Tod and Mitchell specialise in all aspects of criminal defence work including domestic crime and regularly appear in criminal courts throughout Scotland dealing with cases in the High Court of Justiciary, the Sheriff Court and the Justice of the Peace Court.
Why use us?
Tod and Mitchell and our team of highly respected and experienced solicitors are well-known for our professional approach, vast knowledge of law and high percentage of case wins. Our head office is based in Paisley giving us the perfect central location for working with clients attending courts in Glasgow, Paisley, Dumbarton, Greenock and many more courts across Scotland.
There is no area of the criminal law more likely to affect an individual in Scotland than that relating to domestic abuse. In 2014-15 there were 59,882 incidents of domestic abuse recorded by the police in Scotland, 54% of such incidents resulted in at least one crime or offence being committed.
At Tod and Mitchell we have dealt with thousands of cases where people have been charged with crimes categorised as domestic abuse. We can provide you with the legal advice you need at what is invariably a difficult and stressful time.
The criminal law and procedure have developed at an unprecedented rate over recent years in relation to domestic abuse cases. A large number of statutory provisions, contained within a whole range of various enactments, have been passed by the Scottish Parliament. Whilst most of this legislation is general in nature and applies with equal force to other types of criminal prosecutions, some provisions have been specifically introduced to address particular issues which have arisen in domestic abuse cases. The principal offences created by the Scottish Parliament to tackle domestic abuse are contained within sections 38 and 39 of the Criminal Justice and Licensing (Sc) Act 2010.
Whilst these offences were specifically created to address issues of domestic abuse they have had far more wide reaching and sometimes unforeseen consequences. A contravention of section 38 involves threatening or abusive behavior and a contravention of section 39 is commonly referred to as ‘stalking’.
Complaints of stalking to the police reached a record high last year, with 1,413 incidents recorded, up from 443 in 2011. In the first six months of this year, 672 stalking allegations were made. Since 2010, when this new offence of stalking was created the police have dealt with more than 5,000 complaints. However, by 2013, the most recent period when the necessary statistics are available, figures showed that of 1,431 people who had been reported to the authorities for alleged stalking since the legislation came into force in 2010, less than a third had been convicted.
Another significant development in dealing with incidents of domestic abuse has come from an agreement between the prosecution authorities and the police on how such cases are investigated, reported and prosecuted. This agreement is known as the Joint Protocol between the Association of Chief Police Officers in Scotland and the Crown Office and Procurator Fiscal Services on domestic abuse which was first published in 2005 and revised in 2008. This document is the definitive statement of policy and intent. To appreciate the very particular, if not unique, way in which these cases are handled by the police and the procurator fiscal’s office it is necessary to have an understanding of the terms of the Protocol. One of the main aims of the Protocol is to ensure that there is a uniform and consistent approach to the investigation, reporting and prosecution of domestic abuse cases. In the Protocol, domestic abuse is defined as ‘any form of physical, sexual, or mental and emotional abuse which might amount to criminal conduct and which takes place within the context of a relationship’. That relationship can be between partners (married, cohabiting, in civil partnerships or otherwise) or ex-partners. The abuse can be committed in the home or elsewhere and it includes same-sex relationships. The Protocol acknowledges that whilst the most prevalent instances of domestic abuse involve male violence towards women, the definition includes female violence towards men, and violence between partners or ex-partners in close, same-sex relationships.
