Justice Committee

Meeting date: Tuesday, October 31, 2017

Official Report 586KB pdf

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Domestic Abuse (Scotland) Bill: Stage 2

Item 3 is a stage 2 evidence-taking session on the Domestic Abuse (Scotland) Bill. I refer members to paper 6, which is a note by the clerk, and papers 7 and 8, which are SPICe papers.

I welcome our witnesses: Gillian Mawdsley, policy executive at the Law Society of Scotland—whom I particularly thank for standing in at the last moment for Grazia Robertson, who had to attend court; Detective Superintendent Gordon McCreadie, who is in public protection at Police Scotland; Dr Marsha Scott, chief executive of Scottish Women’s Aid; and Professor Mandy Burton, from the school of law at the University of Leicester. I thank the witnesses for providing written submissions, which were really helpful for the committee, as always.

We will move straight to questions, starting with John Finnie.

Good morning panel, and thank you for your submissions. I want to talk about the current powers, and my initial question is probably for Detective Superintendent McCreadie. I want to ask about investigation, prosecution and perhaps one other point. When police officers are investigating allegations of domestic abuse, in what circumstances might alleged abusers be detained in police custody until first appearance in court, and when might they be released on undertakings with conditions that exclude them from the victim’s home?

Currently, where there is a sufficiency of evidence after officers have conducted thorough inquiries, there are primarily two options available. The first is to charge somebody and keep them in custody. A risk assessment will be undertaken against quite strict criteria that are laid out in the joint protocol with the Crown Office and Procurator Fiscal Service and informed by the Lord Advocate’s guidelines, and where there is a sufficiency of risk they will be kept in custody. Currently, about four out of five persons with sufficiency of evidence are kept in custody to appear in court. Affording somebody an appearance in court allows the court to impose bail conditions, which leads to police enforcement of those bail conditions and affords a victim some protection and space to breathe.

The second option involves undertakings. Where the risk assessment is carried out and there is a belief that the risk to the victim is on the lower side of the scale, and certain criteria are met, we can release an accused person on an undertaking to appear in court approximately 14 days after charge, so there is some due diligence and speed associated with that. That affords us the opportunity to impose police bail conditions to inhibit or exclude a person from making contact. Police bail conditions have an impact that is equal to the court bail conditions—it is a criminal offence to breach them. Where there is sufficient evidence, we currently have powers to act.

You mentioned risk assessments. Are those generic risk assessments or are they specific to the circumstances in which the individual has come to the attention of the police?

There is a domestic abuse risk assessment; in Police Scotland that is known as the domestic abuse questions, or the DAQ. It is based on academic research and ties into many of our partner agencies’ risk assessment models. It informs us about the risk that the victim may face and takes account of circumstances in which we know that there may be an escalation. For example, we know that pregnancy or recent childbirth is a good indicator that a victim may be at increased risk and that if strangulation is used it shows a clear intent of harm towards the person. There are other academically informed questions that make up that domestic abuse risk assessment.

Do any other panel members want to comment on that?

I will add to what Detective Superintendent McCreadie has said. There are measures that can be taken when the police are involved and those are fairly robustly undertaken in Scotland. However, it is important to point out that the requirements for emergency barring orders under article 52 of the Istanbul convention, as well as some of the surrounding information in the document on emergency barring orders in situations of domestic violence, point out that EBOs should not be restricted to cases of high risk.

The confidence that we, as an organisation that works with victims every day, have in the DAQ is framed by the fact that it is only a risk assessment. It is based on academic evidence that has to do with predicting the murder of women, which is a horrific event but which makes up quite a small percentage of the harm that is done to women and children in the context of domestic abuse. It is a useful tool but not a panacea for preventing risk.

The key point that is made in the Istanbul convention is that EBOs should be seen as a tool to prevent harm as well as something that should be used in the context of a crime already having been committed. The hands of the police are somewhat tied by having to focus on whether a crime has been committed, whereas an EBO can be used in a wider context.

There will probably be more detailed questions on that aspect later.

My question is for DS McCreadie on bail and risk assessments. How successful are those risk assessments? Does it work out most of the time?

It is very difficult to say. We know that it can prevent escalation in some cases. Ultimately, given that it is a risk assessment, there is always an element of risk.

It is not an exact science.

No, it is not. We can mitigate risk and that is probably one of the most important things that we do with a victim of domestic abuse—we do victim safety planning and put in place a trigger that will help protect them and prevent them from coming to further harm. However, there is always a degree of risk.

I just want to get an idea of the scale of the success rate.

We carry out domestic abuse bail checks. When a perpetrator has been released from police custody, we will visit the victim within 24 hours, signpost them to appropriate services and ensure that some support mechanism is in place. Where possible, we will carry out a check of the premises to ensure that the perpetrator is not present. We know that 3 per cent of those visits convert to a crime being detected, so in 97 per cent of cases we can suggest that, in the first 24 hours, that bail condition is operating effectively.

I just want to ask the detective superintendent a question about police bail. We are looking at domestic abuse here. I take it that when there is police bail with conditions—conditions that are designed to protect the victim—the victim will be told what those bail conditions are?

