A Domestic Abuse Register is a Recipe for Disaster
I have read Pam Gosal MSP’s private member’s bill, entitled the Domestic Abuse Register Bill which proposes, amongst other things, creating a register, similar to the sex offenders register for those convicted of a domestic abuse offence.
In the first instance as someone whose role in the criminal justice system is to defend my fellow citizens accused of criminality by the State, I can assure you that, to misquote Ronald Reagan, the most terrifying words in the English language are:
“I’m from the Scottish Parliament and I’m here to reform the criminal justice system”
To be fair to the Scottish Parliament, their track record in criminal justice legislation is consistent: complete and utter failure. In recent years, we have seen the passing of the Offensive Behaviour at Football (Scotland) Act (OBFA), legislation so bad it was later repealed- what kind of Parliament would devote parliamentary time introducing legislation because of an argument between Neil Lennon and Ally McCoist following the conclusion of a Celtic-Rangers game?
Not content with the OBFA, the Scottish Parliament has also found time within a presumably busy parliamentary timetable to pass the Protection of Workers (Retail and Age-Restricted Goods and Services) (Scotland) Act (PWA). For the avoidance of doubt, anyone who is the victim of a crime whilst in the course of their employment should be protected by the criminal law and, equally, anyone who commits an offence against someone who is in the course of their employment can expect the Court to treat this as a significant aggravating factor when sentencing the accused. My criticism of the legislation should not be interpreted as an attempt to minimise the aims of the legislation. Instead the legislation itself does that: a common law assault against a worker can attract a sentence of up to 5 years imprisonment. What is the maximum sentence if an accused is convicted of an offence under the PWA? 12 months imprisonment. The PWA should be rechristened the Pointless Virtue- Signalling (Scotland) Act.
Now consider the criminal justice legislation currently before the Scottish Parliament (which is also the Scottish Government’s flagship legislation): the Victims, Witnesses, and Justice Reform (Scotland) Bill. This is the Bill which includes the proposal to remove jury trials in respect of some types of offences. This proposal is as illiberal as it is dangerous and, above all else, insulting to the integrity and decency of those who give up their own lives to perform their civic duty by serving on a jury.
Those of us who address juries on a regular basis recognise that juries are discerning and if you don’t believe me, just ask Donald Trump- whilst Congress, and, in particular, the US Supreme Court have failed to stand up to a demagogue, every time Trump has invited the jury to reach a verdict on him, it has been unanimous: guilty.
As will be obvious, I have no confidence in the Scottish Parliament’s ability to introduce legislation that will both protect the public at large whilst also protecting the fundamental rights of the accused.
I understand why some may support the introduction of a domestic abuse register and recognise the role the sex offenders register has played in stigmatising sexual offences and those who perpetrate such crimes. One aspect of Pam Gosal MSP’s Bill is to introduce education in schools regarding domestic abuse. This is, I think, something that would achieve universal support and achieve the aim of stigmatising domestic abuse (albeit I assume this would not require primary legislation).
Furthermore, domestic abuse offences represent a significant proportion of offences prosecuted on summary complaint at Sheriff Court level. Both the accused and the complainer are entitled to summary justice. One, perhaps unforeseen, consequence of the sex offenders register and the stigma that has been created is a significant unwillingness on the part of the accused to accept responsibility for any crime that will result in him being placed on the sex offenders register.
Indeed when an accused person is charged with a sexual offence, often the first question asked is whether, if convicted, the offence will result in the accused being made subject to notification requirements. If the answer is yes, the accused will nearly always take the view that the consequences are so profound and life-changing, they will either delay the inevitable by pleading guilty at the last possible moment or decide to take the matter to trial- regardless of the strength of the evidence against them.
If a domestic abuse register was introduced, the first result would be an explosion in the number of outstanding domestic abuse trials in the system. What, if any, consideration has been given to whether the justice system could support such an increase in the number of outstanding summary trials? The simple answer is that- due to the Scottish Government’s mismanagement of Legal Aid- there are simply not enough experienced defence lawyers to properly represent those accused of domestic abuse offences. The government have reduced Legal Aid to being the art of the possible and, as result of their failings, it is simply not possible for the system to accommodate a domestic abuse register.
A significant increase in the number of outstanding summary trials will also result in complainers facing months and often years waiting for their trial to start, never mind conclude. There have been a number of commendable attempts to improve the experiences of domestic abuse complainers in recent years, including the Summary Case Management (SCM) Pilot. In short, the aim of the SCM Pilot is for the prosecution to disclose the key evidence to the defence prior to a plea being tendered. The result of this is that parties are able to focus the issues in dispute (this is, rightly, reinforced by strict judicial management) as well as potentially allowing the matter to resolve without a trial being fixed which benefits both the accused the complainer with the former receiving the benefit of a discount in sentencing and the latter receiving closure weeks, rather than years, after the incident. A domestic abuse register will undermine the aims of the SCM Pilot and result in more alleged victims requiring to attend court and give evidence at trial.
Finally, if the purpose of the proposed register is to protect women, how will that work? The sex offenders register is not a public register and no wonder- can you imagine the vigilanteism we would witness if that were the case? In any event Clare’s Law give women the right to ask the police whether their partner has been abusive in the past. This does protect women at risk of abuse. What more will a domestic abuse register achieve? Nothing. Instead it will create a bureaucratic and administrative nightmare for the police which will, perhaps ironically, undermine the ability of frontline police officers to rapidly respond to domestic incidents. Only the Scottish Parliament could propose a measure aimed at protecting women and girls which will, in fact, put women and girls at further risk.
Whatever the superficial attractions of the proposed domestic abuse register, it is ultimately unnecessary, counterproductive and at odds with ongoing reforms within the justice system- no wonder it has achieved cross-party support in the Scottish Parliament.
To use another Reaganism, my advice to the MSPs advocating yet another unnecessary and ill-thought out reform to the criminal justice system is simple: don’t just do something; stand there.
This Article was written by Matthew McGovern, click here to view his profile.