The Police Response
On receiving a call regarding an alleged incident of domestic abuse, the report will be given high priority and the police will attend as a matter of urgency. It is envisaged that officers responding to the call will be appraised of any similar incidents in the past prior to their arrival at locus. The police will require to exhaust all lines of enquiry and this will invariably include questioning the suspect. To this end, the Protocol states that, ‘where appropriate, consideration should be given to the detention and interview of the alleged perpetrator in order to secure further evidence. Where the accused is not traced and is at large, he will be actively pursued until detained for interview or arrested’. How this particular statement of police policy is applied in practice has proved to be rather more troublesome than seems to have been envisaged. It is apparent that some police forces have interpreted the terms of the Protocol more strictly than others and it is clear that the Protocol is being used, by some police forces at least, in an attempt to justify and defend the widespread use of detention in almost all cases of alleged domestic abuse. The Protocol does not state that the alleged perpetrator should be detained for interview in every case, but rather only where appropriate. The Protocol does not have the force of law. It is merely a statement of policy. Since the power of detention necessarily involves the deprivation of the suspect’s liberty, detention should be resorted to only when necessary. The Criminal Procedure (Sc) Act 1995 s.14 allows a police constable to detain a person whom he has reasonable grounds to suspect has committed or is committing an offence punishable by imprisonment. Where no reasonable grounds exist, however, the power of detention cannot be employed. If challenged in court, the police will require to justify their use of detention by reference to the provisions of s.14 rather than by reference to any statements of policy contained within the Protocol. What the Protocol does suggest, however, is that when the suspect is detained, he should be interviewed in order to secure further evidence. Where the complainer is the only witness, unless the police are able to obtain some form of admission from the suspect, there is unlikely to be sufficient evidence to charge the accused.
Following the Supreme Court’s decision in the highly publicised case of Cadder v HMA  UKSC 43, the Scottish Parliament passed emergency legislation which came into force on 30th October 2010. The Criminal Procedure (Legal Assistance, Detention and Appeals) (Sc) Act 2010 extends the period of detention and provides for legal assistance to the accused. When the power of detention was originally introduced by s.2 of the Criminal Justice (Sc) Act 1980 the maximum period a person could be detained without charge was six hours. That period has now been extended to 12 hours and may be extended by a further 12 hours on the authority of a custody officer of the rank of inspector or above who has had no prior involvement with the enquiry. For the first time, a detained person is afforded the right to a private consultation with a solicitor before and during police questioning. This consultation is not restricted to a face to face meeting, but may include a telephone interview. The police can question the detainee in relation to the suspected offence and can exercise the same powers of search as are available following upon arrest. The right of access to a solicitor extends to those who attend the police office voluntarily or are arrested but not charged or who are detained on other grounds. If the suspect is detained he requires to be taken as quickly as reasonably practicable to a police station. He should be informed of his rights upon detention and again on arrival at the police station.
We would strongly advise any person detained by the police to take advantage of these rights. We provide this advice and assistance free of charge as part of the Scottish Legal Aid Sceme. If you are taken to a police station for interview you should request that the police contact Tod & Mitchell and a solicitor will attend the police office and give you the best advice.
The usual practice is for the police to return to the location of the alleged incident and obtain full statements from any witnesses including, where necessary, child witnesses. The officers will take full details of the allegations, assess the degree of risk to the complainer and provide advice on other support agencies which are available. In addition, the dedicated domestic abuse liaison officer will provide follow up contact with the complainer. The officers will thereafter return to the police office and speak with the detained person. Where the police have sufficient evidence, they may simply proceed to arrest and charge the accused without the need to interview him. However, according to the Protocol, when the suspect is detained, he should be interviewed in order to secure further evidence. Where the complainer is the only witness, unless the police are able to obtain some form of admission from the suspect, there is likely to be insufficient evidence to charge him.
Given the particular nature of domestic-type incidents, it is often the case that the complainer is the only witness. Accordingly, the police will want to interview the suspect in order to establish whether an admission is likely to be obtained. Depending on whether any admissions are obtained will determine whether the suspect is arrested and charged or eventually released without charge. Merely admitting presence at the locus at the material time may be sufficient to amount to corroboration depending on the nature of the allegation. Where the admission extends to involvement in some form of argument with the complainer or to a physical altercation, albeit qualified by an assertion that the suspect was acting in self-defence then, it is likely that, in those circumstances, the suspect will be arrested and charged. This is why it is so important to contact us in order that we may attend the police office, assess the evidence against you and give you the appropriate advice. Following the questioning of the suspect, if there is insufficient evidence to justify a charge, the suspect must be released at the expiry of the 12 hours, or as soon as the grounds for detention no longer exist. However, where there is sufficient evidence to charge the suspect, whether or not the complainer makes a complaint, the suspect will be arrested and charged.
