 Welcome to the Justice Committee's 21st meeting of 2017. Apologies have been received from Fulton MacGregor and Stuart Stevenson, and I welcome George Adam to the meeting. Following the terrible events in London at the weekend, the Presiding Officer has notified that there will be a minute silence at 11am today and is a mark of respect for those who died or have been affected by the attack. I will suspend at 1 minute to 11. After the minute silence, we will resume business where we left off, and I expect this to be a continuation of our first item of business to which we now come. It is our third evidence session of the Domestic Abuse Scotland Bill. I refer members to paper 1, which is a note by the clerk, paper 2, which is a private paper, and paper 3, which is a spice paper. I welcome Anne-Marie Hicks, national procurator fiscal for domestic abuse and head of victims and witnesses policy team with Crown Office and procurators fiscal service. Detective chief superintendent Leslie Bowell, QPM, who is Public Protection Specialist Crime Division and Police Scotland, and Calum Steele, who is the general secretary of the Scottish Police Federation. I thank the witnesses for providing your written submissions. That is always very helpful for the committee. We will go straight to questions. I invite questions from members. John Finnie. Thank you. Good morning, panel. It is a question for Mr Steele regarding your concerns about what would be anticipated for you in attendance at a scene. Could you maybe elaborate that for the record, please? I think that the first thing that has to be said from a SPS perspective is that we have absolutely no objections to the sentiments behind the bill, and I know that that has laid out in some length in our written submission. I think that, probably in much as there are differing views from various sides of the legal profession, whether it is the Crown Office and procurator fiscal service or those that are representing defence organisations, the police service and police officers are going to find themselves in that particular middle ground. Given that there is a fundamental difference from physical evidence to an interpretation of whether something might amount to a form of psychological abuse, that creates new difficulties for police officers. I am not saying that they are not insurmountable. I dare say that the service has already given some thought as to what the training implications for dealing with those circumstances might be. It is just that, at these very early stages, we do not know what that training might be and how it is that police officers would be expected to deal with the circumstances that are before them. Often there is reference made to the joint protocol between Police Scotland and the Crown Office procurator fiscal service, and I had to look at that in particular. I acknowledge that this is in relation to the issue of counter allegations. There is a whole list of factors that could be taken on board, and one of them is careful consideration given all the relevant factors, including officers' professional judgment. Is it not the case that you are not being asked to do anything different from the moment, and there will be dealing with the immediate situation and there will be subsequent inquiries that may have to be taken? That may be the case, but we have before us a series of draft proposals that move away from, like I said, the issue of physical evidence to particular degrees of interpretation as to what some kind of intent might be. Intent when there is a physical act behind it, where if I was, for example, to swing a punch and miss the intent because of the physical act before it is easier to draw an inference from, but intent in terms of some of the other activities such as the alleged withholding of money as a particular example or the constant belittling of A or B to use the terminology that is laid out in the legislation, where there is no direct evidence of that other than the allegation of the complainant is a potential difficulty for police officers. I understand that, and it is perhaps unlikely that if it is a course of behaviour, that is not necessarily going to be established instantly on attendance at the scene. How it differs from the situation, as I understand it at the moment, where police officers might attend a scene that would be a liaison with the Crown of Spolcarethor Fiscal Service, an inquiry done into previous background of the alleged perpetrator, and this has brought about some of the historic cases where a perpetrator has moved from household to household creating mayhem. It is not something that is immediately apparent on arrival at the locust, but it is something that is established by inquiry, by diligence and by police officers. Again, I accept that that might be the case. At the risk of going back to some of the comments that we made in the previous session that was looking at the role of the Crown of Spolcarethor Fiscal Service, the operational experience of police officers in some instances appeared to have been supported by other witnesses, particularly those who are working in the legal profession and, indeed, apparently some anonymous procurator Fiscal Service that came forward to provide evidence indicated that the professional judgment of those who were working in those spheres was not as available to the master joint protocol, I might have suggested. It is fundamentally a resource issue, because you previously mentioned training. As you well know, Mr Finnie, when it comes to policing, it is always a resource issue. In many ways, the events of the past number of weeks serve to reinforce that. Once we have an understanding of what the training is to be delivered to police officers and how that is expected to be worked through in practical application in the event that the bill eventually gets passed, then we will have a better understanding as to whether the capabilities of the police service to deliver the training properly, to enable police officers to respond effectively to the needs of victims, will be in place. I would be concerned if there was any suggestion. I know that that is not the background to coming forward, but an interpretation could be made that we cannot rely on officer's judgment on that. This is another string to the boat to deal with what is a very pernicious course of conduct, domestic abuse, and I am sure that your members will rise to the occasion. Where it to pass? As I am sure you will attest, your own experience shows that, when it comes to dealing with difficult situations, police officers provided that they have the capability and the training to do what is being asked of them are more than capable of delivering that. Police officers have lots of life skills upon which to draw. Occasionally, their ability to draw on those skills is somewhat curtailed because of an expectation that, if A happens, then B, C and D must follow. I am not saying that it should in all cases, but that does not provide an unfettered discretion for police officers to deal with the events that they find before them. Of course, there will always be requirements for undertaking subsequent or additional inquiries. Very rarely do you come across an incident where everything is packaged before you to such an extent that you do not have to go back and undertake further examination. Particularly in the cases of domestic abuse, where it is unlikely that the first occasion that the police are being called is the first occasion that something has happened, of course, because of the way in which the police service has developed over many years, and particularly the work of the domestic violence task force in undertaking retrospective examinations and seeking of witnesses. Of course, there is the capability to gather that additional evidence, but we need to see what the training is going to look like. We need to make sure that the service is going to properly invest in that, because we do not want to find ourselves what police officers find themselves ill-equipped and unprepared to deal with this new additional piece of legislation, which could ultimately find them in a really difficult situation when they come to court. If I could just ask a little bit more about how the legislation may impinge on the role of the police officers, in particular in your submission, you say that there is an expectation in fact that there are cases in which police officers could be dragged in as a reasonable person? Thank you, convener. The reasonable person test is not one that is unknown to police officers. In fact, it is one that is very common in a whole variety of different pieces of legislation, and that is both UK legislation and legislation that the Scottish Parliament has passed. The reasonable person or reasonable driver test, for example, is one that applies to careless driving. That notion of reasonableness is not something that is new. However, this is the important point. The reasonable assessment, in many instances, is drawn from an event or a series of activities that are actually physically witnessed or have a form of evidence or visual evidence that supports them. That is much more difficult to obtain, I submit, in cases in which there are forms of psychological abuse. Thank you, convener. I would like to focus on a couple of points and issues that were raised during the evidence session that we took last week, where we heard from the Faculty of Advocates in the Law Society of Scotland. They highlighted what they saw as potential problems in prosecuting the crimes with the proposed legislation. One of the examples that they raised would be a case where the victim is not a witness because they do not believe that they are a victim of a crime, and therefore they are not able to give evidence. Do you see any difficulties in prosecuting a case in that kind of scenario, where it is dependent more on third-party evidence rather than from the person experiencing that themselves? In most cases involving harm, whether it be a domestic abuse case or any other case, whether it be an assault on a member of the public, the complainer, the victim will be the primary evidence, and that is the case across the board. It is certainly the case in domestic abuse, but that does not mean that there will not be cases where you could have a case where the complainer was not a witness. If they were not, you would have to get sources of evidence from somewhere else, so that would be looking further afield to see where the other evidence could come from. It has someone else witnessed something that could be a friend or family member. It could be a child of their family. If it is something that has happened in public, it could be another member of the public or a neighbour. You have to look for other sources of evidence, so it is unusual, but it happens. We would have to apply the same test that we would currently, in terms of corroborating evidence in the case. Following on from that, another concern that was expressed was about the admission of hearsay evidence. What they proposed was the danger of asking non-expert witnesses to express opinion in court, where they are currently not allowed to do that at the moment. I suppose that I am thinking particularly of the coercive and controlling behaviour aspect of that. If you can see that behaviour and it is happening to somebody else, you can see the impact of that or the victim themselves, their behaviour changing, and you are then trying to express that in court. Again, without the victim themselves giving the evidence to that, I am exclusively to get your thoughts on that kind of scenario too. If you see any difficulties with that. I think that this is obviously introducing quite novel concepts in terms of looking at relevant effects. As Mr Steele said, we are more used to seeing looking at harm caused perhaps an assault or threatening abusive behaviour where there is perhaps something more concrete there. So this is novel, it is quite groundbreaking, but we will still have to gather evidence around these other behaviours. It is not the case that we would be looking for other witnesses to give some kind of expert or opinion evidence on someone's psychological state. What they would be giving evidence of would be