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

CHAPTER SEVEN: BREACHED CIVIL PROTECTION ORDERS

INTRODUCTION

7.1 The protection provided by the various civil protection orders that are now available could be measured in 2 ways. First, to what extent are such orders adhered to by abusers and second, what sanction attaches if an order is breached. The first of these measures of effectiveness was not possible to pursue as the civil protection orders granted were only monitored over a 6 month period and this together with data protection concerns, prohibited granted orders being 'tracked' to establish if they were breached. Official bodies e.g. Scottish Courts Service, do not collate this type of information.

7.2 The second measure of effectiveness namely, what sanction attaches if an order is breached was problematic because, as noted in Chapter 2, the identification of breached civil protection orders proved to be very difficult. As breach of interdict is not a crime, the perpetrator will only be prosecuted if at the time of breaching an interdict his actions are deemed by the police and procurator fiscal to amount to a crime which can be proven in court. If this is the case, the perpetrator is prosecuted for the crime committed, the likely charge being breach of the peace or in more serious circumstances where an injury has been sustained, assault. The records retained by Scottish Court Service or the Crown Office do not allow this type of breach of the peace or assault, related to breach of interdict, to be differentiated from others which are not. The researchers were informed that breached NHOs could not be identified from the records retained by Scottish Court Service.

NOTIFICATION AND PROSECUTION OF BREACHED ORDERS

7.3 The research team continued to pursue methods of obtaining information about civil protection orders that had been breached. The co-operation of Strathclyde Police provided the necessary break-through. Information relating to breached civil protection orders that had been reported to the procurator fiscal was provided by the nine divisions of Strathclyde Police to the Crown Office. It was anticipated that only breached NHOs would be identified from police records via this process. This is because a breached NHO is a crime under the PH Act whereas a breach of interdict - even where there is a power of arrest - is not in itself a crime. However, the police also identified 2 breached interdicts with power of arrest, which were granted under the PFA Act and one breached interdict with power of arrest that was granted under the MH Act. In total the police provided details of 23 cases to the Crown Office. As Data Protection Act requirements would have resulted in excessive delays in the research team accessing the cases identified, they drafted a template to allow data to be collated on their behalf by Crown Office staff. Ongoing cases or those that could have been identified were excluded from the data provided to the research team. This resulted in 5 cases being excluded from our analysis. The data provided related to 15 breached NHOs, 2 breached PFA interdicts and one breached matrimonial interdict that had occurred between December 2001 and September 2002. The research team were unable to ascertain whether these 15 cases represented all of the civil protection orders breached during this period or if this was a representative sample of breached orders dealt with by Strathclyde Police. The sample can not been viewed as representative on a national basis as it is from a limited geographical area.

7.4 Police and procurators fiscal may encounter difficulties responding to breached civil protection orders. These difficulties include the fact that breach of interdict is not itself a crime. Police and procurators fiscal have discretion in deciding whether the perpetrator's actions amount to a crime and how to respond to this. Unless the actions of the perpetrator amount to a criminal offence for which there is sufficient evidence, including corroboration, and a prosecution is deemed to be in the public interest, no criminal proceedings will be taken by the procurator fiscal. In the case of the PFA Act and the MH Act, if the procurator fiscal decides that no criminal proceedings are to be taken in respect of the facts and circumstances which gave rise to the arrest, the detained person must wherever practicable be brought before a sheriff on the first day after arrest when the sheriff may order that person to be detained for a further period not exceeding 2 days. Where no criminal proceedings are to be taken it is also open to the woman to raise a civil action for breach of interdict. This may be both time-consuming and costly unless she is eligible for legal aid. The only civil protection order which is a crime when breached, is a NHO. Once again police and procurators fiscal will decide whether the action of the perpetrator amount to a breach and the procurator fiscal will decide if this should be prosecuted. If the decision is made not to prosecute the woman can not raise a civil action in respect of the breached NHO.

Non-Harassment Orders

7.5 Thirteen of the NHOs that were subsequently breached had been granted, in response to abuse in the context of an intimate relationship. All 13 NHOs were granted against an abusive male partner. ³⁷ Nine of the 13 NHOs that were subsequently breached were granted in respect of former co-habitees, one of the cases involved divorced parties and in 3 cases the party subject to the order was an ex-boyfriend. In all cases except one, the parties had formerly been in a relationship for a minimum of 4 years and a maximum of 13 years. In one case involving an ex-boyfriend the relationship had lasted 3 months.

