I, too, welcome the opportunity to participate in the debate. First, I thank and commend the convener and members of the Citizen Participation and Public Petitions Committee for their consideration of the petition from Ms Nicola Murray. I welcome Ms Murray to her Parliament.
It is evident to all that the circumstances that have been outlined by Ms Murray and that have driven the debate are shattering and deeply heartbreaking, and are something that no woman should ever have to endure. The petition reflects the most tragic of circumstances arising from a relationship that was based on the cruel realities of domestic abuse, which is something that I am committed to addressing and responding to as best I can—an endeavour that I know that all parliamentarians share.
When I was first asked by the committee to consider the petition, I knew that I would have to wrestle with the natural instinct to respond positively to the tragic circumstances against some of the realities of my role and responsibilities as Cabinet Secretary for Justice and Home Affairs. I come to the debate in the spirit of co-operation, collaboration and compassion. We all want to focus on doing what is right, what is deliverable and what will make a difference.
As we have heard from Mr Carlaw, the petition seeks to create a specific criminal offence that would allow the courts to place longer sentences on those convicted of domestic abuse that causes the loss of an unborn child. As a matter of principle, I can fully understand the reasons for that request, rooted as it is in the belief that the current law cannot adequately punish individuals who cause the loss of an unborn child through their violent actions or coercive control.
I noted on the committee’s website that there are a number of written submissions alongside those from the Scottish Government. There are some challenges that we need to think through. We need to consider what the consequences of progressing such a proposal might be, to evaluate what other options might already exist that seek to deliver the same outcome and, of course, to consider what else might be required.
It is important to first consider how the current legislative framework responds to the circumstances outlined in the petition. As we have already heard from Mr Carlaw, the Domestic Abuse (Scotland) Act 2018 created a specific course of conduct offence for the first time, enabling physical, psychological and controlling behaviour to be prosecuted together. The 2018 act makes it a criminal offence if a person
“engages in a course of behaviour which is abusive of”
their partner or ex-partner. The 2018 act criminalises not only physical abuse but other forms of psychological abuse and coercive and controlling behaviour that were previously difficult to prosecute. In addition, the 2018 act provides a non-exhaustive definition of what is considered abusive behaviour for the operation of the domestic abuse offence, and it therefore recognises the multifaceted nature of domestic abuse. Furthermore, section 1 allows imprisonment for a term of up to 14 years.
Although I absolutely acknowledge the significant difference between the maximum penalty under the 2018 act and the penalty received in respect of the case of the petitioner, with respect—I hope that members will understand this—as I have explained in correspondence to the committee, the functions of Police Scotland and the Crown Office and Procurator Fiscal Service to investigate and prosecute cases under the legislation are independent from ministers. I will return later to talk about what ministers can do.
When considering any report submitted by the police, prosecutors apply the prosecution test set out in their published “Prosecution Code” and exercise professional judgment in deciding on the most appropriate charges based on the facts and circumstances of each case. Where there is evidence that a victim has suffered severe injury, including miscarriage, as a result of the accused’s actions, the injury would be reflected in both the charge libelled against the accused and the forum selected for prosecution of that offence.
I am aware that the petitioner and others have called for an amendment to the 2018 act that reflects the impact of the death of an unborn child, because of their concerns that current laws are not fit for purpose. As matters stand with our current legislation, the law can ensure that the death of an unborn child is provided appropriate recognition in the criminal justice system; however, that does not mean that there is not further action, either legislative or non-legislative, that should be pursued.