Item 2 is the second evidence session on the Domestic Abuse (Scotland) Bill. The bill has been introduced by Rhoda Grant MSP, who is attending this morning’s proceedings. Our first panel of witnesses is from the Law Society of Scotland and I welcome to the meeting Lesley Dowdalls, from the family law subcommittee, and Katie Hay, who is a law reform officer. I particularly welcome Ms Dowdalls on what is, I think, her first appearance before the committee.
The difficulty is that there has been no great take-up of the remedies that are available for breach of the existing orders. Obviously, the bill is trying to address that situation, but I think that it raises other issues related to certain practical difficulties that solicitors who are trying to deal with breaches of interdicts and achieve some kind of practical outcome in these matters are finding on the ground.
Do you have anything to add, Ms Hay?
No.
Will removing the course of conduct requirement benefit victims of domestic abuse? Will the definition of harassment still cover an element of recurrence even with the removal of that element and, if so, will section 1 change the law in practical terms?
The proposal to remove the course of conduct requirement is sensible, but it will depend on the interpretation of harassment by the sheriff or judge listening to the application or case.
I think that the unanimous view around the table is that, although we agree that we should be doing everything that we possibly can to help women, in particular, who find themselves in this position, there is evidence to suggest that the present legislation is pretty impotent. Obviously, that concerns us. Will the bill significantly improve matters in that respect?
As I have said, the difficulty is with the uptake of remedies to deal with breaches of interdicts, but I suppose that the starting point should be the actual application process for an interdict. When a person seeks advice on raising interdict proceedings, all sorts of practical considerations have to be taken into account and dealt with, not least the question of how the action will be funded. However, although many seek legal advice on interdicts and on how to deal with unacceptable behaviour, they do not all necessarily want to go through the process of obtaining one. For instance, they might not want the person they are seeking the interdict against to receive a copy of the proceedings, to be given the opportunity of arguing against the application and so on and, once the procedure is explained, people often decide not to embark on it.
However, the bulk of problems will be picked up by the criminal law through breach of the peace or assault.
Yes. A robust approach is now taken. In general, offenders are removed from the situation quickly and put in custody immediately. From there, I understand that the prosecution service has strict rules about how offenders are dealt with. That robust approach represents a complete change in the past few years.
I have a supplementary question on the future element. I will develop your point. The change in section 1 is partly about taking away the need for a repeat incident. What will that mean in practice? The obtaining of the order would have to be reasonably justified and harassment has an on-going element to its definition. Would the proposed change make any difference in practice?
In practice, the process would be easier, because we would not have to say immediately to someone, “I’m sorry—one incident isn’t enough.” That would be an immediate benefit. The interpretation of harassment will always be a bit of an issue.
I am getting at what else would be needed to obtain an order, if section 1 were implemented.
Are you asking what other conduct would be needed?
Would one incident be enough to obtain an order, or would one incident with other evidence of an on-going situation be needed?
My interpretation of section 1 is that one incident would be sufficient, as long as the conduct in that one incident was sufficient to constitute harassment.
I accept that but, because the concept of harassment includes the idea of an on-going element and because the court has a duty to consider whether an order is necessary, would it be necessary to have something more than one incident or to have at least one serious incident?
My interpretation of the bill is that that would not be necessary, but it certainly would be preferable in arguing the necessity for an order. Part of the approach is to show an intention to continue to act in the fashion that has been described. That is always the way with interdicts, too—it is argued that the conduct can be reasonably expected to continue unless interdicted.
My point is that some evidence of the intended future conduct would be needed, notwithstanding section 1.
That would be for the courts to interpret—the position would be set out in case law that arose thereafter. At this point, it is difficult to say how the issue would be dealt with.
You mentioned the impact on legal aid, which James Kelly will pursue.
Section 2 amends the Legal Aid (Scotland) Act 1986 to widen the provisions for granting legal aid in domestic abuse cases. The tightening budget and other issues that could have an impact on the legal aid budget increase the focus on those proposals. Would removing the financial eligibility test for civil legal aid in cases that involve domestic abuse represent a good use of available resources?
The suggested provision is laudable. I understand why it is attractive, because it would ensure that people were not barred for financial reasons from raising proceedings. However, the test to obtain legal aid is not simply financial; it involves merits, too. I understand that removing the merits test has not been suggested. That means that, regardless of their financial position, not everyone who wants to proceed with interdict proceedings will be able to do so, because they will still have to satisfy the Scottish Legal Aid Board on the reasonableness test and the probable cause test. The issue is not simply financial.
Do you think that the terms of section 2 are appropriate?
The point follows on from your initial question. In addition to the point that Lesley Dowdalls raised is the issue of whether the finances that are made available will actually increase solicitors’ take-up of work in this area. There is a potential issue from that perspective. In its evidence, the Family Law Association referred to the fact that having access to the funds does not necessarily mean having access to the remedy.
Looking at the matter from the point of view of the victim, is it appropriate for victims of domestic abuse in certain circumstances to pay to take action to be protected from such abuse?
They would not have to do so in a perfect world, but the difficulty is that there are financial constraints on the legal aid budget, which has to be distributed among all sorts of legal remedies.
Is the bill sufficiently clear on whether section 2 applies to any action that includes a crave for protective orders, such as those concerning divorce, residence and contact, or whether it applies only to stand-alone actions for protective orders?
My reading of the bill is that it would relate only to stand-alone orders. It specifically refers to the Matrimonial Homes (Family Protection) (Scotland) Act 1981 and the Protection from Abuse (Scotland) Act 2001. If there is to be free legal aid in relation to certain craves in an action, but not to others, that will cause great complexity.
