child contact case.”

The NSPCC was of the view that

“it must be in the authority of the court within this legislative instrument to consider making a non-harassment order in respect of children”

and that, when that order is made, it should be recognised by the civil courts as well.

Grazia Robertson

My personal impression is that there is an issue with non-harassment orders to do with when they are and are not granted and how they are implemented and enforced. I have spoken with the agencies who are keen to have the provision in the bill, and their main complaint appears to be that not enough orders are being made and, when they are made, they are not effective enough.

My initial view, as a criminal lawyer, is that we should look at what is happening and whether there is an issue regarding the orders, rather than seek to incorporate them into another act when more offences may come to light. I wonder if there is an underlying problem in how the orders are being implemented. People think that there are not enough orders, yet when they are there, people do not find them effective. If there is an issue with the orders, the bill will not necessarily assist matters.

Clare Connelly

The question of the effectiveness of civil protection orders is complex. What do we mean by “effective”? Do we mean that the orders are effective in stopping an abuser being abusive, or that they are effective in empowering the recipient of the order? Quite substantial international research shows that the main benefit from civil protection orders is that they empower the recipient, because a formal external process has said that the behaviour is wrong and should not happen again. Women—it is predominantly women—report that that is one of the big benefits for them.

In the worst or most extreme situation of an estranged partner who, as a result of having lost control, is going to carry out an act of homicide, a non-harassment order will not change that. Let us be honest: an order will not change that extreme violence.

When we interviewed women, they told us that the difficulty was that they went to court and tried to get a protection order, but they could not afford to pay their contribution to civil legal aid because they were bringing up the kids on their own with no financial support from the estranged partner. In such situations, it is difficult to justify to someone why they cannot get protection under the law.

Undoubtedly there will be mixed views on how effective non-harassment orders are. Certainly, some time ago, we were told that, when orders were breached, police officers who attended would say that there was no corroboration for the event that breached the order. There has been a bit of misunderstanding there. As I said, if protection orders are not being granted when they should be granted and breaches are not being appropriately responded to, that is a training issue rather than something that requires legislation.

To respond to Mairi Evans’s question, if the aggravation in relation to the child is there and children are to be regarded as victims, they should be afforded the protection of a non-harassment order, for the same reasons as those that I gave for protecting other victims of domestic abuse.

Mairi Evans

Thank you.

The Convener

Victims of coercive behaviour more or less told us that non-harassment orders were pretty useless, because if children were involved there would be contact orders, which would inevitably bring them into contact with the abuser. Perhaps Ms Robertson is right. The issue is complex and there needs to be further investigation—probably outside the scope of the bill—of how non-harassment orders are operating in practice.

Liam McArthur

My colleagues have probably covered the principal issues in relation to the bill.

Concern has been expressed that the Government has not taken the opportunity in the bill to acknowledge the wider context of violence in a domestic setting. Violence can be perpetrated by children against their parents or grandparents, for which we use the generic term “elder abuse”. Is there justification for excluding that type of abuse in a domestic setting, because it is different from the abuse that we have been talking about this morning? Would its inclusion complicate the implementation of the legislation?

Clare Connelly

I understand that there is a distinction between domestic abuse among partners who have or have had an intimate relationship and violence that is perpetrated by children against parents or elder abuse.

Liam McArthur

Elder abuse would not necessarily mean violence; I presume that the term covers controlling behaviour and all the rest of it—that is, all the serious abuse that happens and the distress that is caused between partners who have an intimate relationship. I wonder whether we are missing a trick by not including elder abuse in the bill. Would doing so make implementation more difficult, because such abuse is regarded as very different from abuse of a partner with whom there is an intimate relationship?

Clare Connelly

I understand that one reason for the bill is that the national definition of domestic abuse in Scotland includes a lot of behaviours that are not yet criminalised. My mind is turning on elder abuse, and I think that things such as misusing money are covered by the existing criminal law. They are not the same issue. Perhaps you can assist me by identifying specific behaviours that would arise in respect of elder abuse and which are not already covered by the criminal law, as there are in respect of domestic abuse in intimate relationships.

Liam McArthur

The concern came through in the evidence that we received. I think that the overwhelming majority of respondents to the broad consultation on the provisions supported a narrower focus. That might be precisely for the reasons that you suggested. However, we are opening up the scope of the law to deal with controlling behaviour, and I am not sure whether such behaviour is currently covered in the context of elder abuse, when it is not covered in the context of abuse between partners in an intimate relationship.

Andrew Tickell

Let me suggest an example. Let us imagine that two maiden aunts live together—I used to have a couple who lived together and who had a happy relationship. If one such person was systematically coercing, controlling and otherwise abusing the other in a way that was outside the scope of the criminal law, that would not be covered by the bill.

Perhaps you also have in mind the English definition, which is broader and covers family members—not just children, but cousins who may be living in the same house. The fundamental question is: if coercive and controlling abusive behaviour is worth criminalising in relationships of an intimate character, why is it not worth criminalising in other contexts, too?

Scottish Government civil servants told the committee that they felt that it was appropriate that domestic abuse should be a distinct category of wrong. From a purely personal perspective, I am not really sure why. If abuse is very serious but it occurs between people who happen to live together and do not have a sexual or romantic relationship, I am not sure why that should be categorically different, and not criminalised by the criminal law, from abuse in a domestic partnership, which would be criminalised.

Liam McArthur

Are there current examples in which the nature of a relationship has impacted on the way that the courts have dealt with a case?

Grazia Robertson

I do not know if this will assist you at all, but the Law Society has considered the issue of a specific focus on intimate partner relationships, and we came to the view that, in the spirit of equality, the English approach of narrowing the focus is really to be preferred to the Scottish approach. As Andrew Tickell said, if coercive and controlling behaviour is wrong and is to be criminalised, it should be criminalised equally in other domestic settings in which it appears.

I presume that the difficulties in gathering evidence are the same in a close domestic relationship as they are in an intimate partnership. The issue is the distinction that is made, with special pleading for special cases of people. I know that some organisations feel that that is an appropriate way forward, and that domestic abuse is a special case that requires its own tailored response. I understand their view, and they are representing a particular group of people—that is their function. However, should not a provision of the law apply equally to others who may suffer from the same type of behaviour under other circumstances and who also find themselves in a situation in which evidence is difficult to gather?

Liam McArthur

In the way in which the English law is currently being implemented, are courts approaching different instances in different ways? Are there issues with the thresholds, as we discussed earlier, or have those been resolved in relation to the law as it applies in England and Wales?

Grazia Robertson

I guess that it is too early to be able to comment. One issue that we raise in our submission is the difficulty, when a number of legislative provisions come in one after the other—for example, the provisions in the Abusive Behaviour and Sexual Harm (Scotland) Act 2016 came in last year—of assessing the efficacy of one individual provision rather than all of them together. Simply by getting cases through the courts, it would be a bit premature to form any view as to how the English provision is working out.

Andrew Tickell

My understanding is that the English legislation came into force in December 2015. Thus far, as far as I am aware, very granular data has not been reported. Overall, looking across England, one comment that has been echoed in the media is that the provision is not being used very much. It has been used in cases that are not predicated only on the complainer’s evidence but in which, for example, the police find a tracking device in the complainer’s car and there is strong corroborative evidence or communications data that reflects regular contact between the alleged abuser and the complainer.

In Scotland, of course, corroboration issues are even more important—as a matter of law, we have to produce corroboration for a prosecution to proceed. Those are the kinds of cases that are being taken under the legislation in England, but it is difficult at this stage, for the reasons that were just set out, to undertake a systematic review of its use.

The Convener

We should not forget that section 76 of the Serious Crime Act 2015 extends to those who

“live together and ... are members of the same family”.

Liam McArthur

My final point is on definitions. Lindsey McPhie spoke about the references to intent and recklessness in the Abusive Behaviour and Sexual Harm (Scotland) Act 2016. You have all, in your submissions, expressed concerns about the definition of reckless behaviour. Do those concerns remain, despite the fact that it appears that existing legislation refers to those things, or is it again too early to tell how the provisions in the 2016 act will be viewed by the courts and implemented in practice? Are there particular concerns arising from use of that definition in the bill?

11:15  

Lindsey McPhie

I think that you said that most of the submissions are concerned about the definition of recklessness. Section 38 of the Criminal Justice and Licensing (Scotland) Act 2010 mentions behaviour that

“would be likely to cause a reasonable person to suffer fear or alarm”

and a person who

“is reckless as to whether the behaviour would cause fear or alarm.”

Sections 38 and 39 of that act deal with threatening or abusive behaviour and stalking. Glasgow Bar Association’s particular concern is about the bill criminalising even omissions, and people potentially being convicted of recklessly failing to do something. That encapsulates our concerns about the very broad nature of the types of behaviour that could be captured, including even “reckless” omissions. I know that we perhaps focus on the most extreme minor examples, but the difficulty is that the umbrella of the legislation would cover all those situations.

Liam McArthur

Could the bill avoid opening up situations that could be viewed far too broadly?

Lindsey McPhie

The straight answer to that is that the bill could be made to say that the offence would have to be committed intentionally rather than recklessly.

Liam McArthur

Is that view shared across the panel?

Clare Connelly

Yes.

Andrew Tickell

I go back to the offence in section 76 of the Serious Crime Act 2015. The mens rea component of that is that the accused

“knows or ought to know”.

It is maybe worth stressing that, in Scots criminal law in general, mens rea is assessed objectively: we do not try to make windows into men’s and women’s souls. Rather, we try to draw inferences about what they must have known, based on their patterns of behaviour.

It might also be worth stressing that “recklessness” is used in a range of criminal offences and is not a new term in the law. It means something more than negligence; it is often described as complete disregard for the circumstances and implications of what was done. Perhaps that suggests a higher threshold than the word “recklessly” might imply in common language. I do not see a particular problem with making the crime one of both intention and potential recklessness.

John Finnie

Good morning, panel. I have a question for Mr Tickell about his concerns about the term “reasonable person”. I know that that has been touched on previously. If two officers are sent to a dwelling house and make a judgment, is that the judgment of reasonable people, which will be followed by the reasonable judgment of the officer at the place of custody? Is not that, in any case, an intrinsic part of the existing arrangements?

Andrew Tickell

That is true. My particular complaint or concern is to do with the use of “reasonableness” as a defence, in that a person could defend their behaviour if they could argue that it was reasonable. The point that I tried to make was that some behaviour might be unreasonable but not worth criminalising, whereas “reasonableness” is also used in the earlier part of the bill to determine whether a reasonable person would think that the abusive behaviour was likely to cause the complainer harm. I think that you are asking about the second of those two issues, whereas I was principally talking about the first in relation to defence.

John Finnie

This question is particularly for the court practitioners. We understand that, under the existing arrangements, police officers might be called to premises and detain a party, and a decision might be taken at some point in the process that further inquiry is merited, so the person might be released. That has given rise to a number of fairly high-profile historical abuse incidents in which patterns of behaviour—particularly violent behaviour—by offenders over a number of years have resulted in salutary sentences. If the bill progresses amended or unamended, would that approach be taken in relation to coercive behaviour—which we all, I hope, appreciate needs to be addressed?

Clare Connelly

The domestic abuse taskforce has a joint protocol with the Crown Office and Procurator Fiscal Service. That protocol determines that, when officers attend a domestic abuse incident, the investigative response will be more akin to a murder inquiry than the old response was, which was to walk the man around the block and then put him back in the house.

Now the assumption is made that there might not be anyone who can speak to the evidence, and there is a much more proactive gathering of evidence from neighbours and so on. Moreover, the focus is very much on ensuring safety in the situation instead of allowing it to perpetuate.

The difficulty is that we have always had in Scotland the requirement for corroboration, which can be very difficult in relation to domestic abuse because it is a classic case of an offence that is committed in private. As John Finnie will know—indeed, he alluded to it—the police tactic has been to investigate proactively whether former partners have been subjected to the same types of behaviours. That allows a prosecution to be brought that includes charges in respect of a number of complainers, which in turn brings into play something called the Moorov doctrine, which allows corroboration to be found in the separate individual complainers. That has been very successful as a policing tactic, but it would not be wholly accurate to say that it is popular among individuals doing defence work—if I can say that.

John Finnie

I should make it clear that I was not putting myself forward as a spokesperson in that respect.

Clare Connelly

In any case, one would expect that style of policing and evidence gathering to be replicated.

John Finnie

Of course, no one is going to phone up the police and say, “I want to report a course of coercive behaviour.” The call would be driven by an individual act.

Clearly, if the level of investigation is to be enhanced to deal with a range of domestic situations, that will have significant implications for the resources that are needed to underpin investigation.

Grazia Robertson

There are already significant implications for resources with the operation of the current system and range of offences. Budgets are being curtailed, and difficult decisions are being taken. I point out that great steps have been made in specialist domestic abuse courts, and domestic abuse cases are given priority in trial fixing to ensure that they come to court more speedily and witnesses are not left hanging around and waiting for ages. However, making them a priority inevitably means that other cases fall down the list; indeed, some totally fall off the edge and are not prosecuted at all, because of the view that some offences need not be brought into the criminal courts and can be dealt with elsewhere.

However, pressure is building in the existing system. That is not say that the bill should not go ahead, but it will inevitably put additional pressure on a system that is already suffering. Of course, that is no reason not to do it, but it is something that everyone should recognise.

John Finnie

Indeed. Also, the pressure to carry out detailed inquiries does not necessarily result in what a complainer would see as a speedy response to their concerns.

Grazia Robertson

You must also remember that the bill envisages cases in which the complainer, as we would call them, or the victim—the person whom we believe is being subjected to the crime—might not give evidence at all, and may not support the charge. The bill gives the opportunity to bring to court cases in which other parties or sources are relied on for the evidence, which becomes difficult.

John Finnie

What are your concerns about that?

Grazia Robertson

One can envisage a situation in which a person might be convicted of a crime in order to protect another individual from that crime, but that individual has not given evidence to support what has been said about the behaviour and does not accept that she is the victim of the crime. She has not come to court and given evidence. The bill says that the case does not have to rely on the evidence of the victim herself or himself. Such cases might well not happen—I cannot think of scenarios in which one could gather that much qualitative evidence without the individual herself giving evidence of what she has experienced. However, the bill envisages a scenario in which it would not be essential to have evidence from that person.

John Finnie

I presume, though, that that sort of provision would be pivotal if the complainer was incapable of giving evidence for whatever reason—mental incapacity, illness or whatever. It would be important for criminal law to intervene in such circumstances, if there was a known problem.

Grazia Robertson

I presume that that is why the provision is in the bill—to deal with situations in which someone is so psychologically damaged that they are not aware of how they are suffering or, indeed, refuses to accept that they are suffering, because they consider the behaviour to be acceptable when, by anyone else’s reckoning, it is not. However, how such an offence might be evidenced becomes even more problematic.

Andrew Tickell

It is probably worth stressing that it is much more likely that far more cases will arise in which there is not much more than the evidence of the complainer, and the case does not proceed, however ghastly and tyrannical the partner has been. In that sense, it is always important to remember that in criminal law interventions we have to take into account corroboration and the wider evidential rules, which impose significant restrictions on the capacity of any criminal law to prosecute crimes that take place in private. We see that with rape conviction rates and are already seeing it with crimes of domestic violence being covered by laws on assault and on threatening or abusive behaviour.

John Finnie

This has already been touched on. Is there an opportunity for the civil law to provide protection if there is insufficient evidence for a criminal prosecution? We have heard that there would be resource implications from that and implications for access to criminal legal aid.

Andrew Tickell

You would have to use a number of the civil orders—with the inherent problems—that have been referenced by a number of members of the panel.

Lindsey McPhie

The police are likely to face much more complicated investigative procedures. The defence will then have to respond in kind, which makes defence of such charges difficult and time consuming. The definition of the offence is “a course of” coercive “behaviour” and the bill mentions “relevant effects” of making people “dependent ... or subordinate”. We can envisage a situation in which the accused person would not be readily advised that there will be limits to the admissibility of the evidence that they might wish the defence to lead, because under the definition in the bill, that accused person could rightly want to introduce a lot of evidence about the day-to-day activities in their relationship. There would, therefore, be additional effects for every aspect of the criminal justice system, including the defence.

Grazia Robertson

I appreciate what Andrew Tickell said about corroboration, and I know that it is some people’s bête noire, but remember that one of the main tenets of the criminal justice system is that the accused is convicted only when the court is satisfied beyond all reasonable doubt, which is a high standard. It is an inevitably high standard in any good system of criminal justice whether there is corroboration or a range of other safeguards or protections. A higher level of proof has to be surmounted—although it is different in a civil case.

John Finnie

Thank you.

The Convener

The COPFS submission goes to the heart of the sufficiency of evidence and the corroboration aspect. It says:

“Potential evidence may be available from a range of sources including friends and family who may not have directly witnessed the behaviour of the accused but may be well placed to give evidence on the ‘relevant effects’ this has had on the victim.”

When we were trying to get our heads around the bill we heard good evidence from victims about isolation and being cut off from family. Will you comment on how that would play out? Would such evidence alleviate some of your concerns?

Grazia Robertson

I imagine that that could alleviate some of the concerns about evidence from third parties, but it could also open the door for third parties to bring their own prejudices, complaints and perceptions about the relationship that might not be accurate. That is why it would have to be put to the test in a criminal court setting. There could be problems and benefits in relying on third-party evidence in such cases.

Clare Connelly

There are also issues around admission of hearsay evidence. Primary hearsay is allowed in courts as evidence of something being said by A to B, but that, in itself, does not speak to the truth of what is being said. We allow hearsay evidence to a certain extent, but not to speak to the truth of the matter.

If we are going to ask family members, for example, to give evidence about a family member becoming more and more isolated, rather than about what they saw as direct eyewitnesses, we are in danger of asking non-expert witnesses to express opinion in court, by asking them to describe their perception and then to express an opinion of what that amounts to. We have very strict rules and we do not let witnesses do that: only expert witnesses are allowed to express opinions. It would be very difficult.

11:30  

The Convener

I suppose that I was thinking that if someone said explicitly that so and so did not welcome them and did not want them to visit, that would not be an opinion—it would be a statement of fact that the person was isolated. Would that count as evidence or is it still hearsay?

Clare Connelly

You are absolutely correct that someone can say, “She didn’t want us to visit,” but if the witness then goes further and says, “That happened because he told her we weren’t allowed to visit,” the second part is opinion. It might be quite difficult to manage that in a court setting, but it is the role of the judge to manage such things and to ensure that the evidence rules are followed. However, reliance on such evidence—you can understand why it could become very important—might make it difficult for civilian witnesses, who are not trained lawyers, to understand where the limits of their evidence should lie.

The Convener

Ben Macpherson is next.

Ben Macpherson (Edinburgh Northern and Leith) (SNP)

Thank you, convener, but I was going to ask about recklessness and that point has already been covered.

Mary Fee

I want to come back briefly to the issue of the aggravation in relation to children in section 4. Barnardo’s and Children 1st have both raised concerns around the way that the issue is described, discussed and drafted in the bill. I want to focus specifically not on the issue of a child witnessing or hearing abuse but on cases in which a child is used in the commission of the offence, particularly if a very young child is used by an ex-partner to perpetrate and continue psychological behaviour towards the child’s parent. If a young child does not fully understand why they are being used but they are perpetrating abuse, they are a victim but they are also being used to continue the abuse. Should there be something else in the bill on that? Are you content that there is enough in the bill to reflect the issue, or is it captured somewhere else?

Andrew Tickell

Sorry—maybe you can clarify one point so that I am clear. Do you mean scenarios in which, for example, one partner poisons the outlook of the child in respect of the other partner—where they turn them against the other partner?

Mary Fee

No.

Andrew Tickell

Because that is criminal in some jurisdictions, interestingly.

Mary Fee

No. I mean where a child is used quite specifically to continue psychological abuse by behaviours and different ways that the child is used.

Andrew Tickell

The bill focuses on the abusive behaviour of the accused person and behaviour can be acts, omissions, things said or things not said. Given that extremely broad definition of behaviour, which includes doing things and not doing things, I suppose that it is hard to see why that would not already be covered under the provisions.

Stewart Stevenson

I want to go back to the situation in which the victim is not the complainer and test what that really means. Surely we have lots of examples already in which the victim lacks legal or practical capacity, as a child does in other parts of the legal system. There is nothing novel about the victim not being able to be a complainer that particularly informs this debate, is there?

Grazia Robertson

That is correct. The difficulty here is that depending on the incident, you can have actions or activities that you are seeking to show are criminal that, of themselves, would not necessarily be criminal but that would become criminal in a particular context, and I would have thought that the person’s evidence would be very useful in seeking to prove that. I am not saying that it is impossible to prove it by other means, but it is an inherently difficult charge to prove—the responses from legal contributors have indicated that. Therefore, it will be difficult to get evidence to support the charge. It will not be impossible but it will be difficult and it may be resource intensive and lengthy, with no guarantee of a conviction at the end because the standards that have to be met are high. It will be difficult but not impossible.

There is an added difficulty if the one witness who is vital in cases of breach of the peace or assault in domestic settings is not there. Generally, such cases in a domestic setting are heavily reliant on the evidence of the individual who has been subjected to the crime. Therefore, it is an extra difficulty, as it were. That is not to say that it will be impossible to bring such a charge, but it will be more difficult because the offence is wide-ranging and incorporates both behaviour that is not necessarily criminalised at the moment and behaviour that is already criminalised, such as threatening and intimidating or violent behaviour, and is covered by existing legislation.

Stewart Stevenson

There is also a risk that, if the victim is not prepared to be a complainer, they could end up as a witness for the defence. The prosecutor would have to consider that—

Grazia Robertson

It could, inadvertently, make matters worse for the individual.

Stewart Stevenson

That is correct.

The Convener

The low bar issue has been raised in relation to various definitions. The first of those is the definition of

“a course of behaviour which is abusive”.

The Faculty of Advocates says that the definition

“avoids criminalisation of single isolated incidents”

as it talks about such action taking place on at least two occasions. However, the Law Society points out that there is no indication of

“what gap in time might be reasonable”.

Two incidents could conceivably happen on the same day.

Grazia Robertson

Or, conversely, years apart.

The Convener

Yes. Will you comment on that? Is that insurmountable? How can we address that low bar?

Grazia Robertson

I think that the Law Society raised the issue simply because, when we discussed the matter in committee, we noticed that the policy memorandum talks about a pernicious, sustained, on-going course of conduct that can be as damaging as any violent assault because of its pernicious and continuing nature, perhaps over a long period of time. In trying to express that, however, the bill says that the conduct must take place on a minimum of two occasions.

There seems to be a bit of a contradiction between the bill’s initial aim and the inclusion of the minimum of two occasions, which does not seem to marry up with the idea of conduct that is continually pernicious over a period of time and systematic in wearing down an individual, as it were, which is perhaps what people would normally understand by the terminology “coercive” and “controlling”, because it is on-going—not high level or dramatic on any one occasion, but continuous. I think that the policy memorandum uses the word “pernicious”.

The Convener

Is there any other way to address that? For the people from whom we took evidence, the behaviour continued over a number of years. Interestingly, in every case, it happened once they were married—they might have been in a relationship before, but it started many years later.

It would be interesting to get Mr Tickell’s thoughts on distress, as you have particular concerns about the low threshold.

Andrew Tickell

If you look at the language that is used in the bill, you will see that “abusive behaviour” has to cause “physical or psychological harm”. Read simply, that sounds like a pretty substantial test. However, if you go into the definition of psychological harm, you find that it includes the traditional criminal definitions of “fear, alarm and distress”. It strikes me that distress is not used in other comparable public order statutes that we have seen. Also, distress is a fairly low bar for criminalisation. It is quite easy to cause somebody distress; causing someone fear and alarm seems to be categorically different.

The word “distress” is included in the English legislation, but it is qualified by the word “serious”—“serious fear or distress”—so we are talking about a threshold of seriousness. If you told me that I look fat, the chances are that I might be moderately distressed about that. I do not mean to trivialise the matter, but that would be a distressing thing. Distress seems a low bar, and if the bill is about the kind of serious cases in which people’s human integrity is undermined by their partnerships, it seems unnecessary to incorporate such a minimal threshold in the bill. If it is about catching cases that are not criminalised at present but deserve to be, the term “distress” merely drags in a whole set of behaviours, given the broad definition of abuse, which may well impact on the credibility of the legislation by casting its net far too broadly. I would argue that that is very problematic in a statute that has a maximum penalty of 14 years in prison.

The Convener

So, for example, if I were to refer to you as “Mr Tickle”—

Andrew Tickell

That would cause profound distress. [Laughter.]

The Convener

A final aspect concerns psychological abuse and the “reasonable person” test. There was some concern over whether a reasonable person would be able to identify or recognise what is psychological. Would that need expert witnesses?

Lindsey McPhie

We were of the view that there could be situations in which the only way to establish the psychological impact would be to call an expert witness to speak to that, particularly if the complainer was not supportive of the prosecution. It is hard to envisage a situation in which the complainer does not give evidence but the court is able to establish psychological distress.

Andrew Tickell

It might go back to the wider definition. You do not need to be an expert to recognise fear, alarm and distress in that context, which might weigh against the requirement to have expert witnesses. In many breach of the peace cases you do not have expert witnesses explaining to sheriffs or juries what fear and alarm looks like. In a sense, you are using a lay definition of the distress that is likely to be caused to the complainer.

The Convener

There is a final point on procedure in the bill, which is that the accused should not be allowed to carry out his own cross-examination.

Clare Connelly

The Faculty of Advocates strongly supported that mirroring of the provisions that we have in sexual offence trials, where the perpetrator is not allowed to conduct their own defence. That is so that there is not an opportunity for further distress to and abuse of the complainer.

The Convener

Did everyone concur with that point?

Lindsey McPhie

Yes.

Liam McArthur

There was a concern that in a case of a reasonably high worth, in which an individual was unable to carry out their own cross-examination but was unwilling to instruct a solicitor, there might be pressure on legal aid budgets. Is that right?

Grazia Robertson

I think that we made that point. It is something that one would have to be alert to. As criminal lawyers, our initial response was that it is not a situation that we come across very often—people in summary cases saying that they want to represent themselves. If it were to happen, we can see that it would cause distress, but given that the bill will eliminate that option, we felt that it was appropriate to raise the point that if someone was manipulative enough to wish to carry out their own cross-examination in court, in order to make life a misery for the person over whom they wished to exert power, then another way of subverting the system—for people who are quite calculating by nature—would be to refuse to engage a solicitor. Then, a provision would have to be invoked to allow the court to appoint a solicitor for that person. Realistically, there is the possibility that by doing so, the person would have legal representation free of charge.

We just wanted to raise that point as a practical consideration—somebody might subvert the system in a different way, by getting a free lawyer to do their trial for them.

Liam McArthur

Did you work through that to see whether there is a possible workaround, or would any workaround cause more serious problems in other areas?

Grazia Robertson

It would need to be looked into. I am not sure that there is a real risk of it happening, but it might happen. There is already a provision to allow court-appointed lawyers in sexual offence cases, if someone refuses to engage a solicitor or, more commonly, has sacked their solicitor as a way of creating more mayhem in the system.

I am not sure how often that provision is used and I do not know how successful it is in its current setting. The criminal law committee could not really say what impact it might have in the new setting.

The Convener

That concludes our line of questioning. I thank all of you for your evidence, which has been immensely helpful to the committee.

I will suspend the meeting briefly to allow for a change of witnesses.

11:45 Meeting suspended.  

11:49 On resuming—  

The Convener (Margaret Mitchell)

I welcome everyone to the 21st meeting in 2017 of the Justice Committee. Apologies have been received from Fulton MacGregor and Stewart Stevenson. I welcome George Adam to the meeting.

Following the terrible events in London at the weekend, the Presiding Officer has notified Parliament that there will be one minute’s silence at 11 am as a mark of respect to those who died in, or who have been affected by, the attack. I will suspend the meeting at one minute to 11 and, after the minute’s silence, we will resume business, which I expect will be a continuation of the first item on our agenda.

Agenda item 1 is our third evidence-taking session on the Domestic Abuse (Scotland) Bill. I refer members to paper 1, which is a note from the clerk; paper 2, which is a private paper; and paper 3, which is a Scottish Parliament information centre paper.

I welcome to the meeting Anne Marie Hicks, who is the national procurator fiscal for domestic abuse and head of the victims and witnesses policy team at the Crown Office and Procurator Fiscal Service; Detective Chief Superintendent Lesley Boal QPM, who works in public protection in the specialist crime division of Police Scotland; and Calum Steele, who is the general secretary of the Scottish Police Federation. I thank the witnesses for their written submissions, which are always very helpful to the committee. I invite questions from members.

John Finnie (Highlands and Islands) (Green)

Good morning, panel. I have a question for Mr Steele on his concerns about what would be expected of police officers attending a scene. Can you elaborate on those concerns, for the record?

Calum Steele (Scottish Police Federation)

Certainly. The first thing that I should say from the SPF’s perspective is that we have absolutely no objections to the sentiments behind the bill, as is set out at some length in our written submission.

Where we differ from various sides of the legal profession—whether it be the Crown Office and Procurator Fiscal Service or bodies that represent defence organisations—is in the fact that the Police Service of Scotland and police officers are going to find themselves in the middle ground. There is a fundamental difference between having physical evidence and interpreting whether something might amount to a form of psychological abuse, so that will create new difficulties for police officers. I am not saying that such difficulties are insurmountable—I dare say that the service has already given some thought to the training implications of having to deal with such circumstances—but the point is that at these very early stages we just do not know what such training might be, or how police officers will be expected to deal with those circumstances.

John Finnie

Reference is often made to the joint protocol between Police Scotland and the Crown Office and Procurator Fiscal Service, so I had a look at it. I acknowledge that this relates to counter-allegations in domestic abuse cases. I note that with regard to the list of factors that could be taken on board in such circumstances the protocol says:

“Careful consideration should be given to all relevant factors including ... officers’ professional judgement”.

Is not it the case that officers will not be asked to do anything different from what they do at the moment with regard to the immediate situation, and that subsequent inquiries might well have to be made?

Calum Steele

That might be the case, but what we have before us are draft proposals that, as I have said, will move us away from physical evidence to degrees of interpretation of intent. It is easier to infer intent if there is a physical act—for example, if I were to swing a punch and miss—but if there is no direct evidence other than the complainer’s allegation, having to show intent with regard to, say, alleged withholding of money or constant belittling of B by A, to use the terminology in the bill, creates a potential difficulty for police officers.

John Finnie

I understand that it is unlikely that a course of behaviour would be established instantly on attendance at the scene. I am trying to understand how what is proposed differs from the situation at the moment, as I understand it, whereby police officers attend a scene, there would be liaison with the Crown Office and Procurator Fiscal Service and then an inquiry would be done on the background of the alleged perpetrator. That process has brought to light some historical cases in which a perpetrator has moved from household to household, creating mayhem. That is not something that would be immediately apparent on arrival at the locus but would be established by diligent inquiry by police officers.

Calum Steele

Again, I accept that that might be the case. However, at the risk of going back to points that were made in a previous evidence session on the role of the Crown Office and Procurator Fiscal Service, I will say that the operational experience of police officers in some instances is that the professional judgment of those who work in the legal and prosecution spheres is not as available to them as the joint protocol might suggest. That view appears to have been supported by other witnesses—in particular, witnesses who work in the legal profession, including some anonymous procurators fiscal who provided evidence.

John Finnie

Right. Is it fundamentally a resource issue? You previously mentioned training.

Calum Steele

As you well know, Mr Finnie, when it comes to policing, it is always a resource issue. In many ways—just to digress slightly—the events of recent weeks have served to reinforce that point.

However, in the event of the bill being passed, once we understand what training is to be delivered to police officers and how that is expected to be worked through in terms of practical application, we will better understand whether the police service will have in place the capability to deliver the training properly in order to enable police officers to respond effectively to the needs of victims.

John Finnie

I would be concerned if there was a suggestion that we could not rely on a police officer’s judgment in situations such as those that we are discussing. What is proposed would add a string to the bow of police officers in dealing with a pernicious course of conduct in domestic abuse. I am sure that your members will rise to the occasion, should the bill be passed.

Calum Steele

I am sure that you will attest from your experience that police officers are more than able to deal with difficult situations, provided that they have the capability and the training to do what is asked of them. Police officers have lots of life skills on which to draw, but their ability to draw on them is occasionally somewhat curtailed because of an expectation that if A happens, B, C and D must follow. That does not provide—I am not saying that it should in all cases—unfettered discretion for police officers to deal with what they find before them.

Of course there will always be requirements for undertaking subsequent or additional inquiries; very rarely do we come across an incident in which everything is packaged before us to the extent that we do not have to undertake further examination. That is particularly the case with regard to domestic abuse cases, in which it is unlikely that the first occasion when the police are called is the first occasion when domestic abuse has happened. Of course, because of the way in which the service has developed over many years, particularly in relation to the work of the domestic violence task force, in undertaking retrospective examinations and seeking witnesses, the police have the capability to gather that additional evidence.

However, we need to see what the proposed training will look like. We need to ensure that the police service is going to invest properly in it. We do not want police officers to find themselves ill-equipped and unprepared for dealing with the requirements of new legislation, because they could, ultimately, find themselves in a difficult situation when a case came to court.

John Finnie

Thank you.

The Convener

I want to ask a bit more about how the bill might impinge on the role of officers. You said in your written submission, Mr Steele, that there could be cases in which police officers would be dragged into the “reasonable person” test.

Calum Steele

The “reasonable person” test is not unknown to police officers; in fact, it is very common in United Kingdom legislation and in legislation that the Scottish Parliament has passed. Such a test applies to careless driving, for example, so the notion of reasonableness is not new. However, the important point is that, in many instances, the “reasonable” assessment is drawn from an event or a series of activities that has been physically witnessed or which other visual evidence supports. That evidence is much more difficult to obtain in cases in which there are forms of psychological abuse.

