Sheriff principal calls for new approach to domestic abuse cases
New thinking is needed in dealing with cases of domestic abuse in Scotland, according to a sheriff principal in a lecture delivered last night.
Derek Pyle, Sheriff Principal of Grampian, Highland & Islands, called for the introduction of the proposed new specific offence of domestic abuse, to be accompanied by better consideration of when alternatives to taking cases to court might better tackle the issues involved.
The sheriff principal was speaking at an event co-sponsored by University of Edinburgh's Centre for Theology & Public Issues and Centre for Research on Families & Relationships. In the panel and audience session that followed, debate centred in particular on his proposed diversion of cases from court.
Expressing concern at the lack of statistical data on whether present policies – based on "positive use of the criminal law" – have led to any reduction in domestic abuse, Sheriff Principal Pyle highlighted the problem that arises when the police arrive at an incident and it is unclear if one partner is the main culprit, or indeed both may then be abusing each other. The police response is to arrest and detain both parties, even if it results in children being taken into care because no one is immediately available to look after them.
He argued that such an approach put policy above the needs and interests of individual women; it also led to the bringing to court of trivial cases, such as the 50 year old woman, a first offender, who spent a weekend in a police cell because she threw a mobile phone at her husband – who fell onto a sofa.
In order to "continue the fight against domestic abuse", he said, it was necessary first to create a distinct crime of domestic abuse (the scope of such an offence is currently being consulted on by the Scottish Government). The sheriff principal believed this would shift the focus from particular incidents, which might be trivial compared with an ongoing pattern of abusive behaviour. "A distinct offence of domestic abuse should open up for consideration by the police, prosecutors and the courts the underlying behaviour which led up to the final act which caused the complaint and the arrest. In other words, the state through its discrete organs will look for the iceberg rather than just dealing with its tip."
Secondly, he continued, "we should not see the criminal courts as the first port of call". Sheriffs should not have to identify those cases where there was concerted and serious abuse as opposed to those which were little more than the domestic arguments to be expected of any couple. As well as ultimately leading to low level penalties in many cases, it could mean months of delay and anguish for the complainer as well as economic hardship for the family if special bail conditions were in place.
"My argument is that the criminal law has an important, indeed vital, role in tackling domestic abuse, but that does not mean that the criminal courts should be regarded in the same light", he commented. "The courts’ usefulness is in dealing with the most severe cases and, where it can, in imposing equally severe punishment... The fundamental change that is required is in the steps taken in all the other cases short of a court appearance."
Sheriff Principal Pyle said there should be no letup in investigation and evidence collection, but police and prosecutors should consider first of all whether the underlying problems can be addressed. "That is not a soft option. Nor, if properly presented, should it be seen by the complainer as being unsupportive of her predicament." Rather, it "must be supported by a programme of support to address the underlying problems in the relationship – or, as I would argue, the underlying problems of the abuser, rather than excusing him for extraneous problems in the relationship".
He also called for reducing to a few weeks the time taken to bring cases to trial, and a new style of domestic abuse court based on the problem solving model.
Panellists present, who included Marsha Scott of Scottish Women's Aid and Mhairi McGowan of the advocacy service ASSIST, expressed concerns that the problem was still not taken seriously enough by some police and sheriffs. Ms Scott warned that women would not be confident about feeling safe under an expanded diversion programme, and Ms McGowan, who called for greatly expanded advocacy services, described it as "colluding with the abuser". However both welcomed the sheriff principal's recognition of the problem as a gender equality issue.
Speaking from the floor, Anne Marie Hicks, the national prosecutor for domestic abuse cases, said there was a "strong presumption" that cases would be taken to court but no policy of mandatory prosecution: the rate was about 86% of cases reported.