The Domestic Abuse (Scotland) Act 2018 came into force on 1st April 2019, creating the crime of psychological abuse within a relationship. In this guide, we cover some of the most commonly asked questions about domestic abuse in Scotland:
If you do not instruct a solicitor and you wish to contest the charges brought against you, the Court will not allow you to cross examine the complainer at trial. This means that the Court will instruct an advocate to represent you and this could happen on the day of the trial itself. Instructing a criminal lawyer at the earliest possible opportunity means you get to choose who represents you and allows you to prepare thoroughly for trial.
Once you raise a defence, it is up to the Prosecution to disprove it. There is a defence to the charge if you can show that you acted reasonably in all the circumstances. If, for example, you had stopped your partner leaving the house because they were recovering from a serious operation, this might be considered reasonable. Similarly, if you prevented your partner from buying alcohol or drugs when they had an alcohol or drug problem, this might also be considered reasonable.
You do not have to prove your innocence. It is the Prosecution who must prove that you are guilty and they must do so beyond all reasonable doubt. The Court can allow evidence to be introduced to confirm that someone suffers from mental health problems and what sort of behaviour they might be prone to because of their illness.
A domestic abuse prosecution can take place in Scotland if the usual place of residence of one or both parties is Scotland or they are a UK citizen.
There is an aggravated version of an offence under the Act which specifically covers situations where children are involved in coercive or controlling behaviour between partners. This means that a charge can be brought even if your behaviour was not specifically directed towards your partner.
The legislation was passed to address situations where a person alleges they have suffered from controlling or coercive behaviour which is likely to cause psychological damage however that controlling or coercive behaviour may have come about.
It will be up to the Court to decide if incidents separated by a long period of time amount to the pattern of behaviour that the Prosecution must establish in order to prove the charge.
In order to find you guilty, the Prosecution must show that there have been at least two incidents of controlling or coercive behaviour and it is likely that the behaviour would cause the complainer to suffer harm. In addition, the Prosecution must prove that you intended to cause harm or were reckless as to whether harm would be caused. They do not have to establish that actual harm was caused.
There will be a presumption that you are in a relationship unless this is challenged before trial. This is another reason for instructing a solicitor at the earliest possible opportunity.
The domestic abuse offence is one that can be dealt with either as a summary or solemn matter. In summary cases, the punishment can be up to 12 months in prison or a fine or both. In solemn cases, the punishment is up to 14 years in custody or a fine or both.
If you are found guilty or plead guilty to domestic abuse, the Court is required by law to consider whether it is necessary to make a non-harassment order. This will protect both the complainer and any children of the family if they are considered to be vulnerable or involved in the proceedings in some way.
For more information, please see our guide on domestic abuse and the law in Scotland here. If you have been accused of domestic abuse, you must take action right away. We also have an exceptional team of solicitor advocates who can represent you.
Our lawyers defend clients in Alloa, Dunfermline, Edinburgh, Glenrothes, Kirkcaldy, Methil, Perth, Stirling and throughout Scotland. Call our criminal defence solicitors for a free, initial consultation in Dunfermline on 01383 730 466, in Kirkcaldy on 01592 640 680, in Alloa on 01259 725 922 or make an online enquiry.