An offence is considered domestic when it involves abuse of a partner or ex-partner. However, the answer to this question is slightly nuanced. 

In 2016, the Abusive Behaviour & Sexual Harm (Scotland) Act was passed. This creates the statutory aggravation (which makes the charge worse and can often impact sentencing, as well as other matters, which will be explored below) that the offence involved abuse of a partner or ex-partner. 

This aggravation only applies to offences that allegedly occurred after the commencement of the Act. Therefore, when someone is charged with ANY offence involving abuse of a partner or ex-partner after this point, it can carry this aggravation.

That doesn’t mean that others (for example, the police) won’t describe an allegation as domestic; it can often just mean that they are referring to violence within an intimate relationship, or to allegations of abuse between partners or ex-partners prior to the commencement of the 2016 Act.  

It depends on the bail conditions imposed. Often, the court will prohibit any contact with the alleged victim (the complainer) and may even include conditions preventing you from returning to your home or seeing your children, depending on the allegations. 

These conditions can be challenged. We can apply to have bail conditions reviewed and, where appropriate, argue for relaxed terms — especially where it is in the best interests of children involved. 

Additionally, we can assist you if you have been released on an undertaking to appear on a specified date. You do not have to wait until the court date to have the conditions relaxed. We often deal with situations such as this and our experienced solicitors can provide the necessary advice in order to maximise the chances that your bail conditions are removed or relaxed. This is especially important now that Police Scotland are preferring undertakings over keeping accused persons in custody until the next day to ease pressure; as a result, though, the undertaking date tends to be far into the future, meaning that you will be subject to the condition(s) for longer. 

We are often asked this question. Indeed, it is often the case that the complainer, or someone else, may call the police, and but the complainer soon afterwards doesn’t want the prosecution to go ahead. Unfortunately, the practice in Scotland is to pursue charges notwithstanding the complainer’s wishes. 

In such cases, we can assist by ensuring that special bail conditions (prohibiting you from contacting or approaching the complainer, or their address if you live apart) are avoided or relaxed. 

However, when dealing with the prosecution itself, the skillset we have is slightly different. If solicitors tell you that they will get your domestic case dropped, and don’t give you any detail about how they will do that, or what their exceptional reasoning is, the chance is that they are not being entirely honest with you. Our approach is different: we acknowledge that the Crown has a particular policy in relation to these cases and therefore that a specific strategy is to be employed to maximise the likelihood of avoiding conviction. This includes:

• Understanding the Crown’s internal policies and what they look for when determining whether to proceed with a case
• Knowing that speaking to witnesses (especially those who haven’t given a statement) is often instrumental in persuading the Crown to take an alternative course of action
• And, importantly, knowing how to precognose (take post-investigation statements from) witnesses which enable us to predict what is likely to be said during trial and give you accurate and reliable advice before you make important decisions

Therefore, be careful if solicitors tell you they can make a domestic case go away; it is not as simple as that in the current climate. But instructing us will secure you solicitors that have a deep understanding of the process and how to navigate this developing area of law. 

Breaching bail conditions is treated very seriously by the courts. It may lead to being remanded in custody until trial and could result in additional charges. Bail breaches may also damage your overall defence.

If you have concerns about your bail conditions or believe you’ve been accused of breaching them unfairly, contact us immediately. We can advise on your options and represent you at any bail hearings.

How long a domestic case will take to conclude depends on various factors. 

In Scotland, there are two types of prosecution: summary and solemn. The differences are that summary prosecutions are not before a jury and involve lesser sentencing powers (up to 1 year imprisonment, or 18 months if there is a bail aggravation), whereas solemn prosecutions before a jury can, in the sheriff court, result in a sentence of up to 5 years, or a life sentence in the High Court of Justiciary. Summary cases where the accused pleads guilty often resolve within a matter of weeks or months, but summary cases that go to trial can take up to a year, and sometimes more if there is disruption to proceedings or if the case is complex in some way.

Rest assured, however, that we would never let proceedings go on any further than they should. You have a right under Article 6 of the European Convention of Human Rights to a fair and timeous trial. We would always fight your corner and make sure the court is fully aware of your circumstances so that they understand how delays affect you. 

Jury cases are quite different. If the accused is on bail, the Crown have 16 months from the first appearance to serve the final charge sheet, known as the indictment, and 17 months to bring the case back to court for the accused to plead guilty or not guilty to the charge(s). Unfortunately, if the accused pleads not guilty when the case comes back to court, then the trial can be fixed quite far into the future, which is a regrettable consequence of the backlog caused by the COVID-19 pandemic. But it is expected that the time limits will be brought back to the normal pre-pandemic levels in November 2025.

In addition to the possibility of an additional punishment, the statutory aggravation requires the Sheriff or Judge to consider a non-harassment order. Such orders are not exclusive to domestic cases, but they are legally required to be considered by the presiding Sheriff or Judge when someone pleads guilty to, or is found guilty of, a domestic offence. 

The terms of Non-Harassment Orders (NHOs) often mirror the special bail conditions imposed in relation to domestic cases (see above). However, although breaching special conditions and NHOs is considered a separate offence, the notable difference is the time for which they can apply. Special bail conditions only apply during the lifetime of the case, whereas NHOs can apply for 6 months, 1 year, several years, or indeed indefinitely. 

NHOs can only be imposed when the court considers it necessary for the protection of the complainer. And, although you do not legally require representation at post-conviction hearings where such orders are imposed, it is important to be represented by an experienced solicitor who understands the legal requirements of such orders and the nuances in arguing when they should not be imposed, and when it is unavoidable, what caveats could be included within the Order to ensure that the lives of those involved are not disrupted unnecessarily.