Violence against women and girls
The Domestic Abuse (Scotland) Act 2018 creates a new specific offence of domestic abuse, which provides that it is an offence for a person to engage in a course of behaviour that is abusive of their partner. The definition includes physical violence and overt threats, and psychological abuse and coercive and controlling behaviour, which are difficult to prosecute using the existing law.
The Act makes provision for a number of reforms to criminal procedure intended to prevent the abuse of a complainer through the court process, for example by prohibiting the accused from personally conducting their own defence or precognition of the complainer. It provides for a presumption against bail where someone is accused on indictment of a domestic abuse offence – or any serious sexual or violent offence – and has a previous track record of serious violent, sexual or domestic abuse offending.
The Act also makes provision for the leading of expert evidence and provides for a presumption that the court shall impose a non-harassment order on a person convicted of domestic abuse unless, in the particular case, the court concludes such an order is not necessary to protect the victim.
The Act provides for a statutory sentencing aggravation that where the perpetrator uses a child in committing the offence; directs behaviour at a child in committing the offence; where the child sees, hears or is present when the abuse is taking place; or where a child is likely to be adversely affected by the perpetrator’s behaviour, the offence is aggravated. Where the aggravation is proven, the court is required to take account of this in sentencing the offender and state how the sentence differed from that which the court would otherwise have imposed. This ensures that the harm caused to children by the abuse of their parent or carer is formally recognised and recorded.
It is anticipated that the new offence will come into force in early 2019. Effective implementation is important: the Scottish Government is ensuring training for 14,000 police officers and staff, and is working with police, COPFS and third sector stakeholders to consider what measures must be put in place.
Email: David Holmes