The Impact of the Covid-19 Pandemic on Scotland's Criminal Justice Responses to Domestic Abuse: Part 2

The Impact of the Covid-19 Pandemic on Scotland's Criminal Justice Responses to Domestic Abuse: Part 2
2020-04-22

Scotland’s Domestic Abuse and Forced Marriage Helpline (24 hours): 0800 027 1234 or helpline@sdafmh.org.uk

 

This is Part 2 of a two-part blog post which makes a number of preliminary observations about the potential impact of the Covid-19 pandemic and social distancing policy on Scottish criminal justice responses to domestic abuse. In Part 1 we discuss a range of issues such as reporting, investigation and evidence gathering in domestic abuse cases; and we now move on in Part 2 to consider the impact of trial delays and children’s increased presence in the home.  

                                                                                                                                                                                         

The impact of trial delays upon victims 

The length of time it takes for cases to get to court has been recognised as an issue in domestic abuse prosecutions in Scotland. In 2014, it was highlighted that domestic abuse cases (whether proceeding though the mainstream courts or a specialist domestic abuse court) could take up to six to nine months for a first trial diet with further lengthy delays following adjournments.[1] More recently, commentators have suggested that, as the new 2018 Act ‘beds in’ against an already high volume of domestic abuse cases, pressure upon court time and resources is likely to increase.[2]

The pandemic has now resulted in considerable upheaval to court business in Scotland. In the 19th March joint statement between the Lord Advocate and the Chief Constable of Police Scotland, it was stated that the Crown Office and Procurator Fiscal Service (COPFS) will continue to be process cases.[3]  It was also stated that the ‘focus’ going forward will be on cases where the accused is in custody, as well as some non-custody cases relating to domestic abuse, sexual offending and violence.[4] Various emergency measures were introduced in the Coronavirus (Scotland) Act 2020 to respond to the disruption to court business – including extending certain time limits applicable to criminal proceedings; provisions to facilitate court attendance by electronic means; and, as mentioned in Part One, additional grounds for the admission of hearsay evidence.[5] However it is clear that summary court business has been adjourned or otherwise significantly disrupted,[6] and no new solemn trials (i.e. jury trials) are going ahead.[7]  Indeed, questions remain over how solemn cases will be handled during the pandemic. Provisions to allow for judge only solemn trials were dropped from the Coronavirus (Scotland) Bill earlier in April, and a range of options are now being considered.[8] Such questions are of particular relevance because, although the majority of domestic abuse incidents are summary prosecutions, there has been an upward trend in solemn domestic abuse prosecutions over the last few years.[9] This is likely to continue with more complex and serious cases brought under the 2018 Act.[10]  Concern has been raised over substantial case backlogs resulting from this period,[11] with Scottish Courts and Tribunals Service (SCTS) estimating that ‘by August 2020 there will a minimum of 1600 solemn trials outstanding’.[12]  In an open letter on 20th April, leading victim-focused organisations called for re-consideration of jury-less trials to minimise case backlogs and the trauma/ distress delays cause to victims/witnesses.[13] Indeed, the detrimental impact of case delays upon victims in serious cases (distress, uncertainty, and ongoing trauma to vulnerable witnesses) has previously been recognised in Scotland as something which affects the continued engagement of victims in the criminal justice system. [14]

Trial delays are likely to present particular issues in the context of domestic abuse prosecutions. For one thing, it is generally recognised that it is important for domestic abuse cases to go to trial quickly to minimise the risk of the complainer retracting or disengaging from the process. Retraction is a well-established issue in domestic abuse prosecutions around the globe. To give an example, one previous study conducted in England found that half of domestic abuse complainants retracted at some stage of the proceedings.[15] This research also showed that where victims do retract this is much more likely to happen before the trial diet than at the trial itself (and indeed most often before the complainer even knows what will happen to their case during preliminary hearings, including whether a guilty plea will be tendered).[16]

