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SP Paper 556 J/S3/11/R1

1st Report, 2011 (Session 3)

Stage 1 Report on the Domestic Abuse (Scotland) Bill

Contents

Remit and membership

Report

Introduction

Background

The Bill

Section 1: Amendment of the Protection from Harassment Act 1997
Section 2: Amendment of the Legal Aid (Scotland) Act 1986
Section 3: Breach of interdict with power of arrest
Section 4: Meaning of “domestic abuse”
Costs and financial implications
Summary
Conclusion

Annexe A: Subordinate Legislation Committee Report

Annexe B: Finance Committee Report

Annexe C: Extracts from the Minutes

Annexe D: Index of Oral Evidence

Annexe E: Index of Written Evidence

Remit and membership

Remit:

To consider and report on (a) the administration of criminal and civil justice, community safety, and other matters falling within the responsibility of the Cabinet Secretary for Justice and (b) the functions of the Lord Advocate, other than as head of the systems of criminal prosecution and investigation of deaths in Scotland.

Membership:

Bill Aitken (Convener)
Robert Brown
Bill Butler (Deputy Convener)
Cathie Craigie
Nigel Don
James Kelly
Stewart Maxwell
Dave Thompson

Committee Clerking Team:

Andrew Mylne
Anne Peat
Andrew Proudfoot
Christine Lambourne

Stage 1 Report on the Domestic Abuse (Scotland) Bill

The Committee reports to the Parliament as follows—

introduction

1. The Domestic Abuse (Scotland) Bill, a Member’s Bill, was introduced on 27 May 2010 by Rhoda Grant MSP. It was referred to the Justice Committee for Stage 1 consideration and has also been considered by the Finance Committee and the Subordinate Legislation Committee.

2. The Bill’s two main stated purposes are to increase access to justice for victims of domestic abuse and to enable police and prosecutors to provide a more robust response to breached civil protection orders.

3. The Committee is grateful to those who provided written or oral evidence, all of which helped shape the Committee’s views when reaching its conclusions on the general principles of this Bill.  The Convener visited the Domestic Abuse Court in Glasgow and is grateful to Sheriff Raeburn for taking the time to discuss the work undertaken in that court.1

4. The Subordinate Legislation Committee considered the delegated powers at its meeting on 26 October 2010 and raised a concern about the power given to the Scottish Ministers to modify the definition of domestic abuse. This is covered in more detail at paragraph 109. The Finance Committee initially afforded this Bill level 1 scrutiny (considering written evidence only) then re-classified it as level 2 and took oral evidence from Rhoda Grant, the Member in charge. The issues raised in the Finance Committee’s evidence, and with this Committee, concerning the cost implications of the Bill’s proposals are addressed in detail at the end this report.

background

5.  There is presently no distinct statutorily defined crime of domestic abuse. The term “domestic abuse” covers a wide range of behaviours. Some will constitute criminal offences from a less serious breach of the peace, at one end of the spectrum, to rape and murder at the other. Other behaviours which may constitute domestic abuse will not be criminal offences in themselves, for example withholding money and other forms of controlling or bullying behaviour. These behaviours cannot be prosecuted through the criminal courts but civil protective measures may be available.

6. Domestic abuse, in all its forms, is thought to be under-reported to the authorities. In Scotland in 2008-09, 53,681 cases of domestic abuse were reported to the police, an 8% increase in the number reported the previous year, continuing the year-on-year rise of reported incidents since 1999-2000 (the first year for which data is available). The recently published figure for 2009-10 discloses a total of 51,926 reported cases, a decrease of 4% on the previous year.2

7. The majority of reported incidents of domestic abuse are perpetrated by men against women. However, there has been a steadily increasing proportion of recorded domestic abuse cases involving a male victim and a female perpetrator: 8% of reported incidents in 2000-01 rising to 15% in 2009-10. Reported incidents of domestic abuse involving same-sex partners represent around 2% of all incidents, although under-reporting may be a particular feature of this category of victim/perpetrator.3

8. Although there is no distinct crime of domestic abuse, there are a number of commonly used definitions of domestic abuse. Scotland’s National Strategy to Address Domestic Abuse uses the following definition—

“Domestic abuse (as gender-based abuse), can be perpetrated by partners or ex-partners and can include physical abuse (assault and physical attack involving a range of behaviour), sexual abuse (acts which degrade and humiliate women and are perpetrated against their will, including rape) and mental and emotional abuse (such as threats, verbal abuse, racial abuse, withholding money and other types of controlling behaviour such as isolation from family or friends).”4

9. The joint protocol5 between the Association of Chief Police Officers in Scotland (ACPOS) and the Crown Office requires the police to treat incidents of domestic abuse as high priority. The Protocol is based around the presumptions that all cases in which there is sufficient corroborated evidence will be reported to the Procurator Fiscal and that most alleged offenders will be detained in custody pending appearance in court. Where there is sufficient evidence in cases involving violence against the victim there is a presumption in favour of prosecution and, where a decision is taken to prosecute and having regard to the seriousness of the abuse, the case will proceed in the  Sheriff or High Court.

Existing remedies

10. Behaviours that constitute criminal offences are given a high priority response by the police and, where there is sufficient evidence, will be prosecuted. For behaviours that do not constitute criminal offences, the Bill’s Policy Memorandum states there are three types of civil protection order available. These are an interdict with no power of arrest, an interdict with a power of arrest and a non-harassment order.

11. The Family Law Association (FLA) said that there had not been a great take-up of non-harassment orders because of the need to show a course of conduct but that other orders associated with protection against domestic abuse – for example orders under the Matrimonial Homes (Family Protection) (Scotland) Act 1981(the 1981 Act) and the Protection from Abuse (Scotland) Act 2001 (the 2001 Act) had been widely used. Elizabeth Welsh of the FLA said that interdicts and powers of arrest under both of these acts had been commonly sought and granted and were often effective.6

12. However the FLA said that there were other reasons for the reduction in the number of protective orders being sought. Helen Hughes explained—

“The reason why we do not have as big an uptake of protective orders is perhaps not because there is no need for them—there remains a need for the victims of abuse to be protected—but because other influences have come into play: the police have become more proactive and more victims of abuse are no longer eligible for legal aid with nil contribution.”7

13. The view of Scottish Women’s Aid (SWA) was that the existing legislation was ineffective and quite inaccessible, particularly when an interdict was breached but did not involve a criminal act. Louise Johnson of SWA explained—

“When an interdict with a power of arrest under the common law is breached and no separate criminal prosecution is undertaken for a criminal act committed during the breach—an assault on the woman or on a police officer, for instance—the only option open to the court is to hold the abuser over in the cells for another two days, if the sheriff so decides.  The option for the woman of enforcing the interdict involves taking a separate action for contempt of court, which means that she will have to obtain finance to fund the action, for which additional legal aid may not be available.”8

14. Shakti Women’s Aid agreed with SWA’s view and added—

“It is even more difficult for black and minority ethnic women who have no recourse to public funds to take a man to court.  As Louise Johnson said, it takes time to do that and, meanwhile, the woman may be harassed by the extended family members, or she may go back to the abuser and drop the whole case.  There is also the fear that she will be taken away or abandoned; the consequences are not so good for some of the women.”9

15. Mhairi McGowan of ASSIST10 said the Bill would clarify and simplify the position for people who experienced domestic abuse and that the current position was not tenable. She explained—

“when all that happens is that someone is remanded in custody for two days, women who have been living with the process of abuse for a period of time wonder whether people and society are taking them seriously.”11

16. The Law Society pointed out that when considering existing remedies and how to proceed, a person seeking advice on raising interdict proceedings would have many issues to consider and might ultimately decide not to seek a civil protective order. Lesley Dowdalls explained—

“For instance, they might not want the person they are seeking the interdict against to receive a copy of the proceedings, to be given the opportunity of arguing against the application and so on and, once the procedure is explained, people often decide not to embark on it.”12

She added—

“the police take a fairly robust approach to domestic incidents, which means that, when I am approached for advice on conduct that could be interdicted, I quite often find that a criminal prosecution is also on-going. Bail orders are very effective in such matters.”13

17. The FLA said that, in its view, the main reason why the breach of interdict proceedings was not used was that it could only be pursued where the Crown was not already prosecuting. In the FLA’s experience, where an incident was serious and constituted a criminal offence, the Crown was likely to be involved.14

18. The Scottish Legal Aid Board (SLAB), in written evidence, advised that in 2009-10 there were 17 grants of civil legal aid to pursuers for cases with a primary category of non-harassment order. However, a further 138 grants were made to pursuers of actions of other types but which had a non-harassment order as an ancillary crave.15

19. The Minister was asked for his view on the evidence about the current legal remedies being inaccessible and responded—

“I tend to agree with you and with the witnesses who suggested that the current remedies are not sufficient and are to some extent not used frequently, if at all.  That is why I have broadly indicated our support for the principal measures in the bill. There is a consensus in principle on that.”16

20. The Bill’s Policy Memorandum states that the problems with the current law on civil protections in Scotland were identified in an evaluation of all Scottish civil protection orders carried out in 2003. That evaluation found that the problems fell into two main areas: access to justice and a failure to provide a robust response to breached orders.17  This Bill seeks to address those problems so far as they relate to cases of domestic abuse.

