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Opinion: Andrew Tickell

19 February 18

The new domestic abuse law received cross-party support, but while legislation in this area was necessary, does it go too far in not setting thresholds for what behaviour should be criminalised?

by Andrew Tickell

The Domestic Abuse Bill passed to thunderous applause in Holyrood, but the mood among many criminal lawyers is more ambivalent, and for good reason. 

Coercive and controlling behaviour is just the latest in a generation of “crimes against the person” recognised by the Scottish Parliament. In 2010, Holyrood took breach of the peace back behind closed doors with a new offence of behaving in a “threatening or abusive” way which is “likely to cause a reasonable person to suffer fear or alarm”. Alongside this, MSPs created a new offence of stalking, criminalising “courses of conduct” – much of it potentially innocuous in any other context – which cause the complainer “to suffer fear or alarm”. With these tests, this first wave of new offences struck a careful balance.

Critics of the status quo argued these offences were inadequate to address the lived experience of abusive relationships, in which violent conduct may or may not be married to sustained psychological cruelty, with dramatic and irrational demands on the abused partner. They had a point. 

In response, however, Holyrood has arguably gone too far and lost sight of the fact that legal certainty – and clearly discriminating between crimes and wrongs – can enhance the credibility of controversial legislation, rather than detract from it. 

Comparisons with Westminster are germane here. In 2015, s 76 of the Serious Crime Act created the offence of “controlling or coercive behaviour” in England & Wales. The Act is both wider and narrower than its Holyrood equivalent. Its provisions apply not only to partners and ex-partners, but also to family members and those in “intimate personal relationships”; however, the prosecutor faces considerable evidential hurdles, having to prove personal connection between accused and complainer, repeated controlling or coercive behaviour, a “serious effect” on the complainer (further defined in the Act), and that the accused knew or ought to have known their behaviour would have this effect. 

The Scottish legislation, by contrast, contains no such thresholds as are used to define “serious effect”. Scottish prosecutors will not have to establish any effect on the complainer, only that the “reasonable person would consider the course of behaviour to be likely to cause [them] to suffer physical or psychological harm”. The concept of psychological harm might sound formidable, but is stated to incorporate fear, alarm, and perhaps more problematically, distress. 

I am broadly sympathetic to the bill’s aims. Giving evidence before the Justice Committee, I suggested a few modest fixes which could have helped orientate it towards the conduct most meriting criminal sanctions. The burdens on English prosecutors are arguably too onerous. But by resisting all attempts at more precise definition, or any thresholds of severity, the Scottish bill has considerable potential for overcriminalisation, if clumsily enforced.

One proponent of the bill criticised my efforts as an “academic and sophisticated way of saying it is just a domestic”. On the contrary, it was an honest attempt to ensure its language adequately reflects what organisations like Scottish Women’s Aid have long maintained – that domestic tyranny causes serious harm which Scots criminal law has for too long failed adequately to recognise. 

It is sometimes countered that experienced police and prosecutors will be able to identify those cases meriting criminal action from those less serious. This sits uncomfortably, to say the least, alongside Crown Office’s presumption in favour of proceedings where sufficient credible and reliable evidence of abusive behaviour is available. This legislation will dramatically expand the number of cases satisfying that test. 

It also ignores the social sanctions which can attend arrest and prosecution, even if the case is ultimately dropped, or results in acquittal. This is not to criticise prosecutors’ professional integrity, but when it comes to criminal sanctions, I’d prefer to trust in the good judgment of as few decision-makers as possible as little as possible.

A score of unanswered questions remain. How will the bill operate in practice? The law of evidence was largely missing from the committee’s scrutiny, in particular how this offence might operate in the context of hearsay rules and corroboration. Also unexplored were the implications for prosecution of sexual offences. The bill provides that “violence” and “sexual violence” may evidence one of the incidents necessary to establish a course of abusive conduct – though is silent on whether these concepts are cognate with the offences in the Sexual Offences (Scotland) Act 2009. Will it become a vehicle for sexual offences prosecutions? Is this problematic?

Only time and hard practice will tell whether the good – and bad – potential of this bill will be realised.

Andrew Tickell is a lecturer in law at Glasgow Caledonian University


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