Draft domestic abuse offence could widen Moorov doctrine, Faculty warns

While acknowledging immediately that drawing up an offence which encompasses threats, physical and psychological abuse, and coercive control is “not without difficulty”, the Faculty said it had reservations about the draft put forward by the Scottish government in a consultation paper.

A key feature of the offence is the test that a reasonable person would consider the accused’s behaviour would cause the victim to suffer physical or psychological harm.

In a response to the paper, the Faculty said it recognised that the test had the advantage of the prosecution not requiring to show that the victim, B, was in fact adversely impacted by the behaviour. However, an objective test was problematic.

“The test of the likely impact of conduct on the reasonable person is one far more readily recognised in the criminal law…the adoption of a test of the likely impact on the reasonable person would achieve the aim of not requiring evidence to be led about the impact on B,” the Faculty stated.

“The currently proposed test invites the fact finder to decide how the reasonable person might consider B, as an individual, is likely to be impacted. That in itself may necessitate that some evidence be led about the impact on B or about B an as individual. The stated objective would not be achieved.”

The Faculty said it was recognised that “myths and misconceptions still inform attitudes and understanding of domestic abuse.” It added: “Thus there is some value in the offence requiring evidence of harm to B in order to prevent any myths or misconceptions allowing a perpetrator to escape conviction.”

The draft offence lists some possible effects of behaviour which would make it abusive, such as making B isolated from friends and relatives or controlling B’s day-to-day activities. The Faculty considered that the use of the effects of behaviour needed more detailed consideration and specification.

It suggested: “Further consideration of the ‘effects’ in section 2(2) will be required if a robust offence that will achieve Parliament’s aim of both legal certainty and protection from and criminalisation of domestic abuse is to be achieved.”

The Faculty also noted the potential for a widening of the Moorov doctrine, or mutual corroboration.

“The Faculty is concerned that as domestic abuse is to be defined by the effect of the behaviour, not by the conduct, mutual corroboration may arise between charges of domestic abuse where one is withholding money and the other (with a different complainer) is of serious assault or rape.

“These offences would potentially provide mutual corroboration because of underlying similarity of the coercive nature and effect of the behaviour and not the nature of the actual conduct. This would arguably lead to a widening of the doctrine of mutual corroboration as currently understood.”