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Review of The Domestic Abuse (Scotland) Act

In April 2019, ground breaking legislation criminalising psychological abuse and coercive and controlling behaviour came into force in Scotland. The Domestic Abuse (Scotland) Act 2018 has now been in effect for six months and has been supported by a widespread public awareness campaign to encourage understanding of the type of behaviour which may amount to domestic abuse under the new laws.

Victims of domestic abuse have also been invited to come forward to report behaviour amounting to coercive control and psychological abuse. In this post, we look at the use of the Act so far and to what extent it is working for both victims and their families, and those accused of domestic abuse.

Key Provisions of The Domestic Abuse Act

The Domestic Abuse Act changed the way domestic abuse is defined, investigated, and sentenced in Scotland in several ways. Outlined below are some of the fundamental changes, how these have worked in practice since the Act came into force and potential improvements that could be made to ensure the Act provides the right protection for victims of domestic abuse.

Criminalisation of Psychological Abuse and Coercive Control

Scotland has led the way in making patterns of psychological abuse and controlling behaviour a criminal offence. The law allows police to investigate potentially abusive relationships thoroughly, and ensures that all types of abusive behaviour are punishable under the law.

Assistant Chief Constable Gillian MacDonald, said:

“Coercive and controlling behaviour can have the most profound, damaging and long-lasting effects on individuals and on our society. For the first time, it will allow us to investigate and report the full circumstances of an abusive relationship. We will be able to include evidence of coercive and controlling behaviours where it forms a pattern of abuse, often carried out alongside other insidious behaviours, including physical and sexual abuse.”

The new legislation outlines that abusive behaviour can be:

Behaviour that is violent, threatening or intimidating or any behaviour that has the purpose of:

  • making a domestic partner subordinate or dependent
  • making a partner isolated from family, friends or a wider support network
  • regulating, monitoring or controlling the day-to-day activities of a partner
  • restricting a partner's freedom of action
  • humiliating, frightening, degrading or punishing a partner.

As a result of the expanded definition of what constitutes domestic abuse, in the first three months of the law coming into force, more than 400 crimes were recorded by Police Scotland. It is estimated that this figure is now approaching 600. In the first three months, 190 cases had been reported to the Crown Office, resulting in 13 convictions.

Justice Secretary Humza Yousaf said:

"We all want victims to have the confidence to report crimes committed against them, and I am grateful for the hard work and diligence of Scotland's police, prosecutors and other partners in the early enforcement of this important legislation."

However, there is a concern that women’s experiences of reporting under the new legislation have varied depending on where they live. A spokesperson from Scottish Women's Aid said it was "happy to hear some encouraging reports" but that we must be cautious of drawing any conclusions about the success of the legislation.

Dr Marsha Scott, from Scottish Women’s Aid, highlighted that the organisation would be keeping watch as they received reports of women across the country with different experiences of reporting incidences of non-physical abuse.

Dr Scott also said:

"We are particularly interested in hearing more detail about the more than 50% of cases not being passed to COPFS (The Crown Office and Procurator Fiscal Service) and how we can work with partners to improve this figure.”

Sentencing Aggravation for Harm to Children

The Domestic Abuse Act also contains a sentencing aggravation provision, that outlines that an offence will be aggravated where any action is directed at a child or witnessed by a child. This is the only piece of UK legislation to contain such a provision and is designed to demonstrate clearly the impact such behaviour can have on a child growing up in an environment where domestic abuse is prevalent.

However, Scottish Women’s Aid has reported that men convicted and jailed for violence against their partners continue to use child access meetings to carry on the abuse.

Dr Marsha Scott said:

“We’re seeing more and more mothers being abused in custody and visitation scenarios. In fact, it’s the single biggest reason that we get inquiries for legal advice on the Women’s Aid phoneline.

Non-Harassment Orders

The Act also contains a provision requiring the courts to consider imposing Non-Harassment Orders on a case-by-case basis to protect victims from further abuse. Again, inconsistent application across the courts has caused concern as to what extent victims and their children are being protected from the continued behaviours of an abuser.

Lead solicitor at the Scottish Women’s Rights Centre, Sarah Crawford said:

“Survivors of domestic abuse who approach our centre often mention child contact as one of the ways in which the abusive ex-partner continues the cycle of abuse. We also hear that child contact arrangements are used to exert control over the woman, even in cases where the abuser has received a conviction.”

It seems that consistency and proper use, implementation and enforcement on Non-Harassment Orders is vital in ensuring that those who have suffered domestic abuse become free of the coercive control of their abuser.

Dr Scott said:

“We really need to pay attention to the implementation of harassment and domestic abuse orders – and enforce them in ways that really sanction effectively when these orders are breached. Abuse can result in physical and mental harm to victims, but evidence has shown children are affected too, so we need to look out for their interests as well.”

Have you been charged with domestic abuse?

Facing domestic abuse charges can be devastating, but it’s essential to act fast by seeking legal advice at the earliest opportunity. Our domestic abuse solicitors can help by discussing your options with you confidentially. We provide a complete legal service from liaising with the police through to representing you in the sheriff court or the high court depending on the nature of your charges. We also have a specialist team of experienced solicitor advocates who can represent you in the high court.

Contact our Domestic Abuse Solicitors Kirkcaldy, Alloa, Dunfermline & Edinburgh

We represent our clients in Alloa, Dunfermline, Edinburgh, Glenrothes, Kirkcaldy, Methil, Perth, Stirling and throughout Scotland. We are widely recognised as one of Scotland's leading criminal defence teams and will work tirelessly to ensure you have the best possible outcome.

Call our solicitors today 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 using our form.

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