I will continue on the same theme. In previous evidence we heard from such organisations as ASSIST—the advice, support, safety and information services together project—which indicated that the declining number of solicitors who are prepared to take on cases in this area was a barrier to justice. To what extent do non-financial barriers, including that shortage of solicitors and the lack of probable cause, prevent access to justice in domestic abuse cases?
I cannot comment in relation to any statistics on that. However, as Katie Hay has already said, the point is not just about the availability of legal aid; there is also an issue about the level of remuneration relating to cases of this type.
How does the Law Society support solicitors who find themselves in a position in which they cannot take on cases? What guidance and support does the society offer?
Obviously, the society cannot compel solicitors to take on work. However, we have a criminal legal aid negotiating team and a civil legal aid negotiating team. Certainly, the criminal legal aid negotiating team is involved in a good tripartite working relationship with the Scottish Government and the Scottish Legal Aid Board. The civil legal aid negotiating team was set up more recently and I do not think that it has established that relationship yet. All that the society can hope to do in such circumstances is improve conditions for legal aid solicitors within the available means.
Moving on a bit, if the financial eligibility test for civil legal aid in cases involving domestic abuse is to be removed for pursuers, would there be an obligation under human rights legislation to remove the financial eligibility test for defenders, too?
Yes. The perceived approach of the Legal Aid Board and, in my experience, its actual approach have always been to attempt to provide equality of arms. We could not have a situation in which defenders were not given the same rights as pursuers to access legal representation.
I want to pursue the question of options because there are a number of financial and other implications. I presume that the vast bulk of the orders are interim orders. Am I right that very few cases go to proof on the issues that we are discussing?
Yes.
So the issue is about access to justice in relation to emergency orders primarily. I wonder whether there are other ways to get at the issue. Are there perceived infelicities in the operation of the emergency legal aid arrangements? It has been suggested that a woman who is involved in a domestic dispute might be put out of the house, might not be able to go to work temporarily because she is upset, and might not have access to the joint bank account. Although resources might be lurking about, they might not be immediately available to her, and the legal aid contribution that eventually emerged might be a deterrent to her proceeding. Are there ways in which we can improve the situation without necessarily going down the line that is proposed in the bill?
That is a matter for the Scottish Legal Aid Board to consider. However, at the moment I cannot see a way of getting round the requirement to satisfy the Legal Aid Board about financial eligibility. If the test is changed in relation to domestic abuse proceedings, other equally important proceedings will need to be looked at too—I am thinking about children’s referral proceedings in particular. There are other important family actions, never mind other types of action, that require a financial eligibility test.
That was the other point that I was going to ask you about: does the Law Society think that domestic abuse, important though it is, should be picked out from access disputes and given particular treatment? Perhaps the things that you have talked about or cases that involve fatal accidents or racial abuse should also be included.
The research that we carried out into civil legal aid in 2007 identified family law as a problem area. It is difficult to identify areas within family law that take priority over others.
All such areas compete in terms of importance—they are all important and relevant to the people involved.
We now need to look at section 3, on the breach of interdicts with powers of arrest. Bill Butler will pursue that matter.
Good morning, colleagues. You will know that the evidence supplied by Scottish Women’s Aid states that women currently have no confidence in the ability of interdicts to tackle domestic abuse. Does the Law Society believe that existing mechanisms for dealing with breach of interdict in domestic abuse cases are adequate?
The evidence suggests that they are not, because there is such a small take-up rate in relation to breach of interdict.
I thought that you would say that.
Yes—as long as the criminal standard of proof, as opposed to the civil standard of proof, applied. That issue has been addressed in the Law Society’s submission.
Indeed. That leads nicely on to my next question.
I understand that response, but the difference in those cases is that it is not the victim but officers of court who carry the responsibility of reporting a breach. The orders that you mentioned tend to follow on from a court order. For example, if there is a breach of a community service order, a community service officer will report that breach. In effect, they are an extension of the court—I cannot remember the word that I am looking for. They are court officials whose role is to monitor compliance.
It would be performed by someone—
It would be the victim—the person who obtained the order—who would monitor compliance and who would provide the only evidence that was required to establish that the order had been breached.
So you would say that the argument of Scottish Women’s Aid is understandable but that, in the Law Society’s view, it does not bear scrutiny.
We discussed the issue earlier. Any decision to relax the rules of corroboration would be one for someone considerably above my pay grade or that of Lesley Dowdalls. I do not think that we would suggest relaxing the rules of corroboration.
It is a policy matter. I was simply asking for the Law Society’s view, which you have expressed. You have nothing further to add.
No.
Thank you very much.
There is a slight difference in emphasis between what you have said this morning and what was said in the submission, which I see is dated 13 September. It said that the society’s criminal law and family law committees
Yes, that is our official line.
It is the official line.
Yes. I think that I said the same thing; it is just that I said it in a slightly less legalistic and definitive way.
That is fine. Your position on the matter is reasonably clear.
Without a doubt.
Your submission also mentioned the law of contempt of court, which carries a significant criminal penalty. Is that not adequate to deal with situations of the type that we are discussing?
It ought to be, but experience seems to be that it is not used very often. Contempt of court ought to be an appropriate remedy if there is a breach of a court order.
It seems that it could save people from having to go through quite a convoluted process and could bring about a much more immediate remedy for the pursuer.
Yes. We discussed earlier that, when a defender is brought before the court and the sheriff has to consider matters, if there are to be no criminal proceedings in situations in which the person can be kept in custody for two days, at that point contempt of court could be considered. I do not know why that does not happen.
The contempt that would be complained about would be the contempt of a judgment that was made by the sheriff who heard the original case. Since the law of contempt of court was changed, that sheriff cannot hear the case and has to remit the matter for consideration elsewhere. Could that be some of the thinking that has led to the situation?