behaviours that would lead that person to have the distress. You might have someone speaking to what they had witnessed, perhaps the perpetrator doing. They might also be speaking to how the victim was reacting in a particular situation or something else that they had witnessed. They are not giving expert opinion evidence, they are simply speaking to what they have seen or heard or observed in some other way themselves. I do not think that the position is any different from currently in terms of hearsay provisions. Another concern that we have heard last week was the broad definition of abusive behaviour. I suppose a fear that the proposed legislation might criminalise behaviour or capture behaviour that it was not intended to capture. Do you think that that is something that needs to be more tightly defined, or would you agree with the definition as it sits at the moment? I am supportive of the definition. I think that when dealing with domestic abuse, it has always been an area where people have said that you are straying into family life, is this not a danger? Even currently under the present law, that is sometimes said, are we not criminalising normal behaviours in a relationship? We are not currently and under this legislation as drafted. I do not think that it does. What it does is define abusive behaviour as either violent, threatening or intimidating or in terms of relevant effects, which include controlling, punishing, humiliating, degrading, frightening someone. Well, I have to say that that is not how I would define normal friction in a relationship, and I think that once you get to the boundaries of talking about degrading, humiliating, punishing treatment, then I think that is where the criminal law should be stepping in. That is not a normal friction. Perhaps someone will bring this up later, so we will move on. Ben Macpherson, touching on some of the points that were raised in answer to Mary Evans and Amory Hicks, I just wanted to pick up on some of the points from your written submissions. In the written submissions, it states that the proposed defence addresses a gap in existing law by recognising that domestic abuse may not only damage or violate a victim's physical integrity but may also undermine a victim's character, restricting a victim's autonomy and freedom and their ability to live their life in the manner that they choose. Can you expand on why a new specific offence is so important to cover that different area of behaviour? At the moment, we are limited to offences that would essentially attack the physical integrity of someone, so it might be an assault, it might be threatening and abusive behaviour, offences that should properly be criminalised, but we have a gap at the moment in terms of a lot of the coercive and controlling behaviour, which might be very degrading, it might be humiliating, it might involve a tremendous abuse of power and control where someone is controlled in their everyday life, no longer have freedom of action to go out to do what they would normally do and to make the normal choices that you and I would take for granted. I think that when those behaviours become perhaps threatening or abusive, we can use current legislation but, in many cases, we cannot. There is a gap that we know those behaviours take place. We hear directly from victims all the time about the behaviours that go on, which amount to abusive power and control, but we cannot actually take action in respect of those. There is a gap in respect of addressing that. The problem with that is that the law is then only dealing with it in a very episodic manner. We are looking at discrete incidents, isolated incidents of perhaps assault or threats, but we are not actually seeing the bigger picture and the on-going pattern of cumulative abuse that people are subjected to. That cannot be right. Thank you. In terms of addressing that gap, one of the key parts of this legislation will be the definitions within it and how that can be utilised by prosecutors and courts going forward. One of the concerns that was raised by other parties giving evidence was about the inclusion of recklessness at section 12B2. I just wondered if you could comment on your view as a prosecutor about the inclusion of recklessness and also its relationship with the aspect of mens rea in criminal law? Recklessness is not a new concept. We have this in a number of other areas. We have had a crime of culpable and reckless behaviour for years. We also have a taste of recklessness in the section 38, threatening and abusive behaviour offence, and also the section 39, stalking offence, which terms as where someone new or ought to have known. I think that it is a concept that prosecutors are familiar with and it can be very useful in cases, particularly where it is not always easy to establish intent. Intent in terms of the mens rea that we have to prove is usually something that we can infer from the actions of an accused, but particularly when you are dealing with perhaps more nuanced behaviour, intent is very easy to establish. Usually there is an assault or there are threats issued, but when you are dealing with a lot more nuanced behaviour, I think that the concept of recklessness is a valid one. It is important to note that this is not recklessness in the way that you and I might regard that in our ordinary lives as a kind of carelessness. This is a criminal recklessness. It is a criminal disregard where you almost disregard whatever the consequences might be. The courts are used to applying these tests as our prosecutors. I think that when we are dealing with a lot of the different types of nuanced behaviour that we are in terms of this, it will be useful to have that as we have seen with the stalking offence, which again brings in other types of behaviour that perhaps we are not traditionally criminal. I think that recklessness has been a really important concept there. For clarity, you are supportive of the inclusion of recklessness. Absolutely. I think that it would be difficult not to have it. Just one last point. In the written evidence that you provided, you speak about how the domestic abuse remains chronically under-reported in Scotland. There are a number of complex reasons for that. It is anticipated that the introduction of a bespoke offence will raise awareness and confidence in Scotland's criminal justice system to effectively respond to the victims of domestic abuse. How important do you emphasise that wider point of social change and that it is expected that this bill, if passed, could have a positive impact on the reporting of domestic abuse and encouraged some victims to come forward where previously they would not have? It is incredibly important. When you have sound laws and effective enforcement, people have confidence in law enforcement and they have confidence to come forward. There is also something about calling people's experience what it is, and we have seen that with the stalking offence. When stalking first came in, the first year that it came in, there were 67 people prosecuted. Five years later, there were nearly 800. There is something about people recognising behaviour and giving it a name for what it is. There are a lot of victims of domestic abuse who will say, I am not a victim of domestic abuse because he does not hit me. That is a common thing, and Women's Aid will tell you that. It is a really common thing. It is about people shining a light to what the experience is and saying to people that the law of the land recognises what they are subjected to and that that behaviour is wrong. It is unacceptable and that you can come forward. I think that we have had a number of experiences where new legislation can be a really positive driver in terms of encouraging people to report the harm that is done to them. I wonder if Leslie Bowley has anything to add? I suppose that I was hoping to respond to Calum's submission earlier on about police officers and how this is somewhat new. It is a new piece of legislation. It is not a new concept. We have reports of coercive control just now, many years previously. I can say that, since the inception of Police Scotland, there has been 1,893 high-tariff offenders investigated alone by the national domestic abuse task force. I am told that nearly all those cases involved coercive control. I suppose that the bit about officers may be finding it difficult to identify what psychological harm could be. Officers do a really good job at doing this already and have done it for many years. We are talking about domestic abuse just now. If we look at child protection, the threshold for child protection is at risk of significant harm or maybe at risk of significant harm. Officers are able to discuss and make judgments around harm and child protection already. If we even look back to the 1937 Children and Young Persons Act, which we have all dealt with from police officers and prosecutors, the definition of that includes the likelihood of some sort of psychological harm. Officers, although it might not be child protection, look for wellbeing concerns on a daily basis. Even within Scotland, for the last 10 years, we are looking at getting the right for every child, looking at the holistic assessments of a child and how there may be harm involved there. I think that that is something that police officers do on a day-to-day basis and are actually really well equipped to do that. Of course, Police Scotland has introduced a domestic abuse questionnaire that was introduced last year. That includes, on every domestic abuse incident, the victim will be asked a series of questions—there are 26 and there are some sub-categories to that—to try to establish more of the circumstances around that individual's life, more holistic circumstances. The perpetrator has ever hurt a pet or an animal? The last, if they have ever used weapons or objects, if there has ever been any financial harm to them, whether they are dependent on money or otherwise, whether there are mental health problems, have there been suicide attempts? All the risk factors that would provide the officer with greater knowledge to be able to make some assessment in terms of harm. As Mr Finnie suggested, we might not get it right on every single occasion, but that is why we have built in a series of checks and balances. For every domestic abuse case or every domestic abuse incident that is reported, as well as doing the questionnaire form, there is a domestic abuse concern form raised. If there is a child in the household, there is a child concern form raised as well to comply with GERFIC. What would happen then is that it is checked by their supervisory officer, so I suppose that we are talking about belt-based embraces. That is then submitted before the officer finishes for duty that day to the divisional—this happens in each of the 13 divisions—the divisional concern hub, who look at all the domestic abuse and child and adult concern forms that are submitted. They look at it holistically, so they will look at other concern forms that we might have to try to pick up a pattern or an escalation in terms of information. The belt-based embraces and stay-up trousers are going through three different assessments as to what are the implications for that victim. What can happen after that is that there could be a referral to the domestic abuse liaison officer. Obviously, there is going to be with the consent referrals to support and advocacy services, but there could be a referral to the domestic abuse liaison officer who may visit along with support services. Or what might happen is that the case might be referred through what is the multi-agency task and incoordinating meeting, which is looking at perpetrators, as Mr Finnie says, that bit about looking at what is happening now and looking backwards and gathering evidence from a range of individuals to see exactly the coercive behaviour involved. I know that this might be a new bit of legislation, because the difficulty is that, when we investigate at the moment, as Anne-Marie has very clearly said, we might have to charge for single incidents and single offences in terms of that holistic perspective on their abusive behaviour. For me, I do not think that it is anything new. I think that