‘Lack of clarity’ on police powers under Domestic Abuse Bill, warns Justice Committee

In particular, it is concerned there is a “lack of clarity” on police powers under the Scottish government’s new Domestic Abuse Bill.

While the Justice Committee has backed the “underlying intentions” behind the Bill, it said scrutiny by both legal bodies and the police has signalled outstanding issues with its drafting.

This could mean its powers are not regularly used by law enforcement, or difficult to use in practice.

Tensions with suspected perpetrators’ rights under the European Convention on Human Rights (ECHR) were also highlighted to MSPs, given the substantial restrictions on liberties and curtailment of rights, which can be imposed by powers introduced through the Bill.

These powers include Domestic Abuse Protections Orders (DAPOs) – Sheriff-mandated court orders placing restrictions on suspected perpetrators of domestic abuse – Domestic Abuse Protection Notices (DAPNs) – short-term police-ordered restrictions – and measures to allow social landlords to remove suspected perpetrators of domestic abuse from tenancies to protect victims.

While the committee recognised that these could all prove “useful tools” in helping victims of domestic abuse, they raise other issues, including:

• A lack of clarity around proposed thresholds for evidential proof needed to make a DAPN or DAPO, and the decision-making process by police once a situation has been assessed;
• How DAPNs and DAPOs sit within the existing framework of court-sanctioned family law interventions, such as child contact provisions, and what would take primacy;
• Questions around what would constitute a breach of a DAPN or DAPO, and how breaches should be dealt with;
• Resource implications for police who have issued a DAPN, with the expectation a DAPO would have to be applied for the next sitting court day; and
• That the views of children will be sought in a way that aligns with other recently passed legislation looking at family breakdown and children’s rights.

The committee said it was seeking assurances that the Scottish government will undertake extensive further consultation with police so that these concerns are addressed, and consequential changes made to the Bill as it goes through the next Parliamentary stages.

Women’s and housing organisations have also backed the plans.

Speaking as the ‘Stage 1 Report’ was published, Committee Convener Adam Tomkins MSP, said: “The aim of this Bill, to provide further protection to victims of domestic abuse, is a laudable one, which all members would support.

“However, we have significant concerns about how these proposals would work in practice.

“While on balance we believe that DAPOs and DAPNs would be a useful additional tool for the police to have, it is of fundamental importance that this Bill fully respects the ECHR.

“And to actually help those it seeks to give better protections to, officers on the ground must be able to use the law with confidence.

“Changes to ensure both of these tests are met must be made before MSPs are asked to pass it into law.

“To achieve this, the Scottish government must engage extensively with law enforcement and bring forward amendments to what it initially set out.”

DAPNs are a new power for Police Scotland to impose a very short-term notice ahead of applying to the court for a DAPO where necessary.

DAPOs provide courts with a new power to impose requirements and prohibitions on a suspected perpetrator of domestic abuse. This includes removing them from a home they share with a person at risk and prohibiting them from contacting or otherwise abusing the person at risk while the order is in effect.

The Justice Committee says these proposed powers differ from existing civil measures in that all others are victim-led. These measures remove that burden, and potential costs, from victims.

Both fall under the banner of so-called ‘Emergency Barring Orders’ (EBOs), which were first discussed during the committee’s previous scrutiny of a Scottish government Bill covering domestic abuse in 2017. At that time, it said EBOs needed to be looked at in more detail, as “while members saw some merit in them, the practicalities were not clear”.

The Bill also creates new measures under which a social landlord can apply to the court to end the tenancy of a perpetrator of domestic violence, with a view to transferring the tenancy to the victim. Alternatively, an application can be made to end the perpetrator’s interest in the tenancy where the perpetrator and victim are joint tenants, and enable the victim to remain in the family home.

Levels of domestic abuse recorded by Police Scotland have remained at around 60,000 incidents a year since 2011/12, although there was two per cent rise reported in 2018/19.

However, in the early part of 2020, particularly during the first lockdown period due to the pandemic (April to June 2020), Police Scotland said incidents were nine per cent higher than the equivalent period in 2019.