Proposed criminal procedure reforms related to the introduction of a new domestic abuse offence have been welcomed by the Law Society of Scotland – with a warning that the courts may have to anticipate the need for additional resources.
The Society was responding to a Scottish Government consultation which outlined four measures intended to improve protections for complainers before, during and after trial for the new offence, for which the legal definitions are still under discussion within Government ahead of a bill being introduced.
Mirroring the special provisions already in force where sexual offences are alleged, these concern a new standard condition of bail that prohibiting an accused from obtaining precognitions or statements from a complainer except through a solicitor; a ban on an accused conducting their own defence at trial; the ability to lead expert evidence as to a complainer's behaviour with a view to supporting their credibility; and where a trial results in conviction, a duty on the court to consider whether to impose a criminal non-harassment order, whether or not the Crown applies for one. (Click here for report.)
Ian Cruickshank, convener of the Society’s Criminal Law Committee, said: “We fully support measures to improve how the justice system responds to domestic abuse and welcome the Government’s proposals. However there are some areas that could present challenges.
Mr Cruickshank said there was likely to be a significant increase in the number of cases where the accused was prevented from conducting their own defence, and the courts then needed to appoint a solicitor.
“The eligibility criteria for resourcing and legal aid should also be taken into account”, he commented. “For example in a situation where an accused has no solicitor, even if they have the financial means to pay, then the court may appoint a solicitor to conduct the defence case. The Government needs to consider whether those fees would be funded by legal aid without any enquiry into the financial means of the accused.”
The Society also highlighted potential issues around resourcing expert evidence relating to the behaviour of complainers. Mr Cruickshank called for an evaluation of the impact of the existing provision regarding sexual offenders before moving forward.
“Understanding the numbers and types of cases, as well as the types of behaviour that experts have been called to comment on and whether independent experts have also been instructed for defence cases, would help to predict any resourcing implications and ensure it can be applied effectively”, he commented.