Chamber and committees

Scottish Government submission of 23 August 2021

PE1887/A: Create an Unborn Victims of Violence Act

The Petitioner, Nicola Murray, has called on the Scottish Parliament to urge the Scottish Government to create an Unborn Victims of Violence Act, creating a specific offence that enables courts to hand down longer sentences for perpetrators of domestic violence which causes miscarriage.

Ms Murray provides, as background to her petition, that as the law currently stands if a perpetrator of domestic violence causes a miscarriage, still birth or forces a woman to terminate her pregnancy against her will, they cannot be adequately prosecuted, and this leads to lenient sentences being available in court. Ms Murray believes that the current law cannot adequately prosecute perpetrators who cause the loss of an unborn child through their violent actions or coercive control.

The Scottish Government recognises the gravity of offending behaviour which results in miscarriage. No woman should ever have to go through such an experience and if they do, perpetrators should be held to account.

It might be helpful if I set out some relevant laws which may apply where perpetrators cause the loss of an unborn child through their violent actions or coercive control.

The Domestic Abuse (Scotland) Act 2018 ("the Act") came into effect on 1 April 2019 creating a specific “course of conduct” offence for the first time, enabling physical, psychological and controlling behaviour to be prosecuted at once. Sections 1 and 2 of the Act make it a criminal offence for a person to engage in a course of behaviour which is abusive of their partner or ex-partner where the perpetrator either intends to cause their partner or ex-partner to suffer physical or psychological harm or else they are reckless as to whether their course of behaviour is likely to cause such harm. As such, it criminalises not only physical abuse but other forms of psychological abuse and coercive and controlling behaviour that were previously difficult to prosecute.

Section 2 of the Act in particular provides a non-exhaustive definition of what is considered "abusive behaviour" for the operation of the domestic abuse offence, and this includes behaviour that is violent, threatening or intimidating or that has as its purpose or relevant effect the frightening, humiliating, degrading or punishing of a partner or ex-partner. The Act therefore recognises the multi-faceted nature of domestic abuse, which is much more than physical abuse.

The maximum penalty for an offence under section 1 of the Act is imprisonment for a term of up to 14 years or a fine (or both).

Ultimately, it is for Police Scotland and the Crown Office and Procurator Fiscal Service (“COPFS”) to investigate and prosecute cases under the domestic abuse offence including decisions about what conduct may be included in a course of conduct. Police Scotland and COPFS are both operationally independent of the Scottish Government.

While decisions in relevant cases are for law enforcement agencies, it is understood that common law and other statutory offences may be used depending on the individual facts and circumstances of each case.

For example, the common law offence of assault may also apply in those instances the Petitioner describes, where violent actions of a perpetrator causes the victim to miscarry, or a perpetrator forces a woman to terminate her pregnancy against her will.

The maximum penalty for the common law offence of assault ranges up to life imprisonment and is limited only by the sentencing powers of the court in which the case is heard. Cases prosecuted on indictment in the Sheriff Court carry a maximum sentence of up to 5 years’ imprisonment and/or an unlimited fine. If a sheriff in a solemn case decides that the maximum sentence at the sheriff court level is not high enough, they can send (remit) the case to the High Court for sentence. Cases prosecuted in the High Court carry a maximum sentence of life imprisonment and/or an unlimited fine.

When deciding what action to take in the public interest, prosecutors carry out an independent legal analysis of the case to determine whether the facts and circumstances merit use of, for example, the domestic abuse offence or an alternative offence, such as assault. Prosecutors also give careful consideration to the level of court in which the case should be prosecuted, having regard to, amongst other factors, the nature and gravity of the alleged offence.

Sentencing in any given case is a matter for the independent court who hear all the facts and circumstances of a case.

As the Committee will be aware, the Scottish Government cannot comment on or intervene in individual sentencing decisions of the independent courts. This is to preserve the operational independence of the criminal justice system and keep it free from political interference. Sheriffs/Judges are best placed to decide on an appropriate sentence for each offender before them as they hear all the facts and circumstances of a case before making their sentencing decisions within the overall legal framework provided by Parliament.

However, as part of the checks and balances within our criminal justice system, the independent COPFS can appeal against a sentence if they consider it is unduly lenient. Crown Counsel (who are the most senior lawyers in Crown Office) will give careful consideration as to whether a sentence was unduly lenient or if the sentence imposed is within the range available to the judge in the exercise of their normal judicial discretion. This means there are protections in place to guard against sentences which, as a matter of law, are considered too lenient.

I hope this is helpful information in understanding how existing criminal laws are relevant in the circumstances of the issues raised in the Petition.