Meeting of the Parliament [Draft]

Meeting date: Thursday, May 2, 2024

Official Report 1031KB pdf

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Unborn Victims of Violence

The next item of business is a debate on motion S6M-12995, in the name of Jackson Carlaw, on behalf of the Citizen Participation and Public Petitions Committee, on petition PE1887, on creating an unborn victims of violence act.

I call Jackson Carlaw to speak to and move the motion on behalf of the Citizen Participation and Public Petitions Committee.

14:57  

It is an absolute delight to be able to bring a petition to the chamber for debate. I say that because, when the Parliament convened and I found that it fell to the Scottish Conservatives to convene the public petitions committee for the first time in the Parliament’s history, I fought very hard to have that opportunity. That is because I happen to believe that we have one of the finest petitions committee systems of any Parliament anywhere. That is not just because important issues such as free personal care for the elderly, the scandal of mesh and the extension of care to those who suffer from dementia at the age of 50 came to the Parliament through the committee, but because of the various people whom the committee hears from.

That includes young Callum Isted, who, at the age of seven, was the youngest person ever to bring a petition before the Scottish Parliament. He left a little disappointed in one respect because, when Nicola Sturgeon was First Minister, she promised him a tour of Bute house, but, unfortunately, she left office before that promise could be fulfilled. I catch out of the corner of my eye a man who might be able to fix that sin of omission. I say to John Swinney that he will have the undying gratitude of the Citizen Participation and Public Petitions Committee if young Callum Isted finally has the opportunity to have that tour. We wait to see whether that promise can be fulfilled.

I always say that I bring petitions to the chamber not with the mandate of any party election manifesto but with the mandate of the petitioner themselves. That is what motivates the Citizen Participation and Public Petitions Committee, and that invariably unites us behind the aims of a petition. I speak today very much on behalf of the committee, but also on behalf of the petitioner, Nicola Murray, and all those affected by the issues that are raised in the petition.

Before Mr Carlaw leaves his point about the comparison between different petitions systems, I note that the Scottish Parliament’s development of what has been an effective parliamentary petitions system should be recognised. In my experience in the House of Commons, petitions arrived and went nowhere. In this Parliament, however—as is obvious—petitions are lodged and can end up occupying the afternoon business in the parliamentary chamber. That is a commendation of the strength of the parliamentary rules here and of the work of the Citizen Participation and Public Petitions Committee.

I thank Mr Swinney for that observation. I also observe that we were able to take forward a petition to secure free transport for asylum seekers at the recent Conveners Group meeting with the sitting First Minister, who was able, at that time, to give a commitment and a promise to include that in the legislative programme. The Citizen Participation and Public Petitions Committee is a committee that can achieve things.

I am pleased to discuss the petition that is before us. It was lodged in 2021 by Nicola Murray, who has, along with members of her family, joined us in the public gallery today. It calls for the creation of a specific offence that would enable courts to hand down longer sentences when miscarriage has been caused by acts of domestic violence.

In considering the issues that the petition raises, the committee was fortunate enough to hear directly from Nicola. I thank her for the courage and determination that she demonstrated back in 2022 in sharing with us her harrowing experience. It is no small matter to come to the Parliament to discuss these issues. [Applause.]

We must not underestimate how daunting it is for someone to share their personal experiences and present their case to a parliamentary committee. Nicola has also supported and campaigned on behalf of other women who have suffered pregnancy loss as a result of domestic abuse. Her resolve was instrumental in our decision to bring her petition to the chamber today.

In the current session of Parliament, we held a round-table discussion with Steven Tidy from Victim Support Scotland, Dr Mary Neal from the University of Strathclyde and Dr Marsha Scott from Scottish Women’s Aid, and I will refer to their evidence during my remarks.

There is currently a legal framework for responding to domestic abuse, and we recognise in particular the Scottish Government’s recent work through the Domestic Abuse (Scotland) Act 2018. The act created a new statutory offence of domestic abuse and, in particular, it allows for physical, psychological and controlling behaviour that is carried out over a sustained period to be prosecuted as a single course of conduct. The maximum penalty for an offence under the act is imprisonment for a term of up to 14 years.

A joint protocol exists between Police Scotland and the Crown Office and Procurator Fiscal Service that outlines how domestic abuse cases should be handled. However, the current legal framework does not specifically recognise pregnancy loss as a result of domestic abuse. We heard about the impact on victims and the importance of having that specific type of abuse recognised in the justice system. We also heard that pregnancy can act as a trigger for the abuse beginning in the first place and that abuse can intensify during the pregnancy. We recognise that, at any time, pregnancy can be a very vulnerable time for any woman.

The evidence that we have gathered to date has been profoundly moving and extremely effective. In bringing the committee to a view on the issue, we made two recommendations to the Scottish Government following our evidence taking. The first was that the Scottish Government should undertake

“a review and evaluation of the effectiveness of the current legal framework in bringing forward prosecuting charges”

of this nature.

We heard that, in cases of domestic abuse, there are problems with the system, from initial contact with the police through to charging and prosecuting perpetrators. There have been positive steps, with additional Police Scotland funding to support training on the implementation of the 2018 act. However, despite that, it is clear that we can still do more to support survivors of domestic abuse.

Nicola Murray expressed the view that

“The justice system ... fails on many levels when it comes to domestic violence”—[Official Report, Citizen Participation and Public Petitions Committee, 29 June 2022; c 2.]

and that that deters women from even reporting in the first place.

Stakeholders warned us that the reported figures could be underrepresenting the scale of the problem because of the significant barriers to disclosure that women face. We heard that those barriers might be particularly acute in cases of coercive and controlling behaviour. Scottish Women’s Aid told us:

“coercive and controlling behaviour is the single variable that best predicts lethality, so it is critical that, if nothing else, police officers are able to identify whether coercive and controlling behaviours are being exhibited”.—[Official Report, Citizen Participation and Public Petitions Committee, 9 November 2022; c 15.]

Scottish Women’s Aid also shared concerns that police risk assessments focus on physical abuse. We were told that women do not get the help and support that they need when they first reach out and that they will be deterred from seeking help in future.

Nicola Murray told the committee that

“it is a lottery as to whether”

the responding police officers will be knowledgeable about domestic abuse and that some officers will advise women

“that reporting ... is a waste of time”—[Official Report, Citizen Participation and Public Petitions Committee, 29 June 2022; c 2.]

or even blame victims for what they have gone through.

We understand that Police Scotland is working to improve its response to domestic abuse and that it is time for the 2018 act to be fully effective. However, we heard that Scotland has an implementation disorder and that more needs to be done.

We were concerned to hear that victims do not feel informed and supported when they report domestic abuse. We were told that communication is lacking when cases are taken to court, particularly when charges are reduced, and that the process of seeking justice often traumatises victims. In one of Nicola’s cases, the perpetrator took a deal to lessen his charge. In the end, he was ordered to pay her just £300 in compensation for the loss of her unborn child. Nicola described that as deeply inappropriate, given the trauma that she was caused. We heard of another case in which the perpetrator was ordered to pay just £50 in compensation for his actions.

Although this is not a political point, it is worth noting that provisions in other parts of the United Kingdom are much stronger in relation to the statutory offence of child destruction as an aggravating factor. In February last year, the then Cabinet Secretary for Justice and Veterans responded to our recommendations by highlighting research projects on the experiences of witnesses in domestic abuse cases. I look forward to hearing an update on that from the current cabinet secretary.

The committee’s second and more significant recommendation is that legislation should be introduced to create a specific statutory offence or a statutory aggravator of causing miscarriage through acts of violence. We heard from Nicola that the loss of her pregnancies impacted her entire family and that she was deeply traumatised and emotional. I will conclude by quoting Nicola:

“It is life impacting, not just for the victims but for their families. When I lost my pregnancies, I lost a child—I lost children—my children lost siblings and my parents lost grandchildren, so it impacts the entire family. Obviously, afterwards, it is deeply traumatising and emotional. It is not just that you have to deal with the loss itself; it is the circumstances of the loss and the fact that the perpetrator can get away with it so easily. It is often the case that they are not even charged at all. However, if they are ... the sentencing is inappropriate, which is like rubbing salt in the wounds of the victims. It is almost like saying to them that what happened meant nothing. That can add further trauma to the victims and their families, because they feel like they have not received justice.”