21. In relation to the issue of access to justice, the Committee notes the requirement placed on SLAB by the Legal Services (Scotland) Act 2010 to monitor the availability and accessibility of legal services. This is welcome, particularly given the differing views heard by the Committee on the availability and willingness of solicitors to take on civil legal aided work.

The Bill

Section 1: Amendment of the Protection from Harassment Act 1997

22. The Criminal Justice and Licensing (Scotland) Act 2010 removed the precondition to show a course of conduct amounting to harassment for criminal non-harassment orders. This Bill now introduces a new section (section 8A) to the Protection from Harassment Act 1997 (the 1997 Act) to remove the requirement to show a course of conduct before a non-harassment order could be granted in civil proceedings involving domestic abuse. This new section would only apply when the conduct which led to a non-harassment order being sought was action that constituted or involved “domestic abuse”. A person would only need to prove evidence of one occasion of “harassment”, not that such conduct had taken place repeatedly.

23. This section of the Bill received wide support on the basis that it would bring civil provisions into line with criminal provisions and remove the requirement for a victim to go through a period of repeated abuse before being able to access an order.  Mhairi McGowan (ASSIST) said that in her experience many victims of domestic abuse never came into contact with the criminal justice system and for that reason it was important that there was equality between civil and criminal law.

24. The FLA voiced its support for the change, saying—

“To enable a non-harassment order to be granted without a course of conduct and therefore an automatic prosecution by the police in the event of breach would also send a wider message to those perpetrators who breach orders that, as public policy, society does not accept that. The prosecution would not be at the instance of the victim of the abuse.  We would be saying that, if an order were granted by the court, we would not allow it to be breached. That would send a wider message to the general public.”18

25. The Law Society of Scotland agreed that removing the course of conduct requirement was sensible and would make the process easier but said that the interpretation of the word “harassment” would always be a bit of an issue.19 Similarly, the Crown Office said that even if the course of conduct requirement were to be removed, a Sheriff would still have to be satisfied that an incident amounted to harassment, for which the normal standards of civil evidence would apply.

26. There was some discussion in the Committee about the actual meaning of the word “harassment” and whether there was an implication that conduct would have to take place on more than one occasion in order to be “harassment.” The Minister said that he too had considered the matter in some detail and that the Scottish Government was reasonably satisfied that “harassment” did not require conduct to take place on separate occasions.  He confirmed this view in a subsequent letter.  Having considered the matter and the letter, the Committee agrees with the Minister that “certain types of conduct taking place on one occasion (perhaps a particular meeting or event) must be capable of amounting to harassment”.20

27. Rhoda Grant explained why she saw this section as making an important change to the law—

“The nature of domestic abuse is such that it is very difficult to get evidence of it, given that it happens in the home and there are seldom witnesses. Putting a course of conduct requirement into a non-harassment order would mean that someone would be likely to be abused many times.”21

28. The Committee recognises the wide support, including from the Government, for removing the course of conduct requirement for civil non-harassment orders. The Committee is itself in favour of this change and is content to endorse it but in so doing draws attention to the technical changes suggested by the Scottish Government in its letter of 23 November 2010. The Committee also notes that as this section of the Bill only applies when conduct, leading to a non-harassment order being sought, amounts to domestic abuse, a statutory definition of domestic abuse is likely to be required in order for this section to be operational.

Section 2: Amendment of the Legal Aid (Scotland) Act 1986

29. Section 2 amends the Legal Aid (Scotland) Act 1986 by removing the means test for all applications for interdict with power of arrest under the Matrimonial Homes (Family Protection) (Scotland) Act 1981 or the Protection from Abuse (Scotland) Act 2001, and for applications made under new section 8A of the 1997 Act (inserted by section 1 of the Bill) in cases involving domestic abuse.

30. In terms of the Legal Aid (Scotland) Act 1986, eligibility for legal aid is not assessed merely on the basis of a means test. There is a three-part eligibility test: the means test, a legal basis for the case and a reasonableness test. Although the Bill proposes removing the means test for domestic abuse cases, the two other tests would still require to be met. This point was highlighted by the Law Society of Scotland and others.

31. The change proposed by this section of the Bill gave rise to a number of questions and indeed concerns about what the effect might be on the numbers of cases that might be brought and the resultant increase in costs, primarily for the Legal Aid Fund but also the Scottish Court Service. It was clear there was a range of views on these issues. These are dealt with in more detail later in the report.

Equality of arms

32. Much of the evidence suggested that if the financial eligibility test for civil legal aid cases involving domestic abuse was removed for pursuers, there would be an obligation to remove it for defenders too. Lesley Dowdalls for the Law Society of Scotland said—

“The perceived approach of the Legal Aid Board and, in my experience, its actual approach has always been to attempt to provide equality of arms. We could not have a situation in which defenders were not given the same rights as pursuers to access legal representation.”22

33. SLAB confirmed that if the financial eligibility test were to be changed or removed altogether for pursuers, it would have to be changed in the same way for defenders. Colin Lancaster said—

“In an individual action, it would be challengeable if one party was given a favoured position because there was no means test and the other party was means tested. I imagine that the legislation would be challenged the first time that a defender's application was refused on the ground of means.”23

34. The FLA agreed that there should be equality of arms but pointed out that that might not mean a large increase in entitlement to legal aid. Helen Hughes stated—

“I do not feel that defenders automatically being eligible for legal aid without means testing would mean a large increase in the number of people getting a full legal aid certificate. In many of the cases with which I deal and in many cases in which protective orders are sought, the defender has no defence. That is why the orders are granted. We have proof, lots of incidents and corroboration. People (defenders) in those situations will find it hard to satisfy the reasonableness test.”24

Application of this provision and eligibility

35. The Bill’s Policy Memorandum states that victims of domestic abuse are likely to be required to finance expensive actions for civil protective orders and that even where the victim is eligible for civil legal aid they would be means tested. The Memorandum concludes that many people seeking civil protection orders may have left their own homes, be seeking alternative accommodation and might not yet have welfare benefits or a right to the shared assets of the relationship and that paying legal aid contributions is made more difficult for people who do not have access to their share of matrimonial property. For these reasons, the responses to Rhoda Grant’s original consultation were overwhelmingly in favour of this provision.

36. One of the main issues raised about this section was whether the removal of the means test would and should apply to stand-alone actions only or also to multi-crave actions where a protective order was being sought. This question does not arise for someone who at present meets the means test and qualifies for civil legal aid.  However where a client does not qualify for assistance, were it not for this provision, there could be difficulties for a solicitor in deciding how to bill such an individual for the work involved in a multi-crave action.

37. SWA and ASSIST anticipated that the new provision would cover stand-alone actions and other actions with craves for protective orders. They both suggested that it could be possible to identify a specific cost or block fee for the domestic abuse element of a multi-crave action.

38. On the other hand, the Law Society of Scotland said that its reading of the Bill had been that it would apply to stand-alone actions only. Its view, shared by the Scottish Government and SLAB, was that extending the provision to certain craves in a multi-crave action, but not others, would lead to complexity. The Law Society of Scotland pointed out that in an action with a number of craves, it was likely that they would all be dealt with at a single hearing. It would be difficult to separate out what part of the hearing might be attributable to considering the domestic abuse element and what would be covered by any block fee arrangement.

