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An Evaluation of The Protection From Abuse (Scotland) Act 2001

CHAPTER SIX: EXPERIENCE OF THOSE USING AND OPERATIONALISING THE PFA ACT

INTRODUCTION

6.1 In this chapter we present findings from 2 data sets: postal questionnaires with victims of domestic abuse who may be seeking legal protection and interviews with a range of professionals working with the relevant legal provisions, both of which offer insights into the following issues, pertinent to the evaluation:

• experiences of pre-2001 Act legislation (common law interdicts, matrimonial homes interdicts, protection from harassment orders)
• knowledge, understanding and experience of the new legislation
• views on a range of on-going issues, specifically interim orders, powers of arrest, legal aid and the interaction of civil and criminal responses to domestic violence

SECTION A: DATA FROM WOMEN'S QUESTIONNAIRES

PROFILE OF THE RESPONDENTS

6.2 A key element of our proposal was to ascertain the views of women on their experiences of using the new legislation particularly the extent to which they think the law has protected them. In order to do this, postal questionnaires were distributed to Women's Aid refuges and the Women's Support Project in Glasgow. Thirty-two women completed the postal questionnaires. Our specific purpose in contacting women was to find out what they knew about the new Act, whether or not they had ever used it and if so what their experiences of so doing were. We also wanted to learn something about their general experiences of seeking protection. All of the respondents had experienced violence and abuse of varying frequency and intensity. At the time of completing the questionnaires, none of the women were living with their abuser. Table 6.1 below provides a profile of the 32 respondents.

Table 6.1 Profile of women respondents completing postal questionnaires

6.3 Table 6.1 indicates a fairly even spread of ages across the respondents with one-third below the age of 30, one-third between 30 and 40 years and almost the same over 40 years of age. There were 6 Asian women, ³¹ the remaining 26 being White. Forty-seven percent of the relationships between the respondents and their abusers had been marital: in 38% the couple had been cohabiting. There was one dating relationship and one relationship involved a father and his biological daughter. There was also one abusive relationship between a woman and her stepfather's brother. Interestingly just under half of the relationships (47%) had been of more than 10 years duration. Biological children of the relationships were present in 78% of cases with only one respondent reporting having any 'other' children with the perpetrator. All but one of the respondents had left the abuser at least once with 65%+ leaving two or more times.

6.4 All of the respondents had experienced violence and abuse of varying degrees of frequency and intensity. Table 6.2 below reveals the general level of violence and abuse experienced by respondents.

Table 6.2 Profile of violence and abuse experienced by respondents

6.5 As can be seen from Table 6.2, 66% of the respondents experienced violence on at least a weekly basis and 5 of these were assaulted on a daily basis. The violence included a range of behaviours including: pushing and pulling, slapping, punching and kicking and the use of weapons. A range of other coercive and controlling behaviours was experienced by all of the respondents, 72% experiencing this on a daily basis. Such abuse was comprised of a variety of behaviour including: verbal abuse, depriving of money, threats to either the woman or her children or both, checking up and monitoring movement. All of these coercive and intimidating behaviours were recorded in the civil court records and discussed in Chapter 3.

Knowledge and Experience of the Act

6.6 The PFA Act 2001 came into force on 6 February 2002, precisely in order to provide greater legal assistance to unmarried people (usually women) experiencing domestic violence out-with marital and established cohabiting relationships. Of the women in the sample, there were 8 who had been abused after the February date. The remaining 22 had been last abused before the Act became law.

6.7 Of the 8 women, 4 had contacted the police and 3 had contacted a solicitor. (Of the latter, 2 are included in the group who contacted the police). Two women reported their experiences as the following:

(20): "He (abuser) tracked me down and physically assaulted me'…'the solicitor could not get me a power of arrest on [the] interdict because I weren't married to him. Police told him to move on."

(28): "They (police) saw my face all busted and my nose and said there was no witnesses."

As the above quotations indicate, the 2 women had little success in using the powers of the new Act.

6.8 Of the 3 women who sought civil protection orders, one reported securing a PFA interdict, another an NHO, whilst the other was told that no legal help was possible because she and the abuser were not married. Thus (albeit small number of) women in this study reported having less than helpful experiences in seeking legal protection orders under the PFA Act.

6.9 Of the 32 women, only 4 (13%) reported that they knew of the new legislation. We could hypothesise that this group of women, given their experiences, may have been more likely than women who had not experienced violence and abuse from a male partner, to identify for example, media coverage of the new legislation. That 87% of them had never heard of the Act is noteworthy and indicates that more needs to be done in raising awareness of the Act itself, its intended user group and its powers.Help-seeking

6.10 The respondents reported seeking help from a variety of sources in order to try and remedy their situation. Many informal sources of help had been used: 57% had sought help from family and friends. The women in this sample had also used Women's Aid (90%) and/or the Women's Support Project (26%). ³² However such agencies have limited, though much valued, resources to offer and it was to the legal agencies such as the police and solicitors than many women turned for protection. Table 6.2 below highlights a variety of aspects of both help- seeking and help-giving behaviours.