She said:

“I am very lucky that I have such an amazing family. My mum has been a tremendous support. I really do not know what I would have done without her. However, a lot of the women I engage with do not have family support, for whatever reason. They might have had to flee their homes and their support network of friends. They feel very vulnerable, very let down and, at times, almost hopeless. We need to change that, and we need to have an opportunity to do that.”—[Official Report, Citizen Participation and Public Petitions Committee, 29 June 2022; c 2, 8-9.]

On behalf of the Citizen Participation and Public Petitions Committee, I hope that we can play a part in considering how we recognise, support and find justice for victims of that harrowing form of domestic abuse. I very much look forward to hearing the Government’s response and to the debate that will follow.

I move,

That the Parliament notes public petition PE1887 on creating a specific offence that enables courts to hand down longer sentences where miscarriage has been caused through acts of domestic violence.

15:08  

I, too, welcome the opportunity to participate in the debate. First, I thank and commend the convener and members of the Citizen Participation and Public Petitions Committee for their consideration of the petition from Ms Nicola Murray. I welcome Ms Murray to her Parliament.

It is evident to all that the circumstances that have been outlined by Ms Murray and that have driven the debate are shattering and deeply heartbreaking, and are something that no woman should ever have to endure. The petition reflects the most tragic of circumstances arising from a relationship that was based on the cruel realities of domestic abuse, which is something that I am committed to addressing and responding to as best I can—an endeavour that I know that all parliamentarians share.

When I was first asked by the committee to consider the petition, I knew that I would have to wrestle with the natural instinct to respond positively to the tragic circumstances against some of the realities of my role and responsibilities as Cabinet Secretary for Justice and Home Affairs. I come to the debate in the spirit of co-operation, collaboration and compassion. We all want to focus on doing what is right, what is deliverable and what will make a difference.

As we have heard from Mr Carlaw, the petition seeks to create a specific criminal offence that would allow the courts to place longer sentences on those convicted of domestic abuse that causes the loss of an unborn child. As a matter of principle, I can fully understand the reasons for that request, rooted as it is in the belief that the current law cannot adequately punish individuals who cause the loss of an unborn child through their violent actions or coercive control.

I noted on the committee’s website that there are a number of written submissions alongside those from the Scottish Government. There are some challenges that we need to think through. We need to consider what the consequences of progressing such a proposal might be, to evaluate what other options might already exist that seek to deliver the same outcome and, of course, to consider what else might be required.

It is important to first consider how the current legislative framework responds to the circumstances outlined in the petition. As we have already heard from Mr Carlaw, the Domestic Abuse (Scotland) Act 2018 created a specific course of conduct offence for the first time, enabling physical, psychological and controlling behaviour to be prosecuted together. The 2018 act makes it a criminal offence if a person

“engages in a course of behaviour which is abusive of”

their partner or ex-partner. The 2018 act criminalises not only physical abuse but other forms of psychological abuse and coercive and controlling behaviour that were previously difficult to prosecute. In addition, the 2018 act provides a non-exhaustive definition of what is considered abusive behaviour for the operation of the domestic abuse offence, and it therefore recognises the multifaceted nature of domestic abuse. Furthermore, section 1 allows imprisonment for a term of up to 14 years.

Although I absolutely acknowledge the significant difference between the maximum penalty under the 2018 act and the penalty received in respect of the case of the petitioner, with respect—I hope that members will understand this—as I have explained in correspondence to the committee, the functions of Police Scotland and the Crown Office and Procurator Fiscal Service to investigate and prosecute cases under the legislation are independent from ministers. I will return later to talk about what ministers can do.

When considering any report submitted by the police, prosecutors apply the prosecution test set out in their published “Prosecution Code” and exercise professional judgment in deciding on the most appropriate charges based on the facts and circumstances of each case. Where there is evidence that a victim has suffered severe injury, including miscarriage, as a result of the accused’s actions, the injury would be reflected in both the charge libelled against the accused and the forum selected for prosecution of that offence.

I am aware that the petitioner and others have called for an amendment to the 2018 act that reflects the impact of the death of an unborn child, because of their concerns that current laws are not fit for purpose. As matters stand with our current legislation, the law can ensure that the death of an unborn child is provided appropriate recognition in the criminal justice system; however, that does not mean that there is not further action, either legislative or non-legislative, that should be pursued.

I was listening intently to what the cabinet secretary had to say just there, but that relates to the manner in which the Crown prosecutes and which legislation it uses to prosecute. The petition specifically asks that some form of aggravator is involved in sentencing; therefore, it is sentencing that needs to be looked at. That is a matter that the Parliament has addressed in the past with regard to informing the Scottish Sentencing Council guidelines, and I think that it can do so again. I am yet to hear the objections or limitations to our doing that.

I will come on to talk about some of the areas that we need to think and feel our way through, but I will also come on to the legitimate points around the merits of aggravated offences.

Although I cannot comment on specific cases, I know that section 1 of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016 can be and has been used in similar circumstances to those of the petitioner, where an offence was aggravated by abuse of a partner or ex-partner, where the commission of any offence amounts to domestic violence. Such examples have included custodial sentences being imposed. That demonstrates that the law in Scotland can be utilised successfully in such circumstances. That is notwithstanding the merits of further debate around other actions, which I will touch on a wee bit later.

I share some of the committee’s reflections about the clear and evident difficulties with the desire to create a new offence in this area, not least in terms of how it could be proven. It is likely to prove difficult, both medically and causally, to demonstrate, for example, that psychological abuse led to a woman’s miscarriage.

Any change to the law in this area would also need to consider the possibility of unintended consequences—a possibility that the committee discussed during its deliberations—such as requests to extend the law into other areas. To address one of Mr Greene’s points, examples could include an unhelpful focus on the behaviour of mothers and other household members that may lead to miscarriage and stillbirth, and prosecution for child destruction. I carefully noted the evidence from Dr Marsha Scott when she spoke to the legislative provision that is available in England and Wales, but I also heard her concerns that there were women victims who were being prosecuted for child destruction. I say that only to show that we need to give matters careful consideration in order to reach the aims that we want to reach while avoiding unintended consequences.

Mr Greene and others have mentioned the Scottish Sentencing Council, which has clearly stated the opportunities that the court already has and said that there is nothing to preclude

“the loss of an unborn child caused by violent actions or coercive control from being libelled as part of an offence”.

However, I also note the work that the Sentencing Council is progressing to develop a guideline on domestic abuse offences, and I await its conclusion. Further to that work, I will ensure that the concerns that are expressed by the petitioner form part of the discussions of the Scottish Government-led domestic abuse justice partners round-table, and I will endeavour to keep members fully informed on that.

Dr Marsha Scott from Scottish Women’s Aid said:

“I think that the law has the tools that we need”.—[Official Report, Citizen Participation and Public Petitions Committee, 9 November 2022; c 6.]

I have referenced such a tool that has been used in the circumstances described by the petitioner. There are also other actions, beyond the law, that we need to consider.

I end my remarks by saying that I will continue to listen and to reflect on the contributions of members this afternoon. I will touch more on the arguments around aggravated offences in my closing remarks. Once again, I commend the bravery of the lady who brought the petition.

15:18  

I am honoured to open this important debate, on behalf of the Scottish Conservatives, on the creation of an unborn victims of violence act.

I commend and thank Nicola Murray for bringing the petition to Parliament. Nicola lost her baby due to domestic abuse after her partner drove a car at her when she was six weeks pregnant. Four years later, she lost a second pregnancy in similar circumstances. She has since been campaigning for the Scottish Parliament to urge the Scottish Government to introduce an unborn victims of violence bill, which would create a particular offence that enables courts to hand down longer sentences to perpetrators of domestic violence that causes a miscarriage.

Nicola’s unwavering determination and courage in advocating for that cause have unquestionably advanced the discourse and will potentially go on to influence legislation and, ultimately, result in the preservation of numerous lives. Aside from the petition, she set up Brodie’s Trust to support women who have lost babies because of domestic violence or forced termination. The trust provides a safe space for women to share their grief and trauma.

The horrifying act of domestic abuse and its impact on pregnant mothers is often overshadowed in the debate. Pregnancy loss is a deeply personal and often traumatic experience on its own; it takes an even darker hue when intertwined with the web of domestic violence. Behind every statistic lies a story of pain, shattered dreams and lives forever altered. It is a reality that many endure in silence, plagued by fear, shame and a sense of powerlessness. We must confront those uncomfortable truths to pave the way for a future where every pregnancy can be met with joy, every home is a sanctuary and every individual is free from the shackles of abuse.

