Senior sheriff calls for more domestic abuse cases to be diverted away from prosecution in court

One of Scotland’s most senior judges has called for greater use of powers to deal with alleged domestic abuse perpetrators outwith court amid warnings that “trivial” incidents are being prosecuted in certain cases.

Derek Pyle, sheriff principal of Grampian, Highlands and Islands, said that criminal courts should not be seen as the “first port of call”, calling for a “separation of domestic abuse from domestic arguments” and diversion from prosecution to be used more widely.

Campaigners, however, have warned a greater emphasis on diversion would send an "incredibly regressive message" and risks sending Scotland back decades in terms of tackling domestic abuse.  

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Pyle, who delivered a lecture in Edinburgh last night, backed the creation of an offence of domestic abuse – the wording of which is currently being consulted on by the Scottish Government – and called for the most serious summary cases to be brought to trial in three weeks.

However, he warned that current policies predicated on a zero-tolerance approach can “create injustice for the very group they are intended to protect” as he claimed some alleged crimes of domestic violence being brought before the courts “can be seen to be trivial”.

In one case he cited from the north of Scotland, a 50-year-old woman was prosecuted for assaulting her husband after throwing a mobile phone at him, leading him to fall on to a sofa.  

“We should not see the criminal courts as the first port of call,” said Pyle. “Most if not all sheriffs express frustration that they are the ones who have to separate the wheat from the chaff as it were.

“In other words, they have to identify the cases where there is concerted and serious abuse as opposed to those which are little more than domestic arguments expected of any couple.

“That is now doubtless one strong reason for the court disposals in many domestic cases being either a finding of not guilty or, if guilt is established, penalties imposed of low-level fines, admonition or even absolute discharges.”

Criminal law has “an important and indeed vital role in tackling domestic abuse”, said the sheriff principal, “but that does not mean that the criminal courts should be regarded in the same light”.

Pyle said: “The fundamental change that is required is in the steps taken in all the other cases short of a court appearance, that is where the police and the prosecutors in my view have a vital role to play.

“There should be no let up in investigation and evidence collection, but the police and prosecutor should consider first of all whether the underlying problems can be addressed.

“That is not a soft option, nor if properly presented should it be seen in any way by the complainer as being unsupportive of her predicament. There are mechanisms available to police and prosecutors to divert cases away from the courts. There has in recent years been a drop off in the use of these powers – they should be used far more than they are.”

The Crown Office receive around 36,5000 domestic abuse charges each year, around 86 per cent of which are prosecuted with diversion only used in limited circumstances. 

Voluntary programmes of support for abusers should be put in place to “persuade them first why what he did and does is wrong and secondly what he should do to prevent it occurring again,” Pyle added.

“That’s not a watering down of the message that domestic abuse should not be tolerated; instead it is an acceptance that to eradicate it we need to address not just the underlying attitudes of society but also particular inadequacies of the individual abuser,” he said.

Refusal to address such behaviour should still leave room for prosecution, though the sheriff principal said cases should come to court much sooner than is currently the case.

Domestic abuse cases will soon have a target of eight to ten weeks between first appearance in court and the date of trial, a timeframe that is “still far too long”, according to Pyle.

He said: “I see no reason why the trial should not go ahead in three weeks, that should make the abuser think twice about the prospects of imprisonment. To do that will require assistance from the Scottish Legal Aid Board, who will tell you provided all the necessary information is given they will turn round applications in 48 hours.

“But more importantly it will work only if the number of cases which proceed through the court is reduced to those I have described as the most serious ones to which would be added those that the abuser still misguidedly thinks that they might get off.”

The chief executive of Scottish Women’s Aid, Dr Marsha Scott, welcomed the sheriff principal’s acknowledgment that domestic abuse should be seen in the context of gender inequality.

But she added: “Diversion as an alternative to prosecution has been around 30 years... I’m not aware of any evidence that has convinced anybody that it has a long-term positive impact on women’s safety and children’s safety.

“We know that it gives an incredibly regressive message to the community and the society at large about how seriously we take domestic violence and domestic abuse.”

Mhairi McGowan, head of service at specialist victim support service ASSIST, said: “If we instigate pre-court diversion then what we’re doing actually is colluding with the abuser and placing victims in a dangerous situation.

“More victims are coming forward because they see what we’re doing in Scotland as being supportive of their experiences. If we change that, then we’re going back 20 years.”