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Chamber and committees

Meeting date: Tuesday, November 21, 2017

Justice Committee 21 November 2017

Agenda: Subordinate Legislation, Domestic Abuse (Scotland) Bill: Stage 2, Civil Litigation (Expenses and Group Proceedings) (Scotland) Bill: Stage 1


Contents


Domestic Abuse (Scotland) Bill: Stage 2

The Convener

Agenda item 4 is consideration of the Domestic Abuse (Scotland) Bill at stage 2. For this item, I ask members to refer to their copies of the bill and the marshalled list of amendments. I welcome back the cabinet secretary and his officials, and I also welcome Linda Fabiani to the meeting.

Section 1—Abusive behaviour towards partner or ex-partner


The Convener

Group 1 is on the relationship context of the offence. Amendment 1, in my name, is grouped with amendment 2.

Amendments 1 and 2 were prompted by evidence that the committee received at stage 1 from Scottish Women’s Aid. Heather Williams gave the following example of psychological abuse:

“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 ... when taken in the full context, we can understand why it would cause harm and distress”.—[Official Report, Justice Committee, 13 June 2017; c 18.]

I consider that evidence to be absolutely crucial, because it seems to me essential that, in order to understand whether behaviour can be deemed abusive or likely to cause someone to suffer psychological harm in a domestic relationship, we look at the behaviour in the context of that relationship. Behaviour that in some circumstances might not appear to be threatening or intimidating might be seen in an entirely different light once the context of the relationship between A and B is taken into account. As a result, amendments 1 and 2, which have the support of Scottish Women’s Aid, seek to insert

“in the context of the relationship between A and B”

into section 1.

I move amendment 1.

10:15  


Michael Matheson

Amendments 1 and 2, which relate to the new offence of domestic abuse, are, as I understand it, intended to address a concern raised during stage 1 scrutiny that the operation of the offence does not acknowledge that relationships between partners are, by their nature, different and that, as a result, behaviour occurring within the context of one relationship might be construed quite differently than the same or similar behaviour occurring within another, different relationship. Although the amendments are obviously well intentioned, I will explain why I do not think that they are required and, indeed, why they might confuse how the courts should approach consideration of the new offence.

First, I will briefly confirm how the new offence operates to explain the context for why the amendments are not necessary. The wording of section 1 already makes it clear that the offence relates to a course of abusive behaviour in the context of a relationship between a person and their partner or ex-partner. It is important to consider the definition of “abusive behaviour” in section 2, which provides that behaviour that is abusive includes behaviour

“that is violent, threatening or intimidating”;

and it is hard to imagine any circumstances in which such behaviour would not be abusive. Amendments 1 and 2 are therefore unnecessary in relation to those aspects of abusive behaviour.

However, as members know, the definition of “abusive behaviour” also includes behaviour that is likely to have one of the effects on the complainer listed in section 2(3). It is important to keep in mind that the question here is whether the accused’s behaviour is likely to have one of those effects on the actual complainer in the case, as opposed to a hypothetical person. That means that the court is required, case by case, to have regard to the context of the relationship between the accused and the complainer in reaching its decision on the evidence. For example, the court must consider whether the accused’s behaviour was likely to have the effect of

“frightening, humiliating, degrading or punishing”

the complainer in question.

It is also important to bear in mind that the court is required to consider whether a reasonable person would consider the accused’s behaviour likely to cause the complainer to suffer physical or psychological harm, not whether it would be likely to cause such harm to a hypothetical victim. For example, if the court accepts evidence that the relationship between the accused and the complainer was characterised as being, for instance, very argumentative and marked by the use of strong language by both partners that others might consider abusive in a general sense, the court might reach the conclusion that, given the context of the relationship between the accused and the complainer, the accused’s behaviour was not likely to cause psychological harm to the complainer. Again, that turns on the likely effect on the complainer in question, rather than a hypothetical victim. Nevertheless, it depends on what the court believes that a reasonable person would conclude as likely to affect the complainer in question. That, too, ensures the right measure of objectivity, as the evidence is assessed case by case.

I hope that that provides reassurance that the bill as introduced requires the court to have regard to the whole context of the relationship between the accused and the complainer in deciding whether it is proven that the offence has been committed.


John Finnie (Highlands and Islands) (Green)

Your examples have all related to interpretation by the court, but there is a step prior to that, which is the involvement of the police. With regard to the particular phrase that the convener quoted, if you or I were to use it in addressing someone, it would be seen as very innocent. The difficulty is that a woman who is the victim of such an approach might find it difficult to convince the police that the behaviour is unreasonable. Is the challenge here not about how the court interprets the matter but about how we get the issue to court?


Michael Matheson

Not necessarily, as it will be for the courts to decide how to interpret the legislation. The balance in the offence has been set out this way in the bill to ensure that the whole context of the relationship can be taken into account in consideration of the matter.

Amendments 1 and 2, which reiterate that the offence takes place within the context of a relationship between partners or ex-partners, are simply not needed. To add the words

“in the context of the relationship between A and B”

to two places in section 1 would have no true legal effect on what is already addressed by the provisions when they are read as a whole.

Furthermore, I am concerned that the additional words are also liable to cause confusion. Indeed, I am not precisely sure what truly is qualified by the proposed additional wording in each case. The amendments also perhaps raise a question about when abusive behaviour between partners and ex-partners would not happen in the context of their relationship. Would it ever be possible to separate relationship abuse from non-relationship abuse when abuse occurs between people who are in or have once had a relationship?

Finally, if the convener’s intention is to provide for an objective overview of what is reasonable in a typical relationship context between two hypothetical people, I have to say that the amendments do not achieve that, because they refer to the particular relationship between person A and person B. In any event, the nature of what amounts to abusive behaviour in the context of a particular relationship is, as I have explained, already covered in the bill. In addition, it is worth reminding members that the defence in section 5 of the bill is part of the checks and balances designed to ensure that no one is unfairly criminalised by the new offence.

On that basis, I invite the member to withdraw amendment 1 and not to move amendment 2.


The Convener

The cabinet secretary said that the wording is likely to cause confusion, but the type of relationship that we are looking at here is an abusive one. There is also the issue of psychological harm, which can be quite hard for people to get their heads around. There are two types of relationship: non-abusive relationships and relationships that the legislation seeks to address. That is why context is all important and greatly adds to the bill’s understanding.

In all of your explanations, cabinet secretary, you have constantly mentioned context, but it is not on the face of the bill. Amendment 1 merely serves to make the legislation the best that it can be and to aid understanding of psychological abuse. If the bill referred to context, it would make it totally evident what psychological behaviour is.

I ask the cabinet secretary to reflect on that. As an example that he might take into account, we constantly asked for amendments to the Human Trafficking and Exploitation (Scotland) Bill to strengthen the bill and make it better. Eventually, at stage 3, those amendments appeared.