Domestic abuse is rampant in Scotland, with almost 62,000 recorded incidents of abuse last year alone. In 2022, it was reported that, every day, four pregnant women are the victims of domestic abuse. Nicola Murray’s abuser was convicted of reckless conduct and ordered to pay £300 in compensation.

Another case of justice not served was raised with the Scottish Parliament’s Citizen Participation and Public Petitions Committee. In 2019, Stephen Ramsay stabbed, punched and throttled his pregnant partner, Lisa Donaldson, causing her a spinal cord injury, brain damage, extensive bruising and numerous other injuries. She had been 32 weeks pregnant with twins, who both died as a result. Ramsay received five years in prison for attempted murder.

In comparison, elsewhere in the UK, Ramsay could have received a life sentence for child destruction. In England, Wales and Northern Ireland, deliberate acts of violence resulting in the death of late-term fetuses can lead to criminal charges. That has been applied alongside other offences such as assault and murder, as seen in the case of R v Wilson, where the perpetrator received a life sentence for causing grievous bodily harm with intent and child destruction, with a minimum term of 14 years.

Although nothing can heal the profound loss suffered in such cases, stricter sentences could play a pivotal role in deterring abusers. We acknowledge the gravity of domestic violence-induced miscarriages but also note that pregnant victims of domestic abuse face an agonising battle to protect themselves and their unborn children.

The Scottish Government and the Crown Office have assured us that crimes of that measure are covered by existing legislation, but campaigners and the victim support organisations believe that the existing legal framework falls short. This week, I have had conversations with five survivors of domestic abuse, and each story reveals a system that has let them down. Whether it is a lenient sentence, repeated breaches of bail orders or plea deals struck without the victim’s knowledge, the failures are glaring. Too often, lenient sentences fall short of reflecting the gravity of the crime and allow abusers to roam free and potentially reoffend.

The debate on the creation of an unborn victims of violence act is crucial. It is imperative to enhance protections for pregnant women and their unborn children from violent perpetrators. The Scottish Conservatives remain steadfast in advocating for victims and are committed to exploring effective measures to combat this abhorrent crime.

15:24  

I agree with what Jackson Carlaw said about the importance of the Citizen Participation and Public Petitions Committee in his excellent speech today, and I wish him well with his endeavours to enable young Callum to visit Bute house.

A miscarriage is one of the hardest things that a woman might ever have to go through, but it does not bear thinking about that that miscarriage could be caused by the violence of a partner. I, too, join others in welcoming to the public gallery Nicola Murray, the petitioner who brought the issue to the petitions committee and the Parliament. She is absolutely right when she says that the system fails victims and that it fails victims of domestic violence.

As we have discussed before across the parties, male violence is already a scar on society. It is even more shocking when men commit violence on pregnant women, and the law must be able to deal with those men. The pain and worry of protecting yourself as well as the child that you are carrying is unimaginable.

I, too, was surprised to learn that domestic violence often increases when a woman is pregnant or even begins at that time. That is true for women from all backgrounds, not just those from socially disadvantaged backgrounds. Pregnancy is an especially dangerous time for women who are in an abusive relationship. As we know, abuse is based on power and control, and it is common for an abusive partner to become resentful or jealous, resulting in further escalation of violence. A woman is more vulnerable when she is pregnant; the abuser knows that and uses it to gain more control.

The World Health Organization tells us that one in three women worldwide have experienced physical or sexual violence at the hands of an intimate partner. Sometimes, pregnancy alters the pattern of assault, with pregnant women more likely to be struck on the abdomen or have multiple sites of injury. Women who experience domestic abuse when they are pregnant are much more likely to have babies born prematurely or with a low birth weight, both of which are leading causes of neonatal mortality.

Between 2017 and 2021, more than 7,000 domestic incidents in which the victims were identified as being pregnant were reported to Police Scotland; that equates to four women every day. However, that number is likely to be far lower than the reality; many pregnant women are scared to report abuse, because they worry that their child might end up being taken into care. In fact, it is estimated that fewer than one in five cases of domestic abuse are reported to the police, so we need more deterrence, and I agree with Pam Gosal on that point.

As well as the interventions that the national health service already provides for victims of domestic abuse, we need tough sentences for those abusers who cause miscarriage when a woman is pregnant.

Scottish Labour supported the Domestic Abuse (Scotland) Act 2018 as a key means of introducing tough sentences for those who are convicted of abusing their partners or ex-partners.

I want to address the question of the law, as the cabinet secretary also did. Scots law is different in nature to English and Welsh law. We have a common-law system for the courts to consider issues such as miscarriage or forced termination as a serious aggravation of domestic abuse when sentencing, and they can take into account harm to children. The question that we need to examine is whether the law is being used to its full effect.

I agree with others that the loss of a child caused by violence should be led as evidence in any court case. We need to be clear that it is a crime in itself, but the question is whether Scots law adequately covers it, or whether there is scope for further exploration if it does not. Jamie Greene made a point about the importance of the Sentencing Council addressing that in its guidance.

The petition proposes a specific offence with regard to an unborn victim of violence similar to England, Wales and Northern Ireland, but England has a much more statutory and rigid system of law than Scotland. A specific offence, such as the crime of child destruction, would have to be proved separately from the original charge. It is not clear to me how successful that has been in England and Wales but, in legal terms, a clear causal link would need to be proved in those cases. Arguably, in Scots law, the burden of proof is lesser.

The petition raises a hugely important subject, which is that the loss of a wanted pregnancy is a unique and traumatic kind of harm to women, distinct from the injury suffered during an attack. The debate is an important opportunity to explore whether there are gaps in our law. As is clear, the petition has not been through a subject committee. Today is about examining the preliminary issues and deciding whether there is scope for the Parliament to do further work.

15:30  

I begin this afternoon, as others have done, by paying tribute to the petitioner, Nicola Murray. Her testimony has been extraordinarily courageous and utterly heartbreaking. I express my personal sorrow for her suffering and multiple losses, my solidarity with her anger at the way in which the criminal justice system has let her down and my admiration for her years of work. That work includes not only her engagement with this Parliament but the creation of Brodie’s Trust, supporting others who have undergone similar experiences and campaigning together for a change in the law.

I also thank Jackson Carlaw and the Citizen Participation and Public Petitions Committee for their careful and sensitive work on this serious issue and for securing today’s important debate. I am grateful to all who gave evidence during the committee’s discussion of the petition and to the committee clerks and others for the information that they have collated for us today.

As other members have pointed out, and as we heard in evidence as the petition went through the committee process, today’s debate is not about reproductive rights. The petitioner made that very clear in her original petition information and she clarified it again in her evidence and written submissions. The title of the petition, unfortunately in my view, carries echoes of the US Unborn Victims of Violence Act. That act is a deeply problematic law, which was introduced by anti-choice Republican Lindsey Graham, who is perhaps best known for his dramatic conversion to the cause of Donald Trump. That act is not what the petitioner is calling for, and it is crucial that we recognise that. The body of the petition and its supporting evidence highlight the malignant yet disregarded scandal of the domestic abuse that is inflicted on women by intimate partners during pregnancy and following childbirth, and its life-changing and life-ending impact. As Jackson Carlaw said earlier, Nicola Murray spoke so eloquently about her experience of just that.

It is difficult to ascertain quite how prevalent such abuse is. Answers depend on how and when questions are asked. Rates of reporting are understandably low, especially when women are financially dependent on their abuser. However, the evidence that we have reveals appalling levels of physical, emotional and sexual violence. That is both pre-existent abuse that is exacerbated during pregnancy and after the birth of a baby, and new abuse that is triggered by those events. The petitioner’s freedom of information request to Police Scotland shows that reported cases average four every single day. The real number is, of course, likely to be many times higher than that.

The petitioner has outlined her own experiences of the original abuse and of traumatic treatment by the criminal justice system. I profoundly hope that those systemic problems will be effectively addressed by the Victims, Witnesses, and Justice Reform (Scotland) Bill. Earlier in the session, I spoke about the importance of that bill and I will be fighting hard to ensure that it remains robust and radical in protecting the rights of survivors such as the petitioner.

However, we need more. Dr Mary Neal’s submission to the Justice Committee during stage 1 of the Domestic Abuse (Scotland) Act 2018 detailed exactly what was needed, but the offences that she proposed were not included in that act. That might now look like a missed opportunity.

My Scottish Green colleagues and I agree with the petitions committee’s recommendations. I have already mentioned the Victims, Witnesses, and Justice Reform (Scotland) Bill and the hopes pinned thereon, but we also need to be open to the need for other mechanisms of review and evaluation that go beyond that legislation to support survivors through the criminal justice system. I also believe that there should be a statutory aggravator for causing miscarriage through violence.

