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Guest Post: Protection from harassment in the civil courts

Guest post by Jennifer Dalziel, solicitor for the Scottish Women's Rights Centre.

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

T Scottish Women's Rights Centrehere 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.
  • Re-traumatisation - 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.

Read the paper around Violence Against Women produced by Engender, Scottish Women's Aid and Rape Crisis Scotland.

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