Domestic abuse is likely to remain high on the political and legal agenda - Caroline Gillespie
Scotland’s police, courts and social landlords may soon be given additional powers to protect victims of domestic abuse. The Domestic Abuse (Protection) (Scotland) Bill, under consideration at the Scottish Parliament, aims to provide immediate protection for people experiencing domestic abuse through the introduction of domestic abuse protection notices and orders (DAPNs and DAPOs).
The bill would also allow social landlords to apply to the court to end or transfer a tenancy of a perpetrator of domestic abuse to prevent a victim becoming homeless and enable the victim to remain in the family home should they wish.
A DAPN would be made by a senior police officer where the officer has reasonable grounds for believing there to have been abusive behaviour but only if immediate protection is considered necessary. The DAPN could require the alleged abuser to immediately leave a property and surrender keys. It could also prohibit them from coming within a certain distance of the property, the person considered to be at risk and any children of the household.
A DAPO could be applied for by the chief constable whether or not a DAPN has been issued. Where a DAPN has been issued, a DAPO must be applied for by the end of the next court day. An application for a DAPO would be heard on the first court day after the application is made and, if granted, last for up to two months, extendable by a further month. It could contain anything that a DAPN could, or anything else the court considers necessary for protection. Before granting a DAPO, a sheriff would have to be satisfied there has been abusive behaviour and that it is necessary to protect a person from domestic abuse.
The definition of abusive behaviour in the bill is closely based on the definition in 2018 legislation, which created the new offence of engaging in a course of abusive behaviour towards a partner or ex-partner intended to cause either physical or psychological harm or being reckless towards those consequences. The crime may be constituted by behaviour directed at a child of a partner or ex-partner or at another person where that behaviour affects the partner or ex-partner. If a child is involved, the crime is an aggravated one. One difference between the crime and behaviour which may justify a DAPN or DAPO is that the crime is committed by “a course of” behaviour whereas a single incident may warrant a DAPN or DAPO assuming the other conditions are met. Breaching a DAPN or a DAPO would also be a crime, punishable by imprisonment or a fine.
Statistics from the Crown Office and Procurator Fiscal Service show, in 2019/20, 1,065 charges for the new offence under the 2018 legislation were made (251 involving a child aggravation), with 96% leading to court proceedings. This demonstrates that the Scottish prosecuting authorities are treating charges for the new offence seriously. Statistics on the number of convictions have not yet been made available, partly because some cases may not yet have reached the conviction stage. Also in 2019/20, a total of 30,718 charges were made which were identified as being related to domestic abuse, i.e. including those for the new offence and also including those where the charge was for another criminal offence such as common assault or breach of the peace but with a domestic abuse aspect. Charges for the new offence accounted for 3.5% of the total number. The total was 5.7% higher than in 2018/19, showing the new offence under the 2018 Act is increasing the overall number of charges involving domestic abuse.
The domestic abuse bill now under consideration is at the first of three legislative stages. It will have to pass through all three before it becomes law before the fifth session of the Scottish Parliament is dissolved ahead of the election scheduled for 6 May 2021. If not, it will fall, although it may be re-introduced to the next session.
Regardless of whether the bill becomes law in the form presently proposed, the subject of domestic abuse is likely to remain high on the political and legal agenda.
Caroline Gillespie is Partner and Head of Family Law, BLM in Scotland
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