An Evaluation of The Protection From Abuse (Scotland) Act 2001
CHAPTER ONE: INTRODUCTION
1.1 The Protection from Abuse (Scotland) Act 2001 (hereinafter, the PFA Act), received Royal assent on 6 November 2001 and came into force on 6 February 2002. The PFA Act is designed to afford greater protection to individuals who have left abusive relationships by allowing for a power of arrest to be attached to an interdict. The Scottish Executive recognised the importance of monitoring and evaluating the use of this new legislation. In this chapter the background to the PFA Act and the provisions of the Act are considered. This includes an overview of the legal provisions which were in place prior to the PFA Act, namely, the common law interdict, the interdict (hereinafter a matrimonial interdict) available under the Matrimonial Homes (Family Protection) (Scotland) Act 1981 (hereinafter the MH Act) and the non-harassment order available under the Protection from Harassment Act 1997 (hereinafter PH Act). To begin, a brief overview of the problem that these legal provisions are designed to address is provided.
DOMESTIC VIOLENCE AND ABUSE
1.2 Since the 1970's there has been a 'knowledge explosion', in relation to the problem of domestic violence and there has been an organised international movement of women raising awareness of and campaigning against domestic violence. The need for refuge provision for women fleeing domestic violence has never been met. At a local, national and international level, government bodies have passed legislation mostly offering protection orders and emergency housing for women (Dobash and Dobash 1979, 1992; Hague and Malos 1993; Schechter 1982; Stubbs 1994). There was active debate and policy making at local and national levels of government during the early period of 'discovery' in the 1970's and this extended to international levels in the 1990. The World Bank recognised men's violence against women as a significant economic problem because of health costs and the loss of labour and it was similarly acknowledged by the World Health Organisation (Heise 1994, 1996). The United Nations first recognised it as an issue of human rights in the 'Declaration on the Elimination of Violence Against Women' at Beijing in 1995 (Charlesworth and Chinkin 1994; Klein et al 1997; Stubbs 1994).
1.3 Thus, in the new millennium, domestic violence is internationally recognised as a serious social problem (Romkens 1997; Johnston 1996; Stubbs 1994). More significantly, despite continuous debates about the gender of victims, it is now widely recognised that:
"… the pattern of abuse is asymmetrical. Overwhelmingly it is men who use violence against women partners, not the obverse" (Dobash et al., 2000:3)
and much research has supported this assertion (Dobash et al, 1992; Nazroo 1995; Gadd et al, 2002). This is not to say that women are not violent but that the main pattern of violence among intimates is one of violence perpetrated by men against women. Evidence also indicates that when women do use violence against a male partner, it is often against a backdrop of a history of the man's use of violence against the women (Counts et al, 1992; Daly and Wilson 1988, 1990).
1.4 To its credit, Scotland has been at the forefront of significant action to tackle domestic violence. It was in Scotland that the first re-educational programmes for perpetrators of domestic violence were introduced, the first of their kind certainly in Britain if not in Europe (Dobash et al, 2000). Scotland also funded and produced the acclaimed, powerful and effective Zero Tolerance campaign (Kitzinger and Hunt 1993). And indeed the first bill proposed by a subject committee of the Scottish Parliament was the Protection from Abuse Bill. Since devolution, domestic violence has been at the forefront of national debates within parliamentary and government bodies. Scotland now has a National Strategy to Address Domestic Abuse (2000) that recognises that:
"Many women and many children in Scotland live with the constant threat of domestic abuse affecting their physical and emotional well being and constraining their lives. At least a quarter to a third of all women in Scotland will experience domestic abuse at some point in their lives and the level of 'repeat' victimisation is high." (National Strategy 2000:4)
The goal of the Strategy is:
"…to take all practicable measures toward elimination of domestic abuse including a clear acknowledgement that responsibility for abuse lies firmly with the perpetrator." (2000:7)
Recognition of this national policy context is important for the purposes of this research.