I hope that the petitioner and others will understand that we maybe cannot support the petition in its precise current form because of the ambiguity of its title, which could be used to undermine essential reproductive rights against the petitioner’s wishes. However, we need urgent action, including legislative change, to address this particular and tragic form of abuse. I am interested in exploring some of the potential barriers to new legislation that the cabinet secretary mentioned, and I am very willing to work with the petitioner, her organisation and members across the chamber to explore how such abuse can be addressed effectively.

Dr Neal has suggested amending the 2018 act. That is perhaps the logical pathway, and it is one that I would support, although I am aware that such a process would take considerable time and would require to be prioritised in a busy parliamentary timetable. The issue is, of course, related to both the Victims, Witnesses, and Justice Reform (Scotland) Bill and the proposed misogyny bill, so such an amendment might be possible through those bills.

I look forward to hearing more contributions to the debate and to returning to some of the practical possibilities in my closing speech.

We move to the open debate.

15:35  

As other members have done, I thank colleagues on the Citizen Participation and Public Petitions Committee for their work on the issue, and those stakeholders who have engaged with them. I also commend the petitioner, Nicola Murray, for her bravery and tenacity in bringing the issue to the Parliament and sharing her personal testimony, which the committee described as “profoundly moving”, on a subject that could not be more sensitive or personal. Her on-going work to create spaces for other women who have experienced the loss of a pregnancy through violence or abuse to provide comfort and support to one another is invaluable to many.

Through Nicola Murray’s work, the shocking reality of the scale of the issue has been brought into sharp focus. Every day in Scotland, four pregnant women will be the victim of domestic violence. Those figures, which are already stark, are likely to be underreported, based on what we know about the reporting of domestic violence more generally.

Pregnancy is one of the most dangerous times for victims of domestic abuse. Almost one in three women who suffer abuse experience it for the first time while they are pregnant. That makes domestic abuse the most commonly experienced threat to the health and wellbeing of women during pregnancy.

As many members will recognise from their constituents, violence against woman causes devastating physical and psychological impacts for its victims, and it has wide-ranging costs for them, their families and their communities as a whole.

Brodie’s Trust, which was set up by the petitioner, has reported that many women who have suffered pregnancy loss as a result of abuse had never spoken about what had happened to them before they found the group. They brought with them deep and specific trauma, which was often wrapped up in self-blame. All too often, their experiences are still hidden.

The Domestic Abuse (Scotland) Act 2018 was a welcome step forward in creating new statutory domestic abuse offences, which made it easier for certain forms of abuse and coercive and controlling behaviour to be prosecuted. The briefing notes from that time state that the fact that a pregnancy was lost as the result of domestic abuse could be considered as an important factor in sentencing. However, as things stand in Scots law, there is no specific offence of ending a pregnancy through violence or abusive behaviour.

In other parts of the UK, the Infant Life (Preservation) Act 1929 may be used to prosecute someone who attacks a pregnant woman and causes the loss of her unborn child, but that piece of legislation stands alone, and it is nearly 100 years old.

Across Scotland, campaigners such as the petitioner, Nicola Murray, and other groups, organisations and stakeholders work tirelessly every day to protect, advocate for and support victims of domestic abuse.

Recently, I spoke in the chamber about how it is imperative that we treat victims and survivors of crime with compassion, and the fact that we owe it to them to listen to and act on their experiences and concerns. We must do more to ensure that they feel not only that they are treated with compassion but that they have received the justice that they deserve and that the perpetrator has received the punishment that they are due.

Domestic violence is a pernicious issue, and there is still much work to be done in changing attitudes and breaking stigma and taboos.

The loss of a pregnancy is always heartbreaking. When such a loss is caused by abuse or through violence, the trauma and emotional pain must surely be magnified beyond recognition. It is for that reason that I welcome the opportunity to speak on the issue today, and I thank the committee for bringing its motion to the chamber. Most of all, I thank Nicola for bringing her petition to Parliament.

15:39  

The Citizen Participation and Public Petitions Committee considers many petitions on a range of issues and it is rare for one of those issues to make it to a full debate in the chamber. For that, and for her efforts to ensure that the issue has the consideration and awareness that it deserves, I pay tribute to the petitioner, Nicola Murray. However, I am sure that seeing Parliament debate this important issue gives very little solace to Nicola or to the thousands of other women who have suffered, and continue to suffer, domestic abuse—particularly those who have lost an unborn child as a result of that abuse.

As a recently appointed member of the committee, I was not there to hear Nicola’s evidence, but the Official Report is a harrowing read. The experience was clearly distressing and traumatic, not only for Nicola but for her children and other family members. It is evident that Nicola has been badly let down by the justice system. Her ex-partner hit her with his car and she miscarried less than 48 hours later because of her injuries. In addition to the loss of her unborn child and the grief that she suffers, she has been left with permanent left-side weakness, difficulty walking for long periods, pain in her back, hip and pelvis and complex post-traumatic stress disorder, but his sentence was only that he should pay Nicola £300 compensation.

Nicola’s personal tragedy, those of the women she supports and her own research all show that her experience is far from being an isolated example. In addition to the petitioner’s case, I was struck by the case that Dr Mary Neal highlighted in her submission to the committee. She cited the example of a man who stabbed, punched, and throttled his partner who was 32 weeks pregnant with twins, which caused her a spinal cord injury, brain damage, extensive bruising and numerous other injuries. Both unborn babies died as a result of the attack, yet the perpetrator received only five years’ imprisonment for attempted murder. Whether that sentence is evidence that a specific offence is required, or is an indictment of the current state of Scotland’s justice system, or both, it is clear that the status quo is not good enough when it comes to handing down sentences when a miscarriage is caused by domestic violence.

Elsewhere in the UK, a perpetrator could and probably would receive a life sentence for such a crime: life sentences have been handed down throughout the UK on numerous occasions for the crime of child destruction. Although Dr Neal clearly pointed out in her submission that there are shortcomings in the existing crime of child destruction, she also made it clear that the legislation can be used to prosecute a partner or ex-partner who deliberately causes the death of a late-term fetus through violence. No such specific legislation exists in Scotland.

In her submission to the committee, the Cabinet Secretary for Justice and Home Affairs stated that the Scottish Government is not persuaded that a new offence should be introduced, that legislating in this area could be difficult and that the unintended consequences must be considered.

It is not good enough to say that unintended consequences must be considered in a way that suggests that that is a reason not to introduce a new law. As with all new laws, it is the job of Parliament to ensure that any unintended consequences are fully considered when new legislation is introduced.

The petitioner has said:

“I am steadfast in my belief that within domestic abuse law is the natural home for this amendment and that the wording by Dr Mary Neal leaves no room for misinterpretation and unintended consequences for women.”

The Citizen Participation and Public Petitions Committee’s position on the issue is clear. It recommends

“that the Scottish Government brings forward legislation to create a specific statutory offence and/or statutory aggravator for causing miscarriage through acts of domestic violence.”

Whether it is through an amendment to our domestic abuse laws or some other mechanism, I urge the Scottish Government to look at the issue again and give further consideration to legislating in the area.

15:45  

I open by thanking Nicola Murray and all those who helped the Citizen Participation and Public Petitions Committee for all their hard work in taking the petition through the committee process and bringing it to the chamber today. Nicola has gone on the record to talk about her harrowing personal motivations for raising the issue, and her diligent work must be commended.

The petition seeks the introduction of a specific criminal offence that will enable the courts to impose longer sentences for perpetrators of domestic abuse that causes the loss of an unborn child. The petition suggests that current legislation is unable to effectively prosecute those who cause the loss of an unborn child through their violent actions or coercive control.

All of us in the chamber can agree that abusive behaviour that results in miscarriage is detestable and that those who engage in such behaviour must be held to account. The experience is not something that should ever happen to anyone, and the unfathomable pain that it causes should be recognised.

I will reflect for a moment on my time as a social worker. We saw domestic violence regularly and—as others have said, including Pauline McNeill and Clare Haughey—it was often noted that, for women, pregnancy was a time of increased risk of domestic violence, whether that was within a current abusive relationship or because it signalled the beginning of domestic abuse. That should shock us all. Although I worked in that sector, it continues to shock me, even as I speak about it.

The challenge for the Scottish Government when looking at the petition is that it must balance acknowledging the gravity of such experiences with analysing any potential challenges that introducing new legislation can bring. When researching potential new legislation, the Scottish Government must also look at whether there are ways to achieve similar results without introducing new acts.

