20 March 2011

That new Scottish Domestic Abuse Act...

I often have a tart word or two to say about the paltriness of the Scottish media's coverage of Parliament's legislative business, where the reform appears full of Byzantine technicalities, making great demands on the journalistic mind. In this case, the unjustifiable neglect is my own.  On the 16th of March, Holyrood passed Rhoda Grant's Domestic Abuse (Scotland) Act 2011, without a breath of commentary from me on their deliberations. Mea culpa, miserere. Grant is not a particularly prominent or fierce tribune, but she represents the Labour Party in the parliament and has doggedly pursued this issue.

Some background detail...

So what was this reform all about? It is a rather complex field, and I've never been much truck at Family Law. I'll persevere. As I've mentioned before in the context of last year's outrageous Hatcher judgement of the High Court of Justiciary, a number of criminal offences cover (and fail to cover) conduct we might conventionally think of as being domestically abusive. According to Scottish national statistics, the police recorded 53,681 incidents of domestic abuse in 2008-09. 55% of these incidents lead to some sort of criminal intervention. Minor assaults were the most prevalent category of crime recorded, representing 23% of the total, some 12,518, all told. Breach of the peace was the second most common accounting for 18 per cent (9,650) of incidents resulting in a crime or offence being recorded (see Table 1). In future, I would envisage that a number of these cases will be prosecuted under the § 38 of the new Criminal Justice and Licensing (Scotland) Act, which criminalises "threatening or abusive behaviour".

There are also a number of civil remedies which domestically abused persons can resort to, including those set out in the Protection from Harassment Act 1997, which Grant's Bill amends. Insofar as it applies to Scotland, the 1997 Act makes provision for a harassed person to mount a civil action against their harasser. The 1997 Act defines harassment as including "causing the person alarm or distress; and a course of conduct must involve conduct on at least two occasions". "Conduct" includes speech-acts. If the pursuer could persuade a Scottish Court that the circumstances identified as harassment "would appear to a reasonable person that it would amount to harassment of that person", the Court could grant a range of remedies - from damages, granting an interdict or making a non-harassment order. The burden of proof lies on the pursuer - and the standard is one of balance of probability, rather than the more commonly known criminal standard of beyond reasonable doubt.

Damages are pretty self-evident. The two other remedies aim to constrain future harassing conduct but differ in their effects and forcefulness. In Scots Law, an interdict is an order by the Court preventing individuals from embarking on or continuing on some course of action. Critically, breaching an interdict is not a criminal offence. Breach must then be raised by the harassed individual in civil court. Unless the breacher's conduct amounts to some other offence - the police cannot intervene. Under the Protection from Abuse (Scotland) Act 2001, powers of arrest can be attached to interdicts, allowing the police to arrest interdicted individuals where they have reasonable cause to suspect that person of being in breach of the interdict and considers that there would, if that person were not arrested, be a risk of abuse or further abuse by that person in breach of the interdict. The 1997 Act goes one better when it comes to non-harassment orders. If the pursuer can secure such an order, it is a criminal offence for the ordered person to breach its terms., potential punishments ranging from fines to a five year prison sentence.

The reforms...

So what will Rhoda Grant's Act do? Grant's Domestic Abuse (Scotland) Act will introduce Domestic abuse interdicts. Under the Protection from Harassment Act, the harassed individual has to show a course of conduct. Grant believed, quite reasonably, that when we are talking about conducting amounting to domestic abuse, it is unjustifiable that the civil law requires two black eyes, rather than one, before the bastard finds himself subject to legal sanction. Or, as the Dundee Violence Against Women partnership argued:

"...we should not require anyone to be abused multiple times before protection is offered."

The new domestic abuse interdicts requires no such course of conduct, and a single incident will suffice. Secondly, the civil nature of the previous interdiction regime meant that the harassed person had to return to Court to hold their harasser to account themselves and bear the burdens of proof. Practically speaking, there were real concerns that this did not represent a practical, affordable and speedy remedy for people, faced with harassers who unabashedly ignore the order of the Court.  Attaching a power of arrest to interdicts at least meant that the police could pick up the harasser, removing them from the environment and detaining them for a very limited period of time- but any further court action remained for the harassed individual to undertake.  

Under the new Act, breaching one of these domestic abuse interdicts with attached power of arrest is a criminal offence, with punishments ranging from a fine to five years imprisonment. Observers of criminal law will be stuck by the extent to which this regime advances the recognisable tendency to blur traditional distinctions between civil remedies and the criminal law. For example, the mere presence of another individual in a particular environment is highly unlikely to constitute a criminal offence - but their presence may cause significant alarm, in breach of interdict. Like anti-social behaviour orders, this Act allows a civil action to generate a sort of "personal" criminal law, criminalising conduct which is lawful for every other person in the community to undertake. Critically, the duty to enforce this "personal" criminal law is substantially transferred by the new Act, from the individual applicant through civil procedures, to the police and procurator fiscal service.

Who does it apply to?

This remedy will be available to limited categories of people. New domestic abuse interdicts can competently be granted against a person who is or was the spouse of the applicant, a civil partner, a cohabittee (defined in a rather old-fashioned-sounding manner as people who live together "as if they were husband and wife or civil partners") and lastly someone who is or was "in an intimate relationship with the applicant". This last section caused a bit of trouble. Our legislators were trying to catch those individuals who are in relationships, but who aren't bidie-ins. A laudable and open-minded aim. The numbers are eloquent - and terrible - estimony to the importance of the provision. As Grant noted in her speech on Wednesday:

"Approximately 11,000 cases of domestic abuse are reported to the police by people who fall into that category as current partners and almost 19,000 are reported by people in that category who are ex-partners."

