Chris Marshall: Fears that domestic abuse law will go too far

Anne Marie Hicks, national procurator fiscal for domestic abuse, says that prosecutors are aware of a gap which new legislation would help close.
Anne Marie Hicks, national procurator fiscal for domestic abuse, says that prosecutors are aware of a gap which new legislation would help close.
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Currently making its way through the Scottish Parliament, the Domestic Abuse (Scotland) Bill will for the first time create a specific offence for those who cause physical or psychological harm to their partners.

The legislation was first mooted by then Solicitor General Lesley Thomson following the introduction of a disclosure scheme allowing women to make requests for the criminal records of potentially abusive partners.

It’s fair to say domestic abuse is receiving a greater focus than ever before from police and prosecutors, which is surely to be welcomed.

In 2016-17, police attended more than 58,000 incidents of domestic abuse, with around half resulting in one or more offences being recorded.

There are fears, however, the new legislation could go a step too far, potentially criminalising those in otherwise healthy relationships.

The concerns stem from how the bill has been drafted, with a suggestion the definitions are too broad and could catch a range of behaviours which would not otherwise be considered abusive.

The Glasgow Bar Association has said the new offence must be balanced against the “very real risk of over-criminalisation”, with non-violent behaviour committed on just two occasions enough to mount a prosecution.

And while broadly supportive of the bill’s aims, Andrew Tickell, a law lecturer at Glasgow Caledonian University, has expressed “serious concerns” that the legislation will “criminalise commonplace friction in family relationships”.

In a submission the Holyrood’s justice committee, he said: “The regulation of family and romantic life is fraught with peril for the lawmaker. The risks of over-criminalisation are considerable here.

“Entering into any relationship inevitably restricts the ‘freedom of action’ of both parties. Even broadly healthy relationships are occasionally characterised by hurtful conduct, jealous behaviour, and distressing episodes.”

The Law Society of Scotland has called into question the need for the bill, arguing the offences are covered by existing legislation.

And it’s not just lawyers who have concerns.

The Scottish Police Federation, whose members will be called upon to apply the new legislation, last week warned that officers could become “pawns” in routine family disagreements. Calum Steele, the SPF general secretary, also expressed fears his members would frequently find themselves the “reasonable person”, as described in the legislation, who is required to assess whether a person’s behaviour constitutes abuse.

Yesterday, MSPs heard a defence of the legislation from Police Scotland and the Crown Office. Anne Marie Hicks, national procurator fiscal for domestic abuse, said that despite currently having some tools at their disposal, prosecutors were aware of a “gap” which the new legislation would help close.

She spoke of a range of behaviour considered abusive which police and prosecutors are unable to take action on currently.

Detective Chief Superintendent Lesley Boal said Police Scotland’s national domestic abuse taskforce had investigated 1,893 high tariff offenders since 2013 and most of the cases involved so-called “coercive control”, one of the areas the bill hopes to tackle.

While no-one is disputing the need to tackle domestic abuse, the debate over the new legislation is likely to continue.