police officers are well-equipped and I absolutely agree with Callum that we have to do more and we will do more and we have plans in place to do more. However, the natural fact is that there is some commentary that has been made about too many hurdles. I think that, together with really good guidance and explanatory notes, the piece of legislation that we can overcome those hurdles has been helpful to put some context into the coercive behaviour and to look at those various pointers that can be looked at. Rona Cymru. Thank you, convener. Just to expand a wee bit, I was going to ask you on the impact of domestic abuse on children. In the bill, as a statutory aggravator, we have received quite a few written submissions from various organisations saying that, possibly, the scope of that is not wide enough in relation to children. I note that COPs are very supportive of the bill generally and also of the aggravator. However, in a case of where, say, a child is used as a pawn or may be subjected to hearing the abuse from a separate room, should it be more specific in that case to protect the child? The aggravations are a really positive step in increasing the visibility of children in the process. It is an area that we have considered along with the police quite carefully in terms of the launch of our joint protocol just less than two months ago. We consulted as part of that process with the children's stakeholders. It was one of the recurring feedback that has come to us both directly from children and from those who represent them around the need for children to be visible and more visible within the process. We introduced some provisions there around making sure that children are spoken to at the time of incidents to find out what happened from them and make sure that other provisions in terms of special measures obtaining their views, joint investigative interviewing and other provisions are in place. I think that it is a really positive move that we have on aggravation. I think that having something that allows a sentencer to potentially enhance a sentence. At the moment, if an assault were to occur in front of a child, I would expect a lot of occasions a sheriff to comment on that and perhaps take that into account. However, there is no formal mechanism for doing that, and there is no formal mechanism for increasing sentence. I think that it is really important that we do that. I think that the terms of where the aggravation applies as well are quite wide-ranging. I think that it would capture most of the situations both in terms of directing behaviour at a child, which could be any manner of behaviour in terms of the abuse also making use of children, because we hear that quite a lot where they are used to perpetrate abuse on the victim, but also having the child where they either see or hear or otherwise present during the incident. Having those factors could truly aggravate a sentence and lead a sentencer to say that the accused has acted in some way in the knowledge that children are affected. There is a degree of deliberateness in their conduct. We have had quite a lot of discussions with the children's stakeholders over the development of the bill, and I fully accept that they would like it to go further and have an offensive of domestic abuse involving a child. I think that they have very compelling points to make in terms of the harm, and I think that in no way would I say that everything here captures all the harm that is ever done to children in a domestic abuse situation. The harm can be wide-ranging and long-lasting and infect them in so many ways, but that is in terms of trying to reflect upon and accuse conduct and what you could then truly enhance a sentence for. I also think that when you have domestic abuse as being partners or ex-partners, it is problematic to then have an offensive domestic abuse involving a child, and I think that there are difficulties around that. I am reassured, I have to say, by the moves that are made more widely about Leslie referred to the 1937 act, the section 12 offence, and I know that there have been concerns expressing a number of quarters around that, so I am really pleased that there is going to be consultation on that and wider in terms of how we actually fully capture other harms that are done to children, and I think that there could be further developments down the line, but in terms of what we have now, I think that that is a really very positive step forward. Thank you. Leslie, do you have anything to say? No, I suppose that I have not been the lead for transportation for Police Scotland for the past three years. I am absolutely acutely aware of the devastating impact that domestic abuse can have on children, and if I am being honest, when I first took over from domestic abuse just a few weeks ago, my initial approach or my initial thoughts were that there should be a separate offence for when a perpetrator uses a child as a proxy. I quite agree in terms of the aggravator when a child is within the household, but when his intention is to use the child to further the coercive control of his partner or ex-partner, I initially thought that that could be another section. I understand that the reason for the rationale for the bill is to capture the nature and dynamics of that relationship or ex-relationship. I am fully aware, because I have been lobbying it for a change for section 12, I am absolutely aware that the Scottish Government is looking at it in depth. At some time in the future, it should be a separate offence? Absolutely. It definitely should be a separate offence. Now, whether it is in this bill or whether it is in the new legislation that has been designed specifically for children, I probably think that on balance it is probably best to wait until that other bill is developed a bit more, because I know that it is going to be quite complex, quite tricky in terms of wording. I am absolutely happy that the aggravation is in place, it should be in place and we strongly support that. Do you have a view on it? Similar to that of Leslie, there are many ways to need for the aggravation for when children are utilised us, whether they are pawns or otherwise, in abusive relationships. It is more than right and proper that that particular kind of aggravating behaviour is recognised and made known to the courts, because, of course, whilst adults can be more robust, regardless of the circumstance in which they find themselves, the effects on children at the very outset of their lives can be much longer lived than anyone else. Can I just ask your views on the inclusion of other types of family abuse? We have had some suggestion that where an adult child abuses a parent, that should be included. Do you share that view or do you think that other legislation can pick up that type of abuse? I do not share that view. I know that in England and Wales they have widened their definition of domestic abuse to include familial abuse, whether that is between siblings or abuse of the elderly or abuse by parents of children. Perhaps they had their good reasons for that. I was not privy to the discussion, but I am convinced that we should maintain our definition and the scope of the bill. I think that there are a number of reasons for that. I think that we have a national definition of domestic abuse, which is widely shared and worked towards by a number of the agencies. It is based on the gendered approach and the acknowledgement of the inequalities and violence against women. I think that when we have a situation where still 80 per cent of our domestic instance involve abusive women by men, I would be very reluctant for us to move away from that definition, which refers to partners and ex-partners. The Crown Office and Fiscal Service definition, which we share with the police and the joint protocol, has been in place since 2004. I think that before that is again partners and ex-partners. We also see that mirrored in legislation, both criminal and civil, the Domestic Abuse Scotland Act 2011, and the Abuse of Behavior Act 2011 from last year. It would be difficult to move away from it. I do not think that it would be the right thing to do in terms of the steps that have been taken over a number of years to increase public awareness of domestic abuse and what it is. It has to be acknowledged that there are very unique dynamics in domestic abuse, and there is a large research and evidence based supporting that. I think that that is not to say that there are other types of abuse towards individuals who can have some of the similar characteristics and can also be heinous, and it is not to say that these things are any less serious. I think that there is a danger in calling everything domestic abuse and then you dilute it and you actually lose the focus of what you are doing, and suddenly it becomes less important and people do not understand actually what it is that we are dealing with. It is not a case that we would say that if there was harm in another situation that you would not address that, but I think that the focus on domestic abuse should firmly remain on partners and ex-partners. That has been very helpful, Leslie. I cannot add anything more that Anne Reeson already said. We absolutely support the position that it is at the moment that it is domestic abuse between partners and ex-partners. Calum, do you have a view? Similarly, I do not think that that in any way diminishes the fact that where adult children abuse or whatever way, shape or form their parents, that in itself is a serious issue, but I think that there has got to be a complete distinction between that and domestic abuse, as we currently know it. Calum, can I just ask about something that is in your written submission? To the extent that it gave me food for thought, when you talk about the apparent policy approach to domestic abuse as one geared exclusively towards punishment, and if you think of not all other crime, but certainly a great extent of other crime, we talk about rehabilitation, reforming, changing behaviours, the Government has talked a lot about early interventions and working with offenders. Do you think that there is more of a need specifically in relation to domestic abuse as this bill progresses, that we think about how we deal with people that are committed of the crime of domestic abuse and how we change their behaviour? I do not think that any of us will want will be repeat offenders in domestic abuse and perhaps an escalation in their behaviour. The reason that we made that observation comment was not to attract from the issues that the bill is trying to address. Indeed, I cannot think of any legislation that in some way, shape or form, does not have punishment at its core, whether that is imprisonment, whether it is fine or whatever. It was more a general observation that, as a nation, we seem to be dealing with this issue almost exclusively through the punishment arena rather than what we do with other activities, even driver behaviour. We try and introduce some form of rehabilitation or some form of awareness to the behaviours that are wrong. That is a hugely distinct and separate issue from the actual legislation that was before us. As a society, no matter what the behaviour is, no matter how bad it is, we cannot, to my mind, get to a situation in which we think that the only way of dealing with it is always going to be through punishment. It is fundamentally at odds with the message that we give in a whole variety of other different areas. I do not agree that our approach is about punishment. Certainly from the Crown's perspective, I think that the driving force is about the protection of the public and prevention of future harm. I think that that links in directly to the national strategy, which actually recognises and equally saves the importance of having appropriate laws and robust and effective enforcement and prosecution. I think that those things are about preventing future harm to the public. I think that this will be another tool in the armory in order to do that. It is not really about punishing offenders, albeit that, as Calum said, there is a punishment part. That is not the driver for it. In 2016-17, there were just under 58,500 domestic abuse incidents recorded by Police