Table 6.3 Profile of (legal) responses to violence and abuse

6.11 In relation to help seeking behaviour of respondents, Table 6.3 shows that 66% of women had contacted the police for help at least once and that 81% had sought help from a solicitor with regard to their legal situation. A few (10%) had used a Law Centre and a couple had made direct contact with the Procurator Fiscals office and the Court itself.

6.12 Over a third of the women had never contacted the police (34%). A further 22% had only done so on 1-2 occasions. In previous chapters we cited qualitative data from women highlighting why women might continue to be reluctant to involve the police. Some additional data is presented below:

(20): "No, I told no one until the day I left him."

(2): "No, the police weren't helpful. They called the incident a 'domestic.'"

(22): "Sometimes they (police) talked him into going but sometimes they removed me if it was a joint tenancy."

(23): "(Re) police- felt as if I was a burden, they weren't interested."

(26): "They (police) would charge him if they could."

(11): "The police charged him. Told him to leave me alone."

(13): "I was told (by police) I should be able to handle him by myself."

(34): "(The police) wrote reports, put me into computer, as soon as I phone, they sent out a unit."

6.13 The above quotations illustrate not only women's reluctance to disclose the abuse to anybody but also some of the negative and positive experiences women had of the police.

6.14 Over 80% of women had sought help from a solicitor and Table 6.3 indicates that as a consequence of legal assistance, many women had obtained civil protection orders. Just under half of the respondents (48%) had obtained interdicts and over a quarter (26%) had secured divorces.

6.15 As Table 6.3 indicates, women's experiences of using the legal system in an attempt to stop or 'do something' about the violence and abuse varied.

6.16 Police:

• Only 5 (17%) women indicated that after an abusive incident they would usually contact the police.

6.17 Court Orders:

• 9 (28%) women had never applied for any orders. And of the 23 who did, 9 (39%) found it 'difficult' to do so.

6.18 Of the 23 women who applied for orders, 5 did not apply for legal aid. Of the 18 who did seek legal aid: 12 (67%) found it 'easy' and the remaining 6 (33%) found it 'difficult' in that they struggled to pay the financial contribution the Legal Aid Board had required them to pay.

6.19 Thus many women in this small sample continued to find it difficult to secure protection. This is further evidenced by their answers to the following statements:

Table 6.4 Women's' views on legal protection

6.20 What the above statement indicates is that whilst over half of the women in this sample (56%) agreed that the police are taking domestic violence more seriously, only 36% felt the same was true of the courts. Over 60% of the women expressed the view that it continues to be difficult to secure legal protection from abuse in the form of an interdict whilst just over a third of women (36%) agreed that interdicts were effective. A massive 94% of women agreed that more legal assistance is needed for victims of domestic abuse.

SECTION B: DATA FROM INTERVIEWS WITH PROFESSIONALS OPERATIONALISING THE ACT

PROFILE OF THE RESPONDENTS

6.21 In order to augment data gathered from court records and gain an insight into the operation of the legislation, we conducted interviews with key personnel involved in using the existing provisions and those introduced by the 2001 Act. Respondents included 4 sheriffs, 4 police representatives (including uniformed officers and domestic liaison officers) and six solicitors, who were engaged in a range of practice settings.

THE LEGAL CONTEXT OF THE NEW LEGISLATION

6.22 When discussing the developing legal framework, we asked respondents to reflect on their experiences of legal measures which existed prior to, and remain alongside, the 2001 Act; namely matrimonial interdicts, common law interdicts and NHOs.

Matrimonial Interdicts

(Police 1): "The majority of women you deal with aren't married."

(Solicitor 5): "A lot of abuse happens from ex-partners."

6.23 It was clear in interviews with professionals that a large section of the population were excluded from accessing effective measures due to the narrow focus of the MH Act.

6.24 For those who qualified for a matrimonial interdict (through marriage and cohabitation) the chief benefit was access to a power of arrest:

(Solicitor 3): "One of the benefits is that where the police are doing their job it (the interdict) should [be implemented] a lot more quickly."

(Solicitor 5): "as soon as the police can lift, or they're obliged to lift the guy, then there's a chance that there is going to be protection."

6.25 Interviewees discussed the process of pursuing breached matrimonial interdicts, which is the only legal remedy when the police had exercised their powers of arrest but the fiscal has decided not to take criminal proceedings:

(Sheriff 3): "I have never known a solicitor appear saying that he was going to take proceedings for breach."

(Solicitor 1): "It certainly didn't feel good if that whole procedure was triggered…it just resulted in everybody being more…disempowered by it, because it was perceived as not wanting to follow something through."

