Domestic Violence
Item 3 on the agenda is the report on domestic violence. Maureen Macmillan was appointed reporter on domestic violence some time ago and has been busy working in the background on the issue. She will report back on her meetings with the Family Law Association, the Lord Advocate and Michael Clancy of the Law Society of Scotland.
I will summarise what happened at the meetings. The clerks will provide a fuller note later on.
On 2 November, I met Miss Lynne Di Biasio and Miss Shona Smith of the Family Law Association. We discussed the possibility of not amending the Matrimonial Homes (Family Protection) (Scotland) Act 1981, but instead having a stand-alone act that would give interdicts against violence with powers of arrest. The FLA believed that the Matrimonial Homes (Family Protection) (Scotland) Act 1981 was suitable for hiving off into the kind of bill that the committee might propose.
The FLA believed that the process would work in the following way. There would an initial hearing before a sheriff where previous history need not be proved, but where there would need to be corroboration of the likelihood of possible consequences. That would enable the process to deal with people at present excluded from the Matrimonial Homes (Family Protection) (Scotland) Act 1981. The first hearing could result in an interdict being granted, based on the doctrine of balance of convenience.
The second hearing, which would be held within one week, could allow the granting of a power of arrest for breach of the interdict granted at the first hearing. The evidence required would be a sworn statement from the person seeking the interdict, plus corroboration, for example, a doctor's report.
The decision on whether to attach powers of arrest to the interdict would be at the discretion of the sheriff. The FLA said that the courts were used to dealing with interdicts banning people from geographical areas, but that individuals have rights of liberty. An anomaly might, therefore, arise where interdicts were sought by persons sharing the same house. The proposed interdict could not be allowed to deprive persons of their rights under the Matrimonial Homes (Family Protection) (Scotland) Act 1981 where spouses have occupancy rights. However, the act might still be used solely for disputes where property was involved. Some review of the Matrimonial Homes (Family Protection) (Scotland) Act 1981 might have to be considered.
An interdict could be granted for a fixed period, with a built-in review period. When the powers of arrest were granted, the courts would serve notice on the person and register the power of arrest with the police. The onus for renewing the interdict with powers of arrest at the end of the fixed period would be placed on the client, who would tell his or her solicitor. The renewal of the interdict need not require a court appearance. Motions could be in writing unless the sheriff was unhappy about an aspect of the case. Intimation of the renewal would be conveyed to the police by the court. If the action were dropped, the client's solicitor would inform the courts and the police. If the action fell or was recalled, the courts would tell the police.
We went on to discuss the implications for legal aid. The FLA believe that there is an anomaly, in that family credit is considered as available income on which to base a legal aid contribution. The FLA thought that an extension of the period of repayment from 10 months to two years would be helpful, although clients often chafed when they were still paying contributions beyond the duration of the action.
The FLA believed that there was no Scottish Legal Aid Board policy on the recovery of expenses, as expenses were used as a bargaining tool by solicitors in divorce cases. The FLA also thought that there might be an increase in criminal legal aid as a result of the proposed legislation. The meeting concluded there.
On 23 November, I met the Lord Advocate. I outlined the alternatives that the committee had considered and asked Lord Hardie for his views. I also asked him to outline the implications that the possible reform of the law might have on the court system and on the procurator fiscal service. Elish Angiolini, head of the Crown Office policy unit, was with the Lord Advocate and contributed to the discussion.
Lord Hardie suggested that the anti-social behaviour orders available under the Crime and Disorder Act 1998 might usefully be extended to encompass domestic violence. I indicated that it was more likely that the committee would want to introduce a statutory freedom from violence interdict with powers of arrest, rather than pursue the original intention of amending the Matrimonial Homes (Family Protection) (Scotland) Act 1981.
When asked about the communications between police, the fiscal service and the courts, the Lord Advocate reported that integration of information systems in the criminal justice system was soon to be up and running. The clerk of the court will be able to notify the police immediately, by typing into the system, if an interdict with powers of arrest had been granted against a particular person. That would remove the onus of reporting the matter to the police from the victim of the domestic violence if the interdict were breached.
We briefly went over the procedure for obtaining an interdict with powers of arrest. In essence, the existing process for obtaining an interdict, for any purpose, would remain. However, a second hearing, usually a week later, would be required to attach a power of arrest to the existing interdict. That would, naturally, depend on the sheriff being satisfied. The clerk to the court would then notify the police of the date on which the interdict was due to lapse.