Scotland, and of those, 49 per cent resulted in one or more crimes being recorded. We know from the crime and justice survey that just less than 20 per cent of domestic abuse cases are reported to the police, and we know from research from support agencies the time that it takes for somebody to disclose to a person about domestic abuse. It is probably correct in terms of what Calum said about the legislation and enforcement. What we need in Scotland is a long-term national prevention campaign around domestic abuse, which highlights to potential victims, potential perpetrators, bystanders, challenges, social norms and, of course, the legislation enforcement. That is exactly what Equally Safe is working towards and trying to achieve in that term the national prevention campaign around domestic abuse. There is enough work on-going in Scotland, and enforcement and legislation is one important part, but one part of that whole prevention campaign. In the past, there have been a number of different public broadcasts and awareness-raising campaigns around the issue of domestic violence. Do you think that, as legislation progresses, that should be a longer-term strategy? I think that it is a bit about whether it is a 10-year strategy or around exactly how we can ensure that all the different component parts, how bystanders—I think that bystanders are really important in addition to the social norms—and how that information is provided consistently, not just sporadically. The way that I see it is like a golden thread and people will learn through osmosis. The strategy has to be well thought out that it covers all the different component parts of domestic abuse. If we are aiming for societal change, societal change takes a long time, so we need a long-term strategy. Mr Steele, you said back in November to follow up on John Finnie's point that couples could no longer have a row without one of them leaving in handcuffs if police are called. Do you stand by that statement and do you think that that approach would continue under the proposed legislation that we are discussing today? Yes, thank you again to yourself, convener, and I think that for computer accuracy it almost got into the stage where that is the case. In terms of where we are, I do not think that it is as extremist as was once the case. I think that it is also more than right to identify that those concerns were not just raised by me on behalf of police officers, they were raised by defence agents and others. I do not think that that exists to the same extent that, through the approaches to the awareness of domestic violence, has somewhat come with a ripple through Scotland. The former chief constable for Stephen House was very strong in the focus and emphasis that he put on it in the former Strathclyde police, and even the rigor that was applied in Police Scotland took a while to catch up to a fairly universal standard. I think that, although some officers in some areas were working towards getting towards what had been, by then, a long-standing, a long-developed understanding as to how the process for dealing with domestic abuse had matured over the time of Stephen House and, in particular, in Strathclyde police, that they had eventually caught up with that across the rest of Scotland. I still think that it is a danger that, on occasions, there is a potential that, as I think what some have described us, ordinary domestic friction can result in some unnecessary intervention by the police. Ultimately, it is always going to be a difficult situation. I know and have direct experience—sorry, I have second hand, third hand experience—from even from my members who articulate to me a series of circumstances and events that, when you have an understanding of the background to what was there, the fact that someone was arrested and left the family home in handcuffs is difficult to understand. For example, I am aware of a situation in which a partner was having mental difficulties. The other partner phoned the police because they were aware that that was likely to result in some kind of disorder in the house that evening. Sure enough, that happened and the police came along and the partner with the mental difficulties ended up leaving in the proverbial handcuffs. Subsequently, that partner appeared from custody and was given bail conditions that he could not return home, which meant that they had to find temporary accommodation. The temporary accommodation would not accommodate a pet. The pet was the only source of comfort that was available to the individual with those difficulties. Although there will always be those kinds—indeed, the case ultimately, as I understand it—did not proceed, there will always be individual examples that are horrific. I do not think that in any way suggests that the Scottish Police Federation—I do not think that it should suggest that the Scottish Police Federation is anything other than supportive of a very strong and robust approach to domestic violence. What is important in all of this is that, on the occasions where, with the best of intentions, we get it wrong, or are seen to be getting it wrong, is that the service supports the officers for making those decisions with the best of intentions, and that we are able to say sorry if we have to. Can I ask Leslie Bowle from Police Scotland. Do you recognise what Callum Steele is describing there? Do Police Scotland accept that, on occasions, the scenarios that he has outlined are happening in Scotland and would potentially continue to happen with the legislation? I would not want to comment on the specific incident that Callum Steele has mentioned, because I have no knowledge of it. Is there an understanding from Police Scotland—we have the Federation saying that this is what their officers are saying—would you accept that on behalf of Police Scotland that that is happening? Police Scotland has never provided anything other than guidance to officers around investigating to obtain a sufficiency of evidence. When there is a sufficiency of evidence, then the individual might be arrested and reported to the procreator fiscal. I appreciate that there might have been misunderstandings at the beginning of Police Scotland. The Domestic Abuse Task Force, from the Rest of Abuse Coordination Unit, has been doing significant work to provide guidance and understanding. In each division, within Police Scotland, there is a domestic abuse forum where local policing officers and from divisions meet to discuss difficulties, misunderstandings, how policy and practice and standard operating procedures can be amended and adapted because of particular circumstances or difficulties. That has been on-going. I would have to say in the area of policing that there is probably more guidance and more opportunity for liaison support interaction around domestic abuse than there is probably in any other area of policing. Officers will make those decisions when they are faced with a situation, whether to arrest or not. They should only be making those decisions if there is a sufficiency of evidence to do so. I move on to Annemarie Hicks. I had a similar quote highlighted to the one that Ben Macpherson asked you. It is about, as you say, in your evidence. It is anticipated that the introduction of a bespoke offence will raise awareness and confidence in Scotland's criminal justice system to effectively respond to the victims of domestic abuse. In your answer, you said that we need to have sound laws and effective enforcement. Does that indicate that, at the moment, you do not believe that we have sound laws and effective enforcement? That leads me on to the quote that we had from Leslie Bowle, who said that I do not think that this is anything new. I am struggling to understand how we have the Crown Office saying that this new legislation will encourage people to report domestic violence and coercive behaviour, etc. Yet Police Scotland is saying that this is absolutely nothing new. The first thing that I would say is that I would not read into what I said to Mr Macpherson to put the slant on it that you have. I am not saying under any circumstances that we do not have sound laws at the moment that the laws that we have in place and the enforcement that we have in place is robust and effective. What we are talking about is legislating for something new, something additional. It is not saying that we do not have sound laws, but what we are saying is that we recognise that there are other harms that are perhaps not captured, so there is a need to legislate. It is crazy that Police Scotland is saying that this is not new. We have legislation at the moment. You could charge someone in bits, but the legislation is there to charge someone with this behaviour. Therefore, you are saying that this will encourage people because of this new legislation. Police Scotland is saying that it is not new. We have already got it. No, I think that what Leslie Bowle was saying is that this is not new in the sense that we have never dealt with the concept, of course, of control, that we have never heard about controlling behaviour, that somehow this would be a completely new departure. It is not ground zero. We have all seen this behaviour coming to us in the statements that we get in many of the cases. We will hear about controlling behaviour. I used to run the domestic abuse unit in Glasgow. I set it up and ran it for a number of years. Before we even knew around the research and the typologies where we would talk about coercive control or intimate terrorism, we would actively talk about it as a power and control domestic, or it is a bad time in a relationship domestic. We were already seeing those cases coming through. We do understand that. As Leslie Bowle had set out, the police are now doing a risk assessment where that evidence of control is coming in. To the extent that it will not be a situation where people say, oh my goodness, this is a completely new concept that I have never heard about, it will be a new law that will help us to enforce that and to take action, but it is not a new concept. It is something that we see day in daily in terms of the distress that victims are in. Leslie Bowle set out in quite a lot of detail the context. Was there any abuse to the animal? Those things that were perhaps pointers might indicate it, but it was not covered in the laws of coercive behaviour. Absolutely. If you have misinterpreted what I was trying to explain, my point was that this is not a new concept, it is not new behaviour that we have never tried to identify before. It is not new for police officers to be or to try to make some assessment on the harm that could be caused. It is a new piece of legislation. I absolutely agree with Anne-Marie in terms of, is there a gap at the moment in legislation? Yes, there is, because quite a lot of the behaviour and quite horrific behaviour has to be suggested as a breach of the peace, if best. My point was really in relation to Callum's position that this is going to be new for police officers. My position is that we understand coercive control, and police officers have been able to capture that type of evidence during their investigations for a period of time. Finally, because the quote from the Crown Office submission finishes, it is expected that the new legislation will have a positive impact on reporting of domestic abuse and encourage some victims to come forward where they previously would not have. Everyone in this Parliament is very supportive of this legislation going forward, but is there a risk if someone genuinely believes what others would rightly equate to coercive behaviour of being domestic abuse? If they are currently living through that just now and they do not themselves believe that to be domestic abuse now, their mindset will not necessarily change just because we pass a bill to that effect here in the Scottish Parliament. How do we address that concern that an individual living through this—unacceptable though it is to those of us in this Parliament and across Scotland—if an individual just does not believe that coercive behaviour is domestic abuse, will the legislation change it for those people? I think that it changes it in a number of ways. I think that you are absolutely right