Parliament is very much to be commended, for trying to contend with the muddle-guddle of reality, whose relationships often defy simple definition, and whose edges are blurred. Even so, the term in an intimate relationship isn't exactly felicitous. Does one live in "intimate relation" to one's flatmates? Many of us, certainly, in terms of physical proximity and emotional attachment. Our business partners?  Maybe not. What about family members? Your brother, your mother? Your priest, to whom you confess your most intimate peccadilloes? Does intimacy imply sexual relations, of whatever intensity or regularity, or not? Robert Brown didn't oppose the amendment, but expressed related qualms:

"... despite Rhoda Grant’s explanation, the phrase “intimate personal relationship” is not in fact defined in the bill and therefore it is difficult to know what a court might make of it. The situations that it covers could range, if I may put it this way, from a one-night stand to a relationship that, despite Rhoda Grant’s explanation, is not necessarily a full sexual relationship, because the phrase “intimate personal relationship” does not necessarily seem to imply that. There are all sorts of definitional issues about what the phrase covers."

The Minister for Community Safety, Fergus Ewing, expressed a touching spent-wick understanding of the end of physical love...

"We consider that “intimate” means that there is a close relationship, but it does not necessarily have to be of a sexual nature—it could be a close emotional relationship in much the same way that a relationship between spouses, civil partners or cohabitants does not have to be sexual."

Although this will likely seem totally bonkers to your average citizen - for many years judges refused to consult the verbatim records of proceedings in Parliament when interpreting what a given piece of legislation meant. Altering that approach, in Pepper v. Hart [1992], the House of Lords held that:

"...reference to Parliamentary material should be permitted as an aid to the construction of legislation which is ambiguous or obscure or the literal meaning of which leads to an absurdity."

Fergus Ewing clearly had this in mind on Wednesday with respect to the open-ended terms of "intimacy", when he unambiguously reiterated that the section "is intended to—and we believe it will—capture appropriate relationships between boyfriends and girlfriends but not brothers and sisters." Of course, this doesn't actually resolve the problem of definitions, so much as displace them. When does a casual something become solidified? People may have very different subjective understandings and experiences of these matters, so it seems problematic to imagine that this is a matter of fact, rather than law. Indeed, some folk do actually dwell in domestic settings with their siblings for much of their lives. Like many families, I suspect, a generation or so back, mine included bustling maiden aunts who lived together all their days. Such difficulties of definition are a drear delight to the legally-minded, in the vast majority of cases, I anticipate the main categories of definition should more than suffice. For my part, I very much commend Rhoda Grant for her efforts and hope that this new legal regime will contribute in a constructive way to the safety of our fellow Scots, affording better and speedier remedies to those who live and continue to live, subject who the appalling abuse and harassment of others.


Having published this post earlier, I listened to this morning's edition of the BBC Scotland's Sunday Morning with Richard Holloway. In a rerun of an earlier interview, Holloway's guest was the authoress Janet Paisley.  She speaks deeply movingly about her own experiences of domestic abuse. Whenever you are talking about abstract legal persons, and legal provisions, much of the underlying human experience is neglected. Listening to Paisley's astonishingly poignant, broken-voiced reading of Kipling's poem If is a stark reminder of  the appalling, life-blighting phenomenon Grant's Bill tries, within the limits of law's technologies, to assuage. The programme is available here, for seven days.


  1. I too heard Janet's interview with Holloway this morning on the radio. Her moving interview should give us hope - society has come a long way from the days when these things were simply not talked about, let alone specifically legislated for.

  2. A very powerful piece I thought, Macintyre - and as you say, a heartening one, through the grim bitterness. I always very much enjoy listening to Holloway's gentle inquisitions. Although I don't believe they indulge in the Confessional in Episcopalian Churches, his time as a bishop seems not to have dulled his talents for sympathetic questioning and the attractive pursuit of very difficult issues in a profoundly humane, gentle fashion. Most admirable.

    On the broader domestic abuse issue, our goal must be to eliminate - or given the incorrigibility of human wickedness, reduce and minimise - this scourge. Laws do not make people virtuous, after all. A willingness to recognise these issues, and discuss them, is as you say the sine qua non of changing some of the terrible ways people behave to one another.

  3. Mind you, in ten days time it will no longer be possible for a victim of domestic abuse to go to see a lawyer and instruct the raising of interdict proceedings immediately. With effect from 1st April, automatic emergency legal aid is no longer available, and the lawyer will require to apply for sanction.

    Under the old system the lawyer might be prepared to take the client on trust, apply to the court right away, and make sure the client came back in with a witness, or a letter from her doctor/Women's Aid, plus proof of income, within the next few days.

    I suspect the Board will now require both corroboration and proof of capital and income before granting sanction, which will in fact make the urgent obtaining of these new interdicts more difficult than is the case at prsent.

  4. A vital point, Voice of Reason. Many thanks for raising it. As I've noted in other contexts, I'm not a practitioner and have never conducted socio-legal research on how Scottish legal aid actually functions - so its operation remains opaque to me. That sounds like a very concerning development.