The legislation that allows for the two days was introduced before the review of contempt of court. In practice, it is unlikely that the sheriff whom somebody is brought before will necessarily be the sheriff who granted the original order in any event. That is not always the way in which it works. It could be a different sheriff who hears the case.
I hear what you say, but there has been a thread of evidence throughout the process that there is a particular difficulty in the north of Scotland, where there are jurisdictions in which there is only one sheriff. That could be an issue, could it not?
Yes, I can understand that it could be an issue in remote locations.
I am just trying to tease out the difficulties that could arise.
I do not know why contempt of court is not used more often in such proceedings. Contempt of court is entirely at the discretion of the sheriff who hears the circumstances. That is perhaps a matter that the Sheriffs Association could address.
We might pursue that in other directions.
Good morning, ladies. Is the current common-law definition of “domestic abuse” adequate? Do we need section 4?
The Law Society response makes it fairly clear that there are concerns about the definition in section 4.
I will turn the question round, then. There may be concerns about the definition in section 4, but can we start by considering whether the current definition in the common law is adequate? Are there problems with the common-law definition that we need to address, hence we need to get section 4 right, or are there no problems, hence we do not need section 4?
On a practical basis, as a practitioner applying the law, I do not think that there is necessarily a difficulty. People understand what is meant by “domestic abuse”. I wonder whether the intention of section 4 is to broaden the definition so that it covers more than is generally understood. In general, people understand what “domestic abuse” means and have a fairly clear understanding of whom it relates to.
I want to pick up on the issue of minorities. In some ethnic environments, there are extended families, different family structures and other ways of living. Our law is gradually catching up with that, although perhaps too slowly. Are there issues there that section 4 should address, or are those matters covered adequately by the common law?
It depends on whether there is an acceptance of what the common-law definition is. The dictionary definition of the word “domestic” is just that it relates to the running of a home or to family relations. That is broad enough to cover the kind of situations to which your question relates. It covers a broad enough family relationship.
You feel that the courts understand the nature of the extended family, perhaps involving the relationships of nephew and niece, and the circumstances in which the whole stratum constitutes a family, who may well be under one roof for some of the time but not all of it. However, that does not cause the law any complications, as you see it.
It might be an oversimplification to say that the issue does not cause any complications, but if there is a general acceptance of a definition of “domestic”, that should be broad enough to encompass the situations that you anticipate. Obviously, as happens with all statutory law, thereafter there comes case law in decisions about how the definition is to be dealt with.
The family law sub-committee has been involved in the development of the Forced Marriage etc (Protection and Jurisdiction) (Scotland) Bill and I know that cultural issues were given a great deal of consideration in the lead-up to the publication of that bill. If the Domestic Abuse (Scotland) Bill wants to deal with domestic abuse in a wider sense that encompasses different cultural situations, such situations may need to be given more consideration. I do not know whether that has been taken into account in the drafting of the bill. Such further consideration might be helpful.
That seems to suggest that you think that the definition in the bill might be too narrow.
I do not know whether it is too narrow. Having a broad definition that you can fit a lot into is a double-edged sword. All I am saying is that if you are going to have a broad definition, you at least want to be reassured that it has been tested for several types of situation.
A question that arises in relation to many cultures is whether domestic abuse should be defined widely enough to cover the intrusive behaviour of—dare I say it—mothers-in-law and folk who might be living under the same roof. Domesticity has an element of being under the same roof—roughly anyway. Is the definition before us wide enough to cover that? I fear that it is not. Does the common law provide us with a way forward or do we need to widen section 4? I guess that that is the question that is exercising the committee.
Is your concern about the definition of “abuse” or about the definition of “domestic”?
It is about the adjective “domestic”, rather than about “abuse”, but I take the point that that might cover different issues.
Yes, because “abuse” is given quite a specific definition, which seems to cover most types of conduct that would give rise to a need for intervention.
I think that the issue is the definition of “domestic”.
The “Oxford English Dictionary” definition of “domestic” seems to cover family in the wider sense. I suppose that definition would be required as case law developed, which is always a difficulty. If the definition of “domestic” is in terms of family relations and the running of a family home, that might be sufficient.
Am I entitled to draw the conclusion that you are suggesting that we retain the definition of “abuse” as a very long string but take away the definition of the relationships and “domestic” and allow the common law to work that through? Is that where we have got to?
On a practical basis, that would be my approach. I think that it would be a better approach.
We discussed the fact that, although the bill has only five sections, when we start scratching the surface, more and more issues seem to arise. One of the concerns is that, although previous witnesses said that they did not want a definition to be in the bill, if you are going to provide legal aid for domestic abuse, you will have to limit the definition somehow. If you have an unlimited statutory definition, that could give rise to difficulties in that sense.
There seems to be an absence of case law in relation to these definitions. I remarked to Mr Butler that the most abused word in the English language is in fact “abuse”, which can range from fairly mild verbals to quite serious physical and sexual violence at the extreme end of the scale. We do not have a legal definition of “abuse”. “Domestic” can be taken to refer to the narrow confines of what happens in a private dwelling-house or to the wider circle including a situation where, for example, a woman who has been in a relationship with a man is subjected to pressure well away from the family home. We do not have any tight legal definitions, do we?
Not of “domestic”, no.
The family law sub-committee has also been looking at the Children’s Hearings (Scotland) Bill, which is being considered by the Education, Lifelong Learning and Culture Committee. That bill proposes that domestic abuse should be one of the grounds for referral, but we have suggested that it should not be a stand-alone ground as we are concerned that, because of the lack of statutory definition, it might detract from the child’s position at the centre of proceedings. It might give rise to a difficulty of interpretation, so we have suggested that it should be moved to something to do with parental—
Lack of parental care.