The Continued Need for Protection When a Relationship Ends
1.5 Individuals who are in abusive relationships do often end those relationships, however, the reasons why it may take some time to end an abusive relationship are complex. There is a common myth that when an abusive relationship ends that the abuse will also end. In recent years, research findings have revealed that one of the most 'dangerous' times for a woman is at the point of separation or after leaving a violent partner (Lees 2000). Research by Wilson and Daly (1988, 1990) has shown, for example, that women are not only more likely to be subjected to violence and abuse when they flee a violent relationship but also that they may be more likely to be killed by their partner. The Scottish Executive Statistical Bulletin (2001) reports that over half (54%) of all female victims of homicide recorded in the last 10 years were killed by a current or former partner. Home Office Criminal Statistics for England and Wales (1999), report that in 1999, the actions of a current or former partner led to the deaths of 37% of all women killed compared to 6% of men. Importantly, the National Strategy (2000) itself recognises that the threat of violence and fatal violence continues during and after separation.
LEGAL PROTECTION AND THE CIVIL LAW
1.6 In recognition of the continued threat of domestic abuse following the end of a relationship, civil protection orders were made available which prohibited such behaviour. The civil orders available prior to the PFA Act and continue to be available are the common law interdict, matrimonial interdict, and non-harassment order (hereinafter a NHO). These are considered below.
Common Law Interdict
1.7 The original form of civil protection, which preceded all statutory protection, is the common law interdict. A common law interdict can be obtained (by the pursuer) to forbid or interdict some course of action by another specified party (the defender). An interdict can be obtained to prohibit any activity including protecting individuals from abusive behaviour.
Breach of Interdict
1.8 Whilst the common law interdict is flexible it loses effectiveness in the sanction available if it is breached. The breach of the interdict does not trigger an automatic criminal justice response unless the activity which resulted in the interdict being breached is itself a criminal offence e.g. breach of the peace or assault, which the police and procurator fiscal are willing to prosecute. The police cannot arrest someone for merely breaching an interdict. To address the actual breach of interdict, which is a form of contempt of court, the pursuer can only take proceedings against the defender by lodging a fresh initial writ in court. This writ requires the concurrence but not the presence of the Procurator Fiscal, which is indicated by the signature of a fiscal depute on the initial writ submitted to the court. The writ requests the court to order the defender to appear personally to answer for the breach of interdict and on the charge being admitted, to sentence him to a fine or imprisonment. If and when the defender appears, if he denies any aspect of the proceedings, both the interdict and the alleged breach must be proved beyond reasonable doubt, however, corroboration is not required. The sanction for breach of interdict is provided by section 15 of the Contempt of Court Act 1981. The maximum penalty is 3 months imprisonment or a fine of level 4 on the standard scale contained in section 225, Criminal Procedure (Scotland) Act 1995. Macphail (1998) notes that imprisonment for breach of interdict is rare in modern sheriff court practice.
1.9 A common law interdict is an effective instrument to curtail the actions of those who respect law and legal process. However, it is less effective in respect of those whose behaviour demonstrates an ongoing flouting of criminal law e.g. domestic abuse. The process of establishing a breach of interdict can be long and complex and if the terms of an interdict are not adhered to, the pursuer may be subjected to further abuse. The view that common law interdicts did not adequately protect victims of domestic abuse resulted in legislative change in 1981 in the form of the MH Act 1981.
1.10 As the first legal provision to offer protection from abuse to women within the matrimonial home, the MH Act was a significant piece of legislation. The Act was introduced primarily to protect women against the loss of their homes where they had no legal title or tenancy and were evicted by their spouse or partner or where they were forced to leave as a result of violence and intimidation. To achieve this, the Act empowered a court to grant occupancy rights to a person in respect of the property they lived in when they had neither owned nor had a tenancy in their name. This was achieved by granting an exclusion order in respect of the abuser and an interdict with a power of arrest to protect against further abuse. The provisions of the Act also applied to heterosexual co-habiting couples where both parties had occupancy rights of the property they lived in. If the party seeking an exclusion order did not have occupancy rights, a declaration of these rights had to be obtained from a court before an exclusion order could be sought. The latter process could take up to 12 weeks and an interim interdict is not available whilst this process was ongoing. If occupancy rights are granted, they initially last for 6 months and can be renewed for a further 6 months.
