Committee
Justice Committee 23 February 2021
23 Feb 2021 · S5 · Justice Committee
Item of business
Domestic Abuse (Protection) (Scotland) Bill: Stage 2
At stage 1, the committee heard from Police Scotland that there was some concern that the bill was not sufficiently clear that the DAPNs are intended to be emergency measures to address those cases in which there is an immediate risk of harm. Detective Chief Inspector Sam McCluskey said “There is no component of risk in section 4. That is really important. People use the term ‘emergency order’; the police officer’s decisions on such an order will be risk-based.”—Official Report, Justice Committee, 22 December 2020; c 28. On the back of that evidence session, we engaged extensively with Police Scotland—as we had prior to the introduction of the bill—and it expressed similar concerns regarding the test to be used by the court for making a DAPO and when it would be appropriate for the police to make an application for a DAPO. Following that engagement, we decided to introduce amendment 5. As the bill stands, the police can make a DAPN only if they consider that there are reasonable grounds for believing that it is necessary to protect person B from abuse by person A during the period before a sheriff can make a DAPO or an interim DAPO. Similarly, when a court is considering whether to make a DAPO, it can only do so when it considers that that is necessary to protect person B from the risk of abuse. By virtue of the necessity test and in view of the fact that a DAPO can run only for two months—extendable up to three months on application—I consider that it is implicit that the sheriff would have in mind whether person B was at an immediate or imminent risk of harm in deciding whether it was necessary to make a DAPO. However, in light of the concerns expressed, I consider that there is some merit in making that clear in the bill. Amendment 5 adjusts the test for making a DAPN, so that the police are required to have reasonable grounds for believing that the DAPN is necessary to protect person B from the risk of immediate abusive behaviour by person A. “Immediately” is defined as meaning in the period before a sheriff could make a DAPO or an interim DAPO. 10:15 Amendments 11 and 12 make consequential changes to section 6 in respect of the information to be contained in relation to a DAPN. Amendment 14 adds a third issue to the matters as to which the sheriff must be satisfied in order to make a DAPO. Its effect is that the sheriff can make a DAPO only when “there is an immediate or imminent risk of person A engaging in further behaviour which is abusive of person B”. Amendment 17 provides that, in deciding whether it is necessary to make a DAPO to protect person B from abusive behaviour by person A, the sheriff can have regard to any risk of abusive behaviour that might occur at a later time, as well as to the immediate or imminent risk of abusive behaviour that requires to be present before a DAPO is made. Members will be aware that other jurisdictions often refer to similar powers as “emergency barring orders”. These amendments are intended to more clearly focus part 1 of the bill on cases in which the risk to person B from person A is likely to manifest itself immediately or imminently if protection is not put in place, while still allowing protection to be put in place as necessary for up to two months. I move amendment 5.
In the same item of business
The Convener
Con
Item 3 is stage 2 consideration of the Domestic Abuse (Protection) (Scotland) Bill. For that purpose, members should have with them a copy of the marshalled ...
The Convener
Con
The first group concerns domestic abuse protection orders and notices and the requirement for persons A and B to live together. Amendment 1, in the name of t...
Humza Yousaf
SNP
Thank you, convener. I will speak to amendments 1 to 4, which were lodged in my name. I welcome this stage 2 session. During the scrutiny of the bill, impor...
The Convener
Con
No members are indicating that they wish to speak in the debate on the group, so I invite the cabinet secretary to wind up and press amendment 1.
Humza Yousaf
SNP
I have nothing to add in winding up and I am happy to press the amendment. Amendment 1 agreed to. Amendments 2 to 4 moved—Humza Yousaf—and agreed to. Sect...
The Convener
Con
The next group is on what constitutes abusive behaviour: additional examples. Amendment 28, in the name of Rachael Hamilton, is grouped with amendments 44 an...
Rachael Hamilton (Ettrick, Roxburgh and Berwickshire) (Con)
Con
I am here.
The Convener
Con
Oh, you are there. Would you like to move—
Rachael Hamilton
Con
Yes. Would you like me to speak to the amendment? Convener, can you hear me?
The Convener
Con
Yes.
Rachael Hamilton
Con
I take the opportunity to explain the intentions behind amendment 28. It centres on the financial abuse that can arise when a perpetrator can still gain acce...
Humza Yousaf
SNP
I thank Rachael Hamilton for lodging what she has described as a probing amendment. It is helpful to have this discussion, so that we can provide absolute cl...
The Convener
Con
I ask Rachael Hamilton to wind up, and to press or withdraw amendment 28.
Rachael Hamilton
Con
I thank the cabinet secretary for that clarification. I want to comment on the current situation in which women, through mainstream media, are being held hos...
The Convener
Con
The next group of amendments concerns domestic abuse protection orders and notices: the requirement for immediate or imminent risk of abusive behaviour. Amen...
Humza Yousaf
SNP
At stage 1, the committee heard from Police Scotland that there was some concern that the bill was not sufficiently clear that the DAPNs are intended to be e...
Rhoda Grant (Highlands and Islands) (Lab)
Lab
I am concerned about adding the term “immediately” to the bill, because it seems to me that someone who is in danger needs to be protected. The inclusion of ...
The Convener
Con
As no other member has indicated that they wish to speak in the debate on this group, I invite the cabinet secretary to respond to what he has heard and to w...
Humza Yousaf
SNP
I can give some reassurance to Rhoda Grant, but if what I have to say does not reassure her, I highlight that we extensively discussed the issue with Scottis...
The Convener
Con
The next group of amendments is on a child living with person B being able to apply for a domestic abuse protection notice or a domestic abuse protection ord...
Rhoda Grant
Lab
Domestic abuse damages a child’s life. Their resilience and self-esteem are damaged, as are their life chances. They do not need to be a victim of or to expe...
Humza Yousaf
SNP
I will speak to Rhoda Grant’s amendments 46 and 47. I listened to her remarks, but I am still slightly unsure about what the practical implication or effect ...
Rhoda Grant
Lab
One of the difficult things about domestic abuse is that the victim often hides the crime. The conduct that has gone on before the time when the victim decid...
The Convener
Con
We move to the next group of amendments. Amendment 6, in the name of the cabinet secretary, is the only amendment in the group.
Humza Yousaf
SNP
Amendment 6 would strengthen the requirement that must be met for a domestic abuse protection notice to be imposed under section 4 of the bill. Members know ...
The Convener
Con
Amendment 7, in the name of the cabinet secretary, is grouped with amendments 8, 9, 23 and 24.
Humza Yousaf
SNP
Amendment 7 responds to concerns expressed by Police Scotland that a suspected perpetrator could seek to frustrate the system of notices and orders by failin...
The Convener
Con
Amendment 10, in the name of Rhoda Grant, is in a group on its own.
Rhoda Grant
Lab
Amendment 10 makes it clear that a domestic abuse protection notice takes precedence over any other orders that are in place. It would not be ordinary for a ...
Humza Yousaf
SNP
I thank Rhoda Grant for lodging amendment 10, which would add a provision to section 5 to make it clear that any prohibition or requirement in a DAPN must be...