Scottish Government
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Domestic abuse legal loophole closed

A new law which has been fast-tracked by the Scottish Government to close a legal loophole in domestic abuse cases comes into force from today.

The new offence of 'engaging in threatening or abusive behaviour' came into effect at one minute past midnight and will now give greater protection to victims of domestic abuse.

The move follows fears that a court ruling last year may have created a gap in Scots law which could make it more difficult for prosecutors to secure a conviction in some cases of domestic abuse and other crimes which take place in private.

Historically, prosecutors have used the common law offence of 'breach of the peace' as one of the range of conviction options available to them to punish those who abuse their partners. However, an appeal court ruled last year that breach of the peace requires a 'public element', prompting concern that offences taking place behind closed doors or in isolated areas may escape justice. Crucially, this new statutory offence does not require any public element for an offence to have been committed.

Ministers acted swiftly to close the loophole through the recently passed Criminal Justice and Licensing Act.

Justice Secretary Kenny MacAskill said:

"The effects of domestic abuse can be devastating and we are doing everything we can to tackle it.

"We've done a lot of work to raise awareness that this behaviour is totally unacceptable, that help is available, and to encourage more people to come forward, safe in the knowledge that they will be supported.

"And Scotland's police forces are cracking down on these despicable crimes whenever and wherever they occur. But we must ensure that where these offences are carried out, those who commit them are brought to justice.

"That is why, working with law enforcement agencies, we've taken action to address this gap in the law created by recent court judgements. This will give victims greater legal protection, whilst ensuring prosecutors have the full range of powers available to them to bring about a conviction.

"We want to send out the message loud and clear that if you carry out this offence, there will be no escape, there will be no wriggle room to exploit, and you will be met with by the full force of law."

The new offence of 'engaging in threatening or abusive behaviour' states that it is an offence for person to behave in a threatening or abusive manner where the behaviour would be likely to cause a reasonable person to suffer from fear or alarm, and that the person intends by their behaviour to cause fear or alarm or is reckless as to whether the behaviour would cause fear or alarm.

The case referred to in the above where it was stated that the offence of breach of the peace requires a 'public element' was Harris v HMA

Consideration is currently being given to when other provisions contained within the Criminal Justice and Licensing (Scotland) Act will come into force.

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