Introduction

The case of GRPW v Her Majesty's Advocate [2021] HCJAC 47 adjudicated by the Scottish High Court of Justiciary on November 4, 2021, marks a significant development in the realm of domestic abuse law in Scotland. This case involves GRPW (the appellant) appealing against a non-harassment order imposed by the sheriff, which restricts him from approaching or contacting his former partner and their children for a period of three years.

The appellant was convicted of multiple charges under the Abusive Behaviour and Sexual Harm (Scotland) Act 2016 and the Criminal Justice and Licensing (Scotland) Act 2010. The core issue revolves around whether extending the non-harassment order to include contact prohibitions with the children was appropriate and proportionate, especially in light of conflicting information regarding the children's wishes.

Summary of the Judgment

The appellant pleaded guilty to several charges of domestic assault against his wife and son, as well as sending threatening messages via social media. The sheriff sentenced him to two years imprisonment (discounted from 30 months) and imposed a three-year non-harassment order. This order not only restricted him from contacting his ex-wife but also extended these restrictions to their two children.

The appellant appealed the inclusion of the children within the non-harassment order, arguing that it was excessive and not adequately justified, particularly because the children's views were not directly solicited. The High Court of Justiciary upheld the sheriff's decision, stating that the inclusion of the children was justified due to their exposure to domestic violence and the potential for further trauma.

Analysis

Precedents Cited

The judgment references the case of S v HM Advocate 2016 JC 1, where the court held that sheriffs were incompetent to include children in non-harassment orders under Section 234A of the Criminal Procedure (Scotland) Act 1995. However, the newer Domestic Abuse (Scotland) Act 2018 introduced Section 234AZA, which allows for such inclusions under specific conditions. This legislative change rendered the aforementioned precedent obsolete, empowering courts to extend protection to children who are victims or witnesses of domestic abuse.

Additionally, the judgment references Finlay v PF Perth 2021 SLT (Sh Ct) 133, reinforcing the stance that the views of children need not be directly sought when determining the necessity of protection orders.

Legal Reasoning

The court employed a two-stage test under Section 234AZA:

• Appropriateness Test: Determines whether it is suitable to consider the child for protection under the order.
• Statutory Question: Assesses whether the child should indeed be protected by the order based on specific legislative criteria.

The sheriff, in his judgment, concluded that the children had been significantly affected by the appellant's abusive behavior, either as direct victims or as witnesses. The court agreed that the sheriff should have explicitly addressed the appropriateness test but ultimately concluded that, regardless of this procedural nuance, the inclusion of the children in the non-harassment order was justified.

The court emphasized that the primary objective of Section 234AZA is protection. Given that the children had been exposed to multiple instances of domestic violence, including direct assaults and witnessing assaults against their mother, the court found it necessary to extend protection to them to prevent further trauma.

Impact

This judgment underscores the Scottish judiciary's commitment to evolving domestic abuse laws to offer comprehensive protection to all victims, including children. By upholding the inclusion of children in non-harassment orders, the court sets a precedent that reinforces the importance of safeguarding minors from the adverse effects of domestic violence.

Future cases will likely reference this judgment when determining the scope of protection orders, especially regarding the inclusion of children. It also serves as a clarification of the application of Section 234AZA, ensuring that legislation is interpreted in a manner that prioritizes the welfare of vulnerable parties in domestic settings.

Complex Concepts Simplified

Non-Harassment Order

A non-harassment order is a legal directive issued by the court that restricts an individual from contacting or approaching certain persons, typically in cases involving domestic abuse. The purpose is to provide safety and prevent further victimization.

Section 234AZA of the Criminal Procedure (Scotland) Act 1995

This section outlines the provisions for issuing non-harassment orders in cases of domestic abuse. It was introduced to address inadequacies in previous legislation, allowing for the inclusion of children as protected persons when they are victims or witnesses of abuse.

Aggravated Offenses

An aggravated offense refers to a crime that is deemed more serious due to specific circumstances, such as involving a child or using exceptional violence. In this case, certain charges were considered aggravated under the Abusive Behaviour and Sexual Harm (Scotland) Act 2016, elevating their severity.

Domestic Abuse (Scotland) Act 2018

This legislation introduced comprehensive measures to protect victims of domestic abuse, including enhanced powers for courts to issue protection orders and recognize the trauma experienced by children exposed to such environments.

Conclusion

The judgment in GRPW v Her Majesty's Advocate [2021] HCJAC 47 reinforces the Scottish legal system's dedication to protecting victims of domestic abuse, extending crucial safeguards to children who may be adversely affected by such environments. By upholding the non-harassment order's inclusion of the appellant's children, the court affirmed the evolving legal standards aimed at mitigating the long-term psychological and emotional impacts of domestic violence on minors.

This case serves as a pivotal reference for future domestic abuse cases, highlighting the judiciary's role in interpreting and applying legislation in ways that prioritize the welfare of vulnerable individuals. It also underscores the importance of continuous legislative enhancements to address gaps and ensure comprehensive protection for all victims.