1.11 If in the process of breaching an interdict a person also commits a crime, for example committing a breach of the peace or an assault, the Police have common law powers in any event to arrest without warrant. The power of arrest is most effective when the actions of the person do not amount to a crime but have nevertheless breached the matrimonial interdict. Where a person subject to a matrimonial interdict with a power of arrest has been arrested following behaviour which does not amount to a crime, the officer in charge of a police station may liberate the person unconditionally if satisfied that there is no likelihood of violence to the woman or any child of the family. Where a person is liberated in these circumstances the facts and circumstances which gave rise to the arrest are reported to the procurator fiscal who, if they decide to take no criminal proceedings, shall take all reasonable steps to intimate this decision to the woman and to the solicitor who acted for her when the interdict was granted. Alternatively, the person will be detained in custody until they appear in court.
1.12 If following detention in police custody, the procurator fiscal decides that no criminal proceedings are to be taken, the legislation requires that the man appear before a sheriff on the first court day following arrest. At this time the procurator fiscal shall present to the court a petition containing:
- a statement of the particulars of the man
- a statement of the facts and circumstances which gave rise to the arrest
- a request that the he be detained for a further period not exceeding 2 days
If it appears to the sheriff that:
- the fiscals' statement discloses a prima facie breach of interdict by the man
- proceedings for breach of interdict will be taken and
- there is a substantial risk of violence by the man against the woman or any child of the family
they may order that the man be detained for a further period, not exceeding 2 days. If the foregoing does not apply, the man shall be liberated from custody unless they are being detained for another matter.
Limitations of this Legislation
1.13 The limitations of this legislation have been noted in subsequent research (University of Strathclyde, Law School, 1988) and also in the discussion of the Justice Committee in respect of the PFA Bill. The main problems identified are the restricted category of qualifying applicants and that the power of arrest falls automatically on divorce, for those who were married and at the end of the order granting occupancy rights, for those who co-habited.
1.14 The interdict with a power of arrest does not have effect until a copy is served on the person who is subject to the interdict and the police constable of the area(s) where the parties reside. The attachment of a power of arrest to the interdict gives the police the discretion to arrest someone who breached a matrimonial interdict without the need for a warrant and without any breach of criminal law having occurred. 1 Goodall and McKay (1998:35) found:
"(Police) officers were extremely resentful of the lack of discretion they were given in cases of matrimonial interdicts where the Lord Advocate's Guidelines were seen as particularly strict: arrest is expected in all but the most trivial of circumstances even where no offence other than breach has been committed. In particular, feelings ran high in relation to victims who, they felt, made use of matrimonial interdicts for purposes which the officers regarded as inappropriate."
1.15 The Act is clearly limited in its effect because of the restrictions placed by Parliament on who the Act is to protect. Same sex couples are not covered by the Act nor are those who are divorced, nor those who never co-habited, or did co-habit in the past but no longer do. A period of some 16 years passed before the UK Parliament introduced legislation that offered statutory protection from abuse to a wider group of people. The PH Act included separate sections for England and Wales, and Scotland.
1.16 Sections 8-11 of the PH Act 1997 apply to Scotland. Section 8 (1) states that "every individual has a right to be free from harassment" and accordingly a person should not pursue a course of conduct which amounts to harassment and is intended to amount to harassment or occurs in circumstances where it would appear to a reasonable person that it would amount to harassment. The Act defines 'conduct' as including speech, 'harassment' as causing an individual alarm or distress and 'a course of conduct' as involving at least 2 separate occasions. When an action of harassment (an application) is brought before a court it may:
- award damages and/or
- grant an interdict or interim interdict or
- grant an NHO requiring the defender to refrain from harassment 2
1.17 The procurator fiscal can also apply to the court an NHO. Section 234A of the Criminal Procedure (Scotland) Act 1995, states that where an accused has committed an offence which involves the harassment of another person, the prosecutor may apply to the court to make a NHO against the harasser. The court may grant the order if:
"…on balance of probabilities it is appropriate to do so in order to protect the victim from further harassment…". (Criminal Procedure (Scotland) Act 1995, section 234A(2)
1.18 Although an NHO is a civil court order, if it is breached it is a criminal offence and hence it automatically attracts greater sanction than the civil protection orders outlined above. This provision is found in section 9(1) of the Act which states that any person who is found to be in breach of an NHO is guilty of an offence and is liable (a) on indictment up to imprisonment for up to 5 years and (b) on summary level up to imprisonment for a period of up to 6 months.