An unfortunate practice has developed where, perhaps through fear of criticism, police duty officers authorise the detention of those accused of domestic abuse in some cases where there is little or no independent corroborative evidence. In such cases, the police appear content to detain the accused in custody pending his appearance at court, leaving the responsibility to the procurator fiscal to instruct the accused to be liberated at court. There appears to be a greater number of cases involving domestic incidents which are not proceeded with by the procurator fiscal than any other category of offence. Given the very strict guidelines issued to procurator fiscals regarding how seriously reports of domestic abuse are to be taken, only rarely would the procurator fiscal refrain from prosecuting where there is corroboration of a crime. Therefore, it would be fair to conclude that of the many cases which are not prosecuted, the police have either reported a case where no crime has been committed, or if committed, there is insufficient evidence in law to allow a prosecution to proceed. The consequences of such a policy can be devastating for an accused who could find himself locked in a police cell for up to four days before being liberated on the instructions of the procurator fiscal.
In cases where there are witnesses present they may well be children. However, with the introduction of the suspect’s right to legal advice before and during interview, it may well be that nothing by way of admissions will be obtained and the police will require to look elsewhere for any evidence which may be capable of corroborating the complainer’s account. Where there is no other source of evidence the suspect will require to be released. More prosecutions may be dependent upon the evidence of child witnesses. Prior to Cadder, where children were present during the alleged incident, but there was some form of admission from the accused or other evidence, unless there were compelling reasons for doing so, the procurator fiscal would proceed with the prosecution without requiring the child to attend court and give evidence. Of course, it is always open to the accused to call the child as a witness if he so wishes.
The Protocol envisages that, in the vast majority of cases, the accused will be detained in custody pending his appearance in court. In exceptional circumstances, the accused may be released by the police on an undertaking to appear at court at an early date, usually the next lawful court date. On the rare occasions when the accused is released after signing an undertaking to appear at court, he may be required to agree to further conditions, such as not approaching or contacting the witnesses and not approaching a particular location. If the accused breaches the terms of this undertaking by failing to attend court, or by failing to comply with any additional condition of the undertaking, he is guilty of an offence punishable by up to 12 months’ imprisonment.
Where the accused is not traced at the time, but there is sufficient evidence, the police will report the case to the procurator fiscal within the same time limits as a custody case and, where appropriate, seek a warrant to apprehend the accused. The procurator fiscal will deal with such requests as a matter of urgency.
When the police submit their report to the procurator fiscal’s office it should contain all pertinent information, including full details of any previous incidents of domestic abuse, whether or not these were the subject of a previous report to the procurator fiscal; the address and contact telephone number of the complainer; information about children resident in the household; a note of any injuries sustained; bail conditions imposed on the accused in respect of previous court proceedings; any interdicts or other court orders which are in force; any special risks which have been identified which impact on the complainer and any children; any views expressed by the complainer, including in relation to bail; the results of all enquiries made, whether or not these provided additional evidence; and details of similar previous convictions relating to the accused. The police report is also expected to identify any child or other vulnerable witness and consider how best they may be able to give evidence, as well as alternative forms of identifying the accused. Where children are present during the incident or are ordinarily resident in the household, the police may pass details of the incident to the Children’s Reporter. Where it is necessary to take a statement from a child witness, the police require to have regard to follow certain guidelines on interviewing child witnesses. It is recognised that evidence that has been contaminated and/or witnesses coached, is of particular concern in relation to child witnesses. This is because children have been found to be disproportionately more susceptible to suggestive influences than adults.