6.26 A number of solicitors explained that this was nowhere near enough time to contact clients, acquire legal aid and decide to pursue an action. In this context and given the context of domestic violence it was not surprising that many decided not to proceed. The problem as one solicitor commented was that:

(Solicitor 4): "It was presumed that the client didn't care."

Common law interdicts

6.27 A significant section of the population, previously excluded from matrimonial interdicts, were for a number of years only able to apply for common law interdicts, which could not be supported by a power of arrest and required the individual to pursue any breach of the order through the civil courts. Interdicts without a power of arrest were widely disparaged by all of the professionals we spoke to:

(Solicitor 4): "They are only a bit of paper and [the abuser] is often going to ignore this piece of paper…you've really got to look beyond that and see what else you can do …to try to protect the wife, inform and contact other agencies, contact the police."

(Police 2): "I think that [the reluctance to seek interdicts] seems to come from…when they only had common law interdicts ...it was commonly known that they weren't really worth the paper they were written on."

(Solicitor 1): "An interdict without a power of arrest was really a very puny thing."

6.28 Common law interdicts were considered to be weak as they lacked powers of arrest and, as the latter quote reveals, this perceived ineffectiveness might even contribute to a reluctance to use legal measures.

6.29 Many solicitors talked of just how difficult it was for pursuers to gain a satisfactory outcome with interdicts, which were not accompanied by a power of arrest. The only way a victim can enforce such an interdict is to pursue a civil action for breach. It became clear in interviews that breach of common law interdicts were rarely pursued and many of these difficulties extend to individual actions for breach of matrimonial interdicts.

PROBLEMS IN PURSUING BREACHED CIVIL ORDERS

(Sheriff 1): "[Breach of civil orders are] very cumbersome, very cumbersome. That's one of the problems and I think everyone that is involved in breach proceedings is a little allergic to them, because they are cumbersome."

(Solicitor 3): "It's like setting up a brand new case, even although it's a consequence of an existing order."

(Solicitor 3): "[It] takes months, the momentum goes out, [parties] lose faith and the passage of time diminishes the impact it makes on the judge…breaches were not taken seriously and would treat as a 'slap on wrist.'"

6.30 It was clear from all of those we interviewed that breach of interdict actions were something of an anathema. The procedure was cumbersome and caused delays which took the momentum out of the incident, impacting on judges perceptions of seriousness. An added difficulty in pursuing breached civil orders is that they do not qualify for urgent legal aid. Time delays in obtaining legal aid and pursuing actions often mean that remedies come too late for many pursuers:

(Solicitor 4): "By the time it came to court, the breach had taken place so long ago there was no real point raising the action."

6.31 Interviews also revealed uneasiness on the part of the judiciary in relation to the sanctions available for breach of civil orders, which are limited to a fine or imprisonment:

(Sheriff 3): "If you fine him he's not going to pay that money out of the drinking money… so it's the wife and children that are going to suffer anyway."

(Sheriff 4): "In the vast majority of cases, it'll be a damn good ticking off… your role is to make sure he realises how serious the order is, the second time [it will] be jail."

(Sheriff 1): "Punishment in a civil context is very difficult, very difficult. I think most of us would be reluctant to use civil imprisonment…it's such a rare animal."

6.32 Not only were fines not thought to be appropriate, it was also clear that imprisoning a person for breaching a civil order was something judges felt extremely uncomfortable with - which may also explain the perceived reluctance to sanction.

6.33 As a consequence of these inhibitors the vast majority of actions for breach were simply not pursued. ³³ Many discussed the problem of placing the onus on the victim of abuse to pursue a subsequent action for breach but drew different conclusions from this. Some blamed victims for not pursuing orders:

(Police 2): "Enforcing things [is difficult] as they have to live with it… people do come back together …I have been involved in a number of cases where we have kept people in custody, charged them with assaults, or whatever…when they have gone to court, the partner has been there to see them in court… which is frustrating for us … it just makes a mockery… I have experience of this happening, and of course a lot of people don't take your warning and advice and make the break."

6.34 This quote reveals a lack knowledge and understanding of the dynamics and material realities of domestic abuse as discussed in Chapter 3. It is also interesting given that many professionals have little faith in such proceedings; for example one solicitor talked about actively discouraging clients from pursuing such an action:

(Solicitor 4): "The difficulty is the nature of the breach...you do get clients who come back with relatively minor alleged breaches and again you have to put them off. First of all, I think that there are going to be problems with legal aid and secondly, even if you do get past that hurdle… the sheriff's probably going to do nothing about that- other than a warning."

6.35 Other professionals had much more empathy with the victim who they recognised took the burden of pursuing cases through an arduous procedure. Breach procedures were described by one solicitor as:

(Solicitor 1): "Jumping through hoops, [which] reinforces status quo."

Non-harassment Orders

(Sheriff 1): "A non-harassment order has more bite at the end of the day, because the sanctions for breach of a non-harassment order are greater than the sanctions for breach of …interdict."