39. The FLA said that if this Bill were passed, stand-alone actions (for domestic abuse issues) would become the norm and any other craves would be dealt with by separate actions with separate legal aid applications or by private fee arrangements between the solicitor and client. However Helen Hughes did not see this as likely to lead to an increase in additional court hearings. She suggested—

“Although there might be a separate process, that would not result in additional hearings because, at present, even when there is one action with many craves, they are dealt with as separate entities by the courts. If anything, the change would simplify matters.”25

40. It appears to the Committee that if, as a consequence of this provision, an individual had two civil actions running concurrently, one of which attracted legal aid because there had been no means test, whilst the other was not legally aided because the applicant had not passed the means test, this could create a considerable anomaly. Indeed, this situation would be at odds with one of the principles underpinning the legal aid system. At present the legal aid provisions do not allow a case to be funded by a mix of legal aid and private funds. The Law Society of Scotland said that this—

“completely contradicts the basic principle for the receipt of legal aid, which is that the recipient has no other means of financing their court action.  From the Legal Aid Board's perspective, what is proposed would represent a sea change in its approach, because it is currently not possible for someone to receive funding for part of an action and to privately fund the rest of it. It is all or nothing: either someone is privately funded or they are legal aided.”26

41. SLAB confirmed that the current provisions of the Legal Aid (Scotland) Act 1986 did not allow a client to be both legally aided and privately funded and said that for multi-crave actions it could become “horribly complicated”. Colin Lancaster said that a means assessment would still be required for any application as a whole because removal of the means test would only be for the protective order element of a multi-crave action. On whether it would be possible to identify an appropriate block fee to be attributed to the work involved in the domestic abuse part of a multi-crave action, he said—

“Under the fee system that we have at present, that is not straightforward, as we have a block fee system and it is not possible to identify as easily as it once was the individual items of work—meetings, court appearances, letters, phone calls and so on—that would be attributable to one crave but not another. However, I suppose that it would be possible to sit down and work that out, which would be preferable to working it out on a case-by-case basis.”27

42. SLAB also pointed out that in the case of an applicant who was assessed as making a contribution, it was possible, even if a block fee sum was deducted from the cost of a multi-crave action, that the applicant could still be required to pay their total contribution. An example was given of a residence case where a protective order was sought, the average cost of which was around £3,000. If a sum were deducted for the protective order element, say £500, and an applicant had been assessed with a contribution of anything up to £2,500, the full contribution would still be required. A financial benefit for the applicant as a result of the removal of the means test would only arise if the assessed contribution were higher than the cost of the case minus any block sum for the protective order.

43. In its later written submission of 8 December 2010, SLAB set out in more detail its concerns about this section of the Bill. It set out a number of further scenarios to evidence more clearly its view that the primary benefit of section 2 would be for those who were currently assessed as eligible for civil legal aid but with a contribution. People in that category would benefit as they would not be required to pay a contribution in respect of the protective order work. SLAB pointed out that detailed analysis and costing work would be needed to enable the Scottish Government to take an informed decision on the appropriate level of fee to allocate. In the view of SLAB this would not be a straightforward exercise and any figure chosen might well over or under-estimate the actual work in pursuing the protective order part of a case.

44. The Committee recognises the difficulties that arise should this section apply to multi-crave actions where a protective order was being sought and where the applicant did not qualify for full civil legal aid funding. The Committee sees some merit in the suggestion that if the means test is removed, it might be possible to identify a block fee attributable to the protective order part. However the Committee agrees that this would not be straightforward and, depending on the level it were to be fixed at, could lead to fewer solicitors being willing to take on such work.

Most effective use of resources

45. Arguably, a more fundamental point raised by this section of the Bill was whether removal of the means test as proposed would represent an efficient use of public monies at this time. It was suggested that scarce public funds might be better spent providing additional support to organisations and groups such as ASSIST who provide services for those suffering domestic abuse. However Mhairi McGowan of ASSIST questioned whether this approach would be effective—

“The issue then would be how to ensure that everyone in Scotland had the same access to justice, which would be incredibly difficult to achieve.  We know that there is a huge discrepancy across the country. We have the only start-to-finish domestic abuse court and we are the only service of its kind. I understand why it is not currently possible to extend ASSIST's remit to further geographic areas but, at the end of the day, we must try to get the law to a state in which, no matter where someone is, they can obtain the same orders.”28

46. The FLA said it was concerned about the pressure on the civil legal aid budget and suggested that there was justification for family actions more generally having the benefit of removal of the means test. Elizabeth Welsh commented—

“We have some reservations about the fact that domestic abuse cases have been highlighted as being appropriate for removal of the means test. Having said that, we are concerned that people who have been subjected to abuse have been put off by the cost of taking proceedings.”29

47. ACPOS also expressed some reservations about prioritising funding for domestic abuse cases, saying that it could lead to difficulties for the police—

“If there is to be a limited fund of money, as is clearly the case with the legal aid budget, there must be a level of consistency, because the suggestion that some victims are more worthy than others would put people in an invidious position. Such an approach would be difficult to pursue in the police's daily interaction with communities.”30

48. The Law Society of Scotland said that although the proposed removal of the means test was laudable, the two other eligibility tests would also require to be met before legal aid could be awarded. The Law Society of Scotland also raised the issue of availability of solicitors to undertake legal aid work given the level of remuneration for civil cases. Lesley Dowdalls explained—

“Those processes are highly time consuming and, by their nature, they cannot be predicted and slotted into a particular time. They involve rearranging other work and diary commitments. In that regard, solicitors are not adequately remunerated.  Although legal aid can become available, a large number of solicitors will still have concerns about being able to afford to take on such work, given the level of remuneration for the actions that are taken.”31

49. The Committee notes the evidence questioning whether removal of the means test represents the best use of resources given the difficult decisions that currently require to be made in relation to public spending. The Committee shares the concerns expressed by witnesses.

ECHR Articles 2, 3, 6 and 8 - Access to Protection

50. SWA stated that there is an obligation on the State, under Article 2, to take appropriate steps to safeguard the lives of those within its jurisdiction. In its view, the interpretation of this obligation could extend to a complete waiving of the means test for civil legal aid for someone seeking legal representation to pursue a protective order. Rhoda Grant was asked why she thought it was appropriate to single out domestic abuse remedies for preferential treatment from other family matters, for example disputes around children, or reparation for serious damages cases. Rhoda Grant agreed that such cases were also deserving but affirmed her view that access to protection from domestic abuse should be a priority. The Committee had difficulty in seeing why a protective order in a domestic abuse case should be prioritised for the purposes of legal aid above any other category of case where a protective order was being sought. Using the arguments advanced by Rhoda Grant and those who accompanied her, no-one seeking legal aid for any type of civil protective order should be means tested. Such a proposition is something that would require to be looked at as part of a much wider consideration of access to justice and goes beyond what the Committee is required to consider at this time in the context of this Bill currently before us. The Committee does not, therefore, accept the validity of the argument made under Article 2 in this context.

51. SWA said that under Article 3 there is an obligation on the State to protect against torture, inhuman or degrading treatment and punishment and that domestic abuse could entail one or more of these. Scottish Women’s Aid added that the entitlement under Article 6 to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law, in its view, included access to a civil court to obtain a protective order. Finally, SWA Aid pointed out that Article 8 provides that everyone has the right to respect for his or her private and family life, his or her home and correspondence and that Articles 8 and Article 10 work together to provide protection. The Committee does not dispute any of this but is not aware of any defect in the way in which the State currently meets its obligations with regard to domestic abuse cases.

Equality of Arms – Article 6

52. Rhoda Grant stressed that section 2 of her Bill would not create an automatic right to legal aid for pursuers of civil protection orders. A pursuer would still have to show that he or she had a legal basis for the case and that it was reasonable in all the circumstances for legal aid to be granted. Rhoda Grant added that she had given careful consideration to whether this section of her Bill complied with Article 6 of the ECHR. She had concluded that removal of the means test for a pursuer did not amount to breach of that Article and that removal of the means test for defenders would not be needed to satisfy a defender’s Article 6 rights.

53. The Committee notes what the Member in charge said in support of section 2 with reference to the ECHR particularly in relation to access to justice and equality of arms, but is not persuaded that these arguments have substantial merit.

54. In considering the proposal to remove the means test for domestic abuse cases, the Committee had to be mindful of the current economic situation and the pressure on public funds, particularly competing pressures on the legal aid fund. The Committee notes the statistics in the Policy Memorandum showing the proportion of those interviewed who had been assessed as not eligible for civil legal aid. However, the Committee is aware that access to legal aid is not solely on the basis of a means test. The Committee is also mindful that the police now take a more robust approach to reports of domestic abuse and that when such an incident involves criminal behaviour, it will be pursued through the criminal justice system.

55. The Committee agrees with the Law Society of Scotland and others that it is very difficult to single out domestic abuse cases from other family law cases as requiring special treatment and taking priority over other spending considerations. On the other hand, the Committee recognises that a victim of domestic abuse requires swift and effective legal protection and redress, either through the criminal law or through civil remedies, and that adequate access to legal aid is part of this. The Committee further notes the view of Rhoda Grant that the Minister already has the powers to make the changes proposed in section 2 by way of secondary legislation.

56. The Committee does not support the provisions of section 2 on the grounds that the section would produce an inequality of arms between pursuers and defenders in such actions which would be inequitable.  The Committee is not persuaded that there is a compelling case to single out domestic abuse cases from other cases within the legal aid system.

Section 3: Breach of interdict with power of arrest

57. Section 3 would make it a criminal offence to breach an interdict with a power of arrest in domestic abuse cases. This new criminal offence would be punishable on summary conviction by imprisonment for a term not exceeding six months, or a fine not exceeding the statutory minimum, or both.