I will not press amendment 1, but I would very much welcome further discussion with the cabinet secretary to see if we can come to a meeting of minds. For me, context is all important to ensuring that the bill achieves what we all desperately want it to achieve. I have had a lengthy discussion with Scottish Women’s Aid, which provided evidence on the issue, and it is very much of the same opinion. As I have said, if the cabinet secretary is happy to discuss the issue further with me, I will not press the amendment at this stage.


Michael Matheson

I am always happy to discuss matters with committee members with a view to improving legislation, but I think that our discussions with Scottish Women’s Aid have been slightly different from those described by the member. That said, I am more than happy to have a discussion with the convener before stage 3.


The Convener

I had a discussion with the group as recently as half an hour before we came into committee, so there has obviously been some miscommunication.

Amendment 1, by agreement, withdrawn.

Amendment 2 not moved.

Section 1 agreed to.

Section 2 agreed to.

After section 2


The Convener

The next group is on extraterritorial jurisdiction. Amendment 3, in the name of Michael Matheson, is the only amendment in the group.


Michael Matheson

Amendment 3 inserts a new section that provides the Scottish courts with extraterritorial jurisdiction in respect of offences of domestic abuse. Members will recall that the issue was raised by Scottish Women’s Aid in evidence at stage 1. Scottish Women’s Aid emphasised that it was necessary to provide Scottish courts with extraterritorial jurisdiction over the domestic abuse offence to comply with the Istanbul convention on violence against women.

The effect of amendment 3 is to provide that, where a United Kingdom national or a habitual resident of Scotland commits the offence wholly or partly outside the United Kingdom, the Scottish courts have jurisdiction to deal with that offence. That is particularly important given that such an offence is constituted by a course of behaviour that can occur over time in various places. Amendment 3 also states which sheriff court is to have jurisdiction if the offence is committed wholly outside the United Kingdom. Existing jurisdictional rules will apply when the offence is committed partly abroad and partly in Scotland. Simply put, the offence can be tried in the sheriff court district where the Scottish part of the course of conduct took place.

Amendment 3 does not make such provision when the offence is committed in another UK jurisdiction. That is because, when an offence occurs partly in another UK jurisdiction, common-law rules concerning offences that are committed across the different jurisdictions of the UK will enable the elements of a course of conduct that happen in another part of the UK to be included in the charge. For the avoidance of doubt, when the behaviour occurs wholly in another UK jurisdiction, we think it appropriate that it should be prosecuted in a court in that jurisdiction.

I move amendment 3.


The Convener

Will you give an example of the kind of behaviour that might be covered under the amendment?


Michael Matheson

For example, a couple is on holiday in Spain and a course of abusive behaviour takes place there and, on return to Scotland, when a complaint is made to the police and is investigated, reference is made to the behaviour that took place outwith Scotland. That could be taken into account when the complaint is being considered and it could be presented in court.


The Convener

Would the jurisdiction be worldwide?


Michael Matheson

In what sense?


The Convener

Where are we looking at for extraterritorial jurisdiction?


Michael Matheson

The course of behaviour could take place anywhere in the world; it does not matter where it happens outwith Scotland or the UK. The provision is not specific to any particular country.


The Convener

You mentioned a country that is in the European Union—that is all that I was asking.


Michael Matheson

It is not dependent on whether we remain in the EU.


The Convener

That is good to know.


Michael Matheson

Of course, Istanbul is not in the EU.


Liam Kerr (North East Scotland) (Con)

I have a slight concern about the status of the perpetrator, who is identified as “A” in the bill and in the amendment. We have set out two categories: we have “habitually resident in Scotland” or “a UK national”. I completely accept that there needs to be a very real connection to Scotland so I am perfectly comfortable with the category of “habitually resident in Scotland”. However, it is my understanding that, if modern statutes have a nationality category at all, it tends to be limited to British citizens. That is not the slightly wider definition of UK national that is in the amendment, which includes

“a British overseas territories citizen, a British National (Overseas) or a British Overseas citizen”.

My view is that the best option would be to narrow it down to those who are habitually resident in Scotland at the time the offence is committed, with the caveat that, if it is going to be wider, it is extended only to British citizens. I would be interested in your thoughts on that.

10:30  


Michael Matheson

My understanding is that, in order to comply with the convention, the provision has to apply to those habitually resident in the UK or UK nationals. That is why the amendment has been drafted in that way: it is to comply with the requirements of the Istanbul convention.


Liam Kerr

I see, so it is about those habitually resident and British nationals.


Michael Matheson

UK nationals.


Liam Kerr

UK nationals—okay. To comply with the convention, overseas territories need to be included.


Michael Matheson

Yes.


Liam Kerr

I understand. Thank you.


Liam McArthur

I will follow that up for the purposes of clarity. In terms of extraterritorial jurisdiction, a UK national as defined in the amendment might not be habitually resident in Scotland. New subsection (3)(a), which amendment 3 would insert, refers to someone who is

“habitually resident in Scotland, or ... is a UK national.”

We are not dealing with somebody who is a UK national but who resides habitually somewhere else in the UK and commits the offence overseas in whole or in part and then is subject to the jurisdiction of sheriff courts in Scotland. How is that delineated through the amendment’s provision?


Michael Matheson

Sorry, but I am not entirely with you. What sort of person are you referring to?


Liam McArthur

A UK national or somebody who is habitually resident somewhere else in the UK, who commits the offence overseas, either entirely or in part, and returns to the UK and finds themselves the subject of a complaint.


Michael Matheson

If it is a UK national who commits the offence entirely outwith the UK, the offence can still be prosecuted in Scottish courts. However, if it is a UK national—I am just trying to clarify this for the member—who commits the majority of that offence in another part of the UK and outwith Scottish jurisdiction, they would be prosecuted through the domestic courts where the majority of that—


Liam McArthur

Sorry, but I am probably not explaining this clearly. I am asking about that first example of a UK national who commits the offence overseas and the entire sequence of actions takes place overseas. That UK national is not habitually resident in Scotland. Presumably the provision is not about prosecuting in Scottish sheriff courts an individual from Manchester, London or wherever.


Michael Matheson

No. If it was, for example, an expatriate staying overseas who committed the offence against someone who resided in Scotland and that was their habitual residence, they could be prosecuted here in Scotland for that offence. I hope that that clarifies the type of person that we are thinking about.


Liam McArthur

Okay. That is helpful.


The Convener

This has been more of a question-and-answer session, because of the technical point. Normally, we would take all the comments in a oner and then ask for the cabinet secretary’s view. Do you want to say anything further to wind up, cabinet secretary?


Michael Matheson

No.

Amendment 3 agreed to.

Section 3 agreed to.

Section 4—Aggravation in relation to a child


The Convener

Amendment 4, in the name of the cabinet secretary, is grouped with amendments 5 to 9.


Michael Matheson

Members will be aware that the bill contains a statutory aggravation in section 4. The aggravation provides that if the accused involved a child in committing the offence, the aggravation applies. A child can be involved in three ways: if the accused directed behaviour at the child; if the accused made use of a child in directing behaviour at their partner or ex-partner; and if a child saw, heard or was present during incidents of behaviour forming part of the course of abusive behaviour that constitutes the offence. The aggravation is intended to ensure that the harm caused to children when they witness or are involved by the perpetrator in the abuse can be reflected by the court when sentencing the perpetrator.