Mairi Evans (Angus North and Mearns) (SNP)

I want to focus on a couple of issues that were raised during last week’s evidence session, in which we heard from the Faculty of Advocates and the Law Society of Scotland. They highlighted potential problems in prosecuting crimes under the proposed legislation. They gave the example of a case in which the victim is not a witness, because the person does not believe that they are the victim of a crime, so they are not able to give evidence. Do you see any difficulties in prosecuting in such a scenario, in which the case depends on third-party evidence, rather than on evidence from the person who experienced the crime?

Anne Marie Hicks (Crown Office and Procurator Fiscal Service)

In most cases that involve harm—domestic abuse cases, cases that involve assault of a member of the public and so on—the complainer or victim provides the primary evidence. That is the case across the board and, certainly, in domestic abuse cases, but there could be a case in which the complainer is not a witness. If the complainer is not a witness, there would have to be sources of evidence further afield to see whether someone else had witnessed something. That person could be a friend, a family member or a child in the family. If something had happened in public, that person could be a member of the public or a neighbour. Other sources of evidence would have to be looked for. It is unusual, but it happens. We would have to apply the same test that we currently apply to corroborating evidence.

Mairi Evans

Another concern that was expressed last week was about the admission of hearsay evidence, on which it was proposed that there is a danger in asking non-expert witnesses to express opinions in court. Currently, they are not allowed to do that. I am thinking in particular about coercive and controlling behaviour. If a person can see such behaviour towards somebody else, see its impact and see the victim’s behaviour changing, they can try to express that in court without the victim giving evidence. What are your thoughts on that scenario? Do you see any difficulties with that?

Anne Marie Hicks

Obviously, that introduces quite a novel and groundbreaking concept in terms of “relevant effects”. As Mr Steele said, we are more used to looking at harm that has been caused by assaults, or at threatening and abusive behaviour, where there is perhaps something more concrete, but we would still have to gather evidence on those other behaviours, and we would not look for other witnesses to give expert or opinion evidence on a person’s psychological state. They would give evidence of behaviours that led a person to be distressed. Someone might speak about what they had witnessed a perpetrator doing and how the victim reacted in that particular situation, or about something else that they had witnessed. They would not give expert or opinion evidence; they would simply speak about what they had seen, heard or observed themselves. The position would be no different from the current hearsay provisions.

Mairi Evans

Another concern that we heard last week was about the broad definition of “abusive behaviour” and the fear that the proposed legislation might criminalise or capture behaviour that it is not intended to capture. Does it need to be more tightly defined, or do you agree with the current definition?

10:15  

Anne Marie Hicks

I am supportive of the current definition. Dealing with domestic abuse has always been a matter in which people have said that there is a danger that we stray into family life. Even under the current law, it is sometimes asked whether we criminalise normal behaviours in a relationship. We do not, and I do not think that the bill does that. It defines “abusive behaviour” as behaviour

“that is violent, threatening or intimidating”.

It also defines it in terms of “relevant effects”, which include

“controlling, … frightening, humiliating, degrading or punishing”

someone. That is not how I would define normal friction in a relationship. Once we get to the boundaries of “humiliating, degrading or punishing” treatment, that is where the criminal law should step in.

The Convener

Perhaps someone will bring that up later, so we will move on.

Ben Macpherson (Edinburgh Northern and Leith) (SNP)

I will touch on some of the points that were raised in answer to Mairi Evans and some of the points that are made in Anne Marie Hicks’s submission, which states:

“The proposed offence addresses a gap in existing law by recognising that domestic abuse may not only damage or violate a victim’s physical integrity; but may also undermine a victim’s character, restricting a victim’s autonomy and freedom and their ability to live their life in the manner they choose.”

Will you expand on why a new, specific offence is important to cover that behaviour?

Anne Marie Hicks

Absolutely. At the moment, we are limited to offences that, in essence, attack someone’s physical integrity. It might be an assault or threatening and abusive behaviour. Those are properly criminal offences, but there is a gap in relation to much of the controlling and coercive behaviour, which might be very degrading, might be humiliating and might involve a tremendous abuse of power and control. Someone might be controlled in their everyday life and no longer have the freedom of action to go out and do what they would normally do and to make the normal choices that you and I would take for granted.

When those behaviours become threatening or abusive, we can use current legislation but, in many cases, we cannot. We know that such behaviours take place. We hear directly from victims all the time about the behaviours that amount to abuse of power and control but we cannot take action in respect of them. Therefore, there is a gap in respect of addressing such behaviour. The problem is that the law deals with it only in an episodic manner. We look at discrete and isolated incidents of assault or threats but do not see the bigger picture and the continuing pattern of cumulative abuse to which people are subjected. That cannot be right.

Ben Macpherson

One of the key parts of the bill for addressing that gap will be the definitions and how prosecutors and courts can use them. One of the concerns that other witnesses have raised is the inclusion of recklessness at section 1(2)(b)(ii). What is your view as a prosecutor on the inclusion of recklessness and its relationship with the aspect of mens rea in criminal law?

Anne Marie Hicks

Recklessness is not a new concept. We have it in a number of other areas of law. We have had a crime of culpable and reckless behaviour for years. We also have a test of recklessness in the offence of threatening and abusive behaviour under section 38 of the Criminal Justice and Licensing (Scotland) Act 2010 and the stalking offence under section 39 of that act, which describes it as being when someone

“knows, or ought … to have known,”

the effect of their conduct.

Prosecutors are familiar with the concept and it can be useful, particularly in cases in which it is not easy to establish intent. Intent in terms of the mens rea that we have to prove can usually be inferred from the actions of an accused. It is easy to establish intent if there is an assault or threats are issued but, particularly where we are dealing with more nuanced behaviour, the concept of recklessness is valid.

It is important to note that it is not recklessness in the way that you or I might regard it in our ordinary lives—as a kind of carelessness. It is a criminal recklessness. It is a criminal disregard in which the person disregards the possible consequences. The courts are used to applying those tests, as are prosecutors. When we deal with a lot of different types of nuanced behaviour, as we will do under the bill, it will be useful to have the concept of recklessness. We have seen that with the stalking offence, which includes other types of behaviour that were perhaps not traditionally criminal. Recklessness has been a very important concept in that.

Ben Macpherson

For clarity, are you saying that you support the inclusion of the word “reckless”?

Anne Marie Hicks

I absolutely do. It would be difficult not to include it.

Ben Macpherson

The Crown Office and Procurator Fiscal Service said in its written evidence:

“Domestic abuse remains chronically underreported in Scotland and there are a number of complex reasons for this. It is anticipated that the introduction of a bespoke offence will raise awareness and confidence in Scotland’s criminal justice system to effectively respond to victims of domestic abuse.”

How important is that wider point about social change and the expectation that the bill, if it is passed, will have a positive impact on the reporting of domestic abuse, by encouraging victims to come forward who previously would not have done so?

Anne Marie Hicks

It is incredibly important. When there are sound laws and effective enforcement, people have the confidence to come forward.

There is something about calling people’s experience what it is, as we saw with the stalking offence. In the first year after that offence was created, 67 people were prosecuted for it; five years later, nearly 800 people were prosecuted for it. There is something about people recognising behaviour and naming it for what it is.

A lot of victims of domestic abuse say, “I’m not a victim of domestic abuse, because he doesn’t hit me.” Scottish Women’s Aid will tell you that that is very common. We can shine a light on the experience and say to people, “The law of the land recognises that the behaviour to which you are being subjected is wrong and unacceptable, and you can come forward.” In a number of cases, new legislation has been a positive driver in encouraging people to report the harm that is done to them.

Ben Macpherson

Thank you.

The Convener

Does Lesley Boal want to add anything?

Detective Chief Superintendent Lesley Boal QPM (Police Scotland)

Let me respond to what Calum Steele said about police officers and new legislation. What we are talking about is new legislation but not a new concept. We receive reports of coercive control and have done so for many years. Since the inception of Police Scotland, 1,893 high-tariff offenders have been investigated by the national domestic abuse task force, and I am told that nearly all those cases involved coercive control.

On the suggestion that officers might find it difficult to identify psychological harm, I think that officers already do a very good job at that and have done so for many years. We are talking about domestic abuse just now, but we can consider other areas. The threshold for child protection is that the child is or might be at risk of significant harm, and officers are able to discuss and make judgments about harm in that context. The Children and Young Persons (Scotland) Act 1937, which police officers and prosecutors have all dealt with, refers to the “likelihood” of some sort of psychological harm.

Officers look for wellbeing concerns on a daily basis. Over the past 10 years, the getting it right for every child approach has involved making a holistic assessment of a child and the potential for harm. That is something that police officers do on a day-to-day basis and are well equipped to do.

Police Scotland introduced a domestic abuse questionnaire last year. In every domestic abuse incident, the victim is asked a series of questions—there are 26 questions, with some sub-categories—in an attempt to establish, more holistically, the circumstances of their life. For example, they are asked whether the perpetrator has every hurt a pet or animal, and whether he has ever used weapons or objects. They are asked whether financial harm has been done to them and whether they are dependent on the person for money or something else, and they are asked whether there are mental health problems and whether there have been suicide attempts—they are asked about all the risk factors that can provide the officer with more knowledge with which to make an assessment about harm.

As John Finnie suggested, the first responding officer might not get it right on every occasion, but that is why we have built in a series of checks and balances. For every domestic abuse case or incident that is reported, as well as a questionnaire form, a domestic abuse concern form is raised. If there is a child in the house, a child concern form is raised as well, to comply with GIRFEC.

Those forms are checked by the supervisory officer, so I suppose that we are talking about belt and braces, and before the officer finishes for duty that day, they are submitted to the divisional concern hub. That happens in each of the 13 divisions. The hubs look holistically at all the domestic abuse and child and adult concern forms that are submitted. They look at other concern forms that we might have and try to pick up on information patterns or escalations.

That approach is belt, braces and stay-up trousers, I suppose. Three different assessments are being made as to what an incident actually looks like and what the implications for the victim are. After that, there could be a referral to the domestic abuse liaison officer, and, with the person’s consent, there will be referrals to support and advocacy services. The domestic abuse liaison officer may visit, along with support services. The case might be referred to the multi-agency tasking and co-ordinating meeting, which looks at perpetrators, as John Finnie said; that bit is about looking at what is happening now and looking backwards, and gathering evidence from a range of individuals to see exactly the coercive behaviour that is involved.

The difficulty at the moment in being able to have a holistic perspective on someone’s abusive behaviour is that, when we investigate—as Anne Marie Hicks clearly said—we might have to charge for single incidents and single offences. I know that this is a new bill, but what is in it is not anything new. Police officers are well equipped. I agree with Calum Steele that we need to do more; we have plans in place to do more and we will do more. Some comments have been made about there being too many hurdles. With the bill, together with good guidance and explanatory notes, we can overcome those hurdles.

The Convener

It has been helpful for you to put coercive behaviour in context and tell us how you look at the various pointers.

Rona Mackay (Strathkelvin and Bearsden) (SNP)

I will expand the discussion a bit and ask about the impact of domestic abuse on children. We have received quite a few written submissions that say that the statutory aggravator in relation to children might not be wide enough in scope. I note that COPFS is very supportive of the bill generally and of the statutory aggravation. Should the aggravator be more specific to protect children in cases where, say, a child is being used as a pawn or is being subjected to hearing the abuse from another room?

Anne Marie Hicks

The aggravation is a very positive step in increasing the visibility of children in the process. It is an area that we and the police considered carefully while working on our joint protocol, which was launched less than two months ago. As part of that process, we consulted children’s stakeholders. A recurring element of feedback from children and those who represent them has been the need for children to be more visible in the process, so we introduced provision to ensure that children are spoken to when an incident occurs to find out from them what happened, and provision for things such as special measures, obtaining children’s views and joint investigative interviewing.

Having an aggravation—something that allows a sentencer to enhance a sentence—is a positive move. At the moment, if an incident such as an assault were to occur in front of a child, I would expect a sheriff to comment on that and perhaps to take it into account. However, there is no formal mechanism for doing that or for increasing sentences, and it is important that we have that.

10:30  

The terms of where the aggravation applies are quite wide ranging and capture most situations, including directing behaviour at a child, which could be any manner of behaviour or abuse; making use of children to perpetrate abuse on the victim, which we hear about quite a lot; and allowing children to see, hear or otherwise be present during an incident. Those factors could truly aggravate a sentence and could lead a sentencer to say that the accused had in some way acted in the knowledge that children were affected and that there was a degree of deliberateness in their conduct.

We have had discussions with children’s stakeholders about the development of the bill and I fully accept that they would like it to go further and to have an offence of domestic abuse involving a child. They have very compelling points to make about the harm to children, and I would in no way say that everything in the bill captures all the harm that is ever done to children in domestic abuse situations. The harm can be wide ranging and long lasting and can affect them in many ways. This is about reflecting on an accused’s conduct and capturing what a sentence could truly be enhanced for. If the offence of domestic abuse is for partners or ex-partners, it is problematic to have an offence of domestic abuse involving a child. There are difficulties with that.

I am reassured by wider moves that have been made. Lesley Boal referred to the section 12 offence in the 1937 act and there have been concerns expressed in a number of quarters about that, so I am pleased that there will be consultation on that and on how we fully capture other harms that are done to children. There could be further developments down the line, but what we have now is a positive step forward.

Detective Chief Superintendent Boal

Having been the lead for child protection for Police Scotland for the past three years, I am acutely aware of the devastating impact that domestic abuse can have on children. If I am honest, when I first took over the domestic abuse work a few weeks ago, my initial thought was that there should be a separate offence for when a perpetrator uses a child as a proxy. I quite agree about having an aggravator for when there is a child in the household, but I initially thought that there could be another section to cover when the perpetrator’s intention is to use the child to further the coercive control of his partner or ex-partner. However, I absolutely understand the reason and the rationale for the bill. It is designed to capture the nature and dynamics of the relationship or ex-relationship. I am fully aware—as I have been lobbying for it for some time—of the need to change section 12 of the 1937 act and I am aware that the Scottish Government is looking at that in depth.

Rona Mackay

Are you of the opinion that, at some time in the future, it should be a separate offence?

Detective Chief Superintendent Boal

Absolutely. It definitely should be a separate offence. On whether it should be in this bill or in the new proposed legislation that is being designed specifically for children, on balance I think that it would probably be best to wait until the other bill is developed a bit more, as the wording will be quite complex and tricky. I am very happy that the aggravation is in place and we strongly support that.

Calum Steele

My view is similar to that of Lesley Boal. In many ways, there is a need for the aggravation when children are utilised as pawns in abusive relationships, so it is more than right and proper that that particular kind of aggravating behaviour is recognised and made known to the courts. Although adults can be more robust, regardless of the circumstances in which they find themselves, the effects on children, who are at the very outset of their lives, can be much longer lived.

Mary Fee (West Scotland) (Lab)

What are your views on the inclusion of other types of family abuse? We have had suggestions that abuse by an adult child of a parent should be included. Do you share that view, or should that type of abuse be picked up by other legislation?

Anne Marie Hicks

I do not share that view. In England and Wales, the definition of domestic abuse has been widened to include familial abuse, whether that is abuse between siblings, abuse of the elderly or abuse by parents of children. There were perhaps good reasons for that—I was not privy to the discussion—but I am convinced that we should maintain our definition and the scope of the bill. There are a number of reasons for that. We have a national definition of domestic abuse that is widely shared and worked with by a number of agencies. That definition is based on the gendered approach and the acknowledgement of the inequalities in violence against women. When 80 per cent of our domestic incidents still involve abuse of women by men, I would be very reluctant for us to move away from that definition, which refers to partners and ex-partners.

The Crown Office and Procurator Fiscal Service definition, which we share with the police through the joint protocol and which has been in place since before 2004, refers to partners and ex-partners. The definition is also mirrored in criminal and civil legislation, in the Domestic Abuse (Scotland) Act 2011 and the Abusive Behaviour and Sexual Harm (Scotland) Act 2016. It would be difficult to move away from the definition, and it would not be the right thing to do, given the steps that have been taken over a number of years to increase public awareness of domestic abuse and what it is. We have to acknowledge that domestic abuse involves unique dynamics, and there is a large research and evidence base to support that.

That is not to say that there are not other types of abuse of individuals that have similar characteristics and can also be heinous, and it is not to say that those things are any less serious. However, if we call everything domestic abuse, there is a danger that we dilute it and lose the focus of what we are doing. Suddenly, it might become less important and people might not understand what we are dealing with. We are not saying that, if there is harm in another situation, we should not address that, but the focus on domestic abuse should remain firmly on partners and ex-partners.

Mary Fee

That is very helpful. Lesley, do you want to comment?

Detective Chief Superintendent Boal

I cannot add anything to that. We absolutely support the current position that the bill is about domestic abuse between partners and ex-partners.

Calum Steele

Similarly, I concur with Anne Marie Hicks. That in no way diminishes the fact that, where adult children abuse their parents in whatever shape or form, that is a serious issue. However, there has to be a complete distinction between that and domestic abuse as we currently know it.

Mary Fee

I will ask Calum Steele about something in his submission that gave me food for thought. You say:

“the apparent policy approach to domestic abuse is one geared almost exclusively towards punishment.”

With a lot of other crime, although not all of it, we talk about rehabilitation, reforming and changing behaviours. The Government has talked a lot about early intervention and working with offenders. In relation to domestic abuse, and as the bill progresses, do we need to think more about how we deal with people who commit such crimes and how we change their behaviour? With domestic abuse, none of us wants repeat offenders or an escalation of the behaviour.

Calum Steele

We did not make the observation to detract from the issues that the bill tries to address. I cannot think of any such legislation that does not have at its core punishment in some way, shape or form, whether that is imprisonment, fines or whatever. The comment was more a general observation that, as a nation, we seem to be dealing with the issue almost exclusively through the punishment arena rather than through the approach that we take in other areas. For example, on driver behaviour, we try to introduce some form of rehabilitation and awareness of behaviours that are wrong.

That issue is hugely distinct and separate from the bill that is before us. No matter what the behaviour is and no matter how bad it is, we cannot think that the only way to deal with it is through punishment, because that would be fundamentally at odds with the message that we send in a variety of other areas.

Anne Marie Hicks

I do not agree that our approach is about punishment. From the Crown’s perspective, the driving force is protecting the public and preventing future harm. The national strategy “Equally Safe: Scotland’s strategy for preventing and eradicating violence against women and girls” recognises the importance of having appropriate laws and robust and effective enforcement and prosecution. The bill will be another tool in the toolbox to help us to prevent harm. Although there is a punishment aspect to it, punishing offenders is not the driver for it.

Detective Chief Superintendent Boal

In 2016-17, Police Scotland recorded just under 58,500 domestic abuse incidents, of which 49 per cent resulted in one or more crimes being recorded. We know from the crime and justice survey that just under 20 per cent of domestic abuse incidents are reported to the police and we know, from research that support agencies have done, the time that it takes for somebody to first disclose domestic abuse.

Calum Steele is probably correct in what he said about legislation and enforcement. We need a long-term national campaign to prevent domestic abuse that challenges social norms and highlights to potential victims, perpetrators and bystanders the legislation and its enforcement. That is exactly what the equally safe strategy is working to achieve. An awful lot of work is going on; legislation and enforcement are only one important part of the whole prevention strategy.

Mary Fee

There have been a number of public information broadcasts and awareness-raising campaigns on domestic violence. As the legislation is implemented, do you think that there should be a longer-term strategy?

Detective Chief Superintendent Boal

I do. It might be a 10-year strategy, which has to cover all the component parts. Bystanders are really important in challenging social norms, and information has to be provided consistently rather than sporadically. I see the strategy as being like a golden thread; people will learn through osmosis. The strategy has to be well thought out and has to cover all the component parts of domestic abuse.

Mary Fee

Societal change takes a long time, so we need a long-term strategy.

Douglas Ross (Highlands and Islands) (Con)

I will follow up John Finnie’s question. Mr Steele, you said back in November that couples could no longer have a row without one of them leaving in handcuffs if the police were called. Do you stand by that statement and do you think that that approach will continue under the bill?

Calum Steele

For complete accuracy, I think that I said that things had almost got to the stage where that was the case.

On where we are, I do not think that things are as extreme as they once were. It is right to identify that such concerns were raised not just by me on behalf of police officers but by defence agents and others, too. I do not think that those concerns exist to the same extent. In truth, the approaches to the awareness of domestic violence have caused a ripple through Scotland.

10:45  

The former chief constable Sir Stephen House was strong in the focus and emphasis that he put on the issue during his time with the former Strathclyde Police, and it took a while in Police Scotland for the rigour that was applied to catch up with and meet what was a fairly universal standard. Officers in some areas were still working towards what had by then been a long-developed understanding of the process for dealing with domestic abuse, which had matured during Sir Stephen House’s time, particularly at Strathclyde Police, but they eventually caught up in the rest of Scotland.

I still think that, on occasion, there is a danger that what someone has described as ordinary domestic friction can result in unnecessary intervention by the police. That is always a difficult situation. I know about and have direct, second-hand and third-hand experience of such matters; my members have articulated to me a series of circumstances and events in which, when we understand the background, it is difficult to understand why someone had to be arrested and leave the family home in handcuffs.

For example, I am aware of a situation in which one partner had mental difficulties, and the other partner phoned the police because they were aware that there was likely to be disorder in the house that evening, which sure enough was what happened. The police came along and the partner with the mental difficulties ended up leaving in the proverbial handcuffs. Subsequently, that person appeared from custody and, under their bail conditions, they were not allowed to return home, which meant that they had to find temporary accommodation. However, none of the temporary accommodation would allow that individual to keep the pet that was the only source of comfort to them. As I understand it, that case did not proceed.

There will always be such horrific individual examples, but I do not think that that should in any way suggest that the Scottish Police Federation is anything other than supportive of a strong and robust approach to domestic violence. However, on occasions when, with the best of intentions, we get things wrong—or are seen as getting them wrong—it is important that the service supports the officers who have made those decisions and that we say sorry if we have to.

Douglas Ross

Does Lesley Boal from Police Scotland recognise what Calum Steele just described? Does Police Scotland accept that the scenarios that he outlined occasionally happen and might continue to happen under the bill?

Detective Chief Superintendent Boal

I do not want to comment on the specific incident that Calum Steele mentioned, because I have no knowledge of it.

Douglas Ross

If the federation is saying that that is what officers are telling it, do you on behalf of Police Scotland accept that that sort of thing is happening?

Detective Chief Superintendent Boal

The guidance that Police Scotland provides to officers has never said anything other than that they should investigate in order to obtain a sufficiency of evidence. When there is such a sufficiency, the individual may be arrested and reported to the procurator fiscal.

I appreciate that there might have been misunderstandings when Police Scotland began, but the domestic abuse task force and the domestic abuse co-ordination unit have been doing significant work to provide guidance and aid understanding. Each division in Police Scotland has a domestic abuse forum where local policing officers from divisions meet to discuss difficulties, misunderstandings and how policy, practice and standard operating procedures can be adapted to particular circumstances or difficulties.

That work is on-going, but there is probably more guidance and more of an opportunity for liaison, providing support and having interaction on domestic abuse than there is in any other area of policing. Officers decide whether to arrest when faced with a particular situation, and they should make such decisions only if there is a sufficiency of evidence.

Douglas Ross

I will move on. I have a quote to put to Anne Marie Hicks that is similar to the one that Ben Macpherson asked her about. Her submission says:

“It is anticipated that the introduction of a bespoke offence will raise awareness and confidence in Scotland’s criminal justice system to effectively respond to victims of domestic abuse.”

In her answer to Ben Macpherson, Anne Marie Hicks said that we need to have sound laws and effective enforcement. Does that indicate that, at the moment, we do not have sound laws and effective enforcement?

That leads me on to Lesley Boal’s comment that what is in the bill is not anything new. I am struggling to understand how, on the one hand, the Crown Office says that the new legislation will encourage people to report domestic violence and coercive behaviour but, on the other hand, Police Scotland says that the legislation is nothing new.

Anne Marie Hicks

First, I would not read into what I said to Mr Macpherson the slant that you have put on my comment. In no circumstances am I saying that we do not have sound laws at the moment. The laws and enforcement that we have in place are robust and effective. We are talking about legislating for something new and something additional. That is not saying that we do not have sound laws; rather, we are saying that we recognise that there are other harms that are perhaps not captured, so there is a need to legislate.

Douglas Ross

Do you understand that my query is to do with Police Scotland saying that the bill is nothing new? We have legislation in place, under which the police could charge someone. That would have to involve separate bits of legislation, but the legislation is there to charge someone with committing such behaviour. You are saying that, because of the new legislation, people will be encouraged to act, but Police Scotland says that it is not new and that we already have it.

Anne Marie Hicks

No. I think that Lesley Boal was saying that the legislation is not new in the sense that it is not the case that we have never dealt with the concept of coercive control and never heard about controlling behaviour, which would mean that the bill was somehow a completely new departure. We are not at ground zero; we have all seen such behaviour. We hear about controlling behaviour in the statements for many of the cases that we get.

I set up and ran for a number of years the domestic abuse unit in Glasgow. Before we even knew from the research and the typologies about coercive control or intimate terrorism, we talked about such behaviour as a power-and-control domestic or as a bad-time-in-a-relationship domestic. We saw those cases coming through. We understand those issues.

As Lesley Boal set out, the police do a risk assessment when evidence of control comes in. People will not say, “Oh my goodness—this is a completely new concept I’ve never heard about.” Instead, there will be a new law to enforce that will help us to take action against coercive control. Coercive control is not a new concept. We see its impact day and daily through the distress that victims are in.

The Convener

Lesley Boal set out in quite a lot of detail the consideration of the context, such as whether there had been actions—for example, abuse of an animal—that were pointers that might have indicated that such behaviour was likely to happen. However, coercive behaviour has not been covered in the law.

Detective Chief Superintendent Boal

Absolutely. I am sorry if what I was trying to explain has been misinterpreted. My point is not that the concept is new or that we have never tried to identify the behaviour before. It is not new for police officers to assess the harm that could be caused. However, the bill is a new piece of legislation.

I agree with Anne Marie Hicks that there is a gap in the legislation at the moment. A lot of the behaviour, which is quite horrific, has to be addressed as a breach of the peace at best. My point related to Calum Steele’s position that the legislation will be new for police officers. My position is that we understand coercive control and that police officers have been able to capture evidence about it during their investigations for some time.

Douglas Ross

The paragraph that I quoted from the Crown Office submission continues:

“It is expected that this”—

that is, the new legislation—

“will have a positive impact on the reporting of domestic abuse and encourage some victims to come forward where they previously would not have.”

Everyone in the Parliament supports the bill, but is there a risk that, if someone who is living through what others would rightly equate to being domestic abuse genuinely believes it not to be domestic abuse, their mindset will not necessarily change just because we pass a bill in the Scottish Parliament? How do we address the concern that an individual who is living through coercive behaviour—unacceptable as that is to those of us in the Parliament and across Scotland—might not believe that the behaviour is domestic abuse? Will the legislation change the situation for those people?

Anne Marie Hicks

The legislation changes the situation for those people in a number of ways. You are absolutely right that some victims do not recognise coercive behaviour. A common syndrome of domestic abuse is that people minimise behaviour and blame themselves. They might not even recognise that they are a victim of abuse.

There is a multi-agency response to domestic abuse. If the police receive a case, they can offer the victim a referral to a support and advocacy service where one exists, to victim support—that applies for any victim of crime—or to a women’s aid centre.

When a new law such as the bill is introduced, not only victims and members of the public but those who work directly with victims of domestic abuse will understand that such behaviour is being criminalised. Organisations that are working with and supporting people will be able to encourage them to go to the police whereas, at the moment, there might be no typically criminal behaviour that organisations would encourage people to report. The situation will improve because of that.

My earlier point about the stalking legislation is important. I remember that similar arguments were made when that legislation came in. People said that stalking was different, that we were criminalising non-criminal behaviour, that we were interfering in personal life too much and that people would not come forward. However, 12 times more people have been prosecuted for stalking.

The phrase, “If you build it, they will come,” applies. The situation will not change overnight but, once people have confidence that something is in place that says that the conduct and behaviour that they are being subjected to are against the law, they will be encouraged to come forward. When they do, the police officers who deal with them will understand what is happening and will call that behaviour by its name, thoroughly investigate it and report it for prosecution.

The Convener

I return briefly to the robust prosecution of domestic abuse, which everyone fully supports, and to some of the anxieties about an overrigid interpretation of the law. That was raised in our inquiry into the role and purpose of the Crown Office and Procurator Fiscal Service, which all members are focused on, especially today, as we will debate our report this afternoon. At the time of our inquiry, the Lord Advocate said that he would look into the issue. I am conscious that there has been a fourth edition of the joint protocol between the police and the COPFS. Has that helped to ensure robust prosecution rather than overrigid interpretation of the law?

Anne Marie Hicks

I do not think that interpretation of the law has been overrigid. I appreciate that, at times, there have been comments and perceptions to that effect. We operate to presumptions for prosecutions, and there are good reasons for that. Historically, domestic abuse has not been dealt with well—it was overlooked as being just a domestic. Because of the harm that it causes to people, we have robust presumptions in place for prosecution, but they are presumptions.

Since I have been in post—it has been almost four years—training has been a big priority for me. I have introduced a considerable amount of new training for our staff, including a new accredited training programme for domestic abuse. A big focus of the training has been on the dynamics of domestic abuse and the circumstances in which people might properly rebut the presumption to prosecute. That is about looking at the bigger picture and seeing the context.

The launch of the joint protocol has been positive.

The Convener

We will pick up that point after the one-minute silence. I suspend the meeting to allow everyone to stand in preparation for that.

10:58 Meeting suspended.  

11:01 On resuming—  

The Convener

Thank you. We now resume our questioning. Anne Marie Hicks was answering about the fourth protocol.

Anne Marie Hicks

The joint protocol was launched at the end of March. It is the revised, fourth edition. We spent a considerable amount of time over a number of months consulting not just the Crown, the police and our internal staff but the key victim stakeholder organisations about it. We received incredible feedback from them, which helped to shape it. When we considered our approach to ensure that it was effective, we also took account of comments that were made during the committee’s inquiry into the Crown Office and Procurator Fiscal Service.

We have enhanced the protocol in a number of ways. It makes absolutely clear the requirement for a sufficiency of evidence and what that means, and it sets out that cases should not be reported to the procurator fiscal without sufficient evidence. It also sets out clearly what officers are expected to report when they report a case, not only evidentially but, crucially, in terms of the background information. Over a number of years, we have recognised that, if we do not have the full picture, we cannot make appropriate decisions. Therefore, we ask for information about the risk assessment that Lesley Boal spoke about, the previous history and the dynamics of the relationship and any previous incidents involving the parties around their children and around any vulnerabilities. There is a lot of enhanced information, which is also in a new standard prosecution report template that we have introduced with the police.

There have been many improvements that will enhance the way that we deal with domestic abuse cases.

The Convener

Does that give Calum Steele more comfort?

Calum Steele

As with all things, when policies are reviewed and revised, that invariably results in improvements. We are on the fourth protocol and I suspect that it will not be the last, because every day is a school day in this job. I am fairly confident that, when we find things that we can do better, although improvements will not necessarily happen immediately, we will get there eventually and improve what we can.

The Convener

That sounds encouraging. Does Lesley Boal want to say anything?

Detective Chief Superintendent Boal

The protocol is another step forward and a part of our continuous improvement. We may need another one in the future, but we are absolutely committed to ensuring that domestic abuse is a priority in Police Scotland. It has been and continues to be a priority. We are also committed to our response to victims and to ensuring that reports that are submitted to the Crown Office and Procurator Fiscal Service are of the best quality and have the best background information, so that everybody can make the best decisions.

Oliver Mundell (Dumfriesshire) (Con)

Several of the points that I planned to raise have been covered. I am sorry if I go back over some of them.

Given how novel the bill is and given the concerns that have been raised about the broad definition within it, do you think that it achieves the right balance in establishing legal certainty?

Anne Marie Hicks

I do. The relevant effects have been well defined. There is no catch-all such as we have in the stalking offence. The first part of the definition of abusive behaviour is about “violent, threatening or intimidating” behaviour, which would generally be criminal at the moment.

The relevant effects are based on consultation with key stakeholders and experts in domestic abuse, and I think that they capture the essence of what victims say about their lived experience of abuse with regard to their being made to be subordinate; being controlled, monitored and isolated; being deprived of their freedom; and suffering punishing and humiliating treatment. From the cases that we see and the cases that I have heard about, I think that that covers what we would be looking for in trying to prosecute these cases.

Oliver Mundell

Do you think that there should be a level of seriousness attached to that testimony?

Anne Marie Hicks

I think that all the cases will, by their nature, have a level of seriousness attached to them. In relation to the offence of domestic abuse, we are talking about not just a single incident but a course of behaviour that involves at least two incidents. Of course, in such a case, there are likely to be more than two incidents and people will be able to speak about a number of different behaviours, but the charge requires two incidents to be corroborated.

I do not think that you can impose an artificial threshold with regard to severity, because that is hard to judge. It is important to remember that the offence is about not impact but the perpetrator’s behaviour, regardless of whether that has an impact on the victim.

Oliver Mundell

That is partly what concerns me. When we start to look at recklessness, if there is no qualification regarding the effect, it can be difficult to examine the issue. The effect can change in different circumstances and different cases. Many individuals are in relationships in which the behaviour is not what most people would consider to be normal and can be quite unpleasant, but it does not quite get to the level at which it would be considered criminal. I am thinking of a case in which both parties are involved in some of the behaviours and the relationship stops and starts at different points, with different episodes throughout it. In that relationship, behaviour that might appear reckless when a police officer takes a first look at it might not have any effect on either of the two individuals given the context of that relationship.

