Justice and Home Affairs Committee, 06 Sep 2000

Meeting date: Wednesday, September 6, 2000

Official Report 247KB pdf

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Domestic Violence

We now come to item 2 on the agenda. The senior assistant clerk has provided a note, entitled "Proposed Protection from Abuse Bill", which has been circulated to members. It clearly sets out the issues for the committee. Members should recall that, at our meeting on 4 April, we agreed in principle to recommend the introduction of a bill that would effectively allow a sheriff the discretion to attach power of arrest to an ordinary existing civil interdict. We have already made that decision, and the issue this morning, on which I will ask Maureen Macmillan to make a few comments, follows on from our discussions on 4 April, and relates to whether breach of interdict should be a civil or criminal offence.

I hope that Maureen can clarify whether she is suggesting that we now drop the issue of introducing the possibility of power of arrest to an ordinary civil interdict in favour of simply maintaining the existing common law position on interdict, except for the fact that breach of interdict would become a criminal rather than a civil offence. We would do that instead of attaching powers of arrest to civil interdicts—that is where this is a wee bitty unclear.

As I see it, the situation is as you have explained it. The original proposal came from Scottish Women's Aid. Just before I met Angus MacKay on 15 August, it was again suggested to me that the proposal would serve to lessen the burden of civil legal aid contributions on women—or on any abused person who required to access the courts.

The interdict would have attached to it some form of order—not being a lawyer, I am not sure what the formula for that would be—to make it clear that, if the interdict was breached, that would be a criminal offence, rather than being a matter merely of having the power of arrest attached.

I am a little confused about what is being suggested. At the moment, interdict is a matter of straightforward common law which anybody can seek through the civil courts. Is the suggestion that, instead of allowing the sheriff discretion to attach power of arrest, we should simply legislate to make breach of interdict a criminal offence? If that is the case, would that legislation or proposal cover any and all breaches of civil interdict, or would we seek to define breaches of interdict that come into this category? If so, I think that there are problems with that.

We would seek to define the breaches of interdict in the same way that we define interdicts with powers of arrest attached to them.

The difficulty is that our initial discussion about attaching powers of arrest seemed relatively straightforward. The idea was to allow a sheriff the discretion to attach the power of arrest if he concluded that there was a risk of physical violence or assault, with such a power applicable to any and all interdicts where that was the case. That resolved the issue of thinking only in terms of cohabiting husband and wife. My concern is that if we have to start defining the kinds of interdict of which any breach would constitute a criminal offence, we get back into the whole problem of definitions.

I am not a lawyer, so I might be missing something. However, it seems fairly straightforward to me that a class of persons who apply to the court for an interdict with the power of arrest attached because they are in an abusive situation can surely go to a sheriff who would have the discretion to grant them such a criminal interdict, for want of a better phrase. I do not see the problem.

Although I do not see a problem in that sense either, I have to disagree with Maureen Macmillan for another reason. We might start to get entirely confused here. I did not think that we would do what the convener suggested, which was to attach the power of arrest to every interdict; I thought that we had always intended to attach the power to what might be defined as domestic-type interdicts. Obviously, we cannot attach the power of arrest to certain interdicts. I cannot think of any off the top of my head, but clearly they must concern civil matters and have nothing to do with domestic abuse. I thought that we were going to set up a power of arrest by extending the present matrimonial interdict, the problem with which is that it dies when the marriage dies, or introduce a new form of interdict with a power of arrest that was broader than the existing Matrimonial Homes (Family Protection) (Scotland) Act 1981 and would therefore cover domestic situations.

I am not overkeen in making breaches of an interdict a criminal offence, even in the situation that Maureen Macmillan outlined. Sometimes there seems to be real confusion about criminal prosecutions. I do not want my following comments to be taken out of context. Criminal prosecutions come about because the body politic has been offended. For example, if Scott Barrie punches Pauline McNeill, we prosecute him for assault, whether or not she wants that. The TV notion of people pressing charges really has no meaning. As a society, we say that it is wrong for somebody to assault or attack somebody else and, as a society, we prosecute whether the victim wants to prosecute or not. If my imagined assault takes place and we prosecute Scott Barrie, it does not matter whether Pauline McNeill tells the police three weeks later that she does not want him to be prosecuted. We have witnessed the assault and he will be prosecuted, because it is a criminal matter.

