The prosecution of domestic abuse cases at sheriff summary level

Context

Definition of domestic abuse

1. In a joint protocol that sets out how they will investigate, report and prosecute allegations of domestic abuse, COPFS and Police Scotland define domestic abuse as:

'Any form of physical, verbal, sexual, psychological or financial abuse which might amount to criminal conduct and which takes place within the context of a relationship. The relationship will be between partners (married, cohabiting, civil partnership or otherwise) or ex-partners. The abuse can be committed in the home or elsewhere including online.'^[4]

2. The joint protocol notes that, as a form of gender-based violence, domestic abuse is predominantly perpetrated by men against women. However, the definition is intended to acknowledge and include 'abuse of male victims by female perpetrators and includes abuse of lesbian, gay, bisexual, transgender and intersex people within relationships.'

3. The joint protocol also notes that its definition of domestic abuse, 'encompasses the entire spectrum of behaviour by perpetrators where this amounts to criminal conduct. This includes cases which involve isolated incidents as well as cases involving a course of conduct and includes both violent and non-violent abusive behaviour. Some cases will involve elements and tactics of coercive control, which can involve a range of behaviours designed to control and harm a victim, while others will involve isolated incidents of conflict provoked by situational factors.'

Terminology Various terms may be used to describe a person who has experienced domestic abuse. They are usually described as a ‘complainer’ during the criminal justice process, but may also be referred to as a ‘victim’ or ‘survivor’. Some of those we interviewed who had experienced domestic abuse had a clear preference for a particular term, however the preferred term varied from person to person. In this report, we have used the term ‘victim’ for ease and consistency.

Policy context

4. In 2014, the Scottish Government published 'Equally Safe', a strategy for preventing and eradicating violence – including domestic abuse – against women and girls. Updated most recently in 2023, the strategy prioritises preventing violence and supporting early intervention, holding perpetrators to account, and delivering services that meet victims’ individual needs.^[5]

5. In 2022, the Scottish Government published its 'Vision for Justice in Scotland'. This includes several priorities relevant to addressing domestic abuse, including that justice services be person-centred and trauma-informed, that women and children be better served by the justice system, and that delays in the justice process reduce.^[6]

6. These national priorities are reflected in COPFS's Strategic Plan 2023-27, in which COPFS notes that it anticipates cases involving violence against women and children, sexual crime and domestic abuse will form the bulk of its casework for years to come.^[7] In its strategic plan, COPFS states that it will transform the way domestic abuse is prosecuted and sets out three transformation priorities for the years ahead:

• improving the experiences of women and children within the justice system
• improving communication and the support offered to the most vulnerable service users
• achieving quicker conclusions to criminal investigations.

Prosecution policy

7. Tackling domestic abuse is a priority for COPFS. In its joint protocol with Police Scotland on challenging domestic abuse, the two organisations outline the procedures to be followed in the investigation, reporting and prosecution of domestic abuse allegations. The protocol also sets out the standards of service which victims of domestic abuse can expect from the police and COPFS. Prosecution policy is set out in more detail in a dedicated chapter of the COPFS manual on victims and witnesses, and in case marking instructions specific to the offences alleged.

8. It is prosecution policy that there is a presumption in favour of prosecution in all cases of domestic abuse where a sufficiency of evidence exists. This includes cases where no evidence is to be led from the victim and cases where the victim may require additional support to enable them to engage with the criminal justice process.^[8]

9. In cases involving violence or the threat of violence, there is a further presumption that proceedings will be taken in the Sheriff Court or High Court. In cases which do not involve violence or the threat of violence, proceedings may be taken in the Justice of the Peace Court.^[9] In exceptional circumstances and subject to additional COPFS guidance and policies, the presumption in favour of prosecution may be rebutted and alternative action taken, such as diversion from prosecution, a warning letter or a personal warning.

Recent legislative developments

10. Depending on the nature of the abuse and the circumstances in which it takes place, domestic abuse may be prosecuted as many different crimes at common law or as statutory offences. The most common type of domestic abuse incidents reported to COPFS in 2022-23 were those relating to threatening and abusive behaviour (contrary to section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010) and common assault.^[10]

11. The Abusive Behaviour and Sexual Harm (Scotland) Act 2016 created a statutory aggravation of domestic abuse. This aggravation can be applied to any offence involving the abuse of a partner or ex-partner. Since its introduction in April 2017, prosecutors are able to establish the aggravation by proving that the accused either intended to cause or was reckless about causing physical or psychological harm to their partner or ex-partner.

12. The Domestic Abuse (Scotland) Act 2018 was introduced to improve how the justice system responds to domestic abuse by ensuring that the criminal law reflects a 'modern understanding' of domestic abuse and reflects how victims actually experience such abuse.^[11] Section 1 of the 2018 Act created a new offence of engaging in a course of behaviour that is abusive of the accused's partner or ex-partner. The abusive behaviour can include violent, threatening or intimidating behaviour, as well as psychological, emotional or financial abuse which were more difficult to prosecute under previously existing law. The 2018 Act also created a statutory aggravation intended to reflect the harm caused to children by domestic abuse. The aggravation can be applied to an offence under section 1 where the accused committed the offence in a way which involved a child.

13. The 2018 Act also introduced various reforms to criminal procedure, evidence and sentencing. These reforms apply to offences under the 2018 Act itself as well as other offences subject to the domestic abuse aggravation. They include, for example, a requirement that, on conviction, a court consider and make a non-harassment order for the victim and any children unless satisfied that this is not appropriate or necessary for their protection.

14. While section 1 of the 2018 Act is now a useful tool for prosecutors when responding to domestic abuse, it will not be appropriate for all such offending. Previously existing common law and statutory offences continue to be used depending on the facts and circumstances of each case.

Data on domestic abuse

15. In 2022-23, the police reported 30,139 charges with a domestic abuse identifier to COPFS, a decrease of 8% compared to the previous year.^[12] On receipt of a police report, COPFS may decide to initiate court proceedings, issue a direct measure (such as a warning or diversion from prosecution) or take no action. The vast majority of charges reported with a domestic abuse identifier were prosecuted (94% in 2022-23, up from 93% the previous year). The proportion of charges that resulted in no action was 4%, up from 3% the previous year. The most common reason for taking no action was that there was insufficient admissible evidence.

16. Of the charges that were prosecuted, 79% were prosecuted at sheriff summary level.

17. The most common types of offences reported in 2022-23 with a domestic abuse identifier were threatening and abusive behaviour (27%), common assault (24%) and crimes against public justice, which includes bail offences (23%). Only 6% of the domestic charges reported related to section 1 of the 2018 Act.

18. The majority of those accused of domestic abuse were male (86%).

19. Domestic abuse continues to represent a substantial proportion of cases managed and prosecuted by COPFS. In 2022-23, 11% of all charges reported by the police to COPFS related to domestic abuse.^[13]

20. Despite the high volume of domestic abuse charges reported to COPFS, most incidents of domestic abuse go unreported to the police^[14] and, even when reported, may not result in the recording of a crime or a report to COPFS.^[15]