Members have heard stakeholders who represent children affected by domestic abuse express some concern that the aggravation in the bill does not reflect the harm that is caused to children by growing up in an environment in which their parent or carer is being abused. That criticism has focused on cases in which a child is in the environment in which the abusive behaviour is being carried out but is not directly involved as such, in which case the current aggravation in section 4 would not apply.

Examples of the harmful effects of domestic abuse on children that are not covered by the aggravation include: coercive and controlling behaviour that has the effect of isolating a child, as well as the primary victim, from friends, family or other sources of support; abusive behaviour that undermines the ability of the non-abusing parent or carer to look after the child by, for example, restricting their access to transport, thereby limiting their ability to get a child to doctor’s appointments, or restricting their access to money, thereby limiting their ability to provide essentials for a child; or the harm that is caused when a child is aware that the abuse is taking place, even though they never see or hear it and are never present when the abusive behaviour takes place.

The stage 1 report noted those concerns and asked the Scottish Government to respond to evidence that the reference in the current approach to the aggravation being established where a child

“sees or hears, or is present during”

an incident of abusive behaviour was too narrow. It was argued in that evidence that children in the care of victims of abuse were likely to suffer trauma as a result of that abuse, whether or not they directly witnessed abusive behaviour or incidents, and therefore that there was an aggravation. Amendments 4 to 9 respond to those concerns by widening the scope of the aggravation.

Amendment 5 provides that, in addition to the existing ways in which the offence can be aggravated, it is also aggravated

“if a reasonable person would consider the course of behaviour, or an incident ... that forms part of the course of behaviour, to be likely to adversely affect a child usually residing with”

the victim or the perpetrator.

Amendment 9 adds to that by providing that references to a child being adversely affected include

“causing the child to suffer fear, alarm or distress.”

That is a non-exhaustive definition, so other ways in which a child was adversely affected could be taken into account if the court was satisfied by the evidence in a particular case. For example, if a perpetrator controls a victim’s movements to such an extent that they are unable to leave the house to ensure that their children get to school or a doctor’s appointment, the court could determine that that amounts to behaviour that is likely to adversely affect a child.

As with other aggravations, evidence from a single source is sufficient for the aggravation to be proven. That is provided for in section 4 already. The aggravation uses a reasonable person test, so there is no requirement for the prosecution to prove that the child was actually adversely affected provided that the court is satisfied that a reasonable person would consider it likely that the child would be adversely affected by the perpetrator’s actions.

The aggravation is limited to children who usually reside with the victim or the perpetrator. That reflects the feedback that living in an environment in which domestic abuse is perpetrated is what can most adversely affect a child.

Amendment 4 paves the way for amendment 5. The two current limbs of the aggravation will accordingly be split between the present subsection (2) and a new subsection (2A), which sits alongside new subsection (2B) in amendment 5.

Amendments 6 to 8 are technical and just for the avoidance of doubt in relation to the operation of the aggravation as a whole.

Amendment 6 provides that it is not necessary to prove that a child had awareness of, understood the nature of, or was adversely affected by the accused’s behaviour for the aggravation to be proven.

Amendment 7 ensures that the three limbs of the aggravation are capable of being applied separately but can also be used in combination with one another when more than one applies in a particular case.

Amendment 8 ensures that nothing in the formulation of the aggravation prevents evidence from being led on certain impacts on a child, even though such impacts are not essential to prove the aggravation.

I move amendment 4.


Liam McArthur

I warmly welcome these amendments. As the cabinet secretary has rightly said, they address concerns that we heard from a number of witnesses at stage 1 about the aggravation being limited to children who have heard or seen abuse taking place and not covering the full range of the effects of abusive behaviour on a household and the children in it.

My question is about amendment 6, and it is on an issue that the cabinet secretary touched on in his comments. The amendment allows for an aggravation in circumstances where there is no evidence of a child being adversely affected by a perpetrator’s behaviour. I understand the reason for the provision—you have mentioned the reasonableness test—but I wonder whether there needs to be a reference to recklessness on the part of the perpetrator. We need to be clear that, even with the best of intentions, we are not setting the parameters of any offence too broadly, but I might well be missing some aspect of how amendment 6 should be read or how it interrelates with other provisions in the bill. I would therefore welcome any comments that the cabinet secretary might wish to make, particularly with regard to the recklessness of a perpetrator’s behaviour.


Liam Kerr

I echo everything that Liam McArthur has said. I am going to argue against myself here, cabinet secretary, so bear with me, but when I looked at the issue, I was slightly concerned about the reference in amendment 6 to a child not necessarily ever having

“any ... awareness of A’s behaviour”

and our putting in place an aggravation that involves some hypothetical child who can know nothing and yet aggravate the offence.

I said that I was going to argue against myself, because I also noted the reference in amendment 5 to a child’s

“usually residing with A or B”

and wondered whether that was unnecessarily restrictive with regard to the offence. I presume that you will counterargue that the residence criterion in amendment 5 makes the awareness reference in amendment 6 acceptable.


Michael Matheson

That is correct.


Liam Kerr

I was simply throwing that into the discussion.


Michael Matheson

So—


The Convener

Cabinet secretary, I just want to ensure that all the comments have been heard before we finish this debate.

I have to say that I had concerns similar to those expressed by Liam McArthur about amendment 6, but the one thing that I seek reassurance on is compliance with the European convention on human rights. I understand that the amendment’s purpose is to catch those children who, although they have no awareness or understanding of the abuse or are not affected by it, might still be at risk.


Michael Matheson

I am grateful for members’ comments. On the points that Liam McArthur made, we have set amendment 6 out in that way because it deals with the aggravation rather than the offence. The offence covers issues such as recklessness, but the aggravation relates to the impact on a child who might be affected by the behaviour.

Liam Kerr actually answered his own question. The two references that he highlighted are interrelated, because the child would normally be resident with the perpetrator or the complainer in such cases. With regard to the reasonable person test, one could imagine a baby or a one or two-year-old child having no understanding of the impact of the abusive relationship on their parent, who for some good reason might be unable to take them to the doctor for an appointment and so on. That is where the reasonable person test kicks in, because the court is then able to say, “Well, a reasonable person would assume that that would have an adverse impact on the child.” That is why in amendment 6 we have ensured that the reasonable person test is applied when the court considers such matters.

Amendment 4 agreed to.

10:45  

Amendments 5 to 9 moved—[Michael Matheson]—and agreed to.

Section 4, as amended, agreed to.

Sections 5 to 10 agreed to.

Section 11—The 1995 Act etc


The Convener

The next group is on restriction on bail in solemn cases. Amendment 10, in the name of the cabinet secretary, is grouped with amendment 11.


Michael Matheson

Amendments 10 and 11 are important additions to the protections that the bill offers victims of domestic abuse. They are consistent with the approach that is taken elsewhere in the bill, where we have extended to victims of domestic abuse and related offences protections that our legal system already offers victims of sexual offences.