However, I wonder whether the same applies to matrimonial situations. A couple might be in matrimonial difficulties and in the middle of civil proceedings. If the person who is interdicted from being in a particular place does something in that place—such as assault or a breach of the peace—that would be a criminal offence anyway; the offence will be prosecuted. On the other hand, the person might breach an interdict simply by turning up at a particular place. If doing so becomes a criminal offence, it will be prosecuted, whether or not the woman wants that to happen. Someone said that that was a good thing, as it takes the decision out of the woman's hands. However, I am not so sure that that is a good thing as far as people's relationships are concerned. There might be many situations where people go to court and there is much emotional trauma, and the guy is present when, strictly speaking, he should not be. Now he has to be prosecuted because he has committed a criminal offence.

The woman might not want the man to be prosecuted, not because she is frightened or intimidated, but perhaps because a mediation process is under way. We might create a situation where things are out of the hands of the parties, and are in the hands of the criminal court. I am not so sure that that is a very clever idea.

We are not talking about matrimonial interdicts, which would still exist. We are talking about an interdict for people in relationships other than marriage. Divorce proceedings would not be going on at the same time.

But we must consider the fact that relationships now take place outside marriage.

If there is a problem in a relationship and something has happened that would not normally be criminal, we should not bring in the criminal courts, because we take the matter out of the hands of the people who are trying to work out the relationship. I suppose so—okay. I just have reservations about doing that.

I think that some issues need to be clarified before we go on, as there are clearly different understandings about our initial idea. We will need to go back and examine the Official Report of the committee meeting that we are talking about.

I understood that we would propose a bill that would permit a sheriff to attach a power of arrest to an interdict where he thought that such a power was appropriate, which avoided any discussion about matrimonial this or matrimonial that. The bill would simply make it clear that the sheriff, in making his decision, would examine the question whether some form of assault or violence was likely to take place. In a sense, that takes the matter out of the domestic violence remit, meaning that we are not required to define the term "domestic violence" at all, and that we do not have to ask questions such as, "Are husband and wife involved? Are cohabitees involved? Is it that the former partner who has left the house is now coming back to harass the victim?" The bill would allow the sheriff an added ability under the existing interdict procedure to attach the power of arrest, and would have nothing to do with issues of property and so on.

However, I am concerned that we are considering something rather different from our initial intention. If the power of arrest is attached to an interdict and the police are advised of it, they can use that power in the way that they do with matrimonial interdicts and take the individual off the scene. The whole matter becomes difficult if we start to discuss making breach of interdict a criminal offence, as we will get into the issue of definitions. Gordon Jackson is correct. Someone can be interdicted from writing to a newspaper about another, if that person so chooses. Surely we will not make such a breach a criminal offence.

I do not see that argument at all. We define at the start who can apply for this kind of—

I am sorry, but defining who can apply is not the basis on which we initially approached the issue. We were going to give the sheriff the power to respond to a request from a solicitor that it was appropriate for a power of arrest to be attached to an interdict.

If we follow the convener's suggestion, it all comes to the same thing, because the person would have to be in fear in order to receive such an interdict. That is fine. Normally only people in relationships would be subject to anti-violence interdicts. Adding a criminal offence to that would not be hugely difficult, because it would apply only to such people. My difficulty is with the other proposal—is it a helpful way of dealing with the relationship problem?

Convener—

Just a second. I want to let Maureen Macmillan reply to that first. Another member also indicated that they wished to speak before you did.

I see what Gordon Jackson is saying about the end result of allowing the abused person to decide whether she wants a prosecution to go forward. I can see that a balance needs to be struck there. However, I do not agree with what the convener said about our intention. It was very clear that this would be a broad piece of legislation that would apply to a range of relationships.

