Legal remedies under criminal law

Breach of the peace can be used in situations where there is conduct that might reasonably be expected to cause alarm, upset or annoyance to any person. It is a vague offence which can be, and is, used as a catch-all. [1]

No person should be discouraged from using the criminal law to protect themselves from a perpetrator of domestic abuse. There are, however, some potential difficulties to be aware of.

A conviction in a criminal case will be obtained only if the prosecution is able to prove that a crime occurred. This must be proved 'beyond all reasonable doubt'. This is a more difficult test to satisfy than the civil test that is 'on a balance of probabilities'.

In criminal cases, there must be corroboration of the behaviour, that is, there must be two different sources of evidence substantiating the behaviour that constitutes the criminal offence. Just the account of events given by the complainer is therefore not enough. Corroboration can be obtained from physical signs of an assault. The need for corroboration is a substantial barrier to effective use of the criminal law in domestic abuse cases where much of the behaviour occurs in private. Children are competent witnesses. However even if a child is a competent witness it can be traumatic for her/him to give evidence.

If the accused pleads not guilty, then the complainer will have to face giving evidence in court. By contrast, in a disputed civil case, the pursuer may have to give evidence but s/he will have the support of her/his own solicitor to explain procedures and court practices.

If the accused is found guilty but not sentenced to a term of imprisonment, the criminal courts have limited powers to protect the complainer. The powers they do have are to attach conditions to a probation order, such as a condition to stay away from a particular person or area. They also have the power to impose a non-harassment order, further breaches of which are liable to imprisonment or a fine. [2] In many areas it may be difficult to persuade the police to get involved in domestic disputes.

If the police do charge someone with an offence, a report is sent to the procurator fiscal who makes the decision about whether to prosecute. If the case proceeds it is the procurator fiscal who prosecutes. The complainer is one of the witnesses and has no involvement in any decision regarding the trial. If the procurator fiscal decides not to prosecute, a private prosecution is available with the consent of the Lord Advocate. Private prosecutions are rare in Scotland and have been used only in exceptional circumstances. [3] If the Lord Advocate agrees that such a prosecution should go ahead then it would generally be taken by the Lord Advocate or procurator fiscal rather than proceed by private prosecution.

Compensation is available to victims of domestic abuse living in the same household as the offender through the Criminal Injuries Compensation Authority. Although an application for compensation is stronger if there is corroboration, lack of corroboration is not fatal to its success.

Compensation may be awarded if:

• the injuries happened after 1 October 1979 (this date is still relevant as compensation can be claimed for childhood sexual abuse)

• the incident was reported to the police; this need not happen immediately after the incident

• the complainer co-operated with the police in their inquiries, whether or not this resulted in a prosecution

• in the case of adults, the complainer and the perpetrator stopped living together before the application was made and are unlikely to live together again.

There is a tariff scheme in operation for compensation claims. Each injury is categorised and a compensatory value assigned to it. To be eligible for the scheme an applicant must have a claim in excess of £1,000, for example a fractured tooth requiring treatment.

An application is made by completing a form obtained from the Criminal Injuries Compensation Authority, which then investigates. It will contact the police for a report and the applicant's doctor or any hospitals attended. The process can take around a year to complete and for an offer of compensation to be made. If an offer is not accepted, the applicant may have the right to appeal.