1.19 After the conclusion of data collection for this research project, a power of arrest was attached to an NHO by section 49 of the Criminal Justice (Scotland) Act 2003. The effect of this is that it should curtail police discretion and if someone in possession of an NHO claims that this has been breached then the police should exercise their powers of arrest and investigate the alleged crime.
APPLYING FOR A CIVIL PROTECTION ORDER
1.20 Civil protection orders are applied for by the person seeking protection from abuse, which is in most cases the woman. The application lodged in court is presented in the form of an initial writ, a document containing details of the order requested, evidence to support the granting of the order and details the legal basis which empowers the court to grant the order. An interim interdict can be granted to provide interim protection while the process of law to obtain another order e.g. matrimonial interdict application, is ongoing. Whereas the interim interdict can be granted immediately, the other types of protection require papers (namely, the initial writ) to be served on the defender to allow the defender the opportunity to defend the action. An interim interdict is granted if the sheriff is satisfied, on the basis of the information available, that the court has jurisdiction, the pursuer is entitled to seek the interdict, the case is cogent and the interdict is needed as a matter of urgency. The interim interdict may be limited in time, for example, until the date of a further hearing or it may be until further orders are made by the court. Where an interim interdict has been granted at the first hearing before a sheriff it is open to the defender at any time to lodge a motion for recall of the interim interdict.
1.21 Following the granting of an interim interdict, 2 things can happen. The applicant may not proceed with the application beyond this stage for a number of reasons including, the cost involved, the abusive behaviour may have abated following the granting of the interim interdict or there may have been a reconciliation between the parties. If the applicant does proceed the court may refuse an application for a statutory order e.g. NHO, and leave the interdict in place or the court may decide to recall the interim interdict and grant the order sought e.g. NHO. Unlike criminal proceedings against abusive men that are at the discretion of the police and procurator fiscal, a woman has the power to decide if she wishes to seek civil protection. This power, may however, be limited by the fact that the cost of obtaining such an order is high and very few individuals will qualify for legal aid to cover all of these costs.
THE BACKGROUND TO THE PFA ACT
1.22 At its second meeting on 31 August 1999, the Justice Committee (hereinafter the Committee), decided to consider the issue of possible legislation to provide greater protection from domestic violence and abuse. The Committee identified the principal statutory protection available to victims of domestic abuse as the MH Act 1981. Although this Act was viewed as a significant piece of legislation when it was passed, it was described by the Committee as "…more about conveyancing than family law." 3 It was noted that in addition to this legislation, the PH Act provided protection but not a power of arrest to those suffering from harassment and that a 'common law' interdict, which does not have a power of arrest, was available to any person suffering abuse or threat of abuse. The need for a change in the law was proposed because the MH Act 1981 did not extend beyond spouses and co-habitants with occupancy rights and the protection offered ceased upon divorce or occupancy rights coming to an end. Many people who were vulnerable to domestic abuse were prohibited from seeking protection under this Act, e.g. women in an abusive relationship that did not involve marriage or co-habitation or same-sex couples. The committee considered that the amendment of the MH Act 1981 would not achieve its aims. It also considered drafting a bill that reflected the PH Act 1997. Under this Act, the breach of an NHO is a criminal offence. The committee considered making breach of interdict a criminal offence, which they believed would remove the requirement for a power of arrest. This was rejected because:
"Where breach of interdict involves behaviour that is already a criminal offence, such as assault, it is right that the decision to prosecute should be one for the procurator fiscal. But if it merely involves turning up at a particular place (when that is prohibited by the interdict), this might lead to a criminal prosecution that is disproportionate, unwanted by the victim and damaging to any prospects of reconciliation that might still exist. There is also a danger that because the consequences of a breach would be more serious, sheriffs might be more cautious about granting such interdicts in the first place."4
1.23 The Committee decided that the best way to achieve its aims was to allow a power of arrest to be attached to a common law interdict. The reasoning for this was:
"We…believe it is more flexible, in that it recognises the difference between the genuinely dangerous abuser and the "husband or partner [who] may do something once that is threatening and should never have been done, but that they will never do again." Having a power of arrest available that allows the police to intervene may be sufficient to afford protection in the immediate situation without setting in train a process that could destroy any prospect of the relationship being saved."5
The committee decided to introduce a new Bill which would complement the MH Act 1981.