(Solicitor 4): "The problem is that before you can get up to that level, you've already had a number of interdicts."

(Solicitor 2): "The difficulty with non-harassment orders is that the police often don't grasp that they are the person who in a sense has to enforce this …and the police would just say to the client, 'oh you don't have a power of arrest and we can't do anything' and the number of times that would happen is unbelievable…I quite liked non-harassment orders when they came into force…and I realised that the difficulty was that the police weren't acting…and then I thought what's the point...the clients were saying, well …'you are getting me these non-harassment orders and I'm having to pay out all this money to the legal aid board and the police aren't doing anything.'"

6.36 Non-harassment orders were not greatly utilised by one-third of the solicitors we spoke to who felt that the orders were difficult to obtain due to the need to build up a pattern of behaviour - which as one quote suggests took time, during which an interdict could be in place. They were favoured by others as they were said to have a wider locus than matrimonial interdicts and could cover for example a place of work or a child's school. Importantly, they had the benefit of creating 'a criminal parallel' in that the onus was on fiscals' to prosecute breach as a crime, ³⁴ in contrast to common law and matrimonial interdicts, where the onus is on victims to pursue cases. They were also seen to be valuable in protecting those who could not access a power of arrest via a matrimonial interdict. For these reasons, those, especially in the busier courts, talked about a flurry activity when the PH Act introduced NHOs, but that that it had died away due to problems encountered by police failing to enforce orders and as procedure evolved and more stringent evidence was required:

(Solicitor 2): "[One] court were granting non-harassment orders without affidavits or corroboration then cases were starting to filter through from the busier courts where affidavits for more serious orders from complainer and witnesses were required; [it was becoming] …almost a mini-proof."

This, and the problems encountered in relation to reliance on with police action, has led some to move away from NHOs.

THE PFA ACT

Knowledge and Experience of the Act

(Solicitor 5): "The Protection From Abuse Act - that's the first thing I look at…it's used almost every other week."

(Solicitor 6): [The PFA] would be my preferred option now...because it is a bit more straightforward.

(Police 1): "Don't really think that there is a lot of awareness about [the new Act] in the police at the moment, because it's quite new."

6.37 Two-thirds of the professionals we interviewed had used the Act. Unsurprisingly those in busier court areas had already some experience of it and those in less busy courts had little if any. There were a number of experienced solicitors who already saw the legislation as invaluable.

6.38 There were statements that revealed a lack of understanding of the aims of the legislation and its powers for example:

(Solicitor 4): "It actively discourages negotiation."

(Police 1): "The law hasn't changed… we're not given any extra powers to deal with it…The Protection From Abuse Act doesn't really affect the police…we're not going to change our working practices because of it, the only thing is …we will probably arrest more people …it wouldn't make a jot of difference [to] the actual procedure."

(Police 4): "[We have the] same powers as we had before under the Mat Homes Act."

6.39 The first quote is particularly worrying given that the aim of the act is to protect victims - not to encourage conciliation (we will discuss this theme further below). The later quotes suggest a need for training on the implications of the new Act. When asked how they were informed of the new legislation a variety of responses emerged:

(Police 1): "The problem was for some reason I never got a copy of that memo and it was a social worker that told me and I hunted down a copy myself."

(Police 3): "We may well get a memo about - oh the Protection From Abuse Act is in existence and these are your powers and it gets put in a file and gets put away, until you're actually physically dealing with something you don't really learn about it."

(Police 2): "I don't recall being advised of this new legislation or that I better read up on it."

6.40 A number of legal professionals mentioned circulars from judicial studies and copies being passed around colleagues, 2 sheriffs received notification from the Scottish Executive and one from the newspapers.

6.41 There were mixed views on the need for training:

(Sheriff 1): "It's not involving any new cerebral thinking."

(Police 2): "[We need to be] fully aware of new legislation … and what's being construed as abuse."

(Police 1): "Solicitors seem to be unaware of it…and I think women in general …are quite ignorant about it…If I wasn't in the police, I wouldn't have a clue about interdicts."

6.42 The later statement would seem to be confirmed by the women in our study (13% had heard of the PFA Act), who are more likely than the general public to have an awareness of legal measures of protection due to their experience of abuse. When it comes to professionals varying degrees of knowledge and confidence of the new legislation are apparent. The need for training was identified by a small section of the sample - predominantly by those in the police force. Given the importance of discretion in granting and exercising powers of arrest, as will be seen below, the issue of training is perhaps one that should not be overlooked.

Wider access to interdicts with powers of arrest

(Police 2): "It's more modern legislation."

(Solicitor 2): "We can say to unmarried people, you are able to get powers of arrest now…it's psychological, they feel they have got a greater degree of protection."

(Police 1): "We don't have the marriage rates we once had…it's certainly more open to the wider population."