Table 7.1 Frequency of violence and abuse used in evidence to obtain NHO

7.6 Table 7.1 details the behaviour that was used to support the NHO being granted. Applications commonly included assaults e.g. punching in the face, grabbing by the throat whilst feeding a baby and dragging from bed and throwing hot tea over the woman. Threatening telephone calls were also common and included threats of violence and death and in one case playing 'The Death March' on the telephone. There were also silent telephone calls. A number of women had changed their phone numbers, however, it was common for the perpetrator to discover the new number and continue the harassment. The evidence used to support these applications for NHOs is of a similar nature to that outlined in Chapter 3. It includes a spectrum of violence and harassment that, in most cases, occurred both during and after the end of the woman's relationship with the abusive man. As noted in Chapter 2, this evidence provides an insight into the abuse suffered by the woman but not a comprehensive picture of either the volume or seriousness of abuse suffered.

7.7 The NHOs granted generally prohibited the perpetrator approaching or contacting the woman. Some orders were more specific and referred to a prohibition of telephone or letter contact and in addition to prohibiting approaching the woman anywhere within the sheriffdom some also specified e.g. that the perpetrator should refrain from entering or remaining within 500 yards of the pursuer's home.

Nature of the breach of the NHO

Table 7.2 Frequency of behaviour constituting breach of NHO

7.8 Table 7.2 details the types of behaviour that breached the NHO. In most cases an NHO had been breached a number of times and often in different ways. The table illustrates that the breach will often occur in a public place. This will sometimes have involved the man following the woman to that place or attending somewhere in the knowledge that she will be there. In one instance, the woman, her current partner and her child were watching a public parade when the man tried to snatch the child. The public nature of these breaches is again emphasised by the case where the perpetrator attended at the woman's place of work.

7.9 The threat posed by these forms of harassment can only be understood against the background of violence and abuse the woman suffered during and after her relationship with the man. Whilst on the face of it, an ex-partner sitting outside the woman's home may not appear to be threatening, this must be viewed against the background of his prior actions and the unpredictability of his future actions. Morris et.al., (2002), note that victims are profoundly affected by individuals who continue to harass or 'stalk' them. They note that this behaviour can culminate in serious and even fatal violence, as evidenced in the case of Drury v HM Advocate, 2001 SCCR 583. In this case Stuart Drury was convicted of the murder of Marilyn McKenna. Drury had been violent towards Marilyn McKenna during their relationship. He continued to harass her after the relationship ended despite an interim interdict prohibiting such behaviour. He was convicted on 5 separate occasions of breach of the peace, arising from this harassment, and was serving a deferred sentence for one of these convictions when he murdered Marilyn McKenna.

Police Action

7.10 The data that the research team could access did not reveal cases where the police had not taken action in respect of a reported breached protection order. As no power of arrest is attached to an NHO, the police will use their common law powers of arrest where a suspected breach has occurred. These powers of arrest are discretionary rather than mandatory. In March 2000, the Executive published a consultation document seeking views on the effectiveness of the current provisions to deal with stalking and harassment and whether new legislation was required. In his speech to the Scottish Parliament, Jim Wallace noted that consultation responses included concerns of many victims that the problems they were experiencing were not being fully recognised when reports were made to the police ³⁸. He stated:

"At present, neither civil interdicts nor non-harassment orders carry a statutory power of arrest if they are breached. The police have common law powers of arrest, but there is a perception that those are seldom used in such circumstances. To remove any uncertainty, we will look for an early opportunity to create statutory powers of arrest when a non-harassment order is breached."

7.11 As noted in Chapter 1, this power of arrest has been introduced after the data was collected for this study. The data that was available for analysis by the research team involved cases where the police had taken some action following the woman reporting an incident to them. However, there was one exceptional incident where following an initial breach the police took no action. The circumstances of the breach of the NHO were stated in the template complete by Crown Office staff as:

"The complainer was at a local bingo hall when she was told of the accused's presence outside. Once the complainer was in her car, the accused approached and verbally abused the complainer and demanded that she get out of the car. The complainer refused and drove off. The complainer immediately attended her local police station and reported the incident. However, due to the police being unable to locate a copy of the NHO, no action was taken at the time."

