Caroline Gillespie: Proposed domestic abuse powers – what you need to know



Caroline Gillespie

Caroline Gillespie considers proposed additional powers to tackle domestic abuse and recent statistics on charges for, and prosecution of, domestic abuse.

Scotland’s police, courts and social landlords may soon be given additional powers to protect victims of domestic abuse. The Domestic Abuse (Protection) (Scotland) Bill, presently under consideration at the Scottish Parliament, aims to provide immediate protection for people experiencing domestic abuse through the introduction of domestic abuse protection notices and orders (DAPNs and DAPOs). The bill would also allow social landlords to apply to the court to end or transfer a tenancy of a perpetrator of domestic abuse to prevent a victim becoming homeless and enable the victim to remain in the family home should they wish to do so.

A DAPN would be made by a senior police officer where the officer has reasonable grounds for believing there to have been abusive behaviour but only if immediate protection is considered necessary for the protection of a person from domestic abuse. The DAPN could require the alleged abuser to immediately leave a property and surrender keys. It could also prohibit them from coming within a certain distance of the property, the person considered to be at risk and any children of the household.

A DAPO could be applied for by the chief constable whether or not a DAPN has been issued. Where a DAPN has been issued a DAPO must be applied for by the end of the next court day. An application for a DAPO would be heard in court on the first court day after the application is made. If granted, it would last for up to two months, extendable by a further month. It could contain anything that a DAPN could, or anything else the court considers necessary for protection. Before granting a DAPO a sheriff would have to be satisfied that there has been abusive behaviour and that it is necessary for the protection of a person from domestic abuse.

The definition of abusive behaviour in the bill is closely based on the definition used in 2018 legislation which has been in force from 1 April 2019 and which created the new offence of engaging in a course of abusive behaviour towards a partner or ex-partner intended to cause either physical or psychological harm or being reckless towards those consequences. The crime may be constituted by behaviour directed at a child of a partner or ex-partner or at another person where that behaviour affects the partner or ex-partner. If a child is involved, the crime is an aggravated one. One difference between the crime and behaviour which may justify a DAPN or DAPO is that the crime is committed by “a course of” behaviour whereas a single incident may warrant a DAPN or DAPO assuming that the other conditions are met. Breaching a DAPN or a DAPO would also be a crime, punishable by imprisonment or a fine.

Statistics recently released by the Crown Office and Procurator Fiscal Service show that, in 2019/20, 1,065 charges for the new offence under the 2018 legislation were made, with 251 of those involving a child aggravation and with 96 per cent of the charges leading to court proceedings. This demonstrates that the Scottish prosecuting authorities are treating charges for the new offence seriously. Statistics on the number of convictions have not yet been made available, partly because some of the cases may not yet have reached the conviction stage. Also in 2019/20, there were a total of 30,718 charges made which were identified as being related to domestic abuse, i.e. including those for the new offence and also including those where the charge was for another criminal offence such as common assault or breach of the peace but there was a domestic abuse aspect. Charges for the new offence accounted for 3.5 per cent of the total number which total was 5.7 per cent higher than in 2018/19, showing that the new offence under the 2018 Act is increasing the overall number of charges involving domestic abuse.

The domestic abuse bill presently under consideration at the Scottish Parliament is at the first of three legislative stages. It will have to pass through all three stages before it becomes law. If it does not do so before the present fifth session of the Scottish Parliament is dissolved ahead of the election scheduled for 6 May 2021 then it will fall though it may be re-introduced to the next session.

Regardless of whether the bill becomes law in the form as presently proposed, the subject of domestic abuse is likely to remain high on the political and legal agenda in the coming year and beyond.

Caroline Gillespie is a partner at BLM in Scotland