Exactly. That would give more of a context and help to remove some of the interpretational difficulties.
It perhaps makes our task more difficult that there has not been any case law on the matter. That is unfortunate, but we have to proceed as accords.
I will ask a couple of questions, if that is okay.
Yes. However, if there is a requirement to satisfy the necessary test, I suppose the Scottish Legal Aid Board would be entitled to say, “If this person is subject to a bail order at present, you don’t need an interdict.”
But if somebody pleads guilty, bail orders tend to fall at that point.
Yes, unless sentence is deferred to a later date. That is the difficulty that we come to in the end when the case is dealt with and finally disposed of.
Okay. Moving on, I am giving a great deal of thought to actions with multiple craves, because it seems unfair that those who want to deal with other things are not offered the same protection under the bill. I have spoken to some folk in the legal profession who believe that it would be possible to negotiate a block fee when the work to deal with the interdict is part of an action with multiple craves. The block fee would be agreed by the Scottish Legal Aid Board and your negotiating panel.
I can see why it has been suggested as a way forward, but I see problems with it. If an action is raised and there are a number of interim craves that require to be resolved—not just protection from abuse, but contact, residence or other interim matters—they will all be dealt with at one hearing. It would be really difficult to separate out what was covered by the block fee and what was not.
But what if the block fee were a finite amount and did not require to be separated out? I do not envisage a legal accountant going through and separating it out, as that seems hugely complicated and probably costly. It could be agreed that a block fee—the figure that has been put to me is £500—would cover part of an action.
There are two issues with that. One is that a block fee of £500 would be exceptional because nothing else attracts a block fee of anything like that amount of money. The other is that, when someone submitted an account for the other matters, the Legal Aid Board would be able to say, “You were there for the hearings in relation to the interim interdict or whatever other protective measure and you were already paid for that under a block fee, so we are not paying you for the additional matters that need to be done.” The hearings would all take place contemporaneously so, if there were issues to do with children or other interim matters, they would all be dealt with at the same time.
That would be the case only when someone already qualified for legal aid. If they did not qualify for legal aid, they would not be claiming.
I would anticipate that, if someone did not qualify for legal aid, they would not raise all the proceedings as one action. If they were entitled to legal aid without means testing in relation to the protective measures, that would probably be a stand-alone action and they would need to consider their funding position if they wanted to raise any other proceedings.
Sorry, I know that my questions are coming out of the blue, so you have not prepared for them. If someone was granted legal aid, there would be no problem with that, because not only would their interdict be covered but so would all their other actions and they would go on as normal.
The situation would be the same as it is now.
The only people who are really affected are those taking out multiple craves who are not covered by legal aid, because they would be looking for the protection that is covered by legal aid in the bill but would not be entitled to any further legal aid for the other things that they seek. The anomaly in the system relates to the people who fall through the safety net that I am trying to create or who are forced to take out a separate action for protection that does not run alongside their other craves, which might not be helpful either. In a way, the Legal Aid Board could not say, “We have already given you legal aid for this,” because it would not have and those people would be getting legal aid only for that part of the process. In that case, would a block fee be appropriate?
Yes, I can see how that would operate, but it completely contradicts the basic principle for the receipt of legal aid, which is that the recipient has no other means of financing their court action. From the Legal Aid Board’s perspective, what is proposed would represent a sea change in its approach, because it is currently not possible for someone to receive funding for part of an action and to privately fund the rest of it. It is all or nothing: either someone is privately funded or they are legal aided.
But there is nothing legally preventing what I propose from happening.
There is currently no provision for that to happen. Currently, either someone is legal aided or they are not. Obviously, your proposal would completely change the system. It is a matter for the Legal Aid Board to comment on, but it would completely change the basis on which legal aid is provided and it could give rise to other interests saying, “Hang on a second. Why is this more important than other aspects of family law or other types of action?”
As there are no further questions, I thank you both very much for your attendance this morning. Your evidence has been very useful and is much appreciated.
I apologise for the slight hold-up, but I have explained to the witnesses the reason why we had to suspend for longer than we normally would. The next panel is Assistant Chief Constable Iain Livingstone, of Lothian and Borders Police, who is representing the Association of Chief Police Officers in Scotland; Christopher Macintosh, principal depute of the policy division of the Crown Office and Procurator Fiscal Service; and Anne Marie Hicks, deputy divisional fiscal for the east division, Glasgow, of the COPFS. Mr Livingstone has been here before. I welcome Ms Hicks and Mr Macintosh. We will move straight to questioning.
The aims of the bill are to increase access to justice and to allow police and prosecutors to provide a more robust response to breach of civil protection orders. How effective are the existing mechanisms for dealing with domestic abuse? In more general terms, will the bill increase access to justice for victims of domestic abuse?
We support the bill’s purpose of putting some compliance measures behind the civil process, in terms of powers of arrest and creating a specific offence. The recently introduced Forced Marriage etc (Protection and Jurisdiction) (Scotland) Bill has a similar intention in that the Scottish Parliament is seeking to create an offence with a power of arrest, to give that level of compliance as a statement of intent.
Although policy is really a matter for others, the criminalisation of breach of interdict would not provide the Crown Office and Procurator Fiscal Service with any difficulty. From my experience as an operational prosecutor, I can see that that would increase access to justice for victims of domestic abuse.
I currently head up the domestic abuse unit in the Glasgow procurator fiscals’ office. The situation can be problematic when there is not sufficient evidence for a separate criminal offence. A robust approach is taken by the police and by us so that, when there is evidence of a breach of the peace, an assault or some other offence, we have well-established ways of dealing with that—we can prosecute and it is generally fine. The difficulty arises when there is a civil interdict.