7.12 The police response is this instance is puzzling as the man's actions amount to both a breach of the NHO and the crime of breach of the peace. Fortunately this woman was not deterred by this experience from reporting further incidents where the NHO was again breached. This occurred when the woman received abusive telephone calls at home and at work. When this was reported to the police they charged the perpetrator and he was subsequently charged and prosecuted with two breaches of the NHO, which included the earlier incident that had occurred outside the bingo hall.

Table 7.3 Frequency of police action following an incident

7.13 Table 7.3 details the police action following an incident of breach of interdict being reported to them. In the majority of cases the accused was at liberty following the alleged breach of an NHO. The decision to detain is at the discretion of the police. In one of 3 cases where detention did occur, this involved the accused being removed to a psychiatric hospital for his own protection, however, it is difficult to discern if he would nevertheless have been detained in police custody even if he had not been a danger to himself. In another case the woman alleged that she had been assaulted by the man and in the third case, the man attempted to snatch his daughter from her mother whilst they were watching a street parade. It appears, therefore, that unless there is a perceived threat of immediate danger to the woman or her children, the police will not detain the man in custody. This was also suggested by one of the police officers interviewed who stated that detention in police custody would be used:

(Police 2): "…If it was a serious assault, or if there were weapons used…maybe not a slap…"

Response by Procurator Fiscal

Table 7.4 Frequency of action by procurator fiscal

7.14 Table 7.4 details the action taken by the procurators fiscal in respect of the 13 breached NHOs reported by the police. Of the 13 cases reported to procurator fiscal, 4 were marked 'no proceedings.' ³⁹ Nine cases were marked for prosecution. Four of these cases were subsequently deserted, in 3 cases the accused pled guilty to reduced charges and in 2 cases the accused was found guilty at trial.

Cases marked 'no proceedings'

Table 7.5 Reasons for 'No Proceedings'

7.15 Table 7.5 details the reasons why cases were marked 'no proceedings.' The reason for a police or procurator fiscal delay was not revealed to the research team. In interview, procurators fiscal said that they would always mark a breached civil protection order for prosecution where there was sufficient evidence. They all noted that the requirement for corroboration was problematic in cases where there were no witnesses to the alleged breach. One fiscal depute stated:

(Procurator fiscal depute 1): "Even if there is corroborative evidence it is usually a child and that leads to a whole can of difficulties, because you have got a child being asked to speak up against the father and you can't get them to court unless the mother brings them."

7.16 There was an indication in interviews that the police and the procurators fiscal would only seek evidence to support the alleged breach from neighbours or other people, outside the woman's home, if the matter was viewed as serious. One of the procurators fiscal interviewed described difficulties which may be encountered when evidence is sought from neighbours :

(Procurator fiscal depute 4): "I am afraid that you tend to find that there has maybe been a history of disturbances from the address and the neighbours will close their curtains and close their minds and not get involved."

7.17 Despite the difficulties with corroboration all fiscal depute expressed the view that this requirement should be retained. One fiscal depute stated:

(Procurator fiscal depute 2): "I think there is also a very important protection for an accused person in the rule of corroboration that I don't think we should ever be departing from".

Cases deserted at trial

Table 7.6 Frequency of cases being deserted at trial

7.18 Table 7.6 details 4 cases that were 'marked' for prosecution but subsequently not proceeded with. The information provided states that 3 of these cases were deserted pro loco et tempore which means that the fiscal could raise fresh proceedings in the future and the fourth was re-marked as 'no proceedings.' In the first case detailed where the NHO had not been served on the man, it is not clear why the prosecution did not proceed in respect of the remaining 3 charges which involved contraventions of the Telecommunications Act 1984. A more problematic and contentious issue is when women either request that no further proceedings are taken against the man or fail to attend court and give evidence. This affected 3 of the 4 cases deserted.

7.19 In only one of these cases was there evidence to suggest that the reason for the case not proceeding was reconciliation between the parties. The woman and man had re-established their relationship and been co-habiting a few months after the NHO was granted. The woman contacted her solicitor and requested that the NHO be removed and was informed that as the man was on bail with conditions similar to those of the NHO i.e. coming within 500 yards of the complainer's address, then the consent of the procurator fiscal would be required. The woman took no further action and the NHO remained in force. Following the alleged breach of the NHO, the man was charged with breaching his bail conditions and with breaching the NHO. The accused pled not guilty to the charges. Prior to the trial taking place the woman wrote to the procurator fiscal and requested that the proceedings be discontinued. Following consideration of this request the procurator fiscal decided to discontinue the case and marked it as 'no further proceedings.'

