Sentencing domestic abuse in Scotland

12 July 2022

The introduction of the Domestic Abuse (Scotland) Act 2018 has been met with international approval. The Act was the result of years of campaigning but ended up being introduced shortly before the world experienced the Covid-19 pandemic - a time when there was an epidemic of violence against women[1]. As such, the implementation of the Act is both in its infancy and has developed during a global crisis.

Our review sought to understand the development of domestic abuse sentencing in Scotland following the Act’s introduction, in a landscape where other legal remedies and responses to domestic abuse already existed.

What do we know about the sentencing of domestic abuse in Scotland?

Recent figures show that the penalty used most for those convicted under the 2018 Act is a community payback order (CPO). Similarly, those convicted of an offence which contains a domestic abuse aggravation most commonly receive a community sentence. Community-based sentences are often seen as more lenient, however, it should be noted that these are varied disposals that can entail challenging requirements, and are intended to both punish and rehabilitate the offender. While further data on the types of requirements attached to CPOs in this context are limited, it is known that this type of sentence may involve participation in an offender programme (such as that provided through the Caledonian System). It may also be accompanied by the imposition of a non-harassment order on the offender, breach of which is a criminal offence in itself. The increased use of non-harassment orders and ‘hybrid’ criminal/civil law responses to domestic abuse (often in relation to child custody matters) is a UK-wide trend and can be an effective way of responding to both abuse that takes place following a separation, and behaviour which may in and of itself not amount to criminal conduct, but is nevertheless part of a strategy of control and intimidation.

As we might expect, a review of appeals against sentence reflects the changing attitude by the Scottish criminal justice system towards domestic abuse in terms of perception of seriousness; and, at their most serious, some cases resulted in the imposition of an order for lifelong restriction (OLR) on the offender.

How does sentencing in Scotland compare with the rest of the UK?

The overarching principles for the sentencing of domestic abuse in England and Wales are contained in the definitive guideline of the Sentencing Council for England and Wales, effective from 24 May 2018. Importantly, the guideline positions domestic abuse offences as being more serious than comparable non-domestic abuse offences. No equivalent guideline currently exists in Scotland.

Those convicted in England and Wales of coercive or controlling behaviour under the Serious Crime Act 2015 are most commonly sentenced to imprisonment (64%), with suspended sentences and community sentences being used in about one-third of cases. However, despite the links between legal responses to domestic abuse, there are distinct differences between the sentencing regimes in Scotland and the rest of the UK, and we should therefore be cautious of making direct comparisons between UK jurisdictions using sentencing data alone.

What about the experiences of complainers?

Evidence on the experience of complainers in domestic abuse cases in Scotland indicates that the process of contacting the police, making a statement, engaging in the civil and criminal justice systems, and dealing with the aftermath of the abuse and the legal process, can generate a high level of fear, anxiety and apprehension in complainers. These emotions are heightened by a number of factors including but not limited to:

• a lack of awareness amongst complainers about the support available
• past, present and future threats to the safety of complainers and their children
• the role of family honour and the pressure to conform to family norms and coercive control rather than engage with the legal system
• ongoing abusive behaviour by the accused during the process
• the need for complainers to disclose highly private details about themselves and their family
• the nature, extent, duration and range of abuse suffered
• the lack of co-ordinated and well-resourced inter-agency support for complainers and their children throughout the process, including in the aftermath of sentencing
• the financial effects of separation
• a lack of control and the role of plea negotiation

Whilst the use of specialised courts has been largely welcomed by complainers, specific sentencing data from these courts are not available, which means that comparisons cannot yet be drawn between sentencing by specialised and non-specialised courts.

Our full report concludes with a number of recommendations:

• Sentencing guidance or guidelines on the operation of section 1 of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016
• Research and data on the use of specialised domestic abuse courts
• Public perceptions research in this area

Dr Rachel McPherson (University of Glasgow, pictured), Dr Jay Gormley (University of Glasgow) and Dr Rhonda Wheate (University of Strathclyde).

Read the full report.

[1] Further discussion of how the pandemic has interacted with domestic abuse in an international context can be found at https://www.unwomen.org/en/news/in-focus/in-focus-gender-equality-in-covid-19-response/violence-against-women-during-covid-19#facts and discussion of the domestic context can be found at https://www.justiceinspectorates.gov.uk/hmicfrs/publication-html/interim-report-inspection-into-how-effectively-the-police-engage-with-women-and-girls/