Thank you for that. There seems to be general agreement that the bill would improve the current situation.
That is a civil issue, so that side of it would not affect us. However, it is mirrored with the changes to the criminal non-harassment provisions in the Criminal Justice and Licensing (Scotland) Act 2010, which remove the requirement to show a course of conduct and allow for there to be one incident.
Would the incident have to be serious before it was acceptable, and does the bill specify how serious the incident would have to be? How would an incident be judged to constitute harassment?
Normal standards of civil evidence would presumably apply, in which the judge has to make a decision according to the rules about whether the barrier has been reached. It is important to realise that we are talking about just giving someone a protective order. We do not require corroboration of an incident to give somebody a protective order. The breach of that order would of course require corroboration.
In general terms, the police service supports anything that aids victims of domestic abuse. Experience tells us that the reporting of domestic abuse may be delayed. There may have been incidents and suffering prior to an incident being reported to us or to other agencies. As was indicated earlier, the circumstances of each case would still need to be established in front of a sheriff. We would not support the continuation of the need for a course of conduct. An order could be granted on a single incident because our experience shows that, often, victims have suffered before coming forward.
That is interesting. As you say, it is likely that there has been a build-up before someone decides to call the police. They may have evidence of previous conduct and witnesses to testify to it. In practical terms, although it is the first reported incident, it might be easy to show that there had been a course of conduct. Is that a fair presumption?
It is fair to say that it is likely that there would have been a build-up to the incident, but it is not necessarily fair to say that it would therefore be easier to prove it. As Christopher Macintosh said, we are talking about a single witness in a civil process. If the order, once granted, was breached, that is where the police would come in.
I come back to something that Ms Hicks said about an application to get someone locked up for two days. I know what the two days means, but if the first day happened to be a Friday, would the person be out on the Sunday, before there was any possibility of getting back in court on the Monday, or do weekend rules apply?
I understand that Saturdays and Sundays are excluded from that. The person would be brought to court the next lawful day, and the two days would be two working days from that day. If they appeared in court on a Friday, they would be kept in until the Tuesday.
Saturday and Sunday are known as dies non. I have been through that particular process before.
Section 2 would remove the financial eligibility test for civil legal aid in cases involving domestic abuse. In other words, there would be no means test and civil legal aid would be given regardless of the person’s disposable income. What is the panel’s view on the provision?
The Crown Office does not have a view on that. It is a policy matter, on which we would not offer an opinion.
Do the police say the same thing?
I spoke with colleagues and other chiefs before the meeting. We are keen that there should be as much opportunity as possible to access the law, but how that is delivered, in relation to the intricacies of civil and criminal legal aid, is probably outwith the police’s remit.
I have two other questions on the same area, but the witnesses might not feel able to comment. First, do you have a view on the overall cost to the legal aid budget of enacting the provision and whether that would represent a good use of available resources in the current economic climate? Secondly, if the legal aid budget were to be opened up and income disregarded in relation to the offence that we are considering, would people clamour for the same approach to be taken in relation to other, equivalent offences?
If the witnesses have no opinion, feel free to say so, but we require an answer of some sort.
There is a limited budget and there are many genuine and vulnerable individuals who require access to civil and criminal legal assistance—earlier the committee talked about honour-based violence and other matters. If there is to be a limited fund of money, as is clearly the case with the legal aid budget, there must be a level of consistency, because the suggestion that some victims are more worthy than others would put people in an invidious position. Such an approach would be difficult to pursue in the police’s daily interaction with communities.
I do not have figures on the number of civil interdict applications that are made, so I have no idea what the volume of applications would be or what costs would be involved for the Scottish Legal Aid Board. I am a huge supporter of anything that will enable victims of domestic abuse to get protection but, like Mr Livingstone, I am conscious that there are probably equally deserving causes. It is for the committee to determine what is appropriate.
On a connected but separate issue, SLAB and ASSIST said in evidence that there are non-financial barriers to access to justice in domestic abuse cases, such as the shortage of solicitors who are prepared to act and lack of probable cause. To what extent do such barriers, as opposed to the financial aspect, cause difficulties in taking cases forward?
I do not know how many solicitors in Glasgow, for instance, do civil legal aid work. There is anecdotal evidence that a number of years ago some solicitors refrained from taking on such work and restricted their practice to criminal work, but I cannot say how many have done so or how difficult it is for people to engage a solicitor.
Have you no knowledge or experience of difficulties in bringing forward domestic abuse cases because of the non-financial barriers that SLAB and ASSIST identified?
No. In criminal matters, with which we deal, there is no difficulty, because people get criminal legal aid and the rules are different. There is no barrier to an accused person engaging a solicitor on the criminal side. The civil side is different, but I do not have a feel for that.
Mr Livingstone, what is your experience?
In the past five, 10 or 20 years, there has been a significant change, in both society and the police service, in our attitudes to domestic abuse. There have been a number of cultural barriers. We were conscious of how victims were treated in the criminal justice process, in which the accused person often has legal representation. In the past, there was not the right level of support in the criminal process from the voluntary sector, the police and the fiscal service. In recent years, we have made an absolute commitment to remove from the criminal process barriers arising from lack of support or the formality of the process, to get some equality of arms.
We turn to section 3, on the breach of an interdict with power of arrest.
You know that section 3 of the bill makes it a criminal offence to breach an interdict with power of arrest in domestic abuse cases. What is your view of existing measures, such as those relating to contempt of court? Are they adequate to deal with breach of interdict in domestic abuse cases?