that some victims do not recognise that. It is a really common syndrome with domestic abuse that people can minimise behaviour. They can blame themselves. They might not even recognise that they are a victim of abuse. One of the key things about this is that it is a multi-agency response. There is a multi-agency response in relation to domestic abuse. If the police receive a case, they can offer the victim a referral to a support and advocacy service where there one exists or to victim support for any victim of crime or to a women's aid centre. When you have a new law like this where not just victims themselves and members of the public, but those who work directly with victims of domestic abuse then understand that that behaviour is criminalised, that also has an effect in terms of the people that they are working with and supporting and able to encourage them to go to the police where, at the moment, there might be no typically criminal behaviour that they would encourage them to report. I think that it can improve in that way. I think that the point that I made earlier on the stalking legislation is important because I remember when the stalking legislation came in and there were similar arguments, you know that this is very different. We are criminalising non-criminal behaviour. We are maybe interfering into personal life too much. People are not going to come forward. We have seen about a 12 times increase in the number of people prosecuted. I think that there is a kind of issue where, if you build it, they will come. Once you have a law, it is not going to change overnight, but once you have that in place, once people have confidence that there is something in place that says that behaviour that you are subjected to is against the law, then people will come forward, they will be encouraged to come forward. When they do, police officers who deal with them will understand what it is and can call it by its name and can investigate that and report it thoroughly for prosecution. If I could return very briefly to the issue of the robust prosecution of domestic abuse, which everyone is fully supportive of, and then some of their anxieties about the overrigid interpretation of the law, it was raised in the Crown and Procurator Visco Service Inquiry, which all members are focused on especially today as we are debating that this afternoon. At that time, the Lord Advocate said that he would look into that. I am conscious that there has been a fourth protocol on the joint protocol between police and the COPFS. I wonder if that has helped to make sure that it is robust as opposed to overrigidly being interpreted? I have to say that I do not think that it was overrigidly interpreted. I appreciate that there are perhaps comments and perceptions at times, but we operate to presumptions for prosecution. I think that there are very good reasons for that. Historically, domestic abuse has not been dealt with well in the past and it was overlooked as just a domestic. So I think that there are really positive reasons for that and because of the harm that it causes to people that we do have robust presumptions in place for prosecution, but they are presumptions. Since I have been in place over the past almost four years, a big priority for me has been training. We have introduced a considerable amount of new training for our staff, including a new accredited training programme for domestic abuse. One of the big focuses on that has been around the dynamics of domestic abuse, around the circumstances where people might properly rebut the presumption to prosecute. It is about looking at the bigger picture and seeing the context, so that has been a focus for us. In terms of the launch of the joint protocol, I think that that has been a really positive point on that after the one-minute silence, because I am going to suspend it very briefly to allow everyone to stand in preparation for that now. The joint protocol was launched at the end of March and it is the revised fourth edition, which we spent a considerable amount of time over a number of months consulting, not just between the Crown and the Police and our own internal staff, but also all the key victims, stakeholders and all the organisations. We received incredible feedback from them, which really helped to shape it. I have to say also the comments that came out through the inquiry into the Crown Office were ones that we took account of as well in terms of looking at our approach and making sure that it was effective. We have enhanced it in a number of ways. It makes absolutely clear around the requirement for sufficiency of evidence and it sets out very clearly what that means and that cases should not be reported to the Procurator Fiscal without sufficient evidence. It also sets out clearly what officers are expected to report when reporting a case both evidentially and crucially in terms of the background information, because we have recognised over a number of years that, if you do not have the full picture, you cannot make appropriate decisions. We are asking for information about the risk assessment that Leslie has spoken about, about previous history and dynamics of the relationship, any previous incidents involving the parties around their children, around vulnerabilities. There is a lot of enhanced information there, which is also in a new SPR reporting template that we have introduced with the police. I think that there has been a lot of improvements there, which I think will really enhance the way in which we deal with those cases. Does that give you more comfort? As with all things, convener, when policies are reviewed and revised, they invariably result in improvements. We are on the fourth protocol just now. I suspect that it is not going to be the last because every day is a school day in this job and when we find things that we can do better, although it does not necessarily happen immediately, I am fairly confident that eventually we get there and we try to improve the things that we can. That is quite encouraging. I do not know whether you want to say anything, Leslie. In terms of the protocol, another step forward. It is part of continuous improvement, and we may need another protocol in the future, but we are absolutely committed to making sure that domestic abuse has been a priority in Police Scotland and it continues to be a priority in Police Scotland in our response to victims and to making sure that there are reports that are submitted to Crown Office Procurator Fiscal that are the best quality with the best background information so that everybody can make the best decisions. Given how novel the legislation is and the concerns around the broad definition, do you think that the legislation achieves the right balance in establishing legal certainty? I think that it does. I think that the relevant effects have been quite well defined. There is not a catch-all in a sense that you would have in the stocking offence. There is the first part of the definition of abusive behaviours about violent, threatening and intimidating behaviour, which would generally be criminal at the moment. In terms of the relevant effects, I think that they are based on consultation with key stakeholders and experts in domestic abuse, and I think that they really capture the essence of what victims talk about their lived experience of abuse. In terms of being made to be subordinate, being controlled, monitored, isolated and also the deprivation of freedom and punishing and humiliating treatment. In terms of the cases that we see and the circumstances that I have heard, I think that that covers what we would be looking for in terms of trying to prosecute those offences. Do you think that there should be a level of seriousness attached to that? I think that all those cases will, probably, by their nature have a level of seriousness. I think that what we are talking about in this offence is not just single incidents, it is a course of behaviour where there will be at least two incidences. I think that the reality is that there are likely to be many more than two instances, but we have to have at least two corroborated within the charge. But the reality is that people will probably be able to speak about a number of different behaviours. I do think that in terms of a threshold, I do not think that you can put on an artificial threshold in terms of severity, because it is very hard to judge that. That is not about impact. I think that that is really important in terms of the offence. It is about the perpetrator's behaviour, whether or not that actually has an impact on the victim. I think that that is in part what concerns me when we start to look at recklessness. If there is no qualification of the effect, then it can be quite difficult to look at that, because I think that that would change in different cases and in different circumstances. I think that there are obviously a number of individuals who are part of relationships where behaviour perhaps is not what most people would consider to be normal and can be quite unpleasant, but it does not quite get to the level at which it would be criminal. It can be a case possibly. I am thinking of where both parties are involved in some of those behaviours. The relationship stops and starts at different points and there are different episodes throughout it. What might appear reckless when a police officer takes a first look at it might not have any effect on either of the two individuals? I do not think that it should have a requirement for impact, because I think that you go back to the situation where what about someone who does not recognise the impact or you could have people where they are impacted but there is no adverse outward sign of it. If you are talking about a physical assault where there is a physical injury, it is easy to demonstrate that, but a lot of those will be internal harms. You could have a situation where it is such a hidden crime that there will be people, including very high-performing people, perhaps go about their day-to-day activities. People do not know that they are a victim of domestic abuse behind closed doors. Their children are out to school on time, children are doing well at school, everything seems fine. They may be high achievers in their own work life and nobody would know what was going on. I do not think that it should be about the visible impact on someone, but I think that there are a number of safeguards in the bill. First and foremost, it has to be that abusive behaviour is defined. I do not think that, as I said earlier, normal friction is covered by this, unless we class normal friction as behaviour, which is designed to humiliate, frighten, degrade and punish. I do not think that that covers normal friction. I think that there are a number of other safeguards as well. It has to be a corroborated course of conduct. There also has to be the objective test, where it is considered likely to cause harm. There then has to be the intention of recklessness, so there are any number of steps there in safeguards that are in place in the offence. Okay, thank you for that. About the threshold, psychological harm, one of the witnesses last week said, fear and alarm fine, but distress he thought was too lower bar and he suggested it be serious distress. Following on from what Oliver Mundell was saying, you may have an argument with someone who may call you names, the person who may respond, calling the other person names, you could describe them as being distressed, but it might just be a normal kind of argument, but serious distress is a much higher bar and perhaps a more reliable test? I do not even think that those kinds of cases would get over the first threshold, which is that they would not be defined as abusive behaviour, so they would not even get to that stage. Again, you are not talking about one-off instances. There has to be a course of behaviour, and I think that the objective test of likelihood of causing harm. The courts are used to looking at objective tests, there is an objective test in breach of the peace, there is also an objective test in section 38, where they look at a reasonable person test about likelihood of harm, so those are not new concepts that the prosecutors or the courts are