There are numerous, complex – and often intertwined - reasons why domestic abuse complainers retract, disengage or change/minimise their evidence so that it no longer supports the prosecution case. Retraction can, for example, be motivated by reconciliation with the perpetrator; concern for consequences for the children; a desire for rehabilitative measures rather than punitive ones; a desire to ‘move on’; or fear of reprisal from the perpetrator.[17] Retraction/disengagement can also be related to the ‘system’, resulting from confusion and/or frustration with the court process, a lack of case progress (which can be further compounded if there is a lack of contact/updates about the case), and the overall length of time cases take to conclude.[18]

It seems plausible that some of these existing issues may be intensified in the context of the pandemic and associated court delays. Uncertainty about the court process/trial is likely to be heightened, and the time spent waiting for a case to progress further protracted. Additional time between the incident and the trial also creates further opportunity for the perpetrator to intimidate the victim. These circumstances are likely to cause considerable uncertainty and stress for victims, some of whom may then choose to retract or change their evidence.

Domestic abuse prosecutions can proceed without the complainer. In Scotland, there is a presumption in favour of prosecution in all cases of domestic abuse. This comes with an associated presumption against the discontinuation of proceedings where there remains sufficient evidence, which persists even if there are requests from the victim(s) for proceedings to be discontinued.[19]  While outwith the scope of this blog, it is worth noting that the appropriateness of progressing cases where the complainer no longer supports the prosecution is a much-debated topic, with concerns over victim safety, empowerment/agency, and trust on the one hand, and concerns about power transfer to the perpetrator on the other.[20] Furthermore, research elsewhere also tends to show that, policies aside, the progression of domestic abuse cases and successful prosecution outcomes still depend to a significant extent on victim participation.[21]

On the one hand, proceeding without the complainer might be considered realistic given that the 2018 Act is specifically drafted so that the complainer does not need to give evidence (as there is no requirement to prove specific harm caused to the complainer).[22] It is worth noting, however, that some commentators have already expressed doubts as to whether this legislative ambition will work in practice.[23]  While the law may be designed to minimise the extent to which the case hinges on the complainer’s word, the reality is that the complainer’s account is likely to be an essential source of evidence. As noted in Part One, this is particularly the case given the corroboration requirement in Scotland and the difficulties in securing sufficient evidence in ‘private sphere’ offences. As a result, questions about the feasibility of prosecuting cases where the complainer no longer supports the prosecution may be of increasing significance in the pandemic. With concerns that there may be less available evidence as a result of pandemic measures (as discussed in Part One of this post), the complainer’s evidence at trial could become even more important.

The criminal courts in Scotland are currently undergoing a period of significant adjustment. Trial delays give rise to considerable issues across the board, and in the context of domestic abuse lead to concerns about continued victim engagement. Clear communication to those affected is important, in order to maintain victims’ confidence in the system going forward. At a broad level there is still uncertainty and questions about getting trials up and running effectively during the pandemic, and the full effect of the emergency measures included in the 2020 Act remains to be seen. While the 2020 Act generally suspends requirements for physical attendance at court (and facilitates attendance by electronic means), this does not apply to trial diets (although the Act gives the court the power to make such direction).[24] While it is not yet clear how this will work in practice, an interesting potential issue will be the intersection between the provisions of the 2020 Act and existing measures for vulnerable witnesses (which includes both domestic abuse complainers and children). 

The experience of children

Concerns arise that children may be increasingly exposed to domestic abuse during the pandemic and period of lockdown and social distancing measures. While the focus of this section is on the impact of intimate partner domestic abuse upon children (so, for example, a parent abusing the other parent), there are of course concerns about children being the direct target of abuse within the home too. This is an area where modernisation of the law is on the horizon in Scotland.[25]  But it is also worth making the point that there is a well-established co-occurrence between domestic abuse and child abuse.[26] Children in households where there is domestic abuse are also more likely to be victims of child abuse and neglect.[27]