Yes. It is explicitly clear that the victim must be informed about the bail conditions, primarily so that, if the perpetrator is seen outwith their premises, they know that that is in breach of bail; we hope that it affords the victim a sense of comfort and security and allows them to plan to get appropriate support or to take whichever steps they feel are necessary to move forward in their own particular circumstances.

Is that a general thing that the police would do when there are bail conditions to protect an individual, outwith domestic abuse but in other similar circumstances? I ask that because I have experience of a case where it was only when it went to court many months later and the fiscal told the victim that it became apparent that bail conditions had been in place.

The victim information and advice service is part of the Procurator Fiscal Service. Where a person appears at court, they are notified of bail conditions. The police are particularly crucial in cases of domestic abuse but, ideally, any person who is protected by bail conditions should know.

I think that I have probably allowed supplementaries that have pre-empted some of what you were going to ask, John, but do you want to carry on?

This is perhaps a question for Ms Mawdsley. In a situation in which the decision has been taken to prosecute someone, in what circumstances might they be remanded in custody after appearing—perhaps we are not talking about the first appearance in that case—or released on bail with conditions excluding them from the victim’s home? What are the factors surrounding that?

The first thing to say is that, obviously, the police will report a case to the procurator fiscal. With, for instance, the perpetrator in custody, the fiscal has to make an assessment of the information that has been supplied to ensure that there is a crime known to the law of Scotland plus sufficient evidence to proceed with a complaint or a petition, depending on whether it is solemn or summary.

At that stage, the case will call in court, be it petition or summary, in front of a sheriff and the Crown will, looking at the factors, decide whether to oppose bail. The question of bail will be a matter for the sheriff. That is the outline of the procedure with regard to the hearing.

You asked specifically what sort of factors would apply when bail is being considered. There are standard conditions of bail, which are that the person does not approach or interfere with witnesses, that they turn up at court on specific dates and so on—there are about five or six standard conditions that are imposed in every situation when someone is granted bail from a court case.

However, if someone is going to be granted bail in a domestic abuse case, I would normally expect to see additional or special conditions. Those special conditions will vary, but they will normally include the condition that they do not approach the victim; other conditions may well be that they do not enter a particular street or attend a particular locus. These conditions will be spelled out in full and, invariably, if bail is being granted, the sheriff will ensure that all the bail conditions have been spelled out and will also explain the additional or special conditions. I say that because the question of approach or contact can be misunderstood by people. Contact means contact by any means, including social media and texting. The person will not be granted bail unless they accept those specific conditions. That is with regard to when bail is being granted.

Clearly, if bail is being opposed, it may be opposed for a number of reasons—the person’s record, the number of times that he has failed to turn up at court, the seriousness of the offence, or the likelihood of reoffending. A number of factors will be put forward to support opposition to bail. From the perspective of the defence, for the perpetrator, points may be put forward as to why bail should be granted. Ultimately, it is for the sheriff or the judge to decide whether bail will be granted.

Obviously, if bail is refused, he will be remanded in custody pending trial and there are clearly time limits for summary trial petitions and solemn cases. If, however, he is granted bail and the Crown is opposed to that, it might well seek to lodge an appeal and he will be kept in custody until that appeal can be heard by the sheriff appeal court. Does that cover some of the information that you were looking for?

11:30  

It does indeed.

That was a comprehensive description of what it says on the tin, but women and children routinely tell us that there is a bit of a postcode lottery in Scotland when it comes to whether special bail conditions will be applied and the robustness of the response when they are breached.

As with EBOs, we do not think that any criminal justice intervention will fix an entire problem, but we are advocating for multiple tools in the toolkit.

A problem that we see regularly is the belief that there is a risk only when the victim and perpetrator are cohabiting. If people are not living in the same house or flat, it is often assumed that the risk is diminished and the courts are much less likely to be robust about either special bail conditions or breaches. However, as I am sure you all know, the highest risk of murder of women and children occurs when people are not living together or when the woman is seeking to leave the relationship.

It is very important that we have emergency mechanisms to protect women and children in their own homes. One of the conditions would be to look at where there are legal and police gaps at the moment, and EBOs might fill one of them.

The threshold for making bail conditions might require that there is a history of violence between the parties, whereas the idea is that you could have an emergency barring order even when there is not a history of violence. The threshold for bail conditions can be higher than for an emergency barring order.

I have a general question for everyone on the panel. Does the existence of children as a result of the relationship complicate any of the decision making that we have discussed?

You have all heard me talk quite a bit about the influence of keeping children safe on women’s decision making and the need to see children as victims of domestic abuse. We recommend that any barring order would need to cover the children and that the barring order would need to be seen as part of a suite of protection orders that would cover children’s domestic environment as well as when they are in school settings or other kinds of settings.

We know that some EBOs in Europe do not cover children—

But setting aside what we will come on to, under the existing arrangements does the fact that there are children alter judicial decisions or police decisions?

There is quite a bit of evidence that courts are reluctant to interfere in custody and visitation arrangements and so might be less likely to impose sanctions in which perpetrators no longer have access to their children. However, with a temporary order, the balance of rights in this situation should come down on the side of safety.

The police are very mindful of the safety of children, but when a child is not a direct victim of the crime, we know that there is a debate about access and we have to be mindful of that. We have heard some conflicting opinions in the past. However, where there is concern for the immediate safety of the child, the police will impose bail conditions that reflect that, if that course of action is available to them as a result of a sufficiency of evidence.