Anne Marie Hicks

I do not think that there should be a requirement in relation to impact. What about situations in which somebody does not recognise the impact or in which there is an impact but there is no outward adverse sign of it? It is easy to demonstrate impact in cases in which there is a physical injury, but a lot of cases involve internal harms. For example, we might be dealing with a hidden crime whereby someone is going about their day-to-day activities without people knowing that, behind closed doors, they are a victim of domestic abuse. Their children might be getting to school on time and doing well at school, and the person might be a high achiever in their working life, so nobody would know what was going on. For those reasons, I do not think that there should be a requirement regarding the visible impact of domestic abuse on someone.

Further, there are a number of safeguards in the bill. First and foremost, the legislation applies to abusive behaviour as defined in the bill. As I said, I do not think that normal friction is covered by that definition unless we classify normal friction as behaviour that is designed to humiliate, frighten, degrade and punish, and I do not think that we would do that. Another safeguard is the fact that the course of conduct must be corroborated. There is also the objective test of whether the behaviour is considered likely to cause harm, and there is the provision regarding intention or recklessness.

The Convener

Before we leave this point, I want to ask a question about the threshold. Last week, one of our witnesses said that using the causing of fear and alarm as tests of abusive behaviour was fine but that using the causing of distress as such a test was setting the bar too low. He suggested that “distress” should be replaced with “serious distress”.

Following on from what Oliver Mundell said, if someone is arguing with somebody who is calling them names and they respond by calling them names back, they might be described as being distressed but that might be just a normal argument. Might using the phrase “serious distress” set the bar higher and provide a more reliable test?

Anne Marie Hicks

I do not think that such cases would get over even the first threshold. They would not be defined as involving abusive behaviour, so they would not get to even that stage. We are not talking about one-off instances; there has to be a course of behaviour.

On the objective test of the likelihood of harm being caused, the courts are used to looking at objective tests. There are objective tests for breach of the peace and in section 38 of the 2010 act, which looks at a reasonable person test and the likelihood of harm being caused. Those are not new concepts with which the prosecutors or the courts are unfamiliar. I do not think that a qualification about there having to be severe distress would add to the bill; indeed, it could detract from it and reduce the number of behaviours that we want the legislation to cover.

The word “distress” gives courts the flexibility to ask whether there is a likelihood of harm being caused in the context and whether there is recklessness or intent to cause harm. There are sufficient safeguards. We also have in place a defence of reasonableness, and prosecutors apply a public interest test behind that. All of that would prevent the bill from criminalising normal friction.

The Convener

Is that the view of the other panellists?

Detective Chief Superintendent Boal

Yes—absolutely.

Calum Steele

Legislation does not always get it right; if it did, we would not have appeal courts and high courts. I repeat what I said at the start: most sane and sensible people would fully welcome and wholly support the intention behind the bill as published. It seems to me, from listening to the Crown Office and Procurator Fiscal Service’s evidence, that the bars are not easily overcome. They are not there for the sake of ticking a box, I hope.

Oliver Mundell

That comment leads nicely on to what I was going to ask about. Given that the net has been cast wide and as much discretion as possible has been left to officers who are investigating cases and the courts further down the line, is there a risk that a lot of people who have experienced such behaviour will come forward without evidence of it, which will potentially undermine the effectiveness of the legislation? If people do not meet some of the tests, we will have made it clear that such behaviour is illegal but the legislation will not have overcome any of the problems with evidencing that behaviour, and people might feel disheartened or that pursuing their case is not worth while.

Anne Marie Hicks

The situation would not be any different from where we are at the moment. When people come forward, we have to operate according to the laws of the country and we need sufficient evidence. Currently, there will be cases in which the police are unable to report or the fiscal is unable to take proceedings because there is insufficient evidence. That can be difficult, particularly if people are absolutely convinced about the credibility of the allegation. We already have to deal with that. We have to manage people’s expectations and explain carefully why we have been unable to take action.

People will be disappointed at times but, if they come forward, the police have links in place with support agencies to signpost and refer them on. I sometimes talk about prosecution and police enforcement as opportunities for interventions. It is not always about just the case in court; there are opportunities for wraparound care, including referral to appropriate support. I hope that, even if a case is unable to proceed, people will feel more supported because they have been referred to appropriate agencies. There will be more partnership working around that.

Detective Chief Superintendent Boal

I agree with Anne Marie Hicks that there are challenges. Other crimes and offences—rape, for example—are difficult and challenging to investigate because of the need for corroboration. We are not saying that we will decriminalise certain crime types because they are difficult. We undertake robust investigations and ensure, as Anne Marie Hicks said, that victims are signposted to support services, whether that is a statutory health and social care agency or a third sector organisation for advocacy and support.

If the investigation does not provide a sufficiency of evidence, it is only right that we sit down with victims and explain why there was not a sufficiency of evidence. Although it might be disappointing, it is far better to do that than have a system in which we cannot report, investigate and prosecute individuals for what are described as horrific acts against a partner or ex-partner. There might be challenges on occasion, but that should not be a reason for not supporting the bill.

11:15  

Oliver Mundell

From your experience, do you think that there are sufficient resources to enable you to take on the additional workload? When changes have been made previously, a significant number of additional people have come forward to use certain services. Is there the capacity for that at present?

Detective Chief Superintendent Boal

As I said, tackling domestic abuse is a priority for Police Scotland and it will continue to be a priority. Our consultation on the policing 2026 strategy highlighted issues about responses to adversity and situational vulnerability, and Police Scotland is looking closely at where resources are to be vired in the future.

If the bill is enacted, discussions will include how we vire resources and how we ensure that there are sufficient resources to meet the needs of victims who come forward to report the specific crime of domestic abuse. I hope that in time, with a long-term prevention strategy, the various bits of legislation that were introduced last year and this new piece of legislation, there might be some form of deterrent to individuals committing such a crime.

Oliver Mundell

Would it be fair to expect a significant increase in the number of people who come forward? Will some dedicated additional resource need to be put into the area because of that?

Detective Chief Superintendent Boal

I hope that more people will come forward. We would welcome that, and we would encourage more people to come forward.

Calum Steele

On your specific question about resource, there is no doubt that, within policing, domestic abuse is the area that gets the greatest attention. It is also, understandably, one of the greatest draws on officers’ time because of the inquiries that they have to deal with and the processes and assessments that accompany reports of domestic abuse. As such, it is resource intensive. That is not a criticism; it is just the reality.

If we establish processes to encourage more victims to come forward, the pressure on those resources will only become greater. It is important to understand the holistic nature of policing. It is not just about attending to single incidents as and when they happen; there are many complexities that come up from time to time. This week alone we have elections, a particularly difficult football match to police and heightened awareness because of the current terrorist threat, with our communities expecting us to provide reassurance through patrols. We also have other crimes and offences to deal with.

Every time that something is added to the statute book, it creates additional resource and demand pressures on the service. Ultimately—I say this time and again—it is this place that has its hand on the cheque book and, when it comes to the allocation of financing to the police service, it is this place that determines how much of a priority it wants to make the tackling of domestic abuse. Simply handing that responsibility back to the service and telling the service to decide what to do and allocate accordingly is this place washing its hands of responsibility to some extent.

Anne Marie Hicks

We are absolutely committed to the bill. It was Lesley Thomson, the former Solicitor General for Scotland, who first called for it at our conference three years ago, and we are absolutely committed to it for the benefit that it will introduce. However, we acknowledge that it will be challenging, and we expect that there will be increased business and increased complexity of cases.

I am unable to be definitive at the moment because our budget after the current year is not known, but the Lord Advocate has made it clear that we will keep the situation under review and, if there is a need to ask the Scottish Government for further money to deal with it, we will do that as we do for other operational matters.

Liam McArthur (Orkney Islands) (LD)

I start by reassuring Calum Steele that the parish cup tie between Birsay and Sanday this Saturday should not be too difficult to police.

I want to cover some of the ground that Oliver Mundell has just touched on in relation to definitions and thresholds. A number of colleagues alluded to the testimony that we took last week from Andrew Tickell, who expressed some distress at us repeatedly getting his name wrong. I will quote him directly. In his written submission to the committee, he said:

“to prosecute an individual for ‘abusive behaviour’ under the proposed legislation, the prosecutor need only show that the accused has engaged in monitoring or controlling behaviour on more than one occasion which was likely to cause distress, whether or not any distress actually arose. While monitoring behaviour may give rise to substantial harm—even relatively minor episodes in a relationship clearly have the potential to give rise to ‘distress.’ To categorise this behaviour as criminally ‘abusive’ risks being dramatically excessive.”

Is he wrong to have those concerns? What reassurance can you offer him, based on what he said to the committee last week?

Anne Marie Hicks

Andrew Tickell has looked at the bill and taken a particular view. My view is formed not just by looking at the bill but as a result of my understanding of how we actually prosecute such cases.

As I said, I do not think that very minor instances—what we might class as normal friction—would even meet the definition of “abusive behaviour” at the very first hurdle. Beyond that, we would have to see a course of conduct, and it would have to be corroborated. There would then be the objective test of likelihood of harm and, on top of that, the mens rea. Even after all that, the prosecutor would apply the public interest test, and there is no public interest in prosecuting non-abusive behaviour.

Liam McArthur

You talked about not just actual harm or the risk of harm, which as Lesley Boal said is similar to the approach taken to child protection, but instances that involve distress. To me and perhaps to other members, that is a potential issue. You describe situations in which nobody would have any difficulty with someone being prosecuted with the full force of the law. However, to apply the law in areas in which distress has not necessarily been acknowledged or has not yet been caused would seem intuitively to set the bar too low, given the priority that is attached to cracking down on domestic abuse and the fact that the bill has been introduced to plug a gap.

Anne Marie Hicks

I do not think that it sets the bar too low. We have seen examples in domestic abuse case law in which distress is mentioned. It is not mere annoyance or upset; it would tend to be something more than that.

The danger in having a focus that is all about the impact—for instance, if the victim has to show that there has been a particular impact—is that it almost takes us back to where we were a number of years ago, in which a situation is not a domestic unless there is a battered woman with visible signs of abuse. We have moved away from that, and we are in more nuanced territory now.

We have to say that there is behaviour that is wrong and that creates a likelihood of harm. That includes distress; it could also include anxiety and other aspects. The bill simply says that psychological harm can include those things; it does not say that those things could be at a very low level. The court would have to determine whether there was a likelihood of harm in a broad sense.

Liam McArthur

In response to questions from Ben Macpherson and Douglas Ross, you talked about the anticipated effect of introducing the legislation and the need to encourage people to have the confidence to come forward, given that there may be a common understanding of what constitutes harm or serious harm. The understanding of what constitutes distress and anxiety may not be a low bar in the legal sense of prosecutors taking forward a case, but in common parlance it could be quite a low bar. People may have expectations about what complaints they can bring forward, but that will not necessarily have the effect that they would expect.

Anne Marie Hicks

I genuinely do not think so. People would consider psychological harm to be more than mere upset over a situation.

I go back to the fact that a particular instance would have to meet the test for abusive behaviour, and there would have to be a course of conduct. We are talking not about trivial incidents or one-off instances but about abusive behaviour.

The courts are used to applying an objective test of likelihood of harm and have no difficulty in doing so; every day, they apply the 2010 act’s test in section 38, “Threatening or abusive behaviour”, which is probably the most commonly used domestic abuse offence, although there is also breach of the peace. Courts will continue to be able to apply an objective test of likelihood of harm.

We will continue to learn, through case law, about how the court interprets the provisions, but there is a danger of taking too restrictive an approach. If we say that harm must be severe, what does that mean? Do people have an understanding of what severe distress is, as opposed to distress? That feels quite subjective. Such matters are properly determined by the court, having regard to the full facts and circumstances.

Liam McArthur

It has been suggested that, if intent or recklessness must be demonstrated, there is no need for a defence of reasonableness of the behaviour, because that would be incompatible with recklessness or intent. Can you explain why we have those two strands? I do not know whether they balance one another or are mutually supportive. Intuitively, I would have thought that if we need to demonstrate recklessness or intent we do not need the reasonableness defence.

Anne Marie Hicks

We have such a defence in a lot of our legislation. For example, there are behaviours that might technically be captured under the stalking offence, but there is an opportunity for people to say why the behaviour was reasonable. I think that the explanatory notes for the bill give examples around gambling or other situations in which deliberate action, which might appear to harm, might be taken for good reasons—

Liam McArthur

That would fall into the category of an intentional action. However, reckless behaviour is demonstrably not reasonable.

Anne Marie Hicks

Yes, and I think that most things would be captured by that. I do not have an issue with the defence of reasonableness, because I think that there should be an opening in that regard. We do not know what the scenario might be or what angle the defence might want to raise, so from the perspective of fairness it is useful to have a defence available that people can raise. I do not think that it will be engaged in every case.

Liam McArthur

Okay. Thank you.

John Finnie

I entirely agree with Mr Steele that rehabilitation is the direction in which we should be going. It is my understanding that practitioners in the field take the view that rehabilitation is inappropriate—as is mediation—when there has been coercive and abusive behaviour, because it can provide another opportunity for such behaviour to take place. Is that the panel’s understanding?

Anne Marie Hicks

There are many different types of domestic abuser and there is a lot of research on the people who might and might not be open to changing their behaviour. A lot of work has been done in the context of the Caledonian system, for example. Rehabilitation is not my area of expertise, but I take your point about mediation and diversion, which will be appropriate only in limited circumstances. We would not say that such approaches will generally be appropriate in domestic abuse cases, albeit that they might be appropriate in some circumstances.

John Finnie

The term “intimate terrorism” appears in our papers. In one respect, it is probably helpful in describing the behaviour, but given its connotations it might be unhelpful. Do people readily understand what “coercive behaviour” is? They will know what that conduct is if the term is explained to them, but do you envisage difficulties with the terminology in the bill?

Anne Marie Hicks

I do not think that the term “intimate terrorism” appears in the bill. It comes from Professor Michael Johnson, from America.

John Finnie

Just for clarity, it is mentioned in the financial memorandum.

Anne Marie Hicks

Yes.

Professor Johnson was over here a couple of years ago, when he spoke to a mixed audience of police and prosecutors at a meeting that we hosted at the Scottish Prosecution College. He sets out very well the different types of domestic abuse, which go from what he calls “situational couple violence”—the bad relationship, or the bad time in a relationship, when there are situational factors that provoke the abuse—to “coercive control” and “intimate terrorism”. I think that he came up with the term because many victims described feeling terrorised, often in their own homes, when they were subjected to stalking, monitoring and controlling behaviour. The term came from his research.

John Finnie

Do you see difficulties with explaining the purpose of the bill to those whom we want to benefit from it?

11:30  

Anne Marie Hicks

No. My view is based on speaking to Scottish Women’s Aid, and the women who SWA deals with daily talk about abuse and coercive control all the time. I think that people now have a much greater understanding of coercive control. I am sure that, if the bill is passed, there will probably be some publicity around it, as we have seen with other legislation, in order to enhance public awareness of it. However, the bill’s provisions reflect women’s lived experiences. I know that the committee has heard directly from some victims and I am sure that they all spoke about that. I do not think that people will misunderstand what the bill is about. The fact that the offence is described as engaging in a course of abusive behaviour means that people will be able to understand it.

John Finnie

Does it, in fact, highlight the importance of Scottish Women’s Aid and other support agencies?

Anne Marie Hicks

Absolutely. Scottish Women’s Aid has been campaigning for a number of years for abusive behaviour to be recognised criminally.

Detective Chief Superintendent Boal

Earlier, Calum Steele highlighted training issues. We have introduced the whole aspect of coercive control into training at the Scottish Police College. The initial probationer training now covers that aspect in its domestic abuse training and the senior leadership training and the supervisory training for newly promoted sergeants also include it. We have electronic training facilities through Moodle, to which Calum Steele referred, and two other mandatory training courses are done through Moodle: one is a domestic abuse questionnaire and risk assessment, which I mentioned earlier, and there is one on vulnerability.

In preparing for what I hope will be the enactment of the bill, we have been doing a lot of work on the specific training that all officers will need. We have been down south and have been liaising with SafeLives, a national charity that aims to end domestic abuse, and the College of Policing on its training material for when section 76 of the Serious Crime Act 2015 was rolled out, albeit that its provisions extend beyond the bill’s reference to abuse of a partner or ex-partner. We have looked at the training material on coercive controlling behaviour in domestic settings that has been developed by support groups and the College of Policing.

That all looks really positive. There is an issue about whether we deliver our own training or whether we ask support agencies to assist with the training. At the moment, we envisage the training being a whole-day course. Although it will be good to have a whole-day training course, we will also ensure that there is continued information and guidance for officers so that they absolutely understand what coercive control is and what the legislation will mean for them as front-line officers.

George Adam (Paisley) (SNP)

Good morning. Excuse me if I am going over old ground and labouring a point, but I am trying to get all this right in my head. I have been concerned a number of times about what might be the use of unfortunate language, although I might just have misunderstood the language that was used. Last week we heard about low-level abuse, but to me abuse is abuse and I cannot see it in any other way; maybe that is more an issue that I have. However, Calum Steele referred to ordinary domestic friction. To me that is about, for example, someone saying “Did you bring that pint of milk I asked you to get?” and the reply being, “No, I didn’t”: cue a 20-minute discussion about how they could not get that pint of milk. It is quite a leap from that to controlling behaviour and abuse.

I want to get this right in my own head. Is the point of the bill not to ensure that we get the seriousness of the abuse that is going on in some households and get to a stage at which we can ensure that those who need protection are protected and that those who are causing the abuse are found out?

Anne Marie Hicks

Absolutely—I agree whole-heartedly. The bill is not about trivial or minor offending; it is about patterns of abusive behaviour, and it sets out sufficient tests, thresholds and safeguards so that we can be confident about it.

George Adam

So I have got it right, then.

The Convener

It sounds like it.

Mr Steele, do you want to say something?

Calum Steele

Yes. I understand that there is a world of difference between ordinary domestic friction and abuse, but with all possible respect to Mr Adam, his example about a pint of milk probably trivialises the issue somewhat. When relationships break down, people sometimes have a difficult time and they can be particularly horrible to each other. That does not necessarily mean that, in six months’ time, with the benefit of hindsight, they would consider that any of their behaviour might have been criminal.

However, police officers might get involved at that particularly difficult time of normal domestic friction because of a breakdown of relationships. That happens. The police service is called and we find ourselves in situations where we are pawns in a domestic breakdown, rather than necessarily dealing with a situation of abuse. The allegations that arise from that can on the face of it appear to be criminal, but I suspect that, on a large number of occasions, with the passage of time, people would take the view that it is not a criminal matter.

George Adam

But you said in answer to John Finnie earlier that, when officers turn up, they can tell the difference between ordinary domestic friction and abuse. If there is an on-going scenario, nine times out of 10, you are pretty aware of the situation.

Calum Steele

That is not always the case, to be absolutely truthful. The first time that officers are called is often the first time that they are aware of an issue.

I am not in any way trying to undermine the seriousness of the issues that the bill is trying to address. However, as with all proposed legislation, it is important that we consider not just those whom the bill is intended to capture but those who might be caught unintentionally. It is important that a great deal of consideration is given to that latter element and that much attention is given to the training that will be delivered to police officers. Crucially, we must also consider the support that will be given to police officers if they end up being criticised for undertaking activities in good faith that then turn out to be subject to significant adverse comment at a later date.

Mary Fee

The bill will require the court to consider making a non-harassment order without the need for an application from the prosecution. From the information that we have, I understand that the granting of non-harassment orders is fairly infrequent. In 2015-16, 17,804 criminal cases were registered with a domestic aggravator in Scotland, but a non-harassment order was issued in only 767 criminal cases. Is there a reason why so few non-harassment orders are issued?

Anne Marie Hicks

Practice varies in the courts throughout the country. In the specialist domestic abuse courts, where sheriffs deal with domestic abuse cases day in and day out, we find anecdotally that we are more likely to get non-harassment orders.

We promote the orders in our guidance. The new joint protocol sets out that, in all cases of domestic abuse and stalking, prosecutors will consider the appropriateness of a non-harassment order. However, not every case of domestic abuse will require such an order, and it is important that we take the victim’s view. We have to recognise that, in some cases of domestic abuse, people want to reconcile, so they may not want a non-harassment order. Alternatively, the case may relate to abuse that happened in the past, so the victim may feel that an order is not necessary. We will always take the victim’s views on that and there will be occasions when people do not want or require an order.

The provision requiring a non-harassment order to be considered in every case is a positive thing. An order will not necessarily be appropriate in every case and will not be granted in every case, but if it is at least given consideration by the court that will be a positive step forward and we are likely to see an increase in non-harassment orders.

Mary Fee

Is there a resourcing issue attached to non-harassment orders?

Anne Marie Hicks

No, not in terms of their granting—not that I am aware of. Obviously, breach of a non-harassment order is a criminal offence in itself, so if there is an allegation that an order has been breached there are resource implications for the police, but the granting of orders does not have resource implications.

In feedback, victims often say that the non-harassment order—if they are looking for one—is the part of the sentence that they are most interested in, because they want that protection after the court case has ended.

The Convener

Might there not be a resource implication if consideration of non-harassment orders is automatic? A background report might have to be produced for every case.

Anne Marie Hicks

In all these cases, an extra background report would not be required; the court would ask the fiscal for input about the victim’s perspective. It is already in our guidance that we should obtain that information. When the police are reporting the case, they should provide us with that through the new reporting template for domestic abuse that we introduced. I do not see that there would be any change from what we are doing at the moment.

The Convener

We have not covered the provisions in paragraph 6 of the schedule on expert evidence relating to the behaviour of the complainer. That was raised in the SPF’s submission, which raises interesting issues. Will Calum Steele say something on that?

Calum Steele

The COPFS’s evidence this morning has gone some way in responding to that. As I understand it, the reference is to expert evidence not on what had occurred in the particular set of occasions, but on what the behaviour in its own right might amount to.

These are ultimately judicial considerations, rather than considerations for the police. However, there are potential issues in respect of how expert opinion can be formulated when it will only ever be gathered from one side of the account, unless there is a presumption that the accused will not have a right to silence—clearly that is not the case.

We put together our submission on the understanding that the provisions would be about expert evidence on the course of behaviour that was before the court. However, if I have understood the COPFS correctly this morning, the expert evidence will not be bespoke to the specific situation, but evidence on what the behaviours in their own right amount to.

Anne Marie Hicks

I should clarify two things. We would lead evidence as we would lead it now. It would be evidence from a range of witnesses and perhaps evidence from social media, telephony, closed-circuit television, neighbours, friends, family or the complainer. The evidential base will not change; we will have to look for sources of evidence.

The expert evidence provisions in the schedule relate to section 275C of the Criminal Procedure (Scotland) Act 1995 and the aim is specifically to bring domestic abuse in line with sexual offending. It is purely for the purpose of leading expert evidence to explain behaviour or statements in order to rebut negative adverse inferences about a witness’s credibility and reliability. Such expert evidence is commonly used in sexual offending cases to explain why people delay in disclosing or reporting.

One reason for our contacting the Scottish Government—separately from our consideration of the bill—to ask that expert evidence provisions be widened to cover domestic abuse comes directly from our advocate deputes prosecuting in the High Court. Frequently, they tell us that in sexual offence cases they use such evidence to explain why someone remains in a relationship even though there has been dreadful sexual abuse. That evidence is generic and can almost neutralise someone’s ability to draw a negative inference from certain behaviour.

There is a lot of research that shows that people do not always report incidences of abuse when they occur, but we do not have such a provision for domestic abuse cases. The provision is purely to allow us to lead similar evidence to explain why someone may have remained in an abusive relationship and why they did not report the abuse to the police. It is not about a wider context of leading evidence more generally. The reasonable person test and the objective test at the start of the offence is something that the court will interpret, with or without expert evidence. The expert evidence provision is purely about rebutting negative inferences.

The Convener

That is helpful. Does that allay your fears, Calum?

Calum Steele

It certainly helps to explain the issue. The fact that the provision is about general behaviours and activities, rather than the specifics before the court, means that it is not problematic.

The Convener

That concludes our questioning. I thank all the witnesses for a very helpful evidence session.

I suspend the meeting to allow the witnesses to leave.

11:45 Meeting suspended.  

11:47 On resuming—  

The Convener

Item 2 is our fourth evidence session on the Domestic Abuse (Scotland) Bill. I refer members to paper 1, which is a note by the clerk, and paper 2, which is a private paper.

It is my pleasure to welcome Dr Marsha Scott, chief executive of Scottish Women’s Aid, and Heather Williams, chair of SWA’s board of directors and formerly the manager of Ross-shire Women’s Aid. I also welcome Girijamba Polubothu, who is from Shakti Women’s Aid. I am grateful to Scottish Women’s Aid for providing a written submission; that is always helpful for the committee. We move to questions from members.

Mary Fee (West Scotland) (Lab)

Good morning. I am really pleased that you could all come and I thank you for the evidence that you have submitted.

I will ask a specific question about the effect that the bill will have on women from an ethnic minority background, because there is sometimes little understanding of the religious and cultural differences that separate women. From meetings with Shakti that I have had in another committee role, I know that there are specific issues around arranged marriage, honour-based violence and the family dynamic. I will start with Shakti. What potential does the bill have to impact on women from different cultural backgrounds?

Girijamba Polubothu (Shakti Women’s Aid)

First, I thank the committee for recognising coercive control; that is so important. I was just saying to Marsha Scott that, if a woman was asked to record the times that coercive control happened and the times that physical abuse took place, I am absolutely sure that we would see a large amount of coercive control happening, but we have not previously recognised coercive control—we always look for physical abuse and the bruises.

It does not matter what a woman’s culture or ethnicity is; we are dealing with gender-based violence. The perpetrators use the roles that we set for men and women. To assert his power, a man uses against a woman the role that society sets for a woman—to cook, clean, nurture and do all those things. We have to look at this first as gender-based violence; it does not matter what a woman’s culture or religion is or where she comes from.

All of us have to follow the legislation in this country, because we live in this country; we are not living in our country. I look at it as discrimination against black and minority ethnic women if the legislation is not followed.

I will raise two or three points about what happens to ethnic minority women under coercive control. When the woman is controlled, I would not say that there is blackmail, but the approach is more about the perpetrator telling her that if she does not do something—or does do it—he will harm her family abroad. That is not seen in the main stream, because most of the woman’s paternal family will live in her country. That fear is there.

Another thing that the perpetrator normally does is create rumours against the character of the woman or her female siblings. That will bring shame to the family and lead to honour-based violence. Sometimes men use that. When we talk about cultural things, that is what I would raise, but please do not look at the issue in that way; we should come back to gender-based violence.

Another thing that happens in BME communities and is not seen as much or at all in the main stream is dowry-related abuse, where there is constant demand from the perpetrator or his family members for the woman to bring in more money or expensive gifts from her parents. Sometimes, the parents are quite poor. They might have given some dowry at the beginning for the girl to get married and have a better life but, later, they do not have that kind of money. That is when things turn into physical abuse. I have not heard of any killings here but, in India and elsewhere, women are burned as part of dowry-related abuse, and sometimes they commit suicide. I look at that as murder, rather than suicide, because the woman has been forced into taking that action.

The bill will benefit ethnic minority women in another way. I do not know how many committee members know about the no recourse to public funds legislation and how it applies to domestic abuse, immigration status and the destitution domestic violence concession. If a woman is fleeing domestic abuse, she can apply under the destitution domestic violence concession, but the problem is that she has to evidence the domestic abuse and, when there is coercive control, she cannot produce enough evidence, because she has not told anybody what is happening to her. When she discloses to her closest relations, such as her mum or sisters, the abuse that has happened to her, that is seen as going back to the role of a woman and how society expects a woman to be—to cook and clean and all. For those reasons, her fears are dismissed. People say that that is her role and that her husband is just asking her to cook for him.

We have had cases where the husband wants the woman to stay size 10 all the time. The way in which he talks about that is, “It’s about your health. I want you to look pretty. I want you to wear these pretty clothes that I have brought for you.” At the beginning, the woman enjoys that, because she does not know what is happening, but the day when she is not feeling well or something and says no is when the physical abuse takes place. That takes us back to coercive control and how many times it happens, as well as physical abuse. If someone tells her mum, “He always buys stuff for me and wants me to dress up,” will the mum look at it as abuse? No. She will just say, “He loves you.” However, that is part of such abuse.

It is becoming difficult to evidence coercive control, so women are failing to get secure immigration status, which puts them at risk because, once they go down the destitution domestic violence concession route, they lose their current immigration status, which could come from a spouse visa. They are then supposed to be deported; they are supposed to leave. Can you see that that is like a carrot? There is this thing that women can do but, if it fails, they are in more trouble than before.

Mary Fee

Does Dr Scott think that there should be a way of reflecting in the bill the use of religious and cultural abuse almost as an aggravator to domestic abuse? Would that help?

Dr Marsha Scott (Scottish Women’s Aid)

I am sorry; I got distracted by my water. Let me just make sure that I understand—are you asking whether I think that there should be something in the bill?

Mary Fee

Yes—something that more explicitly reflects cultural and religious abuse almost as an aggravator.

Dr Scott

There is a crossover between the thinking about how we approach hate crime and the specific nature of domestic abuse. I support what Giri Polubothu said, which is that we need to remember that this is really about gender and that perpetrators use all kinds of things. They absolutely use culture, which includes familial permission giving and cultural permission giving.

I would be interested in expanding our approach to hate crime to include gender and allow some crossover with looking at how other protected characteristics are used to exacerbate existing abuse. Until we have a sound framework for thinking about gender and hate crime, it will be difficult to deal with that in the bill.

Mary Fee

Does Ms Williams have anything to add?

Heather Williams (Scottish Women’s Aid)

The experience that we had in Ross-shire concerned women from eastern European countries. As Giri Polubothu said, if women have insecure immigration status—there are issues for women from eastern Europe around the right to be here, particularly given Brexit, and around their right to access benefits and such things—that gets used against them. Men will say, “If you leave me, you’re not going to be able to stay here on your own.” That gets used against such women if they are not originally from the United Kingdom, but how the bill is set out and the factors that it looks at probably cover that. In response to the original consultation, we consulted women we were working with and the approach has expanded to cover the behaviours and tactics that abusers use. We need to look at this as part of the tactics that abusers use on the whole, as opposed to seeing it as something that sits separately. That is about the abuse; abusers will use whatever they can to maintain control.

Girijamba Polubothu

I do not know what Mary Fee meant by whether to include religious or cultural factors. We have to be mindful that we do not want perpetrators to hide behind their culture. That has happened in the past, when judges have said, “Oh, this is a cultural thing. That’s fine—it’s manslaughter, not murder”. That has happened, so we have to be careful when we think about including something about culture or religion.

Mary Fee

You are saying that a perpetrator could use that as an excuse to say that their behaviour was reasonable.

Girijamba Polubothu

A person might say, “This is my religion,” or “This is my culture.” We have to be mindful of that.

John Finnie (Highlands and Islands) (Green)

Good morning, panel, and thanks for your evidence. I particularly want to pick up on the references in the Scottish Women’s Aid submission to the human rights obligations that are placed on the Scottish Government and the comment that

“The Bill is not perfect”.

I know that practical experience will shape understanding. We heard last week from the police—I do not know whether you followed that evidence—that there is already awareness of controlling and coercive behaviour. It is important that we pass good and practical laws. Do you see challenges in policing the bill—if it is passed—in its broadest sense?

Dr Scott

The bigger challenge is policing in our current context. As we said in our response, the bill will chart new land—new legislative territory in Scotland. Implementing anything new is always a challenge, but the biggest risk to us is from not challenging the status quo.

Women have told us for 40 years that the impact and the traumatic effect of psychological violence and coercive control are worse by far than that of any other abuse that they experience. What kind of a risk-averse response would we have if we did not try to create legislation that reflected their experience?

I think that the Crown Office and the police—I followed their evidence session—are already working to address the challenge of reflecting coercive control in how they train their officers, deal with first-response calls and review cases for prosecution. The question is whether we will give them in the bill the tools that will allow them to do their job better.

I do not want that to sound like pie in the sky and I do not think that things will go terribly well right away. Because of how policy is implemented, it will also be years before we see the impact on policing. We have choices about whether we provide the police with the resources that they need to do a better job, rather than a worse job, on this, but the last thing in the world that we and the police are saying is that we should shy away from doing the right thing because we think that our police are not capable of policing it.

10:15  

John Finnie

Can I clarify what you mean by resources? Do you mean knowledge and the legislation?

Dr Scott

Thank you for that question. Our biggest concern, which is one of a number, is that we fought really hard for a coercive control bill for a long time, but we are very aware—as a policy geek, I am extremely aware—that a policy instrument is only as good as its implementation. We have a history in Scotland, as in lots of other places, of creating good policy but seeing little change in people’s lives as a result of it because we have not paid attention to the challenge and task of implementation.

The biggest worry about implementation is that there is a massive resource gap in training in Scotland for implementing the equally safe strategy. The police will have a big challenge not just of dealing with the new law but of addressing behaviour change at the coalface for police officers, providing support and supervision in their structures and undertaking partnership working so that social workers, healthcare workers and all those folks understand the challenge.

The bill could be transformative, but only if we pay attention to having a competent judiciary and legal system and to making the rest of the system fit for purpose. I am sorry that that was a bit of a rant, but I implore the committee to help in making sure that, when we put the bill through, there is a chance that it will actually transform the lives of women and children.

Rona Mackay (Strathkelvin and Bearsden) (SNP)

Good morning. I wanted to ask you about the defence of reasonable behaviour. I know that you expressed concern about that in your submission. Would you expand on your worries about that? You state that it could be open to manipulation by abusers.

Dr Scott

Absolutely. It is important for us to note that in the final assessment we were very happy with having the reasonableness test in there. We are worried, because one of the features of many domestic abuse perpetrators is that they seem rational, reasonable and righteous. If you were to look at a particular incident, for instance, the test of reasonableness would be scary for us because, often, from the outside an incident does not look like it is part of a pattern of coercion. The context of the bill reassures us, in the sense that we now have an opportunity—a demand, actually—for the criminal justice system to look at coercive behaviour and examine an incident in the context of that relationship. As we are confident that the vast majority of professionals, officials and, indeed, the public in Scotland do not think that it is reasonable to threaten your children, threaten to kill their pets, financially abuse them or do any of the things that we know are regular features of coercive control, we are content that, as long as the nature of the abuse is seen in the context of the relationship, the reasonableness test will be all right.