6.43 All of the professionals recognised that the new Act covered a wider scope of applicants. It was considered to be 'more modern legislation', yet this modernism was defined in a number of ways. For example it was described by one police officer as recognising the fact that marriage rates have declined. Yet as others recognised, the inclusion of other individuals was not only to compensate for falling marriage rates but an acknowledgement of the fact that a large number of people experience domestic abuse out-with the context of marriage. This modernism may be more usefully seen as part of a more general trend in family law, which is moving away from attaching legal rights and remedies according to status or, perhaps more accurately, a hierarchy of family forms in which marriage and directly analogous relationships are privileged (Smart, 1984).

6.44 The previous statutory regime also excluded those in homosexual, familial and proximate relationships from accessing this form of protection. Many respondents were less clear on the details of this extension, a few mentioned neighbours and parents and many needed prompting that protection now extends to same-sex relationships. When asked about the use of the legislation by victims of abuse in the context of homosexual relationships, many professionals perceived societal barriers as preventing access to legal remedies:

(Police 4): "[It would be] embarrassing for them to come forward."

(Sheriff 3): "You know they want to keep it a secret anyway."

6.45 Many respondents recognised that homosexual incidents did occur but felt they were not reported to the police. In the time frame during which we examined court files, no cases involving domestic violence in a homosexual relationship were recorded. It is clear that such abuse takes place (Morrison and Mackay 2000; Gadd et al 2002) and that stigma and discrimination, which the law itself has contributed to, create barriers to accessing legal protection. A more in-depth study is required on this subject.

6.46 The majority of respondents (four-fifths) saw protection extending to a population of victims of abuse who were overwhelmingly female who could previously not access an interdict order with a power arrest.

THE PFA ACT IN OPERATION

Obtaining and Exercising Powers of Arrest

Negotiating Protective Orders

6.47 Interim orders are often the first step in the process of seeking legal protection. Solicitors we interviewed all saw interim orders as necessary in gaining immediate protection but had different views as to their sufficiency. Some had the view that parties tended to settle on the basis of interim orders and that this was adequate:

(Solicitor 4): "Something again is usually negotiated out …in a divorce action…people come to their senses and realise the marriage is over."

6.48 Predominantly these responses came from less urban areas where domestic violence was often discussed in the context of marriage and divorce. ³⁵ In the context of marital break-up, protective orders were seen by some interviewees to be something that could be negotiated alongside other aspects of a divorce action. This interaction of interdicts with divorce actions and the approach in a particular court seems to have an influence on the transience of interim orders and on whether or not a party would seek powers of arrest:

(Sheriff 4): "Solicitors in main…are extremely good. They tend to look at divorce cases, matrimonial cases and children cases as … officers at court, rather than representing their individual client."

(Solicitor 3): "[If the] pursuer restricts her application to interdict and doesn't insist on the power of arrest…the defender will often refrain from defending, so there is a compromise on both sides."

(Sheriff 3): "Talk to them directly and sort it out there... cutting down a lot on the other stuff…interdicts and so on… Try to get through to the - you know that you've to take care of the children, not fight and stuff."

(Sheriff 3): "You don't want [to be] too much involved. I'm great believer in letting people sort their own problems out."

6.49 Thus protective orders were regarded by some of the respondents as one of many orders in divorce proceedings, and in a legal setting which had a conciliatory outlook, they could be negotiated away. Indeed, as one solicitor seems to suggest, a move to establish a full interdict, may, in the course of negotiation, be forsaken for an undertaking by the other party:

(Solicitor 4): "If an experienced lawyer's on the other side…perhaps undertaking given to court, rather than actually getting an interdict order."

6.50 There was also perhaps an element where powers of arrest were considered as 'risky' by those who favoured negotiated and less-contentious settlements:

(Sheriff 2): "To have a power of arrest...probably aggravates the situation a great deal… you want to keep them away from the confrontational place."

6.51 There seems to be a contradiction in these responses; interdicts are viewed as often unnecessary as issues are often minor and can be negotiated in the course of a divorce settlement but they are also seen as 'risky' and a conflict on their merits best avoided. It may be the case that this conflicting message emerges as a result, in part, from what Michael King (1999) has termed an increasingly 'conciliatory-charged' atmosphere in family law which creates a preference for co-operation and negotiation in formal settings. Such an approach, if uncritically embraced by those charged with protecting rights may seek to minimise more polarised issues of which interdicts and domestic abuse is a prime example (Scoular 2001).

6.52 In relation to the previous comments, one experienced solicitor said interim cases, which did not progress were:

(Solicitor 1): "In fact were very much higher risk...it's not because they didn't need the interdict."

6.53 Others stated:

(Sheriff 1): "It doesn't last terribly long and if things go horribly wrong it is not very easy to find effective sanctions."

(Sheriff 4): "In the vast majority of cases I would grant a power of arrest, because to me, that seems to be the only way you can actually enforce the interim interdict."

