Guest Post: Protection from harassment in the civil courts
Why is protection from harassment in the civil courts needed?
Women who have been affected by
Gender Based Violence can face harassment from the perpetrator of that
violence. Unfortunately, they are often
unable to access this protection through the criminal justice system because:
- they are not in a position to report the violence perpetrated against them;
- they have reported the violence but, given these are offences often committed in private, there is insufficient corroborated evidence to prosecute;
- an offence committed against them has been prosecuted but, due to difficulties with evidence, a Not Guilty or Not Proven verdict has been returned;
- a Guilty verdict is returned but no Non Harassment Order is granted as part of the sentence.
There are significant barriers to
prosecuting offences of violence against woman.
Even where a prosecution proceeds and a Guilty verdict is returned, a
custodial sentence may not be possible for many offences of Gender Based
Violence. The Sheriff or Judge in those
cases usually only has knowledge of the offence prosecuted and not of the
context of the relationship in which it was committed. This can mean that he or she does not
consider that there is any basis on which to grant a Non Harassment Order as
part of the criminal sentence – this leaves the victim unprotected from future
harassment from the perpetrator of the violence against her. The bail conditions that would have been in
place before trial will fall following the sentence. There is therefore nothing to stop him
approaching her or contacting her or returning to the marital home even if she
is living there.
Many women will therefore require
to turn to the civil courts to seek the protection they need. They would usually seek:
- Interim interdict with Power of Arrest to remain in place while the court considers whether a more permanent Non Harassment Order is needed;
- An Interim Exclusion Order (then permanent Exclusion Order) with ancillary orders as needed to eject the perpetrator from the marital home or prevent him from entering it.
Difficulties with the System
here are however issues of
safety, in terms of the woman’s physical and mental health, in having to obtain
protection in this way:
- Time gap
– often women do not realise that they can obtain protective orders through the
civil courts. If they have been given information
that these are available, it would usually not be until the Judge or Sheriff
has not granted a Non Harassment Order at sentencing. At this point they will need to find a
solicitor who can assist and explain the full background to them. That solicitor will need to gather
documentary evidence to be able to proceed (particularly where an interim
exclusion order is sought). That takes
time. Some of the documents required may
still be held by the police or the procurator fiscal. Realistically, it will take between 1 – 3 weeks
to find a solicitor and for that solicitor to obtain an interim interdict. The interim interdict obtained at the first
hearing cannot have Power of Arrest attached to it because the perpetrator
would need to have had the opportunity to be heard before that can be granted –
the hearing for that will take place around 1 - 2 weeks after the first
hearing. There can therefore often be a
time gap of between 1 – 2 months between bail conditions falling and Interim Interdict
with Power of Arrest or an Interim Exclusion Order being put in place. During that time, the woman is without
protection from harassment.
- where a woman has gone through the criminal justice process (whether or not
that resulted in prosecution or conviction), she will already have had to give
hours of interviews to the police. She
may have had to give evidence and been cross examined with her credibility
challenged. Now, to obtain these orders,
she needs to go through it all again.
She needs to explain the circumstances to her solicitor. If the action is defended, she will need to
be asked about the matters the perpetrator raises in defence – these matters
may include personal attacks on her character.
If a Proof (full evidential hearing) is ultimately required, she will
need to give evidence and be cross examined.
There is no bar in the civil courts to the perpetrator representing himself
– she could, therefore, end up being cross examined by him. She can apply for special measures (such as
giving evidence behind a screen or by video link) but, unlike in the criminal
courts for these types of offence, she will not automatically be deemed a
vulnerable witness and therefore entitled to special measures. The process of attempting to obtain
protection could have a hugely detrimental affect on her mental health;
- Cost –
civil legal aid for protective orders is means tested. Woman who are not financially eligible for
legal aid will probably need to try and find a sum of around £2,000 for a
solicitor to obtain Interim Interdict with Power of Arrest or an Interim
Exclusion Order. Even once that is in place,
if the action for a Non Harassment Order is defended and a Proof is needed,
legal costs could be very high depending on what firm the solicitor instructed
is from and how experienced they are, the length of Proof, the number of witnesses
called etc. If she was successful, the
woman would be entitled to recover some of that from the perpetrator but she
would usually only be entitled to around 2/3 of what she has actually paid and
if he has no money, she is unlikely to get anything back. Also, if the Sheriff were to decide that
there was not enough evidence to grant the orders she is looking for, she may
end up being asked to pay his legal costs (or at least a proportion of
them). Even where a woman is in a well-paying
job (or has property or savings) costs at this level are likely to put real
financial strain on her. That strain
will have an impact on her mental health and probably on other aspects of her
life and recovery from the trauma she has suffered.
What could help?
The ways in which a woman can
obtain protection out with the criminal justice system does not allow her to
easily obtain the protection she needs.
Measures could be put in place to make this better:
- Automatic referral to the civil courts in the
event of an acquittal or no non harassment order being granted. While the matter is being considered by the
civil courts, conditions should remain in place to prevent contact etc unless
the criminal defence solicitor can persuade the Judge / Sheriff that there is a
compelling reason why these should not remain in place;
- Access to legal aid should not be means tested;
- Rules should be introduced to:
- entitle women to a closed court in protective order cases;
- have women in protective orders cases automatically deemed vulnerable witnesses to give them clear rights to special measures;
- prevent men in these cases being allowed to represent themselves.
Where a women is unsuccessful in seeking a
protective order, she should only be found liable for the Defender’s legal
costs in certain circumstances – e.g. if the court considers that she has acted
unreasonably or maliciously in bringing proceedings – not simply because she
has been unsuccessful.
Posted on April 20 2016 at 09:44
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