Probably not, for the sake of clarity and given the complexity with which the Crown is faced when arresting people. We support the creation of a criminal offence in situations where an interdict is breached. We have a power of arrest, but the position would be much clearer to operational officers and the wider public if they knew that breach of interdict constituted an offence. Although there is good work in practice and the issue is mostly a challenge for the Crown, I support the introduction of the provision, which makes it clear that breach of interdict is an offence for which people can be arrested.
That is a clear answer.
The existing provisions are slightly anomalous. Normally, the procedure is for a prosecutor to put an accused person into court. The procedure for breach of interdict is slightly different. We put a petition before the court and must contact the pursuer’s solicitor beforehand. In my experience, few cases end with a positive decision that someone should be kept in custody to enable breach proceedings to be carried out.
You are saying that, in practice, they are useless.
I am not saying that they are useless—it is not for me to say that. However, in my experience, take-up of such proceedings is limited.
So they are of limited use.
I am normally the person who is accused of putting words into people’s mouths. Yes, they are of limited use.
I try my best.
I agree with Christopher Macintosh. If we cannot prove a criminal offence for some other circumstances, the powers are limited. A person can be remanded for two days, at most. By its nature, civil procedure is cumbersome.
So your view is that this aspect of the bill relates in a much more realistic way to what actually happens in the real world.
I suppose it would give the interdict some teeth. There is an interdict and the power of arrest—it is a serious matter. Someone can be arrested by the police and brought before the court.
You have just taken the next question out of my mouth. Obviously, you agree with Scottish Women’s Aid that this is
Whether or not it is entirely toothless or ineffectual, it could be made more effective. Certainly, criminalising the offence could improve things.
I gave you the opportunity to be more lawerly.
I always take that opportunity.
Perhaps I should not have asked the question.
Again, whether rules of corroboration were required would be a policy decision for others. I have heard the arguments that have been put forth previously, such as the argument about having someone akin to a court official in a single piece of evidence offences, but there is also the argument—it is in the same direction—that when we are talking about breaches of these orders, we are talking about people who have already been convicted of a criminal offence on corroborated evidence. If the proposal is to be seriously considered, we are talking about convicting someone of a criminal offence on one piece of evidence. These are two entirely different matters.
So you would have concerns.
I think that we would have concerns.
Do you agree with that, Miss Hicks?
Yes, I do.
So we should have that safeguard.
Yes.
Do you have anything to say on the matter, Mr Livingstone?
We would not have any objection to including a requirement for corroboration in terms of the creation of the offence. Clearly, our duty is to find the corroboration. In terms of the law and our practice, we know that a more flexible and open approach is needed. Corroboration can be found by way of general circumstances, demeanour of the victim and so forth. If the consensus is that corroboration is a necessary safeguard, we will have no difficulty in working within that. Corroboration is a principle of Scots law.
I am grateful, Mr Livingstone. I should have asked the question of you earlier.
We already get these cases. At the moment, we put them into court on petition. There are no resource implications for the Crown Office in terms of the bill as drafted.
I was hoping that you would say that. Thank you, Mr Macintosh.
You might find it rare that police officers are not demanding more resources for new legislation—
Not rare, Mr Livingstone, unique.
I had a discussion with colleagues before I came here today—we are all discussing the current situation—and our view was that we are already arresting people and seeking compliance. Domestic abuse is a primary, key priority for all operational police officers in Scotland. Therefore, creating a criminal offence just provides clarity.
I am obliged.
I want to pursue two further aspects. On corroboration, am I right in thinking that the vast bulk of, if not all, the breaches of interdict would be breaches of interim interdict granted on allegation, rather than after a proof in the court?
It varies. I have certainly seen breaches of full interdict, but a lot would be breaches of interim interdict.
The full interdict—at least after a proof—would be a number of months down the line, so would not a breach of full interdict be relatively unusual?
That is not necessarily so, because some incidents can go on for a long time after. We receive both types of case.
Nevertheless, would the bulk of what you would proceed on be breaches of interim interdicts?
I do not know, to be honest. I would need to look through the cases: I have seen both types. Quite a large proportion would be breaches of interim interdict, but I do not know whether it would be the bulk of them.
On the two days’ imprisonment and prosecution, imprisoning the defender for two days has the advantage of getting them out of the house and therefore provides a minor breathing space. However, as you rightly said, there is the question of what happens thereafter, the lack of bail conditions and so forth. Would that make a difference to prosecution practice? It seems to me that if you are arresting people and following the two-day arrangement, you would not necessarily do it in every case, but in cases in which you felt that there had been a substantial breach of the interdict. The power of arrest is a power, not a duty, is it not? Does Assistant Chief Constable Livingstone think that, if section 3 of the bill were passed, there would be a difference between the prosecution’s approach in relation to the number of cases that are dealt with under the current two-day arrangement and its approach to those that would be dealt with under the new arrangements for breach of the order?
Robert Brown’s point that the power of arrest is a power rather than a duty is right. However, in practice, over the years since the current legislation came into place, arrests have de facto become mandatory if there is sufficient suspicion. Universally across the country, the individual who was in breach of an interdict would be remanded in custody for presentation in court the next morning. Thereafter, the complexity of the civil process coming up against the criminal process is a matter for the Crown. In truth, although there is only a power of arrest, if there is sufficient suspicion, the police would always utilise that power and bring the individual before the court. Our position is that the creation of a criminal offence would provide clarity and probably makes the Crown’s position easier in that the behaviour would fall under the criminal procedure, as opposed to its falling into the quite complex mix with which my colleagues have to deal.
I think that I am right in saying that you operate under either the Lord Advocate’s guidelines or internal police arrangements to do what you have described, because of the enhancement of the domestic abuse provisions, which you talked about before.
