Domestic abuse advocacy and campaign organisations say the courts system is far from perfect
FOLLOWING CALLS to roll out domestic abuse courts across Scotland as part of the new Domestic Abuse Bill, which will create a new offense relating to psychological abuse, CommonSpace spoke to professionals with expertise in domestic abuse and advocacy within the courts to find out more about how the system is working.
Scottish Labour’s justice spokesperson, Clare Baker, proposed an amendment late last year to the Domestic Abuse Bill in the Scottish Parliament, which would allow the Scottish Government to force sheriffs to establish domestic abuse courts across the country, in a bid to end what she described as a “postcode lottery”.
This led to a backlash from Lord Carloway, the head of the Scottish Judiciary, who said such a move would undermine the judiciary’s independence.
But how are the existing domestic abuse courts working and what would be needed for specialist courts to be effectively rolled out? CommonSpace takes a closer look.
What does the system in Scotland look like now?
The first dedicated domestic abuse court was set up in Glasgow in 2005, followed by Edinburgh in 2012, with the aim of streamlining domestic abuse cases, offering support to victims through independent advocacy services, and developing specialist knowledge amongst prosecutors, police liaison officers, and sheriffs.
A similar approach was followed in Livingston in 2012, when a dedicated, independent advocacy service, the Domestic Abuse and Sexual Assault Team (DASAT) and a Domestic Abuse Court implementation working group were set up.
There are also now domestic abuse cluster courts in Ayr, Dunfermline, Falkirk, and the Scottish Borders, which schedule domestic abuse cases to be heard during the same timeframe.
Why are specialist courts needed?
The nature of domestic abuse cases, which can put victims at emotional or physical risk, is such that it was considered necessary to develop ways of ensuring that this risk would be minimised and that these complexities would be taken into account throughout the process, including at the sentencing stage.
Everyone in the domestic abuse sector who spoke to CommonSpace was clear that they would support a roll out, albeit with caveats as to what would be required to enable the success of such an initiative.
Dr Marsha Scott, CEO of Scottish Women’s Aid, said: “I absolutely support [a roll out] because we proved to ourselves in Scotland that specialist courts worked when we set up the court in Glasgow and evaluated it.”
However, Scott suggested, while there is “some great work” happening with the domestic abuse courts at present, the findings about critical features from the pilot evaluated in 2007 have not been maintained and are not consistently met across the seven areas now billed as having domestic abuse courts.
So what are the issues with the current model?
The Crown Office and Procurator Fiscal Service states that there are seven specialist courts in Scotland, however, CommonSpace has been advised that the components considered necessary for a specialist court are not present in each of these.
Cluster courts are not specialist courts
The primary function of the cluster courts is the timetabling of domestic abuse cases, which can have the positive impact of speeding up the process, but remains limited in other ways.
Mhairi McGowan, head of services for Assist, an advocacy and support service for victims of domestic abuse in the West of Scotland, explained: “Cluster courts are not the same as having a dedicated domestic abuse court.
“Domestic abuse courts should follow the person all the way through the process to sentencing, whereas cluster courts are usually about scheduling domestic abuse trials.”
While advocacy workers from Assist in Glasgow, the Edinburgh Domestic Abuse Court Service in Edinburgh or the DASAT in Livingston can attend in the courts to support victims, this is not the case in the other courts.
Joyce Dickson, women’s support worker and independent domestic abuse advocate at South Ayrshire Women’s Aid said that in Ayr, Assist is mostly telephone based and refer women on to them for support, but that Women’s Aid’s role is limited because they are not permitted to speak to the court.
“Witness Support is there but they’re not there to advocate for them,” Dickson added. “They can speak to them and get them a glass of water, and the idea is they’re there to be a friendly face – although they’ve never met this person before.”
Dr Marsha Scott of Scottish Women’s Aid said of the cluster courts: “We shouldn’t fool ourselves that this is a substitute for a specialist court.
“I’m not convinced we have any evidence that [cluster courts] deliver any particular positive outcomes for women and children, other than the obvious expedited trials.”
This disparity between the cluster courts and the dedicated courts, as well as all courts hearing domestic abuse cases across Scotland, Mhairi McGowan said, is what results in a “postcode lottery”.
“A victim in Shetland, Dumfries or Glasgow should have the same service and that’s not happening at the moment. That needs to change,” she said.
