Concerns over the definition of the proposed new criminal offence of domestic abuse have been voiced by the Faculty of Advocates in its response to the Scottish Government's consultation on the subject.
Ministers are seeking to extend the scope of the criminal law to catch conduct which extends beyond physical violence to include threats, physical and psychological abuse, and coercive control. Faculty recognises that this is “not without difficulty”, but has reservations about the draft put forward by the Government.
A key feature of the offence is the test that a reasonable person would consider the accused’s behaviour would cause the victim to suffer physical or psychological harm.
In its response, Faculty accepts that this test would have the advantage that the prosecution would not require to show that the victim, B, was in fact adversely impacted by the behaviour. However, it believes the way the test is expressed is problematic.
“The test of the likely impact of conduct on the reasonable person is one far more readily recognised in the criminal law… the adoption of a test of the likely impact on the reasonable person would achieve the aim of not requiring evidence to be led about the impact on B,” Faculty states.
“The currently proposed test invites the fact finder to decide how the reasonable person might consider B, as an individual, is likely to be impacted. That in itself may necessitate that some evidence be led about the impact on B or about B an as individual. The stated objective would not be achieved.”
Faculty recognises that however “myths and misconceptions still inform attitudes and understanding of domestic abuse... Thus there is some value in the offence requiring evidence of harm to B in order to prevent any myths or misconceptions allowing a perpetrator to escape conviction”.
It also notes a potential difficulty in cases where B is not the instigator of the complaint and does not consider the conduct in question to have been abusive; and that it would be possible for some of the listed effects of abusive behaviour, such as making B financially dependent on the other party, could arise in a non-abusive context.
The draft offence lists some possible effects of behaviour which would make it abusive, such as making B isolated from friends and relatives or controlling B’s day-to-day activities. Faculty considers that the use of the effects of behaviour needs more detailed consideration and specification.
Describing the task of catching only the conduct intended to be criminalised as "extremely challenging", It suggests: “Further consideration of the ‘effects’ in s 2(2) will be required if a robust offence that will achieve Parliament’s aim of both legal certainty and protection from and criminalisation of domestic abuse is to be achieved.”
The response also notes the potential for a widening of the Moorov doctrine, or mutual corroboration, adding: “The Faculty is concerned that as domestic abuse is to be defined by the effect of the behaviour, not by the conduct, mutual corroboration may arise between charges of domestic abuse where one is withholding money and the other (with a different complainer) is of serious assault or rape.
“These offences would potentially provide mutual corroboration because of underlying similarity of the coercive nature and effect of the behaviour and not the nature of the actual conduct. This would arguably lead to a widening of the doctrine of mutual corroboration as currently understood.”