On the laws that are in place, the Domestic Abuse (Scotland) Act 2018, which was passed in the previous session of Parliament, created a new statutory offence of domestic abuse. It sets out three conditions, all of which must be proven for a conviction. It provides that a person commits an offence if they engage

“in a course of behaviour which is abusive of”

their

“partner or ex-partner”,

if

“a reasonable person would consider the course of behaviour to be likely to cause”

the partner or ex-partner

“to suffer physical or psychological harm”

and if the person intended the course of behaviour to cause such harm or was reckless as to whether it would cause that. The act provides that abusive behaviour is

“behaviour ... that is violent, threatening or intimidating”.

In recognising that abusive behaviour can be psychological as well as physical, the act acknowledges that domestic abuse is a multifaceted issue.

One of my constituents, Carla Basu, recently won the prestigious Royal Television Society Scotland student award for her film “Bruised”, which deals with the varying types of domestic abuse and the support that is available to survivors. I am looking to organise a screening of “Bruised” at Holyrood. When I put out the invitation to that, I will encourage all members to attend.

As we know, it is for Police Scotland and the COPFS to investigate and prosecute cases under the domestic abuse offence. As well as statutory law, common law may be used to bring a perpetrator to justice. The common-law offence of assault could be used when an abuser causes a victim to miscarry or even forces a woman to terminate her pregnancy against her will. The maximum penalty for the common-law offence of assault ranges up to life imprisonment and is limited only by the sentencing powers of the court in which the case is heard.

With those powers already existing, the Scottish Government is, as we have heard, not convinced at this time that a new offence should be introduced. However, a bit more thought may need to be given to this area. One way to do that may be through the Scottish Sentencing Council. As I mentioned, the penalties for assault are limited only by the sentencing powers of the court in which the case is heard. In correspondence with the committee, the Scottish Sentencing Council acknowledged the evidence-based approach to guideline development and noted that it was at an early stage of gathering evidence in preparation for developing a guideline on domestic abuse offences. It said that, in its evidence sessions, it would consider all the evidence that the committee has gathered on the petition. Presently, the domestic abuse guideline is at stage 2 of processing, and we must let the council independently progress through those stages—but there is possibly scope there.

The petition has brought attention to a very real and serious issue that—deplorably—occurs in Scotland today. We can agree that the reasons for the proposed new legislation are legitimate, but we must be sure to fully examine the legal challenges and unintended consequences, although I accept the point that Maurice Golden made. We must analyse what consequences exist with any new legislation.

I again thank Nicola for bringing the petition to the Parliament and ask the Government to continue to give full consideration to the issue, in any way that it can help.

15:50  

In 2018, the Scottish Parliament passed its Domestic Abuse (Scotland) Bill. It was said at that time to be landmark legislation and a momentous day for survivors of domestic abuse in Scotland. In that case, we should be proud of the Parliament’s work. However, as the petition and the evidence that we have heard make clear, more work has to be done to support those who are subject to domestic abuse.

According to the National Centre for Domestic Violence, one in four women will experience domestic abuse in their lives. In the most recent statistics, 61 per cent of logged incidents of domestic abuse did not include the recording of a crime or offence. Yet we must keep it in mind that the true rate of abuse is likely to be much greater than what is reported. The National Centre for Domestic Violence estimates that less than 24 per cent of domestic abuse crime is reported to the police. That should be greatly concerning.

Last year, the Criminal Justice Committee’s report on the implementation of the Domestic Abuse (Scotland) Act 2018 outlined several areas that need improvement. Police need to be fully trained in recognising domestic abuse, particularly when it is of a non-violent, psychological nature. Some survivors felt that building a case against non-physical abuse was too difficult, and the use of time-limited non-harassment orders caused survivors to leave their homes when the orders expired.

The evidence that the committee has seen in considering the petition demonstrates that pregnancy amplifies the barriers that survivors face in reporting domestic abuse. Four pregnant women every day in Scotland face domestic abuse. Research from the University of Edinburgh shows that domestic abuse becomes more likely when a woman is pregnant.

Nicola Murray, who brought the petition to the Scottish Parliament, outlined in her harrowing evidence to the committee that we are failing survivors. There is the fear of having to see their abuser again in the court and having to relive their trauma, the lottery as to whether the police pursue a case, and survivors being told, without being consulted, that their case is being closed. Pregnant survivors or those with young children often avoid reporting their abuse for fear that they will be seen as a bad mother or their children will be taken from them. Empowering survivors so that they can go to the police and leave their abusers and get support to break the cycle of abuse must be made paramount by this Parliament.

On healthcare, I am sure that many members have spoken to Held in Our Hearts this week. It is calling for a minimum bereavement framework for women who have lost a baby. It also describes a postcode lottery of care for bereaved mothers. Where care is available, there is no personalised one-to-one support that is inclusive of both families and mothers.

In the evidence that the committee heard and from my conversation with Held in Our Hearts, I think that we are failing women who have lost their child. The introduction of the memorial book of pregnancy and baby loss prior to 24 weeks is a good start to officially recognising the grief of losing a pregnancy, but universal personal support is needed.

The petition has raised important issues that are faced by too many women across Scotland. We must recognise the immense pain of losing a child to domestic abuse.

When it comes to domestic abuse and supporting women who have lost a child, it is clear that we are failing on multiple levels. The unacceptable increase in domestic abuse when women become pregnant must be investigated, and our system of support for victims of domestic abuse should reflect that reality. Laws need to be better implemented and enforced, so that no abuser goes unpunished or underpunished. In addition, mothers need to have access to counselling and other support, so that no one is left to suffer in silence.

15:55  

The speech by Jackson Carlaw, the convener of the Citizen Participation and Public Petitions Committee, was, in two respects, an outstanding one with which to open the debate.

First, it explained something that does not get nearly enough airtime: the significance and effectiveness of the public petitions process, which is one of the jewels in the crown of the identity of this Parliament.

The second element of the importance of Mr Carlaw’s speech was the recognition of the seriousness of the issue that has been raised by Nicola Murray, who is one of my constituents. One point that I have tried to explain to Nicola is an understanding of the significance of the fact that we are gathered here this afternoon, in this chamber, to devote our entire afternoon’s business to the consideration of her petition. If ever there was an example of the triumph of the design of our parliamentary system, it is that one member of the public, who has had an absolutely harrowing experience, is able to find some—I stress the word “some”—solace in the fact that her Parliament is able to respond to the suffering that she has endured. It has provided the opportunity for the Government to be challenged by the petition that has come to the committee. The committee has considered the petition, which has overcome the necessary process of scrutiny, given that many petitions come to the Parliament, and has decided that the petition is of such importance that the Government should be challenged about it, the minister should respond to it, and we should debate it all afternoon.

That is a triumph not only for the design of our parliamentary system but for my constituent Nicola Murray, who has endured inexplicable suffering and has brought this issue to us. The issue is very significant, because Ms Murray challenges us to think about whether the existing arrangements—which all of us, in good faith, have put in place—are adequate to deal with the circumstances that people face.

As I have discussed with Ms Murray, the events in her case took place before the Domestic Abuse (Scotland) Act 2018 was in force, and, when I think through some of the issues that are involved, I wonder whether things would have been different had it been in force. Would that have given more protection to my constituent than our pre-existing system did?

That brings me to a wider experience, which has come from spending a large part of the past year sitting on the Criminal Justice Committee—in particular, over the past few months, as it has been scrutinising the Victims, Witnesses, and Justice Reform (Scotland) Bill, which is currently before the committee and which Parliament has approved at stage 1. The evidence that the committee took about the experience of victims was, again, harrowing. We have—I think—strong legislative frameworks in place just now, but we have taken from members of the public testimony that was, in some cases and at some times, impossible to listen to.

As a Parliament—and I encourage the Government to do likewise—we must remain open to exploring in our minds the question that is at the heart of Nicola Murray’s petition, which is whether our current arrangements are adequate and fit for purpose.

I very much take the point that Maggie Chapman and Maurice Golden made. Nicola Murray’s exact proposition might not be perfect. However, as all members know, as we scrutinise legislation, a proposal made at stage 2 might not be perfect, but the Government will take it away, work with the relevant member and come back at stage 3 with a refined proposition that everybody agrees will work. I hope that we can leave today’s debate with members of Parliament and the Cabinet Secretary for Justice and Home Affairs feeling able to consider that, although my constituent’s proposal might not be the perfect solution, a solution needs to be found to address the circumstances that she has experienced.