Again, it is about implementation. Prior to this session, Heather Williams and I were talking about the fact that we need to pay close attention to the threshold for reasonableness and distress and all the things that have been discussed at such length with the committee. It needs to be the same across Scotland. That means that, in rural and remote areas in particular, the infrastructure that supports understanding and the application of the law needs to be as robust as it is in the central belt, where we have lots more resources.

Rona Mackay

Was your concern mainly that what is reasonable behaviour would be open to interpretation in individual cases?

Dr Scott

The construct of the bill is sound. Again, the proof of the pudding will be in the understanding of the judiciary in interpreting the bill. I cannot bang on enough—I bang on about it a lot in public—about the importance of any sheriff or judge who is hearing a domestic abuse case having, even now, specialist training. Sadly, most of ours do not. In the context of this legislation, that is an even more critical need.

Heather Williams

Coming from a rural area, I think that what we have often heard, particularly with the current offence of stalking, is women saying, “Well, he was at the shop at the same time as me,” or, “He was in the same places as me.” We often hear, as an explanation of the reasonableness of that, “Well, actually, why wouldn’t he have been there? It is the only shop in the area”. However, when that happens all the time and that person is turning up in your environment, that can become very distressing. In rural areas, we hear, “Well, where else would he go?” or, “Why would that be a problem? You both have to live in the same small area.” That is already a concern in how current legislation plays out in remote and rural areas.

It is also about recognising the tactics that can be used by an abuser who lives in a remote and rural area through isolation. Maybe he is the only one who drives and he gets all the shopping. It makes sense because he drives and can get it on his way home from work, but what he is actually doing is controlling the food that comes into the house and what the woman gets to eat. He is controlling the sustenance that she can get and her ability to do those tasks. He is maybe saying to her, “Well, it makes sense for me to do it; I’m doing it on my way home from work,” but what he is really saying to her is, “You cannae manage to do a shop. Every time you go shopping, you spend far too much money.” He checks the bin when he comes home to see what food she has eaten that day and what the kids have eaten. It is about recognising that remoteness and rurality can make some of the tactics that abusers use look slightly more reasonable than they would in other circumstances.

Marsha Scott is right about the structures and the infrastructure in rural Scotland. They are not the same as in the central belt. For the bill to be successful and for it to make the transformational change that we believe it can, it has to come with proper training for the sheriffs and judges, the Crown Office, the police and other professionals. At the moment, there are too many people who still do not understand domestic abuse and its dynamics.

Rona Mackay

What you have just said highlights what Dr Scott was saying about the need for specialist training. Thank you.

Girijamba Polubothu

When it comes to BME families, you need to consider the extended family members’ involvement. Sometimes the woman and man have the same family because, in Islam, women and men marry their cousins, so his family is her family. Sometimes the coercive control is there when there are issues to do with contact with the children. If she is visiting her family and that family is also his family, he could be there. That is arranged by the extended family members, and she does not know anything about that. She is just visiting her sister or her cousin, and he happens to be there. Although he has court orders not to approach her, how will you say that he is doing wrong? He is not doing wrong. He will just say, “I didn’t know you were coming here. I’m here.” That kind of manipulation goes on as well.

Mairi Evans (Angus North and Mearns) (SNP)

A couple of the issues that I was going to raise have already been touched on by Mary Fee and Rona Mackay. What you said was very important. Quite a few of the things that you have mentioned this morning are issues that we heard privately from victims of domestic abuse, and we had a Shakti representative at our group as well. One woman we spoke to talked about the influence of her mother in that situation and about being encouraged just to put up with it. Another issue was the impact on people of having no recourse to public funds. In a situation where immigration status is up in the air, they are entitled to nothing, which is especially an issue when they have children. I was glad to hear that raised.

Marsha Scott mentioned a few other concerns that she had with the bill, and I want to tease those out, as well as to ask about a point that she raised in her evidence about emergency barring orders. Could you expand a bit on that? Are there examples of such orders being used in other countries? I would also be interested to hear other panel members’ views on that.

Dr Scott

Thank you for that—I was just sitting here going, “Oh, I hope to get to talk about emergency barring orders.”

Although we think that this is a good bill, we think that it could be improved a bit. One of the clear issues—this crosses over with some of our obligations under human rights instruments, which John Finnie asked about—is that, at the moment, Scotland does not have sufficient legislative interventions to help women in a crisis relating to domestic abuse. Unlike most countries in the western world, we do not have legislation that is effective in terms of emergency barring orders. Down south, for instance—I do not suggest that we use the model there, because it is not very effective—there are domestic violence protection orders that can be used by the police in a crisis situation. In order to be compliant with the Istanbul convention but also to help women to stay safe in their own home and not have to move their children out of their school or be the one who pays the price of domestic abuse all the time, we need a legal mechanism that allows women to stay at home and the perpetrator to be removed for a short period.

There are many versions of this legislation around Europe. We have a briefing paper that we are happy to share with the committee, if that would be helpful. Especially on the back of research that we did in Fife with women who had been made homeless as a result of domestic abuse, it is very clear to us that current practice in housing and homelessness departments has been essentially to make women become homeless in order to access services. An emergency barring order would be an enormous improvement to the bill and, essentially, is required for the bill to do what it says on the tin of our commitments to women’s human right not to be made homeless in order to access support.

The other thing that I would say about the bill—I think that you will have seen some of this in the consultation responses from our colleagues in the children’s organisations—is that we have struggled long and hard. I need to put down a marker that, as Michael Matheson pointed out when the bill was launched, there has been unprecedented engagement with the voluntary sector organisations on the development of the bill. We hated the first version, which was years ago, and the extraordinary transformation of that into a bill that we can support shows the way in which policy should be made.

There has been a lot of engagement about the role of children. The critical principle, which it seems to me is not that difficult for people to get but is not reflected well in the bill, is that we have libraries of evidence to say that children in families where there is coercive control and domestic abuse experience coercive control and abuse. It does not matter whether they are in the room, in the house or in the country at the time of an incident; they are harmed by it. Some are harmed more than others, but the reality is that that is the very nature of domestic abuse: children are used but also controlled.

We wanted that reflected in the bill somehow so that, in particular, when the bill left the criminal justice sphere and moved into the civil justice sphere, children being victimised by a perpetrator of domestic abuse did not get completely lost in the process looking at contact and visitation decisions made in the context of civil law.

10:30  

We were hoping that we could have something in the bill to say that children are victims of domestic abuse when their parent is a victim of domestic abuse. It is a difficult way to construct it, but we wanted the bill to reflect the fact that, if there were children in the family, there were child victims.

It took us a while to get that principle across. I think that the bill team understood it in the end but struggled with finding a way to frame it in the bill. We have had commitments from officials that they will try to take it up in other legislation and policy, but I think that there is a way in which we can do it somehow and make sure that children are seen all the way through in our responses when they are in a case as needing support and services and needing to be covered by non-harassment orders. Those issues are so important for women and children's safety. The emergency barring order and some way of better acknowledging children's experiences of domestic abuse are the two big improvements that could be made to the bill.

Mairi Evans

You neatly almost answered my second question. We were going to ask about non-harassment orders and some of the other evidence that we have received, particularly from the likes of Children 1st, which talked about imposing non-harassment orders and how those should involve the child as well. I want to tease out your thoughts on that, but I take it that you would support it.

Dr Scott

We would. Actually, it was our idea, so we are happy to support it. It is important that we understand that, at the moment, non-harassment orders do not work well for the vast majority of cases in Scotland. I know that one of the consultation responses was from an anonymous person who has been in touch with us. She was citing research that she did in her area that said that, out of 500 convictions for domestic abuse, there were 30 non-harassment orders. They are not working. They are a problem for women and for the system itself. We think that, if we were to put in an expectation that non-harassment orders would be issued in the context of domestic abuse convictions, it would save money, save trauma and send a clear message to perpetrators about their expected behaviour post-conviction.

It is critical that the non-harassment orders cover children, because if they cover just the mother, there is then a massive tool for further abuse through approaching the children. Non-harassment orders that cover children are a feature in many different forms of legislation across Europe, so it is not as if we would be ploughing a whole new furrow around that—excuse the cliché. It could make the bill transformative for children.

Liam McArthur (Orkney Islands) (LD)

Good morning. I will follow up on a couple of points that colleagues have raised and then move on to a substantive point that has not yet been touched on.

Dr Scott, your earlier suggestion that you do not necessarily anticipate that the bill, if implemented, would have a dramatic effect immediately was interesting and rather refreshing. I contrast that with what we heard last week from the Crown Office and Procurator Fiscal Service and Police Scotland representatives, who talked about their expectation that the bill would give greater confidence and certainty and that the number of women who come forward to raise concerns and complaints would increase. Is that distinction to do with the timeframe? Do you expect that the bill will lead to an increase in referrals and reports, which we heard last week?

Dr Scott

It is probably as much about time, but my suggestion also reflects our understanding—I think that our colleagues in the police and the Crown Office would support this—that some of the victims of coercive control are already in the system. I go back to what I said about the police and the Crown Office already trying to make the victims’ experiences, which they see as abuse, fit into our current system and go to court. In general, any policy that is implemented takes quite a long time to have an impact, particularly if it relates to what is, seriously, the biggest violation of women’s and children’s human rights in Scotland, which has massive numbers attached to it. The bill will be most challenging not for the police and the Crown Office but for people in health and social work and officials in the public sector who engage with women and children who experience domestic abuse every day and never see them. If we had the capacity with a bill on coercive control to help people in those areas to understand how their outcomes could be delivered better, cheaper and with less harm and trauma to everybody, there would be a sea change in Scotland, but it will take time.

Liam McArthur

I want to follow up on a couple of points that Mairi Evans probed with you. Do you support a system in which non-harassment orders would have to be considered by the courts in domestic abuse cases, or should there be a presumption that they would be applied? There is a nuanced difference between the two.

The other point relates to coercive and controlling behaviour and its impact on children. I know that there is concern about any requirement that the children had to be present in the room or within earshot but, given what you have already said about the context in which coercive and controlling behaviour takes place—there must be a course of action over a period; I presume that the impact on children would be viewed in a similar vein, and there would have been a course of behaviour over a period—a child’s having been within earshot or in the room is rather irrelevant. Would the bill not be interpreted in relation to children in the same way that we would expect it to be interpreted in relation to women victims?

Dr Scott

I cannot remember what your first question was.

Liam McArthur

The first question was on non-harassment orders and the presumption that they would be applied.

Dr Scott

Yes—that nuance. I cannot see any problem with presuming that there would be non-harassment orders. As in some of our legislation on contact that is not paid much attention, if a non-harassment order is not issued, somebody should have to make a really good case for why it was not appropriate. I absolutely come down on the side that the stronger we make that wording, the better it will be. Obviously, from the numbers that I have cited, it is clear that, even in the existing framework, in which non-harassment orders could be used more often and more appropriately, they are not.

Liam McArthur

An application requires to be made. The change would be that an application would not have to be made; it would simply fall to the court to have to consider the matter. I am not sure that there would be a huge difference, other than perhaps that the threshold would be set at a lower level than it is at the moment.

Heather Williams

The difficulty with the non-harassment orders at the moment is that procurators fiscal have to ask for them, and that often does not happen. It is starting to happen more regularly, but there are still reasons that sheriffs give for why a non-harassment order is not appropriate. Often, the reason will be that contact with children has to be facilitated. A recent example involved one of the women whom we supported in the Highlands. The non-harassment order was asked for, but the sheriff refused it because contact had to be facilitated. The sheriff felt that a non-harassment order would impact on the father’s right to have access to the children.

When the procurator fiscal has to ask for a non-harassment order, that is a difficulty, because that does not happen regularly. The change that is proposed in the bill is one of the things that will make a massive difference to women’s safety.

Liam McArthur

Unless the bill talks about how it impacts on contact, the court will potentially arrive at the same decision—that is, it will not apply a non-harassment order if that would interfere with contact. I am not sure whether the bill will address such situations.

Heather Williams

If we ask the court to consider the non-harassment order applying to the children as well as to the woman, whether it would impact on a father’s right to have access to the children would need to be looked at. However, domestic abuse is a parenting choice, and it impacts on children and young people so, as a society, we need to ask, “If your behaviour impacts negatively on your children and you cannot behave in a way that is appropriate, do you have a right to have access to your children?”

The courts and sheriffs having to consider a non-harassment order as standard will be a big step forward. At present, if a non-harassment order is not provided, people have to look at going through the civil courts for an interdict, which takes time and causes a lot of stress. Having to go through the civil courts can be distressing, and women who work have to pay for it. If an interdict is not defended, the person is looking at paying £1,000 at least; if it is defended, they are looking at paying upwards of £10,000. That is a barrier to justice for people who are in work in the process that they have to go through if there is a civil interdict as opposed to a criminal non-harassment order.

In your previous inquiry into the operation of the Crown Office and Procurator Fiscal Service, members of the Justice Committee heard from a woman whom we supported, who spoke about how she had an interdict with the power of arrest for the previous five years. The power of arrest lasts for only three years, and she had to go back through the courts to have it made again. That interdict has been breached, and she is now trying to take it back through the civil courts to have it looked at. We are almost a year down the road since all that happened. The interdict was breached, and she is still no further forward.

There are massive issues with how women get protection through the civil process. Having a criminal non-harassment order imposed by the court that says what standard of behaviour it expects and that, if the person does not meet that standard of behaviour, that will be an offence and they will come back before the sheriff will make a massive difference.

Liam McArthur

I want to follow up on a separate substantive point. We have heard pretty much universal support for broadening the definition of “domestic abuse” and recognising the extent to which it happens in non-physical respects. We have also heard concerns that the threshold for that abusive behaviour is perhaps lower than might be necessary. The bill has been contrasted with the legislation that was introduced south of the border from the end of 2015. In his evidence to us, Andrew Tickell suggested:

“The key aspect is ensuring that the thresholds for criminalisation are sufficiently high. In my submission, I directed you to the English legislation, which provides that the harm that is caused to the complainer has to be of sufficient severity and have a significant impact on their day-to-day life.”—[Official Report, Justice Committee, 30 May 2017; c 12.]

Andrew Tickell suggested that there is a risk that we will criminalise what may be bad and possibly unpleasant behaviour but not necessarily what should be targeted as abusive or coercive and controlling behaviour. I am sure that you have had an opportunity to read and listen to the contributions that Mr Tickell and others have made. What is your response on the thresholds issue?

10:45  

Dr Scott

With all due respect—I have lots of respect for Mr Tickell—that is just an academic and sophisticated way of saying, “It’s just a domestic.” There could not be more contrasts between the Domestic Abuse (Scotland) Bill and the Serious Crime Act 2015 down south. Our sister organisations down south say that that act is not working well; that there are very few prosecutions; that, in prosecutions that happen, physical violence is always involved; and that prosecution for coercive control is seen as the next best thing. There is a hierarchy of harms that absolutely does not reflect our experiences or women’s experiences of coercive control as the most harmful of those.

On a threshold, the Domestic Abuse (Scotland) Bill is unlike the act down south, which is quite simple. Down south, they have failed to grasp the nettle of the complications. The construct or frame of the bill is about looking at the perpetrator’s behaviour rather than trying to prove some kind of harm to the victim. Focusing on a threshold of distress, despite the fact that distress is an existing concept that is used in other Scottish legislation, is about asking, “Is it just a domestic? Are we somehow interfering in family life in ways that are inappropriate?” As members will know, there are multiple tests in the bill that trivial behaviour or mundane bad behaviour on the part of all kinds of folk in families will never make it through. There is no will in the system to make that happen. The critical distinction—

Liam McArthur

Sorry, but I will stop you there. To address the concerns that Mr Tickell and two or three others have raised, what would the safeguards be? What would give confidence that the distress levels, which are known and understood in the legislative context in Scotland, would be—

Dr Scott

I refer you to the testimony of Anne Marie Hicks, who spoke eloquently about the requirements for coercive behaviour and the tests to get a case that is robust enough into court. They mean that trivial events that are, in fact, just bad behaviour, are sometimes and should be responded to by the police appropriately, but they are not what we would call “coercive behaviour”. Heather Williams and I talked about that before.

The problem with looking at the threshold as an academic exercise—I think that Mr Tickell did that—is that that framework or perspective is not informed by what we see as a much bigger problem in the status quo: the huge number of cases of domestic abuse that never even come to the courts. The legal academics never see them and the professional societies never deal with them, because the vast majority of those cases never wind up in the criminal justice system. The bill absolutely reflects the fact that we need to criminalise coercive control. From what I can gather, there is no appetite in the court system or the police system for creating domestic abuse cases out of trivial bad behaviour.

I hear from some of our colleagues that this is about intruding on family life. When family life delivers abuse, trauma and distress, we should absolutely interfere in family life. We do not want that kind of family life for anybody in Scotland. The focus on a threshold has always been an attempt to push the human rights aspect of women’s and children’s experiences of domestic abuse as applying only in public sectors. I am proud that the bill challenges that.

It is true that, if and when the bill is passed and is implemented, there will be misguided attempts to use it, but our biggest fear in Scottish Women’s Aid is that perpetrators will try to use it to control women, which is exactly what happens with our existing legislation. That is much more likely to happen but, even so, we are willing to take that chance in order to have an improved tool.

Heather Williams

The definition of “domestic abuse” and the threshold that there has to be a course of conduct probably provide a bit more protection than we currently have. Under the current legislation, if you and I were in a relationship and we had an argument out in the street and the police were called, that argument would be classed as a domestic incident. One of us would end up in court and would have to answer to that. We see that happening in our court system fairly regularly, but that is not what we are talking about when we talk about women’s domestic abuse. Domestic abuse causes fear. It is about control, and there will be an on-going pattern of behaviour in which various tactics are used. The bill and the thresholds in it allow us to tackle that.

Under our current law, people who do not necessarily use domestic abuse but behave badly, which we are all perfectly capable of doing in our relationships, end up before the courts. The bill, with the thresholds that are built into it in relation to the course of conduct, strengthens the basis on which we currently work. It is not okay that people have a domestic assault history or a conviction that relates to that because of an argument that happened between a couple, but we would not class that as “domestic abuse”.

Oliver Mundell (Dumfriesshire) (Con)

The majority of the issues that I was going to raise have been touched on, but I want to return briefly to the defence of reasonableness. I am particularly interested in how that interacts with some of the cultural concerns that we heard about right at the beginning and whether behaviours that are maybe seen as normal or that have been normalised in families or cultural settings might allow people to use that defence more easily.

Girijamba Polubothu

Some behaviour of perpetrators is normalised in the cultural context. Whether it is in BME communities or the main stream, some acts are accepted as normal. I have not read the document that you are talking about regarding reasonableness—

Dr Scott

It is in the bill.

Girijamba Polubothu

Okay. You have to be careful where you set the reasonableness threshold. It is important, because you do not want not only the perpetrators but society to look at their behaviour as normal and as if there is nothing wrong with it and it is not domestic abuse.

Dr Scott

I cannot put it more eloquently than Giri Polubothu did at the beginning. We hear about reasonableness or culture or people saying, “It’s the drink.” There are so many contexts in which abusive behaviour is explained away in our society. What seems unacceptable from one perspective is seen as eminently reasonable by perpetrators.

As we have said, the reasonableness defence is a bit scary for us. Domestic abuse was a perfectly reasonable response for centuries in Scotland. However, I have faith that the system, especially if the training that is needed to do this well is provided, will use that test to set a new standard in courts and in Scottish society about how it is reasonable for people to treat their partner and children.

Girijamba Polubothu

It also depends on for whom the behaviour is reasonable. Is it reasonable for the courts and for us, or is it for the woman? That is what we have to look at. It is not for us to say that one behaviour is reasonable. We have to look at whether it is reasonable for the woman. Does she feel that his behaviour is reasonable? That is important.

I will give one example that we often talk about. We had a client who was being coercively controlled. The guy used just his lighter. Every time that something was not done, he controlled her by threatening, “I will burn you.” When the woman’s statement was being taken and there were agencies round the table such as the support worker and the police, all that he did was take out his lighter and put it on the table. None of the other people understood what the lighter meant but, for the woman, it meant a lot. That is coercive control that we cannot see. Is it reasonable or not reasonable?

Dr Scott

The bill is constructed so that there is a requirement to understand the personal circumstances and the context of cases, which is its real strength. If you look at it as an incident, putting a lighter on the table is absolutely a reasonable action, but reasonable people, if they understood the full context of that relationship, would not think it reasonable to threaten a woman with burning her, even if that threat is non-verbal and is referenced through putting a lighter on the table. Does that make sense? It is about understanding the behaviour so that a reasonable person sees the whole course of conduct.

Oliver Mundell

That makes sense. The point that I am struggling with is that, if you think that the thresholds are correct and that they correctly identify the relevant types of behaviour, and if we are not looking at the effect on the individual, why is the defence needed at all? We have the course of behaviour, but we are then asking people to do something else by looking at all the circumstances, and I wonder whether that is a way back in to justifying some behaviours.

Heather Williams

Certainly, in the work that we did on the original consultation with women whom we support, we found that they were concerned about the idea of reasonableness. They were concerned that it would be used in a way that would mean their experiences were not taken into account. Giri Polubothu gave you the example of the lighter, and I could give you a dozen similar examples.

Making the change from what we have now is about recognising that we are not taking an incident-based approach but looking at the full circumstances of somebody’s life and why they have done something. For instance, if I meet you in a shop and you say, “I notice that your son’s got a new bike. I hope he doesn’t have an accident,” that might appear to be a reasonable conversation. However, it could set off a lot of distress if, in the context of the relationship, you are threatening me and saying that if I leave or do anything that you are not happy with, you will hurt my son. If I have left you and I meet you in the shop and you make that statement, it appears to be a reasonable statement but, when taken in the full context, we can understand why it would cause harm and distress, and the bill allows for that to be taken into account.

Personally, I think that the defence of reasonableness can and will be used, particularly with regard to women with disabilities where the partner is also the carer and potentially in BME communities. It is in there for some reason. Somebody thinks that it needs to be there.

Dr Scott

I believe that people were concerned that the threshold would be too low and that trivial cases could get in. Therefore, the reason for putting the defence in the bill is as a safeguard. I am totally with you on that: if we did not need a safeguard, I would be happy with that, but I suspect that there would be an outcry.

Oliver Mundell

The issue with trivial cases getting through is that the defence really only comes into play once the accused is accused of the offence or charged, so it will not filter people out at an early stage. The defence will come into play only once cases go to court. Having heard the evidence today, I am worried by the idea that people’s family members or other people who were involved in the situation will be brought in to give their view on whether a particular incident was reasonable and by the trauma that might be attached to that.

11:00  

Heather Williams

Part of the difficulty is that none of us has a proper picture of what goes on in the lives of families or in their relationships. The difficulty with reasonableness, as Marsha Scott has said, is that a lot of perpetrators of abuse believe that their behaviour is perfectly reasonable and that the things that they do are okay. Also, the responses from people who are experiencing abuse do not always appear completely reasonable on the outside. That is certainly a concern. All we might see is a response to a text message that is not necessarily threatening or a comment that somebody has made that has triggered the whole flight or fight response or that fear in somebody. The response does not always appear completely reasonable, but it is because of the course of conduct that there has been through the entirety of the relationship.

The bill moves us away from an incident-based approach. Domestic abuse is not about an incident; it is about the tactics and patterns of behaviour that have an impact.

Oliver Mundell

That will work both ways and will affect the defence, too. Children or parents of the victim could be brought in to talk about long-term courses of behaviour and perhaps issues of mental health or disability, and there might be aspects of unreasonable behaviour on both sides. That does not necessarily mean that domestic abuse is not happening somewhere, but it might be possible to paint a different picture as a result. That is what worries me.

Girijamba Polubothu

It comes back to what I said at the beginning. The physical abuse takes place after a lot of coercive control has happened. You talked about bringing in family members as witnesses. In BME communities, the effort is to save the marriage, so people’s own parents can go against them. They actually give evidence against their daughter, saying, “It’s not him; it’s my daughter’s behaviour.”

Oliver Mundell

That is exactly the point that I am worried about.

Girijamba Polubothu

Believe me, it happens. I have worked for Shakti for 18 years, and I am surprised by how many cases I have had in which a woman’s own family did not want to support her and wanted to take her life away. I can never understand why. That will happen. The solicitors, lawyers, legislators and judges will have to be mindful that it can happen. It happened recently in a forced marriage case in Glasgow. The sisters of the victim, who had left home and gone away, were brought in to give evidence and to say that the parents were perfect and never did anything against their wishes, but that was rubbish—it was not true. Those young people were looking for an opportunity to get back with their family, and they got that one opportunity. If they supported the family, they would be welcomed back. It is difficult, but you cannot really trust what such people say.

Dr Scott

I think that David Mundell is saying that he is concerned about the reasonableness defence being used to bring in people to mitigate the perpetrator’s behaviour. It is important. I have been trying to find the exact language around it, but I think that it was conceived of as a mechanism to allow us to focus on the perpetrator’s behaviour without having to prove specific harms to a victim. There are a lot of good reasons for that, which we undoubtedly do not have time to go into.

I think the drafters of the bill felt that the reasonableness defence needed to be there for the very few cases in which there is some reasonable explanation for a series of behaviours that might, on the outside, look abusive—perhaps in the context of someone who has guardianship of somebody and whose job it is to control certain things that, in an independent relationship, they should never be controlling—but also to allow mechanisms for keeping the focus on the perpetrator’s behaviour rather than the impact on the victim.

I hear your concerns and I share them but, in the long run, we would rather have the risk on that side than have a bill that required proving harm, which is enormously problematic.

Oliver Mundell

Okay—that is super.

I have a slightly different question that leads on from the point about family relationships. Does the offence cover all the relevant parties, or should we perhaps consider including elder abuse or the abuse of other family members and how that all interacts? Is it too narrow to just look at partners and ex-partners?

Dr Scott

Considering that we have fought for 20 years to have this definition, my answer is no. We are very happy with it.

Before I worked for Scottish Women’s Aid, I was one of a team of University of Edinburgh researchers who did the first research in Scotland—in the UK, actually—on older women and domestic abuse. It was shocking to find the invisibility of older women in police reports, social work assessments and all kinds of things. The problem was not that they were not covered by the law, because they were absolutely covered by it; the problem was that, the minute women got over a certain age, the issue became defined as elder abuse and people who ordinarily would respond robustly in the face of the domestic abuse of a younger woman did not see it, did not identify it and did not respond appropriately.

From our perspective—I know that there will be people who will provide evidence to the contrary—there are adequate protections in the bill for people of all ages, if it is used appropriately. The difficulty is that those who provide services for older women and older men need to understand domestic abuse, which is the biggest problem. I suspect that Giri Polubothu and I might disagree on other family members, but we are really committed to Scotland continuing in its proud tradition of understanding the issue as gender-based violence. We are absolutely concerned that, if you start to broaden the definition, the bill will be confused with child abuse legislation and there will be a variety of other difficulties that take our eyes off the prize of gender.

Ben Macpherson (Edinburgh Northern and Leith) (SNP)

A large number of the areas that I wanted to ask questions on have been covered, but I have one specific and one general query.

I want to absolutely clarify a specific point. The inclusion of recklessness in the definition has been discussed at previous committee meetings. I know that, in its written submission, Scottish Women’s Aid has clarified its support for that, but it would be good to hear from Dr Scott and others why you agree with its inclusion.

In its written submission, the Crown Office and Procurator Fiscal Service made the same point that Dr Scott just made about gender-based violence, which is that the bespoke offence will raise awareness and confidence, increasing the number of cases coming forward and advancing social change in order to tackle gender-based violence more widely. Would you comment on the bill’s potential in that context?

Dr Scott

I referred to the fact that for 40 years we have been hearing stories about the impact on women and children of domestic abuse in the form of coercive control. The failure to have a legal instrument that responded to what they have told us for 40 years sends a powerful message to women and children that their experiences of trauma are not of that much interest to us as people who make policy and law in Scotland—not that I make policy and law, although I am happy to try.

The fact that we had such powerful testimony from the Crown Office and the police, who, along with our services, are closest to the coalface and to the experiences that you heard about in the evidence session with our survivors, shows that they have been trying to make law that is not fit for purpose work in these cases. It is in your gift as lawmakers to send a message that that is not good enough any more in Scotland and that we are listening to the voices of survivors and service users—and of the people who have never come into our system because they do not recognise their experiences in the things that we respond to. This is an opportunity for Scotland to stand above every other legislature that has made laws around domestic abuse and coercive control.

If the bill is passed, as Evan Stark says, it will be the gold standard for statements in law and in moral terms about what is okay. I cannot imagine that we would want to walk away after the 10 to 15 years that it has taken us to get to this point. The detail absolutely can and should be debated, but the challenge is clear in terms of law that acknowledges the rights of women and children as human rights. The opportunity is huge. The statement that it allows us, as a service provider and a policy advocate, to make to women and children is, “You are being listened to, your lives matter and your experiences count. We will be part of the transformation of your community that will mean that, if this happens to you, there is accountability in the system. You should come forward, and you should expect protection and support.”

I know that I have had a wee rant there, but I thank you for the question. It is easy to get caught up in the nuts and bolts of legislation, especially because that is what you all do. From our perspective, the ability to go out to the 36 communities in which our services are based and say, “You have a bill that reflects what you have said you would like the Scottish Parliament to do about domestic abuse in Scotland. Now let’s all make it so,” is a consummation devoutly to be wished.

Ben Macpherson

For clarity, are you supportive of the inclusion of recklessness?

Dr Scott

Recklessness is very much connected with some of the discussions that we are having about reasonableness. What are the hurdles in the bill that ensure that the law will not be used for trivial purposes or to prosecute people who are not being abusive? We quite like the concept of recklessness, because, again, it helps us to create a focus on the abusive behaviour rather than on the impact on the victim.

Instead of having to prove what serious harm might be, which is what is in the law down south—as I said, it is hugely problematic—we have a statement about somebody either knowing that something is harmful or being reckless in the face of that. Recklessness in that context is not a new concept for us in law. Its application in the bill is quite nifty—I understand that “nifty” does not have a lot of gravitas—in the sense that it is a mechanism that comes quite easily to hand: “Well, you should have known. If you did not know, you should have known”. We talk about reckless driving and all kinds of things that come under the test of recklessness. In the bill, it is quite a good tool for helping us to create a robust case that abuse has happened, without having to prove harm. Is my reply specific enough?

Ben Macpherson

Yes. Thank you.

The Convener

I am conscious of time, so if the questions and responses could be as succinct as possible, that would be helpful.

11:15  

Fulton MacGregor (Coatbridge and Chryston) (SNP)

I thank the witnesses for their evidence today. It has been very rich, and I personally agree with it fully. It is great to see all three so enthusiastic about the bill.

I return to the issue of non-harassment orders. The witnesses have talked about why they should be used more—as I said, I agree with that—but how could they be made more robust when they are used? The number of orders that has been cited is small, but, in my experience in social work before I was elected, in many respects they are not particularly effective.

Heather Williams

You are absolutely right: sometimes non-harassment orders are not as effective as they could be, which partly relates to how they are policed. I can give you a specific example involving a woman whom we have worked with for quite some time. A non-harassment order was finally imposed as part of the sentence, but the order was breached on a number of occasions. The matter was finally taken back to court, but nothing happened because there was not a sufficiency of evidence.

Breaches of a non-harassment order often involve the stalking and harassing kind of behaviour that is on-going and is seen as low level. For instance, the person drives by and revs the engine at all times of the night, or is at the school when the woman picks up the kids. That behaviour sometimes trips things up. It is not a threat. It is not going up to the woman and using offensive language or threatening behaviour. The difficulty is that our system does not police that particularly well.

When we talk about domestic abuse, we expect there to be behaviour that is abusive—shouting, using offensive language or threatening—whereas a lot of the time the behaviour is more subtle than that. That does not lend itself to the orders being policed particularly well at this point in time. However, that type of behaviour would, potentially, be covered by the bill—there would be more scope for it to be dealt with.

It is about getting ourselves away from the idea that domestic abuse is about threatening abuse. We can intimidate people in lots of ways. One that comes to mind—we have used it recently in schools—is the debate between Hillary Clinton and Donald Trump. How did he try to intimidate her? It was by invading her personal space. On “Question Time” recently, David Davis went over to Leanne Wood and stared at her.

We can intimidate and try to control people in lots of ways that are not necessarily overtly threatening. The current system focuses on overtly threatening behaviour, and if something is not done in that way, we are not particularly good at following it up and the courts are not particularly good at dealing with it. The bill gives some leeway by saying that behaviour does not have to be overtly threatening. That gives some hope that we will be able to improve the lives of those affected by domestic abuse, because it fully breaks down what domestic abuse is and does not focus on just a single incident or thing.

Dr Scott

Let me just add to that. This is a bit of a techie response, I suppose, but there is an opportunity for better use of technology. For example, we are just beginning to explore the use of electronic monitoring and so on in Scotland. It would add robustness to and support policing and the response of the police if we were to explore and invest in the capacity to use electronic monitoring. It would help to provide evidence, but it would also provide a significant amount of reassurance to women who are not convinced that the perpetrator will abide by a non-harassment order and—it is an important “and”—that, if and when the perpetrator breaches the order, the police will respond appropriately. The opportunity to support some of that policing with technology could be fruitful.

Fulton MacGregor

I move on to an area that may develop only once the bill is implemented and in operation—it is one that has been discussed. On the management of non-harassment orders, is there something that can be done around the work that is done with the offender and the victim? Where does that fit in with the length of time that a non-harassment order is in place? As with other orders, you would not expect a non-harassment order to be indefinite. However, the nature of the relationship might not change at all or might take a long time to change. There is work to be done in that area. What are your thoughts on that? Please be brief, given what the convener said.

