Courts need to prepare for proposed domestic abuse reforms

The Law Society of Scotland has welcomed the Scottish Government’s proposed criminal procedure reforms for the introduction of a new domestic abuse offence and warned that the courts may have to anticipate the need for additional resources.

In its response to the Scottish Governments consultation: “The Creation of a Specific Offence of Domestic Abuse: Proposed Associated Reforms to Criminal Procedure”, the Society states that banning individuals accused of domestic abuse from conducting their own defence case could give rise to practical challenges and that resourcing implications must be considered.

Ian Cruickshank, convener of the Law Society of Scotland’s criminal law committee, said “We fully support measures to improve how the justice system responds to domestic abuse and welcome the government’s proposals, however there are some areas that could present challenges.

“Accused individuals are already prevented from conducting their own defence in cases related to certain sexual offences, serious offences involving child witnesses and offences involving other vulnerable witnesses. We support the proposal to extend this provision to cases of alleged domestic abuse, however there is likely to be a significant increase in the number of cases where it could apply, and where courts then need to appoint a solicitor.

“The eligibility criteria for resourcing and legal aid should also be taken into account. For example in a situation where an accused has no solicitor, even if they have the financial means to pay, then the court may appoint a solicitor to conduct the defence case. The government needs to consider whether those fees would be funded by legal aid without any enquiry into the financial means of the accused.”

The Law Society has also highlighted potential issues around resourcing expert evidence relating to the behaviour of complainers.

Mr Cruickshank added: “In certain sexual offence cases, the introduction of expert evidence relating to the behaviour of a complainer is already permitted and we would recommend evaluating the impact of this existing provision before moving forward.

“Understanding the numbers and types of cases, as well as the types of behaviour that experts have been called to comment on and whether independent experts have also been instructed for defence cases, would help to predict any resourcing implications and ensure it can be applied effectively.”

The Law Society’s full consultation response is available on the website: /for-the-public/law-reform-consultations-and-bills/consultations-2016/criminal-law/