Inconsistency among sheriffs
Even when it comes to the dedicated domestic abuse courts, advocacy organisations argue that inconsistency in sheriffs’ understanding of domestic abuse remains a significant problem.
When the dedicated courts were initially set up, there were sheriffs dedicated to domestic abuse, but this has since changed.
Representatives from Scottish Women’s Aid, Assist, South Ayrshire Women’s Aid and Edinburgh Domestic Abuse Courts all independently raised the issue of sheriffs’ specialist training when asked how the domestic abuse courts were working.
Sheriffs make the decisions on sentencing, and these organisations argue that specialist knowledge for sheriffs hearing domestic abuse cases is necessary to ensure their decisions reflect the particular issues involved.
Lack of evaluation on how it’s working
Asked how the outcomes in the specialist courts compare to the cluster courts and to other courts hearing domestic abuse cases, Mhairi McGowan said: “What we don’t have is that kind of analysis – there is a real dearth of information about the outcomes. That would be really useful so we know what’s working.”
Marsha Scott suggested that this was an issue which must be resolved if effective practice is to be rolled out. “We have very little evidence about the outcomes of either domestic abuse courts or specialist courts in the recent past.
“We had an evaluation of the pilot of the domestic abuse court in Glasgow but since then we have not had a robust evaluation, and that model has been seriously adapted.”
In light of this, she said, moves to roll out the domestic abuse courts need to consider: “What is the model we are committing to resource?
“Scotland should be thinking about a set of standards for domestic abuse courts. We need a national conversation about this, and I know that lots of people in the system would be up for that,” she added.
What is needed for effective domestic abuse courts?
The evaluation which was carried out into the pilot of the domestic abuse court in Glasgow identified key components needed for a specialist court.
Marsha Scott explained that three aspects which are essential for a domestic abuse court are a quick turnaround time, an independent advocacy service, and specially trained judges, prosecutors, and sheriffs.
“These are not high ticket items,” Scott said, adding that no dedicated building would be required to achieve this.
“It’s those three elements we need to focus on, rather than thinking we need same demand as Glasgow or Edinburgh to deliver a specialist court,” she said.
“You can sit down in Shetland and ask those three questions, and all of these problems are solvable in Shetland.”
Mhairi McGowan similarly suggested that the presence of these factors would achieve positive results without dedicated courts, per se.
“If you had independent advocacy all over Scotland and had all the sheriffs trained, although you don’t have a specialist court in all areas – because you don’t have the numbers to justify one everywhere – you have all the bits of it in place and you’d begin to see improvement,” McGowan said.
What does the prosecution service say?
“The Crown Office & Procurator Fiscal Service (COPFS) take a rigorous approach to crimes of domestic abuse and we are committed to prosecuting these crimes effectively and appropriately, and to working with the police and our partners to support victims through the criminal justice process.
“We ensure that prosecutors, whether prosecuting cases in the specialist Domestic Abuse Courts which operate in some parts of Scotland or, where no specialist court exists, prosecuting domestic abuse cases in the mainstream courts, have a sound understanding of domestic abuse and are properly equipped to present these cases in court in a consistent manner through the provision of specialist domestic abuse training and extensive guidance on the issue.
“In 2013 COPFS appointed the first National Procurator Fiscal for Domestic Abuse, Anne Marie Hicks, to oversee and enhance our response to tackling domestic abuse. In 2017 COPFS and Police Scotland relaunched our Joint Protocol on Domestic Abuse, after in-depth stakeholder consultation.
“The Protocol commits both our organisations to a consistent and robust approach to domestic abuse and recognises the significant and enduring impact which domestic abuse can have on victims and children.”
What does the judiciary say?
“Sentencing is a matter for the court in each case, taking into account all of the particular facts and circumstances. Sheriffs across Scotland are well equipped to deal with domestic abuse cases. The Judicial Institute delivers courses to sheriffs specifically on the issue of domestic abuse as part of their mandatory induction training.
“It works with a wide range of domestic abuse experts from other jurisdictions, academia and voluntary support organisations to ensure that judicial education reflects the emerging understanding of domestic abuse and international best practice.
“The Judicial Institute has provided intensive domestic abuse education to all sheriffs through a range of dedicated courses, which have included contributions from Scottish Women’s Aid, while ensuring that specific domestic abuse issues are incorporated into other training courses focussing on vulnerable witnesses, courtroom technology and sentencing.”
Picture courtesy of Laura Dodsworth
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