Douglas McConnell

The recent domestic criminal case involving former Scotland rugby player Stuart Hogg has attracted significant attention to the relatively new offence outlined in the Domestic Abuse (Scotland) Act 2018. This Act, which came into force in April 2019, aims to protect victims, hold perpetrators accountable, and broaden the legal definition of domestic abuse.

Section 1 of the Act establishes a specific offence for engaging in a course of abusive behaviour towards a partner or ex-partner. Since its inception, there has been an increasing use by the Crown to bring charges under this section. The Act intentionally allows for a broad definition of abusive acts, going beyond physical violence – including coercive control. A 2023 protocol by the police and crown describes it as covering “any form of physical, verbal, sexual, psychological, or financial abuse”.

Crucially, the test requires the behaviour to either intentionally or recklessly be likely to cause the victim to suffer physical or psychological harm. Obvious examples include physical abuse through assault or direct verbal abuse such as shouting and swearing. Less obvious examples might involve controlling the family’s finances, attempting to alienate the victim from their children and other family members or dictating who the victim can be friends with. There is also a potential for more nuanced allegations, an unusual example being where the accused taught a family parrot to call the complainer derogatory names.

In Stuart Hogg’s case, the main elements reportedly included the repeated sending of messages, using a phone app to track the victim’s whereabouts, and shouting and swearing. It should be noted that there has to be more than one incident of abuse to constitute the course of behaviour required for the charge.

These cases raise important questions. What defines a ‘normal’ or ‘healthy’ relationship? When does an argument become an abusive situation? Is there any relationship so balanced that there is no more dominant partner?

It is unsurprising that such allegations often surface after the end of a relationship. Courts frequently consider issues arising from the breakdown of relationships. There are often additional complications, such as ongoing divorce actions, or child contact disputes, in the background. Not every relationship ends amicably. There are clearly going to be heightened emotions involved in the course of any relationship – particularly if things are falling apart. As the saying goes: “It’s called a break-up because it’s broken. When does behaviour cross into criminality?

The abusive behaviour is commonly found to have occurred over the course of months or perhaps years. The court must carefully consider all circumstances in its determinations. This inevitably increases the length and complexity of trials. It also increases the likelihood of family members, including children, having to give evidence in court.

Despite the above, there is no doubt the introduction of the Act has allowed perpetrators of domestic abuse to be held more accountable, which is a positive step for society. It will be interesting to note the inevitable evolution of the crime in the years to come.

Douglas McConnell is a director at Duncan & McConnell. This article first appeared in The Scotsman.