Having listened to the debate, and in particular to Jamie Greene’s intervention on the cabinet secretary, I am left questioning whether the answer lies in sentencing guidelines or in a new offence. I understand exactly where the cabinet secretary is coming from on the point that we have judicial independence and operational independence for the police and for the Crown.

Going back to what Mr Carlaw said, though, I do not think that any of us can look at my constituent’s experience and say that a £300 fine feels appropriate. The question that the petition forces us to encounter and consider is: what is the right approach? Is it a new offence, or is it to recognise that sentencing guidelines are not appropriate?

My plea to the Government would be not to close the door on this case, but to leave it open for further consideration of the appropriate way to address my constituent’s unquestionable suffering. We should address that by commending her courage and doing something about it.

Sharon Dowey will be the final speaker in the open debate, after which we will move to closing speeches.

16:02  

Domestic abuse is a despicable and evil crime. It is particularly abhorrent when it also results in harm to a child. I cannot imagine how harrowing it is for a mother-to-be to go through the cruelty of domestic abuse, only for the attack to be made more harrowing because it results in miscarriage or stillbirth or forces the termination of a pregnancy against her will. I say to anyone in such a situation that the thoughts of the whole Parliament are with them. We all want to do all that we can for women who suffer in such dreadful situations. It is our duty to give them whatever help we can so that they receive at least some measure of justice.

I pay tribute to the petitioner who has lodged the proposal, who is in the public gallery this afternoon. Nicola Murray has lost three babies as a result of domestic violence. The summary of her petition to the Citizen Participation and Public Petitions Committee said:

“I was absolutely devastated and grief stricken. I felt incredibly let down because in my experience, the law as it currently stands offered no protection or redress. I believe that the current law cannot adequately prosecute perpetrators who cause such loss through their violent actions or coercive control.”

I am sure that we are all touched by the power of Ms Murray’s words and what she has been through. For even one person to have been in such a position is a tragedy. The change to the law that she seeks seems right. It is reasonable and fair, and it identifies and fixes an apparent loophole in current legislation.

I note that the committee heard evidence that similar offences to the one that Ms Murray seeks are already in operation elsewhere. For example, in England and Wales, and also in Northern Ireland, if someone deliberately causes the death of a fetus through violence they can be charged with that. There are a number of examples of that being used in recent cases. There are also examples from further afield, such as in the New York penal code, where the definition of homicide includes causing the death of an unborn child.

I note that much of the evidence that the committee heard established that it is not easy to seek prosecutions in this scenario by using other laws. Although some other laws appear to be possible options, in practice they cannot guarantee appropriate punishment. That leaves the need to create a specific offence that enables courts to hand down longer sentences for perpetrators of domestic violence that causes miscarriage. The Domestic Abuse (Scotland) Act 2018 includes a new statutory aggravation where the offence involves a child, but it does not appear to cover an unborn child. I can see no reason why such a legal change should not be made.

I was not convinced by evidence from the Crown Office, which suggested that existing practices are appropriate to cover the death of an unborn child. The Crown Office said that prosecutors exercise professional judgment when deciding a charge and that miscarriage would reflect that charge. The Crown Office also highlighted the creation of the offence of engaging

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

under the Domestic Abuse (Scotland) Act 2018.

Although I recognise the Crown’s position that the result of a forced termination in the context of domestic abuse could fall into the parameters of that offence, I am not sure that it is suitable in practice. As such, I welcome the proposal from Dr Mary Neal, a reader in law at the University of Strathclyde, who suggested a reform to the existing legislation to include a new offence. She said that that offence should cover

“Behaviour contributing to the ending of a partner’s or ex-partner’s pregnancy”.

In her proposal,

“A person commits an offence if ... the person ... contributes, or attempts to contribute ... to the ending of a partner’s or ex-partner’s pregnancy”

and intends for that behaviour

“to contribute to the end of the pregnancy, or ... is reckless”,

and such behaviour leads to the end of the pregnancy. Such an amendment would give women in that terrible situation some small measure of justice.

Given how harrowing such a situation must be, that is only right. As for how to proceed, I briefly highlight something that was raised by the Citizen Participation and Public Petitions Committee, which is that there are already too many members’ bills to pass during the current legislative session. I hope that, as a result of that, the Government will look to step in and expedite the process, as only the Government can. It should be consensual and a unanimous change to the law, and I believe that the proposal should be fast-tracked by the Government as quickly as possible.

Before I conclude, I remind the Parliament of the case of Lisa Donaldson. She was stabbed, punched and throttled, all while she was 32 weeks pregnant. Her partner caused her a spinal cord injury, brain damage, extensive bruising and numerous other injuries. Her unborn twins died as a result. He received just five years in prison.

The women who suffer the horrific crime of domestic abuse and the harrowing distress of miscarriage deserve to be heard. They deserve a change to the law. They should not be made to wait many years before they receive justice. The Government and every party in the Parliament should act urgently now.

We move to winding-up speeches.

16:08  

I am encouraged to have witnessed and been part of such a thoughtful and considered debate this afternoon. There is a significant degree of cross-party consensus on this vital issue. I am hopeful that, where there is not agreement, on-going conversations might enable and support the shifting of some views, and that we might see progress on each of the recommendations of the Citizen Participation and Public Petitions Committee. I thank the petitioner for her testimony and her work, and I reiterate my willingness to work with her and others in achieving robust and effective change.

As many members have said this afternoon, pregnancy should be a happy time. Families should be able to look forward to the birth of a new life with hope and excitement. No one should fear a pregnancy in case it triggers abuse. No one should have to suffer abuse because, or when, they are pregnant.

As Pauline McNeill, Clare Haughey and others have highlighted, the loss of a pregnancy must be one of the most traumatic events imaginable. To have that happen as a consequence of domestic violence only compounds and complicates the pain, trauma, loss and grief that those affected go through. The criminal justice system then fails survivors. The phrase “adding insult to injury” does not even come close. As Clare Haughey and John Swinney have so clearly articulated, we must ensure that the approaches and systems that we have in place to support survivors are the right ones, that they do what we need them to do, and that they do so with compassion and in ways that really do deliver justice.

I am grateful to Foysol Choudhury, Pam Gosal and others for highlighting the importance of having well-resourced organisations to support survivors. We know that third sector organisations do phenomenal, life-saving work. I am also grateful to them.

It is clear to me that we need a change in law along the lines outlined by the petitioner and developed by Dr Neal to address abuse that either intentionally or recklessly ends a wanted pregnancy. There are likely to be different ways of delivering that. We must ensure that, if we go down that route, there can be no impact on abortion law or questions of legal personhood.

Across the chamber, we have different views about some of those issues. However, as the passing of Gillian Mackay’s Abortion Services (Safe Access Zones) (Scotland) Bill at stage 1 this week showed, we can come together despite those differences to protect those whose rights and wellbeing are under threat. I believe that, in the same way, we can co-operate to fill the legal gap that the petitioner has so eloquently and movingly described. I urge the Scottish Government to ensure that that work has the time and resources that it needs and deserves.

Of course, we all wish that we did not need such laws. They come into play only when the worst has already happened—when people have already suffered and lost. Therefore, we must also consider in all that we do how best to address the root causes of domestic abuse—that malignant hostility towards those who are pregnant or have recently given birth. That is why our potentially ground-breaking and transformative work on misogyny must continue, must be courageous, and must be rooted in the real experience of survivors such as the petitioner.

Today’s debate has perhaps given us a glimpse of a Scotland that we would prefer not to see. Indeed, we have been confronted with the failings of both the state and wider society to protect, support, nurture and lift up our fellow human beings. However, if we are to change that and create a world in which laws such as those that we are discussing today are not needed anywhere near as often as they currently are—if at all—we cannot turn away. We must look, we must see, and we must act.

16:12  

I am pleased to close the debate on behalf of Scottish Labour.

We congratulate the petitioner, Nicola Murray, on bringing the issue to the Scottish Parliament and on her courage in sharing her personal experiences, and we welcome the opportunity to consider whether the law in the area is adequate. We know that, historically, the justice system has treated victims of domestic abuse very poorly and, indeed, that it has often not treated domestic abuse as a crime. We must all recognise that, although there has been significant progress over recent decades, there is still a long way to go.

As Pauline McNeill, Fulton MacGregor, Foysol Choudhury and others have said, pregnancy loss is not an uncommon feature of domestic abuse. Pregnant women, in particular, are often a target of male partners, and there is often a rise in violence against women during pregnancy. As Pauline McNeill said, pregnancy can alter the pattern of assault, with pregnant women more likely to be struck on the abdomen.

