Proposed defence, the maximum penalty and consideration of alternative offences
Questions 5, 6 and 7 covered the proposed defence for the offence, the maximum penalty which conviction of the offence could attract and alternative offences for which the court might convict the accused if it is satisfied that the accused committed that offence.
The draft offence provides that it is a defence to the offence for a person to show that the course of behaviour was, in the particular circumstances, reasonable. The consultation paper notes that it is not suggested that it would ever be reasonable for a person to be abusive towards their partner or ex-partner. However, it suggests that there may be circumstances where a person might engage in behaviour which amounts to controlling their partner which may be, in the particular circumstances of the case, reasonable. The draft offence provides that there is an evidential burden placed on the accused to provide sufficient evidence to the court to raise an issue as to whether the defence is established. If that is done, it is for the prosecutor to prove beyond reasonable doubt that the defence is not established.
Question 5: Do you have any comments on the proposed defence to the offence?
In their comments at Question 5, respondents sometimes noted their broad support for the principle that the evidential burden be placed on the accused to provide sufficient evidence to the court to raise an issue as to whether the defence is established. Others referred back to issues they had raised about the test of reasonableness under Question 2, with some respondents questioning whether the proposed defence is necessary or appropriate. The most frequently expressed concern was that the defence as proposed is open to manipulation by abusers. In particular, it was suggested that it could be used against:
- Women with disabilities, where the abuser is the carer.
- Women with health problems, including those with mental health conditions.
- Women with substance abuse problems.
In terms of the types of behaviour which the defence could be used to justify, the following were suggested:
- Withholding or controlling access to medication or health services.
- Denying access to support services, for example by preventing a women attending appointments.
Issues raised around how the defence might operate included:
- Given the nature of the issues that the accused could cite in their defence, there were concerns that an unintended consequence of the provision as currently drafted could be the disclosure of private, sensitive evidence in court. It was suggested that consideration be given to whether the disclosure of such evidence in court could be used to discredit the complainer /or contribute to the secondary victimisation of the complainer. It was also suggested that in any case it is hard to envisage a circumstance under which the behaviour described by the offence could be considered reasonable and that the reference to that effect should be removed or amended to better safeguard victims.
- If someone's defence is that they were seeking to protect themselves or their partner or ex-partner from harm, then it is likely that the victim would be deemed an adult in need of support and protection under the Adult Support and Protection (Scotland) Act 2007. Given this, it was suggested that the test would be one of adult with capacity, rather than a defence, and that the procurator fiscal should need to take capacity into account before prosecuting.
A small number of respondents raised specific points of law concerning the proposed defence. These included:
- Conventional jurisprudence makes it clear that the presumption of innocence requires that a legal burden on the accused be an evidential one only, as is clear from the terms of sections 1(3) and (4) read together. However, the draft wording is unwieldy and seems to suggest that the prosecution has the opportunity, after closing its case, to adduce further evidence to prove the contrary.
- The intention is to create an evidential burden only on the accused which requires them to 'put the fact in issue'. Thereafter the Crown must discharge its legal burden of proof beyond reasonable doubt. The expression 'sufficient evidence' is commonly used to mean 'corroborated evidence' but the requirement for corroboration does not ordinarily apply to evidential burdens on an accused. The law enforcement, legal and academic respondent highlighting this issue suggested that the word 'sufficient' be deleted.
- The justification for there being a statutory defence is that there may be circumstances in which an accused reasonably believed his actions to be necessary to protect himself or others. If this is the rationale, the draft defence does not appear to meet it, as the rationale appears to be based on partly subjective rather than entirely objective considerations. An alternative would be that the defence be available in circumstances where the accused reasonably believed that his conduct was necessary for the protection of himself or others. Consideration should also be given to expanding section 1(3) of the draft offence to include that it is a defence for a person to show that he reasonably believed the behaviour was necessary in the particular circumstances in order to protect himself or others, from harm.
The consultation then moved on to consider the proposed maximum penalty for the offence. The proposal is that the maximum penalty on conviction on indictment is 10 years' imprisonment. This reflects the fact that it may be appropriate to try the most serious cases of abuse in the High Court. By way of general comparison, the maximum penalty for the offences of threatening or abusive behaviour and stalking is 5 years' imprisonment, but the consultation paper notes that Scottish Government considers that in cases of domestic abuse, which may involve a course of conduct over a long period of time, potentially involving serious abuse, the maximum penalty should reflect the fact it may be more serious than for offences of threatening or abusive behaviour.
Question 6: Do you have any comments on the proposed maximum penalty for the offence?
The majority of respondents who commented noted their agreement with the proposed maximum penalty, including because it reflects both the seriousness of the offence and the very considerable harm it can do. In other comments, respondents made the following suggestions:
- Non-harassment orders should be a routine consideration at sentencing. It was suggested that an extra sub clause should be added to the legislation to that effect.
- Restitution to the victim and children in the form of payment for damages should be added to possible penalties.
- Where appropriate, perpetrator programmes should be used. However, it was suggested this should be in addition to the custodial sentence and not be used to reduce the sentence. Two local authority, health or MAP respondents reported that there are currently no specific programmes in custody for domestic abuse perpetrators, so there is no prospect of individuals being able to address this form of offending behaviour during either a short or a long prison sentence.
- The maximum penalty is appropriate for summary cases, but on indictment the court should not be limited to 10 years. In particular, if there has been a complaint of a sexual offence that is of a higher tariff, this offence should be libelled separately (with a domestic abuse aggravation), in addition to the domestic abuse offence.