Heather Williams

The reality of outcomes at court is that not enough work is being done with the perpetrators of abuse. The system, through the Caledonian project and so on, is very patchy across Scotland. In the Highlands, for instance, the Respect work is done on a one-to-one basis, but it is done only with very few perpetrators—those whose behaviour is seen as being at the higher end. The difficulty is that, unless we address the perpetrator’s behaviour, they will either continue to abuse that partner or find another partner and start to abuse them. Ultimately, it is the perpetrator’s behaviour that needs to be addressed and, at the moment, we are not great at doing that.

Dr Scott

If I am not mistaken, there have been some lifetime non-harassment orders—maybe they are down south. A lifetime order is a tool that will be used very rarely but may be needed in rare cases. There is a continuum of response, exactly as Fulton MacGregor describes, and an opportunity for work with perpetrators, which I am not an expert on. We could integrate work on compliance, and non-compliance, with a non-harassment order into understanding how behaviour change is needed in order for the perpetrator to respond appropriately to whatever treatment is being offered.

Girijamba Polubothu

For the BME community, implementation of non-harassment orders is a bit complicated, because of the family dynamic and the involvement of extended family members, as I mentioned. A man might have a non-harassment order, but implementing it can be difficult. In one case, the Caledonian programme was supporting the man and we were supporting the woman. Although there were interdicts and so on, the children were taken to their grandparents’ house, which the man would visit. He was not breaking any rules—he was asked not to visit his family home, but he would visit the grandparents’ house, and the woman would leave the children there. She did not want to do that, but did so because of family pressure. She did not tell us that that was what she was doing, and she was blamed for that, because she was the one putting the children at risk by taking them to their grandparents’ house, where he would visit them.

Implementation is sometimes quite complicated. In forming the bill, we may have to take into consideration how we can protect women from being blamed in such situations.

I have given only one scenario, but it happens more often than that. There was another scenario in which there were interdicts against the guy, but the woman had no recourse to public funds and so she had nowhere to go. Her in-laws—her husband’s parents—offered her shelter and said that she could stay with them. He visited his parents’ home—there was no interdict against him doing that. How can the order be implemented unless there is additional legislation to protect women from that kind of thing? In such a case, the woman is the one who is breaking the rules, not the man.

The Convener

I should stress that we are very much over time now.

Stewart Stevenson (Banffshire and Buchan Coast) (SNP)

I will try to keep this brief. I have heard differing views from the panel on whose “reasonableness” it is. In court, there are three reasonablenesses. There is the perpetrator’s view of reasonableness, the victim’s view of reasonableness and the societal view, or the bench’s view, of reasonableness.

I just want to be clear about where the witnesses think we should go on this. There may be victims of abuse, the character of which has, over the long term, been such that the victim has normalised the perpetrator’s behaviour to the extent that they no longer realise that it is unreasonable.

Secondly, the victim may lack mental capacity. In older couples, for example, the victim may suffer from dementia and therefore lack the mental capacity to assess the reasonableness of the perpetrator’s behaviour.

Whose reasonableness is it? Given that judges will tend to come from a social stratum that may be disconnected from the day-to-day experience of the wider public, from where does reasonableness come?

Finally, I am convinced that we should not incorporate a definition of reasonableness into the legislation, because the facts and circumstances have to be brought to bear.

That was a long question. Can I have a short answer?

The Convener

That was the very opposite of a succinct question. Can we have succinct answers, please?

Dr Scott

I will try hard to be quick. First, do not be under the illusion that domestic abuse does not happen in the homes of judges. Let us just out that one.

Stewart Stevenson

That is all right.

Dr Scott

Secondly, I have pulled up some text from our response, which refers to reasonableness. It says:

“We would suggest that since the defence of ‘reasonableness’ specifically states that ‘... the course of behaviour was reasonable in the particular circumstances ...’ that this wording is replicated in relation to the references to the reasonable person’s consideration of the behaviour.”

That is, the bill would say:

“a reasonable person would consider the course of behaviour, in the particular circumstances, to be likely to cause B to suffer physical or psychological harm”.

That is all interesting, but the question was really on point: we are talking about the reasonableness of people in the courtroom who are making a judgment about whether a crime has occurred and whether the accused is the person who did the crime. That is the point about reasonableness.

Stewart Stevenson

Can I draw on that? I know that the convener is on my shoulder because of the time. Is the test of reasonableness determined outside the relationship, rather than inside it?

Dr Scott

Yes, absolutely.

Stewart Stevenson

Right. That is it, convener.

The Convener

There is one thing that I think Heather Williams might want the opportunity to come back on. The example that you used was of a situation outside a family, in connection with non-harassment orders, and you mentioned debates between Hillary Clinton and Donald Trump, and David Davis and Leanne Wood. We do not want to muddy the waters, because there is real fear about the far-reaching consequences of the bill.

Heather Williams

I gave those examples to show how it is possible to intimidate people, and those examples were very clearly in the public eye. Often, the difficulty with the current legislation and the way in which it is applied is that we focus on violence and actual threats and on what we, as a society, think is abusive behaviour: I might have to swear at you for what I say to be seen as being abusive, for example.

The Convener

I think that it was important to get that on the record.

I will pose one last question that seems to me to be germane. The committee thinks that there is definitely a gap in the bill in relation to coercive behaviour. What is the trigger? I note that the Scottish Women’s Aid submission says that we should not ignore the existing law on stalking and other things, but how is it triggered? There might certainly have been a course of conduct. As Giri, I think, said in evidence at the beginning of the meeting, coercion could have been going on for years and years and could materialise as violence only at the point when the victim suddenly says, “No—I’m not going to do that.” Can coercive behaviour stand alone as an offence? Do we have enough to deal with such situations?

Heather Williams

Absolutely. In my experience of direct delivery work, often the first time a person contacts us at Women’s Aid, the first thing they say is “I don’t know if you can help me, because he has never hit me.” When they come in and we speak to them, we might then unpick a relationship in which there is a huge amount of coercive controlling behaviour that has had an absolutely negative impact on the woman’s integrity in terms of her belief in herself and her mental wellbeing. There are lots of ways in which such behaviour can be uncovered.

Marsha Scott talked about health and social care professionals. Many of them, in particular health visitors, are really good at saying to women that there is maybe an issue, asking whether the woman is happy in her relationship, and suggesting that if there is a high level of control they should speak to Women’s Aid. There are people who are involved in families’ lives and who come into contact with women, and there are friends and family who might be able to say that the woman has changed and is no longer the person that she was. Such things come out a lot when there has been physical violence and a woman is talking to the police, but the police cannot do anything about it because it is not the specific incident that the woman is giving a statement about.

11:30  

The Convener

Something usually triggers the physical violence—the woman saying, “Enough is enough”, and leaving, for example.

Heather Williams

It might just be that a family friend or a family member notices a difference, or the woman recognises that something is not right and tries to fix it herself, which is often where it starts: we take responsibility for what is happening to us and try to change. We will have been making sure that dinner is on the table at the right time, that we wear our hair in a certain way or that we do not talk to our mum or our friends. When that does not work and the abuse continues, that is the point at which the woman starts to recognise that maybe the fault does not lie with her but with the person who is telling her that it is her fault and that it is her behaviour that causes the situation.

Girijamba Polubothu

It is difficult to evidence coercive control; physical abuse is easier to evidence. It takes much more listening and investigation to prove coercive control—you need to spend more time to do so. For that reason, we should not abandon the bill. We are trying to help women who are suffering coercive control. We should not be fearful of investigating and listening.

Dr Scott

I have a quick footnote to all of that. I absolutely agree. I hope that the trigger will be sooner. Women call us all the time and say, “I’m not sure that this is domestic abuse”. There is the notion, when people ask why the woman does not just leave, that she does not mind being abused. Our experience is that no one likes to be abused, but the gendered expectations of women—especially if you look at the services we have for very young women—tell them that they are supposed to be a certain person. When young women have the same aspiration to having the space for action that all human beings have a right to—whether it is about economics, being able to have their voices heard in Parliament or whatever—those triggers will come a lot earlier and perpetrators will have far fewer tools. It is a bit about being ambitious for women and girls.

The Convener

This has been a long but very worthwhile evidence session that has brought out a lot of things that will help our scrutiny of the bill. I thank the witnesses very much.

11:33 Meeting suspended.  

11:39 On resuming—  

The Convener

I welcome our second panel of witnesses on the Domestic Abuse (Scotland) Bill: Ronnie Barnes, trustee, Action on Elder Abuse Scotland; and Alan McCloskey, director of operations, and Kevin Kane, parliamentary, policy and research officer, Victim Support Scotland. Following a late change to our agenda, Abused Men in Scotland is represented by Alison Waugh, who is a trustee of the organisation. You are all very welcome. I thank the witnesses from Action on Elder Abuse and VSS for providing written submissions, which the committee always finds extremely helpful.

We move to questions from members. I will start by asking about the relationships that are covered, which I know will be of particular interest to Action on Elder Abuse. Should the bill go further than partners and ex-partners?

Ronnie Barnes (Action on Elder Abuse Scotland)

Thanks, convener. We feel that, because there are particular issues to do with people as they get older, it might be too restrictive to confine the provisions to partners and ex-partners. People find themselves living with sons, daughters and other extended family members who then become care givers. In such circumstances, in our experience, abuse, exploitation and all manner of such behaviours occur. In order for the bill to properly protect older people, its scope with regard to likely perpetrators and likely victims needs to be enlarged.

Furthermore, we think that there should be a specific aggravated offence of abuse of older people. We believe that not enough priority is given in the criminal justice system to the prosecution of offences against older people, given the number of older people, the rise in their number that there will be and the fact that older people require to be looked after in all manner of circumstances and situations. The good thing is that we are all living longer. We are all living healthier lives but, at certain points, we will all become vulnerable and frail. This is not just something for a constituency of people out there; it is about all of us. In developing laws and protections, it is something that we should consider.

The Convener

There is no doubt that there is a real issue there, but I suppose that the question to ask is whether the Domestic Abuse (Scotland) Bill is the appropriate bill in which to address it. We have heard from some of the witnesses that it is very much looked upon as a gender-based bill. Without doubt, neighbours and other people who are doing the looking after who are not family can be the perpetrators of abuse of the elderly. I think that some of the witnesses on the first panel—I know that you listened to their evidence—were afraid that including in the bill the abuse of older people might in some way water down the bill’s ability to deal with the specific issue of coercive control within a relationship. That is the issue that they want to make sure is covered, which has not been covered in the past.

Ronnie Barnes

I suppose that our question to you as politicians is this: if this is not the right bill, what is? I still think that we have to address the fact that the abuse of older people is a significant, serious and growing problem. It cannot be shied away from. Our charity will continue to campaign to ensure that we eventually get an aggravated offence that recognises the degree and type of offence that is committed day and daily.

We are also concerned about the fact that the criminal justice system does not take the issue particularly seriously, that the low level of reporting results in low levels of serious prosecutions and that we do not see the courts marking the fact that such offences are serious and giving sentences that reflect that. We think that that should be addressed, too.

Kevin Kane (Victim Support Scotland)

We will absolutely take cognisance of that view as a group that supports all victims. However, as Scottish Women’s Aid mentioned earlier, it is important that we restrict the bill to partners and ex-partners. That tallies with what we know about domestic abuse and the figures that we have to hand. According to last year’s figures, out of all homicides in the UK, 44 per cent of female victims were killed by a partner or ex-partner. That highlights once more the gender dynamic that is at play here and how specific the offence needs to be. For that reason, Victim Support Scotland is comfortable that, as it stands, it applies to partners and ex-partners.

Alan McCloskey (Victim Support Scotland)

I take Ronnie Barnes’s point absolutely, but there is a danger that the bill might be weakened. A real strength of the bill as it stands is its focus and scope, and we do not want to dilute it. Rightly, there is other legislation to protect older people that we should concentrate on, whereas this bill is about domestic abuse and domestic violence, the psychological effects and the violence aspect. That is the bill’s strength, which we want to be taken forward. If we widen the scope of the definition, it might lose a bit of traction. The bill is an important piece of legislation that we very much welcome.

11:45  

Alison Waugh (Abused Men in Scotland)

I would agree with Ronnie Barnes, because when abuse is taking place in a home, the victim has no way of escaping—they have to live there and to keep returning there. I would have included such abuse, but it is not my speciality. I make that comment as an individual.

The Convener

Do you mean abuse in the wider context of the family?

Alison Waugh

Yes.

Ronnie Barnes

It should not be beyond us to frame that and to put it into clauses. It would not weaken the provisions in the bill about partners as perpetrators. To miss the opportunity to recognise in the bill the fact that people are being looked after by other care givers in domestic situations would be a grave mistake. I am not sure that the law as it stands covers the situations that I am talking about.

Stewart Stevenson

I am the only septuagenarian here, so this is more relevant to me. For example, I have been considering some of the provisions that I have made, one of which is the power of welfare, which I have given to two family members and a third, younger person in case they are not alive at the time. I would not necessarily be living with the person who has power over my life and circumstances—how my hair is cut, where I stay and so on. How should that interaction, with my making a choice in the last few years, as I have done on that front, sit with what happens subsequently when I become incapable of exercising my own power to make decisions? Where is the line crossed? For example, I have said about my future care that, if I am unaware of my surroundings, get the cheapest possible provision—do not put me in a posh home or anything. Would that be caught by the reasonableness test? Might people in 10, 20 or 30 years—whatever it might be—think that unreasonable?

Ronnie Barnes

We are well served with good adult support and protection legislation in Scotland compared with what happens in the rest of the United Kingdom. We are good at protecting people and taking account of their wishes, needs and requirements, but we are not good at determining when that strays into criminal behaviour. I would have thought that the threshold for what is criminal behaviour could be clearly understood. If people are being exploited, abused and assaulted in whatever way, that should be clearly defined. There should not be any confusion about whether it is at the soft end of care giving.

That is not to suggest that this is not a complex area; clearly, it is. In any familial situation in which people are care givers and have responsibilities that they find difficult and therefore in a sense become abusers by default, a determination need to be made as to what to do about that. As I say, there is probably adequate adult support and protection legislation to deal with situations in which people recognise that they are getting into difficulties, but we are talking about behaviour that is not acceptable and which is criminal in its intent. Those are the situations that we need to deal with. Whether we like it or not, people get abused and violated. We must understand that. There is no trying to pretend that we can somehow soften that by saying that it is just to do with the circumstances and that it is necessary to understand that the perpetrator is under pressure as well. There are ways in which we can deal with such circumstances, but I am saying that abuse is abuse. Let us deal with it and call it what it is.

John Finnie

Good morning, panel. Thank you for your evidence.

Mr Barnes, I have a follow-up question. I do not know whether you heard the example that Dr Scott gave about the non-visibility of domestic violence as someone gets older. Could you comment on that? I thought that she made quite a powerful statement.

Ronnie Barnes

What we also know is that it is a vastly underreported situation. From the research that we did last year—this is mostly in England and Wales—we know that something like only 6 per cent of what we would regard as criminal behaviour is reported. People are very reluctant to come forward; we know that from our helpline.

I will give you an example of some of the behaviours that go on. Let us take financial abuse. In 2013, from 680 calls that were received by the helpline, we uncovered £25 million-worth of abuse. That was the total monetary value of people being defrauded, having money stolen from them, being coerced out of their home and having their home stolen. Interestingly enough, although we did a press release at the time, none of the national papers took that up.

There is significant underreporting of issues to do with older people. The odd sensational thing will come out, but people are dying at the hands of their family and other cruel perpetrators, and those things are not being picked up. That is the scale of the problem that we are talking about. It is underreported because people are probably reluctant to come forward, and they are in a relationship with people who are their care givers and on whom they are dependent. We must ensure that there is zero tolerance and that we regard abuse of older people in the same way that we approach child protection. It is unacceptable, and until we make that mark and make such statements, I am afraid that the situation will continue.

We need to remember that this is about all of us; it is not about some group of people out there. We are all likely to find ourselves in vulnerable situations at some times in our life, and we might well be dependent on others. We need to ensure that the law is robust enough to deal with situations in which abuse is nothing other than what it is: abuse.

John Finnie

You touch on the underreporting. Indeed, you detail a number of issues that you cite as precluding people from coming forward: fear of loneliness, threats of being placed in a home, being embarrassed to report their own children or family members, feeling that they are a burden and being unable to find the words to explain what is happening to them.

I go back to the comment that some such behaviour could be picked up at the moment as straightforward assault and some of it could be picked up as domestic violence. Dr Marsha Scott from Scottish Women’s Aid said that there was a concern that, as people became older, they became invisible in the sphere of domestic violence and domestic abuse, which is what we are focusing on here, and gender-based violence in particular, which is predominantly violence by men against women. Do you not feel that there is an enhanced position for older people in any case, were the bill to progress?

Ronnie Barnes

I would like to think so, but I still think that we will miss a trick if we are not more specific about whom we regard as being covered by such treatment and who the perpetrators are. We need to send a signal that the abuse of older people is not to be tolerated. That is something that we do not really have in the current criminal court. The police probably find it difficult to prosecute in certain circumstances. There is the reliability or otherwise of witnesses, and older people themselves may not be very credible, particularly when there are issues to do with dementia and people’s lack of mental capacity. How will the people who are likely to end up in court become credible? There is a way in which people are being diverted or discouraged from following through on situations in which they are being violated and abused. We need to find a means whereby we all take this seriously.

The other thing that we are concerned about is that, from our research—as you will see in our submission—out of more than 18,000 crimes against older people, there were only 194 successful prosecutions. Most of the penalties were attendance at police courses, community service or suspended or deferred sentences. I am not suggesting that everybody should be locked up, but there are certain crimes for which we would expect somebody to be in prison for a significant time because of the violation of trust. The current penal policy is that people are almost diverted from being seriously dealt with, and it is not sending the right signals to future perpetrators that this is a serious matter. That is what we want to do—to send a signal and to highlight the issue as a growing and prevalent problem that needs to be addressed.

Mary Fee

Good morning. I would like to ask Alison Waugh for a bit more detail about abused men in Scotland. I was struck by a couple of comments that Mr Barnes made in response to a previous question. He said that elder abuse was underreported and was not always taken seriously. I suspect that you could almost say the same thing in relation to male victims of domestic abuse. Will you comment on that?

Earlier, Dr Scott said that, if the bill progresses, training—particularly of sheriffs and judges in court—will be critical. I am interested in your views specifically on male victims of domestic abuse. The majority of support organisations are female-based support organisations. Is there a job of education to be done with all the support organisations to make sure that they are absolutely gender neutral?

Alison Waugh

Yes.

Mary Fee

Thank you.

Alison Waugh

We have concerns that men are sometimes forgotten, as are older people. The research that Dr Scott referred to was about older women, not older men, so we do not know much about older men.

As for training, we strongly believe that although the training does not necessarily have to be gender neutral—we acknowledge that there are many gender differences—it must acknowledge the experience that many men have. We cannot quantify the proportion of domestic abuse that takes place that affects men—it could be anything between the 20 per cent of cases that come to the attention of the police and the figure of 50 per cent of cases that some researchers would come up with. The real figure is somewhere in between.

We also need to stress that coercive control affects men as well as women. In the initial research, when the terminology “coercive control” and “intimate terrorism”, which is similar, was first introduced, the authors insisted that such behaviour was predominantly what men did to women, but there has been quite a lot of research since then that illustrates that it happens a lot to men as well—it is carried out by other men and, more so, by women. It is very common. That needs to be recognised. It is being called “gendered abuse”. I presume that that is because it is between partners. It is possibly because it affects women more than men. However, it still affects a huge number of men and their children, who are in the homes where the abuse is going on, and we need to take it more seriously.

Men who are affected, and men we talk to, often say now that the police are quite aware of what is going on and understand. I think that the police were the first group of professionals to really get it. Social workers and doctors know that it happens; they all recognise it.

As it happens, I had an email yesterday from a man who suffered many years of coercive control at the hands of his wife. He raised a problem that he encountered that illustrated the need for training for judges and sheriffs. As he put it, when you are suffering coercive abuse,

“the unacceptable becomes not only accepted but expected”—

it becomes normalised. That was mentioned earlier. That means that when he talks about it, he is always minimising it and trying to excuse it. He had two cases of criminal assault that went to court and he found it very difficult to be critical of what his wife had done. He kept thinking, “Well, I was married to her once and she’s the mother of my children.” He was used to minimising it and explaining away the injuries or the awkward situations that cropped up. The problem was that there was a not proven verdict in both court cases because he did not seem to be affected enough.

That seems to be a gendered problem. On average, a lot of men do not show the emotion or the hurt or damage that has been done. Sometimes, they show anger, and that does not work in their favour at all. If they do not show any emotion at all and just try to stick to the facts, it works against them because all that happened is dismissed. He was very much in favour of training.

We would say that the training must be gender inclusive rather than gender neutral, so that we can talk about issues that particularly affect men, issues that particularly affect women and those that affect people who do not identify as either. We need to make sure that everybody is addressed. Even if the figure were 1 per cent it would be important, but it is a lot more than that.

12:00  

Mary Fee

Do you have any information on whether men are more likely to wait longer to report abuse?f

Alison Waugh

They seem to take much longer. Sometimes that is attributed to masculinity or a feeling of pride. Men sometimes believe they should be strong, and that to admit they are being abused by somebody whom others might consider to be weaker than they are makes them less of a man. That position is put across quite often.

Men also find it hard to find support. Our charity is tiny, and we sometimes realise that it is not well enough known. We are still working on that. However, we could not cope with all the cases if we were better known. There is a lack of services, and, in the past, there was an issue about going to a service and being laughed at and not being treated seriously.

The public narrative about domestic abuse always says that it is about violence against women and girls by men. I do not think the abuse of men was mentioned in the earlier evidence session today. Fair enough, it was women’s organisations, but sometimes the narrative that we just heard is the only one people hear. When a man begins to realise that what is happening to him is not right and he is feeling awful, he cannot recognise that it is domestic abuse because that happens to women; it is a women’s issue. We need to find a way to maintain the importance of recognising violence against women while raising awareness that there is violence against men as well. It is equally important: for each man there is, on average, the same amount of suffering.

Mary Fee

That has been very helpful, thank you.

Ronnie Barnes

May I just amplify that? Ten years ago, our charity carried out a UK-wide prevalence study of abuse of older people. In Scotland, among people living in their own home, more men than women were subject to abuse, which was contrary to the trend across the rest of the UK. That was 10 years ago, and it was a partial study, but I just wanted to amplify Alison’s point about how men are also likely to be victims of domestic abuse, contrary to what the national profile would suggest.

Alan McCloskey

I echo those comments. Our organisation is gender-inclusive—I think that is the right phrase—throughout. Approximately 13 per cent of our referrals are from men. When we talk to men, there is a particular stigma about the issue and a reluctance to come forward, because it is not seen as the right thing for a man to do. Somehow, it is more difficult, and men struggle to come forward and admit that they are being harmed and hurt in a relationship, whether it is with a male or a female, and that it has gone on for a period of time. Awareness needs to be raised to encourage people. The bill provides an opportunity to encourage all victims of domestic abuse and violence to come forward and ask for help. Asking for help and support is the right thing to do.

We are a national organisation and we work with partners to encourage and support individuals to have the courage to come forward. Hopefully, through the bill, victims will have the confidence to say “enough is enough” and ask for help.

There were questions and discussions earlier about training, and there absolutely should be training for the authorities, whether it be the police or the prosecution service. They want to tackle the issue. We welcome the opportunity to work with our partners to encourage people to come forward, have the strength to come forward and let justice be done.

Alison Waugh

I have one more comment about the need for training. I was really quite shocked by something that the person who emailed me yesterday threw in. He said that he was

“informed, by someone who was present, that in the lawyers’ room in the Sheriffs Court before the case against my wife was heard, there were a number of ribald remarks about a man being a victim of female violence and casting doubts on my masculinity.”

If people come across that attitude, men will not be encouraged to come forward. If that attitudfe is prevalent in the legal profession, we have a big problem.

Rona Mackay

The bill will raise awareness for all victims of domestic abuse. It might encourage men to think, “Well, what’s happening to me isn’t right,” and give them a voice. It goes back to what Alan McCloskey and Kevin Kane were saying. Do you agree that the bill is a good thing to raise awareness generally?

Alison Waugh

Yes, it might be. When I first heard about the possibility of a law on coercive control, I thought that it might work in men’s favour. Men often suffer major serious assaults, but domestic abuse is often a low-level, constant attack that they do not recognise as abuse. If such behaviour is publicised, I think and hope that more men will recognise it and more women and other men will recognise it as a behaviour that some people do not actually realise they are doing. I do not know whether that is possible, but it would certainly be a sharp reminder to people to be careful of their behaviour.

Oliver Mundell

My question has been answered.

Ben Macpherson

Ronnie Barnes spoke very purposefully about the broadening of the bill’s scope. You are trying to capture a definition of abuse, as well as of partner and ex-partner, so if you were to redraft the definition, what would you put in?

Ronnie Barnes

I suppose that we would go with the definition that we have in our charity:

“A single or repeated act or lack of appropriate action, occurring within any relationship where there is an expectation of trust, which causes harm or distress to an older person”.

That is very broad, but it is anything that strays into criminality in terms of abuse—violence, psychological abuse and financial abuse. It would not be hard to work up the things that we know go on daily. It is also about neglect, which is another feature of abuse that is probably a bit more insidious. It might happen in care homes, for example, through their standards. Again, it is about trying to find the threshold at which something that was a poor standard becomes a wilful criminal act. It is about trying to find the wilfulness as opposed to, if you like, the more benign but cumulative effect of poor standards of care.

It is a complicated area. I am not in any way suggesting that it is easy to find a form of words or draft a section in the bill that will answer what I am looking for but, if we do not do it in the bill, we will have to do it somewhere else. This is coming down the track at us. Until we address it and get people to take it seriously, it will still go on.

It is interesting to note that other countries have made the abuse of older people an aggravated offence. At our conference last year, a prosecutor from San Diego talked eloquently and passionately about having had that law in force for the past 20 years and the benefits that it had brought to his community.

Ben Macpherson

For clarity, that was more an expansion on the concept of abuse. I am grateful for that, but I am interested in the perpetrator. How would you seek to articulate that? Would the definition be expanded to include family members? Do you see the ambiguity that I am struggling with here?

Ronnie Barnes

There are unscrupulous people out there—not necessarily family members but people who get close to victims and are able to exploit them. We need to find a means by which we send a signal that that is unacceptable.

We have, if you like, a regulated workforce that looks after older people, but, because people are able to look for and buy in their own care, we also have an unregulated workforce that people can bring in, and there is no way of knowing how unscrupulous those people can be. They can target victims. Let us face it: people in their latter years become more vulnerable, and that is before we talk about dementia and people’s capacity to understand what is happening to them.

As I say, this is not easy, but I still think that we can look elsewhere and see what other nations have done to address the problem. If we do not address it, the problem will not go away. We are gratified that the bill will happen. It is an opportunity for us at least to have our concerns for older people addressed, and I know that it will not be easy for you to do that.

Ben Macpherson

Alan McCloskey mentioned figures for the percentage of male victims of abuse in a survey that Victim Support did. Can you clarify the percentage for female victims of abuse?

Alan McCloskey

Of the people who come to our service, 87 per cent are female and 13 per cent are men.

Fulton MacGregor

In the earlier evidence session, there was a lot of talk about non-harassment orders that can be implemented by the court. What are your views on elders and men getting a non-harassment order for their abuser in those circumstances? Would there be any complications in those situations? A person who is abusing an older person might have a significant caring role that might not be able to be picked up elsewhere or through community services.

Some time ago, I was made aware of a situation in which a male had been a victim of domestic violence. The female got a non-harassment order—that is strange in itself, because they are not used a lot—and it led to extreme difficulties in the family. It led to the children needing other interventions, because their needs were not being met.

Have you thought about how the non-harassment order can impact on your specific client groups?

Alison Waugh

I do not have statistics to hand on how many of the men whom we work with have tried to get non-harassment orders. I am a trustee—the service manager, who should have been here, is ill—and I am not sure how many of our clients have tried. I know that it is something that is not usually suggested to men. Very few would try, and few would get one.

If there is any legal obstacle to men being with their family, which can often happen in other circumstances—

Fulton MacGregor

At the moment, the procurator fiscal would—

Alison Waugh

I am finding it hard to hear you. I am really sorry.

Fulton MacGregor

The procurator fiscal would apply for the order, but there could be a change to the legislation so that there was more of a presumption that, if somebody had committed and been convicted of an offence, a non-harassment order would be put in place. I am thinking about the possible impact and whether a male having a non-harassment order would experience a different impact from the likely impact that we talked about more fully in the earlier evidence session.

12:15  

Alison Waugh

Sorry, I am still not hearing. I will let Ronnie Barnes say something because I am not quite sure.

Ronnie Barnes

On the situation regarding older people, one of the successes of the past 10 years has been the adult support and protection legislation, which covers the more complicated issues to do with carers becoming perpetrators and familiar situations such as, “I do not want my son to leave the house, but I want the abuse to stop”. There are means by which that legislation can invoke short-term measures such as banning or removal orders that can, in fact, bring about some change.

We are not trying to criminalise everything or interfere in family life, as was said in the earlier session. One of the main criticisms of the bill will probably be about how much the state is interfering in family life and how much of what happens is actually just what happens in families. It is all about finding the line where you are straying into criminal behaviour. There are still means of addressing some of the more complicated family situations through adult support and protection legislation in Scotland. When they go beyond that is when we have to be clear about what is criminal behaviour and what is not. There are means by which we can do that through the bill.

Alison Waugh

Yes, I agree with that. Many men would not necessarily want their abusive partner to be taken away or not allowed to make contact. It should be decided on individual cases; it should not be automatic. The possibility should be there for it to be relatively straightforward to put in place if it is needed.

Kevin Kane

Will the committee allow me to illustrate the chronology of the court journey of one of our service users? It will take a couple of minutes to talk it through, but it is in relation to a non-harassment order. It culminates in a non-harassment order, which, I believe, should have happened sooner. I am tying a number of things to the bill as I go. It will just take me two minutes to read.

The Convener

As long as there is no question of anyone being identified.

Kevin Kane

Absolutely not.

The Convener

Please be as general and as brief as you can.

Kevin Kane

For the purposes of anonymity, I have changed all the detail. There is just the essence of the case, and the timeline is not exact. It is worth noting that there was a psychological and coercive element in the case and that threats had been repeated.

We will call the individual “Maggie”. Her then partner pled not guilty to three charges of disorderly conduct, sending menacing statements and a common-law breach of the peace. He was granted bail, despite the procurator fiscal opposing bail. The case met the conditions in section 1, relating to a course of behaviour; in section 1(2), that a reasonable person would consider the behaviour likely to cause psychological harm; and in section 2(2)(a), that the abusive behaviour included threats and intimidation. We are not entirely sure what the sheriff would have done had he been able to use provisions such as those in the Domestic Abuse (Scotland) Bill, but it is clear that it would have been less discretionary.

The now ex-partner was making life difficult. He was released on bail, and the threats continued. At this point, the procurator advised the police to consider whether there would be evidence to support a charge involving a contravention of section 39(1) of the Criminal Justice and Licensing (Scotland) Act 2010, which, the committee will be well aware, refers to stalking. In the interim, the perpetrator was called again to the civil court, and, although the petition did call in court, no further order was made and the accused was released again. The accused was then arrested for sending sexually explicit texts, and, as outlined in section 4(2) of the bill, in his attempts to make contact with the child of the partner, he used that child to direct behaviour at the partner. That was not taken into account during the process.

Bear with me. This is important, and I will get to the relevant point.

Finally, the case called again, six months after the initial hearing, which was six months after the first threat—the first intimidating behaviour—occurred. The law failed our service user. At that point, the sheriff sentenced the person to a community payback order, a fine and a three-year non-harassment order.

My point, which I will summarise quickly, is that that could have been achieved three or four months earlier if our client had not had to go between the civil and criminal courts. The process meant that she was victimised over and over again and traumatised as a result. As a victims’ rights group, we want to support and signpost as best we can. A unifying law would have enabled us to do that.

Finally, with regard to recklessness, it is important to pick up on something you said about the responses of men. The concept of recklessness is actually in the bill. It means that the focus will be on the perpetrator whether the victim is a man or woman. Even if a man is being a bit stoic and taking a bit longer—

The Convener

Could we maybe cut through this? Is it your point really that the non-harassment order could have been issued at the very beginning?

Kevin Kane

Absolutely.

The Convener

The stalking was proved. The threatening communication by text was proved, but there was no automatic order.

Kevin Kane

Yes, and the overarching coercive and psychological element was not considered.

The Convener

Yes. That might have been an aggravating factor.

Kevin Kane

And the aggravating factor in relation to the child.

The Convener

Okay. Thank you.

Ben Macpherson

Just for clarity, you are supportive of the inclusion of recklessness.

Kevin Kane

Yes.

The Convener

Okay. Fulton, are you happy?

Fulton MacGregor

Yes.

Liam McArthur

I have a brief question about the wider scope of similar legislation south of the border. We have heard evidence that, to an extent, it is too early to tell what the impact of that legislation has been. We heard suggestions from the first panel this morning that cases brought under that legislation had been more limited, albeit, I think, that that was in the context of the thresholds for abuse. It would seem that the legislation in the rest of the UK broadens out to include some of the situations that Mr Barnes and you, Ms Waugh, have been alluding to. Have you any impression of how that legislation is operating to date?

Ronnie Barnes

I do not. I hope that the research will not show that it somehow weakens the impact of the bill. That is something that might have been suggested in the earlier session. It might well be the case, but I cannot really see how including people who have significant responsibilities and roles with older people can be seen to weaken the bill. If they are included, it makes it clear that they are included.

Liam McArthur

I think, to be fair to Dr Scott, that she was making that point in relation to the threshold of harm rather than the breadth of those it covers.