Under section 23D of the Criminal Procedure (Scotland) Act 1995, bail is to be granted only in “exceptional circumstances” in solemn proceedings in which an individual is accused of violent or sexual offences and when that individual has been convicted on indictment of sexual or violent offences. We want the availability of bail for repeat offenders who are accused of domestic abuse to be limited in a similar fashion and the link between domestic abuse offences and sexual or violent offences, which we have made elsewhere in the bill, to be made here, too.

Amendment 11, which is the main amendment in the group, constructs a group of offences including violent, sexual and domestic abuse offences. Its effect is that, when an individual is accused in solemn proceedings of any violent, sexual or domestic abuse offences and has past convictions for any such offences, bail will be granted only in exceptional circumstances. In this case, domestic abuse offences include both the new offence of domestic abuse in the bill and any offence charged to which the domestic abuse aggravation in the Abusive Behaviour and Sexual Harm (Scotland) Act 2016 has been attached. When an individual is accused in solemn proceedings of an offence of any of those kinds and has been convicted on indictment of an offence of any of those kinds, which includes previous convictions for equivalent offences in other parts of the UK and the rest of the EU, bail is to be granted by the court only if there are exceptional circumstances to justify it.

Amendment 10 adds a reference to those changes to the list of procedural changes that we are making in the bill.

I move amendment 10.


Liam Kerr

I throw up the possibility that we are tying the hands of the court in circumstances in which there is little evidence of guilt. I am simply wondering aloud whether there is a human rights angle to this or whether it would fall foul of human rights legislation.


Michael Matheson

That is why we have given the court the scope to determine, on the basis of what has been presented, whether there are any exceptional circumstances.

As for whether there are any human rights aspects to this, the member might be aware that the jurisprudence of the European Court of Human Rights makes very clear the need for the courts to have the final say in bail matters and that they must have discretion in making such decisions. Amendment 11 ensures that that will continue to be the case, and we are therefore confident that, with the exceptional circumstances provision, it complies with the jurisprudence of the European Court of Human Rights.

Amendment 10 agreed to.

Section 11, as amended, agreed to.

Schedule—Modification of enactments

Amendment 11 moved—[Michael Matheson]—and agreed to.


The Convener

Amendment 14, in the name of Mairi Gougeon, is grouped with amendments 15 to 25. I point out that amendments 18 to 20 are pre-empted by amendment 31 in the group, which is on mandatory non-harassment orders, and that, if amendment 24 is agreed to, I cannot call amendment 23 in the group.


Mairi Gougeon (Angus North and Mearns) (SNP)

Amendments 14 to 16, 19, 21 and 24 are key amendments that will improve and strengthen the bill by increasing the protections that are afforded to children who are affected by domestic abuse. I am pleased to have lodged those amendments, which relate to issues that I and other members of the committee raised during our stage 1 scrutiny. I thank Assist, Children 1st, Barnado’s, the NSPCC and other stakeholders for raising those issues with the committee and the Scottish Government and for their briefings and the support that they have given to the amendments.

Amendment 16 is the main amendment in the group. It provides that certain children can benefit from the protections of a non-harassment order in a way that they cannot under the current legislation. At the moment, an NHO is available as a disposal to a criminal court following a conviction. The court can impose such an order for offences involving misconduct towards another person—namely, the victim. An NHO can therefore be made only in respect of the victim of an offence.

Although, as we have heard throughout our scrutiny of the bill, children are the victims of domestic abuse, the bill as it is currently drafted does not recognise that in relation to the granting of NHOs. Under criminal law, and as NHOs currently operate, children are generally not classed as victims of domestic abuse offending for the purposes of considering the imposition of an NHO.

Amendment 16 and the associated amendments would change that. The benefit of those amendments will be that children who reside with the perpetrator of the domestic abuse and children who reside with the partner or ex-partner who has been abused will be able to receive the protection of an NHO. Any child who is the subject of the child aggravation in section 4 of the bill will also be eligible for the protection of an NHO—that does not depend on where the child lives—in addition to the court having to consider whether to make an NHO in respect of the partner or ex-partner. It will, of course, be for the court to consider and decide in any given case whether to impose an NHO, but amendment 16 will, for the first time, empower our criminal courts to impose an NHO for a child who has been harmed by domestic abuse offending.

Amendment 19 is consequential on amendment 16 and provides for a requirement that the court explain why it has or has not imposed an NHO in respect of a child in any given case.

Amendment 15 is a restating of some material that is already provided for in the bill, but with the addition of the necessary definition of a child. That makes the provisions as a whole unfold better in the light of amendment 19.

Amendments 14 and 24 are consequential on amendment 15, and amendment 21 is a technical amendment that removes a word that is no longer useful.

I know that Liam McArthur’s amendments are similar to mine, but I think that my amendments really strengthen the bill and are more powerful in the sense that they provide for the protections of NHOs to be available to a wider range of children. In particular, NHOs will be available to children who usually reside with the perpetrator of the abuse or the victim of the abuse, which I do not think is the case with Liam McArthur’s amendments.

I encourage the committee to support my amendments in order to achieve our common policy goal of better protection for children who are affected by domestic abuse.

I move amendment 14.


Liam McArthur

I thank Mairi Gougeon for her comments on her amendments. She and I were left commiserating together last week after we lost out in the community MSP category of the politician of the year awards. I am delighted, however, that we have shown great fortitude, picked ourselves up, dusted ourselves off and joined forces to improve the protection that the bill affords to children who are affected by domestic abuse. I also pay tribute to the organisations to which Mairi Gougeon referred.

Amendments 17, 18, 20, 22 and 23 seek to ensure that, where an offence of domestic abuse is found to have been aggravated by the presence of a child or children, that must be specifically taken into account by the court in its consideration of imposing an NHO. That is in keeping with the evidence that we heard throughout stage 1, and it seems the only reasonable response for the committee to make in such circumstances.

Amendment 25, like the amendments that have been lodged by Mairi Gougeon, provides an alternative means of achieving the same outcome, through giving ministers an order-making power. Ultimately, I am entirely relaxed about how the committee chooses to address the gap in the bill, but I look forward to our doing that as well as to the comments from the cabinet secretary and from colleagues about the amendments in the group.


Michael Matheson

Amendments 14 to 16, 19, 21 and 24, in the name of Mairi Gougeon, are important amendments that will improve the protections that the bill affords to children who are affected by domestic abuse. As has been indicated, the amendments will provide that children can benefit from the protections of a non-harassment order in a way that they cannot under the present legislation. We know that children are too often the victims of domestic abuse. Although the bill is largely focused on domestic abuse between partners and ex-partners, stakeholders have indicated that the fact that the non-harassment order provisions in the bill do not extend to children is unfortunate.

The benefit of the amendments will be that children who reside with the perpetrator of the domestic abuse or with the partner or ex-partner who has been abused will be able to receive the protection of a non-harassment order. It will also be possible to give any child who is the subject of the child aggravation in section 4 the protection of a non-harassment order. That particular aspect will not depend on where the child lives and will be in addition to the court having to consider whether to make a non-harassment order in respect of the partner or ex-partner.