7.20 The failure of the woman to give evidence affected 3 of the 13 breached NHOs examined and none of the breached interdicts with power of arrest. This contrasted with the views expressed by procurators fiscal depute in interview which suggested that the lack of co-operation by women resulted in both prosecutions for domestic violence and prosecution for breached civil protection orders being discontinued after initial proceedings were taken. The perceived extent of this problem did vary:

(Procurator fiscal depute 4): "…it could be between 30% and 40%…I think a very small percentage of that 30% to 40% would be a request to discontinue on the basis of intimidation. I can only think of maybe one or 2 cases where we have sent the police along and the woman has clearly been scared and in those cases we continue and ask the police to put what measures they can in place to assist the lady."

7.21 The other procurators fiscal depute who were interviewed suggested that lack of co-operation by women affected a greater number of cases, approximately 70 -90%. There was a suggestion by 3 of the procurators fiscal depute interviewed that even where the police were contacted and the abuser removed the parties subsequently resumed their relationship:

(Procurator fiscal depute 2): "It's a quick fix it gets rid of the person they get taken into custody and they get a chance to sober up and the parties are just given a cooling off period. …Sometimes you have to be a bit cynical about these things. What some of these people want is a cooling off period just to try and resolve a situation in their own particular way. So…when proceedings are raised and cases come to court they have got a situation where perhaps the relationship has resumed, everything in the garden is rosy, everything is happy and they just don't want to upset the apple cart and go to court."

7.22 The perception that women prevented both the civil and criminal law operating effectively was expressed most strongly by one of the procurators fiscal depute who made the following comments:

(Procurator fiscal depute 1): "More often than not there is enough evidence…when the matter comes to court the woman has a lapse of memory or changes what they have said."

This procurator fiscal depute discounted the possibility that this may be due to fear and stated she suspected it was because the parties had reconciled but she was not sure.

Accused pled guilty to reduced charges

Table 7.7 Plea negotiation and punishment

7.23 Table 7.7 provides details of the 3 cases where the accused pled guilty to reduced charges. Plea negotiation in Scotland can involve a reduction in the severity or number of charges in exchange for a guilty plea. There is no sentencing bargaining in Scotland. It is impossible to estimate how 'typical' these cases are without longitudinal research involving a larger number of cases. Whether the punishment given would discourage future breaches is questionable. The punishment available for a breached NHO is 3 months imprisonment (6 months if a subsequent offence) or a fine up to 5,000. As noted above, an assessment of the effectiveness of civil protection orders in discouraging abusive behaviour must examine how breached orders are responded to and punished. One solicitor commented in interview:

(Solicitor 4): "If they're (the abuser) are afraid of …breach proceedings, or afraid of criminal sanctions then its going to work. If they are not, they don't take any notice of that."

Trial Outcomes

7.24 In two cases a verdict was delivered following a trial. One accused was found not guilty and the other guilty. The accused that was acquitted had been charged with breach of an NHO and a second charge of breach of the peace. The accused that was convicted at trial had been charged with breach of the peace and a second charge of breach of an NHO. He had approached his former partner whilst she was watching a street parade and tried to snatch their child. The charges are narrated in the template completed by Crown Office staff as:

(01) "…you…did conduct yourself in a disorderly manner, shout swear, utter threats of violence, place X in a state of fear and alarm for their safety and commit a breach of the peace"

(02) You…being a person subject to a non-harassment order…being required to refrain from such conduct in relation to X as specified in said order including inter alia refrain from molesting her by abusing her verbally, threatening her and thereby putting her in a state of fear and alarm, undue stress and using violence towards her did on…breach the terms of said order in respect that you did approach said X shout, swear, place her in a state of fear and alarm and threaten violence.

7.25 The accused was found guilty of both charges and sentenced to 30 days imprisonment for each charge. The sentences were to run concurrently. This is the only case notified to the research team where a custodial sentence was imposed. This suggests that there may be a reluctance to imprison in response to a breached NHO. However, further research would be required to improve knowledge of the sentencing practices of sheriffs in response to breached civil protection orders.

7.26 In summary, from the 13 cases reported to the procurator fiscal only 5 resulted in the accused being convicted of any offence and being sentenced. The number of cases involved prohibits patterns of prosecution decision-making being observed. It is clear, however, that dealing with breached NHOs is complex due to the requirement for sufficient corroborating evidence and the attendance of witnesses at court.