The Protection From Abuse Bill
1.24 As noted above the provisions in both the PFA Bill and Act and the MH Act 1981 are largely similar. However, any person subject to abuse can now apply for an interdict with a power of arrest and the procedures when an interdict is breached have been clarified and varied. The main changes introduced by this legislation are, first, the role of the police has been clarified and altered. Where there is an interdict with a power of arrest, a police constable may arrest the interdicted person without warrant if he has reasonable cause to suspect the interdict has been breached and he considers there to be a risk of further abuse. If a person is arrested they must be detained in police custody until they are either charged with an offence or appear in court.
1.25 Where the procurator fiscal decides to take no criminal proceedings in respect of an incident reported by the police, they must present a petition to court containing details of the detained person, the circumstances which gave rise to the interdict being granted and the circumstances of the breach. The procurator fiscal should request the court to consider whether, on the information presented, a period of detention is justified. If it appears to the Sheriff, after affording the detainee the opportunity to make representations, that the information the procurator fiscal has given has disclosed a prima facia breach of interdict and there is a substantial risk further abuse, then the Sheriff may order a period of incarceration not exceeding 2 days. The second major change in these proceedings compared to the MH Act 1981, is that the procurator fiscal has no obligation to intimate the position to the woman or her solicitor as to whether or not proceedings are being taken.
1.26 The third major change in these proceedings compared to the MH Act is that a Sheriff can order a further period of detention without confirmation that proceedings for breach of interdict will be brought by the woman. This addresses a concern raised by the Scottish Law Commission in 1992 and noted in the deliberations of the Justice Committee. The commission claimed that the procedure of intimation under the MH Act was not effective because of practical difficulties. These resulted from the fact that the man must appear on the first court day after police detention. Prior to his appearance the procurator fiscal required to notify the woman's solicitor that no criminal proceedings were being taken and the solicitor had to then contact their client and obtain instructions regarding proceedings for breach of interdict 6.
1.27 When considering the terms of the Protection from Abuse Bill, the Committee heard evidence from the Family Law Association that the lack of legal aid resulted in women who were being subject to abuse being unable to obtain a civil protection order 7. Anecdotal evidence heard from the Scottish Legal Aid Board suggested that the average contribution for civil legal aid cases was 620 and although this sum would generally be payable over 10 months, there was a pilot scheme in place where the repayment period had been extended to 20 months. 8 The Committee recognised that changes to legal aid policy and rules might also be necessary to ensure that there was adequate access to protection from abuse. The Committee had received indications from the Executive that it would consider making relevant changes if the Bill became an Act of Parliament.
1.28 This chapter has provided the background to the PFA Act. The extent of post-separation abuse and the various forms of civil protection orders that are available to women subject to domestic abuse have been considered. The intentions of the Justice Committee when drafting the Protection from Abuse Bill, which subsequently became the Act, should be borne in mind when the findings of this research project are considered.
1.29 The operation of the PFA Act is clearly dependant on a number of key individuals: solicitors in advising clients as to the best form of protection available to them, police in exercising their discretion and arresting a man who breaches an interdict, the procurator fiscal in bringing a criminal prosecution where a crime has been committed and the alternative petition proceedings where a prosecution is not being brought, and the sheriff in exercising their right to further detain the man where the requirements of the legislation have been fulfilled.
1.30 In Chapter 2, the research aims and objectives and the methodology are outlined. In Chapter 3, the evidence presented to obtain a civil protection order is considered. Chapters 4 and 5 consider the applications for civil protection orders in the three month period prior to the PFA Act and the four month period after the Act came into force. In Chapter 6 the views and experiences of individuals and professionals using the legal provisions outlined in this chapter are discussed and Chapter 7 considers breached civil protection orders. Finally, the conclusions from this study are presented in Chapter eight.