There is increasing recognition that children do not simply ‘witness’ domestic abuse, but rather they experience it in a variety of ways – whether through trying intervene to protect a parent, dealing with the aftermath, or being used as part of the abuse itself. [28] Research shows that exposure to domestic abuse has negative physical, mental, psychological, and developmental effects on children.[29] While traditionally research has tended to focus upon children’s experiences of physical domestic violence within the home, more recently attention has turned to the equally detrimental impacts of exposure to coercive and controlling behaviours.[30]

Families will be spending increased time together, often in confined spaces, during the lockdown and periods of social distancing. It does not seem difficult to envision that certain controlling behaviours perpetrated by an abusive partner may become more pronounced in such circumstances. For example, a key aspect of domestic abuse that negatively impacts upon children is the perpetrator controlling how the non-abusive parent spends time within the home, including how that parent and child spend time together.[31] Organisations such as Scottish Women’s Aid have also highlighted the significance of the reduced access to ‘safe spaces’ (such as schools or nurseries) for children at present.[32] 

In situations where families are divided, there may be increased concerns during the lockdown that the perpetrator will know that the non-abusive parent and/or children are at home, creating further opportunities for surveillance.[33] In particular, the lockdown may also heighten existing concerns in the context of contact orders and arrangements. Guidance from the Lord President of the Court of Session on the 27th March 2020 states that if there is a court order or formal agreement in place, the arrangements should remain as they are (unless both parties agree to vary these).[34] Managing contact arrangements during the lockdown, as well as agreeing variances to arrangements, is likely to be particularly difficult (or impossible) where there has been domestic abuse, or where the perpetrator has sought to use contact as a way to perpetuate the abuse.[35]  Indeed, it is already recognised that contact arrangements can provide an opportunity for perpetrators to continue to exercise control over an ex-partner, whether at handovers or through ‘coaching’ children to direct behaviours at the other parent or ‘spy’ upon them.[36]

With these concerns in mind, it is worth considering how the impact of domestic abuse upon children is dealt with under the new domestic abuse legislation.  The 2018 Act creates a specific aggravation in this respect which, where established, must be recorded upon conviction and taken into account during sentencing.[37]  The offence of ‘abusive behaviour towards a partner or ex-partner’ under the 2018 Act is aggravated where, at any time in the commission of the offence, the perpetrator directs behaviour at a child or makes use of a child in directing behaviour at the other partner.[38] This applies where, for example, the perpetrator, seeks to control or frighten their partner by directing verbal abuse at a child or directing the child to ‘spy’ on the other partner.[39]  The offence is also aggravated if a child sees / hears / is present during an incident in an abusive course of behaviour.[40] This could, for example, be an incident of physical or verbal abuse. The aggravation is intended to reflect ‘the harm that can be caused to children who see or hear abuse taking place or are otherwise present, irrespective of whether the perpetrator directly involves them in the commission of the abuse.’[41]  The relevancy of this is borne out by previous Crime and Justice Survey results in Scotland. Of respondents who reported partner abuse in the previous year and said that there were children living in the house, approximately two thirds (63.7%) said that the children were present (in / around the house / close by) during the most recent incident. Of those, three quarters (75.3%) reported that the children saw or heard what happened.[42] In the context of the lockdown and social distancing this provision may be of increasing relevance as children may be more likely to be present during relevant incidents.

The offence is also aggravated if a ‘reasonable person’ would consider the abusive course of behaviour (or an incident that forms part of it) to be likely to adversely affect a child usually residing with either the perpetrator or the other partner (or both).[43] This provision was added as an amendment during the passage of the Bill. It might apply where, for example, a perpetrator controls the victim’s movements to the extent that it means they cannot take the child to a medical appointment.[44] But significantly, the provision here is drafted broadly, with the revised explanatory notes stating, ‘it could also cover circumstances where the effect of the abusive behaviour is such that a reasonable person would consider it likely that a child’s general wellbeing and development would be adversely affected’.[45] This provision is of particular importance because it does not impose a requirement that a child has to specifically witness individual incidents of abuse.[46] As Scottish Women’s Aid have stated, this addition to the legislation better reflects the ‘lived experience’ of children and their non-abusing parent, and the pervasive effects of coercive and controlling behaviour. [47] 

