Domestic Abuse – Social Housing Tenancy Provisions: Statutory Guidance for Social Landlords

13. Gathering Evidence of Abusive Behaviour

13.1 Where social landlords wish to apply to court they will need to gather evidence of abusive behaviour to present to court. This could include extract criminal convictions, social work reports or criminal justice reports (where appropriate), to show that the meaning of abusive behaviour under sections 2 and 3 of the 2021 Act is satisfied. Requests for an extract criminal conviction should be submitted to:dpo@scotcourts.gov.uk.

13.2 The most likely relevant offences will be offences under section 1(1) of the Domestic Abuse (Scotland) Act 2018 and other offences^[14] which are aggravated as described in section 1(1)(a) of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016 but these examples are not exhaustive and there may be other offences which meet the criteria.

13.3 A criminal conviction is not required for a social landlord to make an application to the court under ground 15A. There are a number of other sources of evidence which may help social landlords to demonstrate to the court that ground 15A has been met. This may include, social work reports, criminal justice reports and reports from any other relevant partner agency such as Scottish Women’s Aid.

13.4 Evidence of alternatives to convictions could include, for example, diversions offered by the Procurator Fiscal to work with Social Work or partner programmes such as the Caledonian Project.

13.5 In some cases information may be available from Police Scotland if they deem it necessary, proportionate and in accordance with the Data Protection Act 2018.^[15]

13.6 Domestic Abuse Protection Notices or Domestic Abuse Protection Orders at Part 1 of the Domestic Abuse (Protection) (Scotland) Act 2021, when in force, may also provide evidence of abusive behaviour.

13.7 Evidence may also be available from the victim/survivor themselves. This could include, for example, information about previous court orders such as interdicts, non-harassment orders or exclusion orders.

13.8 Social landlords may also have evidence themselves such as reports of disturbances and noise, repair records, neighbour reports, local neighbourhood staff reports and third party disclosures.

13.9 Where these provisions are being used, when considering whether it is reasonable to make the order the court must also have regard, in particular, to any risk that the tenant will engage in further abusive behaviour. This does not apply where the streamlined process (further described at section 19 of this guidance) is being relied upon as the sheriff is not required to consider whether it is reasonable to make the order in streamlined actions, although issues of proportionality and other rights may arise. The social landlord will therefore also wish to gather evidence to demonstrate this risk of further abusive behaviour for the court.

13.10 While first hand evidence from victim/survivors themselves is effective, it is likely that many victim/survivors will feel unable to appear in court as a witness. In these cases, social landlords should instead aim to provide the court with evidence by other means such as written evidence or third-party evidence. The court will determine whether the abusive behaviour meets the threshold required to satisfy ground 15A.

13.11 In cases where victim/survivors are prepared to provide evidence to the court, the court has processes in place for dealing with vulnerable witnesses (see paragraph 17.5 of this guidance). Parties to any forthcoming action and the court should actively consider whether such provisions are appropriate.