The whole point of giving the sheriff discretion to attach a power of arrest is that it is not necessary to define anything.

That is right.

What I do not want and do not think the committee should want to do is to approach this issue from the need to define relationships.

Absolutely not. We are talking at cross-purposes. We said that the sole criterion would be that someone was abused and in fear of further abuse. That person would go to the sheriff and ask for an interdict, with powers of arrest attached. All we are proposing is that, instead of having powers of arrest attached, the interdict should be a criminal one. Gordon Jackson is saying that that takes the power out of the hands of the abused person, because often an abused person would not want there to be a prosecution at the end of the process. That may be a good or a bad thing. I am looking for the best way of protecting people. Frankly, I am not particularly bothered about the process.

That has clarified matters. We are talking about a criminal interdict instead of, rather than as well as, attached powers of arrest.

Yes.

This is in place of what the committee has already proposed. It is a new suggestion.

Yes, it is a suggestion.

That is clearer. If that is what is being suggested, there are one or two questions that we need to ask. Would it reduce the likelihood of the sheriff granting the order? I think that it might very well have that effect. We need to take that on board.

I come to this from 12 years' experience as a matrimonial lawyer, so I have a great deal of sympathy with what Gordon Jackson said. When relationships break up, people do many things that they will never again do in their lives. Because the situation is so explosive, a husband or partner may do something once that is threatening and should never have been done, but that they will never do again. There are also partners and husbands who are bad and are criminals. That means that interdicts with powers of arrest attached could be used to deal with a range of situations.

Like Gordon Jackson, I feel that to make breach of interdict an automatic criminal offence does not deal with the lower range of matrimonial or partner break-ups, which are one-off situations. The result is that the power of arrest is applied, the partner or husband does something, the police go round, there is a cooling-off period and, a year down the road, things settle down. I know that that happens in time—not always, but in many cases. Children may also be involved. If breach of interdict becomes an automatic criminal offence, they will see their dad go to prison. This proposal leaves the sheriff with no discretion to deal with the individuals involved in a particular situation. I think that it is too draconian and would not get the result that Maureen Macmillan wants.

I am totally in favour of protection of spouses. The police have done a great deal to improve response times and to familiarise themselves with the qualities of interdicts—which are often very specific, even down to streets that people should not be in or schools that they should not be outside. I do not think that this proposal would solve the problem; indeed, it might make things more difficult. The knock-on effect of making breach of interdict an automatic criminal offence might be that sheriffs would not issue interdicts, because from experience they would know that that was not the remedy for the problems of particular couples.

Christine Grahame has made that point before, and I do not disagree with her. However, I know where the committee started. I am not saying that we do not have the right to change our opinion, but I know that we started by examining the Matrimonial Homes (Family Protection) (Scotland) Act 1981. We decided that we would come at the issue from the other direction: that we would examine a class of interdicts where a particular set of circumstances applied. We know what circumstances we are talking about—the primary cases put to us by Scottish Women's Aid, where women have put up with a history of abuse that puts them in risk of their lives. This was not simply about ensuring that there was a prosecution, but about having a power of arrest that would allow the police, when there was a difficulty, to lift a person before a criminal offence had been committed.

I am not saying that it is easy to legislate for that; we all know that that is a difficult task. However, we came to the right conclusion. Now we are coming up against the obstacles that one encounters when trying to legislate for a class of people or circumstances. We are still clear on our objectives. I agree that we are not seeking to make every breach of an interdict a criminal offence, because, as Christine Grahame said, the law of interdict covers such a wide area. I am still of the view that we need to focus on the class of interdict and the circumstances to which it relates; we are not seeking a catch-all provision.

The crucial issue is the power of arrest. The point is to provide the police with have a record of the fact that there has been a history of problems and to enable them to arrest the person concerned. Without that power, they would have to wait until an offence had been committed, which is too late. That is the difficulty to which Women's Aid was seeking to draw our attention.