Without the amendments, it would be necessary for applications to be made through the civil court if non-harassment orders were to be considered for the children who are covered by the amendments. The amendments will, therefore, reduce the trauma and inconvenience for families who are affected by domestic abuse and will allow a criminal court to consider whether protections are needed for children who are affected by domestic abuse.

The Scottish Government is pleased that the amendments have been lodged and asks the committee to vote them into the bill.

I have considerable sympathy for what Liam McArthur is seeking to achieve with many of his amendments, but I will explain why I think that the amendments in the name of Mairi Gougeon are preferable.

As I have indicated, Mairi Gougeon’s amendments will mean that non-harassment orders will be available more widely to children who reside with the perpetrator of the domestic abuse, children who reside with the partner or ex-partner who has been abused and children who were involved in the committal of the abuse by being subject to the child aggravation in section 4. However, Liam McArthur’s amendments cover only those children who are subject to the aggravation in section 4 and, in our view, do not go far enough.

Amendment 25 seeks to provide an order-making power for the Scottish ministers to make further provision relating to non-harassment orders. It is limited to circumstances affecting cases in which the statutory child aggravation in section 4 has been proven, and it provides that regulations may provide for circumstances in which the court must consider making a non-harassment order to protect a child.

Although we understand the intent behind amendment 25, it seeks to provide the Scottish ministers with a wide power to, in effect, legislate by regulation so as to require certain sentencing decisions to be imposed by the court in a given case. The Scottish Government supports judicial discretion, as judges hear all the facts and circumstances of a case before a decision is made on sentencing. Therefore, as a matter of general policy, the Scottish Government does not support seeking to remove judicial discretion in the manner that is suggested by that enabling power.

In addition, we consider that, if the Scottish Parliament were to legislate to remove judicial discretion to determine sentencing decisions on the basis of the facts and circumstances of a given case, that should be done in the bill rather than through secondary legislation. We consider that such a step should not be taken lightly and should be given full parliamentary consideration.

On that basis, we ask Liam McArthur not to move amendments 17, 18, 20, 22, 23 and 25, and we ask the committee to support amendments 14 to 16, 19, 21 and 24, in Mairi Gougeon’s name.

11:00  


Mairi Gougeon

I have no further comments. I simply press amendment 14.

Amendment 14 agreed to.

Amendments 15 and 16 moved—[Mairi Gougeon]—and agreed to.


The Convener

Amendment 29, in the name of Linda Fabiani, is grouped with amendments 30 to 36. If amendment 31 is agreed to, I will not be able to call amendments 18 to 20, which were debated in the group on non-harassment orders as to children, because they will have been pre-empted.


Linda Fabiani (East Kilbride) (SNP)

I come to amendment 29 and its consequential amendments with a background of many years dealing with victims of domestic abuse who felt that they had been let down by courts that did not grant non-harassment orders. I understand that position, which has been backed up by answers to my written parliamentary questions over the years; it certainly seems that the courts have issued fewer non-harassment orders than they should have. That situation often results in fear and dread for the victim, so people sometimes have to go down the civil action route. I understand that the committee has heard some evidence on that.

Amendment 29 is quite straightforward. It seeks to delete the words “consider whether to”, so that the bill would read:

“The court must—

(a) without an application by the prosecutor, make a non-harassment order in the person’s case”.

In other words, making a non-harassment order would be mandatory. It seems to me that it is a fundamental principle that the onus should be placed not on the victim to justify the need for a non-harassment order, but on the convicted perpetrator to justify why such an order should not apply.

Amendment 30 is more or less consequential on amendment 29. It would delete, after

“give reasons for the decision reached”,

the words

“including by explaining why there is a need or no need for the victim to be protected by such an order”.

It would also insert a requirement to look at

“the terms of the order”

and

“the period for which the order is to run”.

The other amendments in my name are more or less directly consequential on those that I have just described, and would make section 8 operable.

I asked a parliamentary question of the cabinet secretary last week, and I recognise that he is very keen to consider ways in which the bill could be strengthened. The committee has heard evidence from people who support the bill, including Scottish Women’s Aid, the Police Scotland violence reduction unit and Victim Support Scotland. Most compelling of all has been the evidence and testimony from people who have been directly affected, physically in some cases and mentally in others, by a non-harassment order not being granted by the court. I will quote someone whom I know rather well. She has said:

“A criminal conviction for my husband was of absolutely no use to me as a victim since that conviction on its own contained no provision to protect me, keep him away from my home and family and protect me from further abuse, with legal consequences should he choose to ignore the court’s order.”

That is a great problem in the system. I find the case for mandatory non-harassment orders to be compelling.


Liam Kerr

It seems to me that decisions on NHOs should always rest with the court, rather than NHOs being mandatory, irrespective of the circumstances or the strength of the allegations. I am concerned that their being mandatory would have consequences in terms of the ECHR, as we discussed earlier.


Liam McArthur

I am conscious that having just spoken to an amendment that would remove judicial discretion, I am now about to raise concerns about amendments that would have a largely similar effect.

Linda Fabiani set out very well the frustration that is felt and the impact of failure to put in place non-harassment orders. Whether that can be addressed through the Lord Advocate’s guidance or another mechanism is something that we might want to consider further in the context of the bill. However, I am concerned about the mandatory nature of the provision that amendment 29 and consequent amendments would introduce.


John Finnie

Linda Fabiani laid out very clearly some consequences of the present system. I know that the introduction of mandatory NHOs enjoys the support of Scottish Women’s Aid, and I certainly support it.


The Convener

There is an issue. I understand why Linda Fabiani is seeking to introduce mandatory non-harassment orders—there has been a problem about non-harassment orders not being granted when they should have been granted. However, I feel that the bill has addressed that by ensuring that a non-harassment order must be considered—consideration will be mandatory—and if an order is refused, there must be a reason for that. I hope that that will go a considerable way to addressing what is a very real problem, without necessarily breaching the ECHR or raising concerns under it.

I invite the cabinet secretary to wind up.


Michael Matheson

I am aware that Linda Fabiani has a long-standing interest in protection for victims of domestic abuse, which she has raised with me over an extended period of time. No one doubts her determination to try to improve how the system of non-harassment orders operates. However, I consider that the amendments that she has lodged go too far in seeking to remove discretion from our courts to consider what might be best in terms of an appropriate disposal when dealing with domestic abuse offenders.

Members will be aware that the bill includes non-harassment orders provisions that were warmly welcomed by stakeholders and others. The provisions will have the effect of requiring the court in every domestic abuse case to “consider whether to” impose an NHO, and “to give reasons for” why an NHO has or has not been imposed,

“including by explaining why there is a need or is no need for the victim to be protected by such an order.”

The provisions will therefore ensure that, in every domestic abuse case, the court has to consider the need for protection for the victim as it considers whether to impose an NHO. In addition, the new sentencing provision in the bill means that, “When sentencing” in domestic abuse cases,

“the court must have particular regard”

for the safety of the victim. Taken together, those changes will enhance the operation of the system of NHOs so that more victims can be protected.