I echo the point about bail conditions. The additional bail conditions that can be imposed can specifically state the names of children. A general bail condition would also be that the person does not interfere with witnesses and, quite often in domestic abuse cases, it is the children who have witnessed the abuse and may be required to give evidence.

I have a supplementary question about emergency barring orders, including those covering children, which Dr Scott touched on. Are there examples of such orders in other countries? If so, how are they operating? I wonder whether Professor Burton has any information on that.

Austria is the European country that has had emergency barring orders for the longest time—it has had them since 1997. When the orders were introduced, they applied only to the adult victim and the place where she lived. However, more recently, they have been extended to places where the children go, such as childcare centres and kindergartens. That is a specific acknowledgement that it is not just where the adult victim lives and goes that needs to be covered; it is also where the children go and where the carers go to collect the children. There are models in Europe of orders covering both the adult victim and the child victims of abuse.

Thank you.

Mary Fee has a supplementary question.

I would like a brief clarification from DS McCreadie on the point that he made about the importance of protecting children. How do you determine the level of risk for a child who has not been directly subjected to some sort of violence? Do you carry out a risk assessment? How do you determine the level of risk that a child faces?

Police officers make a professional judgment. There is also a significant concern review. A report is submitted on the circumstances of every domestic abuse incident that the police attend, and that report is reviewed by professionals to assess the level of risk. If there is any immediate risk, the police will act at the time to mitigate that risk as best they can. Each incident that we attend is subject to subsequent scrutiny in which the wider circumstances of the case are considered.

If there is no immediate risk to the child, how long will it take to review the report and make a further determination?

I would expect that to be done the next day.

Thank you.

I want to pursue John Finnie’s line of questioning. I think that I know the answer to this question, but I will ask it anyway. Realistically, could the powers that are currently available to the police and the criminal courts be amended to plug some of the gaps that have been identified?

We look to England and Wales, as we often do, where domestic violence prevention notices are implemented by a superintendent or above and are followed by domestic violence prevention orders. Nevertheless, Police Scotland welcomes the discussion, as we have concerns about the specific legislation involved. Although a victim’s safety is critical, the legislation imposes a significant financial burden on the services in England and Wales—I am talking about a figure in the region of £1,000 per order. The timeframe in which a superintendent can authorise such action is also very short—it is 48 hours for a domestic violence protection notice—and that places a burden on the police.

If we were to go down the route of seeking to fill the gap through legislation, we would recommend that the financial impact be considered. I am talking not just about the process of going through the courts but about the administrative burden. We would probably need increased legal services.

I take it that, to your mind, a variant of a barring order is essential to plug an existing gap, albeit that you have concerns about how such an order would apply—the duration, the threshold and the cost that would be incurred.

As I have outlined, where we have a sufficiency of evidence, we currently have the necessary powers. However, where there is no sufficiency of evidence, the police find themselves working with third sector organisations to ensure the safety of the victim and mitigate risk, and, on a very small number of occasions, that may displace a victim from their home address. Whether there is a need to legislate is a matter for the committee. It is worth noting that there would be an administrative burden on the police, but the police may not be the only competent authority that the committee decides to authorise to seek an EBO if it is so minded.

Do other panel members have a view on that?

Our concern is that all the existing mechanisms depend on women or on victims to carry the burden of establishing whatever the mechanism is for protection. Sometimes there is a financial cost to them, and we have libraries of evidence that the existing provisions are not used, for a variety of reasons. Trying to fix something that is not working in the first place is possibly not the best route forward. What we are looking for is a mechanism that would be significantly different, in the sense that women would be offered the opportunity to say yea or nay but would not be responsible for making it happen in an emergency situation, as they are under the existing provisions.

You have argued for having a suite of measures, and Professor Burton has talked about the lower threshold that allows EBOs to apply in circumstances that do not apply in relation to the current powers. However, there have been examples of EBOs being operated in such a way that the victim does not have a great deal of control over how the EBO is applied, which would to some extent counter what you have said about the advantage of an EBO being that it takes some of the pressure off the woman or the victim.

We come down on the side of asking women’s permission. That is because there is a fair amount of evidence—Professor Burton can probably give you the citations for this—that women are the best predictors of further harm. They are not good at predicting their own murder but, short of that, they can predict further harm. For perpetrators who are not likely to abide by the law, investing in a measure that requires them to do so is, in some victims’ minds, a waste, and it makes other people think that they are safe when they know that they are not, so we think that it is an important mechanism that needs to be in place. However, I am also mindful that there is a broad discussion about EBOs and that, of the EBOs that exist across Europe, some require women’s consent and some do not.

Many EBOs do not require victims’ consent, and leave it to the police to consult victims but to have their views as non-binding, because there may be some instances where the competent authority takes the view that it is in the interests of the victim for an order to be made, even though it is not what they express their view to be. However, there is a great difficulty with the enforcement of emergency barring orders if they are made without the victim’s consent, because in order to enforce an order you would normally need evidence of a breach, and you will not get evidence of a breach unless a victim comes forward, unless you have some other proactive way of monitoring compliance, such as electronic tagging of the perpetrator. In practice, although many European countries do not require the consent of the victim for the making of an order, in reality the co-operation of the victim is required to enforce it.

