Hansard

I echo the cabinet secretary and the convener of the Justice Committee in thanking everyone who gave evidence to the committee as well as the clerks and the Scottish Parliament information centre for all their assistance.

In its current form, the criminal law focuses on discrete incidents of physical violence or threatening behaviour that causes fear or alarm, and it can fail to recognise the lived experience of domestic abuse as a course of conduct over a period of time. The bill seeks to bridge that gap, making it possible inter alia to convict an individual on the basis of a course of conduct that includes psychological abuse.

As the cabinet secretary has made clear, the intention of the bill, if passed, is to improve the justice system’s response to domestic abuse, principally by creating a new offence of engaging in an abusive course of conduct—even if it is entirely non-physical—against a partner or ex-partner, and it will also amend procedural and evidential aspects of criminal law with a view to tipping the balance in favour of domestic abuse victims. Accordingly, I confirm that the Scottish Conservatives support the bill in principle and will vote to agree to its general principles at decision time.

The bill seeks to address a lacuna in the legislative landscape. The committee heard compelling and persuasive evidence from a number of organisations, social workers, the Equality and Human Rights Commission and from abuse survivors. Some of the harrowing conduct that was described to the committee is not currently criminal and therefore cannot be prosecuted, and it is that which the bill seeks to address.

Some areas merit further consideration, and my colleagues will pick up on those throughout the debate. Concerns have been expressed about whether the bill risks setting the bar of criminality too low, which could potentially lead to the wrong cases being prosecuted. Calum Steele of the Scottish Police Federation gave evidence that couples at the time of a relationship breakdown may sometimes be “particularly horrible” to each other but, a few months down the line, the parties may regret getting the criminal justice system involved.

Andrew Tickell of Glasgow Caledonian University law school expressed concerns about overcriminalisation when the law intervenes in family and romantic life. He had particular concerns about the use of the word “distress” to define psychological harm, as it is a novel term in criminal law.

The SPF further expressed disquiet around officers becoming pawns in routine family disagreements, with Calum Steele noting that there is a “fundamental difference” between arresting on the basis of physical evidence and interpreting whether there has been psychological abuse. He said that, at the very least, officers would need training to apply the law. I agree with the point that Liam McArthur made in his intervention that the cabinet secretary’s response to the committee’s stage 1 report is useful in that regard, as it is in a great deal of respects.

I want to flag up an area that the Scottish Government might wish to consider. Courts can sometimes seem stacked against domestic abuse survivors. There is an acceptance that the judicial process for domestic abuse victims is traumatic and that steps should be taken to minimise what they have to relive and, as the committee’s report suggests, to ensure that people are not revictimised by the criminal justice process. The Scottish Government accepts that point in the policy memorandum on the bill.

The issue potentially persists where victims of domestic abuse have to recount their case to multiple sheriffs. Far too often in cases of domestic abuse, there may be a number of issues, for example divorce and/or child residence arrangements, as well as the domestic abuse. Those will be heard in different arenas, with perhaps one sheriff in a civil court hearing evidence during the divorce proceedings and a separate sheriff in a criminal court for the domestic violence. There is also the possibility that multiple sheriffs will deal with different stages of a civil case. According to SPICe,

“At present, a number of sheriffs can be involved in an individual family case. There is no system whereby the same sheriff deals with every stage of the civil case.”

That means that, potentially, victims have to repeatedly relive their ordeal. Domestic violence victims face many barriers to safety and independence, but incomprehensible and/or overcomplex court proceedings should not be one.

Trials of a one family, one judge system to address the issue have been carried out in the US, Australia and New Zealand. In that system, to avoid unnecessary trauma the victim has to recount their experience to only a single judge. In England, there have been trials of an integrated domestic violence court, in which one judge handles the criminal cases related to domestic violence as well as all accompanying civil matters. The single presiding judge is cross-trained to handle all matters—criminal and civil—relating to a family. Arguably, by concentrating responsibility, that integrated court speeds decision making and eliminates the potential for conflicting judicial orders.

The approach can also increase co-ordination among criminal justice and community-based social service agencies and may improve the ability to keep tabs on defendants and to respond quickly to allegations of non-compliance with imposed orders. It may reduce the number of court appearances, thereby streamlining the process and meaning that the trauma of retelling the incident numerous times can be avoided. A review found:

“The evidence on IDVCs is promising and indicates there are advantages to bringing together family, civil, and criminal cases.”

I accept that there are issues to be addressed. Difficulties can arise when the evidence given in one case differs from that given in another, and there could be an administrative burden in ensuring that the same judge deals with both matters. Proper procedures, administration and resources would require to be in place to make it happen, but a one family, one sheriff approach for domestic abuse victims in Scotland is surely worth exploring, whether as part of the bill or separately.

Domestic abuse is monstrous and can cause immense and enduring trauma and harm. It has been sobering to hear and read the testimony of victims and the organisations that support them, which has highlighted the fact that there is behaviour that cannot currently be prosecuted because it does not meet the threshold of criminal conduct. It is clear from that evidence that more must be done to support victims, that there is a gap in our law and that the new offence is required.

We agree that the general principles of the Domestic Abuse (Scotland) Bill are sound and we shall vote for it today. However, we are confident that the Government will listen to concerns raised in the Justice Committee’s stage 1 report and during this debate to ensure that the new law is as effective as it can be.