Law to close loophole on domestic abuse

A NEW law that will close a legal loophole protecting abusive husbands and wives who make their partners' lives a misery is being fast-tracked through the Scottish Parliament.

• Non-violent abuse is presently covered by breach of peace legistlation

Prosecutors have become increasingly frustrated over the past 18 months by the inability of breach of the peace legislation to tackle domestic abuse where no violence is involved and which takes place behind closed doors.

Now a new offence of engaging in threatening or abusive behaviour has been created to ensure prosecutions can be carried out for conduct which would have previously been dealt with under common law of breach of the peace.

The legislation is expected to be passed next week following a series of cases in which prosecutions failed because there were no witnesses to the alleged abuse.

A Scottish Government spokesman said: "Working with law enforcement agencies, the Scottish Government has taken action to address the gap in the law created by recent court judgements through the recently passed Criminal Justice and Licensing Act.

"A new offence of engaging in threatening or abusive behaviour has been created which will help ensure prosecutions can continue for conduct which would have previously been dealt with under common law of breach of the peace.

"Crucially, there is no requirement for our new offence to be committed in public ... This new offence has been fast-tracked and will become law on 6 October. We want to send out the message loud and clear that if you carry out this offence, there will be no escape."

Earlier this month, in the case of David Hatcher v Procurator Fiscal, heard in Hamilton, a conviction was quashed because the only witnesses of the alleged abuse were the couple's two children, aged 12 and 15.

Hatcher, of Kenilworth Avenue, Wishaw, had been married to his wife Lorraine for 23 years. On 7 January, as she got ready for a work night out, he refused to let her go, accusing her of being unfaithful at a pre-Christmas outing. In the initial court hearing, a sheriff found that he shouted at her, calling her a whore and other insults, before pulling the sheets off the bed when she tried to go to sleep.

However, according to Scots Law, breach of the peace requires a public element, or, as the Court of Appeal put it on 7 September, "conduct severe enough to cause alarm to ordinary people and threaten serious disturbance to the community".

This meant Hatcher could only be successfully prosecuted if the alleged crimes were witnessed by someone outside the family, whether they were proven or not.

Paul McBride, one of Scotland's leading QCs, said: "This has been going on for a while. This case merely confirmed what we already knew, that breach of the peace needs a public element to it.

"So it's not up to judges, it's up to the Scottish Parliament, and I believe the Scottish regulation needs to be addressed."

Victims of domestic abuse are already protected by family law - which can lead to exclusion orders being placed on offenders - although experts say the evidence is often "hard to collect".

John Fotheringham, consultant at Fyfe Ireland Solicitors, experts in matrimonial law, said: "There are civil remedies people can take, especially if they can produce medical evidence of psychological damage. That's something the courts are interested in and then the same remedies would apply as to physical abuse."

"But a Crown Office spokeswoman said the new law would give a greater measure of protection. "The decision in the case of David Hatcher v The Procurator Fiscal was decided on the particular facts and circumstances of that case and, in its judgment, the court specifically does not rule out a breach of the peace occurring in a domestic setting," she said.

"Nevertheless this decision, together with an earlier decision in the case of Harris v HMA, has implications for the prosecution of domestic abuse incidents ... Section 38 of the Criminal Justice and Licensing Act 2010 is a new statutory provision which creates an offence of threatening or abusive behaviour.

She added the Crown Office Procurator Fiscal Service was "absolutely committed to tackling domestic abuse, and has actively sought to have this provision brought into force in advance of the other provisions of the Act, in order that the law can continue to provide protection for victims."

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