Therefore, if during the lockdown period (or any other period for that matter) these conditions are met in the context of the overarching offence provision then the aggravation will come into play.  A single source of evidence is sufficient to prove the aggravation.[48] It is also significant to note that, to prove the aggravation, there does not need to be evidence that a child (a) has ever had any (i) awareness of the perpetrator’s behaviour, or (ii) understanding of the nature of the perpetrator’s behaviour, or (b) has ever been adversely affected by the perpetrator’s behaviour.[49]

A related issue worth noting at this point is the role that children may play in domestic abuse cases as Crown witnesses. Involvement in the trial process can be traumatising for children and, in the context of domestic abuse, children are likely to be extremely intimidated by the abusive parent and fear for their safety/ non-abusing parent’s safety in becoming involved.[50] Although there are a range of special measures to support children in giving evidence in general - most recently, for example, the Vulnerable Witnesses (Criminal Evidence) (Scotland) Act 2019allows for the use of pre-recorded evidence from child witnesses in solemn domestic abuse trials – any involvement with the process is likely to be distressing. Indeed, the Joint Protocol between Police Scotland and COPFS states that, in deciding whether to initiate proceedings in the case, the fiscal ‘must balance the seriousness of the offence and the risk which the accused poses with the effect on the child of giving evidence’.[51] It also requires that the fiscal give ‘careful consideration to the interests and views of the child and the ability of the child to give evidence’ and due regard to information received relating to the wellbeing of the child from specialist support services.[52] If children do ‘witness’ domestic abuse as a result of increased time spent at home during the lockdown or an escalation of the abusive parent’s behaviour (and there are no or fewer external witnesses as a result of widespread social restrictions) there may be increased cases where the child is needed as an essential witness in a case.

A second point to be made about the 2018 Act relates to the changes to the imposition of non-harassment orders (NHOs) by the criminal courts. Courts are now required to consider making an NHO in domestic abuse cases i.e. where there is a conviction for the domestic abuse offence in the 2018 Act or where the domestic abuse aggravation (discussed in Part One) is proven in relation to another offence.[53] Previously the court could only consider imposing an NHO following an application from the prosecutor. The 2018 Act explicitly provides that an NHO imposed in favour of a victim of a domestic abuse offence can also make provision to protect any child living with the victim or perpetrator, or any child named in an aggravation. This is a significant change as previously an NHO imposed by a criminal court could not make provision for someone who was not a victim of the offence (and therefore could not be used to protect a child of the victim).[54] This is therefore an important development in terms of providing greater protection to children – and their non-abusive parents – in cases where a conviction is achieved (a breach of any NHO imposed will itself be a criminal offence).

The 2018 Act is a relatively recent piece of legislation – and time is needed for it to ‘bed in’ before it can be seen how effective the new aggravation and the changes to the NHO scheme are in practice. The lockdown and social distancing certainly raise concerns about children’s increased exposure to domestic abuse in households or family relationships. What is worth noting is that the aggravation contained in the 2018 Act is itself somewhat of a compromise position - it emerged and was further amended in response to concerns that the legislation needed to take into account more fully the harmful effects of domestic abuse upon children. Indeed, some stakeholders argued during the passage of the 2018 Act that children should themselves be recognised as direct victims of domestic abuse perpetrated by a partner/ex-partner towards the other partner.[55] The pandemic and accompanying measures may draw further attention to these important issues, and the question of whether the 2018 Act does indeed go far enough in recognising the effect of domestic abuse upon children.

