Day Six | Towards a just conclusion – a prosecutor’s perspective on tackling domestic abuse in Scotland

Anne Marie Hicks

Hicks

Image of the Crown Office used with the permission of the Crown Office & Procurator Fiscal Service, Scotland

Transforming the institutional response to domestic abuse has been a key focus since I was appointed six years ago to a newly-created role of National Prosecutor, one which is not mirrored in other jurisdictions internationally. With a remit involving overseeing all aspects of policy, practice and training, including case work, service improvements and policy and legislative development, it’s my job to ensure prosecutors have the right tools to do the job and that our response is as effective as it can be. 

My diary over this period reflects the breadth of the role – there’s no ‘typical’ day. To illustrate, I’m delivering training to prosecutors; reviewing the first six months of implementation of our new domestic abuse law; and working with our human resources department on the development of a gender-based violence policy for our staff. I’m also speaking at events and to media to publicise 16 Days, participating in a Ministerial Task Force to improve victims’ justice experience and a Task Force to improve forensic medical services for victims of sexual violence, and attending a multi-agency forum with criminal justice and victim support organisations to discuss the collective response to domestic abuse. Quite a variety!

The key benefits and difference the National Prosecutor role have made are around strategic leadership and specialism – having the authority to work across boundaries, to really drive change, upskill prosecutors and identify and implement service improvements at a national level. Externally, the role has increased understanding and public confidence in our approach, has strengthened multi-agency collaborations and has enabled us to play a more influential role in the national political response to tackling violence against women.

Robust prosecution critical in preventing abuse

Around 30,000 domestic abuse charges are reported annually to the Prosecution Service by the police in Scotland – covering the full ambit of offending including rape and murder. Domestic abuse is also a significant inequality issue – around 80% of cases involve abuse by male perpetrators towards women.

We take a robust approach to the prosecution of domestic abuse, recognising that effective enforcement and prosecution is critical to the success of any wider prevention strategy. Prosecution can disrupt the abuse and enable physical separation and a breathing space for victims through custody, or protective court orders. It can provide an opportunity for intervention with perpetrators and victims, and prevent further abuse towards them or other women who may be at risk in the future. Prosecution also plays a vital role in educating the public and changing cultural attitudes, by sending a strong message that this behaviour won’t be tolerated in society.

Prosecutions are often challenging evidentially given the hidden nature of this crime which still overwhelmingly takes place behind closed doors. Reluctance and disengagement by victims with the criminal justice process due to the dynamics and impact of abuse is also a significant issue and prosecutors have to work harder to get the right results, in close collaboration with other organisations to ensure victim support and safety is at the centre of our approach.

We operate strong presumptions in favour of prosecution where there is sufficient evidence – and against discontinuation of prosecutions once we’ve started, even in the face of reluctance by the victim. Victims’ views will always be important, but the public interest requires that all relevant factors are properly considered. This approach recognises the repeated nature of the crime and the state’s obligations – as confirmed by the European Court of Human Rights – to tackle violence against women and protect citizens from future harm. 

Criminal enforcement alone will not eliminate domestic abuse; but without robust, consistent and effective enforcement and prosecution, we will never eradicate this behaviour in society and make victims and children safer.

Scotland’s new domestic abuse law

From April this year, Scotland has had the benefit of a new domestic abuse law which criminalises a course of abusive behaviour between partners or ex-partners (unlike other UK jurisdictions, the Scottish legislation doesn’t extend to other familial relationships). 

Introduced to close a gap in the law in relation to many of the coercive and controlling behaviours which weren’t previously criminal, the new law is significant in a number of ways. For example, it moves away from an incident-based episodic approach and enables patterns of repeat victimisation to be prosecuted as a single course of conduct. It also defines abusive behaviour as including not only physical and sexual violence and threats, but also other coercive and controlling behaviours, including those designed to isolate, control, regulate, restrict freedom, punish, degrade and humiliate.

A further strength of the new law is that it focuses on the perpetrator’s behaviour and likelihood of this causing harm rather than requiring proof of actual impact and harm to the victim;and it recognises the harm caused to children by domestic abuse and introduces an aggravation to the charge where a child is involved. Finally, it enhances victim safety provisions, introducing mandatory consideration of protective non-harassment orders for victims and children on the conviction of the perpetrator.

It’s early days but already we’ve raised numerous prosecutions and are securing convictions. Crucially we’ve been able to prosecute coercive and controlling behaviours which were not previously criminal, making the true pattern of abuse visible and allowing courts to address the full extent of victims’ experiences. This is a significant step forward for Scotland in ongoing collective efforts to transform the justice response to tackling this insidious behaviour and keeping victims and children safe. 

Anne Marie Hicks is the National Procurator Fiscal for Domestic Abuse at the Crown Office & Procurator Fiscal Service, Scotland

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