About a half of the solicitors we interviewed preferred not to settle with orders that did not have a power of arrest attached.

Problems associated with evidence

6.54 The PFA Act states that:

"the attachment of the power of arrest is necessary to protect the applicant or any such person from a risk of abuse…it would not be enough to prove (a) that one has an interdict against another person and (b) that the person is abusive or potentially abusive. The court would have to be satisfied that there is a risk of conduct occurring, in breach of the interdict, which would be abusive"

6.55 The Act, therefore, gives judges discretion to determine whether or not a 'risk of abuse' is likely. Questions around the type of evidence required to support an application for an interdict with a power arrest received conflicting responses:

(Solicitor 2): "You don't need an affidavit or anything, you just need sufficient evidence."

(Solicitor 6): " Eye-witness accounts are better, [there's] more weight attached to that than hearsay."

(Solicitor 3): "Protection from abuse orders could be granted/obtained on a 'lower standard of evidence' in contrast to matrimonial homes orders, which needed affidavits and witness statements."

6.56 Sheriffs were viewed as somewhat unpredictable by solicitors. Some, it was commented, blankly refused to recognise psychological abuse and others would:

(Solicitor 1): " not accept physical abuse if not backed up by a witness."

6.57 Solicitors also talked about the courts' preference for recent evidence. As one solicitor commented this does not necessarily coincide with women's experiences and the timeframe in which they may seek legal assistance:

(Solicitor 1): "Anything more than a few weeks old was often seen to be a problem…[Sometimes people come] when it's boiling up again…you have got to have someone with a broken nose before you'll get one."

6.58 Solicitors said that the court preferred evidence from professionals, particularly doctors. Yet, as we have demonstrated in the earlier part of this chapter women's lived-experience reveals a continuing reluctance to disclose abuse. One solicitor made this point and found that few victims of abuse seek medical assistance as they:

(Solicitor 2): "Regard it as something personal."

6.59 These statements suggest that the translation of the legislative provisions into practice retains a discretion that could lead to varying degrees of protection across individual cases and courts. In addition women's experience of violence does not translate easily into legal evidential requirements.

The Operation of Power of Arrests - Police Notification

6.60 In terms of the operation of powers of arrest, one of the issues that arose from interviews was the way in which police were notified of the existence of powers of arrest.

(Police 2): "more often than not we are advised by the control room…the new computer system can tell you how many calls there have been to that house…and I would imagine when there are interdicts."

(Police 3): "Its difficult for us to check with these orders, because there is no [systems] …it would be useful if we had some sort of filing system…I arrested the person for it [and] he was released from custody…and he was on an undertaking to appear in court because it was a very minor breach. I completed the paper work… the same thing happened a couple of days later and the cops that attended on that occasion didn't have a clue that order existed. But I went back a couple of days after that and realised [when] I was looking at the machine how many incidents had actually happened and they didn't know …because the girl didn't tell them."

6.61 These quotes reveal, not only that practice is inconsistent but also a perception by some police officers that the problem lies with victims who, having experienced an assault, should, when calling the police, also be responsible to inform them about the existence of interdicts. This extended into discussion of enforcement of arrest.

Enforcing powers of arrest

6.62 In order to be able to exercise powers of arrest a victim has to rely on police to act. The powers of arrest contained in the act are discretionary rather than compulsory. Section 4(1) of the PFA Act states that a constable may arrest the interdicted person without warrant if the constable -

"(a) has reasonable cause for suspecting that person is in breach of the interdict:

and

(b) considers that there would, if that person were not arrested, be a risk of further abuse by that person in breach of the interdict."

If the police do not exercise powers of arrest the onus is back on the pursuer to raise civil proceedings, the limited effect of which have been outlined above.

6.63 Thus the new Act should not be seen as criminalising breached orders but rather as giving the police discretion to arrest in circumstances in which an order has been breached and further risk is likely. The effectiveness of the new Act hinges on police discretion in enforcing the legislation.

6.64 When we asked what circumstances arrest would be considered necessary to prevent further abuse we received the following responses:

(Police 4): "Quite a lot of violence."

(Police 3): "As with any other incident you would need definite corroboration of some kind …rather than just mere emotions."

6.65 From these quotes it is clear that discretion is exercised inconsistently and there are as yet no guidelines or training to assist in this risk assessment. What was also interesting from the interviews was the fact that questions also provoked a discussion of the context in which such discretion would be exercised:

(Sheriff 3): "[In] half of the cases the wife will phone him up and say- oh forget about it and come up… then of course, after a couple of drinks…she calls the police."

(Police 3): "Joe Bloggs appears at Annie Smiths house to get his jacket back after he's been there all day and he's been out for a drink… and wee Annie decides he's not getting in …that's just taking liberties…Women, victims take their partners back. People allow themselves to remain in a stagnant situation. The law is effective and it could protect individuals if they allowed themselves to be protected by it. But they just place themselves in situations where they are vulnerable and they are going to remain vulnerable…people are their own worst enemy."