That is not inconsistent with the bill as a whole, where it is recognised that simply waiting for a complaint from the victim before acting needs the necessary trigger and that, in some instances, the victim will be almost the last person to acknowledge that there is a problem that needs to be addressed. In that respect, those shortcomings of the EBO are not inconsistent with other aspects of the bill.

The EBO has a significant advantage in that it does not rely on the victim having the financial or other resources to seek protection on their own behalf. Of course, there are resource implications and the resource issue shifts around the system. It shifts to the police, who then have the administrative burden of doing it, but the victim does not have to have the financial or other resources to get the protection.

As well as responding on that issue, will the panel address the concern that EBOs might be abused? Is that a risk that you recognise? If so, what would the risks be?

11:45  

Taking it one step back, I endorse what Detective Superintendent McCreadie said. If there is a gap, it is clearly a matter for the committee to decide how to address that. There could be a gap where there is an insufficiency of evidence. That is all that I would say on that issue.

Criminal justice is about to change with the provisions that will come into force in January. They will give the police additional powers of investigative liberation, which Detective Superintendent McCreadie has spoken about. I am not sure what the implications of that could be seen to be in the complex landscape of dealing with domestic abuse.

If the committee is minded to introduce some kind of order, we stress the importance of a determination as to whether it goes down a criminal or a civil route. Looking at the issue from the point of view of immediacy, we have a concern about the period of time before there could be a judicial or independent review of any measure or power that came into force. If a power came into force such that a perpetrator was prevented from going back, how soon would that be subject to an independent review by a judge or a court measure?

One thing that I propose is that, where sheriffs are on call to deal with warrant applications over weekends and other periods, a court process be devised for situations where there is insufficient evidence to proceed or there is an imminency of risk.

Related to that is the question of technology and the administration of whatever online procedures are made available. I do not know what the risk is of those being abused. Clearly, we have problems with bail conditions at the moment. Even where they have been imposed, I am aware of circumstances where the person has been allowed back in breach of them.

That is really all that I can say. I will be happy to supply further information, but I am not sure that we are in the best position to give information about likely abuse, other than to say that we are aware that people can change their minds. Indeed, people can be back together again before the police can even go and tell them about the bail conditions. However, Detective Superintendent McCreadie might be in the best position to comment on that.

On people abusing conditions, we have to acknowledge that domestic abuse is a complex circumstance that involves controlling behaviours. Many members of the public would accept they do not understand the complexities, but we see them regularly in the service. We look to the third sector to support victims over the longer period—to inform them of their rights and the fact that they are subject to domestic abuse, and to support people in changing their mindsets if they are in fact victims.

It was more about the misuse of EBOs, rather than the abuse of the terms either of bail conditions or of EBOs.

Is 48 hours a reasonable length of time before there has to be court oversight of EBOs, or should we be looking at something significantly longer than that?

Domestic abuse already takes up at least 20 per cent of our operational policing time, so it is a significant commitment. We attend a domestic incident every nine minutes. The bill is likely to increase the powers that are available to the police and the offences that are available for charge, so that burden is likely to increase.

If the committee is minded to legislate on the matter, we would ask that any administrative burden be as light as possible. I acknowledge the suggestion about the use of an on-call sheriff, which is not dissimilar to what we do for urgent warrant applications. However, I guess that that is for the committee to consider.

The evidence is that 48 hours is not enough. England and Wales have one of the shortest durations of police-issued orders, and those are between a week and one month.

Is that in situations where the police are making the initial decision?

Yes, that is when police are making the order. The pilot study of emergency barring orders in England and Wales suggested that the reason why the longer orders were not being applied for was that the police found the process too bureaucratic and the time constraints were too great. It was recommended for England and Wales that the period of the police-issued order be extended to four to seven days, because 48 hours is not enough.

On the question about where EBOs are abused, as far as I know—after I did a little check with our academic expert, Professor Burton—we have no evidence of significant or systematic abuse of EBOs. It is important for us to put that issue to the side.

It is also really important that we think of EBOs as something that constrains the behaviour of perpetrators or accused and abandon the notion that victims should be somehow held responsible for allowing or not allowing perpetrators back in.

The complexity of decisions about the safety of women and children and of their responses to perpetrators is often not visible on the surface. However, the qualitative evidence on how women make decisions about whether to take a man back shows that those decisions are very often based on an assessment that the rest of the community will not protect the woman.

Detective Superintendent McCreadie, I was a bit concerned that you used the word “burden” in your contribution. I know that Police Scotland takes a very robust approach to domestic violence and that it has changed considerably over the years. However, reticence about additional power is not normally what we hear from the police service.

If there were powers that were better able to control offenders and that would reduce the likelihood of the repetition of offences—clearly, as part of a wider education programme—would you see a benefit connected with having those powers?

Whether orders limit recidivism has been a matter of limited scrutiny in England and Wales and possibly beyond in Europe. However, I am probably not the best person to comment on that point.

In respect of your comments about burden, you are absolutely right. For clarity, we are talking about that in an administrative and financial sense. Police Scotland absolutely welcomes the discussion on victims’ safety. We already work very closely with partner organisations to reduce the harm that is caused by domestic abuse.