Although I am certain that Linda Fabiani’s amendments are based on the best intentions, it is important to highlight their potential effect. They would remove all discretion from the court so that whenever a person was convicted of domestic abuse, an NHO would have to be imposed. There would be no exceptions: it would be a blanket requirement, as a matter of law.

Although it is certainly true that non-harassment orders have a key role to play in protecting victims of domestic abuse, it is also true that they might not be appropriate in all cases. For example, in a situation where the parties wish to reconcile following a prosecution, a non-harassment order might not be appropriate. There will be other cases where there is no reconciliation, but the victim might indicate that they do not feel that a non-harassment order is necessary and that they would prefer to have on-going contact with the accused, perhaps in relation to issues around children. The Crown Office prosecutes a wide range of domestic abuse cases, and non-harassment orders would not necessarily be appropriate or necessary in every case.


Fulton MacGregor (Coatbridge and Chryston) (SNP)

In deciding on Linda Fabiani’s amendments, I wonder what, in practical terms, will happen when the new legislation is implemented. Will more non-harassment orders be issued as a result of the legislation than are currently issued, and will there, perhaps, be a change in the culture of how the courts look at the orders?


Michael Matheson

I believe that that will be the case, because of the requirement at the time of sentencing for the court to consider an NHO and to state in open court the reasons for issuing or not issuing a non-harassment order. That will make sure that, at the time of sentencing, the safety of the victim is at the centre of the court’s mind and is the focus when making the decision. The provision will help to change the culture.

Although non-harassment orders might well be appropriate in cases that involve a sustained course of conduct and repeated abusive behaviour, or when re-offending is likely, they might not be appropriate in cases that involve isolated incidents of conflict that are provoked by situational factors. In any event, it should be for the court to make that decision, rather than to have simply to apply the law in a blanket fashion.

There are potential human rights concerns about the amendments because they would require the court to impose a non-harassment order—we must remember that a non-harassment order can restrict someone’s freedom—with no discretion whatsoever to assess whether it is necessary in the given case. Although I sympathise with Linda Fabiani and others in their determination to enhance protection for victims, our courts are there to use their judgment in making decisions of that sort day in and day out, and we should trust them to do so while taking into account the specific facts and circumstances of each case, which is what the bill provides for.

The steps that we have taken to make it mandatory for a non-harassment order to be considered in every case and for reasons to have always to be given in open court are significant; they provide a very clear message to the court of the importance of utilising non-harassment orders in appropriate cases.

Although the amendments are well-intentioned, they would go too far by removing the ability of judges to assess each case that they deal with and to make decisions that are based on the facts and circumstances of the case.

I am also concerned that the amendments could bring the system of non-harassment orders into disrepute. If non-harassment orders are imposed in cases in which there is no justification for them, on the basis of consideration of the specific case, we run the risk of the credibility of non-harassment orders, as a disposal, being diminished in the eyes of the court and others. Given the important role that non-harassment orders play in protecting victims, that is not desirable.

I have made clear my objections to the amendments in the group. However, I sympathise with Linda Fabiani and others who seek to take further steps to strengthen the system of non-harassment orders. I am happy to work with Linda Fabiani and others ahead of stage 3 to see whether there are ways in which the provisions in the bill can be improved, while leaving appropriate discretion with the court.

On that basis, I invite Linda Fabiani to seek to withdraw amendment 29 and not to move amendments 30 to 36.


Linda Fabiani

I listened to what my colleagues on the committee said and I understand their concerns. I also listened very carefully to what the cabinet secretary said. I understand his concerns, too.

Clearly, the present system does not work for victims. Although the bill is taking some excellent steps forward, I am not convinced that it goes far enough. However, in the light of everything that has been said today, I seek to withdraw amendment 29, with a view to looking at how we might strengthen the bill at stage 3. I welcome the opportunity to talk that through and I wonder whether, in considering the matter further, the cabinet secretary and his team could consider the idea of there being a presumption that a non-harassment order would be granted.

11:15  

Amendment 29, by agreement, withdrawn.

Amendments 17, 30, 31 and 18 not moved.

Amendment 19 moved—[Mairi Gougeon]—and agreed to.

Amendment 20 not moved.

Amendment 21 moved—[Mairi Gougeon]—and agreed to.

Amendments 32, 22 and 33 to 36 not moved.

Amendment 24 moved—[Mairi Gougeon]—and agreed to.

Amendment 25 not moved.

Schedule, as amended, agreed to.

Section 12—Ancillary provision


The Convener

Amendment 37, in the name of Claire Baker, is grouped with amendments 27 and 28.


Claire Baker (Mid Scotland and Fife) (Lab)

There are three reasons for my lodging these amendments. First, there is frustration at the slow progress in the development of specialist domestic abuse courts. The one in Glasgow was established in 2004. That pilot resulted in a positive evaluation, and it was followed by the one in Edinburgh in 2012. We have four courts that cluster—Dunfermline, Ayr, Livingston and Falkirk—and although other courts operate a fast-track system there are large areas of the country that are not served by any kind of specialist court in domestic abuse cases. That is the case in Aberdeen and Dundee, and I know that members from across the Highlands and the Borders have raised the issue with the cabinet secretary in the chamber. In those areas a postcode lottery is operating in terms of victims’ access to justice. Cases of that type need the appropriate expertise and sensitivity to deal with them, and there is evidence to show that specialist courts can deliver that.

Secondly, there are concerns about consistency in decision making and about confidence in decisions that are made. Members might be aware of a couple of recent cases involving multiple convictions for individuals for crimes committed against different partners that resulted in community sentences being given.

I have been contacted by the victims in those cases, who were very distressed by the sentences. Those sentences were not given out in domestic abuse court cases. I do not claim that the sheriffs’ decisions would have been different if those victims’ cases had been heard in a specialist domestic abuse court, but I think that the victims would have had more confidence in how the decisions were made.

In addition, there was a case last year in which the sheriff decided to send the alleged victim, who was a mother, to jail for two weeks under contempt of court because, according to the sheriff, she did not fully participate in the court proceedings. I felt at the time that if that case had been heard in a specialist domestic abuse court, that situation would not have happened. There is therefore an issue about consistency in decision making and the confidence of victims.

Thirdly, I am very supportive of the bill’s introduction of the new offence and its inclusion of coercive and controlling behaviour and psychological abuse. I am aware that the stage 1 report indicated that a minority of the evidence that was given to the committee was from experts who expressed concerns about possible challenges to the legislation in the courts and the discussion that there will be around the introduction of the offence of coercive behaviour. I would rather see the bill’s provisions tested in a specialist court than in an ordinary court, because the specialist court would have better understanding of and expertise on what the Parliament seeks to achieve through the bill.