Having made a decision in principle, the committee has before it an entirely new proposal, which is being suggested as an alternative to what we have already decided. In fairness, we should give the new proposal a hearing and compare it with the original idea. I suggest that we take some evidence on the two proposals as alternatives. We should invite some people to come before the committee to talk to us about the pros and cons of each proposal as compared with the other. That might help us. Some of us are concerned that Maureen Macmillan's proposal would result in fewer interdicts being granted. It might be useful for us to hear from the people who deal with this problem, such as Women's Aid. I suggest that we also take further evidence from the Sheriffs Association and one or two other people.

I have a counter-proposal. With respect, I think that it would be precipitate for us to take further evidence. We should first look back, as it is some time since we last dealt with this issue. We should review what we have done to date, as there is some confusion about what we were seeking to do and how we have moved on. We should try to reach a consensus on that before we take evidence. We need to take a breather and look back on what we have done, to see why we are where we are now.

We could combine the two.

I have doubts about taking evidence. To some extent, we were talking at cross-purposes, but I do not think that we were disagreeing about what we originally intended to do.

We want to move on.

We wanted to attach a power of arrest to interdicts where there is a fear of violence. Alternatively, we could make breach of interdict a criminal offence. We are capable of deciding between those two options. We could take evidence, but we know what witnesses will say. Some people will say one thing and others will say something else. We can predict the results of any evidence taken on the issue.

I am not sure that that is true. Like Pauline McNeill, I am concerned that we approach this issue with a view to achieving the best possible result for the people who are on the receiving end of this kind of abuse. We need to ensure that we do not opt for a decision that looks fine to us but will not progress matters. We need to be absolutely certain that we make progress. Christine Grahame makes a fair point, however. I will ask the clerks to pull together our discussions and the documents and distil from them our position, although I am clearer now than I was 10 minutes ago when we started this discussion. I still think that it would be useful to take evidence from some people, especially sheriffs.

I am not entirely behind Christine Grahame's proposal. I am clear about the process that we have taken and about our objectives. I would like to talk with the Sheriffs Association at some length, because we need to examine themes such as the contradiction of making someone who has been on the receiving end of a criminal offence apply through a civil procedure for an interdict to protect themselves. I would like to talk to the experts, even if the session is informal, about the direction in which we should be heading.

If we are taking evidence, I would like to include the family law mediation people, because we need to consider the effect on the mediation process. However, I am slightly against taking evidence, because once again we could lose months. I am keen on Maureen Macmillan's interdict with a power of arrest. That is what we were trying to achieve in the first place. This morning, I looked at the forward programme, which could be changed. However, we will lose months and months taking evidence. If we need to hear from sheriffs in order to make a decision, that is fine, but we will lose months.

We do need to hear from them. I appreciate what Christine Grahame is saying. The danger is that we will take a view now that goes against what Maureen Macmillan has proposed, and I do not want to dismiss her proposal out of hand. That would be unfair on Maureen, who has put a lot of work into this and come up with an alternative that we are duty bound at least to consider. I am not saying that we should do so for months, but we should set aside some time to hear evidence and to get a practical feel for which proposal would be the best way forward. We would then be in a better position to come to a view.

I hear what everyone is saying about the work load. However, from what the minister said this morning, it appears that the work load will be greater after the new year. That is not to say that the work load will be non-existent in the run-up to the new year, but some of the legislative pressure does not arise until after the new year. We should take the opportunity, if we have a little time—and we can make the time—to hear more evidence. Let us do Maureen's alternative proposal some justice and not rush to a vote today, which would probably dismiss it.

To be honest, I would be relaxed about that, because I am more interested in the result than in the process. There is a balance to be struck, given Gordon Jackson's point about the possibility of damaging relationships. On the other hand, my proposal is less expensive for the individual. It may be that what people need is for the criminal prosecution to be taken out of their hands so that they do not have to make the decision. I am seeing Jim Wallace next week. I think that he wants to discuss details and make us an offer, so we are constrained for time.

In those circumstances, proposing the alternative at this late stage was not the right thing to do. We have had a discussion. If you are telling us that you will be meeting the minister next week—

I did not know that at the time.