Concluding remarks

Domestic abuse is a distinctly harmful offence and tackling it has recently been front and centre in the Scottish Government’s justice agenda. While the full impact of the Covid-19 pandemic and lockdown/social distancing measures on Scotland’s criminal justice responses to domestic abuse remains to be seen (it is clear that this is a fast developing and unpredictable situation) it is, regrettably, inevitable that current circumstances will intensify existing challenges involved with protecting victims and improving justice outcomes. This two-part blog has sought to make a number of preliminary observations about the impact of the Covid-19 pandemic and lockdown/social distancing measures in relation to a range of issues, with reference to both well-established issues in domestic abuse prosecutions and other recent legal developments. We have discussed a range of issues from reporting, investigation and corroboration in domestic abuse cases, the impact of trial delays, children’s experience of domestic abuse in the home, and relevant civil protective measures. A final point to make is that the economic and social costs of domestic abuse are staggering, costing the Scottish public purse an estimated £2.3 billion per year (and £66 billion in England and Wales).[56] This figure includes costs associated with the NHS (for medical treatment, including mental health provision), social services, and housing; all services that are presently under intense strain. To ensure that the human and economic cost of domestic abuse does not spiral out of control, it is therefore crucial that tackling domestic abuse remains high on the Scottish Government’s agenda in these unprecedented times. The vast reduction in civil court business, and delays to criminal cases, risks jeopardising progress and may put victims of domestic abuse at increased risk. 

 

References

[1] Address by A Hicks (Lead Prosecutor for Domestic Abuse), Challenging Abuse Together, COPFS Conference on Domestic Abuse, Glasgow, May 2014. Available at https://www.copfs.gov.uk/images/Documents/Our%20Priorities/Domestic%20abuse/Speech%20by%20PF%20Domestic%20Abuse%20at%20COPFS%20Conference%208%20May%202014.pdf

[2] See e.g. M Burman and O Brooks-Hay, ‘Aligning policy and law? The creation of a domestic abuse offence incorporating coercive control’ (2018) 18(1) Criminology & Criminal Justice 67, at page 77

[3] COPFS, Joint statement from Lord Advocate and Chief Constable of Police Scotland (19th March 2020). Available at: https://www.copfs.gov.uk/media-site-news-from-copfs/1876-joint-statement-from-lord-advocate-and-chief-constable

[4] ibid

[5] See Coronavirus (Scotland) Act 2020 Schedule 4

[6] Relevant information relating to each Sheriffdom “Hub” Court operating can be accessed here: https://www.scotcourts.gov.uk/coronavirus--sheriffdom-hub-courts

[7] Scottish Courts and Tribunal Services, ‘Coronavirus Update – Jury trials’ (17th March 2020). Available at: https://www.scotcourts.gov.uk/about-the-scottish-court-service/scs-news/2020/03/17/coronavirus-update-jury-trials

[8] See statement from the Cabinet Secretary for Justice (Humza Yousaf) in Parliament on 21st April 2020. Available at: http://www.parliament.scot/parliamentarybusiness/report.aspx?r=12609&i=114032. See also Scottish Government, Covid-19 And Solemn Criminal Trials: Scottish Government Discussion Document – April 2020 (Scottish Government, April 2020); P Sim, ‘How do you hold a jury trial during lockdown?’ (BBC News, 15th April 2020). Available at: https://www.bbc.co.uk/news/uk-scotland-52280860?intlink_from_url=https://www.bbc.co.uk/news/topics/cme1pelw9m9t/criminal-justice-system&link_location=live-reporting-story

[9] Address by A Hicks (Lead Prosecutor for Domestic Abuse), Challenging Abuse Together, COPFS Conference on Domestic Abuse, Glasgow, May 2014. Available at https://www.copfs.gov.uk/images/Documents/Our%20Priorities/Domestic%20abuse/Speech%20by%20PF%20Domestic%20Abuse%20at%20COPFS%20Conference%208%20May%202014.pdf

[10] ibid

[11] See e.g. statement of the Lord Justice General in response to the Coronavirus (Scotland) Bill (31st March 2020). Available at: http://www.scotland-judiciary.org.uk/25/2366/LJG-response-to-Coronavirus-Bill

