Abuse in the system

The nature and dynamic of prosecution in Scotland is changing. More reasons are given for decisions; Crown statements are disclosed; and the Prosecution Code and other policy documents are published. Alongside increasing openness and accountability, the tradition of generalist prosecution is being challenged by the development of specialist courts.

A two-year pilot domestic abuse court was set up in Glasgow’s G division – the south side of the city – on 18 October 2004. Established “in recognition of the prevalence and seriousness of domestic abuse”, its principal stated aim was “the reduction of the risk of offending behaviour”.

Robust policy

The Glasgow domestic abuse court sits daily and deals with each reported case of domestic abuse in its area, from first calling to conclusion. Trial dates are within six weeks of a first appearance from custody. Police and prosecution are guided by the Crown Office and Procurator Fiscal Service (COPFS) and Association of Chief Police Officers in Scotland (ACPOS) joint protocol on domestic abuse. This protocol, which applies across Scotland, unapologetically directs a robust prosecution policy in domestic abuse cases involving violence against the victim, with a presumption in favour of prosecution in the sheriff court or High Court and a presumption for the police of arrest and detention in custody for court appearance where there is sufficient evidence.

Case investigation and preparation are crucial. Police officers receive specialist training and are directed to consider a “question and answer” interview with an accused in all cases. Their approach and attitude towards the complainer is also critical. A complainer must feel “listened to”, to encourage voluntary engagement in the criminal justice process.

In court, there are three designated sheriffs, a clerk of court, and one full-time designated procurator fiscal depute, all of whom have training in awareness of domestic abuse. In addition, police refer complainers to ASSIST, a tailor-made advocacy service under the auspices of the Glasgow Community Safety Partnership. The reporting police officer offers a referral immediately after an alleged incident. If accepted, an advocacy worker contacts the complainer by telephone, even before a case has been reported to the fiscal, and provides support throughout.

Continuous engagement

Liaison between the prosecutor and the advocacy worker allows the views of the complainer to be represented at each stage in the court process. By close working between criminal justice partners and voluntary organisations a more cohesive environment is created. It is also important for an accused that the whole court process is predictable, and the measures adopted aim to remove uncertainty. Early liaison between the designated prosecutor and the solicitor for the accused provides the solicitor with detailed case information. The fiscal provides a list of witnesses and his/her contact details at the first calling of the case, and full statements at the intermediate diet. Not only is it in the best interest of individuals to deal with cases as expeditiously as possible; it also better serves the interests of justice.

Further, there is a more holistic approach to sentencing and bail. A great deal of time and energy is invested in ensuring that bail conditions protect the safety of the complainer, without interfering with child contact arrangements. In the event of conviction, engagement with the social work department means that background reports routinely assess the suitability of an accused for a community-based disposal designed to address offending behaviour, such as the Change programme.

Specialism v Generalism

There are differing views on the value of specialist courts. Many sheriffs will defend their role as general practioners and reject the need for specialists. Some defence solicitors have raised concern that a conviction is more likely in the domestic abuse court. There has long been some concern from victim groups about complainers being compelled to give evidence. In addition, the point is often reasonably made that smaller jurisdictions do not have the volume of cases or the personnel to sustain a specialist court.

Specialist courts for some specific crimes are distinct from adoption of a universal specialist approach. In the case of the domestic abuse and youth courts there is a dynamic to both the alleged offender and the alleged offence that demands a consistent and informed approach from the prosecution, the judiciary and other criminal justice. Recognition of that feature through specialisation does not translate into a case for a different court for every kind of crime.

It is also wrong to suggest that a specialist approach lends itself to a presumption of guilt. Cases of domestic abuse have historically been difficult to prosecute. Domestic violence is almost by definition a private crime, committed behind closed doors. Silence is endemic and the ostensible will of the complainer has dictated, to a large extent, whether or not a prosecution is successful or, indeed, can proceed at all. Enhanced evidence gathering, a robust prosecution policy, efficient disclosure procedures, early trial dates, special conditions of bail, a specialist bench and advocacy support for complainers probably all combine to produce the high rates of pleas and convictions. Witness recollection is undoubtedly more accurate after only six weeks. This is summary justice. It is less stressful for witnesses and fairer to the accused. Further, in the event of conviction, the accused can be assured of appropriate social work involvement and informed sentences from specialist sheriffs.

