What is Domestic Abuse?
"Any form of physical, verbal, sexual, psychological or financial abuse which might amount to criminal conduct and which takes place within the context of a relationship. The relationship will be between partners (married, cohabiting, civil partnership or otherwise) or ex-partners. The abuse may be committed in the home or elsewhere including online".
Stages of an investigation
The initial stage in a police investigation involves a complainer (partner or ex-partner) reporting an allegation either directly to Police Scotland or indirectly to a third party (friend/family member/GP) who then reports the incident to the police. Police Scotland will then assess the initial report and, where appropriate, begin a formal investigation. This typically involves taking statements from the complainer, gathering corroborative evidence (such as messages, medical records, or witness testimony), and conducting a risk assessment. The final stage of the investigation process involves interviewing a suspect under caution. This can be facilitated via voluntary arrangement, or, in more serious cases, a suspect may be arrested. A suspect has the right to have a solicitor informed of their arrest and to be legally represented during any interview.
At the conclusion of an interview, a suspect may be released without charge and no further proceedings, released without charge but pending further investigation or charged with an offence(s).
If an accused person is charged, they are released pending a report being sent to the Procurator Fiscal, released on a Bail Undertaking to appear at court on a certain date, or in the most serious cases, kept in custody to appear at court the next lawful day.
If an accused person is released on a Bail Undertaking, they are trusted to attend court. In domestic abuse cases, there are usually certain conditions attached to any police bail order. The most common examples are:
- not to approach or contact their partner/ex-partner, in any way; and
- not to enter or seek to enter a particular address.
There can also be restrictions on how contact with any children operates.
Parallel processes: criminal investigation, employer disciplinary procedures and professional regulator inquiries
Any professional charged with any criminal offence should be aware of their professional responsibilities to their employer/regulatory body. Often an employer will require to be informed if an employee is convicted of an offence as this often carries both disciplinary and reputational issues for the employer. However, some employers and regulatory bodies require their employees/members to inform them of any criminal charge. Depending on the severity of the allegation and the outcome of a police interview, this may result in temporary suspension or restrictions on practice.
It is important for any professional charged with a criminal offence to be aware of their obligations to their employer/regulatory body.
Potential Outcomes
The best-case scenario for any professional charged with a criminal offence is either for the prosecutor to take no further action against them prior to court, or alternatively, to be acquitted following a criminal trial.
In certain cases, the prosecutor may take the decision to divert a case from prosecution. The prosecutor can issue a formal warning letter, offer a fiscal fine or referral to support services.
If a professional is found guilty or pleads guilty to a domestic offence, this can have disastrous consequences. The potential outcomes are a financial penalty, being made subject to a Community Payback Order, being made subject to a Restriction of Liberty Order and being sentenced to a period of imprisonment.
In every domestic abuse case, the presiding sheriff/judge must give consideration to imposing a Non-Harassment Order. This places restrictions on a person’s interaction with a partner/ex-partner and can regulate/restrict contact with any children of the relationship.
Often professionals convicted of a domestic offence will face reputational damage which can include being removed from a role or register or placing restrictions on their current role.
Early advice can be critical in protecting your legal position and reputation. If accusations are made against you, it is important to seek legal advice quickly.
At Brodies, our team of specialist criminal defence lawyers are experts in this area. We provide wise and calm counsel, at a time of crisis.
Contributor
Legal Director