We recognise that Scots law has always allowed the facts of a case and the injury as part of an assault to be narrated by the Crown and that the Scots legal system has always had a far more flexible approach than there has been in England and Wales. As the cabinet secretary said, there is already provision in Scots law for pregnancy loss and the intense distress that it can cause, which could be lifelong, to be taken into account in sentencing. It would be very helpful to get more detail from the Scottish Government—either from the cabinet secretary in her summing up or after the debate—as to whether the sentences that courts are giving in such situations are adequate.

I thank all members for taking my interventions—I did not have a speaking slot in the debate, but it is a very important debate and I was keen to involve myself in it.

I was struck by the responses to the Citizen Participation and Public Petitions Committee’s small report on the petition, including from the Crown Office, which made it clear that the Crown was confident that it was able to libel an accused when it believed that there was evidence of “forced termination”. I presume that that would relate only to a situation of coerced abortion, for example, and not necessarily to consequential loss as a result of domestic violence. Perhaps the Government could look at that and at whether the 2018 act is the right vehicle for addressing that or whether—as John Swinney said—the sentencing guidelines would be a better vehicle by which to deliver the same result.

I welcome that intervention from Jamie Greene. He always makes very helpful contributions to these debates, so I am glad that he has been able to make a very short contribution on this occasion.

A number of members have spoken about specific cases. We are not aware of every case, but it is appropriate that we consider whether those cases have been dealt with adequately and whether sentences are appropriate.

With regard to the specific point that Jamie Greene made, my understanding has always been that it has been possible for the Crown to narrate those facts and the injuries suffered, but that will be at the point of sentencing and we will not always know the long-term impact that an assault and an injury may have on a woman who has experienced pregnancy loss.

The cabinet secretary spoke about the work that the Scottish Sentencing Council is undertaking in relation to domestic abuse and the work of the domestic abuse justice partners round table. It would be helpful if she kept the Criminal Justice Committee advised of that work.

Pam Gosal spoke about the appalling circumstances that led Nicola Murray to petition the Parliament. It is the Parliament’s responsibility to ensure that the justice system deals with violence against women effectively when there is pregnancy loss, that there are effective sentences available to the court and that they being used.

We need to recognise that pregnancy—and, indeed, having children—makes women more vulnerable. As John Swinney said, the Criminal Justice Committee has been scrutinising the Victims, Witnesses, and Justice Reform (Scotland) Bill and has given a great deal of consideration as to how the justice system fails women.

We have also carried out post-legislative scrutiny of the Domestic Abuse (Scotland) Act 2018. We are of the view that it has been an effective piece of legislation, but I think that we need to look more carefully at sentencing in cases such as Nicola Murray’s to see whether sentencing is being effectively administered in instances of pregnancy loss or whether further attention needs to be paid to that, either through a new offence or through other mechanisms such as the Scottish Sentencing Council. Whatever mechanism is used, we need to look at the maximum penalties that are attached to offences. These sentences are available to the court now. So, it would be helpful to know from the Scottish Government whether the Lord Advocate believes that there is a need to strengthen the law in this area, what view the Crown Office takes on its ability to prosecute in such cases, and whether there is concern that the courts are giving lenient sentences.

There have been a number of references to what happens in England and Wales, particularly from Maurice Golden and Pam Gosal. It would be helpful if the cabinet secretary could advise whether sentences are, indeed, more lenient in Scotland. In general, sentences are not more lenient in Scotland, but it would be helpful to get more information from the Scottish Government in that regard.

I conclude by thanking Nicola Murray again for bringing the issue to the Parliament. I hope that, as we move forward, the Parliament will scrutinise both the law and the practice of the courts in administering justice to ensure that the issues that the petition raises are properly addressed.

16:19  

This afternoon’s debate has provided an opportunity to explore this important issue in detail, and I am grateful for the opportunity to close the debate on behalf of the Scottish Conservatives. The petition has been under consideration for much of the parliamentary session and I welcome the debate.

When Nicola Murray first submitted her petition, I helped to scrutinise the proposals as a member of the Citizen Participation and Public Petitions Committee. I thank the committee clerks for their assistance with the process, as well as those who gave written and oral evidence. I also—of course—thank Nicola Murray herself. As we have heard, she has had the courage and tenacity to lodge the petition, with the support of organisations such as Scottish Women’s Aid and Victim Support Scotland.

It is vitally important that we are discussing the issue in the chamber, because it shines a light on the matter. We have already heard that a loss of this kind can impact other family members, as it can mean the loss of a sibling or a grandchild. We also know that the current justice system can leave victims feeling as though the perpetrator has not been brought to justice. Many members have highlighted a leniency around the information and what happens to individuals in cases like this. That needs to change. The petition that was lodged by Nicola Murray has highlighted several issues around the effects of domestic abuse and coercive control, which need to be exposed as problems in how they are dealt with in the Scottish system.

Since the Domestic Abuse (Scotland) Act 2018, Police Scotland’s approach to domestic abuse has improved—it needed to improve—but there are still gaps in the system around showing that coercive control has taken place. Nicola Murray has spoken about how much more needs to be done to support victims throughout the current process and how victims can sometimes struggle to be taken seriously when reporting this type of domestic abuse. We have heard today about groups such as Brodie’s Trust, which are there to support victims. It is fantastic that we have organisations, charities and trusts to support victims, but they need to be supported by our judicial system and our police force.

During scrutiny of the petition, the committee raised the possibility of a new requirement that could be introduced, which would ensure that the fact that violence has led to the loss of an unborn child will always be mentioned when the perpetrators of those crimes are charged. That could be a possible alternative to the creation of a completely new criminal offence for actions that lead to the loss of an unborn child. The Scottish Sentencing Council has stated that there is nothing in the current sentencing guidelines to prevent that requirement from becoming a reality. However, as Nicola herself highlighted, there are very few examples of cases in which that type of reference has been included in a charge. So, although that part of the legal framework may already exist, it is clear that it is not effective enough and that more should be done.

We have heard some excellent contributions in the debate. As I said, it shows the strength of the Parliament when we can have a debate of this nature in the chamber. As the convener, Jackson Carlaw, said in his impressive, excellent and emotive speech, the committee has an important role to play in the Parliament and it should be praised for the role that it has taken. There is no doubt that this type of process is a real asset to the Scottish Parliament, when a petition of this calibre can come forward and we can ensure that a review takes place.

The cabinet secretary spoke about her approach of co-operation and collaboration, as well as the challenges with the petition. She also acknowledged that more needs to be done. I look forward to hearing, in her summing up, where we can take this.

My colleague Pam Gosal spoke about the loss, fear, shame and silence that women experience in these circumstances. The fact that four pregnant women are abused every day in Scotland shows the harrowing situation that we find ourselves in.

Pauline McNeill spoke about the fear that victims experience and the loss that they deal with. She said that women should not be put in that position by men and that it is the men we need to manage. That is important, so we need to be tough with their sentencing.

Maurice Golden spoke about the women’s harrowing experience of being badly let down and the pathetic compensation of £300 that Nicola Murray received, which is insulting to say the least.

Sharon Dowey spoke about this evil crime and the lack of justice.

John Swinney spoke very eloquently about the effectiveness of the committee. He shone a light on the committee being a prime example of what the Parliament has the ability to do when an individual raises such an important issue. The matter can be given the respect and support that are required, and the Government can make some changes. I look forward to seeing that happen.

Clare Haughey, Maggie Chapman, Fulton MacGregor and Foysol Choudhury all made very passionate speeches about the issues.

As I have said, the petition has shone a light on many issues, but it is not possible to cover everything in the debate. I hope that the debate will ensure that the Scottish Government looks at the issues highlighted by support groups and campaigners such as Nicola Murray, who have led the charge.

In conclusion, it is vitally important that the appalling crimes of domestic abuse and coercive control are dealt with, to ensure that our justice system is proper and fit for purpose. I look forward to seeing the debate progress and the issues continue to be discussed. I join colleagues in hoping to see a real change and an improvement in the situation, because it is clearly long overdue. With all of us working together, we will ensure that a solution can be found—because solutions need to be found for people like Nicola Murray.

16:26  

Jackson Carlaw started the debate by asking for a review of the legal framework and the wider systems that seek to support victims and survivors. I assure him and Parliament that we are doing, and will continue to do, both. That is done in part through our very constructive engagement with the Citizen Participation and Public Petitions Committee, including the debate that we have all participated in this afternoon; however, there is also a wider hinterland with our cross-Government agenda to tackle and end violence against women and girls, whether through the equally safe strategy, the victims task force, which I and the Lord Advocate co-chair, or the domestic abuse justice partners round table, to which the matter will be referred.