Absolutely. The joint Crown Office and ACPOS protocol drives all our business. It has definitely come from the leadership of the Crown Office, and all the police service is united behind it. What happens after we have arrested an individual and they have come to court is more complex than I have been aware of.
We are dealing with circumstances in which you would not be justified in charging someone with breach of the peace, assault or something else. There is no criminal offence—just the breach of the order. Will you elaborate on the sorts of circumstance in which the approach has been helpful? It would be useful for the committee to get a flavour of that.
The arrangement helps in dealing with an individual’s presence. The person might be entirely compliant and perfectly polite. There might be no evidence of disturbance or assault and no witnesses, and the complainer might be semi-reluctant or reluctant. However, because the court order exists and has specific terms, we enforce the interdict and report the matter to the Crown Office.
At the moment, the Crown does not decide on the two-day arrangement. If the bill were passed, you would have to decide whether to prosecute when you received a report. Do you anticipate any difficulties or changes in practice or numbers as a result?
I do not anticipate difficulties. When the police make a report to the procurator fiscal, he examines it in the normal way to identify a criminal offence. Only when he decides not to take criminal proceedings does the legislation operate. If the fiscal does not take criminal proceedings, the legislation imposes on him a duty to put the accused before the court on a petition: he has no discretion on that.
Following the police line, your approach would be to prosecute if the evidence were sufficient from your technical point of view to justify that.
Yes. That would be the preferred course of action.
Good morning—it is still morning. As with the previous panel, I will ask about the definition of domestic abuse in section 4. Do we need that section or is the current common-law definition of domestic abuse adequate?
I understand that there is no common-law definition, although we certainly have definitions with which we work. The Crown Office and Procurator Fiscal Service and ACPOS protocol on domestic abuse contains a definition that is based on the Scottish Government’s definition of domestic abuse, which is clearly understood and well worked with.
Can I challenge that? My doing so is a risky business when I am dealing with someone who is as experienced as you are. If a court issues an interdict for a breach, surely the court would have defined that breach, so it does not matter what it is, as long as the court is happy to provide that. If your concern is with the breach of the interdict, is not the interdict’s substance presumed?
If the interlocutor contains the term “domestic abuse”, that is fine, but often, it does not contain that phrase.
So, it is beholden on the court to ensure that it produces a valid interdict with which you can work.
I am not saying that such interdicts are not valid, but if we are considering criminalising breaches of certain interdicts, we need to be clear about how we define them. What interdicts are we talking about? If we are talking only about interdicts in domestic abuse cases, we must define what domestic abuse is and we must have some way of telling from the interdict that it is a domestic abuse interdict.
So, if we do not have a section that defines domestic abuse, the only solution would be for the bill to refer to domestic abuse and for the court to say in every relevant interdict that the issue is domestic abuse. In other words, domestic abuse would be mentioned in both places, so you could prosecute for breach of the interdict without having to define it because the court would have done that.
Yes. If the bill makes it clear in another section what domestic abuse means then, if the court defines what is in the interdict, that should settle the matter. I am not sure that I made myself entirely clear.
I will try to get to the bottom of the matter. If I have read you right, you still believe that we need to define domestic abuse. I am still toying with the idea that, as long as the statute is about domestic abuse, if the court considered what it believed to be domestic abuse and produced an interdict that referred to domestic abuse alone, you would not have a problem with defining it in dealing with a breach of the interdict because the court would have dealt with the definition and you would not have to.
If the statute uses the term “domestic abuse”, it must define what that means because words mean different things in different statutes. If the statute said—I cannot imagine that it would—“A domestic abuse interdict shall be certified as domestic abuse by the sheriff,” that would be fine because, if a sheriff certified an interdict as a domestic abuse interdict, we would know that it fitted in with the statute. There must be some link-up within the statute so that it is clearly understood what interdicts we are talking about.
Okay. I think that I have grasped your concern.
We do not. The definition in the bill is probably broader than the one that we would use because it brings in parental abuse and other matters that we would deal with as child protection issues. A system in which there were multiple definitions of domestic abuse, as at the moment, and in which the bill’s was the only statutory definition, might cause some confusion. Rather than say simply that a case relates to domestic abuse, the alternative would be to attach the power of arrest to all interdicts under the Protection from Abuse (Scotland) Act 2001. That would obviate the need for the definition because, as you said, if the courts granted an interdict, we would just need to enforce it.
Okay. That makes it slightly more complicated than we perhaps thought.
We would still prosecute someone for an assault on a child or grandparent; we would still take the matter seriously. When we prosecute someone for a domestic abuse offence, the offence is not domestic abuse but assault or breach of the peace. We may have an aggravation that attaches to their criminal record and says that it is a domestic abuse case, but we do not have a specific offence of domestic abuse. We operate that between ourselves, the police and the courts through our definition of domestic abuse, which is generally that it involves partners or former partners.
That reflects one of the difficulties that we have when we talk about matters such as detection rates for domestic abuse. The situation is exactly as Anne Marie says it is. We record on the basis of the primary offence, whether that is assault, rape or breach of the peace. Because there is no stand-alone offence of domestic abuse, the issue is more to do with our practice.
So in dealing with legislation that is fundamentally civil, we need to get our definitions right, but as far as criminal matters are concerned, when it comes to injuring or committing other offences against an individual, the relationship between the parties is largely—in fact, it is almost always—completely irrelevant. What counts is the fact that someone has been assaulted, abused or whatever. That is the fact that matters, regardless of whether the incident is domestic or otherwise.
Yes. As far as proving an offence is concerned, the rules of evidence will apply and we will simply prosecute someone.
Some kind of definition that enables you to tick the right column so that you can get meaningful statistics and send the right messages to the public might be useful.