6.66 These themes emerged in the discussion of interim orders and appear again as we consider the operation of powers of arrest under the new Act. What is of some concern is the tendency to focus on what seems to be ideas about 'genuine victims':

(Police 1): "Unfortunately victims ...encourage their husbands and partners to come back into the house…the courts need to take that into consideration at times, but for real genuine victims (qualifies statement) even they can be classed as victims as well , cause there are always reasons why they take their husbands and partners back."

(Solicitor 2): "I think the police are frustrated but they take that frustration out by saying well, we are not going to bother doing anything here."

6.67 The real danger is, as mentioned in the last quote, that frustrations around the intractable nature of domestic violence are rested on victims and that this may influence practice and the operation of discretion.

ABUSE THROUGH THE LEGAL LENS

6.68 In some senses the quotes above illustrate the problem of looking at a complex social issue like domestic abuse through the narrow lens of law and legal remedies (Smart 1989). Tied to this are the stereotypes, misunderstandings and myths discussed in Chapter 3 where we have also discussed the fact that reasons for not leaving are well documented in literature and are very much tied to women's material conditions. Some respondents recognised this context:

(Sheriff 4): "The real problem is the position of women as victims and getting them to speak up…will they have a roof over their heads, will they have any kind of financial support, what's going to happen to them and the kids? How can you possibly force them to give evidence…[be]cause you are just going to make matters worse for them?"

(Solicitor 3): "And some [victims] frankly are just so intimidated and frightened of the consequences that they can't bring themselves to commence proceedings, that's pretty common."

(Police 1): "They [victims] hope by telling the man that they have a got an interdict against him…that would be enough… you find that some men will test the women out."

(Solicitor 1): "Sometimes it's because taking that step has actually given a signal to the other party…sometimes that was alright…but sometimes it was not the case."

6.69 These quotes reveal an understanding of the context in which women make decisions and seek legal help. They recognise that women have experience of trying to 'manage' abuse (Cavanagh 2003) and that challenges to the abuser are often met with violence and threats. In this context as some of the respondents attest, legal proceedings will send a signal but this may be one that exacerbates the harm she experiences. Those in this sample talked about the benefits of being able to work through issues with women over a period of time:

(Solicitor 3): "You see her personality changing and having developed a sort of inner strength that she didn't have six months before."

(Solicitor 2): "I felt that I was the only person who didn't judge her …I encouraged her to make up her own decisions but also building her confidence that she can cope on her own."

6.70 Such practice was clearly difficult in a legal environment where there was:

(Sheriff 4): "Simply not sufficient time."

and

(Sheriff 2): "Everything is immensely hurried."

6.71 Yet, it is often assumed by many professionals that legal measures (often inaccessible) directly correspond to the wishes and needs of the victim, when in fact more complex needs and help-seeking patterns are experienced as is evident from the experiences of women in Section A.

Legal Aid

6.72 Although an evaluation of legal aid in the context of domestic abuse was not a key objective of this research it was a theme which emerged in interviews with professionals. Solicitors spoke of the increasing difficulty securing legal aid and the high levels of contributions required from clients. It was thought to be extremely difficult to access financial aid for anyone not on the full spectrum of benefits. In our sample, 72% (n=23) of women had applied for a legal order and of those, over half (52%), either did not apply or found it difficult to access legal aid due to the contribution levels.

(Solicitor 2): "If they are on family credit they just can't afford to pay 600 to the Legal Aid Board to raise an action [my old partner] is very reasonable with clients...he wouldn't ask them to pay upfront ...prior to legal aid being granted and sometimes the client wouldn't come back...but he would just say, well at the end of the day these women need help…we get such a volume of work at the end of the day we win some we lose some."³⁶

(Solicitor 1): "They are having to pay a significant amount of money that basically should come from the basic legal aid system…lots of people don't go ahead because of the level of contributions."

(Police 4): "A lot of folk we come across are separated and they are working and they go and speak to their solicitors and they don't qualify for legal aid and there is no way they can afford to pay a solicitor to get an interdict…for a genuine victim suffering from abuse [they] need something to protect them, they shouldn't have to pay for it."

6.73 One solicitor made the point that it was often difficult to advise women on how much money she would need to contribute as calculations were made during a time of flux. She may, for example, be leaving a partner, moving home, trying to get a tenancy or living with others, all of which would impact on her contribution levels.

6.74 It was- recognised by some that the Scottish Legal Aid Board (hereinafter SLAB) had introduced an extended period over which clients could repay contributions but many said that it was still often cheaper to do this privately:

(Solicitor 4): "People just said no, I won't bother taking it, I'll go on a private basis."