But surely a preventative approach—and you could view some of these measures as a preventative approach—will ultimately reduce the administrative and financial burden, as you describe it, in the future.

Yes, but the EBOs would fall under the category of secondary prevention, because in all likelihood we would use them when we knew that an offence either was escalating or had been committed. Ideally, as a community, we would want to focus on primary prevention but, as a service, when we become involved, we need the powers that are necessary to protect the public.

Currently, where there is a sufficiency of evidence, we believe that we have those powers. We recognise that, where there is an insufficiency of evidence, we have no power to exclude a person from their home.

Before I ask my main question, I want to pick up on points that Mairi Gougeon and Mary Fee mentioned earlier and to get a bit of clarity from DS McCreadie.

When there is a charge of domestic violence against a perpetrator and a child is involved, is it your understanding that the child is referred to social work and the children’s reporter as a matter of course?

Reports will be submitted and shared with appropriate services, including social work, when children are present.

Is it also the usual standard to refer such an instance straight to the children’s reporter?

In fairness, I will have to check the current process and come back to you on that question.

Thanks. My understanding is that that is the case, but I thought that it would be useful to get it on the record.

I will ask my main question. Might the introduction of EBOs remove in any way the focus from pursuing prosecution of domestic abuse? Panellists can give a quick answer if they want.

Police Scotland is committed to enforcement and trying to reduce the harm that domestic abuse causes. We have a tiered structure in local policing, with an escalation to divisionally based domestic abuse investigation units. The top tier of our response is the domestic abuse task force, which we commonly describe as dealing with the worst of the worst. We are committed to enforcement and that has been outlined since the inception of Police Scotland. I for one do not see that changing.

Our caveat around our obvious general support for EBOs is that it is very important that we learn from the not very positive experience of the current response that many of our services in England and Wales have had. The feedback that we are getting is that police and other actors in the community see the presence of a protection order as meaning that the job is done. As you are alluding to, that might in fact dilute the robustness of the criminal justice response, so we are very clear that we would not see the presence of such a protection order as intending to inhibit in any way the gathering of evidence, the putting of cases to the Crown Office or prosecution.

In fact, if we have another mechanism for allowing other actors in the community to help provide a plan and safety, the evidence that would be gathered in an appropriate context would be more helpful to a prosecution case. I think that there is some evidence on that in the research that Professor Burton did.

Yes. It is very clear that emergency barring orders are meant to supplement rather than replace criminal law, but there is concern that they might be used as a replacement.

In Germany, which, being a federal state, has various models, there is some suggestion that, after the introduction of emergency barring orders, the criminal justice response became less robust and cases were not built as strongly. There needs to be monitoring when emergency barring orders are introduced, to ensure that they are used as a supplement rather than a replacement.

There is not that much evidence yet from England and Wales. When the evaluation was carried out, it was only of a short period. We do not know whether protection orders are being used as a replacement rather than a supplement, but that is certainly a concern that ought to be taken into account.

The point to stress is that if a crime has been committed, however that crime is defined in the bill, and there is sufficient evidence, the criminal justice system will proceed on the basis that it does at the moment. There are safeguards in respect of bail conditions that can be applied. Emergency barring orders come in when that position cannot be achieved: when there is not sufficient evidence by corroboration or sufficient evidence to constitute a crime. Emergency barring orders would be a route or a measure to deal with such gaps.

Remember that, as has been alluded to, there other existing civil measures, regardless of how effective they are. Interdict and the non-harassment orders exist in parallel to the criminal law system, and they do not diminish the domestic abuse prosecutions that take place at the moment.

Those were quite useful responses.

Finally, does the panel have any thoughts on how EBOs might be used in situations where a person is not being investigated or prosecuted for domestic abuse?

I do not think that I got the whole question.

How might EBOs be used when a person has not been prosecuted for domestic abuse? I suppose that that is the reverse of my previous question. The evidence might not be sufficient to prosecute, but it might be sufficient for an EBO. The person might not be being prosecuted for domestic abuse, but the agencies, such as Women’s Aid and social work, might say through multi-agency planning that there is concern.

12:00  

If EBOs can be made in the context of risk and not just following the commission of a crime, a compelling reason to consider them is that they may serve as a deterrent, particularly if they are of sufficient length for a safety network to be put in place. That goes back to my earlier response. For those accused people or perpetrators who will abide by the law, an EBO may be a deterrent of some strength. At the moment, we rely on a crime having been committed and sufficiency of evidence, but an EBO can be a broader and more preventative mechanism.

An EBO may be more effective at getting victims to engage with support services, particularly if the process of making an emergency barring order includes a referral to support agencies that the victim would not have contacted otherwise.

Do you support the inclusion of EBOs in existing civil court orders?

If there is a perceived gap, emergency barring orders in some shape or form can be useful. I stress again that the choice of sanction—whether civil or criminal—is for the committee to think about. My slight concern is about the complexity and the interaction with other forthcoming changes in the legislative process of which the committee is fully aware.

I also draw your attention to article 57 of the Istanbul convention, which relates to the provision of the legal representation and advice that would be required for both parties.

The police welcome the discussion. I have concerns about the pace at which the issue may need to be progressed in order for it to be included in the Domestic Abuse (Scotland) Bill, given that there is no recognised model that would fit naturally with Scots law. It would be subject to lengthy discussion, as it would be important to get it right in the first instance.