I will give the example of the domestic abuse court in Glasgow, which deals with incidents between partners or former partners, whether married, cohabiting or in same-sex relationships. It is beneficial to have a court that deals solely with domestic abuse. There may be ancillary offences—someone might have assaulted their wife and child—and the court will deal with them, but a domestic offence must be involved. The court has been extremely beneficial in highlighting the issue and bringing home the problems that are associated with it, and it has meant that parties such as ASSIST have been able to provide services to and work with victims. We know from ASSIST that many victims of domestic abuse have to overcome textbook symptoms. It has been highly beneficial to focus on the issue and to call it what it is.
I am sorry to pursue the definition of domestic abuse, but I am not sure that I have entirely bottomed it out in my own mind.
I understand that it covers anyone—it does not have to be a family member. It could be two people who are not related and who are suffering abuse from somebody. It is not restricted to family members or partner relationships. I suppose that that is why the restriction has been put in section 3(1)(a)(ii)—to try to bring it back to domestic abuse.
Mr Macintosh said that there is no definition of domestic abuse in the common law, because it is not a phrase that you require to consider in other contexts, in considering whether something is a crime or what the definition of that crime might be.
We have a definition in our protocol with the police under which we recognise a certain category of cases that are dealt with in a particular way. However, as my colleague said, we do not require that to take proceedings in any case.
So, for example, it is used to sort out an assault of a domestic abuse-type from another type of assault.
Yes.
Am I right that that deals with issues between partners—husband and wife, cohabitees, same-sex couples or whatever—but that it does not cover children, which you have talked about, and it does not cover, say, an offence against a mother-in-law who has the care of a child briefly? That is not regarded as domestic abuse in that sense.
The definition in the protocol does not cover that.
So the extension about
Yes.
And that would be an extension of the law. It might or might not be good, but it would be different from the current law.
Yes.
Is there a need to have particular powers in such situations? I can see that there are arguments both ways. Do you deal with episodes in which what we might describe as the fall-out from domestic problems takes place against a relative, such as a niece, auntie or mother-in-law?
My colleague will have more up-to-date operational experience on those matters.
There can be incidents that involve not only the partner but children or the partner’s mother or father. However, those are not common. Generally, domestic abuse involves just the partner. Perhaps if a friend is there, they might be subjected to abuse, too.
I suppose that, under section 3, there would in a sense be the consequence of an interdict that is taken in other circumstances and defined in the civil process, rather than by you.
As Mr Livingstone said, one option would be simply to criminalise a breach of any interdict that was granted under the Protection from Abuse (Scotland) Act 2001, regardless of who the parties were. That would certainly negate the need for a definition and make the situation simpler. No matter what is done, there is a need for clarity for the police in enforcing the law and for the prosecutor in knowing whether there is something for which there is a new criminal offence. There would be a need for clarity.
I have another point about the offence of harassment amounting to domestic abuse, under section 1, which will require prosecutors in effect to define what is and is not domestic abuse. Proposed new section 8A(2) in the Protection from Harassment Act 1997 states:
That would be a civil order. At present, when a non-harassment order is granted, we can prosecute for a breach of that, so in a sense there would be no change, in that we already have an offence. However, on the question of what is needed to satisfy that, it would be a civil non-harassment order and we would not be involved in obtaining that.
So, in summary, following on from Nigel Don’s point, the issue of a definition would probably not be a problem for you as prosecutors per se, but, at an earlier stage in proceedings, whether harassment ones or breach of interdict ones, the court would have to get to grips with whether it was a domestic abuse incident and what domestic abuse is.
Yes, that is my impression.
There could be difficulties for the police and prosecutors if it were not clear. If only some breaches of interdicts under the Protection from Abuse (Scotland) Act 2001 were criminal offences, the police as enforcers and we as prosecutors would need to be able to see clearly that there were criminal offences in particular cases. Otherwise, we might raise criminal proceedings where there were no offences.
Would it help you if the civil court in some way certified that the case was a domestic abuse case, regardless of the definition of that? Would it help you to clarify what you could and could not do if you had a clear statement on the interdict that the case involved domestic abuse?
There would have to be something of that sort if a distinction was drawn between some interdicts under the 2001 act and others. Otherwise, the police and prosecutors would not know whether there was an offence or not.
Thank you.
Are there any other questions from the committee? There being none, I ask Rhoda Grant whether she has any further questions.
Just one. In answer to the question from Bill Butler, everyone said that no other resources will be required if the bill is enacted and that the current use of resources will continue. Can I push you a little further on that? Given that 61 per cent of domestic abuse cases involve repeat victimisation, might there be a small saving of resources if cases are dealt with in the first instance?
There is potential for that. There would be a slight increase in the required resources if we prosecuted offences that we currently put through in a petition for two days, after which our involvement ceases. If we took a criminal prosecution, the procurator fiscal would be involved in the process for much longer. Obviously, the intention of the current approach is that we succeed and that the person turns their behaviour around or whatever. There is potential for what you suggest, but I do not know how we would measure it.
I agree. The ideal is to intervene early, as soon as we can, to protect people from harm. Working with our partners, we want to protect people even before it gets to the level of criminality. I reiterate what colleagues have said about the need for clarity, which is one of the great attributes of the current provision. Whatever is enacted, we need to maintain that clarity. There has to be absolute clarity about what domestic abuse is and a common understanding of it. We must ensure that the bill does not dilute the definition by making it too broad. As you suggest, however, there is an opportunity. The earlier and more direct the intervention, the more likely that we will not need to come back with the same intervention again.
Thank you for your attendance this morning. Your evidence has been exceptionally valuable. Inevitably, there are complexities where the criminal justice aspects cross over to the civil aspects, and some of your answers this morning have certainly helped us in that respect. Thank you once again for your attendance.