Last Wednesday, MSPs at the Scottish Parliament voted to pass the Victims, Witnesses & Justice Reform (S) Bill. Multiple cross-party amendments relating to Non-Harassment Orders were debated in the chamber, ultimately strengthening the legislation surrounding them.

The passage of this bill means that;

• Courts are now obliged to consider a non-harassment order (and give reasons to open court if not granted) in a wider variety of cases including sexual offences, stalking and intimate image abuse. This is in addition to domestic abuse cases which the presumption has been law since the Domestic Abuse (S) Act 2018.
• In domestic abuse sentencing, courts must now have particular regard to any prior bail conditions imposed on the perpetrator preventing contact with the victim in deciding if an NHO is necessary.
• The bill also extends enforcement powers for protective orders made outwith Scotland. Relevant UK orders are restraining orders, non-molestation orders and stalking protection orders that are imposed by courts in England, Wales or Northern Ireland.

During the Stage 3 debate the Cabinet Secretary for Justice acknowledged the lack of data and sentencing guidance surrounding NHOs. She committed to;

• Write to the Scottish Sentencing Council to urge them to consider specific sentencing guidelines relating to the imposition of NHOs.
• Meet with the chief executive of the Scottish Courts and Tribunals Service to explore improvements to data collection in relation to NHOs.

What more needs to be done?

The measures introduced in this bill are welcome. They take steps to encourage judges to grant NHOs in a wider variety of cases and rightly recognise the importance of continuity in protective measures after conviction. It is reassuring that the Cabinet Secretary has finally acknowledged the stark lack of data surrounding NHOs and committed to starting conversations with the Scottish Sentencing Council and Courts and Tribunals Service in this area. If followed through, this has the potential to bring much-needed transparency and accountability.

However, these reforms do not go far enough. NHOs remain largely discretionary. It is important to recognise that changes in this area are complex and sensitive. They rightly necessitate careful scrutiny and consultation with public bodies and victim services (something a bill of this size could not afford time for). It is true that when it comes to domestic abuse, there is no ‘one-size-fits-all’ for victims. Legislation needs to consider nuances. For example, mandated NHOs against the will of a victim may risk victims being criminalised themselves for inciting the breach of an order. Equally, they can’t continue to be refused in over half of domestic abuse cases (58% last year), leaving victims subject to further unwanted contact from their convicted perpetrators.

Holyrood remains reluctant to mandate protective orders, citing concerns about judicial independence, which if you view a NHO as a sentencing disposal would be true. However, it is perhaps the case that we need to flip the narrative. Are NHOs something to be served on an offender or are they are a measure that can be granted to victims to alleviate them from having to seek an order privately after criminal conviction? Often at their own expense whilst an offender utilises legal aid to prolong civil proceedings. Currently a victim’s views have no weight in the decision to grant an NHO. The Cabinet Secretary has confirmed that no mechanism currently exists to record the views of a victim which certainly doesn’t align with the victim-centred, trauma informed practices promised within this bill, nor with the existing mechanisms to seek victims views for special measures and victim impact statements.

It is clear there is more to be done. I will continue to press for NHOs to be recognised as an automatic right for victims that desire them, or at the very least, for their views to be central to the decision-making process. I will advocate for clear sentencing guidelines so NHOs cannot be refused for redundant reasons, and most importantly, continue to gather and report on data around the imposition of NHOs and demand the same of relevant public bodies. 

Last week we strengthened protections for victims, not in strides but in careful steps. Thank you for your continued support.

You can watch the debate here.