I am a fan of getting it right the first time, but I know that Scottish Women’s Aid and our allies in the domestic abuse world have been calling for such measures for more than five years. I am concerned that the window of opportunity that the bill provides will close and that we will spend another five years debating how to get it exactly right. I agree with Detective Superintendent McCreadie that there is strong evidence about how we might get it wrong, which we must pay attention to. However, women and children would urge you to take this opportunity.

From an academic perspective, I consider purely the research evidence from other countries. No one model can be transported to any other jurisdiction, but there is enough evidence from European countries, including research from England and Wales, to show that EBOs can be effective. If you get the process around them right, they can be a useful supplement to the existing criminal and civil justice responses.

I want to pick up on Marsha Scott’s point. Everybody around the table recognises that we have an opportunity; we want to take more evidence, as we think that it is a vital issue that we should consider.

I also want to touch on Professor Burton’s point about there being not just one transferable model that we can pick up and implement. I read her submission with great interest, as it is really interesting to see how models in other countries work. If the committee decides to take the matter forward, we will have to look at what model we would like and where we will go next. Even though there might not be one automatically transferable model, is there a particular model that we should aspire to and aim for in Scotland?

I do not think that there is any one model to aim for. You can pick elements from different models and learn lessons in that way about, for example, what the duration of the order should be, what the level of authority for making an order should be and what the time length of the order should be.

No country gets all the elements right, although Austria is often held up as a particularly good example. In Austria, the duration of orders is two weeks and they can be extended to up to four weeks if the victim applies for a longer order under the civil law, like an interdict in Scotland, for example.

Another feature of the Austrian model is that there is funding for referral to support services, which enables the victim to get the support that they need to apply for the longer-term protection. However, we should not see emergency barring orders as a complete solution, as the victim might still need additional help to navigate the civil or criminal justice system.

The level of authorisation should not be set too high. Although we have to acknowledge perpetrators’ rights and interests, the overriding feature of emergency barring orders is protection of the victims, including children who are victims of domestic violence. The right to life and the right to be free from inhuman and degrading treatment are more important than, or are superior to, the right to property. Emergency barring orders are anyway only a temporary interference with property rights.

If we are looking to take forward such a provision in Scotland, although there is no one model to aim for, we can look at the issues that arise from how the orders operate in other countries and address those points.

Absolutely. One of the benefits of addressing the issue now in Scotland is that there are other models to look at. We can see what the best operating elements of those are and implement them here.

I have a list of critical features, many of which I have already touched on.

We like the Austrian model and think that orders need to last for at least two weeks. That view is partly based on research that we are aware of concerning how long it takes for a victim to take up services, for those services to respond appropriately and for everybody in the system to have a better sense of what the next steps should look like.

This has not been mentioned yet, but it is absolutely critical that there be no discrimination in eligibility for the order, so it should not be based on immigration status. We are well aware that victims who are without secure immigration status, who are here on a spousal visa or who have any of the possible permutations of migration status are even more in need of protection than other victims.

There needs to be a clear commitment and systematic referral to support services—I am thinking of Women’s Aid services in particular. We know that, if that referral happens within 24 hours, it enormously increases the likelihood of service uptake. I had personal experience of that when we put in place an opt-out rather than an opt-in arrangement with police in West Lothian and the take-up of services went from 40-something per cent to 90 per cent. There is also lots of evidence from other places that that is a critical element.

We want to make sure that the process is free for the victim and—the obvious lesson from England and Wales—that it is free for the police. We cannot create a disincentive for our closest partners to help women and children to find safety by taking the cost of the process out of their budget.

My final point is that breach of the order needs to be a criminal offence.

In Austria, there is a €500 fine for breach of an order but it is not a criminal offence, which is perhaps the only weakness in the Austrian model. In England and Wales, too, breach of a domestic violence prevention order is not a criminal offence, although the evaluation of the order suggested that consideration should perhaps be given to criminalising any breach. There are potential disadvantages in criminalising breaches of civil orders, but consideration needs to be given to the potential strength of criminalising breaches, because that would make enforcement stronger.

How do the penalties vary between different countries? Are there lower penalties compared to other sanctions that can be put in place?

In some countries, such as Austria, there is a fine. In England and Wales, there can be a fine or a charge of contempt of court, which can lead to up to two years of imprisonment. However, in some countries, a breach is a criminal offence that can lead to immediate imprisonment.

The final point that I want to touch on, which was raised by DS McCreadie and is mentioned in Professor Burton’s written evidence, is about the effectiveness of EBOs in reducing repeat victimisation. Am I right in saying that you have been able to get figures on that only from the Home Office?

Yes. Unfortunately, there is a very limited evidence base in that regard. None of the countries in Europe has evaluated the effect of emergency barring orders on long-term recidivism. The pilot study in England and Wales was the only one to look at recidivism and the impact of emergency barring orders. However, there were methodological difficulties in trying to find out whether emergency barring orders reduce repeat victimisation.

The measure that was used was the number of repeat call-outs that were made to the police after an emergency barring order had been made, which was compared to situations in which there were no emergency barring orders. In the 19-month follow-up period, it was found that, when an emergency barring order had been made, there was a reduced number of repeat calls to the police in relation to domestic violence, particularly in chronic cases in which three or more calls had been made to the police prior to the making of the emergency barring order. The making of the order seemed to have the greatest effect in reducing the number of repeat calls to the police.

