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Crown Office and Procurator Fiscal Service submission of 25 November 2021

PE1887/F - Create an Unborn Victims of Violence Act

Thank you for your letter dated 5th November 2021 seeking the views of COPFS on the proposed action within Petition PE1887.

Any decision as to whether specific legislation is required in relation to an issue is for the Scottish Parliament. I am in a position, however, to advise on the current situation in relation to any reports received by COPFS involving circumstances outlined in the petition.

When considering any report submitted by the police prosecutors apply the prosecution test set out in the published Prosecution Code. I enclose a copy of the Code for ease of reference.

Prosecutors exercise professional judgement 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 a miscarriage, as a result of the accused’s actions, this injury would be reflected both within the charge libelled against the accused and the forum selected for prosecution of that offence. 

The Domestic Abuse (Scotland) Act 2018 (DASA) created the offence of engaging in a course of behaviour which is abusive of a partner or ex-partner. The Act, in its definition of “abusive behaviour”, lists behaviours commonly referred to as “coercive control” and includes; where the perpetrator controls, regulates or monitors the complainer’s day-to-day activities, and where the perpetrator restricts the complainer’s freedom of action.

Therefore, where appropriate, and subject to the facts and circumstances of a case, COPFS can libel an allegation of forced termination within the context of a domestic relationship by way of libelling a DASA offence.

The issue of sentencing is a matter for the court and the levels of sentence available to the court have been confirmed in the Scottish Government response to the petition. However, the inclusion of the offending as an aggravation of severe injury or as part of a libel within a charge, such as a DASA offence, enables the court to reflect the full circumstances of the offending in the sentence imposed.