The Team

New Domestic Abuse Legislation for Scotland comes into force on 1st April 2019
30/01/2019
New Domestic Abuse Legislation for Scotland comes into force on 1st April 2019

This new piece of legislation deals with a wide range of abusive behaviour experienced by spouses, partners, co-habiting couples, couples in intimate relationships who do not live together and ex-partners.
 

What types of abuse does the Act cover?
 

The Act, which was passed by the Scottish Parliament last year, recognises that abuse can be psychological or controlling, areas which could not previously be addressed.
 

Section 1 of the Act sets out the very basic definition of what constitutes abusive behaviour by stating that:
 

When a person behaves in such a way that is abusive towards his or her partner or ex-partner and
 

(a) That a reasonable person would consider the behaviour to cause the partner or ex-partner to suffer physical or psychological harm, and
(b)That the behaviour was intended to cause the partner or ex-partner physical or psychological harm or the behaviour is so reckless as to cause the partner or ex-partner physical or psychological harm.


This wide-ranging definition not only covers physical abuse (which is already dealt with at common law) but other behaviours such as controlling or coercive behaviours which can’t be properly dealt with under the existing law.
 

What constitutes abusive behaviour?
 

The Act defines the types of behaviour that constitute abusive behaviour. The behaviours described include:
 

1. Behaviour directed towards a partner or ex-partner which is violent (physical as well as sexual), threatening or intimidating

2. Behaviour directed towards a partner or ex-partner, a child of a partner or ex-partner or another person that:

    Has its purpose, or which a reasonable person would consider has its purpose, which is likely to have one of the following effects:

          (i)   Making the partner or ex-partner dependent on or subordinate to the person directing the abuse;
          (ii)  Isolating the partner or ex-partner from friends and relatives and other sources of support;
          (iii) Controls, regulates or monitors the partner or ex-partners day to day activities;
          (iv) Depriving or restricting the partner or ex-partner’s freedom of action;
          (v)  Frightening, humiliating, degrading or punishing the partner or ex-partner.
 

These are sweeping and wide-ranging definitions and could include controlling access to money, preventing access to a phone or from leaving the house, controlling the partner or ex-partner’s movements, playing mind-games or abusive name calling.
 

What challenges is the legislation likely to face?
 

The main challenge will be to collect the required evidence to secure a conviction. Remember, these are criminal charges and the behaviour complained about must be proven beyond reasonable doubt. Judges and Sheriffs in Scotland are to be given special training before the commencement of the Act on 1st April 2019.
 

What are the consequences for the perpetrator, if convicted?
 

If convicted by a Summary Sheriff (a Sheriff sitting on his or her own), a maximum prison sentence of 12 months or a fine (being a maximum of £10,000), or both (although how this will play out with the Scottish Government's proposal to dispense with custodial sentences of 12 months or less).
 

If convicted by Sheriff and Jury or at the High Court, a maximum prison sentence of 14 years or a fine, or both.