Amendments 37, 27 and 28 seek to ensure that the bill is given full effect. Currently, it is the sheriff principal who can decide whether to create a specialist court, but amendment 27 would give Scottish ministers the power to designate domestic abuse courts. I recognise and respect the independence of the judiciary in this area, but there is frustration at the lack of progress on establishing specialist courts. Amendment 37 would give the Government the power to use regulations to advance specialist courts. Amendment 28 seeks a review of the operation of the legislation, once the bill is passed, to compare how decisions are made in regular courts with how they are made in specialist courts.

Amendments 37, 27 and 28 therefore seek to push progress on specialist courts, recognise their advantages, ensure the best implementation of the new legislation and provide equal access to specialist courts for women and all victims across Scotland.

I move amendment 37.


John Finnie

I fully support Claire Baker’s amendments. She is right that Rhoda Grant and I have consistently raised concerns about the issues that her amendments address. The only word in amendments 37 and 27 that might throw people is “specialist”. However, if judicial training covered domestic abuse more or if individuals in the judiciary frequently dealt with domestic abuse cases, some of the very insensitive disposals that have been referred to would not have been made. It is not about new buildings; it is about case management, clustering cases and collaborative working between the public sector and the third sector. It is important that we spread the service throughout Scotland and that there is no lesser quality of service for some victims of domestic abuse on the basis of geography.


Fulton MacGregor

I have a lot of sympathy for Claire Baker’s input, but I cannot envisage a situation where Scottish ministers would be better placed to make a decision on specialist courts than the Lord President. In any case, I believe that all courts should be specialist domestic abuse courts and I think that what John Finnie just said backs up that view. To return to what I said in my intervention on the cabinet secretary, I hope that the bill will lead to a culture change so that every court is a specialist court.


George Adam (Paisley) (SNP)

Following on from what Fulton MacGregor said, I take on board everything that Claire Baker and John Finnie raised with regard to the issue. I want to ask a question that I hope that both the cabinet secretary and Claire Baker, in her summing up, can answer. Under the Judiciary and Courts (Scotland) Act 2008, the Lord President is the head of the Scottish judiciary. Are we changing that? Are we jumping ahead and putting a provision in the bill that allows the legislation to make decisions, as opposed to having the courts make decisions as directed by the Lord President? Has Claire Baker spoken to the Lord President about her amendments?


Rona Mackay (Strathkelvin and Bearsden) (SNP)

I totally agree with Claire Baker about the slow movement on the creation of domestic abuse courts across the country. That is a concern. I also agree with John Finnie about the need for more specialist training in this area. However, the amendments would compromise the independence of the judiciary, and it is not for ministers to have power over the courts and the Lord President in that way.


Mary Fee (West Scotland) (Lab)

I fully support the amendments that have been lodged by Claire Baker. I cast my mind back to some of the quite disturbing and distressing evidence that we heard when considering the bill at stage 1. We heard from victims who had requested special measures and arrived in court to find that the special measures were not in place and that the support that they had been assured they would be given was not there. Quite often, appearing in court left the victims feeling further traumatised because they did not get the support that had been promised to them. An aim of the bill is to support people and prosecute domestic abuse correctly. Going down the road of specialist courts would send out a signal to victims of domestic abuse and to witnesses who are coming forward that everything that they want will be automatically provided for them when they arrive in court, and it will remove what can often be a barrier or an obstacle that they have in their minds about appearing in court.


Liam Kerr

The approach of a specialist court is definitely interesting and worth exploring. It certainly moves us towards a system that we would all like to get to. However, I am not convinced that the amendments, as drafted, work on a practical level, nor that such an approach would work practically in more rural areas. Neither am I convinced that they reflect the realities of the resources available at sheriff court level. My significant concern is that the amendments could end up inhibiting justice by creating too rigid or inflexible a structure.


Ben Macpherson (Edinburgh Northern and Leith) (SNP)

I commend Claire Baker for lodging amendments on the important issue of specialist domestic abuse courts. I share the concerns of my colleagues George Adam, Fulton MacGregor and Rona Mackay about the independence of the judiciary. I would also like to add that, if Claire Baker’s amendments fall today, perhaps we as a committee should make a commitment to write to the Lord President expressing the views that were given today and proposing the implementation of more domestic abuse courts, where reasonable and prudent within financial constraints.


Liam McArthur

I also thank Claire Baker for lodging the amendments and allowing the discussion to take place. The frustration that she expresses about the progress that has been made is shared by all of us. From a personal perspective, I am looking at this in relation to not just the Highlands but the Islands as well, and I am thinking how effect could be given to such a provision. In Orkney, we are in the fortunate position of having a procurator fiscal and a sheriff who understand domestic abuse. Others have highlighted the need for training in this area not to be a specialism but to be central to the training that is provided across the board.

Ultimately the issue is about timely local access to justice. I am concerned that it would not necessarily be straightforward to make what we would put in place work in the parts of the country that I represent. That is a concern, because it the issue is about providing the timely and appropriate support and access to justice that Mary Fee, in particular, stressed in her remarks.

11:30  


Michael Matheson

Amendments 27 and 37 seek to provide the Scottish ministers with a power to require a sheriff principal to designate one or more courts in their sheriffdom as a specialist domestic abuse court. Amendment 27 is framed so that that order-making power can be used only when the Lord President has consented to the order being made. Despite that, I have concerns about the amendments, which I will explain.

The Judiciary and Courts (Scotland) Act 2008, which was passed unanimously by the Parliament, provides that it is the responsibility of the Lord President, as the head of the independent judiciary and sheriffs principal, to ensure the efficient disposal of business through Scotland’s courts, including sheriff courts. In addition, the 2008 act provides that the First Minister, the Lord Advocate, the Scottish ministers and members of the Scottish Parliament must uphold the continued independence of the judiciary. I am clear that the amendments have implications for the statutory responsibilities of the independence of the judiciary and the Lord President being responsible for the management of the courts.

Alongside those important constitutional principles, there is a good practical reason why the 2008 act operates in that way: the independent judiciary know better than anyone how cases can and should be managed through the courts.

When the Lord President, in consultation with the relevant sheriff principal, considers that it is appropriate to establish a specialism in domestic abuse cases in a particular sheriffdom, they are able to do so. For example, as we have heard, a specialism in domestic abuse cases operates in Glasgow and such cases are heard together. That happens in Edinburgh, too. The Lord President can do that without a requirement for the involvement or approval of the Scottish ministers or the Scottish Parliament, which is in line with the principles of the 2008 act that I have outlined.

It is difficult to envisage a situation in which the Scottish ministers or the Scottish Parliament would be better placed than the Lord President and the sheriff principal to assess whether such a specialist sheriff was required in a particular area. Therefore, it is not clear that that power would ever be used by the Scottish ministers.

Notwithstanding those issues, I am clear that specialist domestic abuse courts are one way in which the justice system’s response to domestic abuse has improved and can continue to improve in the future. When the volume of cases means that it is not practical to have a dedicated court, the Scottish Courts and Tribunals Service provides specific ring-fenced slots in the court programme to deal with domestic abuse cases. That approach is taken in places such as Falkirk, Dunfermline, Livingston and Ayr.