58. As already noted, for cases of domestic abuse, interdicts can be obtained through three main routes: the common law, the Protection from Harassment Act 1997 and family law legislation.

Common law

59. Common law interdicts are widely regarded as ineffective due to problems enforcing them when they have been made without an attaching power of arrest. They can however have a power of arrest attached to them by virtue of the Protection from Abuse (Scotland) Act 2001.

Protection from Harassment Act 1997

60. The 1997 Act made harassment a statutory offence in England and Wales. At the time, it was argued that the common law crime of breach of the peace was sufficient to cover such behaviour in Scotland although there are provisions relating specifically to Scotland. In particular, the 1997 Act provides that every individual has a right to be free from harassment and prohibits a person from pursuing a course of conduct that amounts to, or is intended to amount to, harassment. The 1997 Act allows a victim of abuse to apply for a civil non-harassment order (NHO) which requires a course of conduct to be shown. The Criminal Justice and Licensing (Scotland) Act 2010 amended the Criminal Procedure (Scotland) Act 1995 to remove the precondition to demonstrate a course of conduct for criminal non-harassment orders.

Family law

61. The Matrimonial Homes (Family Protection) (Scotland) Act 1981 (the 1981 Act) gave spouses certain rights in relation to the matrimonial home. It also created exclusion orders (even if the spouse was the legal owner or tenant) and matrimonial interdicts. However interdicts under this Act terminate on divorce and provide no protection for same-sex or unmarried couples. The Civil Partnership Act 2004 then replicated the provisions of the 1981 Act for civil partners. The Family Law (Scotland) Act 2006 amended the 1981 Act to provide for a domestic interdict which was equivalent to a matrimonial interdict for unmarried cohabitants (opposite or same-sex).

62. The Protection from Abuse (Scotland) Act 2001 (the 2001 Act) sought to offer increased protection for those experiencing domestic violence or abuse as it had been felt that many of those who were vulnerable to domestic violence or abuse were not being given sufficient protection by the 1981 Act (because they were not married or cohabiting). An interdict under the 2001 Act can have a power of arrest attached. This allows the police to arrest an individual without a warrant where breach of the interdict is reasonably suspected and where the officer considers that there is a risk of abuse or further abuse.

63. This section of the Bill was generally welcomed as giving additional protection to victims and sending out the message that Scotland takes domestic abuse seriously.  The responsibility for raising court proceedings in the event of breach of a civil interdict would no longer be at the instance of the victim of the abuser. As Rhoda Grant and other witnesses pointed out, the victim would not face any further burden as a result of having to take further legal action in consequence of a breach, and the criminal justice system would take over this responsibility.

64. The Scottish Government said it was supportive of this section although it would suggest some technical changes. ACPOS said that it supported putting some compliance measures behind the civil process in terms of powers of arrest and creating a specific offence.  The FLA and ASSIST were also supportive of taking the prosecution of the offender away from the victim and creating distance between the perpetrator and victim.

65. SWA said interdicts were not often applied for because they were thought to be ineffective—

“if the approach is made more stringent and an interdict becomes a robust protection, so that women know that if an abuser breaches the terms the police will intervene and the abuser will face a criminal penalty, women will have more confidence in interdicts and it is likely that more people will seek them.”32

66. The Law Society of Scotland agreed that existing mechanisms for dealing with breaches of interdict could be regarded as inadequate because the evidence was that there was a low take-up rate in relation to breach of interdict. However it questioned whether there was a real need for this provision, given the existing remedies available to deal with what was effectively a contempt of court.  In its view, contempt of court ought to be an appropriate remedy but it acknowledged that it seemed not to be used very often, if at all.

67.  The Crown Office described the existing measures relating to breach of a civil interdict as “slightly anomalous”—

“At times, the current process can seem a bit toothless. People think that the most that happens is that someone is remanded or even liberated by the sheriff. If they are remanded, it is only for two days. Some other procedure then takes over. The proposal would give the process a bit more bite.”33

68. However Colin Lancaster explained that this provision could change SLAB’s approach to applications for legal aid by someone seeking to defend interdict proceedings and could give rise to more applications being granted—

“unless some significant prejudice can be shown to the defender, it is less likely that the reasonableness test for civil legal aid will be met, so legal aid is more likely to be refused on that ground than on any other. If there are to be more severe consequences, we may be less likely to think of that as a valid reason for refusal. Therefore, I expect that there would be more applications and that more would be granted.”34

Proof of criminal liability

69. Although there is clear merit in and support for making it a criminal offence to breach an interdict with a power of arrest in domestic abuse cases, witnesses highlighted two issues in relation to the proof of an offence under section 3 of the Bill: firstly, whether the standard required would be the normal criminal standard of proof (beyond reasonable doubt) and secondly, whether a breach would have to be proven by corroborated evidence.

70. SWA pointed out that, although the process for obtaining an order was a civil one, prosecuting someone for breaching such an order would be dealt with through the criminal courts. SWA suggested that the Committee consider whether the requirement for corroboration, would be appropriate when considering breaches of interdict. SWA gave examples of existing procedure for breach of probation orders and restriction of liberty orders, where no corroboration was required.

71. The Law Society of Scotland gave its support for section 3 of the Bill but only if the criminal standard of proof, together with corroboration, would apply. In response to the suggestion from SWA that the requirement for corroboration be relaxed and the examples given of where this already happened, Lesley Dowdalls pointed out—

“the difference in those cases is that it is not the victim but officers of court who carry the responsibility of reporting a breach.  The orders that you mentioned tend to follow on from a court order.  For example, if there is a breach of a community service order, a community service officer will report that breach.  In effect, they are an extension of the court …”35

72. The FLA agreed with the Law Society of Scotland—

“if the matter is prosecuted under the criminal system, it will be difficult not to have corroboration, given the need to be fair to everyone who is involved.  I do not think that such an arrangement (i.e. one where corroboration is not required) would be ECHR compliant.”36

73. Subsequently, Rhoda Grant confirmed that nothing in the Bill would remove the need for corroboration, any breach would be a criminal matter and in Scots law corroboration was usually required for criminal charges to be brought successfully.

74. The Committee accepts that, in many cases, the granting of a protective order will be sufficient to deter the behaviour complained of, and that the current two day detention under existing powers of arrest provides a useful respite to victims. However, the Committee fully supports the view that a criminal sanction for breach of a domestic abuse interdict is necessary to give victims proper protection. The Committee is content that this provision would represent a strengthening of the current system and is firmly of the view that the criminal standard of proof, together with corroboration, must apply. The Committee again notes that in order to identify breaches of interdict with a power of arrest in cases of domestic abuse, it is likely that a statutory definition of domestic abuse will be required.

Section 4: Meaning of “domestic abuse”

75. Section 4 provides a statutory definition of “domestic abuse”. It sets out that where behaviour falls within the meaning of abuse (including violence, harassment, threatening conduct and any other conduct giving rise, or likely to give rise, to physical or mental injury, fear, alarm, or distress) and occurs in any of the listed relationships, it will be considered to be domestic abuse. The listed relationships are where a person is (or was) married to, or the civil partner of, or a partner in an established relationship of any length with, the person who carried out the abuse, or is the perpetrator’s parent, child, grandparent or grandchild (whether by blood or adoption). Section 4(3) provides that Scottish Ministers may, by order, add further types of relationships to this list.

76. As noted already in this report, there is currently no statutory or common law definition of “domestic abuse”. However there are a number of commonly accepted and understood definitions and statements of what domestic abuse is.

77. Stonewall Scotland welcomed the recognition in the Bill that domestic abuse takes place in same-sex relationships just as it does in heterosexual relationships and that the Bill treated same-sex partners and civil partners equally. Carl Watt of Stonewall Scotland said that it was helpful to see a definition of domestic abuse in the Bill.37

78. Other witnesses were not convinced that having a statutory definition represented an improvement on the present situation. Neither SWA nor ASSIST supported the introduction of a statutory definition in the Bill. SWA pointed out that there was no statutory definition elsewhere and that any attempt to seek to do so now could result in a too wide or too narrow definition and unforeseen consequences.38

79. ASSIST accepted that the wide definition set out in the Bill could help when dealing with honour-based violence issues but said that the disadvantages of having a statutory definition, outweighed the advantages. It suggested that other ways of dealing with such issues would need to be found. Shakti Women’s Aid agreed and explained that for the women who come to them, the situation was more complex—

“The women tend to live in joint family systems, so the abuse might not come from the husband. The mother-in-law might instigate it and the husband might join in later after a few months or a year.  However, that is a different issue. As Louise Johnson said, for us it would be better just to have the term "domestic abuse" in the bill.”39

80. In this regard, the Committee noted, as did SWA and others, that protection for an individual from other family members can continue to be sought by way of non-harassment orders but that further consideration of other ways in which support and assistance could be provided would be useful.