It was recommended that the sheriff be given discretion as to the period of validity of the interdict with no statutory provision stated. The interdict's period of validity could be programmed into the computer and would allow whoever accessed the system to see whether an interdict was in force and, if so, for how long. It would also flag up the end of the period and when the interdict would fall. The applicant would be given the opportunity to apply for an extension of the interdict if they so wished.
It was accepted, however, that both parties to the interdict should be able to apply for a review of the interdict, for example, by lodging a joint minute asking that the interdict be rescinded if parties had reconciled. Either party could apply for the interdict to be rescinded and a hearing before the court would be arranged. Lord Hardie would prefer that to a situation in which either party could ask the police not to act on an interdict any more.
Lord Hardie pointed out that the implications of the European convention on human rights would need to be checked. It was essential that any bill met the ECHR requirements. For example, any sentence for breach of an interdict would need to be proportionate to the terms of the interdict breached and the offence committed. It would be advisable to give the sheriff discretion as to what sentence to impose with, perhaps, a statutory maximum sentence specified.
On the resource implications for the fiscal service, Mrs Angiolini explained that the process of preparing the petition for court took approximately 1½ hours. It was explained that it was very difficult to gauge the implication that the new procedure might have on the number of cases. More people might apply for an interdict than would want a prosecution, or people might want both. It might be that offences dealt with by a prosecution could now be better dealt with by the new procedure. Mrs Angiolini said that Shona Barry, who works in the Crown Office's policy unit, had been carrying out a review of the prosecution of domestic violence cases and could include an analysis of the bill's impact.
It was pointed out that it was likely that the civil evidence requirement of proof would be sufficient to obtain an interdict. However, in order to prove a breach of an interdict, it was more likely that corroboration would be required. That would not necessarily mean that two people would have to have viewed the offence; it might be sufficient for a neighbour to have heard screams or to have comforted the victim after the offence took place. Anti-social behaviour orders do not require corroborated evidence, but breaches of such orders do, due to the fact that they can carry a criminal penalty of imprisonment. The meeting ended there.
On 2 December, I met Michael Clancy of the Law Society of Scotland. Mr Clancy asked us to note that he was not necessarily giving the views of the Law Society's council. His views would have to be ratified by the council for that to be case. Originally, the Law Society's preferred option was an overall review of family law and domestic violence.
Mr Clancy believed that we must consider how better protection from and prevention of domestic violence could be achieved. He thought that an alternative to a new bill might be enhanced penalties for breaches of existing laws—for example, when a procurator fiscal was making up a charge, it could be signified to the court that the higher range of penalties would be appropriate if there was a previous history of violence in the relationship.
Mr Clancy wondered how effective a sanction a personal violence interdict with powers of arrest would be. He believed that breach of the peace could possibly cover the personal violence situations envisaged. He acknowledged, however, that it would be difficult to prove criminal intention if the woman was simply approached and that the proposed interdict would deal with cases where a criminal offence per se had not been committed. The interdict's purpose would be to deal with situations where there was a danger of violence, which did not in itself amount to a criminal offence.
Mr Clancy wondered whether breaching an interdict and being arrested would deter someone from domestic violence any more than the threat of being charged with a breach of the peace, but agreed that it would work if police priorities were enforced in relation to such situations.
Mr Clancy said that, regardless of whether a committee bill was introduced, an integrated, multi-agency approach was essential. Police should receive enhanced guidance, awareness among social work departments should be raised, and accident and emergency services and doctors should have the ability to probe and question situations.
Mr Clancy was then asked for his views on procedures. He believed that sheriff court rules council would deal with procedures of court required for any new law. He believed that if powers of arrest were attached to an interdict, there would have to be corroboration. The interdict could be fixed for a period of, for example, a year. Mr Clancy believed that an application for renewal would require going to court to comply with the ECHR and could not simply be dealt with by a letter.
Mr Clancy believed that reconciliation attempts or meetings between the parties to discuss financial settlements, for example, could be problematic. If a man were subject to an interdict, he would be held to be in breach of the interdict if the couple had such a meeting, even if the woman had agreed to the meeting. Mr Clancy suggested that conditions could be attached to the interdict to allow for meetings in certain circumstances—by prior written agreement, for example. There could be a statutory defence to a breach of the interdict if there had been consent for the man to be in the woman's presence.
We then discussed legal aid. Mr Clancy said that it would be interesting to see how often offers of legal aid had been turned down because of the requirement to pay a contribution of up to £1,200, as payments of £120 a month over 10 months might be prohibitive. He noted that there was a pilot scheme that allowed people around two years to pay contributions. We discussed the possibility of including the provision of legal aid in the bill and wondered if the financial considerations might have implications for the bill's introduction.