Managing expectations

Re-victimisation, fear and reluctance are cited as apparently compelling reasons to keep the complainer out of the courtroom. There is undeniably a high rate of retraction of statements in domestic abuse cases. Yet, even where there is a sufficiency without the evidence of the complainer, his or her evidence remains “best evidence” and the court’s understanding is undoubtedly poorer without it. In this regard, ASSIST plays a difficult and delicate role in encouraging complainers to attend court and give evidence against their partners. A successful advocacy service will fulfil the dual role of supporting individual complainers and managing their expectations of the criminal justice process, whilst promoting a robust prosecution policy. Undoubtedly this has supported more complainers in attending court and giving evidence. It must be remembered that whilst they are allegedly victims of crime, they are also witnesses with a crucial role in the court process.

Specialist courts are not, of course, sustainable in every judicial district of Scotland. Whatever the formal assessment of the pilot may be, the obvious limitation of scale is one factor which may affect the viability of specialist courts across Scotland. Regardless of that, similar principles can be adopted. Areas of England and Wales, for example, have introduced cluster courts and fast tracking of cases, thus ensuring many of the benefits of specialism, without a separate court.

Until there is broader social recognition of domestic abuse as a crime, it is incumbent on criminal justice agencies to take decisive action against domestic abuse and to prosecute relevant offences. Whilst some may be uneasy about excessive state intervention in family life, statistics on the average number of times a complainer will suffer abuse before contacting the police are staggering. The courtroom can only hear evidence of specific reported incidents and the criminal justice response can only ever provide part of the solution, but it is a crucial part. Unless domestic abuse is properly recognised as criminal, there can be little hope of shifting attitudes and reducing the rate of offending.

The future?

The domestic abuse pilot illustrates that a court where roles and identities are understood can deal efficiently with problematic cases, enhancing accountability, consistency and transparency. The court has publicised the prevalence and seriousness of this private crime in a way that has not proved possible before. It will be for the formal evaluation to measure its success and provide the evidence on which to base decisions as to the future of such courts.

It is too early to know whether the risk of offending behaviour has been reduced. The magnitude of the problem dictates that this will be a slow and faltering process: persuading individuals of the criminality of domestic abuse, one at a time.

    Emma Provan was the first full-time designated procurator fiscal depute in the domestic abuse court. The views expressed in this article are her own and do not represent the views of COPFS or the Scottish Executive.

THE PROJECT AND THE PROBLEM

What is ASSIST?

Advocacy Support Safety Information Services Together

The National Domestic Abuse Helpline

Freephone 0800 027 1234

Domestic abuse – facts  and figures

•     Still a gender issue: 98% of reported cases involve a male perpetrator and female complainer, 1.2% a female perpetrator and 0.2% involve same-sex relationships
•     Seven is the average number of incidents of domestic abuse before a complainer will phone the police or leave
•     The court has dealt with well over 1,000 cases, averaging 58 per month
•     78% of cases result in a guilty plea pre-trial
•     At trial, one third are adjourned, 10% are deserted and 60% are resolved at first trial diet
•     ASSIST has an average 75% referral rate
•     ASSIST calculates that 1,164 children have been affected by the cases in the pilot
•     The Change programme can be a condition of a two year probation order and is a tailor-made programme which aims to challenge male attitudes to women and to violence

The evaluation

Reid Howie, a market research company, has conducted the official evaluation. This includes an evaluation of the advocacy service. ASSIST has commissioned its own internal evaluation, which is being carried out by Amanda Robinson of Cardiff University.

Want to know more?

•     Download the ACPOS/COPFS National Joint Protocol and the Prosecution Code at www.crownoffice.gov.uk
•     Read the Executive’s strategy on domestic abuse at www.scotland.gov.uk
•     Find out more about the Glasgow Violence Against Women Partnership at www.gvawp.org.uk