81. The Law Society of Scotland said that on a practical basis there had not been any difficulty in understanding what was meant by “domestic abuse” but that the intention may now be to broaden the commonly understood definition. It was concerned with the use of the phrase “an established relationship of any length” as this could be difficult to interpret particularly as “length” was a key component of a relationship being “established”. The Law Society of Scotland’s written evidence set out its concerns—

“If length is to be disregarded, then it is difficult to see what the intended criteria for a relationship may be. This is particularly worrying when the nature of the relationship may be broad enough to encompass flatmates, co-owners of dwelling houses or even business partners. If the Bill is to proceed then the relationships addressed should be more precisely defined.”40

82. In oral evidence, the Law Society of Scotland added that a better approach could be to take the general understanding of what “domestic” means and keep the definition of “abuse” which is specific and seemed to cover most types of conduct that could give rise to a need for intervention.

83. The FLA agreed that the definition of domestic abuse, particularly in relation to the statement “a partner in an established relationship of any length” was not helpful. It also questioned how an “established relationship” could be defined without reference to length and suggested that if it was a brief relationship, it could not be described as an “established relationship”. The FLA was content that the definition of abuse, taken from the 2001 Act, was effective but said that it was the word “domestic” that was the problem. It observed that the definition in the Bill excluded particular family members (for example cousins or uncles) and any attempt to define it differently would also be likely to be exclusive.

84. The Crown Office was also concerned about the breadth of the definition set out in the Bill because it weakened what was currently understood as “domestic abuse” as involving a partner or former partner. The Crown Office said that the need for a statutory definition arose primarily from section 3, a point raised by the Minister. Christopher Macintosh summarised the Crown Office view—

“If breaches of interdicts that deal with domestic abuse were criminalised, we would have to know what was meant by "domestic abuse". That could not be left to the softer understanding of its meaning and would have to be defined. The matter could be dealt with in other ways, without a definition, but we must have some way of understanding what exactly is being criminalised.”41

85. SLAB said that if there was no definition in the Bill it would use the existing commonly understood definition, but that for its purposes it would be more straightforward to make assessments with reference to a definition.

86. The Minister agreed with those who said that the definition in the Bill of who could perpetrate domestic abuse was very wide and that the reference to “a partner in an established relationship of any length” was also wide and could even be read as including close friends or business partners.

87. The Minister pointed out that despite the width of the definition, it did not appear to catch some categories of child (e.g. a child or grandchild of either party – not just the perpetrator’s – or a child accepted by either party as a member of the family) who might be protected by matrimonial or domestic interdicts under the 1981 Act and relevant interdicts under the Civil Partnership Act 2004. Additionally, the Minister observed that the definition in the Bill covered relationships by adoption but did not seem to cover relationships by marriage too. Despite the difficulties with the definition presently in the Bill, the Minister agreed with the Crown Office that—

“conduct that is criminalised should be clearly capable of being understood and defined.  The principle is that there should be no vagueness or lack of clarity in general about what constitutes a crime.”42

88. The Minister suggested four potential solutions to the problems identified: to slim down the definition, to require sheriffs to provide in the interlocutor that an interdict is a domestic abuse interdict, to specify in the Bill that interdicts granted under specific Acts are domestic abuse interdicts or to criminalise all breaches of interdict with a power of arrest. The Minister noted that there were drawbacks with all four suggestions and that in the case of the final suggestion it might be beyond the scope of this Bill.

89. After considering all the evidence, Rhoda Grant said it was clear that this section would require amendment. She said that she had sympathy with those who sought removal of the definition altogether and conceded that if there were no definition, the majority of cases (those which fell within the commonly understood definition of domestic abuse) would still be covered. She undertook to reflect further on the evidence provided to the Committee. In her subsequent letter of 25 November 2010, Rhoda Grant advised that she would be consulting further on three options. The first option would be to remove the definition from the Bill and use “the ordinary meaning of domestic abuse” – this was her preferred option. The second option would be to adopt the definition used by the Scottish Government. The third option would be to retain a statutory definition in the Bill but to restrict the definition of who could perpetrate domestic abuse to partners and spouses and former partners and spouses.

90. Again, it is clear that this section gives rise to a number of potential difficulties and questions. The most fundamental question is whether it is advisable to have a statutory definition of domestic abuse at all. If it is advisable, then how widely should any definition be cast? The Committee notes that the Bill provides Scottish Ministers with the power to amend the definition of domestic abuse by adding further relationships. The Subordinate Legislation Committee recommended that if this power remains in the Bill it should be subject to the affirmative procedure, a point acknowledged by Rhoda Grant. It may be that, following Rhoda Grant’s further consultation, some agreement can be reached on the way forward, taking account of the power given to the Scottish Ministers to add to the list of relationships at a future date.

91. The Committee looks forward to the outcome of the further discussions between Rhoda Grant and the Minister. The Committee is prima facie impressed by the argument that a definition is necessary in order that accused persons, courts and solicitors and indeed victims have clarity as to whether the breach of a particular order is to be a criminal offence. The Committee is inclined to the view that the definition should cover the normally accepted categories of partners rather than wider family relationships.

Costs and financial implications

92. Throughout the evidence taking on the merits of this Bill, the issues of cost and the basis on which costs had been estimated arose. If passed, what would the cost of this Bill be to the public purse? This is a central consideration for the Committee on this Bill as it is for all Bills coming before any committee of this Parliament.

93. As noted earlier in this report, the Finance Committee considered the Financial Memorandum accompanying this Bill and its report is annexed to this report. Detailed evidence was received by that Committee but no conclusions were reached and nor were any recommendations made. This Committee accepted the Finance Committee’s invitation to consider the issues raised with it as part of the wider Stage 1 consideration.

94. The Financial Memorandum states that the main costs are likely to arise from an anticipated increase in the number of cases that could come to court seeking non-harassment orders and interdicts with powers of arrest. The Financial Memorandum acknowledges however that, in part due to the different sources of data not being directly comparable, it was not possible to quantify accurately the costs arising. Additionally, costs were expected to arise from removal of the means test.

95. The Minister agreed that the costs of the Bill were uncertain because it was not clear how many more cases might be raised. He said—

“In the worst case scenario, we think that the cost to the public purse could be significantly more than the financial memorandum estimates. I understand that the rationale in the financial memorandum is that there would be a 10 per cent increase in applications. If that were the case, we envisage that the costs would be broadly in line with what the financial memorandum has suggested. If there were to be a 50 per cent increase in applications for orders, the costs, as far as we are able to ascertain, would be around £1.4 million per year. That range, from £300,000 or £400,000 to £1.4 million, is a significant amount of money and additional cost.”43

96. The Minister added—

“Our overwhelming concern is that we will pass a bill, the costs of which could be substantially greater than they are estimated to be in the financial memorandum. I do not think that any notional potential savings would be a significant factor—certainly not in the short term.”44

97. The Committee noted from the Finance Committee’s report that SLAB was critical of the figure of 10% used in the financial memorandum as the basis for the expected increase in volume of the number of cases as a result of the removal of the means test and particularly the use of the Adults with Incapacity (Scotland) Act 2000 as a comparator.

98.  SLAB told this Committee that it had a very low refusal rate for legal aid on means grounds, probably 1% of applications, but that it had no way of knowing how many did not get as far as submitting an application. SLAB agreed that estimating the financial implications of the Bill was difficult—

“in many cases that involve protective orders, the protective order is an ancillary crave as part of a wider action, whereas the Financial Memorandum focused purely on cases in which the protective order is the primary crave. If any provisions of the bill applied to ancillary craves, the costs would be higher.”45

99.  SLAB added that there could also be additional costs from the side of the defender. As the Bill would increase the severity of an order that could be granted against a defender, more defenders might therefore seek to defend protective orders resulting in further additional cost to the legal aid fund. SLAB questioned whether the estimate of a 10% increase in take-up of orders could be regarded as accurate. Colin Lancaster said—

“A 10 per cent increase in take-up would result in 80 additional grants of legal aid per year. Given what the policy memorandum says about the barriers to people taking out protective orders, an additional 80 grants as a result of the first three sections of the bill working together seems to be on the low side.”46

100. The Minister raised this point too and pointed out that the Financial Memorandum did not address the issue of equality of arms and the resultant cost. The Minister agreed with SLAB that if more defenders were awarded legal aid, partly because any breach of an order made against them might lead to criminal proceedings, or alternatively if anyone were to pursue an ECHR case successfully, this would give rise to further costs.

