Legal Studies Research Programme
(Scotland) Act 2001
Evaluation of the Protection from Abuse
Dr. Kate Cavanagh, Clare Connelly, University of Glasgow
Jane Scoular, University of Strathclyde
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This study was undertaken to monitor and evaluate the use and impact of the Protection From Abuse (Scotland) Act 2001 (hereinafter the PFA Act). The Act was designed to afford greater protection to individuals who have left abusive relationships by extending protection to those who were previously unable to access interdicts with powers of arrest under the Matrimonial Homes (Family Protection) (Scotland) Act 1981 (hereinafter the MH Act).
- Quantitative and qualitative indicated that women are the pre-eminent users of the PFA Act.
- Civil case records of Glasgow, Stonehaven, Dumbarton and Stirling sheriff courts were examined. 123 relevant case files were identified: 31 (25%) applications for protection orders were processed in the pre-Act period before the PFA Act and 92 (75%) applications were processed in the 4 month period after the PFA Act came into force.
- In the 3 month pre Act period, 31 applications for civil protection orders were processed. 29 of the pursuers were female and 2 were male. Final outcomes were recorded in 26 applications and interim interdicts were awarded in 5. The most frequently occurring orders granted were: common-law interdicts (39%); NHO (35%); and matrimonial interdicts (13%).
- In the 4 month time post-Act period, 92 applications for protection orders were processed across the 4 sheriff courts. Of the 92 pursuers, 91 were female and 1 male and 94% of couples had separated at the time of the applications. Final outcomes were recorded in 80 applications and interim interdicts were awarded in 12. The most frequently occurring orders granted were: matrimonial interdicts (34%); common-law interdicts (23%); NHO (18%); and PFA (18%).
- There were 35 requests for PFA interdicts. The outcome of 25 of these was reported; 20 were granted and of the 5 refused, 2 common-law interdicts and 2 NHO's were granted.
- Findings from 32 women victims of domestic violence and abuse indicated that 87% had never heard of the Protection From Abuse Act. Of those eligible to seek protection under the Act, 1 was able to secure a PFA interdict and 2 reported negative help-seeking experiences. All of the 18 professionals (Sheriffs Procurators Fiscal, solicitors, police) interviewed knew of the Act, though some were less clear about its detail.
- Interviews with 18 legal professionals and analysis of court files indicated that some requests for legal protection orders do not progress past interim interdict stage. Reasons included the costs involved or the possible reconciliation between the parties.
- 16 breached civil protection orders were examined (13 NHO's; 2 PFA interdicts and 1 matrimonial interdict). 7 cases were marked 'no proceedings' and of the 9 cases prosecuted (all NHO's), 4 were deserted at trial. In 5 cases the accused was found or pled guilty. Petition proceedings were brought in respect of 1 PFA interdict and 1 matrimonial interdict.
Introduction and Methodology
The Protection From Abuse (Scotland) Act 2001 was introduced to offer increased protection for those experiencing domestic violence and abuse. Its introduction was influenced by the recognition not only that many people who were vulnerable to domestic violence and abuse were prohibited from seeking protection under the Matrimonial Homes Act 1981 (e.g. women in abusive relationships that did not involve marriage or cohabitation and same sex relationships) but also that violence and abuse often continued post separation.
This evaluative study commenced shortly after the implementation of the PFA Act. Findings are based on data gathered from 4 distinct and complementary sources: interrogation of both quantitative and qualitative data extracted from 123 official civil court records processed in both pre and post-Act time periods, across 4 Scottish courts (Glasgow, Stonehaven, Dumbarton and Stirling); scrutiny of 16 cases of breached protection orders; interviews with 18 court professionals using the new and related Acts including sheriffs, procurators fiscal, solicitor and the police; and postal questionnaires received from 32 women most likely to have sought legal protection orders.
Women's Experiences of Violence and Abuse
Quantitative and qualitative data gathered from all 4 data sources demonstrated that women are the pre-eminent users of the PFA and related legislation. Their experiences of violence and abuse perpetrated by intimate male partners were amply documented in the court records, widely acknowledged by professionals and vividly reported in their personal accounts. Findings from previous research indicating that separation from a partner can be a dangerous and potentially lethal time for women were reinforced in findings from this study. Men's threats to maim, disfigure and kill an intimate partner who had left them were widely reported in the court records, as was the execution of many of these threats, highlighting the critical need for effective, legal protection for women at this time. Additionally findings from civil and criminal records, professionals and women themselves indicated a tendency for some professionals to place the responsibility for both the occurrence and prevention of the violence with women, minimising the responsibility and culpability of perpetrators.
The Use of Civil Protection Orders
The PFA Act was introduced primarily to give greater protection to those who could previously only access common-law interdicts, widely regarded as ineffective due to problems enforcing interdicts unsupported by powers of arrest. The PFA legislation was utilised in 3 of the 4 sheriff courts (Glasgow, Dumbarton and Stirling) whose civil records were scrutinised. Across the 4 month, post-Act time period examined, there were 35 requests for PFA interdicts. No PFA orders were lodged in any of the courts until March 2002 when 7 were requested. A further 6 were requested in April and 13 in May. In March and April 2002, there were more requests for non-PFA Act orders than PFA interdicts but in May 2002, this pattern was reversed with more PFA interdicts being requested, thus indicating gradual increase in usage. Whilst the majority of PFA orders were granted, some were refused with common-law interdicts and non-harassment orders being awarded instead.