Delays in dealing with domestic abuse cases were an issue around four years ago, but that is no longer the case. In the past three years, the Scottish Government has provided additional funding of £2.4 million per year to the Scottish Courts and Tribunals Service and the Crown Office and Procurator Fiscal Service to support their work to reduce waiting times for domestic abuse cases in all courts around Scotland. As a consequence, cases involving domestic abuse around Scotland now have trial diets set within the optimum timescale of eight to 10 weeks.

There is a clear expectation that court staff and the judiciary in all courts are able to deal appropriately and sensitively with cases involving domestic abuse. The Scottish Courts and Tribunals Service recently engaged with Victim Support Scotland to design and run victim awareness training events for staff. The training was provided to all front-line staff in the sheriff courts and High Courts who come into contact with victims and witnesses during their attendance at court, and 264 members of the courts and tribunals service received training over 30 sessions during 2015 and 2016. Judicial training is a responsibility of the Lord President and training on domestic abuse for members of the judiciary is provided by the Judicial Institute for Scotland.

In addition to training, provisions in the Victims and Witnesses (Scotland) Act 2014 ensure that automatic access to special measures such as screens and videolinks are available in all courts for vulnerable witnesses, including victims of domestic abuse.

I have concerns that involving the Scottish ministers in arrangements for the operation of the courts could set a precedent for all specialist courts, and that is not the intention of the Judiciary and Courts Act 2008.


John Finnie

Cabinet secretary, you will recall that, following the closure of certain sheriff courts, remote facilities were put in place. It was intended that one of the major beneficiaries of that provision would be victims of domestic violence, but that has not been the experience in the Highlands. What assessment has been made of that? You commented on judicial training, but you will know of examples such as the appeal court judgment last year—the appeal was upheld—which made it quite apparent that there was a dearth of training or understanding of the issue.


Michael Matheson

I cannot comment on a particular disposal that was made by a court, including the appeal court, for obvious reasons.

A training package on domestic abuse cases is provided by the Judicial Institute of Scotland and is available to all sentencers, as is a whole suite of training on a range of other offences, such as sexual and violent offences, and family law matters.

I know that there have been issues in the Highlands, which have been discussed directly with Sheriff Principal Pyle. He has made it clear that the way in which they try to operate there is by clustering cases together. When there are a number of cases relating to domestic abuse that they can bring together to be considered at the court in Inverness, they try to do that. The challenge is that, given the number of cases that they deal with, they would have difficulty in sustaining a specialist court. That is part of the challenge in meeting the needs of remote and rural areas, which was highlighted in Liam McArthur’s comments on island communities and how specialist courts could be sustained and maintained.

I understand that amendment 28 would require the Scottish ministers to publish a report on the operation of the new domestic abuse offence and of offences that are aggravated under section 1(1) of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016. The report would be required to be published at the end of the two-year period after the proposed legislation had received royal assent.

I agree that it is important that we monitor and evaluate the effect of changes that we make to legislation to ensure that those changes have the effect that we intended. That is true whether the legislation in question creates a new criminal offence or criminal offence aggravation or makes changes to criminal procedure or to the powers of police or prosecutors. However, much of the information that amendment 28 requires to be included in the report will be routinely published by the Scottish Government.

When a new offence or aggravation is created, existing publications, such as those concerning recorded crime and criminal proceedings, will collect information on the new offence or aggravation. That is already happening with the new intimate images offence and the domestic abuse aggravation in the Abusive Behaviour and Sexual Harm (Scotland) Act 2016, which came into force earlier this year, and it will happen for the proposed legislation, too. That means that figures for the number of cases that are brought under, and the number of people who are convicted of offences under, section 1 of the bill will be included in annual statistics on criminal proceedings, as will the figures for cases in which there is an aggravation relating to partner abuse under section 1 of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016.

Information about the length of time that it takes the courts to dispose of particular categories of cases is not routinely published. However, work is on-going to consider what additional data it might be useful to collect when the domestic abuse offence comes into force. It is important not to rush to lay in statute the specific details of what data must be recorded and published; it is better to consider that in the round in consultation with key interests. I would be happy to meet Claire Baker and others to discuss what might be possible ahead of stage 3, if that would be helpful.

Amendment 28 in its current form is not necessary. Such a reporting requirement would set us down the path of creating separate reports for different offences whenever a new offence is created, and that would risk increasing the burden on colleagues who collect criminal justice data while providing information that is already available in existing publications.

I know that the committee is keen to undertake post-legislative scrutiny of legislation that it has considered, and I expect and hope that the committee will revisit this important piece of legislation in the years to come should it be passed by the Parliament. Adding more bureaucracy, as the amendment would do, is unnecessary to enable Parliament and committees to undertake the essential part of their role in holding the Government and those who operate legislation to account.

Amendment 28 also raises similar issues to those that amendment 27 raises in that it requires the Scottish ministers to involve themselves directly in matters such as the programming of our courts, which are appropriately the responsibility of the Lord President and sheriffs principal. Although I understand why members might be interested in the issues surrounding the use of domestic abuse courts and the clustering of cases in non-domestic abuse courts, given the impact that that has on the independent role of the Lord President, his office should be fully consulted on the matter before any changes are agreed. For those reasons, I am happy to discuss the matter further before stage 3 in order to allow more detailed consideration of the issue and to ensure that the Lord President’s office has been given an opportunity to engage in the discussion and to consider the issues.

I invite the member to withdraw amendment 37 and not to move amendments 27 and 28.


Claire Baker

I thank all members, including the cabinet secretary, for their comments. The discussion about how we can make progress has been interesting, and I will try to cover some of the points that have been raised.

I agree that the cultural change has been slow. Members have made good points about judicial training and the gaps in training that have been identified. It is not possible to address that issue in the proposed legislation, which is why I have looked at domestic abuse courts.

I recognise the cabinet secretary’s reservations about amendment 27 but, as he pointed out, the amendment specifies that an order could be made only with the consent of the Lord President. Although I also recognise and welcome the fast-tracking that happens in certain cases, it is not unreasonable to expect a specialist sheriff to operate in all areas around Scotland. That is necessary, and I am disappointed that we have not reached that point, given that we had a pilot in 2004 that was positively received. I understand the points that the cabinet secretary makes, but I intend to press amendment 27.

I also hope that ministers will reflect on the need for the post-legislative scrutiny of a review. Although the cabinet secretary outlined his reservations about the amendment being too specific and said that the information is already published, it can sometimes be difficult to find that information. A report that gathers together relevant cases would be better.


The Convener

We have not yet reached amendment 27; it is amendment 37 that you are speaking to.


Claire Baker

I have indicated what I intend to do when I am called to move amendment 27. I just wanted to let members know at this stage that I am keen to press that amendment.

Amendment 37, by agreement, withdrawn.

Section 12 agreed.


The Convener

That concludes our consideration of amendments at stage 2 thus far. The committee will consider the remaining stage 2 amendments on 5 December. I thank the cabinet secretary and his officials for attending.

11:43 Meeting suspended.  11:51 On resuming—