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An Evaluation of The Protection From Abuse (Scotland) Act 2001
CHAPTER EIGHT: CONCLUSION
8.1 This research study was commissioned to evaluate and monitor the use and impact of the Protection from Abuse (Scotland) Act 2001. Our findings are based on data gathered from 4 distinct sources:
- interrogation of official civil court records processed in both pre and post-Act time periods across 4 identified courts
- scrutiny of breached cases processed through criminal courts
- examination of the views and experiences of court professionals operationalising the Act, including police, sheriffs, procurators fiscal and solicitors
- examination of the views and experiences of those most likely to seek protection under the Act.
8.2 As this evaluative study commenced immediately after the implementation of the Act, it is more accurate to describe it as a 'scoping' exercise whose findings might significantly influence a more comprehensive evaluation. This is best placed to occur once the Act has embedded, and those people who both operationalise and seek help via its provisions, have had more time to make use of the Act and its powers. This 'scoping' exercise provided a wealth of valuable data.
8.3 Women are the pre-eminent users of this (and the previous) legislation, their harrowing experiences of violence and abuse perpetrated by their intimate male partners are amply documented in the court records, widely acknowledged by professionals and vividly reported in their personal accounts. Such findings reinforce much of what is reported in the literature and guides the National Strategy on Domestic Abuse that domestic abuse "is associated with broader inequalities in society" and "…is part of a range of behaviours constituting male abuse of power" (National Strategy, 2000:5). Thus, legislation which aims to protect victims of abuse must be sensitive to the context in which it operates which is predominantly that of gendered violence.
8.4 The PFA Act was introduced to extend protection to those who were previously unable to access interdicts with powers of arrest under the MH Act. A significant group excluded were those who had or were in the processes of separating from an intimate partner (married or otherwise). Much literature indicates that separation from a partner is a dangerous and potentially lethal time for women. This was significantly reinforced in our findings. Men's threats to maim, disfigure and kill an intimate partner who had left them were widely and vividly reported in the court records, as was the actual execution of many of these threats. The need for effective legal protection for women at this time is absolutely critical.
8.5 Our findings revealed that knowledge and awareness of the Act was variable. From our sample of 32 women victims of domestic violence 87% had never heard of the Act indicating a need for awareness raising. Of 8 who could have sought protection under the Act, only one was able to secure a PF interdict and 2 reported negative experiences. All of the professionals knew of the Act but some were less clear about its detail. Given the discretion it provides not only to judges in granting orders but also to police in terms of enforcing orders, professional training is also required alongside more public awareness raising.
8.6 The PFA legislation was utilised in 3 of the 4 sheriff courts whose records were interrogated. Across the 4 month period examined there were 35 requests for PFA interdicts. In March and April 2002, there were more requests for non-PFA Act orders than PFA interdicts but in May 2002, this pattern was reversed with more PFA interdicts being requested indicating gradual increase in usage which is encouraging. By examining the nature and frequency of orders sought and granted before and after the implementation of the PFA Act it would appear that although they do not as yet outnumber common law interdicts, PF interdicts are replacing common law interdicts. These are significant findings, which require further monitoring as the Act was introduced primarily to give greater protection to those who could previously only access common law interdicts, widely regarded as ineffective due to problems enforcing interdicts unsupported by powers of arrest. The Act would therefore appear in this brief period to be successful in increasing access to powers of arrest.
8.7 Any success, however, has to be read in the light of the continuing barriers our research has highlighted in terms of accessing legal protection. Interviews with legal professionals and analysis of court files revealed that many orders do not progress past interim interdict stage. A variety of factors may explain this; choice, costs in pursuing actions, intimidation by abusers or negotiation in the context of divorce actions. In addition, findings from women and professionals in our study reveal continued difficulties in securing powers of arrest. Judicial practice was sometimes seen to be inconsistent; divergences appeared in terms of evidential requirements and attitudes towards the need for powers of arrest. Difficulties in securing legal aid inhibit victims from seeking such orders. Enforcing powers of arrest relies critically on police discretion. More could be done to increase access by increasing public awareness, offering professional training and providing greater financial support to pursue cases via legal aid. As noted above, some interview respondents perceived that civil law places an unfair burden on victims of abuse to pursue actions due to strict eligibility criteria for legal aid and the cost of privately funding civil court actions.
8.8 The difficulties encountered in prosecuting breached civil protection orders have been noted in Chapter 7. These difficulties include the fact that breach of interdict is not itself a crime. Police and procurators fiscal therefore have discretion in deciding whether the perpetrators 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 and a prosecution is deemed to be in the public interest, no criminal proceedings will be taken by the procurator fiscal. 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 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.
8.9 Findings in relation to breached orders revealed that whilst all 16 cases were reported to the procurator fiscal in only 5 (38%) cases (all breached NHOs) was the matter disposed of following a trial or a guilty plea. In only 1 case was the accused found guilty of all charges, in 1 case there was an acquittal and in 3 cases the charges were plea negotiated so that the accused was found guilty of only one charge. In only one case was a custodial sentence given. Four cases were deserted at trial and 7 cases were marked 'no proceedings'. More research involving a greater number of cases is required. Of 13 breached NHOs orders, 31% were not prosecuted and 31% were deserted at trial.
8.10 The response to breached matrimonial interdicts and PFA interdicts is of greater concern. No breached matrimonial or PFA interdicts were prosecuted and in 2 of the 3 cases, petition proceedings were brought under the legislation. The outcome of these proceedings is unknown. As noted above, if a woman in possession of an interdict wishes to address a breach of interdict, the only available remedy is to bring civil proceedings for breach of interdict. This is rarely pursued. Interviews revealed that civil procedure was cumbersome, did not attract urgent legal aid, causing delays, which took the momentum out of the incident and impacted on judges' perceptions of seriousness. Sanctions for breach of civil protection orders were not thought to be effective as fines often impacted on the victim and imprisonment was considered alien and was, therefore, rarely used. The criminalisation of breach of MHA or PFA interdict may result in more prosecutions and emphasise to perpetrators the seriousness of breaching a civil court order.
8.11 In summary, the Scottish Parliament's intention in enacting the PFA Act was to offer increased protection for those experiencing domestic violence. This evaluation shows that the Act is being utilised but reveals a lack of fit between the intention of this legislation and its actual operation. By mirroring the matrimonial homes legislation, the new Act reproduces the limitations inherent in hybrid civil/criminal orders designed to respond to cases of domestic violence, where responsibility is split between the pursuer and the state. Civil law interdicts place an unfair burden on victims of abuse to pursue actions due to strict criteria for legal aid and the cost of privately funding civil court actions. Powers of arrest go some way to attaching criminal powers, but stop short due to the continued reliance on police discretion and the requirement that the breach of interdict must amount to a crime before prosecution can be considered. The effects of these limitations are being felt by those already vulnerable, victims of abuse who, in consequence, continue to find it extremely difficult to secure protection from the legal system.
8.12 The Scottish Parliament in enacting the Protection From Abuse (Scotland) Act 2001, sought to offer increased protection to victims of domestic abuse, by extending access to interdicts with powers of arrest. If, however, the reforming spirit, which underpins the civil law is not matched in its operation and by the criminal law, then the effectiveness of the former is compromised. The need for such a parallel is recognised in the swift commissioning of an evaluative study which, it is hoped, further assists the efforts of the Scottish Executive, via the National Strategy, to eradicate domestic violence.
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