In the past few years, domestic offences have moved from being ill-defined and merely colloquial to very-much part of an active strategy when it comes to the Scottish Parliament's actions and the corresponding quotas which the procurator fiscal is required to meet. Prior to 2016, domestic offences were simply offences which were committed in a domestic environment, which means that they involved a spouse, civil partner, or cohabitant. At this time, however, there was no distinction from the court's perspective between, for example, an assault committed against a stranger and one committed against a partner. However, this changed in 2016 when a domestic abuse aggravation was introduced. This essentially attaches a label to any offences committed in a domestic context, labelling them as involving abuse of a partner or ex-partner. The primary purpose of this was to bring more attention to this aspect of the offence and to officialy acknowledge its domestic element. Additionally, though, it can also have implications for sentencing, meaning that it allows the sheriff or judge to consider this aggravation as a factor which may worsen the sentence. This aggravation can be attached to any offence so long as, in committed the offence, the accused intended to cause their partner or ex-partner physical or psychological harm, or they were reckless as to this being a probably consequence.
If you are convcited of a domestically-aggravated offence, this will be visible on your criminal record and has the potential to increase the sentence which is imposed on you. Therefore, if you are charged with a domestically-aggravated offence, it is essential to contact a solicitor and ensure that you have the best shot at avoiding a convcition. This is especially the case due to the damage a conviction of this kind could do to your reputation.
Additionally, in 2018, a further Act of the Scottish Parliament was passed in the form of the Domestic Abuse (Scotland) Act 2018. This made it, amongst other things, a specific offence to engage in abusive behaviour towards a partner or ex-partner. More detailed information on this statute can be found below.
This Act makes it an offence to engage in behaviour which causes their partner or ex-partner to suffer physical or psychological harm. The behaviour must be likely to cause physical or psychological harm in the eyes of a 'reasonable person', which is a test used by the courts to determine what they is, essentially, normal behaviour and thinking. The Act also states that behaviour which a reasonable person would consider to have one or more of the following consequences will be considered abusive; these consequences are when a person:
If you are convicted on summary complaint for this offence, the maximum sentence is 1 year in prison and a fine not exceeding the statutory maximum. If you are however convicted on indictment, the maximum sentence is 14 years and a fine or both.
It is important to note that as this is a new offence, the procurator fiscal has to be seen to use it in real life situations, which means that they have to charge people with it when it is competent to do so. Therefore, it is highly likely that this offence will be used increasingly often in the comings months and years. This is especially-important to note because the offence which it prescribes can be used when a charge of either assault, section 38, breach of the peace, or stalking would be competent instead. Furthermore, each of these offences could alternatively be accompanied by a domestic abuse aggravation.
Almost all offences can be aggravated as being committed in a domestic context, specifically with the alleged result being that it was abusive of a partner or ex-partner. There are some exceptions such as possession of a controlled substances, however the offences which can be domestically-aggravated are probably more numerous than those which cannot be. Nevertheless, the essential element of a domestically-aggravated offence is that it was an offence which took place and involved an element of abusiveness in its commission. Abusive is defined in the Abusive Behaviour and Sexual harm (Scotland) Act 2016 as being behaviour which a reasonable person would expect to cause physical or psychological harm to the parter or ex-partner.
Something which is worth noting about this aggravation is that it does not need to be corroborated. This means that there does not need to be two or more witnesses who say that it was, which is the usual standard in Scots criminal law. As a result of this, it is incredibly easy to add this aggravation onto an offence which was committed in a domestic context, owing mostly to the fact that it is possible for someone to lie about what happened.