Meeting of the Parliament 28 September 2017
It is a privilege to speak in this debate on the Domestic Abuse (Scotland) Bill, because it is a vital piece of legislation to come before Parliament.
The bill makes domestic abuse a specific offence and creates a new offence of
“Engaging ... in a course of abusive behaviour”
towards a partner or ex-partner. It recognises, for the first time, the patterns of abusive behaviour and the truly traumatic and lasting impact that that has on the victims of abuse.
The Justice Committee heard a considerable amount of powerful evidence on the bill. Today, I will focus my contribution on non-harassment orders. A non-harassment order is a court order that can be used against a partner, ex-partner or any third party behaving in a way that frightens or causes distress. Currently, it is up to the prosecution to request a non-harassment order, but the prosecution is under no obligation to engage with the victim on whether an application should be made.
Under the current system, only a small percentage of successfully prosecuted cases result in non-harassment orders being issued. Research that was done in one region found that there were convictions in 502 out of 644 cases with a domestic abuse aggravator, yet only 33 non-harassment orders were issued—that is, in only 6 per cent of successfully prosecuted cases. Under changes that the bill proposes, consideration of non-harassment orders would be mandatory in such cases.
Non-harassment orders are particularly important for two reasons. First, as was mentioned repeatedly in the evidence submitted by the Crown Office and Procurator Fiscal Service, Zero Tolerance and others, there is a significantly high risk of reoffending. Zero Tolerance cited evidence of that risk being a
“near certainty in domestic violence cases.”
The second reason is the high financial cost of pursuing a non-harassment order through the civil courts. We read about the experiences of one survivor of domestic abuse in written evidence. She wrote:
“On the day of sentencing I did not know if my abuser, who was my husband would be given a Non Harassment Order. He was not. In effect the law would allow him to leave court, get in his car and drive straight back to the marital home where I was still living. Having had the benefit of 17 months of police bail conditions while he was ‘innocent’, the law waits until he is actually convicted of a violent crime, then lifts the protection I had. It just doesn’t make sense.”
She went on to highlight what that means financially for those who are then forced to try and pursue a non-harassment order through the civil courts:
“A civil interdict is a very expensive route and I would argue beyond the reach of most victims ... When considering this I rang a solicitor and was quoted £2,000. When I expressed my shock and asked what if I can’t afford it, he replied that some women just wait to be assaulted again and use bail conditions!”
The costs, which can spiral to as high as £10,000 if the interdict is defended, can be considered as acting in effect as a barrier to justice.
The evidence went on to say:
“I can honestly say I would rather be assaulted again than go through the system as it stands”.
What frustrates and hurts me about that statement is that we heard exactly the same from another victim of domestic abuse when the Justice Committee took evidence as part of our inquiry into the Crown Office and Procurator Fiscal Service. We simply cannot have a situation that makes people who have suffered such horrendous abuse prefer to suffer that abuse than go through the justice system.
Another important element that we touched on during our evidence sessions is the potential for introducing emergency barring orders—an immediate action that could be taken that would, essentially, ban perpetrators of abuse from the home of the victim for as long as was considered necessary. Unfortunately, we felt as a committee that we had not taken enough evidence on that to make a recommendation, but I am glad that we will take more evidence on it at stage 2.
The bill that we are discussing today is such an important piece of legislation. It has the capacity to make a huge difference to those who have suffered physical and psychological abuse, as well as sending out a message loud and clear that the insidious crime of domestic abuse will not be tolerated in our society and in our country.