101. The potential increase in costs for the Legal Aid Fund was acknowledged by those who gave evidence but many were of the view that the issue of cost was one of the barriers to protection for those being subjected to abuse. Heather Williams of SWA said—

“We must remember that the perpetrators, not the women, are causing the problem, although it is women seeking to protect themselves who have to jump hurdles to access civil legal aid. One hurdle is the cost and, if that can be taken away, it will be easier for women to protect themselves.”47

102. Others suggested that the Bill could give rise to savings for other agencies at other points in the process, for example fewer call-outs for the police as a consequence of criminalising breaches (as proposed in section 3), which could result in a reduction of repeat incidents requiring police attendance.

103. In relation to removal of the means test, the Minister said that the current financial climate would make this very difficult but that in principle he was sympathetic. The Minister added that this section had raised complex issues around separating out the domestic abuse element from a multi-crave action and the more general issue of whether domestic abuse cases were more deserving than other family cases or indeed cases where protective orders were being sought. The Minister suggested—

“If there were to be a change in, or an exception made to, the requirement that legal aid in civil actions be means tested, it would be incumbent on us all to consider the issue in the round, and not solely for this particular type of action and litigant.”48

104. It is apparent from the evidence that there is no agreement on what the costs of implementing this Bill might be.  However, deletion of section 2 from the Bill, as sought by the Committee, would remove much of the uncertainty.

Summary

105.  The Committee supports section 1 which removes the course of conduct requirement before a civil non-harassment order can be granted and also supports section 3 on the assumption that the criminal standard of proof, together with corroboration, will apply. However the Committee does not support section 2 which in effect would make legal aid free to all for applications to a civil court for an interdict with a power of arrest, or a non-harassment order, where domestic abuse was involved.  In the view of the Committee, this provision would create an inequality of arms between the pursuer and the defender. Additionally, the Committee is not persuaded that domestic abuse cases should be prioritised above other cases for the purposes of legal aid. The Committee notes that further work is to be undertaken on section 4. The preliminary view of the Committee is that it will be necessary to include a definition of domestic abuse in this Bill but that the definition should probably be restricted to the generally accepted categories of partners and should not be extended to cover other family relationships.

Conclusion

106. The Committee recommends to the Parliament that it agrees to the general principles of the Bill.

ANNEXE A: SUBORDINATE LEGISLATION COMMITTEE REPORT

Subordinate Legislation Committee Report on the Domestic Abuse (Scotland) Bill

The Committee reports to the Parliament as follows—

introduction

1. At its meetings on 26 October and 2 November 2010, the Subordinate Legislation Committee considered the delegated powers provisions in the Domestic Abuse (Scotland) Bill at Stage 1. The Committee submits this report to the Justice Committee as the lead committee for the Bill under Rule 9.6.2 of Standing Orders.

2. The Domestic Abuse (Scotland) Bill (“the Bill”) was introduced in the Parliament on 27 May 2010 by the Rhoda Grant MSP.

Delegated powers

Section 4(3) – (meaning of domestic abuse) - Power to modify the terms of section 4(1)

Power conferred on: the Scottish Ministers
Power exercisable by: order made by statutory instrument
Parliamentary procedure: Negative resolution of the Scottish Parliament

3. Section 4 contains a definition of domestic abuse by reference to the sort of conduct which would amount to abuse and the circumstances in which a domestic relationship is established.

4. The power in section 4(3) permits the Scottish Ministers to amend the definition of domestic abuse by adding further types of relationship. The power is currently exercisable under negative procedure.

5. The Committee was concerned that the power permits amendment to one of the central policy elements of the bill. The protection which the bill seeks to provide only arises in the context of prescribed domestic relationships. The Committee therefore asked the member in charge whether negative procedure provides sufficient scrutiny for any changes to the scope of the protection.

6. The member in charge has indicated that she proposes to lodge amendments at stage 2 which will address the Committee’s concerns if section 4 remains in the bill.

7. The Committee recommends that if a power to amend the definition of domestic abuse remains in the Bill it should be subject to affirmative procedure.

Ancillary Powers

8. The Committee notes that the Bill does not provide for power to make transitional, transitory or savings provision.  The Committee suggests that the member may wish to consider whether these might be appropriate in case further provision is required as a result of the changes the bill makes to the existing law.

ANNEX

CORRESPONDENCE BETWEEN SUBORDINATE LEGISLATION COMMITTEE AND RHODA GRANT MSP

Section 4(3) – (meaning of domestic abuse) - Power to modify the terms of section 4(1)

The Committee asks why, in the light of the legal effect of the exercise of the power to extend categories of relationship to which the Bill’s remedies can apply, is it considered that negative procedure provides a sufficient level of scrutiny?

Rhoda Grant MSP responded:

I intend to draft amendments at Stage 2 in regards to these points. It may be that these amendments will remove section 4. However, if this is not the case I will lodge amendments that will make the changes suggested by the committee.

Ancillary Powers

Given that the Bill creates new criminal offences in relation to extant protection orders and makes provision for the availability of legal aid in certain types of proceedings, the Committee asks whether it would be appropriate to have the power to make to make transitional, transitory or savings provision included within the Bill.

Rhoda Grant MSP responded:

I will undertake to make these provisions at stage 2.

ANNEXE B: FINANCE COMMITTEE REPORT

This report is also available on the Scottish Parliament website:

http://.scottish.parliament.uk/s3/committees/finance/reports-10/fir10-Domabuse.htm

Finance Committee Report on the Financial Memorandum of the Domestic Abuse (Scotland) Bill

The Committee reports to the Justice Committee as follows—

Introduction

1. The Domestic Abuse (Scotland) Bill (“the Bill”) was introduced in the Parliament on 27 May 2010 by the Member in Charge of the Bill, Rhoda Grant MSP. Under Standing Orders Rule 9.6, the lead committee at Stage 1 is required, among other things, to consider and report on the Bill’s Financial Memorandum (FM). In doing so, it is required to consider any views submitted to it by the Finance Committee (“the Committee”).

2. At its meeting on 15 June 2010, the Committee agreed to adopt level one scrutiny in relation to the Financial Memorandum (FM).1 Written submissions were received from the following organisations—

  • Association of Chief Police Officers in Scotland (ACPOS);
  • Scottish Court Service (SCS);
  • Scottish Legal Aid Board (SLAB); and
  • Scottish Women’s Aid (SWA).

3. All written submissions are annexed to this report. The Scottish Government’s response to the Justice Committee comments on the financial implications of the Bill, and this is also included in the annexe.

4. On the basis of written evidence received, at its meeting on 14 September, the Committee agreed to re-classify the FM as level two, and to take oral evidence from the Member in charge at its meeting on 21 September. The Member in charge also provided supplementary material in advance of her appearance before the Committee. This document can also be found in the evidence annexe.

The Bill and Financial Memorandum

5. The Bill has two main policy objectives: to increase access to justice for victims of domestic abuse and to enable police and prosecutors to provide a more robust response to breached civil protection orders which in turn may deter abusers from further abusive action.2

6. Section 1 amends the Protection from Harassment Act 1997 by removing the “course of conduct” requirement for a non-harassment order to be granted by a civil court in domestic abuse cases.  Section 2 amends the Legal Aid (Scotland) Act 1986 so as to make civil legal aid free to all persons applying to a civil court for an interdict with a power of arrest or a non-harassment order where domestic abuse is involved. Section 3 makes breach of an interdict with a power of arrest attached a criminal offence in cases of domestic abuse.3

7. The FM states that—

“The main costs likely to arise from the Bill relate to an anticipated increase in the number of cases brought to court for non-harassment orders (NHOs) and interdicts with a power of arrest. Additionally there are expected costs associated with section 2, which proposes to make legal aid available without means testing in respect of all applications for an interdict with a power of arrest or a NHO where domestic abuse is involved.”4

8. While the FM attempts to provide accurate estimates for the costs arising from the Bill, it notes that the different sources of data from SLAB, SCS and the police are not directly comparable and this has led to difficulties in costing the Bill.5 The FM states that—

“…it is impossible to accurately quantify the costs arising from the Bill. Where illustrative costs are provided, the margins of uncertainty in such costs are high (although more likely to be lower than suggested rather than higher than suggested).”6

9. Despite the difficulties with data, the FM does go into some detail in trying to assess the costs of the Bill. The main additional cost identified is a maximum annual increase of less than £226,338 in legal aid costs7. In terms of other costs on the Scottish Administration (i.e. on the Police and SCS), the FM recognises that there are uncertainties around estimates of costs and savings, but concludes that—

“…overall it is considered unlikely that, taking account of potential savings, significant additional costs will arise in any other area and indeed it may be more likely that savings will outweigh costs.”8

Summary of evidence

Submission from SLAB

10. SLAB made a detailed submission to the Committee. Although they acknowledge the difficulties in providing accurate costs outlined in the FM, in their view the overall costs to them (and therefore to the Scottish Government) are an under-estimate, rather than an over-estimate.