We cannot hear evidence before you meet the minister. That is unfortunate. If you are not too concerned about the alternative being dismissed, I will take a quick show of hands of those who wish to proceed on the original basis of the attachment of the power of arrest. Could members who are in favour of going with a power of arrest rather making a breach of interdict a criminal offence raise their hands? Let us stick with the powers of arrest. Are you happy with that, Maureen?

Yes. I am happy to take the committee's advice.

Let us proceed on that basis. I did not take a formal vote; I wanted a show of hands, rather than a formal vote.

Convener, I would like to raise a point regarding what you said about the programme for this year not being quite as heavy this side of the new year. Can you comment on land reform, because I understand that we are picking up that bill? Has that been timetabled?

The draft bill is not being published until February, so the introduction of the bill in Parliament is unlikely to take place until after the Easter recess at the earliest. It is a big bill.

We are sticking to the original decision on power of arrest. If Maureen is meeting the minister, she can report back.

The minister may offer to incorporate our proposals into the family law bill. I will come back to the committee about that, but I want some indication of the committee's feelings. I am concerned about the time scale. I do not know whether it would be quicker if we brought forward a committee bill rather than waiting for the family law bill, which the minister said he hoped to bring before Parliament this year.

I will explain to the committee how the process works for a committee-initiated bill. Once we decide on the overall shape of the bill—I am not sure whether this discussion qualifies as doing that; we would need more detailed discussion on how to define the kinds of things that we would expect a sheriff to take into account and so on—the next step would be for the clerks to draft a report to Parliament, proposing the general terms of the bill. The drafting of the report would take a couple of weeks. Once the committee agrees to the report and it is published, the Parliamentary Bureau would be required to make time for it to be debated in Parliament—that is not optional; it is required by standing orders. There would then be a debate in Parliament. Under the standing orders, if the Parliament agrees to the proposal, the Executive has five sitting days during which it can commit itself to introduce an Executive bill to give effect to the proposal. Only if the Executive declines to make that commitment do we have the right to instruct the drafting of a bill to give effect to the committee's proposal.

We ought to proceed as a committee and have the debate in the chamber. In a sense, the ball will then be in the Executive's court. If it says that it will incorporate our proposal into whatever it is introducing, the matter would then be out of our hands, regardless of the timetable. Because of that, it would be best if we insisted on progressing the early aspects of this matter and at least get as far as a full committee-initiated debate in the chamber. I think that standing orders say that, if the Executive agrees to take the proposal on board, we will not proceed with it. In effect, we would have forced the Executive to act but, once we had done so, the matter would be out of our hands. I feel strongly that the committee should initiate a debate in the chamber, as that will send the strongest possible message to the Executive that it must take action. We can use that debate to argue about the timing.

I have a question about standing orders—I do not have a copy of them here. If the Executive decided to follow the committee's suggested route and to incorporate our proposals in forthcoming family law legislation, would there be a time limit? Could the Executive just say that it would introduce legislation and then drift for years? I am interested to know whether there would be any trigger if the Executive did not do anything.

The Executive has to commit itself to introducing an Executive bill, but standing orders do not mention a time limit. Perhaps that issue should be referred to the Procedures Committee; under standing orders, if the Executive commits itself to introducing a bill, it is not required to set a time limit for doing so.

We have to hear what is on offer.

I cannot make a decision when I meet Jim Wallace next week. I will have to bring the proposals back to the committee.

It may turn out that the issue is one of timing rather than anything else.

I, too, want to hear what Jim Wallace has to say. I am not convinced that the matter should be covered in a family law bill, but I am willing to keep an open mind about the question.

Maureen Macmillan should make it clear to the minister that our proposal does not need to be incorporated into a family law bill; indeed, that might be misleading, as it could make the proposal sound more prescriptive than it is intended to be.

That is the position under standing orders. Maureen Macmillan's meeting with Jim Wallace will not take place before the committee meeting next week, so we will put the issue on the agenda for the following meeting, so that she can report back as soon as possible.