Nevertheless, we must be careful when using the number of repeat calls to the police as a measure of recidivism, because victims might have been put off calling the police again if they were unhappy with a previous response. In England and Wales, researchers talked to some victims about how they felt about emergency barring orders, and they were mainly supportive of their use. That led the researchers to conclude that the victims were not being put off calling the police again because they were unhappy that a barring order had been made.

The evidence base is not great, but what evidence there is suggests that emergency barring orders might have some effect on repeat violence for up to 18 months, at least.

It is also important to think beyond recidivism and about the prevention of homelessness. As many of you will be aware, we did a piece of work with a team of community researchers in Fife and the ensuing report—“Change, Justice, Fairness: ‘Why should we have to move everywhere and everything because of him?’”—pointed out that, in Scotland, in order for women to be assured that they are safe and for the system to respond to their needs, they often have to declare themselves homeless. One of the reasons for that is the failure to have a mechanism in place that allows systems to coalesce around a family in their own home. Hence, 40 per cent of the women in the Fife research survey had been made homeless more than once.

We are convinced that other costs in the system will reduce as a result of such homelessness being prevented and that an overwhelming amount of harm will be reduced through homelessness of women and children being avoided in the context of domestic abuse. There is a huge argument for that approach, which would deliver a fabulous payback in other parts of the system although not necessarily for the police.

12:15  

Mandy Burton has talked about extending the duration of the barring order to between four and seven days, and Dr Scott talked about two weeks being the optimum duration. It strikes me that there may be a balance to be struck in setting a longer duration with perhaps a higher threshold. If the duration was two weeks, for example, might there be a risk that the disruption that that would cause could put people off applying for barring orders? Although we might want to allow as much time as possible, setting the duration of an order closer to between four and seven days might ensure that barring orders are applied as rigorously as we want them to be.

The very real problem that you have identified is the capacity of the system to understand domestic abuse. If there is a reluctance to use an EBO because of the risk threshold, that is a training indicator rather than a reason not to allow a longer time for the services to take action and the victims to become confident that they can be safe. We might well find evidence that there is a reluctance within the system to use EBOs, but that would be the result of a long history of privileging the right to property over the human right to safety.

Was there any reason why Mandy Burton opted for a duration of between four and seven days as opposed to a duration of two weeks?

I did not opt for a duration of between four and seven days. The researchers who carried out the Home Office-funded evaluation recommended that consideration be given to extending the domestic violence prevention notice to between four and seven days because they found that fewer domestic violence prevention orders were being applied for than had been anticipated. The researchers asked the police why that was, and their reply was that the bureaucratic burden was putting them off—they did not have sufficient time to get together a case to apply for a longer domestic violence prevention order.

I think that, in my written evidence to the committee, I said that consideration should be given to making the duration at least one week. That seems to be a reasonable length of time to interfere with the perpetrator’s rights before the matter is considered by a judicial authority.

Does DS McCreadie share that view?

Let me clarify what we are talking about here. The domestic violence protection notice that is issued by the police—by a superintendent or above—lasts for 48 hours. If I have interpreted it correctly, the suggestion is that that period could be extended by the police, without judicial review, to between four and seven days. Thereafter, an extension of it up to something in the order of 28 days would still be subject to a court order; so, in effect, the process could still cover four weeks.

Does the panel have a view on what tests should be met before an EBO is imposed? Does that bring us back to the original question of risk assessment, and is there a danger of the threshold being set too high or too low?

I come back to the policing perspective on the risk assessment: the domestic abuse questions, which I mentioned at the start of the evidence session. That is the basis on which the orders appear to be applied in England and Wales. There is a different terminology for the risk assessment but, in essence, it is the same model.

I will defer to academia on this but, in England and Wales, the test or requirement that appears to be applied is that of any heightened risk. I suggest that, if the committee is agreeable, that is a fair and transparent process. There has to be professional judgment. We know as a service—it is part of our training—that the recognition of someone as a victim, by the nature of what they are reporting, can minimise the perpetrator’s behaviours, so they may score very low on the risk assessment. However, if the gut instinct of an officer or another partner suggests that there is a heightened risk, we can escalate the situation, even though it may not meet the threshold.

Can you give an example of what heightened risk might be?

Each question carries a score. A total of 14 or above would indicate heightened risk and we would refer that for multi-agency risk assessment. In addition, if someone scores three because they are not engaging with us—they are not telling us the truth but we can see other evidence or have heard other accounts from neighbours to say that incidents are occurring every week and they have seen the person with injuries—we can apply our professional judgment, which overrides the score. That is also done by partners.

Would previous offending come into that?

It is a risk assessment around the victim and their perception. However, the police will take into account the whole circumstances of the report that they are dealing with.

It is important that the threshold for making the orders is not set too high. If one of the reasons for having emergency barring orders is to plug gaps in the criminal law, it would be counterproductive to make the threshold for making an EBO too high.

