Hansard

We no doubt all agree that domestic abuse that is carried out against anyone for any reason is wrong. People who carry out domestic abuse give love a bad name. The subject is serious, but it is certainly not simple, and nor are the answers simple.

We are here to discuss the Scottish Government’s intention to bring forward a bill to create a specific offence of domestic abuse. That means, of course, an act of Parliament that is intended to criminalise certain behaviour. It is important to set that in context. To put it bluntly, the law on its own is a blunt instrument by which to bring about change in an individual’s undesirable conduct.

The law or a specific act of Parliament may have an intention, but that does not mean that it fulfils that intention once it becomes law. Perhaps one of the most important things to remember in a civilised country is that individuals need to treat others as they would like to be treated themselves. To put it simply, they need to love their neighbour as themselves. It is important to keep such basic principles in mind as a framework, at the same time as we recognise that there is a problem that may need to be addressed in a specific area.

As someone who has both prosecuted and defended in the courts of Scotland on many occasions, including in cases involving domestic abuse, I know that simply making a law is not enough. How often is a prosecution brought only to fail to succeed before the court? That can be for a variety of reasons, such as that the circumstances are not clear, the victim does not give evidence or the law is unclear. Those are all questions that need to be asked and answered.

Resources need to be available to the police to deal with any new offence, to the prosecution service to prosecute and to the courts and prison services to deal with the cases that come to them. That issue has already been raised by others. The question that arises is whether those resources could be better spent elsewhere, in support of the victims of domestic abuse and in seeking to change the attitudes and actions of offenders. As has already been eloquently put by a fellow member of the Scottish Parliament, a victim of abuse may not give evidence in court, having made the call months before to the police, because of a fear of losing a person and a relationship that they have long since returned to because of a much deeper emotional reliance. Will the creation of a new offence help if adequate support is not available to victims in their circumstances? By that, I mean support outwith what the law seeks to provide through the criminal offence.

That is surely one of the most important issues in the whole matter. If victims give evidence, they need to know that they do not do so in vain and that the law is clear so that a conviction will follow when an offence is proven. Of course, there must always be a balance: the law must be fair to alleged offenders as well. Clarity in the law is one of the first steps in that. However, equality of treatment for all individuals should be evident.

According to the motion before the Parliament, figures from 2014-15 show that 79 per cent of the incidents of abuse involve a male perpetrator and a female victim. Although there is therefore an understandable focus on female victims, which has already been evident in some of the speeches, male victim and female perpetrator cases have reportedly risen from 11 per cent back in 2005-06 to 18 per cent in 2014-15. That aspect should not be forgotten in the discussions on the issue.

All of these issues and many more play an important part in getting the approach to domestic abuse right. Is a new law all that we need? I think that most people would agree with me that it will certainly not be enough. However, as has been said, if there is to be a new law, we need to get it right. The proposed draft offence as set out in the Scottish Government’s consultation on the criminal offence of domestic abuse is just that—a draft—but detail is important.

Before anyone’s eyes glaze over at the thought of legal detail, as I indicated, I point out that I am an advocate—if that needs to be declared as an interest—but I was not involved in the Faculty of Advocates’ response to the consultation document. I agree, at least in part, with the position of the Law Society of Scotland, specifically when it said:

“New legislation will require clarity, to ensure that it can be effectively implemented in practice.”

It is precisely that which seems to me to be lacking in the draft offence that is set out in the consultation paper. It contrasts sharply with the careful wording of its English equivalent in section 76 of the Serious Crime Act 2015.

Laugh not, for definition is the stuff of statutes, as engineering formulae might be the stuff of bridge building. I am not seriously suggesting that I, as a non-qualified engineer, be put in charge of the new Forth bridge project but, as a lawyer, I think it important for any new offence to be clearly defined to ensure that it fulfils its intended purpose instead of failing and resulting in the disappointment of those whom it is meant to protect.

There are many examples in the draft, but let me conclude—