Criminal Justice Committee

Meeting date: Wednesday, September 20, 2023

Official Report 562KB pdf

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Domestic Abuse (Scotland) Act 2018: Post-legislative Scrutiny

Our next item of business is to review the Scottish Government’s response to our post-legislative inquiry on the Domestic Abuse (Scotland) Act 2018. I refer members to paper 3. I invite members to come in with any comments or points that they would like to make on the Scottish Government’s response, or to give any suggestions for further follow up.

I have a few points to make. One of the most important is on the statutory aggravator relating to the involvement of a child in a domestic abuse incident. Our report, which made eight recommendations, is perhaps key. We said that that aggravator is not really being measured, and that it is not clear how well it is being used; we do not really know. It is hard to work out the detail, and it is not entirely clear how that aggravator is being used. The response to that point in the report is a little bit vague. It talks in generalities and does not really say what exactly the Government is doing to address the issue.

My second point relates to communication to the public. Our report also made the recommendation that the previous public awareness campaign was quite effective, and it suggested that something similar could be done again, because people might not realise what the legislation does. Again, the word that I have used in my notes to describe the response from the minister is “vague.” The Government’s response says:

“There is consideration of a campaign to address these issues.”

It would be nice to know whether something material is happening in respect of both those points.

The aggravator is clearly an operational issue and whether it is appropriate to include it would be at officers’ discretion, but I note your point.

My recollection is that we were quite keen that something like a public awareness campaign be explored because there are previous indications that that would be quite effective.

To come back to the point about the aggravator, I note that the minister said that the Government will

“publish more detailed statistical information”

at some point “Later this year”. It would be nice to know when that will be. There is quite a lot of evidence in the report from witnesses saying that the aggravator has not been used properly and that it is not clear when and how it is being used. It is hard to assess how well it is being used. The frustration is that the Government could not get the data, so it would be nice to pin it down a bit more on that.

I am happy to go back and stress that we are keen to ensure that that issue is incorporated in the report.

I have not had the chance to read the domestic abuse and stalking charges report that was published on 12 September, but I look forward to reading that, because I think that it will bring up a lot of information.

I am not clear whether there are statistics on the coercive element of the act in the main findings of the report. I am not sure whether the statistics that are used include those that are related to the new statutory offence of

“a course of behaviour which is abusive of the person’s partner or ex-partner”

that might be considered to be coercive. The report does not state that; I would quite like to know whether that is the case.

I am interested in the stalking charges. The paper says:

“921 stalking charges … were reported to”

the Crown Office and Procurator Fiscal Service and,

“Of these, 485 … were identified as domestic abuse.”

Those are really useful statistics to have but, once I have read the full report, I will be better informed.

Following what Rona Mackay has said, I would be interested in spending more time looking at the stalking charges. That offence is broader than domestic abuse and there are issues, with victims having reported failures in the system in relation to the law on that—but that is for another day.

Are we to assume from the paper that the changes under item 3 have already happened or been agreed? The list includes

“creating a standard condition of bail … placing a restriction on granting bail”

and

“allowing certain ... evidence”.

The paper says:

“The 2018 Act created a new offence of engaging in an abusive course of conduct ... For example, when a child sees, hears or is present during a domestic abuse incident.”

That is the point that Russell Findlay raised. It then says, “Further changes included” and lists changes. Are we to assume that those changes have all happened?

Are you referring to paragraph 3 in the paper?

Yes.

I will need to check for you, Ms McNeill. The act was passed in 2018. I am not aware that there are provisions in it that are not yet in force. I believe that the changes are in force, but I will clarify that for you.

That is what I thought. If the top ones in the list have not been implemented, they would require further discussion. The bottom three are:

“applying certain special measures aimed at protecting child witnesses … requiring the court to consider the future protection of the victim when sentencing an offender … and telling the court to always consider making a non-harassment order ... against a person convicted of a domestic abuse offence.”

That last one is really important because, until now, complainers in many cases have had to seek an interdict under one of the civil processes, which is costly for most people. It would be helpful to clarify whether those are just recommendations.

That is fine. We can check that.

All the way through the Scottish Government response, I have written “When?” There are a lot of actions in the response but no dates for when they will be achieved. It says things like “later this year”, “we will reconvene”, and that work will

“inform future consideration of a campaign to address these issues.”

There are no dates on when anything will happen, so I would be interested to see that. Does a report being published “later this year” mean 31 December or can we expect it before that?

I am new to the committee, so I want to ask something about sentencing. For an outsider looking in, it seems that a lot of the issues in the press are about sentencing. Is anything being done with the Scottish Sentencing Council on the sentences that are being given out? I know that there are questions about under-25s.

You are right that no specific date is included in the response, but my interpretation of

“We will publish a final report later this year”

is that it would be by the end of the year. However, we can monitor that.

The Scottish Sentencing Council is independent, so the matter is more about tracking the policy on sentencing for domestic abuse and violence against women. I assume that that will be included in the further response that we get.

Paragraph 89 of our report mentions that we took evidence about how, with some domestic abuse cases that are being heard in the criminal courts, a civil case is running in tandem. Often, an abuser will use one or the other to continue the abuse, so our recommendation was that the Government consider and come back with a view on using a single-sheriff model when civil and criminal cases operate simultaneously. The response from the cabinet secretary is not satisfactory. It talks generally about “joined-up” thinking and uses the dreaded phrase, “a series of workshops.” It does not say whether the Government agrees or disagrees with the proposal, even in principle, and it does not give any indication as to what will happen next—if anything. The response ends by talking about child contact centres, which is a completely different subject and therefore looks like padding.

Thanks for that—I remember that we raised that valid point. Consideration of that model is, potentially, quite a big piece of work to undertake, but we can ask more questions, because it is a valid point.

Maybe the Government does not want to go down that road and maybe there are no plans to do so; in that case, it should just tell us.

There are no more points on that subject, so we can ask the Scottish Government for a wee bit more detail on the points that have been raised this morning. Another option might be to reach out to witnesses whom we engaged with during that piece of work to seek updates or their reflections on progress. Are members happy with those actions?

Members indicated agreement.