[12] See letter sent by SCTS to the Justice Committee (20th April 2020). Available at:

https://www.parliament.scot/S5_JusticeCommittee/Inquiries/20200420_SCTStoMM_COVID19Business_Levels.pdf

[13] Victim Support Scotland, Scottish Women’s Aid, ASSIST and Rape Crisis Scotland, ‘Emergency legislation and jury-less trials’ (Joint open letter, 20th April 2020). Available at:

https://victimsupport.scot/wp-content/uploads/2020/04/Open-Letter-to-MSPs-from-Victims-Organisations.pdf

[14] Inspectorate of Prosecution in Scotland, Thematic Report on the Management of Time Limits (Scottish Government 2015).

[15] A Robinson and D Cook, ‘Understanding victim retraction in cases of domestic violence: Specialist courts, government policy, and victim‐centred justice’ (2006) 9(2) Contemporary Justice Review 189

[16] ibid,at page 206.

[17] ibid; E Sleath and LL Smith, ‘Understanding the factors that predict victim retraction in police reported allegations of intimate partner violence’ (2017) 7(1) Psychology of Violence 140

[18] See L Bennett, L Goodman and MA Dutton, ‘Systemic obstacles to the criminal prosecution of a battering partner: A victim perspective’ (1999) 14(7) Journal of Interpersonal Violence 761; A Robinson and D Cook, ‘Understanding victim retraction in cases of domestic violence: Specialist courts, government policy, and victim‐centred justice’ (2006) 9(2) Contemporary Justice Review 189

[19] COPFS and Police Scotland, Joint protocol between Police Scotland and the Crown Office & Procurator Fiscal Service (May 2019, 5th edn) Available at: https://www.copfs.gov.uk/images/Documents/Our%20Priorities/Domestic%20abuse/Joint%20Domestic%20Abuse%20Protocol.pdf

[20] For a recent discussion in the context of England and Wales, see A Porter, ‘Prosecuting domestic abuse in England and Wales: Crown Prosecution Service ‘working practice’ and new public managerialism’ (2019) 28(4) Social & Legal Studies 493

[21] A Robinson and D Cook, ‘Understanding victim retraction in cases of domestic violence: Specialist courts, government policy, and victim‐centred justice’ (2006) 9(2) Contemporary Justice Review 189

[22] See Domestic Abuse (Scotland) Act 2018 s 4

[23] See e.g. M Burman and O Brooks-Hay, ‘Aligning policy and law? The creation of a domestic abuse offence incorporating coercive control’ (2018) 18(1) Criminology & Criminal Justice 67, at pages 73-74

[24] Coronavirus (Scotland) Act 2020 Schedule 4 Part 1

[25] See e.g. the recent Scottish Government consultation on modernising s 12 of the Children and Young Persons (Scotland) Act 1937. Further details are available at: https://consult.gov.scot/child-protection/amendments-to-the-law-on-child-cruelty/

[26] EG Krug and others (eds), World Report on Violence and Health (World Health Organization 2002)

[27] See e.g. EN Jouriles and others, ‘Child abuse in the context of domestic violence: Prevalence, explanations, and practice implications’ (2008) 23(2) Violence and Victims 221

[28] See e.g. Scottish Children’s Reporter Administration, A Criminal Offence of Domestic Abuse: SCRA response to the Scottish Government’s consultation (2016). Available at: https://www.scra.gov.uk/wp-content/uploads/2017/06/Domestic-abuse-offence-response.pdf

[29] See e.g. J Molina and J Levell, Children’s experience of domestic abuse and criminality: A literature review (Victims' Commissioner for England and Wales 2020)

[30] E Katz, ‘Beyond the physical incident model: How children living with domestic violence are harmed by and resist regimes of coercive control’ (2016) 25(1) Child Abuse Review 46

[31] ibid; Scottish Women’s Aid, Children and young people’s experiences of coercive control. Available at: https://womensaid.scot/wp-content/uploads/2017/09/CYP-coercivecontrol.pdf