6.75 Not all would be able to pay privately and the risk is of course is that many may desist from taking any legal action at all. From our interviews it was clear that failure to obtain legal aid had stopped people seeking orders

(Solicitor 2): "Probably 1 in 4 ...just can't take this further."

6.76 Many solicitors also felt that levels of legal aid often didn't pay for amount of work necessary:

(Solicitor 1): "This kind of work is incredibly pressurised...all front loaded…you've got to drop everything and do tons and tons of work…and the return is not enough to keep going...there's a risk that you don't cover the outlays because it's all so urgent ...you should have perhaps have got more legal aid forms signed [but]…you just can't sit down and think that through properly…It's dire, just so awful and that is certainly one of the reasons that we are not doing it anymore."

6.77 This gap between legal aid and the costs involved led some of the respondents to advise clients to consider alternative remedies where there wouldn't be such an outlay and led one experienced solicitor to stop working in this area:

SLAB assessments

6.78 One of the solicitors we spoke to also encountered difficulties with SLAB's assessment of cases:

(Solicitor 4): "They are harder than sheriffs… they want statements, medical reports and evidence that the that police had been called which he said was in some cases difficult if the police were 'still taking view that it's a matrimonial…Legal aid wants corroboration in every case… I sometimes have my doubts about the level of people…the training of people...that are considering applications."

(Solicitor 2): "Legal aid sometimes gets refused [one] time because the legal aid board in their wisdom determine that the women had phoned the police and that the police adequately dealt with the situation."

6.79 These quotes demonstrate one of the problems associated with the hybrid nature of the protective orders in the context of a legal aid system, which is predominantly a system of criminal legal aid, which creates the anomalous position where as one solicitor noted:

(Solicitor 2): "Men are charged with assaulting their wife or whatever and even if they are working, they get legal aid …to defend themselves…and a woman doesn't get legal aid to protect herself."

CIVIL/CRIMINAL BOUNDARIES

6.80 The extent to which protection should be a civil matter is an issue that was raised by a number of respondents:

(Solicitor 1): "[A] civil system that people pay for creates a very bad dynamic ...it makes it more like a problem between two people instead of being a problem with behaviour… If they are not going to get the remedies through the civil courts then it's going to have to be increasingly the criminal system ...because it really should just be seen as something that is just not acceptable …it shouldn't [take someone to] take it to court to get it affirmed that it's unacceptable."

(Solicitor 3): "folk [are] not going to take actions because contribution levels are too high fine, if we are going to continue to train police … the police should be there to deal with it, because it shouldn't be a personal issue between them and their partner."

6.81 Difficulties in securing civil legal aid led to some suggestions that criminalising domestic abuse would not only be a way to secure more immediate fiscal support, it would also send out an important message that domestic abuse is a crime. In addition criminal procedure would offer access to a wider range of sentencing options. The ability to access perpetrator programmes, which can play an important part in tackling domestic abuse (see Dobash et al 2000), was mentioned by one sheriff:

(Sheriff 1): "I tend to favour a probation order with a condition of probation that he attends the Change programme. Which is a programme…specifically designed to tackle domestic abuse."

6.82 Others were less comfortable with increasing criminalisation:

(Solicitor 3): "My personal feeling is that it's gone just about as far as it can go …drawing a balance between…protection but also maintaining fundamental liberty standards."

(Solicitor 4:) "[There's] too much greying of the area between civil and criminal ... that's bound to happen."

Domestic Abuse Court

6.83 Interestingly a small number of those interviewed suggested a domestic abuse court as a way to co-ordinate and achieve the best of both systems:

(Solicitor 6): "A domestic abuse court would be a good idea."

(Sheriff 1): "I am hoping there will be specialised domestic abuse court…[victims] would feel they were being treated in a particularly sensitive manner and that would encourage them to give good evidence."

6.84 Such a specialised forum was seen to be favourable to current fragmented approach, although some had reservations:

(Sheriff 2): "There shouldn't be things a judge can't do…I am not sure why they would have this specific court. I suppose the person who was doing it would get overconfident about it [and that is] the worst thing that can happen."

(Sheriff 4): "I hesitate about people becoming involved in a very narrow field [encourages] a very blinkered approach."

6.85 It was clear that there were those who saw an abuse court as challenging judicial autonomy. One respondent who had experience in a small court felt that he already experienced the virtues overseeing different aspects of cases. Yet a number of those who opposed the idea of a domestic abuse court favoured the general concept of a family court, which would include social work referrals and child welfare hearings in addition to the civil and criminal aspects of domestic abuse. It was noted, however, that:

(Sheriff 4): "It would need to be 'a really big court' and have enough 'volume' to justify it."

6.86 If a domestic abuse court is being considered it would need to be supported by a multi-agency framework. The likelihood is that only the larger sheriff court areas could accommodate such a specialised court, leaving the issue of access, practice and resources in less urban areas unchanged.

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