BREACHED INTERDICTS WITH A POWER OF ARREST

7.27 Details of 2 breached PFA interdicts and one matrimonial interdict were notified by the police to the Crown Office and thereafter the research team. None of these cases were marked by the procurator fiscal to be prosecuted. As noted in Chapter 1, both the MH Act and PFA Act provide that where an accused has been in police custody and the procurator fiscal decides to take no criminal proceedings, then the procurator fiscal must petition the court and the accused must appear before a sheriff where he may be further detained for up to 2 days. These provisions are to be used where criminal proceedings are not to be taken and can provide a means of protecting the woman against further abuse. The reason why the first two of these cases were marked 'no proceedings' is unclear. In each of these cases a petition was to be brought in terms of the MH Act and the PFA Act. In the third case the police could not find the accused and the case was marked 'no proceedings' due to insufficient evidence. As the accused could not be found no petition proceedings could be brought.

7.28 The circumstances of the breach in case one were narrated on the template completed by Crown Office staff as follows:

"…Accused & complainer previously lived together at locus until they separated due to accused's unreasonable behaviour. Complainer had a stroke 10 weeks previously, was partially paralysed down her left side and her speech became slurred. Consequently, accused moved back into matrimonial home in order to look after complainer."

"On day in question, accused & complainer had been arguing due to accused's drinking. At about 1700 hours, when the complainer was using her walking stick to aid her movement, the accused grabbed the stick from the complainer and threw it across the room. The complainer leaned on a wall to stop herself falling over. Accused pushed complainer on the chest and she fell backwards, landing on her right hand side. The complainer was in so much pain that she could not get up again, although she was able to pull herself up enough that she could lean against an armchair."

"Complainer then pressed her Care in the Community alarm. The carer spoke to the complainer on the intercom and could hear the complainer crying. The accused, however, told the carer that his wife, the complainer, was just stressed, put the phone down, disconnected it and sat down on the floor. Whilst sitting on the floor, the accused kicked the complainer…The complainer was still in too much pain to be able to get up…Meanwhile, the accused sat on the floor drinking cider."

"At 2030 hours, the Care in the Community Carer called the local police station as she was concerned about the complainer's welfare. At 2115 hours, two police officers attended at the locus and, on arrival, found the complainer to be in a very distressed state and was crying and shaking. On entering the living room of the locus, the officers noted a pushed over stool, two spilled ashtrays and cups and glasses and ornaments that had been knocked off the hearth. A fresh red graze was also noted on the complainer's right hand side. At this point the complainer complained of being assaulted by her husband and it was obvious to both police officers that she was in pain."

The template notes that the accused was detained in police custody. When he was questioned in respect of the incident he stated that he could not remember whether he had assaulted his wife and that she had probably fell as a result of her stroke.

7.29 As noted above, the procurator fiscal marked the case 'no proceedings'. The reason for this decision is unclear. The information provided indicates that a petition was raised under section 17(4) of the MH Act. The outcome of the procurator fiscal's petition to the court is unknown. In the second case, where the woman had a PFA interdict, the police detained the accused and later charged him with breach of an NHO. This error was noted by the procurator fiscal who marked the case "petition in terms of Protection from Abuse (Scotland) Act 2001." As the actions of the man amounted to a breach of the peace and witnesses were available to 4 of these incidents, which included 2 police officers, it is unclear why the procurator fiscal declined to take criminal proceedings. The petition to the court refers to one incident namely that the man approached the woman and followed her to the police station. The earlier incidents are not mentioned. The accused appeared in court before a sheriff and denied that he had approached the women and claimed that she had approached him and stated she was going to the police station. He claimed he had followed and further, that the complainer constantly telephones him about getting back together. The sheriff instructed the accused to obey the terms of the interdict but did not detain him in custody.

7.30 The third case was marked 'no proceedings' by the procurator fiscal due to insufficient admissible evidence. As the accused could not be found he was not available to appear before a sheriff and therefore, no petition was brought by the procurator fiscal. As a consequence there was no sanction brought against the man.

7.31 No conclusions as to the operation or effectiveness of either MH interdicts or PFA interdicts can be drawn on the basis of 3 cases, analysis of which suggested that petition proceedings may be being pursued instead of a criminal prosecution. The outcome of the petition was only known for one case and therefore, no conclusions on the operation of this provision can be drawn.

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