[32] Scottish Women’s Aid, Statement on COVID-19 – Scottish Women’s Aid.Available at:https://womensaid.scot/wp-content/uploads/2020/03/COVID-19-Statement-19-March-2020.pdf

[33] ibid

[34] Guidance on Compliance with Family Court Orders. Available at: https://www.scotcourts.gov.uk/coming-to-court/attending-a-court/coronavirus . While this guidance indicates that a parent may unilaterally decide to vary an agreement if they are ‘sufficiently concerned that complying with the court order would be against current Government advice’, this may be challenged after the event by the other parent in court (here the court ‘is likely to look to see whether each parent acted reasonably and sensibly in the light of the Government guidance in place at that time, together with any specific evidence relating to the child or family.’)

[35] See e.g. the Covid-19 and support page of the Scottish Women’s Rights Centre webpage: https://www.scottishwomensrightscentre.org.uk 

[36] Scottish Women’s Aid, Briefing: Domestic abuse and child contact. Available at: https://womensaid.scot/wp-content/uploads/2018/08/SWA-Briefing-Child-Contact.pdf

[37] Domestic Abuse (Scotland) Act 2018 s 5 (7).

[38] Domestic Abuse (Scotland) Act 2018 s 5 (2).

[39] Scottish Government, Domestic Abuse (Scotland) Bill: Policy Memorandum (SPCB 2017)

[40] Domestic Abuse (Scotland) Act 2018 s 5 (3).

[41] Scottish Government, Domestic Abuse (Scotland) Bill: Policy Memorandum (SPCB 2017) page 19

[42] The Scottish Crime and Justice Survey's Partner Abuse Module for 2014/15, cited in Scottish Government, Domestic Abuse (Scotland) Bill: Children's Rights and Wellbeing Impact Assessment (Scottish Government 2017). Available at:

https://www.gov.scot/publications/domestic-abuse-scotland-bill-childrens-rights-wellbeing-impact-assessment/

[43] Domestic Abuse (Scotland) Act 2018 s 5 (4)

[44] Scottish Government, Domestic Abuse (Scotland) Bill [As Amended at Stage 2]: Revised Explanatory Notes (SPCB 2017)

[45] ibid page 7

[46] Scottish Women’s Aid, Domestic Abuse (Scotland) Bill: Stage 3. Available at https://womensaid.scot/wp-content/uploads/2018/01/Domestic-Abuse-Scotland-Bill-Stage-3-Final.pdf

[47] ibid

[48] Domestic Abuse (Scotland) Act 2018 s 5 (6).

[49] Domestic Abuse (Scotland) Act 2018 s 5 (5).

[50] GW Holden, ‘Children exposed to domestic violence and child abuse: Terminology and taxonomy’ (2003) 6(3) Clinical Child and Family Psychology Review 151

[51] COPFS and Police Scotland, Joint protocol between Police Scotland and the Crown Office & Procurator Fiscal Service (May 2019, 5th edn) Available at: https://www.copfs.gov.uk/images/Documents/Our%20Priorities/Domestic%20abuse/Joint%20Domestic%20Abuse%20Protocol.pdf

[52] ibid

[53] Now contained in s 234AZA into the Criminal Procedure (Scotland) Act 1995. After hearing from the prosecution and the accused, the court must make an NHO unless satisfied that there is no need for the victim (or child) to be protected by such an order.

[54] SJS v HM Advocate [2015] HCJAC 64

[55]Scottish Women’s Aid, Domestic Abuse (Scotland) Bill: Stage 3. Available at https://womensaid.scot/wp-content/uploads/2018/01/Domestic-Abuse-Scotland-Bill-Stage-3-Final.pdf

[56] Home Office, The economic and social costs of domestic abuse (Home Office 2019). Available at: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/772180/horr107.pdf.  The estimated Scottish costs are based on the figures from England and Wales. As the Home Office report acknowledges, estimates of the economic and social costs are likely to be under-estimates due to the under-reporting of domestic abuse.

Published by School of Law, University of Aberdeen

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