Although the majority of those commenting broadly agreed with the proposal, a small number of respondents considered the penalties for conviction on indictment are insufficient and do not reflect a response in proportion to the seriousness of the harm caused to women, children and young people. It was noted that the Human Trafficking and Exploitation (Scotland) Bill [As Passed] proposes the maximum penalty for the offence on conviction on indictment be imprisonment for life or a fine (or both). It was suggested that an equivalent sentencing option is considered for inclusion in this offence.
A small number of other respondents felt that the rationale for the upper limit is not clear. Further issues raised by these respondents included:
- The example given in the consultation paper suggests that, at its most serious, domestic abuse is twice as serious as stalking, which carries a 5 year maximum penalty. However, stalking can also have long term and devastating consequences, so the rationale does not follow. If the legislation is to introduce a maximum penalty of ten years, the rationale for this must be transparent and logical.
- Recent changes to early release via the Prisoners (Control of Release) (Scotland) Act 2015 has significantly shortened the statutory supervision period in the community post-release for many long term prisoners released on licence. This means a prisoner being liberated from a 10 year sentence may no longer qualify for automatic early release, but that early release would previously been accompanied by considerable statutory supervision by criminal justice social work, and the possibility of a return to custody whilst on licence. Under the new legislation (depending on the sentence) a long term prisoner may only be supervised on licence for 6 months in the community.
The consultation paper notes that a number of existing offences operate so that an accused can be convicted of a different offence even though the accused has not been charged with that other offence. The Scottish Government proposes to make provision for a list of alternative offences for which the court may convict the accused if it is satisfied that the accused committed that offence. The consultation paper notes that the range of alternative offences for which it might potentially be appropriate to convict an accused person charged with domestic abuse is potentially very extensive, and that is probably not possible to create an entirely exhaustive list. However, they consider that there may be a case for including those alternative offences most likely to be relevant to ensure that a prosecution does not fail because that alternative offence was not libelled in the complaint or indictment.
Question 7: Do you have a view on whether provision should be made to enable a court to convict the offender of 'alternative' offences without the need for these to be libelled in the complaint or indictment? If so, what offences do you think should be included as 'alternative offences'?
The most frequently made comment was that provision should be made to enable a court to convict the offender of 'alternative offences'. A substantial majority of those commenting took this view. It was suggested that there may be cases where there is strong evidence of one crime being committed but weaker evidence in relation to another incident meaning the court is not satisfied that the course of conduct required for the domestic abuse offence is established. Under such circumstances, it was suggested that it will be important to secure a conviction on the offence for which the evidence is stronger. Other comments included that this approach could be the catalyst to start the process of changing behaviour for certain individuals.
A number of respondents suggested offences or types of offences which should be included as alternative offences. The suggestions were:
- Physical assaults.
- Sexual assaults, including offences under the Sexual Offences (Scotland) Act 2009.
- Threatening or abusive behaviour.
- Breach of a non-harassment order or a domestic abuse interdict.
- Breach of the peace.
- Reckless conduct.
- Telecommunication offences, including threatening or offensive communications.
- Malicious damage, including where property is damaged as a direct result of ongoing abusive behaviour in a current or previous relationship.
- Slavery (currently section 47 Criminal Justice and Licensing (Scotland) Act 2010 but repealed by Human Trafficking and Exploitation (Scotland) Act 2015 (date to be appointed) and to be replaced by section 4 Human Trafficking and Exploitation (Scotland) Act 2015).
- Attempts to defeat or pervert the course of justice.
However, a number of respondents also suggested that it should be made clear that any list of offences is not exhaustive. Another suggestion was that alternative offences might be 'any other offences as defined in criminal law'. A possible drawback identified was whether the alternative offence would carry the same possible maximum penalty available under the domestic abuse offence. It was also suggested that the nature of the offending would not be obvious, unless provision was made for the domestic abuse aggravator to be attached to any alternative offence.
Again, a small number of respondents raised specific points of law concerning the proposed provision. These were:
- There is a potential difficulty with giving an accused fair notice of the charges against them. The provision of a large list could be challenged as failing to give the requisite degree of certainty to an accused and be an infringement of their right to a fair trial. However, a counter to that would be that in having a statutory list the accused will have fair notice, and not providing a list would be more susceptible to challenge.
- If the intention is to make provision for cases in which the court is satisfied that the accused engaged in corroborated conduct on at least one occasion which constitutes a distinct criminal offence, but is not satisfied that the accused engaged in such conduct on more than one occasion and therefore cannot convict of a contravention of the domestic abuse offence, then it is unnecessary to include any specific alternative for common law alternatives as in terms of the Criminal Procedure (Scotland) Act 1995 Schedule 3 para. 12. It would, however be necessary for provision to be made for any statutory alternative such as threatening and abusive behaviour contrary to section 38 of the Criminal Justice and Licensing (Scotland) Act 2010.
- The law permits conviction for alternative offences - these are either specified in statute or are implicit within the common law. At this stage, given the potential for behaviour to be criminal both at common law and under other statute, it is difficult to see how a statutory alternative could be identified.
Although the clear majority of those commenting agreed that provision should be made to enable a court to convict the offender of 'alternative' offences without the need for these to be libelled in the complaint or indictment, one respondent clearly disagreed. This respondent suggested that before the indictment is drawn up, consideration should be given as to whether any of the forms of the behaviour should be listed as individual offences alongside the charge for domestic abuse.
Email: Patrick Down, firstname.lastname@example.org