Following the announcement from Boris Johnson outlining radical controls on people’s contact with others and attendance at the workplace as a result of COVID-19 risks, experts and charities have warned of the potential increase in cases of domestic abuse and reduced abilities of social services in order to intervene.

While it is too early to quantify the impact the pandemic has had on domestic abuse rates, we look at the legal stance on Domestic Abuse in Scotland and the current protections in place for victims.

What is the law in Scotland on domestic abuse?

Last year, the Scottish Government introduced the Domestic Abuse (Scotland) Act 2019.  The Domestic Abuse (Scotland) Act created a specific offence for “abusive behaviour towards a partner or ex-partner” for the first time, which carries a maximum 14-year sentence for the most serious offences. The 2019 Act supplements legislation from 2010 and 2016 criminalising other domestic offences such as Threatening & Abusive Behaviour, Stalking, Domestically aggravated offending and Revenge-porn offences.

What constitutes “abusive behaviour”?

Abusive behaviour comes in many forms.  As well as physical abuse, violence and intimidation towards a partner, the law also covers coercive and controlling behaviour, psychological abuse and emotional abuse.

So, the law doesn’t just apply to physical abuse?

No. Whilst the most obvious form of abusive behaviour is recognised as physical abuse, the legislation covers varying levels of abuse, each of which has the same impact on the victim.  This behaviour includes:

  • Making the victim dependant on the abuser. For example, controlling finances by limiting their access to cards or cash
  • Isolating the victim from friends, family and other sources of support, forcing them to stay at home or cancel plans
  • Controlling, regulating or monitoring the victim’s day to day life - this could include excessive calls or texts or punishing the victim when they do not get back to them.
  • Preventing access or monitoring the victim’s social media output;
  • Frightening, humiliating, degrading or punishing the victim, such as making up stories, making unfounded accusations against the victim, intimidating or humiliating them or putting them down in front of others; and
  • Depriving the victim of, or restricting, freedom of action such as preventing them from going to appointments, socialising or getting a job.
Does the legislation protect children?

Yes. In circumstances where the abusive behaviour is directed at or witnessed by a child, the offence is aggravated, and a higher sentence will be imposed.  Children are therefore not only protected from being victims of domestic abuse, but also the trauma of having to witness a parent or carer being abused.

How would you prove abuse that isn’t physical?

Unlike an allegation of Assault (where there may be physical injury or eye witnesses), because of the nature of this new offence, more resources for the investigation by the Police may be required in order to prove the case.  Investigations may include gathering electronic evidence such as text messages and Facebook posts and interviewing friends and family as potential prosecution witnesses who can speak to the behaviour.

Does this then mean that allegations will not be followed up?

No, in fact, quite the opposite.  Police Scotland Deputy Chief Constable Fiona Taylor said recently:

“Our officers attend around 60,000 domestic abuse incidents every year – an average of one every nine minutes.

“We are committed to bringing offenders to justice and continually improving how we respond to domestic abuse and work with a wide range of partners to provide support for victims and to improve our response.”

Now, more than ever before, a strong stance is being taken in Scotland to protect victims.

A Joint Protocol between Police Scotland and the Crown Office stipulates that there is a presumption of prosecution where domestic abuse is reported to the police and prosecutors have strict guidelines usually requiring the case to be prosecuted at a trial, where there is sufficient evidence.

What sort of punishment can offenders expect to receive?

The legislation sets out that a Court may impose a period of imprisonment or a fine depending on the circumstances if the accused is found guilty, with a punishment of up to 14 years.

Are there any possible defences to accusations under the new Act?

An accused person can plead a defence that their behaviour was reasonable in all the circumstances. 

Possible defences include:

  • Where the accused has been forced to take reasonable steps against a partner who may have, for example, drug or alcohol issues.
  • Such steps may include preventing their partner from going out where there is a high chance of alcohol consumption or restricting funds where their partner has a gambling issue.

Both could be reasonable behaviour depending on the individual circumstances of the case and provided there is evidence to show it.

This article was co-written by Solicitor Advocate, Neil Hay, and Director at MTM Defence.

For more information, contact our Family Law team.