11. First, in terms of the volume of cases, the FM states that legal aid figures are likely to over-estimate the number of cases involving pursuers and domestic abuse, as they include defenders and non-domestic protective orders.9 Although this is the case, SLAB states that the majority of these grants do, in fact, relate to domestic abuse and pursuers. SLAB also states that it is “unclear whether the proposed removal of financial criteria would apply only to standalone cases involving domestic protective orders” and that such orders are often “sought alongside other remedies such as divorce, residence contact or financial provision on separation.”10 This can also have an impact on the potential level of cost per case, as—

“…should the means test be removed for any proceedings that include craves for protective orders, the cost could also be more than set out in the FM because the wider actions of which a protective order may be one part are, on average, considerably more costly than stand alone protective order actions.”11

12. SLAB is also critical of the figure of 10% used in the FM as a basis for the expected increase in volume of the number of cases as a result of the removal of the means test, and especially around the use of the Adults with Incapacity (Scotland) Act as a comparator.12

Response from the Member in Charge

13. During the oral evidence session, the Member in charge provided a response to the points made by SLAB—

“We have now used the board's figures to identify cases to which non-harassment orders for family actions and interdicts with powers of arrest for family actions are attached. It is still impossible to identify which of those cases were a result of domestic abuse. Therefore, we have counted them all. We have also counted defenders as well as pursuers, because SLAB has stated in its evidence that a small number of defenders are victims.”13

14. In addition, the Member in charge stated that—

“As in the financial memorandum, we have used the number of cases multiplied by the average cost per case, while taking into account contributions made. SLAB tells us that about 75 per cent of the population currently qualify for legal aid. SPICe estimates that as many as 90 per cent of victims of domestic abuse qualify for legal aid. Therefore, we have calculated an absolute maximum cost using a 25 per cent increase in cases. We still believe that the figure will be nearer SPICe's estimated 10 per cent increase, because we are aware that 90 per cent of domestic abuse cases currently qualify for legal aid. Therefore, we have also worked up estimates for a 10 per cent increase in cases.”14

15. However, the Member in charge also confirmed that there may be an overall saving to the legal aid budget as—

“At the moment, people who are receiving legal aid and who need to go back to court because of a breach of interdict find that they have to push the issue as contempt of court, which is a civil issue not a criminal issue. The costs of that fall on the legal aid system. Breaches of interdict with powers of arrest would be removed from the legal aid budget and the case would become a criminal case.”15

16. The revised figures referred to above by the Member in charge can be found in the annexe to this report.

Wider issues

17. Finally, it was also noted during the evidence session that the Bill will need to be amended due to changes around non-harassment orders for criminal cases and to clarify issues around ancillary cases as identified in the SLAB submission.16 This may give rise to additional costs.

Conclusion

18. The Committee thanks the Member in charge for her response to the detailed points raised by SLAB and would encourage the lead committee to consider the issues raised above during its stage 1 consideration of the Bill.

ANNEXE C: EXTRACTS FROM THE MINUTES

20th Meeting, 2010 (Session 3), Tuesday 15 June 2010

Members’ Bills (in private): [ ]The Committee considered its general approach to the scrutiny of four Members’ Bills recently referred to it. The Committee agreed, in relation to the Criminal Sentencing (Equity Fines) (Scotland) Bill, to write to Bill Wilson MSP inviting his comments on the legislative competence of his Bill, with a view to then deciding whether to invoke the accelerated procedure under Rule 9.14.18. The Committee agreed that the other three Bills referred to it should be considered in the following order: 1) Damages (Scotland) Bill; 2) Domestic Abuse (Scotland) Bill; and 3) Commissioner for Victims and Witnesses (Scotland) Bill. The Committee also agreed that it did not wish to seek approval for the appointment of an adviser in relation to any of these Bills.

22nd Meeting, 2010 (Session 3), Tuesday 29 June 2010

Domestic Abuse (Scotland) Bill (in private): The Committee considered its approach to the scrutiny of the Bill at Stage 1. It agreed a draft call for written evidence and to draw this to the attention of a range of relevant individuals and organisations. The Committee also agreed, initially, to invite the Association of Chief Police Officers in Scotland, the Crown Office and Procurator Fiscal Service, the Law Society of Scotland and Scottish Women’s Aid to give oral evidence.

26th Meeting, 2010 (Session 3), Tuesday 28 September 2010

Domestic Abuse (Scotland) Bill (in private): The Committee considered the written evidence received so far and agreed to invite the Scottish Legal Aid Board as an additional witness to give oral evidence and to finalise other possible witnesses by correspondence.

27th Meeting, 2010 (Session 3), Tuesday 5 October 2010

Domestic Abuse (Scotland) Bill: The Committee took evidence on the Bill at Stage 1 from—

Louise Johnson, Legal Issues Worker, Scottish Women's Aid;

Heather Williams, Manager, Ross-shire Women's Aid;

Girijamba Polubothu, Manager, Shakti Women's Aid;

Mhairi McGowan, Operations Manager, and Fiona McMullen, Service Manager, ASSIST.

Domestic Abuse (Scotland) Bill (in private): The Committee considered the main themes arising from the oral evidence heard earlier in the meeting.

28th Meeting, 2010 (Session 3), Tuesday 26 October 2010

Domestic Abuse (Scotland) Bill: The Committee took evidence on the Bill at Stage 1 from—

Lesley Dowdalls, Family Law Sub Committee, and Katie Hay, Law Reform Officer, Law Society of Scotland;

Assistant Chief Constable Iain Livingstone, Lothian and Borders Police, Association of Chief Police Officers in Scotland;

Christopher Macintosh, Principal Depute, Policy Division, and Anne Marie Hicks, Deputy Divisional Fiscal, East Division, Glasgow, Crown Office and Procurator Fiscal Service.

Domestic Abuse (Scotland) Bill (in private): The Committee considered the main themes arising from the oral evidence heard earlier in the meeting.

29th Meeting, 2010 (Session 3), Tuesday 2 November 2010

Domestic Abuse (Scotland) Bill: The Committee took evidence on the Bill at Stage 1 from—

Colin Lancaster, Director of Policy and Development, and Catriona Whyte, Head of Legal Services - Civil, Scottish Legal Aid Board;

Elizabeth Welsh, Chair, and Helen Hughes, Past Chair, Family Law Association;

Carl Watt, Director, Stonewall Scotland.

Domestic Abuse (Scotland) Bill (in private): The Committee considered the main themes arising from the oral evidence heard earlier in the meeting.

30th Meeting, 2010 (Session 3), Tuesday 9 November 2010

Domestic Abuse (Scotland) Bill: The Committee took evidence on the Bill at Stage 1 from—

Fergus Ewing MSP, Minister for Community Safety;

Colin McKay, Legal Systems Division, and Simon Stockwell, Family and Property Law, Scottish Government;

Rhoda Grant MSP;

Clare Connelly, Senior Lecturer, and James Clark, Postgraduate Student, University of Glasgow School of Law.

Domestic Abuse (Scotland) Bill (in private): The Committee considered the main themes arising from the oral evidence heard earlier in the meeting.

32nd Meeting, 2010 (Session 3), Tuesday 23 November 2010

Domestic Abuse (Scotland) Bill (in private): The Convener gave a short report back on the previous day’s visit to a domestic abuse court in Glasgow. The Committee then considered the main themes arising from the evidence received, in order to inform the drafting of its Stage 1 report.

36th Meeting, 2010 (Session 3), Tuesday 14 December 2010

Domestic Abuse (Scotland) Bill (in private): The Committee considered a draft Stage 1 report. Various changes were agreed to and the Committee agreed to consider a revised draft at its meeting on 11 January 2011.

1st Meeting, 2011 (Session 3), Tuesday 11 January 2011

Domestic Abuse (Scotland) Bill (in private): The Committee considered a revised draft Stage 1 report. Various changes were agreed to, and the report was approved for publication.

ANNEXE D: INDEX OF ORAL EVIDENCE

27th Meeting, 2010 (Session 3), Tuesday 5 October 2010

Louise Johnson, Legal Issues Worker, Scottish Women's Aid;

Heather Williams, Manager, Ross-shire Women's Aid;

Girijamba Polubothu, Manager, Shakti Women's Aid;

Mhairi McGowan, Operations Manager, and Fiona McMullen, Service Manager, ASSIST.

28th Meeting, 2010 (Session 3), Tuesday 26 October 2010

Lesley Dowdalls, Family Law Sub Committee, and Katie Hay, Law Reform Officer, Law Society of Scotland;

Assistant Chief Constable Iain Livingstone, Lothian and Borders Police, Association of Chief Police Officers in Scotland;

Christopher Macintosh, Principal Depute, Policy Division, and Anne Marie Hicks, Deputy Divisional Fiscal, East Division, Glasgow, Crown Office and Procurator Fiscal Service.