Mr Clancy thought that there could be a human rights issue over access to justice, as giving a right without an opportunity to exercise it might defeat the purpose of the bill. He recommended examining the case of Airey v Ireland 1991-92, where the issue of legal aid was debated in the European Court of Justice. He also recommended that there should be a short period of consultation prior to the introduction of a bill.
I received, through the clerks, a letter from the Scottish Legal Aid Board. The letter is from Catriona Whyte, solicitor, and is headed "Representations for the Justice and Home Affairs Committee—Matrimonial Interdicts". The letter reads:
"At the recent meeting which took place between Maureen McMillan, MSP, yourself"—
that refers to Richard Walsh, senior assistant clerk—
"and representatives of the Board it was agreed that the Board would provide representations on matrimonial interdicts covering, in particular, the Board's policy and procedures with regard to special urgency applications and contribution related matters. It was agreed that we would provide you with information about the number of interdict applications which had been refused because no contribution offer had been accepted. I am sorry it has taken so long to get this information to you but I am now able to give you this statistical information. It is also my intention to provide you with details of the breakdown of interdict applications between male and female applicants. This information will not however be available until Monday 6 December 1999 but I will arrange to have this information faxed to you as soon as it is available.
In the year 1998/99, 137 Court of Session civil legal aid applications and 1,899 sheriff court civil legal aid applications were abandoned before any offer of legal aid was made. In the same year, 40 applications for civil legal aid in the Court of Session and 1,662 applications in the sheriff court were refused after an offer of legal aid had been made. One of the possible reasons for the refusal of legal aid after an offer has been made may be because the contribution offer was too high. In the twelve month period from 1 October 1998 until 30 September 1999, 92 civil legal aid applications involving interdict were refused after an offer of legal aid had been made. The contributions which would have been due in each of these cases ranged from £89 to £2,008.
In the year 1998/99, the Board received 15,709 intimations of work which was undertaken under regulation 18 of which 13,652 cases related to work which was undertaken without the need to obtain the prior approval of the Board. Not all of this work would, of course, have involved the obtaining of an interdict but these figures illustrate that extensive use is made of the provisions of regulation 18 which provides for work to be undertaken as a matter of special urgency before civil legal aid applications are determined.
At our meeting reference was made to the pilot project which the Board has been running allowing for the payment of legal aid contributions over an extended period of time. Under the pilot scheme where a contribution of between £501 and £1,200 was assessed as payable from income, this sum could have been paid over 15 months. If the requested contribution was between £1,201 and £2,100, the period of repayment was extended to 20 months. It was hoped that by allowing an extended period to make payment of a contribution more applicants would take up offers of legal aid and this should go some way to preventing the situation arising where individuals cannot seek remedies from the court simply because they are assessed as being liable to pay a substantial contribution towards their legal aid. The Board has recently agreed to recommend that this pilot project should be extended.
I hope to be able to provide you with the Board's full representations in the near future. This is a matter which is currently being discussed by Board members and once these discussions are concluded, full representations will be sent to you."
That concludes my report.
Maureen, when do you think it is likely that you will have a written report for the committee that recommends a course of action? I know that you are in the process of working towards that, but have you set a time scale?
I could probably do that by the new year, as we have all the material that we need. I can work on the report over the Christmas holiday, but I do not want to be more specific than saying that the report will be ready by some time in January.
Do members have questions for Maureen?
I would rather wait and have copies of the documents; it would be easier if we had photocopies of them. One might have wished to raise some points, but it is difficult to ask specific questions without the documents being available.
We have already agreed that we will bring the issue of domestic violence back on to the agenda every couple of weeks or so, to give Maureen and committee members an opportunity to discuss it. That allows us to revisit the issue, even if it is discussed for only 10 or 15 minutes. It will be possible for questions to be asked once we get the notes from the clerk and copies of the letters.
That is a sensible suggestion. I admit that I got lost once or twice during Maureen's report. I would like to read the documents for myself.
Maureen, how would you summarise the response that you got to the issue of stand-alone legislation?
The response was positive. There were some reservations about whether there might not be existing legislation that could be used instead, but there was certainly no antipathy towards stand-alone legislation.
Thank you, Maureen. We will circulate the papers separately and we will put the item back on to the agenda in January. We have made provision for that, even although we will have two bills at stage 2. We will have to deal with petitions and subordinate legislation and there will be opportunities to bring other matters back on to the agenda.
We will now move to the final item of the agenda, which will be taken in private, as previously agreed by the committee. I ask everyone who is not a committee member to leave.
Meeting continued in private until 11:17.