unfamiliar with. I do not think that having some kind of qualification of it has to be severe distress would add to that. I think that it could attract and could reduce behaviours that we would want to cover within that. I do think that distress gives courts the flexibility to say, is there a likelihood of harm in all its context here, and is there an intention rightless to cause harm? I think that there are sufficient safeguards there. We also have a defence of reasonableness in place as well, and sitting behind all that, obviously, you have prosecutors applying a public interest test, so all of that would safeguard, in my view, from criminalising normal friction. The view of the other panel? Yes, absolutely. Legislation never always gets it right. If it did, then we would not have courts of appeal on high courts. I repeat what I said at the start. The intention behind the legislation or the bill that was published is one that most sensible people would find to be fully welcome and wholly supportive of. Listening to the evidence from Crown Office and Procurator Fiscal Service, those bars are not easily overcome. It is not just as if they are written on there for the sake of ticking a box, I would hope. That comment leads nicely into what I was going to ask next. Given casting the net wide and leaving as much discretion for both officers investigating in courts further down the line, do you think that there is a risk that there will be a lot of people who have experienced those types of behaviour but do not have the evidence and that that has the potential to undermine the effectiveness of the legislation? If we are not meeting some of the tests, we will be making it very clear that that type of behaviour is illegal but it does not overcome any of the problems around evidencing it and that people might feel disheartened or feel that it is not worthwhile pursuing their case. I do not think that it is any different to where we are at the moment. If people come forward, we have to operate according to the laws of the country and we have to have sufficient evidence. There will be cases at the moment where the police are unable to report or the fiscal is unable to take proceedings in because there is insufficient evidence and that can be very difficult, particularly where you are absolutely convinced in the credibility of the allegation. That is something that we already have to deal with and have to manage people's expectations and also explain carefully why we have been unable to take action. I think that people will at times be disappointed but I would hope that when by coming forward the police have links in place with support agencies to signpost them to refer them on and I would hope that I sometimes talk about prosecution and police enforcement as an opportunity for an intervention. It is not always just about the case in court, it is the opportunities for the kind of wraparound care that goes around that, the referral to appropriate support. Even if a case was unable to proceed, I would hope that people would feel more supported because they would be referred to appropriate agencies and there would be more partnership working around that. I absolutely agree with what I am saying. There are challenges and certain other crimes and offences are difficult and challenging to investigate, rape etc for one, probably because of corroboration. We do not say that because certain crime types are difficult that we would decriminalise them. We undertake robust investigations. We ensure that the victims are signposted, as Amri said, to support services, whether it is a statutory agency through health and social care or third sector organisations for advocacy and support. If the investigation does not provide a sufficency of evidence, that is only right that we sit down with victims and we explain why there was not a sufficency of evidence. Although it might be disappointing, I think that it is far better that we do that than we have a system in which we cannot report, investigate and prosecute individuals for what is described as quite horrific acts against their partner or ex-partner. There might be challenges in certain occasions, but that should not be the reason why the bill should not be supported. On that, from your experience, do you think that there are sufficient resources in place to take on that additional workload that we have seen through our report? Where previous changes have been made, a significant number of additional people came forward to use certain services. Do you think that there is capacity for that at present? As I have said, Police Scotland has domestic abuses a priority and will continue to have domestic abuses a priority. From our consultation in 2026, it highlighted that issues about our response to adversity and situational vulnerability are something that Police Scotland is looking closely at as to where resources are wired in the future. That would be part of the discussions and in actual fact what happens when the bill is enacted as to how we via resources and how we make sure that there are sufficient resources to meet the needs of victims coming forward for this specific crime. I would hope in time that with a long-term prevention strategy and with the various bits of legislation back last year, hopefully this new piece of legislation, that there might be some form of deterrent in terms of individuals enacting in such a way. Do you think that it would be fair to expect a significant increase in people coming forward and that there would need to be some dedicated additional resource put into the area? I would hope that more people will come forward. We would welcome more people to come forward. We would encourage more people to come forward. In terms of resource, there is no doubt that within policing that the area of domestic abuse is probably the one that gets the greatest form of internal attention. It is also the one that understandably has one of the greatest draws on officer time because of the type of enquiries that they are dealing with and the type of processes and assessments that are accompanied with reports of domestic abuse and, as such, they are resource intensive. That is not a criticism, it is just a reality. If we are getting into a situation where we are putting in place processes to encourage more victims to come forward, the pressure on those resources is going to only become greater. One of the important issues when it comes to policing is understanding the holistic nature of what policing is about. It is not just about attending to single incidents, asking when they come in. There are many more complexities that come up from time to time. This week alone, we have elections. We have a football match, a particularly difficult football match. We have heightened awareness because of the current terrorist threat. We have expectations from our communities that we provide reassurance patrols. We have other crimes and offences. Every time something is added to the statute book, it should create additional pressure on the service in terms of resource and demand. Ultimately, I say this time and again, it is this place with its hand on the checkbook when it comes to the allocation of financing to the police service that determines how much of a priority it wishes to make it. Simply handing that responsibility back to the service and saying that you decide and you allocate accordingly is somewhat washing off hands. In his perspective, we are absolutely committed to the legislation. It was the former solicitor general, Leslie Thomson, who first called for this at our conference three years ago. We are absolutely committed to the benefit that it introduces. We acknowledge that it will be challenging and we expect that there will be increased business and complexity in cases. I am unable to be definitive at the moment because our budgets are not known after this current year. The Lord Advocate has made it very clear that we will keep this under review. If there is a need to go back to the Scottish Government to ask for further money in terms of dealing with this, we would do that, as with other operational matters. Liam was followed by John George and then Mary, and then we will be looking to be winding up. I start by reassuring Calum Steele that the Paris cup tie between Bursey and Sandy this Saturday should not be too difficult to police. However, I cover some of the ground that Oliver Mundell has just touched on in relation to the issue of definitions and thresholds. I think that a number of colleagues have alluded to the testimony that we took last week from Andrew Tekel, but let me quote him directly. He himself expressed some distress at us getting his name repeatedly wrong, but he went on to say, to prosecute an individual for abusive behaviour under the proposed legislation. The prosecutor need only show that the accused is engaged in monitoring or controlling behaviour on more than one occasion, which was likely to cause distress whether or not any distress actually arose. While monitoring behaviour may give rise to substantial harm, even relatively minor episodes in our relationship clearly have the potential to give rise to distress, to categorise this behaviour as criminally abusive risks being dramatically excessive. Do you think that Andrew Tekel is wrong to have those concerns and what reassurance could you offer him based on what he said to the committee last week? Obviously, if he is looking at the legislation, he is taking a particular view. I suppose that my view is formed not just by looking at that, but also my understanding of how we actually prosecute those cases. As I say, I do not think very minor instances would even, in what we might class as normal friction, meet the definition at the very first hurdle of what abusive behaviour is, but even beyond that, I think that you would have to then see a course of conduct. You would have to have that corroborated. You would then have to have the objective taste of likelihood of harm, and then, on top of that, the men's rear. Even after all that, you have the prosecutor applying the public interest. There is no public interest in prosecuting non-abusive behaviour. You have talked about not just the actual harm or the risk of harm, which I think was able to point to as very similar to the issue around child protection, but even instances where we are not talking about harm, we are talking about distress. I think that that is the thing that, certainly for myself and other committee members, seems potentially—I think that you have described situations where I do not think that anybody would have any difficulty with those being prosecuted with the full force, but areas where distress has not necessarily been acknowledged or yet caused seems intuitively to set a bar too low given the priority that is attached to cracking down on domestic abuse and the fact that we are seeing this latest legislation being brought forward to plug a gap. I do not think that it does set it too low. I think that we have seen examples in case law, for instance, around domestic abuse where they talk about distress. It is not something that is mere annoyance or upset. It would tend to be something more than that. I think that the danger if you have a focus that is all about impact—for instance, if you had to have the victim showing a particular impact—is that you will almost go back to where we were a number of years ago, where it is not a domestic unless there is a visible sign. I think that we have moved away from that. I think that we are in a more nuanced territory here. I think that we have to say that there is behaviour that we are saying would be wrong, which we recognise as a likelihood of harm, which includes distress. It could also include anxiety. It could include other aspects, but the legislation is just saying that psychological harm can include those things. It is not saying that it would be a very low level. A court would have to determine whether there is a likelihood of harm in a broad sense. To the point that you were responding to in Douglas Ross earlier about the anticipated effect that introducing the legislation may have in encouraging others to have the confidence to come forward, where there may be a very common understanding