In England and Wales, it is not necessary for actual violence to have been used in order for an order to be made; the officer has to have a reasonable belief that violence has been used or threatened and that an order is necessary to protect the victim from violence or a threat of violence. The level of violence that has to be used or threatened for an EBO to be made in other European countries varies enormously. In some countries, violence must have been used before an order can be made, but in many countries psychological and emotional abuse or a threat of violence are sufficient for the making of an order. The evidence is that the latter approach is more effective in plugging gaps in criminal law.

Would it heighten the risk if children were present?

Whenever children are present, they are the indirect, if not the direct, victims of domestic abuse, so that should come into the assessment. If violence is being threatened towards the adult victim of domestic abuse and if children witness that, it is likely that they are also being harmed.

I want to look at who should be covered by an EBO and how widespread it should be. I want to pose a scenario to the panel and hear your views. Say that we have a woman who is a victim of domestic abuse and is deemed to be at significant risk and has children who are also deemed to be at significant risk, so an EBO is issued. If that woman and her children have a set pattern of behaviour over the course of a week during which that EBO could operate, should the school and clubs that the children attend and the family visits that the woman makes—all of which will be known to the perpetrator—be included in the order? We could argue that, if those are not included, we are further victimising the victim of a crime.

We have made our position clear. Any of the customary spaces that the woman or children are likely to be in should be covered, because it is not about the place but about the protection around those people in their daily lives. I understand that there are complexities in enforcing that. However, at the end of the day, we need to keep our eyes on the prize of safety. The order should be associated not with the property but with the autonomy and personal safety of the family.

Historically, we had a similar debate around bail conditions and a phrase was coined: “Where she works, rests and plays.” The same applies to emergency barring orders—they should apply where the primary victim and the children work, rest and play.

That is helpful.

Every case would be considered on its merits. If the committee felt that it was necessary to legislate, the applicant would have to offer justification for bringing that under consideration. The justification for inclusion or exclusion would be scrutinised by the authorising authority, whether that be a senior police officer or the judicial review. It should definitely be in the guidance.

Okay. I am just a bit concerned about the use of the word “justification”. It almost implies that the victim has to make a case to justify her or her children going about their daily lives.

In my opinion, the justification refers to the police applying to prohibit somebody’s movements or exclude them from certain areas. In some cases, that may not be to the children’s benefit—it would depend entirely on the circumstances. I return to the point that I made at the outset: this is about victim safety, and that is our focus and that of our partners. Our position is that the matter would be considered on a case-by-case basis, as opposed to all orders in every instance excluding a person from school or other premises.

I am sorry to be pedantic but, when you say that it may not be in the children’s interests, are you saying that the police could, in theory, decide that it would be in a child’s best interests not to go somewhere, or have I misunderstood what you are trying to explain?

I am trying to say that we would not want to take a carte blanche approach to the matter. We would not want to say that, in every instance, in every EBO, we will exclude or include certain factors. Every case should be considered on its merits.

Mary Fee referred to a particular scenario. To go back to what I said earlier, the risk that you are talking about would normally be covered by the not-to-contact approach. I support what Dr Scott said about it being about the person rather than the place, because such an approach would cover school, granny’s house or wherever the child might be. That echoes the words in article 52 of the Istanbul convention, which talks about not contacting the victim or person at risk. If you include children in that category, that would cover it.

That would be a belt-and-braces approach.

Yes.

I completely endorse what was said that, if you are minded to introduce emergency barring orders, there is a need to look at various aspects. If it was for the police to impose such orders, I stress again that there would need to be consideration of the nature of the offending conduct against the provisions of exclusion from the house. I return to the comments that I made about independent judicial review at the soonest opportunity being proportionate, in the sense that it would provide equality of arms and ensure that all the implications for both sides would be heard. If you were minded to pursue this route, I would want you to be clear about the process of appeal and for there to be that review mechanism, as that would ensure the safety and fairness that people would expect to be inherent in the Scottish system. That is all that I would say with regard to any period that an order would apply for.

That is helpful. In an earlier answer, Gillian Mawdsley said that electronic communication should be included as a form of contact. I am interested in whether the other panel members agree with that view.

Yes. The joint protocol between the Crown Office and Procurator Fiscal Service and Police Scotland clearly indicates that domestic abuse can occur anywhere, including online, so we would support that view.

I agree.

Yes.

Thank you.

The issue of support services has been covered to an extent, but I wonder whether there are any drawbacks to integrating the support services into the system of EBOs. If there are no drawbacks and only benefits, should there be automatic referrals for victims? Professor Burton has done quite a lot of work on the issue.

Yes. The drawback is that the services must have sufficient funding to meet the need. If you make referral by the police mandatory on the making of an emergency barring order, that is likely to increase the demand for support services and they will have to try to meet that demand out of their existing budgets.

In other jurisdictions, the legislation includes provision for funded intervention centres. For example, the Netherlands, the Czech Republic and Austria all have funded intervention centres to make automatic referral work. The only potential drawback here is that there will not be enough money for the support services to respond effectively to the demand that is created.

In Germany, where referral to support services is discretionary rather than mandatory, it has been found that the victim is more likely to take up the services when the police make a referral. There is pretty reliable evidence that the most effective way to implement barring orders is if there is referral to support services and it is a multi-agency response.

Are there any differing views? No—it looks as though everyone is in agreement with that. There are no further questions so I thank the witnesses very much for this useful and helpful evidence session.