I also want to make it clear to Parliament that no doors are ever closed and that solutions still have to be found, because our journey to ending violence against women and girls is far from over.

I agree with Pam Gosal that we must confront the uncomfortable truths. More than 61,000 domestic abuse incidents were reported to Police Scotland last year, but we know, as Maggie Chapman said, that such crimes are underreported—quite possibly by 30 to 40 per cent. Indeed, the Scottish crime and justice survey found that less than a sixth—16 per cent—of people who experienced domestic abuse in the previous 12 months went to the police. There is a serious issue of underreporting in this country.

Clare Haughey, Pauline McNeill and others spoke to the heightened and amplified danger that pregnant women face when they are in an abusive relationship. Pauline McNeill and Katy Clark spoke, as they always do, in a very informed and eloquent way about Scots law. Fulton MacGregor spoke about some of the strengths of our legal system, including its flexibility, not least with the common law offence of assault that appears in the High Court, and the unlimited sentencing opportunities that go with that.

I have heard from each and every member who has participated in the debate that there is further work to do on some of the issues that have been highlighted by the committee. I will not repeat Marsha Scott’s evidence that I referenced earlier, when she spoke of the unintended consequences based on the English and Welsh experience, but I stress to Parliament that those experiences and unintended consequences are not a reason to do nothing; they give us every reason to learn from them.

I was struck by the evidence from Dr Mary Neal on her proposal that a new statutory aggravation be considered in relation to domestic abuse offending. Such an aggravation has been suggested not just by Dr Neal but by others, including in an intervention from Mr Greene during today’s debate. It also appears, I believe, to have some support from the petitioner. Although much more work would be needed to assess how it might be done, one advantage that a new aggravation would have over the development of a new offence is that it would not seek to newly criminalise an activity, but instead would allow the court to acknowledge the specific seriousness that arises when an existing offence is committed against a pregnant woman.

The benefit and advantage of having aggravated offences is that they give us the opportunity to recognise and label behaviours for what they are. They give us an opportunity to more robustly and evidently acknowledge when harm is done and, in this case, when harm is done to an unborn child as a result of domestic violence.

In my opening remarks, I made it very clear that the issues that are raised today would be subject to full consideration by the Scottish Government. I also made it clear that our work with our domestic abuse justice partners is very important to ensure that, whatever next steps we take, we get them absolutely right. I will also highlight that the work of the Scottish Sentencing Council is important. The council consults on all draft guidelines before they are finalised, and it is open to anyone to make representations to the council about specific matters that should be covered in guidelines. I am sure that we can facilitate this parliamentary debate being drawn to the attention of the Sentencing Council in its deliberations.

In its 25-year history, Parliament has placed a heavy emphasis on tackling domestic abuse and violence against women and girls. We have all endeavoured to work collaboratively on that. If there is any hope to be taken from the debate, it is because there is no doubt that we will all continue to face in the same direction and try our best to march forward together. The personal testimony and campaigns have continued to reinvigorate all of our energy and commitment, day in and day out, to do more to support victims of domestic abuse and, crucially, to tackle the root causes of that vile and cowardly behaviour.

I am sure that I, the Government and the Parliament will all work together to deliver step changes in our response to the crimes of domestic violence. I hope that the petitioner can take some hope and some solace from the tone and tenor of the debate and the actions that I have outlined. My grateful thanks go most of all to the petitioner, but also to the convener, the committee members and everybody who has participated in the debate.

I call David Torrance to wind up the debate on behalf of the Citizen Participation and Public Petitions Committee.

16:33  

I thank members for their thoughtful and compassionate contributions to the debate. As the convener set out and as many colleagues, such as Pauline McNeill, have mentioned, we can be left in little doubt about the devastating impact of miscarriage that has been caused by domestic abuse.

Colleagues across the chamber have touched on Nicola Murray’s testimony and contributions regarding her petition. Clare Haughey spoke of Nicola’s “bravery and tenacity”. Jackson Carlaw spoke of her “courage and determination”. Fulton MacGregor spoke of her motivation. John Swinney spoke of her “harrowing experience” and “suffering”. We are all grateful to her. I, too, put on record my thanks to the petitioner, Nicola Murray, for her dedication to this issue and my admiration for the way in which she has worked to support other victims of domestic abuse.

As a Parliament, we have considered the issue of how to tackle domestic abuse for many years; it is an issue that gathers support from members of all the parties that are represented in the chamber today. That support has been evident throughout the debate in the contributions from Pam Gosal, Maurice Golden, Katy Clark and all the other speakers.

I reiterate that our work on the petition has been profoundly moving. The committee considers a high volume of petitions, each with its own background and, often, with a personal story from the petitioner. The role of our committee is often to amplify the voice of petitioners and put their case to the Scottish Government. It is a testament to Nicola’s hard work that we are here to debate her petition.

As a committee, we do not routinely hear from petitioners, simply because of the volume of petitions that we receive. However, we all considered that it would be helpful in this instance to give Nicola Murray an opportunity to speak to us about why her petition is important.

Nicola’s evidence was compelling; she spoke with great passion and feeling about how

“life impacting”

it is

“not just for the victims but for their families.”

Speaking of her own experience, she said:

“When I lost my pregnancies, I lost a child—I lost children—my children lost siblings and my parents lost grandchildren, so it impacts the entire family. Obviously, afterwards, it is deeply traumatising and emotional. It is not just that you have to deal with the loss itself; it is the circumstances of the loss ... That can add further trauma to the victims and their families, because they feel like they have not received justice.”—[Official Report, Citizen Participation and Public Petitions Committee, 29 June 2022; c 2.]

I agree that we should work to prevent this type of abuse from happening in the first place. We recognise that there is no single solution to this complex problem, but I know that we will all continue to work towards the collective goal of tackling domestic abuse and gender-based violence.

The proposal in the petition is quite specific. It aims to secure justice that is proportionate and appropriate and recognises the trauma that this type of abuse causes. We are aware of the Scottish Government’s concerns that it would be difficult to evidence a crime of this nature, but that does not mean that we should simply do nothing. Dr Mary Neal told the committee:

“we should remember that other crimes with primarily women victims are underreported, difficult to persuade people to come and give evidence about and prosecuted with varying levels of success, but we do not suggest that they should not be crimes for those reasons. Just because rape might be difficult to prosecute, or difficult to get a victim to report because it might be traumatic for a victim to do so and go through that process, we do not say that it should not be a crime”.—[Official Report, Citizen Participation and Public Petitions Committee, 9 November 2022; c 13-14.]

Jackson Carlaw, who is the committee’s convener, highlighted in detail the concerns that Scottish Women’s Aid raised in evidence around “coercive and controlling behaviour.” It is right that we consider the potential for unintended consequences. We must not underestimate the importance of ensuring that we do not risk criminalising victims. Northern Ireland achieved that by changing the relevant offence to ensure that women and their doctors could no longer be prosecuted under abortion law. If a new offence were to be created, it could be designed to ensure that it was separated from abortion law.

The Scottish Government believes that more work is required before we can consider introducing a new offence. However, we all agree that we must find a way to protect pregnant women from this harrowing form of domestic abuse. I welcome the cabinet secretary’s statement that there will be a Scottish Government forum on domestic abuse later this year.

I thank members across the chamber for the sensitive and considered manner in which they have conducted the debate. I also put on record our thanks to the committee clerks for all their hard work, to the Scottish Parliament information centre and to everyone who has contributed to our work so far, either in our evidence sessions or through written submissions to the committee.

Our committee has heard powerful testimony from the petitioner and thoughtful evidence from stakeholders. We have heard about the long-lasting impact of losing a pregnancy through domestic abuse and the considerable challenges for those women who attempt to seek justice.

The committee understands that this proposal is one of many ways to address domestic abuse and gender-based violence more broadly. We recognise that there is a long way to go to implement the Domestic Abuse (Scotland) Act 2018 and that tackling the problem will take a concerted, multi-organisational approach. However, we believe that suffering pregnancy loss as a result of domestic abuse is a unique and traumatic experience, which merits recognition in its own right.

I thank Nicola Murray for submitting the petition and raising this important issue, and I look forward to engaging with the Scottish Government in the future.

That concludes the Citizen Participation and Public Petitions Committee debate on petition PE1887.