Following UK Home Secretary Theresa May’s announcement that England and Wales are bringing in a “Clare’s law” that will allow people to check whether their partner has a history of domestic abuse, Alex Salmond has confirmed that Scotland will go down the same route.
The law refers to the horrific story of Clare Wood, the 36-year-old mother from Salford who was raped and murdered by her ex-boyfriend George Appleton in 2009.
This was the culmination of a five-month campaign of abuse that he waged against her for rejecting him after she discovered he had cheated on her. It later emerged that Appleton, who killed himself a few days after murdering Wood, had a long history of abuse and violence towards women.
Salmond’s announcement that this law would be introduced in Scotland has been welcomed by police and victims’ organisations north of the border. But it certainly won’t solve Scotland’s domestic abuse problem – one that it shares with the rest of the UK.
No longer just a domestic
Almost 800,000 domestic violence incidents are reported annually to police in England and Wales – a quarter of recorded crime. Research shows that nearly one in three women experience physical or sexual violence from a current or former partner.
Domestic abuse is also a serious problem in Scotland, with 60,000 domestic incidents reported last year and a domestic abuse incident occurring every nine minutes. Domestic abuse accounts for 15% of all violent crime in Scotland and takes up 20% of police time.
It goes further than just the abuse itself. It can involve stalking, harassment, attempted murder, serious assault, rape, attempted rape or sexual assault. Weapons are often involved. Eleven women were murdered by a partner or ex-partner in Scotland last year.
Police in Scotland report more than three-quarters of these domestic abuse incidents to the crown prosecution authorities but more than half go no further due to a lack of evidence. In this context, there is growing awareness that the Scots law on the issue may no longer be fit for purpose.
The Bill Walker case
The written judgement following the conviction of Scottish MSP and serial domestic abuser Bill Walker in 2013 offered the country’s lawmakers a timely opportunity for reflection.
While Walker received 24 convictions for physical acts and threats of violence, Sheriff Kathrine Mackie acknowledged that much evidence about Walker “controlling, domineering, demeaning and belittling” his three ex-wives did not amount to criminal offences.
This is an age-old problem. Scotland’s national definition of domestic abuse encompasses physical, emotional, psychological and sexual abuse between partners and has been described as one of the most progressive in the world but only the physical aspects currently fall within the scope of criminal law.
Intimate partner terrorism
Research suggests that victims, most of whom are women, usually live with a pattern of abuse that includes two or more of the forms mentioned in the Scottish definition. More nuanced definitions such as intimate partner terrorism, which was most famously used in the Nigella Lawson case, more clearly describe victims’ experiences.
In the absence of a legal definition of domestic abuse in England and Wales, Theresa May announced in 2012 that the definition of domestic abuse there is to be widened to encompass a wide range of coercive or threatening behaviour.
Scottish law still lags behind – criminal law still concentrates on individual violent incidents meaning that courts can’t acknowledge any wider pattern of coercive control in the relationship nor its impact on the victim.
Many domestic abuse cases are prosecuted in summary proceedings, which carry a maximum sentence of 12 months and often lead to non-custodial sentences. Offenders in the latter category can cease using violence but continue to intimidate and threaten their victims without breaching their conditions. Nor does it help that places on court-mandated domestic abuse offender programmes are very limited.
A great deal of dangerous abusive behaviour also occurs below police radar. It often goes unreported, is not prosecuted and does not show up on any criminal record.
In spite of all these difficulties, the Scottish authorities were confident until relatively recently that the law adequately handled domestic abuse. The most recent changes came from the Domestic Abuse Act 2011 on the back of a bill brought by Labour MSP Rhoda Grant.
The act improved access to justice for those subjected to domestic abuse by no longer requiring evidence of a “course of conduct”. Now only one incident of harassing behaviour is required for the civil court to grant a non-harassement order.
It also makes it a criminal offence to breach the orders and makes legal aid universally available – but her original proposals were heavily watered down and it falls significantly short of the English reforms.
The corroboration debate
More recently the Scottish government proposed to abolish corroboration – a unique feature of Scots law that insists on two pieces of evidence to establish any alleged fact and makes it very difficult to convict crimes where it is often one person’s word against another.
But after a stand-off between the Scottish government and various other organisations, the change has been kicked into the long grass for at least a year, pending a review.
In the meantime, Scotland’s solicitor general Lesley Thomson recently called for the creation of a specific offence of domestic abuse. It would shift focus away from individual incidents and put the full pattern of abuse and its impact on the victim before the court.
But as things stand, the new Clare’s law proposal is undermined by the state of Scottish domestic abuse law. Many abusive behaviours will not be visible to anyone checking due to the law’s concentration on physical assault.
Many more will be invisible because the current evidence rules make it so difficult to achieve convictions, not to mention all the other abuses that go unreported. So without a full overhaul of the way that domestic abuse is currently defined and prosecuted in Scots law, Clare’s law will fall a long way short of its potential.