of what serious harm is, the understanding of what distress and anxiety is may not be a low bar in a legal sense in the way that prosecutors may take that forward, but in common parlance it could be quite a low bar. People's expectations of what they may be able to bring forward by way of a complaint is not necessarily going to have the effect that they would expect. I do not think so genuinely, because if you are talking about psychological harm, I think that people would be looking at that as something more than mere upset over a situation. I go back to the fact that you would have to meet the test of what is abusive behaviour, and it would have to be over a course of conduct. We are not just talking about trivial incidents, we are not talking about one of instances here, we are talking about abusive behaviour. The courts are used to applying an objective test of likelihood of harm, and the section 38, threatening an abusive behaviour test, also breaches of the peace, but 38 is probably the most commonly used domestic abuse offence. Courts are applying that day and daily, have no difficulty with applying an objective test around likelihood of harm, and I think that we will continue to be able to do that. We will, as one of the comments said before, continue to learn through the interpretation of case law in terms of how the court interpreted that, but I think that the danger is, if you make it too restrictive and if you say that there has to be some kind of severity of harm, what does that actually mean? Do people have an understanding of what severe distress is as opposed to distress? It feels quite subjective. I think that those matters are properly determined by the court, having regard to the full facts and circumstances. Just turning to the issue of the reasonable defence, I think that you alluded to it earlier, there has been some suggestion that if one needs to demonstrate intent or recklessness in a sense, why is there any need for a reasonableness defence, in that that in a sense would countermand intent or recklessness in terms of behaviour? Can you explain why it is that we have those two? I do not know whether they are balancing or mutually supportive, but in a sense, again intuitively, you would have thought that if one needs to demonstrate intent and recklessness, then there is no necessity for that reasonableness defence. In a lot of our legislation, we have that defence. We have it in the stocking offence, so there might be behaviours that might be technically captured, but there is an opportunity for people to say why it was reasonable. I think that the explanatory notes to the bill give some examples, perhaps around gambling situations or other situations where action is taken, which might appear to harm and there might be quite deliberateness about that, but there is for good reason. It would definitely be intentional, but could demonstrably not be seen as reckless? I think that most things would be captured by that. I do not have an issue with a defence of reasonableness, because I think that there should be an opening there, because you do not know what a scenario might be that the defence might want to raise an angle. In a fairness perspective, I think that it is useful when there is a defence available that people can raise, but I think that that will not be engaged necessarily in every case. John Fuller, George MacDonald and Mary I had a comment that I wanted to make earlier, and I wonder if the panel has anything to say. I entirely agree with Mr Steele on the basis of rehabilitation, and that is the direction that we should be going. My understanding that the view of practitioners in the field would be that rehabilitation is inappropriate and coercive in abusive behaviour, just as mediation is, because it could provide another opportunity for that behaviour. There are all different types of domestic abusers, and there is lots of research about people who perhaps could be more open to change their behaviour and others who might not. I know that there has been a lot of work done on the Princess of the Caledonian programme. It is not within my expertise in terms of rehabilitation, but I take your point in terms of mediation and diversion. I think that those will only be appropriate in very limited circumstances, and it is not something that we would say would generally be appropriate in domestic abuse, albeit that there might be some circumstances for that. I take your point on that. I ask a term that appears in one of the documents, and that is the term that probably, in one respect, very helpfully describes the behaviour because of other connotations that are perhaps unhelpful now, and that is the term intimate terrorism. I wonder if people will readily understand what coercive behaviour is. They will know the conduct if it is explained to them. Is there any difficulty you see around the terminology that is used in connection with the legislation? I do not think that intimate terrorism appears on the face of the bill. That stems from Professor Michael Johnson from America, who was over here a couple of years ago, and spoke at the Scottish Prosecution College to a mixed audience that we hosted of police and prosecutors. He sets it out really well in terms of the different types of domestic abuse from the situational couple incident, which he would call, which, as I spoke about earlier, are the bad relationship or bad time in a relationship where there are situationally provoked factors, and then the coercive control or intimate terrorism. I think that the reason he came up with that was that very many victims described their experience as being terrorised, often in their own home, where they were subjected to stalking, monitoring, controlling behaviours that were akin to being terrorised. That is how he came up with that in terms of his own research. Do you think that there is any difficulties about explaining the purpose of the bill to those who would want to benefit from it? I have to say that I do not, and that is really from speaking to Women's Aid and the women that they deal with day in daily, who talk to them about abuse and coercive control all the time. I think that when people now have a much greater understanding of coercive control, and I am sure that in terms of the progress of this bill, if it were passed, there would probably be some publicity around it, again, as we have seen with other legislation in order to enhance public awareness. That reflects people's lived experiences. I know that you have heard from some victims directly, and I am sure that they have all spoken about that. I do not think that people will misunderstand it. The fact that it describes itself as an offence of engaging in a course of abuse and behaviour, I think that people will be able to understand it. Does it highlight the importance of Scottish Women's Aids and other support agencies? Absolutly. They have been competing for this behaviour to be recognised criminally for a number of years. I think that the terminology that they use in terms of that coercive controlling, and I know that Callum was highlighting issues of training. We have introduced the whole aspect of coercive control into training at the Scottish Police College, so now the initial probationary training covers that in its domestic abuse training, and also the senior leadership training and supervisory training for newly promoted sergeants. That includes it. We have electronic training facilities through a Moodle, which Callum referred to in his response, and there are two other mandatory training courses that are done through Moodle, and that is the domestic abuse questionnaire and risk assessment, which I mentioned earlier on, and then another one on vulnerability. In terms of preparing for, hopefully, the enactment of this bill, we have been doing quite a lot of work about what type of training we will need to train officers specifically in relation to this act. We have been down south. We have been lazing with safe lives, which is the national charity to ending domestic abuse. The College of Policing looks at their training material for when they rolled out the section 76 of the Serious Crime Act, which is a bit more extended than within partners and ex-partners. We are looking at the training material that has been developed through support groups through the College of Policing to cover all officers in terms of coercive controlling behaviour and domestic setting. That looks really positive. It is a bit about how we deliver that, whether we do it from a police perspective, from our training, or whether we ask for some sort of assistance from support agencies to assist with that training. However, the moment in time, we see it as a whole-day course. In terms of terminology and understanding, although a whole-day course is good, we will absolutely make sure that further information guidance is continued to ensure that officers absolutely understand what coercive control is and what the bill would mean to them as front-line officers. I am going over old ground, if I am just trying to labour a point here, but I am trying to get that right and moan head at this stage. There have been a number of things that have been concerned with the use of an unfortunate use of language, or it might be just me misunderstanding the language that has been used, because last week we heard about low level of abuse, and to me abuse is abuse. I cannot say it any other way, so that might be more an issue with myself. However, when Callum Steele says ordinary domestic friction, to me that whole idea is did you bring that pint of milk I ask you for? No, I did not queue a 20-minute discussion about how you could not get that pint of milk. How you take that leap to controlling behaviour and abuse is quite a leap. As a whole point of this bill, not just to get it right and moan head, is it not? To make sure that we get the seriousness of the abuse that is going on in some of those households, and we get to a stage where we can A, those that need to be protected are protected, and B, those that are causing the abuse are found out. Absolutely. I agree with you wholeheartedly. I do not think that this is about trivial or minor offending. This is about patterns of abusive behaviour, and I think that the act sets out sufficient tests and thresholds and safeguards in it that we can be confident about it, but I absolutely agree with you. I have got it right then. Did you want to say something? I did, convener, and whilst I understand that there is a world of difference between ordinary domestic friction and abuse, with every possible respect to Mr Adam, the point of milk thing is probably trivialising it somewhat. Sometimes relationships can break down, sometimes people can have a difficult time when the relationships are breaking down, sometimes they can be particularly horrible to each other. It does not necessarily mean that in six months' time that, with the benefit of fines that they would consider that, any of that behaviour might have been criminal. The potential could be that police officers get involved at a particular difficult time of normal domestic friction because of break-down of relationships. It happens. The police officers are called and we find ourselves in these kinds of situations where we can be pawns in domestic breakdown, rather than necessarily whether it is abuse. The allegations that can come from that can, on the face of it, appear to be criminal, but whether, with the passage of time, people would take that view would be something that I suspect that they probably would not in a large number of occasions. Did you not already answer John Finlay Rowan when he asked about the fact that when your officers do turn up on the site, they have the ability and they are able to tell the difference between ordinary domestic friction. If there has been a long on-going scenario, nine times out of ten, you are pretty aware of the situation. That is not always the case in absolute truth, because the first time they are called is often the first time that they are aware. I am not in any way trying to undermine the seriousness of the issues that this bill is trying to address, but us, with all legislation, I think that it is important that we give