The Scottish Courts & Sentencing Council are gravely failing to adequately remediate the impact of sexual & domestic abuse offences on the survivors that support Crown cases. As it stands, victims who have testified in High Court trials ending in conviction are not automatically granted a Non-Harassment Order (NHO) protecting them from their abuser after the sentence is spent. They are instead being told to pursue civil orders which could cost £1000s in legal fees.

Government Ministers & The Crown Office continue to insist that current legislation within The Domestic Abuse (Scotland) Act 2018, which dictates that judges must consider a NHO in cases of domestic abuse and must give reasons if they opt to refuse one, is fit for purpose.

However, a recent FOI release from the Scottish Government revealed that in the financial year 2023-24 Non-Harassment Orders were applied at sentencing in just 38% of domestic abuse cases (including other crimes where domestic abuse was identified as an aggravating factor).

The Scottish Courts & Government must acknowledge the current legislation simply is not working as intended.

My Story

After my abuser was sentenced to a four year custodial sentence in 2021, the presiding Judge refused to grant a protective order despite his obligations and the legal presumption in my favour - knowingly leaving my abuser free to contact me both from custody and after his release (including directly, by telephone, letter or electronic means).

My experiences as a victim in a high-court case, made acutely clear the stark disparity between the protective measures available to victims pre-trial versus post-conviction. Immediately after charges were brought, I was afforded protections in the form of bail conditions, an interim interdict and a police marker - conditions which I believe are applied as standard precautionary safeguards that not only recognise the potential risk posed by the accused but also act to preserve evidence whilst investigations are ongoing. In addition to this, I was afforded a video-link at court under the Vulnerable Witnesses (Scotland) Act 2004  which rightly acknowledges the impact that appearing in court alongside the accused has on victim well-being. However, the continuation of such measures after conviction is at the discretion of a singular judge who has no legal obligation to seek the views of the victim or grant an order to protect them from further contact.

COPFS suggest they would not appeal the decision to refuse an NHO in my case because the Crown did not "assesses that the judge has acted unlawfully", taking the view that Judges refusing NHOs are reasonably acting within the discretion afforded to them by relevant legislation.

Even after my abuser was returned to custody for breach of licence conditions after initial early release by the Parole Board, COPFS still insist that if I am worried about my safety post-release - I should pursue a civil order which would cost me £1000s to obtain through private legal advocacy plus another re-traumatising court ordeal. 

If a different judge had been allocated to my case, I may have indefinite protection. Instead, I am left less protected after conviction than I was awaiting trial.

Legislative Reform

The current Scottish Sentencing Guidelines in addition to s. 234A and (in domestic abuse cases) s. 234AZA of the Criminal Procedure (Scotland) Act 1995 & Domestic Abuse (Scotland) Act 2018 specify that whilst non-harassment orders must be considered by a judge in cases involving abuse of partner, they are categorised as a discretionary ancillary order. The outcome? That victims in like for like cases can receive indefinite protection from the courts OR they can receive no protective measures at all depending solely on the judge allocated to their case.

The current inconsistency in protecting victims post-conviction is a stark deviation from The Principles and Purposes of Sentencing as set out by the SSC which clearly specify that sentencing in Scotland must be ‘fair and proportionate’ and ‘sentencing decisions should treat similar cases in a similar way, assisting consistency and predictability.’ In review of the sentencing statements available on Judiciary.scot it seems evident that the current approach is anything but consistent. Survivors who endure the immense toll of supporting crown prosecutions should never have their safety left to judicial discretion or pot-luck.

Recently, The Scottish Sentencing Council released draft guidelines for the sentencing of rape. Whilst they promise the possibility of longer sentences, they do little to address the issue of survivor safety, an issue felt deeply by victim-survivors, evidenced by the report they commissioned by SCCJR (University of Glasgow) exploring Victim-Survivor Views and Experiences of Sentencing for Rape, and Other Sexual Offences. The report overwhelmingly finds survivors, who’s abuser was known them, believe NHOs should be default and lifelong. 

What Next?

In a recent BBC report, Sandy Brindley, Chief Executive of Rape Crisis Scotland commented "When someone has the courage to report a sexual offence and go through what can be a difficult legal process, the least the system should do is ensure their safety. Non-harassment orders should be automatic on conviction for any serious sexual offence."

Fiona McMullen, Operations Manager at ASSIST, a specialist court advocacy organization focused on supporting victims of domestic abuse said on BBC Scotland’s Lunchtime Live that “Everyday I hear of cases within our organisation where we have requested orders that haven’t been granted”. She added “Victims are the ones who understand their risk the best” and that victims “report because we have told them as a system that they will be protected”. She concludes that she thought the mandatory consideration of NHOs would be enough but it “clearly isn’t when we see how few NHOs are imposed.” 

Justice for survivors should not end at conviction. Custodial sentences alone do not equal justice. Survivors who aid crown convictions deserve compulsory and continued safety. There is no incentive for survivors to report the abuse they have suffered and endure the traumatisation of giving evidence if they find themselves no better protected for doing so, even when a conviction is achieved.

Please help me to ensure that all victims who have indicated a desire for protective measures are automatically granted a Non-Harassment Order (or alternative protective order) as a basic right once guilt is proven.

I am calling on the Scottish Government to introduce;

• A legal requirement for the court to seek the views of the victim in regards to protective measures once guilt is proven (ideally with the input of an independent advocacy support worker)
  
  AND
  
  
• A legal requirement for judges to grant protective measures without hesitation where a victim has indicated a need for them

If you want to help create robust, fair and consistent safety measures for victims, please sign, share & write to your MSP if you are able.

Every signature is appreciated. Thank you.