Ronnie Barnes

In that case, it might suggest that widening the definition of who could be the abuser might not weaken the bill and, if that is the case, maybe that is evidence. If you can gather evidence to suggest that widening the bill’s scope would help to bring in the people whom I am talking about, who need to included, that might encourage you to widen the definition in the bill.

Liam McArthur

Does Victim Support Scotland have a view, or do you fall into the camp of it being a little early, given that the implementation was only at the very end of 2015?

Alan McCloskey

At the moment, it is too early to call that one.

The Convener

We have evidence from mothers and organisations that represent mothers and fathers about child contact being used by an ex-partner to abuse or undermine the other parent. Does Alison Waugh have any views on that and what might be done to address it?

Alison Waugh

Yes, and I was hoping to mention it. When fathers who have been abused leave the abusive home, as they usually do, and become non-resident fathers, an awful lot of abuse continues. In fact, it is overwhelmingly men who suffer from that, although I know that women also do.

Issues around contact and the difficulty of achieving contact in the first place can be costly. It can mean visits to the courts. A father has to prove that he is a good father. He might have been the main carer until the separation but even then, if the child stays with its mother, in some cases, unless there is an amicable agreement about contact, men often find themselves having to prove that they are a good father and even having to prove that they are safe for the child to be with, even though the child was in their sole company for lots of time up until the separation. That is a problem.

Contact can be turned off and on, apparently on a whim. Arrangements can be changed, and court orders can be breached. In most cases, men are totally helpless if that happens. If they show annoyance that, having turned up to take the children, for some reason they are not allowed them and get angry, they are at risk of the police coming because they have maybe shouted or sounded aggressive when they are actually just extremely upset. That can lead to all sorts of difficulties. It is a major issue, and people who support fathers in those situations feel strongly that it should be included as one of the behaviours that constitute coercive control.

That sort of behaviour abuses the child too, because it deprives a child of the benefit of a loving parent. Obviously, cases where one parent is really dangerous and can be shown to be so are different. I am talking about people who are not at all dangerous; they are in an acrimonious situation; they are not dangerous. That is a major problem, and it even extends to schools being told by one parent not to allow the other parent any information about the child when there is no legal reason why. It is constant controlling and making life difficult for the other person, and it can be very upsetting for the person who is affected and for the child. The child also needs to be considered. It is a form of child abuse.

Sometimes, child contact is denied because more money—more child support—is being asked for. The organisation that deals with child support was the Child Support Agency; it is now the Child Maintenance Service. Years ago, I was involved in a case in which the mother claimed that the father had resources that he did not have. It took 18 months for that to come to a tribunal, at which it was agreed that he did not owe any money. During all that time, he had the stress and the threat of sheriff officers coming round to extract money that he did not have. It was appalling abuse. That was an example of using another organisation to exert coercive control over a partner with whom you no longer have a good relationship, and that is very serious. For a while, some men committed suicide as a result of CSA action. I have not been involved in a case recently, so I do not know if it is quite as bad now, but it is certainly something we need to bear in mind.

The other thing is the false accusation of abuse for a purpose, especially in separation battles. It is an easy way to not have to see your former partner whom you do not really want to see again for good enough reasons. Again, there is no legal reason to separate the child from that parent. You do not want to see him, but your child is a different person and it is his or her parent.

Employers are often approached, and we have come across a few cases where someone is a policeman or a teacher and an accusation of abuse or violence would seriously compromise their employment prospects. They would be likely to lose their job. In some cases, there were repeated inquiries to check out the truth of the accusations. The men were found to be faultless, but the stress and the waste of time for everybody were really difficult.

I would like to think that making use of other organisations or other people, such as brothers and fathers, to harass an ex should come under the umbrella of coercive control.

12:30  

The Convener

Does Victim Support Scotland have any views on that?

Alan McCloskey

I will make a general point about the impact of domestic abuse and violence on a child. What they have to witness and experience cannot be overestimated.

For some children, unfortunately, that is the norm that they live with. As a society, we want to avoid a situation where a child witnessing such abuse believes that it is acceptable, potentially moving on to offending behaviour.

We give a lot of support to children who appear as vulnerable witnesses in the court setting in different categories: some of them are under eight years old, some under 12 years old and some under 18. Having supported such children, we know that it is incredibly difficult for them to recount and recap what they have witnessed. Further work needs to be done to understand what support and help can be put in place for children who are caught up in a violent family in which the perpetrator is causing harm, whether it be to the male or the female.

The Convener

That concludes our questioning. Thank you all very much. I assure Mr Barnes that he has well and truly raised an issue that, we are all aware, needs much more attention. At the very least, please be assured of that today. Thank you all for attending.

We now move into private session. The next committee meeting will be on Tuesday 20 June, when we will continue taking evidence on the Domestic Abuse (Scotland) Bill and consider our work programme.

12:32 Meeting continued in private until 12:39.  

The Convener (Margaret Mitchell)

Good morning and welcome to the Justice Committee’s 23rd meeting in 2017. We have received apologies from Mary Fee. Agenda item 1 is our fifth evidence session on the Domestic Abuse (Scotland) Bill. I refer members to paper 1, which is a note by the clerks, and paper 2, which is a private paper.

I welcome our panel of witnesses. Dr Ruth Friskney is research and policy officer at Barnardo’s Scotland, Chloe Riddell is policy manager at Children 1st, Megan Farr is policy officer with the Children and Young People’s Commissioner Scotland, and Brandi Lee Lough Dennell is policy and research manager at LGBT Youth Scotland. I thank all the witnesses for providing written submissions, which are extremely helpful to the committee. I invite questions from members, starting with John Finnie.

John Finnie (Highlands and Islands) (Green)

Thank you, convener. Good morning, panel, and thank you for your submissions. Could you please outline whether you feel that there is a gap in the existing legislation regarding domestic abuse and whether the bill will fill that gap?

Dr Brandi Lee Lough Dennell (LGBT Youth Scotland)

Thank you very much for inviting us to be on the panel. The main gap in the existing legislation is about patterns of behaviour and coercion. At the moment, things like stalking and harassment can lead to a conviction and be reported, but we know that domestic abuse is really a pattern of control: it is controlling behaviour and it is coercive. Those are the things that reduce people’s liberty and make them feel threatened or fearful, or make them limit their activities in order not to provoke—so to speak—further coercion. From our work with lesbian, gay, bisexual and transgender people, we know that that is a major gap in relation to what they are able to report. I will leave it at that.

Chloe Riddell (Children 1st)

Children 1st echoes what Brandi Lee Lough Dennell said. We would like it to be clear that the evidence that Children 1st is providing today seeks to strengthen the bill, and that we absolutely and unequivocally support the bill and recognise the need for it.

Nearly one in three of the children and young people, parents and carers whom we work with is, in some way, affected by domestic abuse. We think that there is a need for a strong legislative framework to address the gap in the current law, in particular with respect to what coercive control looks like, but also—as we have highlighted in previous evidence—around the experiences that children and young people have as victims. We accept that that has been included with respect to the aggravator, but we still think that there is a significant gap in the way that children and young people are recognised as victims in their own right.

Dr Ruth Friskney (Barnardo’s Scotland)

Barnardo’s, too, echoes what has been said. One of the things that women and children tell us about their experiences of domestic abuse is that they experience it as a whole environment; it is a whole course of behaviour. The bill fills a gap by recognising that domestic abuse is a course of behaviour rather than individual incidents.

Megan Farr (Children and Young People’s Commissioner Scotland)

The commissioner’s office did some research in 2013 and, more recently, did a participation project with children and young people who had experienced domestic abuse. That showed exactly the sorts of things that the other panellists have talked about, which is that domestic abuse is about patterns of behaviour. There is a cumulative effect; things might not, when they are looked at incident by incident, constitute abuse, but cumulatively they do. That is what the children and young people have told us in the work that we have done.

John Finnie

Thank you all for that.

The response from Children 1st says that it

“would have preferred a parallel criminal offence of domestic abuse against children to be included on the face of the Bill.”

You go on to say something that I found concerning:

“We remain concerned that failing to recognise children as victims of coercive and controlling behaviour within the proposed offence will make children less visible to services”.

Can you expand on that, please?

Chloe Riddell

As I mentioned initially, we welcome the aggravation that has been included, but we remain concerned that the full impact of domestic abuse is not reflected in the bill. We think that, if it were to be fully reflected, children would be more visible and there would be more of a culture change and a clearer understanding of exactly what the impact of domestic abuse is on a child.

The focus that we are looking for with a parallel offence is on the perpetrator’s behaviour. We know from our services—we provide relational support and trauma recovery services to children and families—that domestic abuse has far-reaching and long-term psychological impacts, as well as physical impacts, on children. We know from research on adverse childhood experiences, of which domestic abuse is one, that there are significant impacts on the child, and that if they do not receive appropriate trauma recovery services at an early stage, the abuse can impact on their adult life.

In terms of the impact on a child, we know that there are people who are living in a permanent fight-or-flight mode. We know that the women in particular whom we work with—I know there are men who experience domestic abuse—live with intense levels of fear. One of our support workers specifically asked me how we can we expect somebody who is living permanently with that neurological response to think about making a nutritious meal for their child, about getting them to school and all the other issues. In one of our support groups we have six six-year-olds, and every one of them has called 999 at least once in their life. They are six years old.

We think that the bill as it stands does not recognise that significant impact and the perpetrator’s behaviour—the way in which the perpetrator perpetrates domestic abuse—which is a significant gap. Such recognition would make the child more visible to services because it would be clear acknowledgement that the child is a victim. It would also allow some services that perhaps do not fully understand the impact of coercive control on a child to look at that behaviour in a different way.

As all the others have highlighted, Children 1st thinks that there is a clear need for access to trauma recovery services and family support services for all the families that we know are affected by domestic abuse. Does that answer your question?

John Finnie

Is it not sufficient that there is an aggravation if there is a child involved?

Chloe Riddell

For us, it is not a case of either/or; we would like both. We think that they provide a totally different perspective. The aggravator recognises that a child is in the household and the effect of the perpetrator’s behaviour, but the parallel offence would recognise that the child is a victim in his or her own right.

The best way of putting it is to read out something that the Scottish Children’s Reporter Administration said in its written submission:

“the offence against the adult victim can be established with evidence of abusive behaviour directed towards a child … (section 2(2)(b)). It seems anomalous for this to the case, without recognising the child’s experience of abusive behaviour as a separate offence.”

The child can be recognised within the adult offence, but there is no provision at the moment for an offence against a child, which seems to us to be an anomaly. We agree with the SCRA on that.

Stewart Stevenson (Banffshire and Buchan Coast) (SNP)

You say that it is about children accessing services, but section 9 of the Children and Young People (Scotland) Act 2014 says that a children’s services plan is to be prepared so that

“children’s services in the area concerned are provided in the way which—

(i) best safeguards, supports and promotes the wellbeing of children in the area concerned”

and

“(ii) ensures that any action to meet needs is taken at the earliest appropriate time”.

You will be familiar with that. How does the introduction of an offence create better support for children, beyond what is in the 2014 act? I do not understand the link between such an offence—for which, I acknowledge, a case can be made—and children not getting access to services. It seems, at least prima facie, that there is adequate provision in legislation already.

Chloe Riddell

For us, it is not simply about access to services. That is an element of it, but there are other reasons, as you said, for including the offence in the bill. Specifically in terms of access to services, a clear recognition that a child is a victim often makes it easier for services to be available to them—for services to be visible.

We know the dynamics of domestic abuse and the way that it works. Often, people do not recognise themselves as victims, and, often, services do not recognise people as victims. If a child is specifically recognised as a victim, their visibility increases. It is not just a case of saying that the issue is addressed in the 2014 act. We are not asking for anything around services to be included in the bill. The point that Children 1st is making is that that visibility will facilitate a culture change and the recognition that coercive control is a pattern of behaviour and impacts not just on women or the person who has been abused but on children and young people. It is important that there is that access to the recovery services that we know children and young people require.

Stewart Stevenson

The 2014 act is not fully implemented—I accept that straight away. Are you saying that barriers exist and that children are not getting access to services because there is not an offence, and, if so—

Chloe Riddell

No.

Stewart Stevenson

If you are not saying that, why do we need an offence to give children access?

I recognise, convener, that the witness from the commissioner’s office also wants to say something.

Chloe Riddell

The others can answer, too, but, for us, it is absolutely not about linking the need for an offence with the need for services. We are saying that, if there is an offence in the bill, it will, by the nature of the way that it works, mean that children are more visible to services. We are not saying that creating the offence will mean that more services are available; in fact, we have repeatedly said that our services have waiting lists. There are not enough services for children, but we want to make sure that the children who require help get it as quickly and as early as possible and that work on the effects of domestic abuse on children can be done by the family support services that are available. That does not mean that an offence is created and, therefore, there are more services; that does not follow. The point that we are trying to make is that, by making sure that there is better training and a clear sense of the child as a victim, children will be more visible to services.

Perhaps others might want to come in.

Megan Farr

On the main benefit of having a separate offence in relation to children, I want it to be really clear that the ask—it is a collective ask from a group of women’s and children’s organisations—is to have an offence that recognises the harm that is done to children when there is domestic abuse either of their parent or in the environment that they live in. It is not—I think that this has been misread a couple of times—an offence of coercive control of children; it is the harm that is done to the children when there is coercive control in the environment in which they live.

Increasing the visibility of children in such cases has a number of knock-on benefits. One of the important ones is the effect on the decisions that are made in the civil courts. We hear evidence from children and young people and their parents—mostly, but not only, mothers—who contact our office that, sometimes, there can be a conviction with regard to the mother but, because there is no conviction with regard to the child, contact continues to be ordered and the children feel very clearly that such contact is not safe and that they do not feel safe. Any rights regarding contact for the perpetrator—if they have been convicted, that is what they are—are contingent on that child being safe. The creation of a separate offence relating to children in the specific context of domestic abuse is one way of making sure that children have the same protection under the bill that adults have.

10:15  

The aggravator is also important, partly because it is complementary, partly because of the way that sentencing works, in that the aggravator will be reflected in sentencing—two concurrent convictions will not necessarily do that—and partly because it is a useful tool for prosecutors to have. It gives them options, depending on the situation and factors such as the age of the child. That is why we think that it is really important to strengthen the aggravator—we have collectively talked about that in our evidence—and to have a separate offence in relation to children.

Stewart Stevenson

Section 6 of the bill is about presumption of a relationship. I am hearing the suggestion that you might want to draw the provision more widely than simply where there is a presumption of an intimate relationship, which is, in essence, what the bill says, between the perpetrator of the abuse and a parent or someone who has parental responsibilities for the child. Are you trying to draw it more widely than that? If we do not do that, I wonder whether we are discriminating against some children by including some and not others. In other words, at this stage of the process, we appear to be opening up something quite wide. Is that how you see it?

Megan Farr

No, not at all. We are comfortable with, and agree strongly with, the definition of domestic abuse that is in the bill. The language that I used reflected the fact that families are more complex and, in fact, have always been complex. If our definition of children was too narrow, we could ignore, for example, a child who was in kinship care and was not biologically the child of either parent in that household but was still a member of the household and was affected by domestic abuse. If we were just to talk about “household”, we would risk excluding a child who no longer lived at home but who lived with a grandparent because of the abuse. However, I think the bill deals with the issue quite well. It talks about “a child of B”, but also talks about “any other person”. Although I would like it to specifically say “any other child or person”, particularly in the provisions on children, that keeps the focus on the immediate impact and reflects the fact that the family may not be mum, dad and two children who are biologically related to both mum and dad, and could include kinship care and informal fostering relationships.

The Convener

We have two other supplementary questions. I hope that they are short questions. That was supposed to be a short one, but it grew.

Stewart Stevenson

I know—sorry.

Fulton MacGregor (Coatbridge and Chryston) (SNP)

As things stand, children who are present for or who witness a domestic abuse incident in a household are referred to the children’s reporter. Do you know off hand whether such referrals are likely to happen? I could not see anything in the bill. Would such referrals alleviate some of your concerns? If somebody is charged with an offence under the bill, will there be an automatic referral to the reporter of any children in the household? Because the convener mentioned time, I ask for just one answer.

Dr Friskney

I will come at your question slightly sideways. With regard to a parallel offence, we are looking for a recognition that, when a person chooses to abuse their partner or ex-partner and there is a child, they are also committing an offence against the child. There are obvious impacts on the child’s welfare, but we are also seeking to hold the perpetrator to account for how their behaviours harm the child.

One of the things that we know from what children and young people say about their experiences is that they do not feel that they are acknowledged as victims of an offence. The committee has heard previous evidence about one of the hopes for the bill being that, if it better reflects the experiences of domestic abuse of women and children by capturing coercive control, women and children might be more likely to feel confident in the system and more likely to seek help, and we might have more opportunities to intervene by providing them with support and tackling the perpetrator’s behaviour.

I want to focus on the fact that one of the reasons for seeking a parallel offence is so that the perpetrator can be held to account. That is not the same thing as putting in place supports for a child. Does that answer your question?

Fulton MacGregor

Yes, that was a good answer, thanks.

Oliver Mundell (Dumfriesshire) (Con)

The parallel offence that has been discussed would only be in relation to the offence of coercive control that is in the bill. If the witnesses are talking about the wrong that is done to children and young people by domestic abuse, surely they would want the bill to go much wider and take into account physical domestic abuse, which could cause just as much harm. If they want to create a catch-all offence for children, I wonder whether the bill is the right place to do that, or whether there should be parallel legislation that creates a wider offence that covers such issues.

Chloe Riddell

We are all quite clear that the bill is absolutely the best place for a parallel offence because it needs to be seen in the context of the partner or ex-partner relationship. As Megan Farr said, we are not asking for an offence in the bill in the absence of that existing relationship. It is important that the whole context is seen. We know how domestic abuse and coercive control work, so we know that it is important that the perpetrator is held to account both for the abuse that may be occurring within the relationship and for the abuse that may be perpetrated on the child.

For us, the best place to put a parallel offence is in a domestic abuse bill, because we are talking about that very specific offence against a child within the context of the relationship. We are not talking about anything wider than that. I know that the child protection improvement programme will look at some of the other issues, including updating the offence under section 12 offence of the Children and Young Persons (Scotland) Act 1937. What we are talking about here is coercive control and physical abuse as domestic abuse in the context of the relationship that is set out in the bill.

Megan Farr

One of strengths of the way that the bill has been drafted is that it contrasts with the experience in England and Wales. It includes physical incidents as part of a course of behaviour, so it will include the incidents that Oliver Mundell was referring to.

Mairi Evans (Angus North and Mearns) (SNP)

I want to tease out some of the evidence that has been given today, particularly by Children 1st. In your submission, you say that

“greater consideration”

needs to be given

“to how the offence would apply to partner violence between children and young people”.

You also highlight how often your services

“work with young people who are coerced into performing sexual acts against their will”,

and say that

“the normalisation of certain sexual behaviour amongst young people can create pressure to conform.”

Will the bill address those issues? What should be added and what more work needs to be done in that respect?

Chloe Riddell

Thank you for the question. We have a particular concern about 16 and 17-year-olds. We know that there are abusive relationships among children. Given that there are no age restrictions in the bill, we have specifically asked for particular consideration to be given to the treatment of children and young people who are accused of domestic abuse under any new offence that is created.

It is about thinking a little about children who are going through the criminal justice system and making sure that, without excusing any abusive behaviour, the criminal procedures are as they should be but contain some element of child protection—particularly for children who have been coerced into a particular type of behaviour—and that there is interaction with child protection procedures for children who are in abusive relationships.

We do not think that anything needs to be added to the bill, but there are, perhaps, training and guidance issues. We know, for example, that some of the younger people whom we work with have had numerous adverse childhood experiences, which can sometimes have an impact on their behaviour. We have been talking about the importance of relationships, sexual health and parenthood education and the need, through the equally safe delivery programme, to challenge gender stereotypes and highlight preventative programmes that look at gender equality. For us, there is a prevention issue as well as an issue around how children who are accused of abuse are given support not only to change their behaviour but in their experience of the justice system, because they are children and will not be convicted as adults.

Mairi Evans

You are saying that the issue is more about that work rather than anything in the bill. Does anyone else want to comment?

Megan Farr

A lot of work is going on at the moment. There is a particular gap around 16 and 17-year-olds in the children’s hearings system, which, I understand, is being dealt with separately. That is probably the right place for that to be looked at, but we would very much hope, and would argue strongly, that anyone who is under 18 should be treated as a child and in an appropriate way.

Dr Friskney

In general, we would question whether there is enough recognition of coercive control in teenage relationships. Is that picked up and identified? When it is picked up, do young people have access to services that they can identify with as young people experiencing coercive control? We have a couple of services specifically for young women and for young men as perpetrators. It is about trying to find a service that they can identify with—a home where they can work through their experiences.

Chloe Riddell mentioned the importance of relationships, sexual health and parenthood education. One of the things that we would emphasise is the importance of that being accessible to young men as well as young women, with messages that are really accessible to young men about what it is like to be a parent and a father. We talk a lot about having standards for fathers as parents that are as high as the standards that we have for mothers as parents. An issue that has come up in the work that is being done in Polmont with young offenders is that young men worry that they are not being a good enough father. They are asking for more information and they do not feel that they have enough input. That is a really important piece of the puzzle when it comes to challenging the gender stereotypes and structural inequalities in society that contribute to domestic abuse and coercive control in young people’s relationships as well as in older people’s relationships.

Dr Lough Dennell

I absolutely echo everything that my colleagues have said. One thing to highlight about RSHPE and any kind of preventative work is the need to absolutely ensure that it questions gender inequality and recognises domestic abuse as a form of gender-based violence. However, there also needs to be a recognition that the messages that men receive are not only about perpetrating domestic abuse and the messages that women receive are not only about potentially experiencing domestic abuse. We know that research shows that gay, bisexual and transgender men—particularly gay and bisexual men—are more likely to experience abuse in their first relationship than their peers but less likely to recognise it because they see the public story that those who experience domestic abuse are women. Gay, bi and trans men do not see themselves in that public story, so they face additional barriers even in recognising it, let alone knowing where to access support. RSHPE needs to be gender aware but also gender inclusive.

10:30  

Mairi Evans

You have raised a couple of important points that colleagues will touch on later. A point was made about the support that is there to address coercive and controlling behaviour between young people. Is such behaviour recognised? Is there much recognition of and support for dealing with that, or does that have to be developed alongside the bill?

Dr Friskney

I would certainly question whether such behaviour is always recognised. I remember a young woman—a teenager—in a third relationship who had an expectation of abuse that had been established from her previous relationships. It is clear that that had not been picked up in the previous relationships before she got to that point. Are we identifying coercive control when it happens in teenage relationships, or is it our image that coercive control happens in older people’s relationships?

Chloe Riddell

That goes back to the questions that were asked about services, the recognition of what is happening in relationships and the impact that the act could have. If there is a clear recognition across Scotland of what coercive control looks like, children and young people who are affected will be more visible. If there is more understanding of what that looks like, the available services will be able to respond better to the children, because we will know who they are.

Rona Mackay (Strathkelvin and Bearsden) (SNP)

I will ask about your concerns about section 4(2)(b), which is about where

“a child sees or hears, or is present”.

Barnardo’s Scotland says that that

“sends a message that a child expressly requires to witness domestic abuse in order to be harmed by that abuse”

and that it is incident specific. Will you flesh out your concern a wee bit more?

Dr Friskney

It is worth saying that we think that the bill has progressed enormously. The fact that an aggravation is in it is a really positive step, but we do not think that it quite catches the different ways in which women and children experience abuse together. I am sure that colleagues will also have perspectives.

One concern is that, as the aggravator is drafted, it could penalise the efforts and the work that women put in to protect their children from abuse. When I was in training yesterday, one of the examples that came up was of a woman who was experiencing domestic abuse, including quite severe physical abuse—she was being strangled. What she reported thinking when she was being strangled was how important it was that she did not scream because, if she screamed, her child would become aware of the abuse, and what she most wanted to do was protect her child from that awareness.

Let us think about that in relation to how the aggravator is drafted. We know that women do a lot of that kind of work, so children who are affected might not be recognised. Not only would a child not be recognised, but that element of how the woman experienced the abuse would not be recognised. That is one concern; colleagues might like to add further concerns.

Chloe Riddell

I echo what Ruth Friskney said. We recognise the work that has gone in and how far we have come. Our recommendations are intended to strengthen the aggravator rather than to criticise it.

Further clarification is required of the provision that

“a child sees or hears, or is present”,

because, as Ruth Friskney said, a lot of work often goes into making sure that a child is not present.

We have questions—I think that Scottish Women’s Aid referred to this—about the fact that a child may be out of the country, out at a sleepover or otherwise not in the house when incidents occur. A UNICEF report into the impact of domestic abuse on children found that

“Those who are not direct victims have some of the same behavioural and psychological problems as children who are themselves physically abused”

or emotionally abused. It is really important to recognise that, as it stands, some of this is down to interpretation about whether a child or baby is there. Another question is what financial control looks like if a child is not physically there.

There is some work to do. We have suggested language about whether the perpetrator is reckless as to whether a child sees or hears behaviour, but there is perhaps better language. We are definitely concerned about the issue.

Megan Farr

We would really like the aggravator to reflect as closely as possible the language that is used when talking about the harm that is done to the non-abusing parent. We feel that phrases such as

“sees or hears, or is present”

are too focused on an incident, whereas the bill has otherwise done a lot to move away from that.

We really welcome the aggravator. We think that it will be a vital tool for prosecutors and that it does a lot to recognise the harm that is done to children in the context of domestic abuse, but it seems to be a little too focused on a child’s being present during an incident. As others have said, there are lots of ways in which children can be affected while being unaware of the abuse because their mother is doing her very best to protect them.

Rona Mackay

I am also thinking about the general tension in the house. If a child lives with that every day, they are subliminally affected by it.

Megan Farr

Yes. There is a really good body of evidence that shows that such stresses in a household harm children psychologically and have long-term impacts. There is also behaviour such as controlling resources and controlling what a woman does socially, which a child might not know about. The child might be a tiny baby who does not know that they are missing out on things, because their mother is shielding them, but they are still being harmed. In our evidence, we used the example of financial control being exerted so that the mother does not have enough money to meet the child’s needs. The child might not know about that.

Another reason why it is important to cover that in the bill and not in the context of child protection is that the bill does an excellent job of keeping the focus on the perpetrator. When the focus goes away from the perpetrator, the risk is that we end up looking at whether the mother has done a good enough job of shielding her child, if the child has still suffered harm, although she has done absolutely the best job that she could have done in a horrendous situation. That is why the aggravator needs to more closely reflect the language of the main offence.

Dr Friskney

I will expand on some of the examples. In domestic abuse situations, we often see that the actions and behaviours of the perpetrator towards the woman control her time, because she has to put an inordinate amount of energy into managing the relationship to keep things as safe as possible. The child experiences that as a lack, because the mother does not have as much energy as she might want to have to cuddle and play with her child. Because she has to do certain things for the abuser at particular times, she does not have the time for activities such as helping the child with homework. The question is whether that will be picked up by the aggravator as drafted; we are not sure that we can see a way in which it would be.

Rona Mackay

That is helpful.

The Convener

Would that situation be difficult to evidence?

Dr Friskney

Some of the ways that we end up talking about domestic abuse are interesting. We often end up talking about an environment of domestic abuse, and it is important that we always bring that back to the point that that environment has been created by the perpetrator carrying out specific behaviours and actions.

We are training a lot of our staff in the safe and together model, which addresses domestic abuse in approaches to child welfare. One thing that comes through in that model is the importance of evidencing the perpetrator’s behaviours and identifying how they adversely impact on a child. To be honest, it is quite a mind shift to go from saying, “He’s doing a course of coercive control,” to saying, “He stops her leaving the house with both children at once so they never get to play together.” When all the different things are looked at in detail together, they are really powerful. We are trying to do that much better and be much clearer about evidencing the behaviours—what he is doing—and how they impact on the child.

The Convener

It helps tremendously to give examples; otherwise, the concept is looked at as airy-fairy and difficult to pin down. When you give an example, it becomes crystal clear.

Chloe Riddell

The question about evidence is important. Some things are hard to prove. We have examples from our family support services of the abusing parent—the perpetrator—taking the child car seat to work. That seems innocuous, but it prevents the child and the mother from leaving the house.

We are clear that, although something might be difficult, that does not mean that we should not be ambitious and far-reaching and that there are not ways to do it. We highlighted in our submission the importance of child witnesses and the work that needs to be done to make sure that the court system does not retraumatise them. Children could be required to give evidence to corroborate things that have been said and we are mindful that, if they will be giving evidence more frequently or in general, wider reform is needed—for example, a Scottish version of the Scandinavian barnahus model for child victims could be piloted.

We are mindful of some of the things that have been going on, for example to prevent child witnesses from being cross-examined by the perpetrator, but steps need to be taken to make sure that we get the best possible evidence from witnesses in a way that gets the conviction but does not retraumatise the children. Recognising the role of child witnesses and the steps that need to be taken is important in the context of the bill.

The Convener

Would the car seat example be followed through in relation to mens rea and recklessness? The perpetrator could be asked whether they were aware of the implications and people could work backwards from that to get to the impact on the child, without having to interview the child. The mens rea behind a lot of the things that are done could be looked at.

Chloe Riddell

There are some ways in which that can happen, but we know that some children witness things overtly. We work with children who have witnessed sexual abuse, for example, who might need to be a witness in a case.

The important thing to mention is the impact on children of witnessing abuse, which goes back to what Megan Farr said about the perpetrator. The bill’s whole aim is about keeping the focus on the perpetrator’s behaviour. If a child witnesses something, that is a deliberate choice by the perpetrator, so how can we establish that under the bill? We do not think that the aggravator is enough to do that.

Megan Farr

One reason why we support the inclusion of a really strong aggravator—we are pleased to have the one that we have, but we have specific requests about improving it—as well as a specific offence is that the two complement each other, particularly in relation to evidencing, as an aggravator does not require corroboration. That gives prosecutors another tool, particularly when very young children and other children who might not be able to give evidence are involved, because the aggravator can still be used to recognise the harm. That is one reason why our ask all along has been to have both those tools available to prosecutors.

The Convener

That is helpful. Liam McArthur has a supplementary question, and then I will bring in Ben Macpherson, which I should have done earlier.

Liam McArthur (Orkney Islands) (LD)

I thank the witnesses for their evidence. I have listened to what has been described and, as the convener said, it has been helpful to have specific illustrations of the behaviours and the interlinkage between them. However, in the context of expanding the definition—on which there is pretty much universal agreement—you will be aware that the committee has heard evidence from witnesses who have expressed concerns about the thresholds that are set.

Mention has been made of distress and the fact that harm or serious harm would not necessarily have to be proven, although the risk would have to be demonstrated. We all understand what we are talking about at the extreme end, but the difficulty may come when the abuse is more difficult to evidence, given that tensions and an unpleasant atmosphere in a household, perhaps over a prolonged period, do not necessarily constitute abuse by one individual of another, albeit that such a situation certainly needs to be addressed, not least in the interests of any child or children present in the household. What safeguards in the bill address the point that has been made about overcriminalising behaviour that is bad or poor but not necessarily criminal?

10:45  

Megan Farr

The likelihood of that issue arising is quite small, given the existing difficulty in prosecuting people even for acts of physical violence. As Anne Marie Hicks said in her evidence a couple of weeks ago, there are quite strong safeguards in the bill with the three requirements—I am afraid that I have lost them in my notes.

The three conditions include a course of behaviour that was abusive and the reasonable person test, which is a concept that is well established and understood by the courts and is a major protection against overcriminalising behaviour that might not constitute abuse. The third condition concerns intending to cause harm or being reckless about that. From the evidence that Anne Marie Hicks gave the committee, I am reassured that the bill has those protections and that the behaviour that you described would be unlikely to pass those tests, so it would be unlikely to lead to prosecutions, let alone convictions.

Liam McArthur

Is that understood by those who might view the bill as opening up an opportunity to bring forward cases that otherwise would not be heard? Is there clarity of understanding about the scope and extent of the bill and the thresholds that need to be overcome to bring a successful prosecution?

Megan Farr

The bill is still at stage 1; that process is going on. I hope that the conversations here over the few weeks when you are taking evidence and the rest of the bill’s passage will do a lot to reassure such people and emphasise how vital having the bill in place will be to protect victims of domestic abuse.

I am aware that the Scottish Government has said that there will be additional guidance, awareness raising and training for professionals. That will also address a lot of the concerns. At this stage, there is concern and it is right for people to express it, but I hope that they will be reassured over the course of the bill’s progress through Parliament.

Chloe Riddell

I echo what Megan Farr said about training. We have consistently highlighted, as have other organisations that have given evidence, that it will be essential to have training on what coercive control looks like, what survivor strategies are, what the dynamics of domestic abuse are and how the courts are used to perpetrate abuse, which is why we have highlighted the need for clear jury directions. As with all bills, it is not just a case of creating an act and leaving it like that; there will be a need for training, awareness raising and other things that I hope will be taken forward.

Dr Lough Dennell

LGBT Youth Scotland absolutely thinks that the threshold is set at the right place. It is unlikely that someone who wants to be vindictive because they are angry at a partner will pass the course of behaviour and reasonable person tests. I just put that out there.

On campaigning, awareness raising and training—I know that that is a practice and implementation question rather than a legislative issue—one thing that is crucial to consider as the bill, I hope, progresses is making sure that all training and guidance are fully inclusive of all protected characteristics. The witness last week from Shakti Women’s Aid spoke about how, although the abuse is particularly gendered, there are additional experiences for black and minority ethnic women that might appear reasonable from the outside. That is also the case for LGBT people.

An example is threatening to out someone. It might not appear threatening to out someone if a perpetrator says, “I cannot wait. I am going to tell everyone about our relationship,” but if the person who is experiencing the abuse is not out and that could threaten their social networks and stability, that could be seen as a threat.