consideration to not just those that it is intended to capture intentionally, but those that might be caught unintentionally. It is on that latter element of it that I believe that it is important that a great deal of consideration is given and much attention is given to the training that is going to be delivered to police officers and, crucially, the support that is going to be given to them if they end up being criticised for undertaking activities in good faith that then turn out to be subject to a significant adverse comment at a later date. I wonder if I could just ask, and I think that Ann Marie would probably be the best person to answer this question about non-harassment orders, because the bill would require the court to consider a non-harassment order without a need for applications from the prosecution. The information that we have, I understand that currently the granting of non-harassment orders is fairly low. In 2015-16, criminal cases registered with a domestic aggravator in Scotland were 17,804. Criminal cases issued with a non-harassment order were only 767. Is there a particular reason that non-harassment orders, the issuing of them is so low? I think that practice varies, I have to say, through courts. Where we find, in the specialist domestic abuse courts, where sheriffs are dealing with these cases to end the out, we find anecdotally that we are more likely to get non-harassment orders, but practice does vary throughout the country. It is something that we are very keen on and very keen to promote in our guidance, and certainly we have reflected that in the new joint protocol, is that in all cases of domestic abuse and stalking, prosecutors will consider the appropriateness. Now, not every case of domestic abuse will require a non-harassment order. Also, it is important that we take the victims' views on that. I think that we have to recognise that, in some cases of domestic abuse, people want to reconcile, so they may not want a non-harassment order or it may relate to abuse that has happened in the past and so they may feel that one is not necessary. We will always take the victims' views on that, and there will be occasions when people do not want one and do not require one. I think that it is a really positive thing to have this in so that it is considered in every case. It will not be granted in every case, it will not necessarily be appropriated in every case, but at least if it is given specific consideration by the court, that is a really positive step forward. I think that you are likely to then see an increase in non-harassment orders. Is there a resourcing issue attached to non-harassment orders? No, not in terms of the granting of them. No, not that I am aware of. Obviously, breach of a non-harassment order is a criminal offence in itself. If there is an allegation of breach of an order, the police are engaged, so there is resource implications, but not in terms of the granting of orders. Very often, the feedback that we get from victims is that that is part of the sentence that they are most interested in. Do you know if they are looking for a non-harassment order because they want that protection going way forward after the court case has ended? Was there not an implication about the peer resource issue if it was automatic to consider a non-harassment order? I do not know if that is relating to perhaps a background report that might have to be then produced in every case. In all those cases, it would not be an extra background report. It would be the court asking the fiscal for input as to the victim's perspective, but that is already there in terms of our guidance that we should be obtaining that. In terms of the new reporting template that we introduced for domestic abuse with the police, the police should be providing us with that when they are reporting the case, so I do not see any change in terms of what we would be doing at the moment. There is only one aspect that we have not covered. The expert evidence relating to the behaviour of the complainer has been raised in the submission from the SPF. I wonder if you could perhaps speak to that. There are interesting issues raised in the column still. Thank you, convener. To some extent, the evidence from the Crown Office of Procurate Fiscal Service this morning has come in some way to responding to that, because if I understood correctly, it was not so much expert evidence in terms of what had occurred on that particular set of occasions but what the behaviour in its own right might amount to. Those are ultimately judicial considerations rather than ones for the police. However, there are potential issues in respect of how expert opinion can be formulated when you are only ever going to gather it from one side of the account unless, of course, there is a presumption that the accused is not going to have a right to silence. That is clearly not the case. Certainly, at the time when we were putting our submission together, it was our understanding that that was going to be based on expert evidence of the course of behaviour that was before the courts. If I understood COPFS correctly this morning, it was going to be evidence on what the type of behaviours in their own right amount to rather than necessarily being bespoken to the specific situation. I think that there are two issues here that I should clarify. In terms of the evidence that we would expect to lead in this case, we will lead evidence as we would now from a range of witnesses and perhaps other evidence that might be social media, telephony evidence, there might be CCTV evidence in a case, neighbours, friends, family, the complainers themselves. The evidential base, in a sense, does not change. We will just have to look for sources of evidence. In terms of the expert evidence provisions in the schedule, those relate to section 275C of the Act and it is specifically to bring domestic abuse in line with sexual offending. It is purely for the purpose of leading expert evidence to explain behaviour or statements in order to rebut negative adverse inferences about the credibility and reliability of a witness. For instance, this is commonly used at the moment in sexual cases to explain why people delay in disclosing or reporting. What we have discovered and one of the reasons that is separate to the legislation that we had contacted the Scottish Government to ask that this be widened to domestic abuse comes directly from our advocate deputes prosecuting in the High Court. What they tell us is that they will frequently use the evidence in sexual offence cases to explain why someone remains in a relationship and continues even though there has been dreadful sexual abuse. That generic evidence that can explain and almost neutralise the fact that somebody might draw a negative influence of that, just to explain that there is a lot of research around that that people do not always report, for instance, instances of abuse when they occur, but we do not have that currently for domestic abuse. That provision is purely around that to allow us then to lead that similar type of evidence to explain why people remain in an abusive relationship and why they did not report the abuse to the police. It is not about wider context of leading evidence more generally. The reasonable person test and the objective test at the start of the offence is something that the court will interpret with or without expert evidence, but the expert evidence provisions are purely around rebutting any negative inference. I think that that is helpful. Does it allay your fears? It certainly helps to explain the issue. The fact that it is talking about behaviours and activities rather than the specifics before the court as a general provision, I do not think that it is problematic. I think that that concludes our questioning. I thank all the witnesses for what has been a very helpful evidence session. We now suspend, so to end briefly, to allow the witnesses to leave. Consideration of three negative instruments that refer members to paper four. The first instrument is the first-year tribunal for Scotland, oaths regulations 2017, SSI 217, oblique 148. Do members have any comments? I do. I read the proposal with interest. It is not my intention to oppose it. I have to take a double take on the day that it was 2017 because it required an oath of allegiance. I took the opportunity to look up the promissory oaths act 1868 and checked the form of the oath of allegiance. In this version, and certainly the version that we are led to on the internet, is to swear to be faithful and bear true allegiance to Her Majesty Queen Victoria, albeit that it does talk about her heirs and successors. I think that it is disappointing that a modern liberal democracy will still have this, but I hope that those who are asked, indeed required to make it, will take the opportunity, as a number of elected parliamentarians do, to express that their primary obligation is to members of the public. Is the committee agreed that it does not wish to make any recommendation in relation to this instrument? The next instrument is Act of Sederent Fees of Sheriff, Officers amendment 2017, SSI 217 oblique 153. Do members have any comments? If there are no comments, does the committee agree that it does not wish to make any recommendations in relation to this instrument? The final instrument is Inquiries into Fatal Accidents and Sudden Desk, etc. Scotland Act 2016, Consequential Provisions, Regulations 2017, SSI 217 oblique 156. Do members have any comments? In that case, does the committee agree that it does not wish to make any recommendations in relation to this instrument? That concludes consideration of negative instruments. The next and final agenda item is feedback from the justice sub-committee on policing on its meeting of 1 June 2017. Following the verbal report, there will be an opportunity for brief comments and questions. I refer members to paper 5, which is a note by the clerks. I invite Mary Fee to provide that feedback. The justice sub-committee on policing met on 1 June when it took evidence on the Auditor General's reports on the review of Police Scotland's I6 programme and the 2015-16 audit of the Scottish Police Authority. The sub-committee heard that the failure of the I6 project had impacted on the ability of police officers and staff to do their jobs effectively. Investment in Police Scotland estate, fleet and ICT is essential. We therefore welcome Police Scotland's confirmation that it will not transfer any underspend of its capital budget to its resource budget this year. The sub-committee received assurances that lessons have been learned and we look forward to seeing how future ICT projects will be developed and to consider the three-year and ten-year financial plans that are to be published in June and September respectively. The sub-committee will next meet on 15 June when it will hold an evidence session on the use of police body-worn cameras. I am happy to take any questions. It is an accurate reflection of our meeting. However, we did hear from Mr Leven that there are mechanisms that facilitate communication between different groups of officers, which was not the case before. It is not impacting on julian efficiency in that regard. Any other comments? I think that it is fair to say that the failure of the I6 programme has prevented the delivery of the efficiencies that were underpinning the rationale for creating Police Scotland. Nevertheless, I think that what was helpful from the evidence session last week was reassurance about the structure and practices that are now in place. I think that we have a lot more confidence perhaps than we have had in the past, that those challenges might be met, but they are not out that we would yet. Any other comments? To add to the comments that John Finnie and Liam McArthur have made, I was certainly quite heartened by Mr Leven's comments and the evidence that we heard from him. I have slightly more confidence than I had before the evidence session of how things will progress. On that positive note, that concludes our 21st meeting of 2017. Our next meeting will be Tuesday, 13 June, in which we will continue our evidence-taking on the Domestic Abuse Scotland Bill. Could I ask the gallery to leave?