Warnings over the potential breadth of the proposed new offence of domestic abuse in Scotland have been expressed in submissions from the legal community on the Domestic Abuse (Scotland) Bill.
Holyrood's Justice Committee is currently hearing oral evidence on the bill before preparing its report at stage 1 of the parliamentary process. The bill creates a new offence of abusive behaviour towards a person’s partner or ex-partner covering both physical violence and non-physical abuse, a provision which is intended to tackle the issue of coercive control of a victim beyond specific incidents of actual assault.
While most submissions to the committee, many of which come from groups representing women's and children's interests, warmly welcome the measure, concerns remain among lawyers about how the offence can be defined so as to draw a proper line as to which conduct should be criminalised.
Although the profession's submissions also welcome the aims of the bill, the Faculty of Advocates called for a distinction between non-physical incidents which were, and those which were not, used as part of a pattern of behaviour comprising coercive control (click here for report), and the Law Society of Scotland questioned the need for a further offence confined to behaviour between partners or ex-partners (click here for report).
They have been joined by the Glasgow Bar Association, whose submission raises "significant concerns that the perceived benefits of the proposed offence have to be balanced against the very real risk of over-criminalisation". Calling for the law to recognise not only the damaging effects of domestic abuse on families but also the potential impact of a conviction on the partner and family of a convicted person, the GBA states: "We have concerns even within the existing framework of domestic prosecutions about the very wide range of behaviours in the context of domestic relationships which have been criminalised and about issues of proportionality which have arisen. We are concerned about the very wide scope of the proposed offence and the very wide range of behaviour which would potentially be caught by the legislation."
It suggests that whereas the policy memorandum seeks to address "ongoing coercive and controlling behaviour", the provision in the bill that a course of behaviour can be established by behaviour on at least two occasions goes further: "in a situation involving two incidents, perhaps a year apart, and not involving violence or a threat of violence we are not satisfied that this could be properly viewed as a course of behaviour", the GBA comments.
It also believes that the bill could leave it open for a person to be criminalised for a reckless omission. "We do not anticipate that the public would readily understand a situation where criminal liability can arise from a reckless failure to say something", it adds.
The GBA further submits that in practice sufficient account is taken of children's interests and that sheriffs recognise the presence of children as an aggravating factor in sentencing, even without the specific provision to that effect in the bill.
Regarding prosecution policy, the GBA observes: "It appears to us that the reasonable person test may present difficult and marginal decisions for prosecutors and judges – what if the complainer herself is set against a prosecution? The proportionality of decisions to take proceedings will be critical and our members would be interested to know whether there would be Lord Advocate's guidelines to police and prosecutors" – and what these would contain.
Glasglow Caledonian University law lecturer Andrew Tickell sums up his views regarding definition: "On the proposed offence of 'abusive behaviour', I have serious concerns that the offence as drafted is too broad, risks (a) excessively criminalising commonplace friction in family relationships, (b) fails to introduce adequate thresholds of wrongdoing to justify prosecution, and consequently (c) extends to prosecutors too wide a discretion to determine who ought to be prosecuted."
He too argues that the bill contains no proper thresholds of seriousness before a prosecution is brought, and that the tests it does contain are in fact "of limited significance".
At the same time, the corroboration rule may limit the likely efficacy of the bill: "These two points lead to an ambivalent conclusion on the proposed legislation: as drafted, the Bill simultaneously risks (a) over-criminalising behaviour which ought not to be criminal, while (b) the corroboration rule risks transforming the offence into a paper tiger, of limited utility to prosecutors and complainers experiencing abusive relationships."
The Charity Families Need Fathers, on the other hand, wants to see the bill explicitly cover "the kind of coercive control we see in which one parent controls the relationship that the other parent has with his children and causes damage both to the children and to the other parent".