Examination of the nature and frequency of orders sought and granted before and after the implementation of the PFA Act, indicates that although they do not as yet outnumber common law interdicts, PFA interdicts are replacing common law interdicts. The PFA Act would therefore appear, in the limited period examined, to be successful in increasing access to powers of arrest, though further monitoring of this is required.
Interviews with professionals
Interviews with professionals indicated that the new Act was regarded as vital in securing access to powers of arrest to those previously denied this. Common law interdicts were seen as usually ineffective, as it is difficult to enforce such orders and to pursue breaches. Whilst NHO's were seen as providing protection, evidential burdens, inconsistent and sometimes minimal police response impacted on effectiveness. Reports from legal professionals and analysis of the court files further revealed that many protection orders do not progress beyond interim interdict stage. A variety of factors may explain this: choice; costs in pursuing actions; intimidation by abusers; or negotiation in the context of divorce actions. Professionals also highlighted continued difficulties in securing powers of arrest. Judicial practice was perceived to be inconsistent: differences appeared in terms of evidential requirements and questions were raised concerning the perceived need for powers of arrest. Difficulties in securing legal aid were also identified as prohibiting women from seeking protection orders.
Postal questionnaires from users of the legislation
A key aspect of the research was to ascertain the experiences of women most likely to have sought protection under the new and existing Acts. 32 women, accessed via the Women's Support Project (Glasgow) and Women's Aid (Glasgow) returned postal questionnaires, in which they reported experiencing violence and abuse of varying degrees of frequency and intensity. Difficulties in accessing legal protection, securing legal aid, and progressing orders beyond the interim stage were also reported. These findings were also echoed by professionals. Many informal and formal sources of help had been used by women: 57% had sought help from family and friends; 66% from the police; and 81% from a solicitor. 28% of women had never applied for any civil orders and 52% of those who did found it 'difficult' to do so. Of the 18 women who applied for legal aid, 33% reported that they found it difficult to pay the financial contribution required by the Scottish Legal Aid Board. Over half of the women agreed that the police are taking domestic violence more seriously now, though only 36% agreed that the courts are so doing. Over 60% of women expressed the view that it continues to be difficult to secure legal protection from violence and abuse and 94% of women agreed more legal assistance for victims is needed.
One crucial aspect of the assessment of the effectiveness of the PFA Act involved the examination of the criminal action taken when breaches of protection orders occur. The researchers were permitted access to data from 16 relevant breached cases (13 NHO's, 1 matrimonial interdict and 2 PFA interdicts). All of these breaches were reported to the Procurator Fiscal, 7 (44%) cases were marked as 'no proceedings' and 9 (45%) were prosecuted (all NHO's). 4 of these cases were subsequently deserted at trial and in 4 (31%) of the remaining 5 cases, the accused was convicted of an offence. In 3 of these cases the accused pled guilty to a reduced charge. Disposals given were:- 1 year probation order; fines of 300 and 200. In the case where the accused was found guilty at trial, a prison sentence of 30 days was given.
Whilst breach of a matrimonial or PFA interdict is not an offence, breach of a NHO is. If the actions which amount to a breach of interdict are not marked for prosecution, the only remedy for the person holding the interdict is to bring civil proceedings for breach of interdict. Interviews with professionals revealed that this action was rarely pursued: civil procedure was often viewed as cumbersome, of limited effectiveness and legal aid was often not available. Some professionals also reported that sanctions for breach of civil protection orders were perceived as less effective than sanctions for criminal breaches.
Findings from this study reinforce findings from the literature and echo the Scottish National Strategy on Domestic Abuse which states that domestic violence and abuse "...is part of a range of behaviours constituting male abuse of power" (National Strategy, 2000:5). Findings indicate that legislation which aims to protect victims of violence and abuse should be sensitive to the gendered context within which it is located.
The Scottish Parliament's intention in enacting the PFA Act was to offer increased protection for those experiencing domestic violence and abuse. Findings from this research show that the PFA Act is slowly being utilised. Also revealed is a lack of fit between the intention of the new legislation and its actual operation. In mirroring the matrimonial homes legislation, the new Act reproduces the limitations inherent in hybrid civil/criminal orders designed to respond to cases of domestic violence, where responsibility is split between the pursuer and the state. Civil law interdicts may place an unfair burden on victims of abuse to pursue actions due to strict eligibility criteria for legal aid and the cost of privately funding civil court actions. Powers of arrest assist the police in responding to domestic abuse but do not guarantee that prosecution will follow. The petition proceedings available under the PFA Act if no prosecution is to take place, are useful, but the absence of criminal sanctions may undermine the seriousness of breaching a civil protection order. The consequences of such limitations are negatively felt by those, already vulnerable, victims of abuse who continue to experiences difficulties both accessing and securing legal protection.
Findings further demonstrated that knowledge and awareness of the Act was variable. Thus further work is needed in relation to increasing public awareness and professional training. Findings also revealed a perceived need for more financial support to victims via legal aid.
The Protection From Abuse (Scotland) Act 2001 sought to offer increased protection to victims of domestic violence and abuse by extending access to interdicts with powers of arrest. It is crucial that the reforming spirit which underpins the civil law is mirrored in the operation of the criminal law: without this, the effectiveness of both are potentially compromised. Further longitudinal evaluation of the operation of the PFA Act would more fully inform the Scottish Parliament with regard to its use and effectiveness.
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