‘I SEE a profound difference in the basic understanding of domestic abuse in many areas. It’s easy to lose sight of how important that is, but it’s the foundation on which we build a new system – and my God, do we need a new system.”
Dr Marsha Scott, CEO of Scottish Women’s Aid, sums up the feelings of leading victims’ advocates on how the criminal court system is working for domestic abuse survivors, six years after the Domestic Abuse (Scotland) Act 2018 (DASA) came into force.
The legislation, lauded by campaigners as the “gold standard”, created a new criminal offence of coercive control, defined as “engaging in a course of behaviour which is abusive of a partner or ex-partner”.
Despite progress, Scott feels the criminal justice system continues to demonstrate long-standing misconceptions. “It is difficult to overcome this notion of domestic abuse as physical violence, and of physical violence being more serious than coercive and controlling behaviours – which is not what women and children have said for decades.”
While the concept of “coercive control” is now broadly understood, Scott says the problem lies with a perception that this is somehow distinct from “domestic abuse”, whereas “pretty much every domestic abuse case includes coercion”.
“Another myth in the system” which Scott says has persisted is that if a father “wasn’t physically abusive to the children, then he must be a safe enough father”. This, she argues, is why child aggravators on domestic abuse convictions remain underused. This is despite the fact that one of the achievements of DASA was that harsher sentences can be applied where a “reasonable person” would consider that the behaviour would cause a child to suffer harm, even where the child is not the focus of the abuse.
In the face of gaps in both understanding and resources, experts in victims’ experiences paint a picture of a system which has yet to catch up with the legislation at its disposal.
Gemma Gall of domestic abuse charity SafeLives points to the statistics which underline this issue: “If you look at the number of charges there were last year that were domestic abuse in nature, there were more than 30,000 charges and less than 2000 of those were DASA charges.
“That leads me to question: are there other cases where that could have been applied? We’re still falling back into laws that would have been used before 2018 – assaults, sexual violence, threatening and abusive behaviour – but we’re not tying it all together as well.”
Gall was a Domestic Abuse Court Advocacy (DACA) worker before and after the introduction of the legislation, supporting victims to navigate the criminal court process. Now, she’s leading on a programme of standards and accreditation for DACA workers, with a view to ensuring everyone who needs this kind of support is able to access it.
Currently, 13 of Scotland’s 32 local authorities don’t have an established DACA service. Without someone to advise and advocate for them, Gall says survivors can find the process “disempowering, like you’re being treated as a piece of evidence or as a witness in a case that’s very personal to you”.
Positively, Gall stresses that, since the introduction of DASA, there has been a recognition from the Scottish Government that court advocacy is needed, backed by funding to “look at ways to really centre victims”, like SafeLives’s work. That being said, she notes that much of the funding for advocacy services is part of the time-limited Victim Centred Approach Fund and Equally Safe Fund, so questions remain about “what’s beyond that”.
According to Cynthia Gimenez, team leader of the Edinburgh Domestic Abuse Court Service (EDDACS), run by Edinburgh Women’s Aid, the need for advocacy services is accentuated by the fact that “the majority of women that go through court for domestic abuse find it re-traumatising”.
This is the result of a variety of factors. For one, while there are special measures that can be provided by courts to keep vulnerable witnesses safe during the process – such as the ability to provide evidence from a remote location or from a separate room – Gimenez says these are “not always available” because of a “lack of resources”.
One of EDDACS’s roles is to ensure victims are informed of the outcomes of hearings, however, Gimenez says the court doesn’t always provide that information on the same day, resulting in situations where the victim “might not feel safe to leave the house”.
“You don’t know if the bail conditions have changed. You don’t know if someone was in custody and has been released that day. You don’t know if the case hasn’t been taken forward because of a lack of evidence. If you are going to be trauma-informed, you would think that’s essential,” she says.
Ultimately, the fact that cases can take years to be prosecuted only exacerbates these issues.
“The delays are what increases that feeling of, what’s the point? Why did I go through all of this – this horrific process where I was feeling unsafe and which might have potentially caused the situation to escalate – if I wasn’t going to get anything out of it, if I wasn’t going to feel safer at the end of it?” she says.
Fiona McMullen, operations manager at Assist, a domestic abuse court advocacy service which serves 13 local authorities, echoes these concerns, while stressing that she “would always encourage victims to report”. She adds: “We have to acknowledge how far we’ve come.”
One of the key achievements of DASA, McMullen says, was that it is now mandatory for sheriffs to consider non-harassment orders (NHOs) in domestic abuse cases. “That was huge to us,” she recalls.
However, sheriffs do not grant NHOs after every conviction, even where this has been requested by the victim. “This is the biggest letdown for our clients. They’ve been through that journey, they’ve often had to give evidence – because perpetrators of domestic abuse will often not plead guilty – then they don’t get a non-harassment order,” McMullen says.
Another positive development which McMullen highlights is the introduction of case management pilots which are rolling out across Scotland in summary (non-jury) cases. This effectively means that the defence and prosecution can see the evidence “earlier in the process and can better inform the plea being made”, she explains.
“It reduces the need for the victim and witnesses to give evidence in court,” McMullen says, and the aim is to “bring about early resolutions”. While this is “very helpful”, McMullen warns of a need to ensure that sheriffs “are still sentencing robustly”, which is not always the case.
“We need to make sure we’re not just saying, well, they pled guilty early, so we’ll admonish them, or it’s a fine – and fines are inappropriate in domestic abuse cases, because you’re putting a financial cost on someone’s abuse,” she says.
In McMullen’s experience, what domestic abuse victims are looking for from the criminal justice system is “protection” and “something to stop the abuse”. She adds: “If a sheriff isn’t putting in a sentence that does any of that, that’s when victims might begin to lose faith in the system.”
Still, each of these advocates for survivors believe a better system is in reach. Gall emphasises that “there are so many motivated people within these systems trying to make that change”. One example she highlights is that the Crown Office and Prosecution Service (COPFS) has accepted all recommendations of a recent inspection report on domestic abuse. Another is the Victims, Witnesses, and Justice Reform (Scotland) Bill, which aims to improve victims’ experiences with a particular focus on sexual violence cases.
Gimenez feels that an important step the courts and prosecution service could take is to ensure that training in domestic abuse for all staff is made “mandatory and embedded into their usual practice, because it constitutes a lot of the cases that are going through court”.
For Scott – having contributed to the training for sheriffs in the Domestic Abuse Scotland Act and observing “no sign of improvement in sheriffs’ judgements in the context of domestic abuse” – the key to change is “accountability”.
Scott says: “The critical thing which is missing is a system that says, in order to uphold the law in Scotland, you need to be able to do these things – and if you’re not doing these things in your courtroom, or in your police call, or prosecution, then you’re not doing your job competently.”
A recurring theme, which McMullen articulates, is that the knowledge is already there on how to deliver a system that works for victims: “That’s court advocacy, it’s police resource, it’s resource within COPFS to make sure that victims are engaged, and it’s robust sentencing and perpetrator programmes available across Scotland which address the offending.”
In many areas, McMullen says, what’s missing is the resource: “We know what good looks like – but we need the resources to deliver it.”