Someone who has not been trained in the dynamics of homophobia, biphobia and transphobia may think that that is reasonable and quite positive. Another issue is continually using the wrong pronoun to address trans people or to undermine someone’s gender identity or sexual orientation. Such things will need to be picked up in guidance and training.

Ben Macpherson (Edinburgh Northern and Leith) (SNP)

Brandi Lee, you have touched on some of the points that I was going to raise, but I will give you an opportunity to expand on that, if you want to say more. As you suggested, the committee has received evidence, including from your organisation, indicating that particular types of controlling and coercive behaviour may affect certain victim groups and particularly, as we have heard today, individuals from the lesbian, gay, bisexual, trans and intersex community. Would the way in which the domestic abuse offence is set out in the bill capture those specific aspects of coercive and controlling behaviour? Do the police and other criminal justice professionals have sufficient understanding of the issues at hand? Is effort needed to make sure that that wider knowledge is expanded?

Dr Lough Dennell

We absolutely agree that the offence as written would be inclusive of LGBTI people. It includes coercive behaviour, and we know that that is an issue that LGBT people experience. There are particular barriers to implementation that are to do with public awareness. There are issues with reporting that relate to practice in the criminal justice system. I do not know whether you have seen the point in our submission that LGBT people can be reluctant to report domestic abuse. Domestic abuse cases are heard in open court so, if someone is not out or does not feel comfortable talking about their relationship or what has happened, that can entirely put them off reporting. We do not know how that will play out under the bill, but the way in which the domestic abuse offence is written means that it absolutely will cover LGBT people. The issue is how we reduce those barriers.

Police Scotland and the Crown Office have done a lot of work on that. They are constantly working to be reflective and constantly learning about how to make their services more accessible. We recently met with the advice, support, safety and information services together—ASSIST—project to discuss an approach to the Crown Office, and we have met the Government on the issue of reporting and barriers and how we can change practice so that LGBT people can more often report the domestic abuse that they experience.

Does that answer your question?

Ben Macpherson

Yes. I am reassured that you feel that the bill will cover that area. We are all mindful of the fact that the bill, if it is passed as the will of Parliament, will require wider awareness training across many dimensions.

That brings me on to another question. I would first like Brandi Lee to expand on this from the LGBTI community’s perspective, but I am interested to hear from the whole panel. Children 1st’s written evidence states:

“We hope this is the beginning of a wider cultural shift, which will be driven by widespread public awareness raising and broad ranging professional training about the dynamics and impact of domestic abuse.”

I am interested to hear more from all the witnesses on what you consider the potential effect of the bill will be in raising greater awareness and its effect on social change as well as legislative development.

Dr Lough Dennell

My initial response is that it will more appropriately reflect what domestic abuse is by recognising the patterns of control in intimate relationships. That in itself, by recognising what takes place, will greatly increase understanding of what people can report and what they can get support for.

In previous evidence sessions, the committee has heard about people approaching Scottish Women’s Aid and other domestic abuse support services not knowing whether they can get support with an issue because they do not know whether it is abuse. There was an LGBT domestic abuse helpline. Its previous posters showed someone at the bottom of the stairs, having fallen down, which continued to perpetuate the understanding that domestic abuse is about physical harm rather than a pattern of behaviours that may include physical abuse but that is actually very emotionally and psychologically manipulative.

My initial personal response is that the bill will raise awareness of what domestic abuse is—a pattern of controlling behaviour between intimate partners—rather than the stereotypes of physical abuse, and that will greatly increase people’s understanding.

Ben Macpherson

Do you think that that will encourage more victims of domestic abuse in the LGBTI community to come forward and seek justice in the system?

Dr Lough Dennell

That is the hope. I will caveat that slightly by saying that, because of open courts, there are still barriers to reporting, but we will continue to push on that and try to change it, because that is practice related. However, having legislation that fully supports people’s experiences and their ability to take something forward and report it is a very positive step.

Chloe Riddell

We agree. As we said in our evidence, the clear recognition in the bill that abuse can be both physical and non-physical, that it is part of a pattern of behaviour by the perpetrator and that it can be emotional and psychological is an important part of the culture change that we think is required.

For us, it is also about making sure that children’s right to be safe from harm and their right to recovery are clearly recognised. As Brandi Lee Lough Dennell said, it is about making sure that people who are in such circumstances in relationships recognise that it is abuse and that help, support and services are out there. There is a clear statement in the United Nations Convention on the Rights of the Child that children have a right to recovery. Part of that must be recognising when abuse has taken place.

Some of the subtler types of abuse that we have mentioned, such as withholding money for nappies or the car seat example that I gave, as well as some of the more dramatic types of coercive control and behaviour can come together to form a pattern. The recognition in the bill and an awareness-raising campaign and training will help people to understand what coercive control looks like and will encourage friends and neighbours in the community to speak up in ways that they perhaps have not done before.

Dr Friskney

I echo that. We said at the beginning that we see in the bill a much more effective recognition of the lived experiences that women and children have of domestic abuse. It goes back to the question that we talked about earlier of why we are seeking to make the way that children experience domestic abuse with their mother much more visible. A lot of children are referred to our services for a reason that has nothing to do with domestic abuse. For example, children come in because of problems with attendance at school, and it is really important that we can take a step back and look at what is going on from a domestic abuse-informed perspective.

A particular example is where a child is so afraid of what the perpetrator does to the non-abusing parent when he is at school that he does not want to go to school. The child wants to stay at home and protect mum. If your approach to that child is to put burdens on mum and try to make her do more to get the child to school, that will not support the child’s wellbeing. If we can take a step back, look at the situation and understand the domestic abuse that is going on and how that impacts on what is happening to the child, we have a much better chance of achieving change. Raising the visibility of children should impact on that kind of cultural change as well.

Megan Farr

Legislation is used as a way of raising awareness as well as a way of prosecuting people. We have done that in a number of ways, and the bill will go a long way to raising awareness of domestic abuse among professionals across society.

The commissioner’s office has recently been doing a piece of work with Scottish Women’s Aid on children’s experiences of the civil court system and particularly contact. I mentioned the invisibility of the harm that is done to children by domestic abuse and the effects that that can have. It is important that the bill will not just hold perpetrators to account—it is vital that we do so—but raise awareness of that harm across society and improve the protection of children. That is one reason why we need the stronger aggravator and why it is important to have a parallel offence relating to children.

11:00  

The issue could also be covered by non-harassment orders, which are dealt with in the bill. At present, non-harassment orders do not mention children. When the aggravator is applied—or if there is a parallel offence, although the aggravator is an excellent opportunity—we would like the same duty to be put on the court to consider an NHO in relation to the child. That is because when children are not with the non-abusing parent, they can continue to be involved in the abuse by the perpetrator. As it stands, the provision regarding non-harassment orders does not give children the same protection as it gives adults. In some situations, it might give children less protection after the abusing parent—the perpetrator—has been convicted than they had when he was on bail. I would really like children to be given the same protection in relation to non-harassment orders as the partner will have under the bill.

The Convener

In the very first evidence that we took informally on the bill, we heard that ex-partners can use contact centres to abuse or undermine the other parent and, to follow on from Megan Farr’s evidence, perhaps harm the child.

Megan Farr

We hear from professionals that the purpose of a contact centre is sometimes not well understood, even in the court system. In terms of the way that we now understand domestic abuse and the way that it is understood in the bill, contact centres cannot necessarily prevent the behaviours that involve children in abuse, such as talking about and undermining the parenting of the other parent or using the child to spy on the non-abusing parent. Those behaviours are difficult to address through a contact centre, particularly since the contact is not supervised in a lot of cases, so the perpetrator could be alone with the child.

There is a use for contact centres where there is a serious risk. However, the organisations that run them have said to us that they are intended as a short-term solution and not as a long-term answer to an abusive partner. There are real issues about the centres potentially being used as that.

Children and their parents have rights around contact, but those rights are in the context of a safe environment. Children’s right to be safe and whether there is a safe environment must be the first consideration when contact is considered. Considering the ways in which children are involved in domestic abuse that are addressed in the bill, I am not sure that the centres can always provide that. In any case, they are only ever intended as a short-term solution.

The Convener

Do the other panel members want to comment on the non-harassment order provisions generally? I think that the issue is mentioned in written evidence.

Chloe Riddell

As we said in our submission, Children 1st would like to see

“a mandatory duty on the court to consider whether to impose a non-harassment order that includes a child in all cases where the statutory aggravation in relation to a child is applied.”

As Megan Farr said, there are complex issues around contact. There are also issues around whether the civil courts would uphold the non-harassment orders. The committee has heard evidence on whether non-harassment orders are effective. That issue needs to be addressed, but it should not prevent us from putting something in the bill to ensure that children are given the same protections as adults by way of harassment orders.

With regard to the on-going question about contact, it is important not to shy away from the fact that perpetrators may continue to pursue a pattern of abuse through contact, and the consideration of a non-harassment order is one of the tools through which that abuse might be prevented. For us, post-trial protections are absolutely critical for victim safety. As I mentioned when I was talking about child witnesses, a lot of the systems actually revictimise. I was shocked to read one of the written submissions from a victim who said that she would rather be abused again than go through that court system. We should think about the impact that some of those court processes have on children. It is traumatising.

We do not want women or people who have been abused to be prevented from talking about that abuse because they are concerned about the court system. For us, extending the protection of non-harassment orders to the child in all cases where the aggravation is applied is an essential part of protection for children who have been victims of abuse.

Dr Friskney

We see it as entirely appropriate, particularly where the aggravation in relation to a child is evidenced, that the non-harassment order should protect the child as well as the mother. We all know that we cannot equate the perpetrator no longer being there with safety. We know that perpetrators are capable of abusing women and children even when they are in prison, for example, so it is really important that non-harassment orders are put in place that cover women and children, so that the perpetrator does not find a way round them and go through the children to carry on with the abuse.

The Convener

I think that Stewart Stevenson has something to say.

Stewart Stevenson

Yes, fairly briefly.

Section 5 deals with the defence on the grounds of reasonableness. I say straight away that that strikes the right balance. I presume, however, that the drafting of the behaviour-was-reasonable element avoids giving a list of the behaviours that we think might be reasonable because, of course, the circumstances will vary. I really just want to see nodding heads to say that you are content with that section, and I am getting them. Thank you.

The Convener

That concludes our questions. I thank the witnesses for what was a very valuable evidence session. It certainly gave us some perspectives that we have not covered so far, so thank you all very much for attending.

We will now suspend briefly to allow for a change of witnesses.

11:07 Meeting suspended.  

11:12 On resuming—  

The Convener

I welcome our second panel of witnesses: Aaron Slater, the Edinburgh services manager at Safeguarding Communities—Reducing Offending (Sacro), and Kathryn Sharp, a member of the criminal justice standing committee at Social Work Scotland. Kathryn is attending in place of Jane Martin, who was originally on our agenda. You are both very welcome. Thank you for your written submissions.

We will move straight to questions. I will start by asking Sacro about the fearless project and what that has unearthed.

Aaron Slater (Safeguarding Communities—Reducing Offending (Sacro))

Fearless is a domestic abuse support service for hard-to-reach victims of domestic abuse—specifically men and LGBTI+ and black and minority ethnic communities. It is a partnership between Sacro, LGBT Youth Scotland, Shakti Women’s Aid and the Men’s Advice Line. We operate across eight regions in Scotland, providing one-to-one domestic abuse support.

The Convener

And the findings?

Aaron Slater

We have been operational for coming on two years now, and we are finding, through the people who are accessing the service, that there are barriers for hard-to-reach victims of domestic abuse. The majority of the victims are male—that is probably the biggest group in that demographic of our service. About 25 per cent identify as LGBTI+ and about 10 or 15 per cent come from black and minority ethnic communities.

Specifically, we have found that there are different barriers for the different groups that we work with. The committee received representation last week from Abused Men in Scotland, when Alison Waugh talked about specific barriers for men arising from ideas about masculinity. Men do not necessarily relate to domestic abuse or see it as something that impacts on or affects men. The same goes for LGBTI communities. The public narrative around domestic abuse that we have had over the past 40 years, which has been driven by women’s services, is that it is something that men do to women. That has very much been the public narrative, and an unintended consequence of that has been that some other groups do not identify readily with domestic abuse. Because of that public narrative, people in LGBTI relationships do not see themselves in what is portrayed in the media or in other services, so they are less likely to recognise domestic abuse when it happens and less likely to access support. There are a lot of challenges in engaging people around that.

11:15  

The Convener

Committee members may have more questions on that subject later. Kathryn, do you have any comments on that?

Kathryn Sharp (Social Work Scotland)

Social Work Scotland is supportive of the work that has been done around domestic abuse, which Aaron Slater has mentioned, and recognises the gendered analysis that we have had of it. Equally, we recognise that many people throughout Scotland are experiencing domestic abuse and that each of those experiences will be unique to the individual. There will be unique barriers to those individuals reporting. As we move forward, it is important that we take an inclusive approach while recognising that domestic abuse is a gender-based issue. We are supportive of any projects—my authority works with the fearless project, which has been helped us to think about the issue at a local level as well.

Fulton MacGregor

We heard evidence from the Scottish Police Federation that the approach to tackling domestic abuse is based solely on punishment. Do you recognise that analysis?

Aaron Slater

The response to domestic abuse being focused on punishment at the moment is probably largely due to the lack of rehabilitation programmes across the country. Even where they are provided, that provision is a bit patchy. It is a bit of a postcode lottery where rehabilitation is available. With any type of crime but with domestic abuse especially, the rehabilitation aspect is really important given the number of repeat offences. Any shift from punishment towards rehabilitation would be a welcome measure, especially in helping perpetrators of domestic abuse to understand and address their patterns of behaviour and to make positive changes.

Fulton MacGregor

What could we do to enhance the interventions that are in place? Before I became an MSP, my background was in the criminal justice and social work sector, so I am fully aware of some of the stuff that has been done. What could be done to make the interventions more effective, first, to stop reoffending and, secondly, to prevent offending in the first place? Importantly, how can we get the public to trust in the services and have faith that they are working to those aims?

Kathryn Sharp

On how we move forward and the rehabilitation of offenders, I read the submission from the Scottish Police Federation, and, from a social work perspective, I do not necessarily agree with its focus on punishment. We are focused on rehabilitation and have a clear belief that we should work with the perpetrators of domestic abuse to identify opportunities for change and support those opportunities. We have had a lot of focus on perpetrator programmes, and we recognise that there are differences in the delivery and availability of those programmes across the country. Perhaps it would be helpful for us to think beyond rehabilitation in perpetrator programmes and focus on a broader, whole-systems approach to perpetrators.

The bill is extremely helpful in focusing on the behaviour of perpetrators and encouraging that focus across the whole system. The witnesses at the previous session spoke about the safe and together approach, which is being implemented by a number of local authorities. It encourages practitioners across the system to have a clear focus on the behaviour of perpetrators, to see domestic abuse as a parenting choice, to recognise the impact of coercive control and to be clear about the behaviour and its impact on all those who are affected.

That brings a focus on early intervention with perpetrators across the system, not just in social work with children and families or in criminal justice but across all the services that we work with, including our named persons and lead professionals in the getting it right for every child approach. There is much potential for us to think beyond what we are currently doing, build on the foundations of our perpetrator programmes and expand our thinking on and attitudes to identifying and working with perpetrators at a much earlier stage. The bill is very supportive of that approach.

Fulton MacGregor

Do you think that it is about identifying and working with perpetrators at an earlier stage, or is that perhaps only part of it? Is it, as we heard in the previous evidence session, about trying to change cultural attitudes and—for example, in schools—being more open and talking about domestic abuse?

It is generally agreed that domestic abuse is about control and power and is mainly—though not exclusively—perpetrated by males on females. Do you think that it is possible to address it at an even earlier stage than that of trying to identify a possible perpetrator?

Kathryn Sharp

I agree. A whole-systems approach from the earliest intervention is appropriate for general public awareness raising. The bill offers opportunities to raise the profile of domestic abuse as a pattern of coercion and control rather than as single incidents of physical violence. Although that narrative in Scotland has been changing for a number of years, public attitude surveys support the fact that the majority of the public still believe that domestic abuse is predominantly physical violence or see that as being more serious than other forms of abuse.

There should be a commitment from social work as well as other local partners to the earliest intervention through relationship education in schools, focusing on respect and equality, working with young people to support them, identifying those who are at risk of harm at the earliest possible stage and intervening appropriately and supporting young people in the context of our GIRFEC agenda.

Aaron Slater

In addition, there should be more voluntary programmes for people who either are perpetrators or are identified as being at risk of being perpetrators of abuse. At the moment, the Caledonian system is a court-mandated programme. The City of Edinburgh Council area is one of the few areas where there is a voluntary programme for people who are abusive. There should be more programmes through which people can access that support at an earlier stage instead of waiting to go through the criminal justice system and having a court mandate that they attend a group programme.

The Convener

Following the first evidence session, when we suspended for a minute or two, a lady from India who had been listening in the public gallery suggested that there be early intervention in schools on anger management. Would that make sense?

Kathryn Sharp

It is broadly recognised by agencies in social work and agencies that work with women, children and young people, as well as by our criminal justice partners, that anger management is not necessarily an appropriate response to domestic abuse. In the vast majority of cases of domestic abuse, the abuse is not caused by anger and an inability to control anger. In fact, many perpetrators display an excellent ability to control anger when that best suits their needs and agenda. We understand that domestic abuse is a function of gender inequality and other structural inequalities such as poverty. Our focus needs to be on raising awareness of that reality and challenging those issues.

With young people, the focus would be on respect, equality and how to manage conflict within relationships. We acknowledge that relationships will include conflict, but the issue is how people can manage it healthily, with respect and without resorting to managing it in abusive ways, whether that is physical violence or psychological and emotional abuse.

The Convener

I think that the lady was thinking about children managing their behaviour generally.

Kathryn Sharp

Absolutely.

The Convener

Aaron, do you have any comments on that?

Aaron Slater

It is a difficult one. Work early on will be more effective, which is in line with the equally safe strategy when it comes to early interventions. As Kathryn Sharp said, some perpetrators of abuse are very controlled and can control their anger when it suits them. Maybe there is a distinction to be made between that and more situational violence whereby someone has an outburst of anger and responds in a way that might not be underpinned by a pattern of coercion and controlling behaviour. Any interventions need to make that distinction.

The Convener

That is helpful. Liam McArthur has a supplementary question.

Liam McArthur

We have not talked an awful lot about rehabilitation. I am curious about the success rate of rehabilitation programmes, recognising that there will be a continuum of people from the more moderate end of behaviour patterns through to those who are very challenging and for whom there is, perhaps, less prospect of success. What is the experience of the success of rehabilitation programmes generally in this country?

Kathryn Sharp

That is a hugely contested area. Unfortunately, I do not have a straightforward answer for you. The Caledonian programme, which is delivered across 13 local authorities, was evaluated and the report was published at the end of last year. The report showed that there had been some positive impact on the participants of the programme, whether they were the perpetrators of domestic abuse—men who had all been convicted and mandated to attend the programme as part of their community sentence—the staff who participated or the partners or ex-partners of the men who were mandated to attend the programme. They rated the programme highly. The women reported feeling safer, and the men were assessed by their criminal justice social workers and found to pose a lower risk to women and children by the end of the programme. However, the evaluation made it extremely clear that it could not conclusively demonstrate an impact of the programme, and some of the psychometric testing and analysis that was done as part of the report offered a more mixed picture of women’s views about perpetrators’ changing behaviour.

The multi-site studies that were conducted across the UK by project Mirabal in 2015 were all based around Respect-accredited programmes. There were some encouraging results in that most men stopped using violence and reduced most other forms of abuse. In addition, most partners said that they felt safer and were safer, and it was recognised that the programmes made a unique contribution to helping perpetrators to take steps towards change and to forming part of a local co-ordinated community response to domestic abuse. However, it was acknowledged that, overall, there was a continuum of change among the men; some may have made little change to their behaviour and some may have made significant changes.

Liam McArthur

What you are describing suggests that the focus of the programmes has generally been on instances of physical violence as opposed to the coercive and controlling behaviour that we are talking about in the context of the bill. Is that a fair assessment, or has it been cast more broadly?

Kathryn Sharp

The Respect-accredited programmes are designed to take in the entirety of the behaviour, although the conviction for which the perpetrator has been mandated to the programme is more likely to be related to a physical, one-off incident. As we have heard, that is where our legislation is currently focused, so the likelihood is that a conviction will relate to that type of incident-based domestic abuse. I know from working with my colleagues in criminal justice social work locally and throughout Scotland that they are extremely skilled in supporting men to look at their coercive and controlling behaviour. The Respect-accredited programmes encourage that response.

Liam McArthur

Do you see the bill and the way in which it is cast increasing the likelihood of referrals to such programmes, or is that less likely because the focus is on identifying the actions of perpetrators and putting in place safeguards largely for women but also for children in a household who are suffering as result? What is your impression of the way in which the bill is cast? Should we consider adding anything to the bill’s provisions to increase the opportunity for rehabilitation when that is appropriate?

Kathryn Sharp

In the financial memorandum, there are some estimates of the likely increase in reporting, prosecutions and convictions and the likely increase in community sentences. When a community sentence is imposed, there is a process of assessment and not all perpetrators will be suitable to join a mandated programme. There needs to be some acknowledgement of the offence, the need for change and a motivation to make that change, and that will not be possible for all perpetrators.

We expect that, in the natural course of things, as the bill is implemented, we will see more reporting, and we hope that that will eventually result in more convictions and more men being mandated to attend the programmes. We welcome the bill for widening men’s access to the opportunity for change and for the impact that it will have on victims and children. There is a lot in the bill that aligns with the approach that is being taken in the programmes, including a focus on the behaviour, the impact on the victim and the accountability for the behaviour and its impact. The way in which the bill is framed supports the work that criminal justice social workers are already doing in programmes and in their one-to-one work with perpetrators.

Liam McArthur

That is helpful. Thanks.

11:30  

Rona Mackay

The intention of the bill is to require the court to consider more often whether to impose a non-harassment order. We heard that some children’s organisations—in fact, all of them—think that that should be applied specifically to children as well. Kathryn Sharp, do you want to comment particularly on what you think the implications of that might be for the resources and workload of the social work system? The Glasgow Bar Association has expressed concern that it might create extra pressure on other personnel if prosecutors are not expected to provide the background information.

Kathryn Sharp

Social Work Scotland’s submission makes the point that the bill is silent on the sources of information that the court might take into account, although we were encouraged to see in Anne Marie Hicks’s evidence a few weeks ago that she expects that burden to fall on the Crown Office in the first instance.

Also, having reviewed the protocol that is in place currently between the Crown Office and Police Scotland, we are assured that that is already well embedded in guidance and in practice. Although Social Work Scotland is absolutely supportive of providing information in addition to that which is available through the police and the Crown Office, we recognise that it is probably appropriate in most cases that the current practice is followed and that those agencies are the primary source of information, with criminal justice social workers able to provide information through reports when requested by the court. We do not see what is proposed as having a hugely significant impact if practice continues as it is, given how it is framed in the bill at the moment.

Rona Mackay

What is your view on non-harassment orders being extended to children as well as the victims?

Kathryn Sharp

Social Work Scotland is supportive of the view of women’s and children’s agencies that, if the aggravation recognises the child as a victim of harm, a logical follow-on is that the non-harassment order should be extended to cover children.

We recognise the practice issues that have been raised, particularly where there are conflicting orders in place. There may be a non-harassment order in place for the adult victim of the abuse—generally the mother—and there may be contact orders in place, and there is conflict between those. That can cause huge issues for the women and their children but also for the management of that between criminal justice social work and children and family services.

What is proposed will strengthen the protection of children, and the principle that children should be equally protected is absolutely important. I am very much in agreement with that.

Aaron Slater

As Kathryn Sharp said, we support the consideration of non-harassment orders at sentence and their extension to children. Covering old ground, we see the issues and complications that can arise when the non-abusive parent gets protection but the children do not. Sacro is supportive of the provisions on that.

Fulton MacGregor

I asked the previous panel about the proposed aggravation in relation to a child. Do both of you think that the proposed aggravation is sufficient or, like colleagues in the previous panel, do you think that it should be wider? I also asked the previous panel what role the children’s hearings system can have in relation to these offences. Do you think that it will be similar to the role that it can have in the current legislation?

Kathryn Sharp

Social Work Scotland absolutely welcomes the aggravation provision in the bill as an important step to further recognise the experiences of children and young people and the impact that domestic abuse has on them and the serious harm that it can cause them but, like other witnesses, we agree that the provision may not be perfect. We would certainly welcome some clarity about what the bill means about children being “present”. Does that mean present in the room or in the household? What does it mean in terms of an unborn child, given all the research that shows the very significant risk that women face during pregnancy and the immediate period after that?

Fulton MacGregor

What do you think it should be?

Kathryn Sharp

We would like it to be as inclusive as possible for all the reasons—I will not go through them again—that were in the evidence this morning. We absolutely recognise that a child does not need to be present in a room in order for them to be significantly impacted by domestic abuse. Just living in a household where there is an on-going pattern of control and abuse can have significant impacts. Witnesses referred this morning to the tension in such a home and the many ways in which children are impacted daily by that experience. We would support a broad and inclusive aggravator, which recognises all the situations in which children find themselves in relation to domestic abuse.

Aaron Slater

It is the overall impact that abuse has not just on children who are present but on children who are members of the family. When children are in the next room and do not witness abuse, it will still have an impact on them. We are supportive of the aggravator but, as the bill was initially drafted, that aggravator was not there. I do not know whether separate, parallel legislation might be required to fully embody the experiences of children and offer further protection. As a first step, broadening the aggravator by acknowledging children in the family would be a positive step.

The Convener

That was covered extensively with the previous panel, so it is good to have your view as well.

Ben Macpherson

I want to pick up on a few points in Sacro’s written evidence—thank you for that, Aaron. Like LGBT Youth Scotland, you pick up on the LGBTI community specifically and the various fears, concerns and barriers that face that community when it comes to domestic abuse. You speak about the need for a concerted publicity campaign should the bill become the will of Parliament. Could you expand on the importance of that as you see it?

Aaron Slater

We are very supportive of the bill overall. It is a positive step forward. My main concern is that, for the bill to be effective, implementation is key, and for it to be properly implemented and to protect everyone whom it has the potential to protect, there needs to be a concerted publicity campaign to broaden the public understanding of what domestic abuse is beyond physical violence and men’s violence towards women, so that people are aware that it is a pattern of coercive and controlling behaviour that affects people regardless of their sexual orientation or gender identity and which transcends different identities.

As I said at the beginning, the biggest barrier for LGBTI people might be recognising domestic abuse when it is happening. They do not relate to the public narrative. They do not see themselves as being victims of domestic abuse. When someone does not recognise it, they cannot reach out for support and they cannot report it. If they do recognise that what they are experiencing is domestic abuse, they may have anxieties about reporting it to the police and going through a very public court system. I know that Brandi Lee Lough Dennell from LGBT Youth Scotland touched on the fact that, if someone is not out to their friends or family, that will be a massive barrier. They will not report that domestic abuse and they will not be able to get the support that they need.

Publicity around the new offence is very important in order to help people recognise where it is happening. That is not just for public confidence. Linked into publicity is the training aspect for prosecutors, the police and the judiciary when interpreting this legislation. What do psychological harm and the relevant effects look like for people who identify as LGBT? How is coercion used in these relationships? What are the intricacies in these relationships, and how does that manifest? I think that there is a lot of work to be done on the back of this to make it successful.

Ben Macpherson

Thank you for touching on the issue of sharing information and the need for a risk management approach around that. In Sacro’s written evidence, there is also a reference to

“The introduction of a standard bail condition prohibiting the accused from personally obtaining precognitions or statements from a complainer in relation to the new offence is an appropriate safeguarding measure.”

Could you elaborate on that?

Aaron Slater

If the accused were able to obtain precognitions or to conduct their own defence, that would further revictimise the victim. It could traumatise them. It is an opportunity for the abuser to exert further control. When they are doing their own defence or obtaining precognitions, they will be very skilled and manipulative and know what buttons to press and how to get under the victim’s skin. I think that for the criminal justice system to allow that to happen would be a grave mistake, because I think that the justice system would then be complicit in the abuse of that victim, in a manner of speaking. We would support any move to restrict that from happening.

John Finnie

Morning, panel. I have a question for Kathryn Sharp about the last two sentences of the Social Work Scotland written evidence. It says:

“The intended impact of this Bill when implemented”—

obviously that should be “if implemented”—

“is to hold more perpetrators to account and secure the safety and secure future of victims and families.”

Hopefully, many people listening into this meeting will understand the rationale for discussions about rehabilitation, but there is certainly a view that nothing should be done to facilitate perpetrators once again having access to opportunities to inflict their damage on families. Would you agree?

Kathryn Sharp

Absolutely. Along with other agencies, Social Work Scotland is committed to the idea that the bill and the system that sits around it should be focused on the protection of not just current victims but any potential future victims. All that we do in our local partnerships and community planning is focused on that public protection element, as well as prevention in terms of the elements that we spoke of earlier. I absolutely agree with that.

John Finnie

Thank you. I will quote the very last sentence of the submission:

“It will be important to align in a consistent manner the operational impact of the present legislation with the multi-agency work being undertaken to deliver … ‘Equally Safe’”.

I am trying to think of the practical implications were the bill to be passed. A lot of our discussion has been around the presumption that it will be the police that initiate everything. The reality is that, of course, children and families social work teams have regular engagement and will be aware of some of this conduct already. Do you envisage that, were the bill to pass, those social workers would be the catalyst for advising the police of this conduct on recognition that it is criminal?

Kathryn Sharp

As I think Lesley Boal suggested in her evidence, our practitioners in the police and social work—whether that is in children and families services or in criminal justice social work—deal on a day-to-day basis with the reality of the behaviour that is reflected in the bill. They already deal with coercive and controlling behaviour as a pattern of abuse. Not all of that behaviour is criminalised currently but, nonetheless, they are working with families and are taking forward appropriate interventions.

Ultimately, behaviour may not be criminal, but it may have an impact on a child or young person that brings it into the concern for wellbeing and GIRFEC, our child protection responsibilities. As you say, we are working with those families and recognising that. We seek to continue—certainly in my local authority, where we are implementing the safe and together model—to partner with the non-abusing parent in order to support them to recognise the perpetrator’s pattern of behaviour and the impact that it has on them and their children. We support them to recognise the many things that women do on a day-to-day basis to protect their children, and to think about how we best work together to protect their children and help them to move on and recover from that experience. We work with victims and their families and intervene in a supportive way. Of course, there will be times when children and family social work will have to take measures to protect children, where that is merited, and using their existing statutory powers to do that.

John Finnie

Of course, something that would, were the bill to be passed, constitute a crime would not necessarily come to light as a result of a joint investigation with police officers. It is perhaps more likely that it would come out from the regular day-to-day engagement with social workers. What would the tipping point be for reporting that to the police? Do you envisage that staff will require additional training, because it is clearly a significant burden on them?

Kathryn Sharp

It is very difficult to say. Each case would be individual, and the circumstances would need to be assessed against the existing legislation and responsibilities for child protection. We have very well-embedded multi-agency systems for doing that, so it would not necessarily be a decision for social work. We are moving much more towards making shared decisions as multi-agency groups in line with the GIRFEC practice model. There is no doubt that there will be training implications for all agencies, as a number of witnesses have said to you, and that will, of course, include social work practitioners.

11:45  

There will be a need for some training, but I would reiterate that this is something that our social work colleagues work with day and daily. The reality of domestic abuse is that it impacts on many hundreds and thousands of women and children across Scotland. Many of them are already in contact with our social work services, and our practitioners have built up skills around that. We are looking to build on the strength that is there, but we acknowledge that there is always room for further training, awareness and improvement in practice.

John Finnie

Thank you. Finally, you talk about

“multi-agency work being undertaken to deliver the outcomes of ‘Equally Safe’.”

Were the bill to be passed, would it be entirely consistent with equally safe? Could you give a short comment on what equally safe is, just for the purposes of the record?

Kathryn Sharp

Equally safe is Scotland’s national approach to tackling violence against women and girls. I cannot remember when it was originally published—I think that it was in 2014—but it was recently revised to take better account of the impact of various forms of violence against women, children and young people. At the moment, the delivery plan that sits alongside that was consulted on last year, so I think that it is still in draft and will be published at some point this year. It contains a wide range of actions and a very clear shift towards a preventative focus, but there are priorities in it that very much relate to holding perpetrators accountable for their behaviour and ensuring that women, children and young people are protected by justice responses as well. It is very much in line with the provisions of the bill as they are drafted.

Mairi Evans

I have a question that relates to the other proposed reforms to criminal procedure, evidence and sentencing, some of which we have touched on today. Do you have any other issues that you would like to highlight in relation to those reforms, or are you broadly in agreement with some of the other proposed procedures?

Kathryn Sharp

Social Work Scotland is supportive of the changes, particularly those that prevent the possibility of perpetrators further using the justice system to victimise their partner or ex-partner. As Aaron Slater said, those are important loopholes to close, and we have recognised that in other contexts of violence against women, particularly around sexual offences legislation. It is absolutely appropriate that that be extended to victims of domestic abuse.

Aaron Slater

As I said before, the reforms to the procedures are welcome. They close the loopholes, give better protection to victims and prevent retraumatisation. I have nothing to add.

The Convener

That concludes our line of questioning. Thank you both very much for attending and giving evidence to the committee today.

11:47 Meeting suspended.  

11:49 On resuming—  

The Convener

Our next agenda item is our closing evidence session on the Domestic Abuse (Scotland) Bill. I welcome back the Cabinet Secretary for Justice and his officials Philip Lamont and Patrick Down, who are both members of the bill team, and Louise Miller, who is from the Scottish Government’s directorate of legal services.

I refer members to meeting paper 2, which is a note by the clerk, and meeting paper 3, which is a private paper. Cabinet secretary, do you wish to make an opening statement?