29th Meeting, 2010 (Session 3), Tuesday 2 November 2010

Colin Lancaster, Director of Policy and Development, and Catriona Whyte, Head of Legal Services - Civil, Scottish Legal Aid Board;

Elizabeth Welsh, Chair, and Helen Hughes, Past Chair, Family Law Association;

Carl Watt, Director, Stonewall Scotland.

30th Meeting, 2010 (Session 3), Tuesday 9 November 2010

Fergus Ewing MSP, Minister for Community Safety;

Colin McKay, Legal Systems Division, and Simon Stockwell, Family and Property Law, Scottish Government;

Rhoda Grant MSP;

Clare Connelly, Senior Lecturer, and James Clark, Postgraduate Student, University of Glasgow School of Law.

Oral evidence is published separately on the Committee’s webpage at:

http://www.scottish.parliament.uk/s3/committees/justice/inquiries/DomesticAbuse/Index.htm

ANNEXE E: INDEX OF WRITTEN EVIDENCE

Written evidence received in alphabetical order

Action Scotland Against Stalking (122KB pdf)
ASSIST (72KB pdf)
ASSIST (supplementary submission) (82KB pdf)
Association of Chief Police Officers in Scotland (95KB pdf)
Barnardo's Scotland (107KB pdf)
Church and Society Council and Ministries Council of the Church of Scotland and the Church of Scotland Guild (152KB pdf)
Engender (112KB pdf)
Equality and Human Rights Commission (11KB pdf)
Dr David Gadd (6KB pdf)
Glasgow Violence Against Women Partnership (110KB pdf)
Inverness Nairn Soroptimists International (11KB pdf)
Law Society of Scotland (106KB pdf)
LGBT Youth Scotland (83KB pdf)
NHS Greater Glasgow and Clyde (108KB pdf)
North Ayrshire Violence Against Women Partnership (74KB pdf)
Scottish Children's Reporter Administration (109KB pdf)
Scottish Legal Aid Board (177KB pdf)
Scottish Legal Aid Board (supplementary submission) (98KB pdf)
Scottish Women's Aid (294KB pdf)
Scottish Women's Aid (supplementary submission) (111KB pdf)
Scottish Women's Convention (114KB pdf)
Shakti Women's Aid (121KB pdf)
Soroptimist International Scotland North and Soroptimist International Scotland South (59KB pdf)
Unison Scotland (79KB pdf)
Victim Support Scotland (68KB pdf)
Violence Against Women Strategy Group in Highland (112KB pdf)
Women's Support Project (152KB pdf)
Zero Tolerance (109KB pdf)

Written submissions are published separately (in the order received) on the Committee’s webpage at:
http://.scottish.parliament.uk/s3/committees/justice/inquiries/DomesticAbuse/submissions.htm


Footnotes:

2 However the methodology used has changed. 2009-10 is the first year in which data has been submitted based on the date the incident was recorded. Prior to this, data was returned based on the number of incidents which occurred during that time period.

3 Scottish Parliament Information Centre (SPICe) briefing available at: http://.scottish.parliament.uk/business/research/briefings-10/SB10-53.pdf

6 Scottish Parliament Justice Committee. Official Report, 2 November 2010, Col 3689.

7 Scottish Parliament Justice Committee. Official Report, 2 November 2010, Col 3690.

8 Scottish Parliament Justice Committee. Official Report, 5 October 2010, Col 3586.

9 Scottish Parliament Justice Committee. Official Report, 5 October 2010, Col 3586.

10 Advocacy, Safety, Support, Information, Services Together (ASSIST).

11Scottish Parliament Justice Committee. Official Report, 5 October 2010, Col 3605.

12 Scottish Parliament Justice Committee. Official Report, 26 October 2010, Col 3623.

13 Scottish Parliament Justice Committee. Official Report, 26 October 2010, Col 3623.

14 Scottish Parliament Justice Committee. Official Report, 2 November 2010, Col 3701.

15 Scottish Legal Aid Board. Letter dated 8 December 2010.

16 Scottish Parliament Justice Committee. Official Report, 9 November 2010, Col 3725.

17 Domestic Abuse (Scotland) Bill. Policy Memorandum, paragraph 27. Available at: http://.scottish.parliament.uk/s3/bills/45-DomesticAbuse/b45s3-introd-pm.pdf

18 Scottish Parliament Justice Committee. Official Report, 2 November 2010, Col 3692.

19 Scottish Parliament Justice Committee. Official Report, 26 October 2010, Col 3623.

20 Scottish Government. Letter from the Minister for Community Safety dated 23 November 2010.

21 Scottish Parliament Justice Committee. Official Report, 9 November 2010, Col 3743.

22Scottish Parliament Justice Committee. Official Report, 26 October 2010, Col 3626.

23 Scottish Parliament Justice Committee. Official Report, 2 November 2010, Col 3681.

24Scottish Parliament Justice Committee. Official Report, 2 November 2010, Col 3696.

25 Scottish Parliament Justice Committee. Official Report, 2 November 2010, Col 3702.

26 Scottish Parliament Justice Committee. Official Report, 26 October 2010, Col 3635.

27 Scottish Parliament Justice Committee. Official Report, 2 November 2010, Col 3682.

28 Scottish Parliament Justice Committee. Official Report, 5 October 2010, Col 3608.

29 Scottish Parliament Justice Committee. Official Report, 2 November 2010, Col 3695.

30Scottish Parliament Justice Committee. Official Report, 26 October 2010, Col 3640.

31Scottish Parliament Justice Committee. Official Report, 26 October 2010, Col 3626.

32 Scottish Parliament Justice Committee. Official Report, 5 October 2010, Col 3590.

33 Scottish Parliament Justice Committee. Official Report, 26 October 2010, Col 3643.

34 Scottish Parliament Justice Committee. Official Report, 2 November 2010, Col 3673.

35 Scottish Parliament Justice Committee. Official Report, 26 October 2010, Col 3628.

36 Scottish Parliament Justice Committee. Official Report, 2 November 2010, Col 3703.

37 Scottish Parliament Justice Committee. Official Report, 2 November 2010, Col 3711.

38Scottish Parliament Justice Committee. Official Report, 5 October 2010, Col 3594.

39 Scottish Parliament Justice Committee. Official Report, 5 October 2010, Col 3595.

40 The Law Society of Scotland. Written submission to the Justice Committee.

41 Scottish Parliament Justice Committee. Official Report, 26 October 2010, Col 3647.

42 Scottish Parliament Justice Committee. Official Report, 9 November 2010, Col 3735.

43 Scottish Parliament Justice Committee. Official Report, 9 November 2010, Col 3741.

44 Scottish Parliament Justice Committee. Official Report, 9 November 2010, Col 3742.

45 Scottish Parliament Justice Committee. Official Report, 2 November 2010, Col 3671.

46 Scottish Parliament Justice Committee. Official Report, 2 November 2010, Col 3672.

47 Scottish Parliament Justice Committee. Official Report, 5 October 2010, Col 3589.

48 Scottish Parliament Justice Committee. Official Report, 9 November 2010, Col 3730.

1 Full information on the Committee’s system of scrutiny for Financial Memoranda can be found on the Committee’s webpages, at: http://.scottish.parliament.uk/s3/committees/finance/inquiries/financialMemo.htm

2 Domestic Abuse (Scotland) Bill. Policy Memorandum, paragraph 2. Available at: http://.scottish.parliament.uk/s3/bills/45-DomesticAbuse/b45s3-introd-pm.pdf

3 Domestic Abuse (Scotland) Bill. Financial Memorandum, paragraphs 37-39. Available at: http://.scottish.parliament.uk/s3/bills/45-DomesticAbuse/b45s3-introd-en.pdf

4 Financial Memorandum, paragraph 23

5 Financial Memorandum, paragraph 25

6 Financial Memorandum, paragraph 26

7 Financial Memorandum, paragraph 64

8 Financial Memorandum, paragraph 82

9 Financial Memorandum, paragraph 25

10 Scottish Legal Aid Board. Written submission to the Finance Committee.

11 Scottish Legal Aid Board. Written submission to the Finance Committee.

12 Scottish Legal Aid Board. Written submission to the Finance Committee

13 Scottish Parliament Finance Committee. Official Report, 21 September 2010, Col 2502.

14 Scottish Parliament Finance Committee. Official Report, 21 September 2010, Col 2502.

15 Scottish Parliament Finance Committee. Official Report, 21 September 2010, Col 2504.

16 Scottish Parliament Finance Committee. Official Report, 21 September 2010, Col 2504.