Michael Matheson

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.

The Convener

Thank you for your opening statement. In particular, it is helpful to have on the public record that the definition of “distress” will be as it is in the “Concise Oxford English Dictionary”—namely, “extreme anxiety or suffering”. I think that all members of the committee will welcome that.

You mentioned courses of behaviour and the effect on children. A course of behaviour does not have to involve two separate occasions, but I presume that it has to involve behaviour on at least two occasions. The provision has also been referred to as a safeguard against overcriminalisation. Does the bill adequately capture the concept of a course of behaviour involving domestic abuse, given that—for example—the two separate occasions may be in very close proximity to each other?

Michael Matheson

The important thing to recognise here is that it is not just about two random incidents; it has to be at least two incidents that are viewed as being a course of behaviour. If, for example, an incident took place five years ago and another incident took place recently, it would be for the court to determine, when those incidents were presented to it, whether it considered that to be a course of behaviour. It is important to recognise that the issue is not just about two incidents. It is about a course of behaviour, and there have to be at least two incidents that could be considered to be a course of behaviour.

The Convener

That is helpful. I will bring in Mairi Evans, to be followed by Mary Fee then Fulton MacGregor.

Mairi Evans (Angus North and Mearns) (SNP)

The evidence that we have received over the past while has been broadly in support of the bill. Some people would like it to go further, but it has been identified that there is a gap that the bill will fill. Scottish Women’s Aid mentioned in evidence that an emergency barring order is not included in the bill. Is that something that you would consider?

Michael Matheson

I am conscious that Scottish Women’s Aid raised that matter with the committee. It was not raised in the consultation exercise. As things stand, we have exclusion orders, which can be used. For example, a victim of domestic abuse can seek an exclusion order for someone to be excluded from their home. However, I am happy to engage with Scottish Women’s Aid to consider whether further measures need to be put in place to address its concerns.

An exclusion order has to be applied for by the person who has directly experienced the abuse; the police, for example, cannot apply for one. I am happy to consider whether that should be extended—in terms of who should be able to apply for exclusion orders and whom they should apply to. I am conscious that some people have suggested that, in certain circumstances, children should be able to apply. Again, we are happy to look at that.

Mairi Evans

Emergency barring orders are used in other countries, and there are other examples that we could look at.

Another important point that Scottish Women’s Aid raised in its evidence was about training and public education campaigns. What do you envisage they will be like? How will you plan them? Marsha Scott made the point that we can have the best legislation, but everything else has to be put in place after it has been passed in order to ensure that our aim is achieved. What do you think public education, especially on coercive and controlling behaviour, will look like? What will the programme be when the bill has been passed? What training will need to be done?

Michael Matheson

Let me take those issues in two separate parts. One issue is the publicity on any new legislation and the other is the training requirement.

As we set out in the financial memorandum to the bill, as is the case with any new piece of legislation that we introduce, training will be required. Training will be required for procurators fiscal, the police and others. That will be taken into account as we look towards implementation of the bill, should Parliament approve it. That is not unusual; it happens with any new piece of legislation. For example, we have already started to implement provisions in the Abusive Behaviour and Sexual Harm (Scotland) Act 2016, and training has been progressed as a result of that new legislation.

On the publicity that is associated with legislation, when a new offence is brought in the Government always runs a publicity campaign that highlights that offence. That is often carried out in partnership with other agencies, particularly third sector organisations. The new offence that is coming into force, its implications and what it is intended to tackle will be highlighted.

There will be a publicity campaign, but its nature and shape will be developed following the passage of the bill. That campaign will be to ensure that people are aware of the new provisions in the legislation and the implications that it could have for individuals. I give members an assurance that there will be a publicity campaign, but we have not considered its shape and nature.

Mairi Evans

A publicity campaign, especially on coercive and controlling behaviour, is vital. The victim might not necessarily be able to identify the change in their own behaviour that results from coercive and controlling behaviour, but people surrounding them could identify it.

My final point is about non-harassment orders, which we have heard quite a lot about in evidence. Many organisations would like the wording of the bill to be a bit stronger in terms of a presumption in favour of imposing non-harassment orders. What are your views on the evidence that we have heard?

Michael Matheson

We placed in the bill a requirement that the court consider, at the time of sentencing, whether a non-harassment order is required. We believe that that will ensure that the courts will have to consider the issue and set out their decision on whether a non-harassment order is required. The requirement places the obligation on the court—the sheriff or judge, in particular—to set that out in a way that is not currently required.

I am, of course, always content to consider whether there are ways in which we can strengthen the legislation, but we feel that the policy intention and the provision that we have put in the bill to ensure that our sentencers and courts consider those issues at the time of sentencing should effectively deliver that.

Mairi Evans

Another point that was raised was whether non-harassment orders in relation to children should be looked at, given that a non-harassment order could be in place for the victim of domestic abuse, but that abuse could continue through the children of the relationship if contact with them is awarded. What are your views on that evidence?

Michael Matheson

I would be happy to consider that, to see whether there is a way in which the issue that has been highlighted could be adequately addressed, when it comes to children. That is an issue that we are already considering.

Mary Fee

I wanted to cover public education and training, but Mairi Evans has covered most of that.

Do you remember that a few years ago there was a successful television advertisement about domestic violence? It was quite hard hitting and was a good way of raising awareness. It reached far more people than could probably ever be reached by written publicity. Is that something that may be considered as you consider how you will publicise the legislation?

10:30  

Michael Matheson

There is a variety of media in which that can be achieved. I am conscious that social media now play a big part, in a way that may not have been the case five, six or seven years ago. We have not decided what the publicity campaign around the new legislation will be, but we will consider that.

Some of the provisions that have come in through the Abusive Behaviour and Sexual Harm (Scotland) Act 2016 have been highlighted recently in the “I just froze” campaign by Rape Crisis Scotland, which we supported. It was, largely, a social media campaign.

We have also had social media campaigns that have targeted young people specifically, because we know that we can use social media as a way to target particular age groups, so there is a variety of things that are taken into account when we are looking at what the publicity campaign will be. Whether it will be TV adverts, radio adverts, social media or a combination of all those is something that we will consider when we are designing our publicity campaign.

I am conscious that the committee is looking to conclude its stage 1 report and that Parliament has still to decide whether it will approve the bill, so I do not want to pre-empt the decision of Parliament by telling you that we have already planned the publicity campaign before Parliament has approved the legislation. However, I can assure you that it is something that we will consider once the legislation is in place.

Mary Fee

That is helpful.

The offence in the bill is focused solely on abuse of partners or ex-partners, but we have heard evidence that it should be widened to cover domestic abuse of other family members. I am thinking specifically of elder abuse. Is that something that you have sympathy with, and do you understand why people might want that to be included in the bill? Why do you think that the bill is not the right place to do that?

Michael Matheson

The definition of the offence in the bill as being between partners or ex-partners is based on the long-standing definition that we have had for domestic abuse in our equally safe strategy. That was supported by the responses to the consultation exercise, so that is why the definition is rooted in our equally safe work about gender-based violence, and domestic violence in particular. There are other legal provisions available for issues around elder abuse and other forms of abuse that can take place within a family setting, so I do not believe that the bill is the appropriate place in which to address those issues further. It should be said, however, that if an elderly person is being abused by a partner or ex-partner, the offence can be applied in those circumstances if the criteria that are set out in the offence are met.

There are other pieces of legislation that address those issues. I am not aware of gaps in the legislation for dealing with those matters, as there were in respect of our seeking to modernise our approach to domestic abuse through the offence in the bill. However, if there are concerns about gaps in existing legislation that deals with elder abuse or other forms of abuse that can take place in a wider family network, I would be happy to address them, but I do not believe that the bill is the appropriate place to deal with such gaps.

Mary Fee

The reason why the issue was raised was that, because more and more elderly people are being cared for at home by their adult children, there is an issue of controlling and coercive behaviour towards older people and of older people being manipulated for financial gain. However, you are content that the issue can be dealt with in other ways.

Michael Matheson

There are adult protection arrangements for dealing with cases where someone is abusing their position in relation to an individual. For example, if that is to do with the individual’s finances, there is legislation to deal with that. I suspect that the point might be more about people identifying such cases, being aware that abuse of that nature is taking place and reporting it to allow it to be investigated. That does not necessarily mean that there is a deficiency in the legislation; it means that there is a need to ensure that people are aware of such abuse and report it appropriately.

I do not want to digress too much but, with elder abuse relating to financial issues, part of the challenge can be the sharing of information between agencies such as banks or the police and the social work services that are trying to co-ordinate a case. The adult protection arrangements are in place to manage those types of issues, when abuse is reported.

Legislation is in place and social work services have processes in place to deal with adult or elder abuse through the normal adult protection processes. I am not aware of any gaps in the legislation. That is not to say that it could not be improved, but I do not believe that the bill is the right place to seek to do that.

Fulton MacGregor (Coatbridge and Chryston) (SNP)

In your opening statement, you mentioned the aggravation in relation to children. We talked about that last week and I questioned the witnesses about it. As things stand, if the police attend a domestic incident and make a report or charge someone, there is an automatic referral to social work and the children’s reporter. That process is a way of ensuring the safety of the children. Consideration must also be given to whether child protection procedures should be initiated. Would you support similar procedures being put in place in relation to the offence in the bill, if it is passed, where there is police involvement?

Michael Matheson

If there is police involvement and there are concerns about the child’s welfare and what the child may have been exposed to, I would expect that process to be used.

Fulton MacGregor

In the review of section 12 of the 1937 act, would you support an automatic referral to the children’s reporter as a result of police involvement?

Michael Matheson

We need to allow that review to look at the issue. In principle, I would not be opposed to that, if it is the most appropriate way of dealing with issues. We are creating the aggravator in the bill. If the work that my colleague Mark McDonald is taking forward highlights the need to create some form of automatic referral in other instances, I would be content to look at that at the time. At this stage, however, we need to ensure that the aggravator is used effectively, should the bill be passed by Parliament. The wider work that Mark McDonald is doing could inform us on how we can strengthen the existing arrangements for protecting children who may have experienced domestic abuse.

Fulton MacGregor

On a slightly different note, I had a meeting in my office yesterday with the team from Monklands Women’s Aid to speak about some of the work that they are involved in locally. Like their national counterparts, they are very supportive of the bill, and we talked at length about that. What role will third sector organisations such as Women’s Aid have as prosecutors build a case to show a course of behaviour by an individual?

Michael Matheson

Women’s Aid organisations right across the country do a fantastic job in supporting victims of domestic abuse. Very often, women will disclose information to those organisations before they disclose it to the police or someone whom they see as an authority figure. Women might be in contact with an organisation such as their local Women’s Aid service over an extended period of time but not necessarily report matters to the police.

It depends on the circumstances in individual cases. It may be a matter of supporting the women to be confident enough to report the incident to the police in the first place; giving them reassurance and support in going through that process; helping to give them an understanding of what is involved once a matter has been reported to the police and of how it will then be investigated and taken forward; and giving them reassurance that someone will be there with them during the course of that process. For women who might not be ready to report the incident at that point, it could be a matter of continuing to work with them, supporting them and offering advice and assistance.

I hope that the bill will send out a signal that all forms of domestic abuse will not be tolerated. We know that there is a particular challenge to prosecuting coercive and controlling behaviour, which can go on for an extended period of time. The person may not have been subject to physical abuse, but they have been subject to psychological abuse. It is a matter of explaining to women who come for advice and support that the type of psychological or coercive and controlling behaviour that they have experienced can now be taken before the courts, and of explaining to them how the bill works in that regard.

It is a matter of helping and supporting women as victims and also advising them and giving them information about how the bill works, informing them in particular that the type of psychological abuse that they may have experienced can now effectively be prosecuted. Women’s aid organisations have a key role in helping to support victims of domestic abuse before and after they have reported the matter to the police and it is taken forward by the procurator fiscal.

Fulton MacGregor

When I spoke to the manager of Monklands Women’s Aid yesterday, she said exactly that—she hopes that the forthcoming legislation will allow more women to come forward. She said that there will actually be more need for the service there.

I appreciate that you might not be able to answer this question, but do you think that local authorities will need to review the funding arrangements for organisations such as local women’s aid services, depending on how much more work they might be taking on as a result of the legislation?

Michael Matheson

It will be down to individual local authorities to determine how they wish to continue to fund women’s aid projects within their areas. Over a number of years now, the Government has put record levels of funding into tackling gender-based violence, including through our work with organisations such as Scottish Women’s Aid and Rape Crisis Scotland. That has involved a combination of funding from equally safe work, alongside the £20 million that we have been investing over the past two and a half years through the justice portfolio in tackling gender-based violence.

We all have a part to play. I have no doubt that local authorities will want to look on these matters sympathetically, given the importance of the role of women’s aid projects in their local areas. We will continue to see what we can do to support the work that they do at a national level, too.

Rona Mackay (Strathkelvin and Bearsden) (SNP)

We know that Scottish Women’s Aid is very supportive of the bill, but it has argued for the introduction of emergency banning orders, whereby it is the perpetrator of domestic abuse who leaves the family home, not the victim. Is that something that you might consider?

Michael Matheson

To respond to the point that your colleague raised earlier, that is an issue on which we are engaging with Scottish Women’s Aid. We intend to write to representatives of Scottish Women’s Aid to obtain more details about how they believe emergency banning orders could be more effective than what we have at present, or about whether what we have at present could be more effectively utilised. We are open to discussions with Scottish Women’s Aid on that, and we will be contacting it shortly to pursue that further.

Rona Mackay

That is fine. It is generally perceived that it is usually the woman and children who leave the family home and that the perpetrator remains, so it would be helpful if that were discussed.

10:45  

Ben Macpherson (Edinburgh Northern and Leith) (SNP)

Good morning, cabinet secretary. I want to refer back to section 1 of the bill and the definition of the new offence. You touched on the concept of distress in your opening remarks, but I want you to pick up on the concept of recklessness and its inclusion in the bill.

In her evidence to the committee, Anne Marie Hicks said:

“It is important to note that it is not recklessness in the way that you or I might regard it in our ordinary lives—as a kind of carelessness. It is a criminal recklessness. It is a criminal disregard in which the person disregards the possible consequences. The courts are used to applying those tests, as are prosecutors. When we deal with a lot of different types of nuanced behaviour, as we will do under the bill, it will be useful to have the concept of recklessness. We have seen that with the stalking offence, which includes other types of behaviour that were perhaps not traditionally criminal. Recklessness has been a very important concept in that.”—[Official Report, Justice Committee, 6 June 2017; c 7.]

However, we have also received evidence that expressed concerns about the inclusion of recklessness as part of the mental element of the offence in section 1(2)(b)(ii). What would be lost if the offence was one of intent only and did not include recklessness?

Michael Matheson

On your first point, it is important to recognise that recklessness is distinct from carelessness or negligence. Courts are familiar with applying the law in that regard, so interpreting such issues is not unfamiliar territory for them. Having regard to the reckless nature of someone’s actions is appropriate for this offence.

For domestic abuse, when it comes to psychological abuse and coercive and controlling behaviour, it could be more difficult to demonstrate intent, which is why recklessness has been included in the bill. It will support the other elements that we have included to enable the coercive and controlling behaviour and psychological elements of the offence to be more effectively prosecuted. The reason why it is included is to support us in tackling the psychological element of abuse, which can be more difficult to demonstrate the intent of.

Ben Macpherson

Those who expressed concerns were concerned about potential overcriminalisation and the safeguards in the bill against that. Anne Marie Hicks specified different elements that would ensure that there was no overcriminalisation or miscarriage of justice, which included mens rea and the need for corroboration. Are you satisfied that there are enough safeguards and that the definitions are as tight as they need to be?

Michael Matheson

I believe that there are enough safeguards. There are the threefold criteria that have to be met before the offence can be engaged; the nature of the way in which we have framed the bill provides a safeguard; and there is the statutory defence in the bill, which can be utilised by an accused. We have sought to achieve a balance, and I believe that the balance is right, including in relation to the mens rea of the offence.

It is worth keeping in mind that a course of behaviour is an offence if it is “likely” to have had an impact on an individual. Particularly when it comes to psychological abuse, it could prove much more difficult to demonstrate beyond reasonable doubt that that has taken place, but we can see where a course of behaviour is likely to have resulted in psychological abuse. We have framed the legislation in such a way as to have more of a focus on the effects that the abusive behaviour can have on the victim, to capture in particular the psychological abuse that we are focusing on as part of the offence.

Ben Macpherson

Thank you for that clarity.

Oliver Mundell (Dumfriesshire) (Con)

Does the cabinet secretary think that it is right to talk about distinguishable “occasions” in the context of this type of behaviour, given what we know about its nature? For our information, why did the Scottish Government decide to pursue the approach of referring to “occasions” in defining the offence?

Michael Matheson

The purpose behind the approach is to enable identification of a course of behaviour to allow the courts to interpret what has happened. For example, the process starts with it having to be demonstrated that abusive behaviour has taken place, and there are further criteria within the offence that mean that consideration must be given to whether there is a course of conduct, which is a concept that is not unfamiliar to our courts. That concept is used in our stalking offence in considering the behaviour of an individual. Something that may seem to be incidental or an isolated occasion but which recurs over a period of time can cumulatively be considered to be a course of conduct that causes concern for an individual. In the case of the stalking offence, it could be that someone sees a person they have concerns about in a shop on one occasion and then, whenever they go to the shop, they find that that person is there again. If it happens on one occasion, people might think that it is okay, but if it happens regularly, it is a course of conduct. That is why we have sought to bring the behaviour together as a course of conduct. We know that that tends to be the way in which victims experience psychological abuse.

Oliver Mundell

Why was the decision taken to attach a number to the occurrences? I can imagine a situation whereby there may be one sustained incident and it is not possible to break it down into a number of different events; it could be one sustained incident that continues over a long period of time. As a result of the bill stipulating that the behaviour has to happen on two occasions, the type of situation that I describe would not be interpreted by the court as a pattern of behaviour.

Michael Matheson

If, for example, someone was subjected to some form of physical abuse on an occasion, that could still be prosecuted as well, so that could still be pursued. We have taken an approach based on a course of conduct because we know that, for many victims of domestic abuse, there may be a course of conduct that takes place over a period of time. That can sometimes involve physical violence, but it can also involve psychological abuse. Such abuse could involve, for example, restricting the times when someone can leave, requiring them to bring back receipts for everything that they purchase when they are out or limiting the time for which they are out. That might not all happen on one occasion, but it could happen over the course of a period of time—it could be over weeks, months or even years. It is for the courts to determine that there is a course of conduct, to view it as a form of abuse and to come to a determination on it.

It is about trying to pick up individual instances on their own that might not be considered to be abusive but, as a course of conduct alongside other factors, would be considered to be abusive behaviour. Therefore, we have sought to frame it in such way that that behaviour must happen on at least two occasions, so that a one-off occasion of abuse is not captured. However, behaviour that is viewed as being unintentional or that took place on a one-off occasion could still be prosecuted by other means. For this offence, the behaviour must happen on at least two occasions in order to establish that there is a course of conduct.

Oliver Mundell

If someone were to deny their partner access to their bank account or to finance and that continued for several weeks, a month or a year, that would not be captured by this offence—or would that be seen as multiple incidents?

Michael Matheson

That denial of access would take place on a number of occasions—it would not happen on just one occasion but would happen several times over time, so a course of behaviour would be demonstrated.

It is reasonable to say that many victims of such crimes do not experience just one form of abuse. Often, if they are being denied access to their bank account, they are also being denied access to a whole range of other things and being treated in an unacceptable way.

That would be one example of abusive behaviour, but it would be a course of behaviour that was played out over a number of occasions.

Oliver Mundell

That is helpful, and I take your point about the multiple types of incidents that occur.

You have talked at length about the three-stage test in establishing the offence. You seem fairly satisfied that that is sufficient, so why has the statutory defence of reasonableness been included in the bill?

Michael Matheson

The purpose behind its inclusion is that there might be rare occasions where “reasonableness” can explain some of the behaviour. The bill therefore provides that the statutory defence of reasonableness will be available for use on those occasions. It will be for the courts to determine whether it applies. The bill provides the safeguard that an accused can employ that defence if they believe that they can explain that they had acted reasonably at the time.

Oliver Mundell

You do not consider that the opportunity to do that exists when the courts take evidence in considering whether a course of behaviour has been demonstrated. You consider that that defence is needed on top of that.

Michael Matheson

I am conscious that, if we did not have the provision in the bill, people would say that there was no safeguard for an accused to be able to say that they acted reasonably. Given how we have framed the offence and created the statutory defence that is available to an accused, I am confident that we have the balance right. Ultimately, however, it will be down to the courts to determine whether use of the statutory defence is appropriate and acceptable.

Oliver Mundell

The Scottish Government has no concerns whatsoever that the defence might be exploited by the accused in such cases, particularly as another way to slow things down or intimidate or undermine the victim.

Michael Matheson

There is no evidence to suggest that that would be the case. In order to provide greater safeguards for victims, the bill removes the ability of someone accused of the offence of abusive behaviour to precognosce the victim.

On our courts’ performance in dealing with domestic abuse cases, it is fair to say that across the country they have, by and large, met the 10-week target that they were set. Therefore, the courts are dealing with such cases relatively quickly.

As I say, I am not aware of any evidence that suggests that, by creating the statutory defence of reasonableness, we would slow the process down. I imagine that many of those who are accused of abusive behaviour will want to put forward their own defence, which might be the statutory defence that is set out in the bill. As I say, that defence will be considered and determined by the courts.

11:00  

John Finnie

I want to revisit an issue that has already been touched on. I raise it on the back of what are clearly heightened expectations about what the bill can deliver. The legislation will be quite challenging for the courts to interpret, and you have talked about the training that will go with it, if it is passed. We know that the complainer will be informed by an information campaign and will have the support of certain agencies. Police Scotland will do training; in any case it has a specialist department, as does the Crown Office and Procurator Fiscal Service. However, judicial training has always seemed to be a challenge. Can you guarantee that anyone deliberating on such cases will have specific training on the issues?

Michael Matheson

Training on domestic abuse is part of the induction programme for those who become sentencers. The rules on the continued training of sentencers are overseen by the Lord President through the Judicial Institute for Scotland, which is headed up by Sheriff Alistair Duff. The institute makes available on-going training for sentencers, but it is down to individual sentencers to determine what elements of training to pick up on. Not all of that training is face-to-face classroom-type training. A lot of it can be provided online; there is a suite of online training in the system. The on-going training of sentencers is a matter for the individuals, overseen by the Lord President.

John Finnie

I take no reassurance from that whatsoever. When we were dealing with the Limitation (Childhood Abuse) (Scotland) Bill recently, we were aware that discretion could be exercised to waive the time limit, but that it had been waived only once in 40 years. Judges are still seen as being very socially conservative. Some form of compulsion needs to be associated with the training of judges. The alternative is that we need a roll-out of domestic abuse courts, which I will ask about next. It is about all the issues—criminal and civil—and all the organisations coming together. Judges are still making some very intemperate comments about domestic issues—some wholly unacceptable comments were made last year.

Michael Matheson

There were a couple of different issues there. If training on domestic abuse is made compulsory, I have no doubt that people would say that training on X, Y and Z should also be made compulsory. I think that we need to recognise the opinions of the judiciary and the need to make sure that appropriate training is available to them, with the institute providing that opportunity, overseen by the Lord President.

I am open to considering whether there is a need for further mandatory training at various points in a sentencer’s career to refresh their training. However, I am very conscious of the need to make sure that the Government does not direct that. John Finnie and the committee may wish to explore with the institute and the Lord President whether refresher training of sentencers should take place at a particular point. However, as I said, I am conscious that if we start to specify that they must do mandatory training on X, there will be those who will say that we have to provide mandatory training on other areas as well.

John Finnie also mentioned the domestic abuse courts that we have in a number of areas. In the Highlands, the sheriff principal tries to operate the arrangements by clustering cases together in Inverness. However, sometimes the number of cases coming before the court is insufficient for an on-going standalone domestic abuse court.

John Finnie

But the domestic abuse court is a clustering. People have the perception that it is a building. We are talking about the administrative arrangements to support the process.

Michael Matheson

You have jumped ahead to the point that I was coming to. In Inverness, domestic abuse cases are clustered together because there are not enough such cases to have a domestic abuse court sitting on an on-going basis. In some rural areas, domestic abuse cases are brought together. Sheriffs principal are sensitive to the need to make sure that that happens as and when they can make those arrangements.

There is a line around the Government specifying the training for sentencers. That is not to say that I do not recognise the point that you make about the value of having sentencers who are properly trained so that domestic abuse issues are considered, but the decisions on how that should be progressed should be looked at by the institute and the Lord President, who has responsibility for overseeing the training of our sentencers.

John Finnie

Are there any plans to roll out domestic abuse courts, or the principle of clustering, in conjunction with the bill?

Michael Matheson

Sheriffs principal are doing that at the moment in different parts of the country. In places where an insufficient number of domestic abuse cases prevents a domestic abuse court from sitting on an on-going basis, a range of domestic abuse cases are being clustered together so that they can be dealt with over a period of a day or two or three days. That allows the relevant services to be planned.

In that sense, there are more domestic abuse courts; it is just that in some areas they do not sit on an on-going basis, because they do not have the volume of cases to justify that.

John Finnie

Are civil deliberations relating to those cases part of the clustering, or are they a standalone element?

Michael Matheson

I would have to check on how those civil matters are managed.

Mary Fee

I want to ask about contact. During our evidence taking, we heard about two completely different issues with contact. One of them arises when a child is used by a parent who is the abuser to continue coercive or controlling behaviour; the other arises when a child is denied contact with a parent who has been abused and is no longer resident in the home, with contact disrupted as a means of continuing the abuse. Are you aware of those two issues? Do you feel that the bill adequately tackles them?

Michael Matheson

The first thing to recognise is that the bill is not and was never intended to tackle those issues. I am aware of the concerns that have been raised about the ability of the civil courts to process some of the issues to do with child contact. That is why we have begun the process of reviewing the key legislation that deals with that, which is part 1 of the Children (Scotland) Act 1995. I understand that officials have recently written to key stakeholders such as Scottish Women’s Aid to obtain their views on the issue. We intend to have a public consultation on the review of part 1 of the 1995 act as part of our family justice modernisation strategy, which is due to start early next year.

We are aware of the issues that you raise, but the Domestic Abuse (Scotland) Bill is not intended to address them. As part of the family justice modernisation strategy, we intend to have a consultation on how we can address some of the issues of concern in that area.

Mary Fee

That is very helpful.

The Convener

You have touched on training for sentencers, but some of the written submissions that the committee has received include comments on early intervention and the prevention of reoffending. On prevention, the National Society for the Prevention of Cruelty to Children said in its submission:

“Professionals at the NSPCC expert forum were clear that perpetrator programmes/services are often working with people ‘long after the effect’: endeavouring to address behaviours that have become entrenched over many, many years.”

However, during last week’s meeting, the witness from Sacro indicated that the provision of rehabilitation programmes for perpetrators of domestic abuse might be patchy.

Are you satisfied that, across the country, there is sufficient provision of rehabilitation programmes for people who are convicted of domestic abuse?

Michael Matheson

A range of programmes is available. Someone who is given a community payback order can engage in a criminal justice social work programme to address their offending behaviour, and we also have the Caledonian programme, which we operate in a number of areas. We have provided some additional funding to the Caledonian programme so that we can consider how we can roll it out to other parts of the country—we have already commissioned work on how that can be achieved effectively. The Caledonian programme works over an extended period of time—about two years, if I recall correctly—with perpetrators of domestic abuse, and uses an approach that is based on extensive research.

The Convener

Are you confident that those two approaches, taken together, are sufficient in terms of rehabilitation programmes?

Michael Matheson

Do we want to do more? Of course. Will people always say that we should do more? Of course. However, I am confident that we have a broad spread across the country. What we need to do is ensure that the programmes are effective in working with offenders to address their offending behaviour and have a good evidence base. The Caledonian programme has a strong evidence base that has been built up over a number of years. That is why we have commissioned a specific piece of work to see how we can roll it out to other parts of the country. If I recall correctly, that piece of work is due to report later this year, and it will inform our thinking about rolling the programme out further.

The Convener

On early intervention, the NSPCC talks about

“endeavouring to address behaviours that have become entrenched over many, many years”

and says:

“Earlier intervention to address coercive controlling behaviour/gender based violence within young people is critical and we would hugely welcome a commitment to funding appropriate prevention and early intervention programmes for young people with problematic behaviour in relation to gender based violence.”

What is the Scottish Government doing to ensure that early intervention programmes, including voluntary ones, are available to help prevent domestic abuse?

Michael Matheson

The first thing that I should say is that the bill is not intended to deal with that particular issue; it is about creating a new offence. The equally safe strategy is the Government’s strategy for tackling gender-based violence. A course of work is being taken forward in relation to that, led by my colleague Angela Constance, which involves a range of programmes to tackle gender-based violence, including awareness programmes that are designed to ensure that people have respectful relationships. For example, from a justice perspective, the stuff that we do around mentors and violence prevention—although it is not specifically related to the equally safe strategy—is about ensuring that young people have respectful relationships and that they address inappropriate behaviour in the school environment. That work is being done across most of the local authority areas in Scotland where the council has sought to participate in the programme.

The strategy that tackles gender-based violence is the equally safe strategy, which sets out the range of work that is being taken forward by Government. The implementation group, which has a range of stakeholders on it, is responsible for considering the various strands of work that come from the strategy.

The Convener

To a large extent, the issue has arisen as a result of the Scottish Police Federation’s response, which stated:

“As a general observation ... Almost unlike any other crime the ... policy approach to domestic abuse is one geared almost exclusively towards punishment. We find this at variance with diversionary and educational activities in most other crimes. We simply ask whether a long term strategy that seems built on prosecutorial activities is likely to bring about the attitudinal changes that are necessary to help eradicate domestic abuse.”

I suppose that the federation is looking for some hint or cognisance in the bill that the two go hand in hand if the proposed legislation is to be effective in eradicating this pretty vexing and horrific offence.

11:15  

Michael Matheson

I think that we are confusing two different things. The first is the issue of prevention programmes and tackling gender-based violence. That is the aim of the equally safe strategy, which sets out a course of work to tackle gender-based violence that the Government will take forward with the other agencies.

The issue that I think you are touching on is the policy on the prosecution of offences, which is a different matter. It is up to the Lord Advocate to determine how prosecutors deal with domestic violence cases and whether they put them to the court or offer some alternative to or diversion from prosecution. I am conscious that some believe that there are domestic violence cases going to court that should be dealt with by other means, but any decision on changing prosecution policy would be a matter for the Lord Advocate. We are therefore talking about two different issues, although they are related in some ways.

Just to be clear, are you suggesting that there should be a change in prosecution policy and that you believe that certain cases that are presently being referred to the courts should not be?

The Convener

No. I am picking up on the federation’s comments about the policy being too rigidly applied and no other options being looked at although they might be more effective in individual circumstances. After all, as was made quite clear in some of the evidence that we took, this is all about individual circumstances. An inane comment in one set of circumstances might be exactly that—something harmless—while in other circumstances it might be really threatening and a classic example of coercive behaviour.

It might be helpful to tease this out. Although the bill is welcome, the issue should always be looked at in terms of whether there might be a better way of dealing with the circumstances in question and whether those circumstances tick the box for the behaviour that the bill is supposed to address. You have rightly said that, at the end of the day, it is a prosecutorial decision and a decision for the judge.

Michael Matheson

There is absolutely no doubt that the way in which the police have been dealing with domestic abuse has changed dramatically over the past 20 years. I remember as a member of the justice committee in the first session of the Parliament—that is nearly 18 years ago now—taking evidence from the police that suggested that they still considered some aspects of domestic abuse to be private matters. You would never hear that nowadays.

Moreover, prosecutors are taking more of these cases to court, largely because more such cases are being reported to them. Some people have suggested that they should have more flexibility in determining which cases should go before the courts and which should be put forward for alternatives. If the committee is suggesting that, for the Parliament to support the bill, our prosecutors should reflect on their existing prosecution policy, that is a matter for the committee; however, such a determination would be for the Lord Advocate to consider once any new legislation was in place. The bill does not deal with that matter, and I am not aware of any plans for prosecutors to change their policy on domestic abuse matters. It is for the committee to reflect on the evidence that it has received and to highlight any need to reconsider the present prosecutorial arrangements for dealing with these cases and any changes that need to be made. At this stage, I am not aware of any plans by the Crown Office to do that.

The Convener

As you will know, the Crown Office and Procurator Fiscal Service expressed concern about the rigidity with which the provisions would be applied, although they would be applied robustly. It has been good to tease that out.

The Finance and Constitution Committee has provided us with a summary of the evidence that has been submitted on the bill’s financial memorandum, indicating the high level of uncertainty that is highlighted in a number of submissions with regard to the provision of exact estimates of the cost of introducing the proposed offence. What reassurance can you provide that adequate resources will be made available to support the bill’s effective implementation?

Michael Matheson

Whenever a new offence is introduced, it can be difficult to quantify its exact financial implications. As a result, we have looked at what we consider to be the most reasonable financial consequences arising from the bill. For example, we have used a central estimate of 6 per cent, which is based on the impact that we know the legislation has had in England and Wales. The estimate in the financial memorandum goes from 2 per cent up to 10 per cent, and we have taken 6 per cent as a broad figure that we believe reflects the overall financial implications.

Of course, if the bill is approved by the Parliament, its provisions will be introduced in stages. We intend to introduce the first elements in 2018-19 and the remaining elements in 2019-20. As we get closer to the bill’s implementation, we will look at refining the financial information and at the financial support that is necessary to ensure that the legislation is effectively resourced and implemented.

The Convener

As members have no further questions, that concludes our oral evidence taking on the bill. The committee will consider its draft stage 1 report in September.

I thank the cabinet secretary and his officials for attending. Our next meeting will be on Tuesday 5 September 2017.

11:22 Meeting continued in private until 12:05.