Action Against Stalking has responded to the Scottish Sentencing Council’s public consultation on the Draft Domestic Abuse Sentencing Guideline. We welcome the creation of the guideline, which has the potential to provide meaningful assistance to courts, promote greater consistency in sentencing, and improve broader public understanding of how sentencing decisions are reached. However, we consider that these benefits can only be fully realised if the draft guideline is restructured appropriately.

In particular, the current structure does not follow the usual three step adopted in other offence-specific Scottish Sentencing Council guidelines. We suggest that the guideline should adopt the three-step process used to arrive at the headline sentence, consistent with other guidelines:

• Assessing seriousness through clearly defined harm and culpability, delineated to a specific category level
• Identifying the appropriate sentencing range based on the category level identified in the assessment of seriousness
• Considering aggravating and mitigating factors

In its current form, the draft is too vague and places significant reliance on sentencer discretion, limiting its practical utility and its ability to promote consistency and public understanding.

We are also concerned that post-separation abuse, including stalking, is not adequately recognised. These behaviours should be expressly included as features of harm and culpability when assessing seriousness and determining the headline sentence. Failing that, post-separation abuse should be included as an aggravating factor. Without this, there is a real failure to recognise the lived experiences of many victims, the nature and impact of post-separation abuse, and the significance of post-separation abuse and stalking as indicators of escalating risk, including the risk of further serious violence and homicide.

The effective application of any guideline will also depend upon sentencers having a comprehensive understanding of domestic abuse, including coercive control, post-separation abuse, stalking, trauma responses and relevant risk factors. A trauma-informed approach is particularly important. Victims respond to trauma in myriad ways, and assessments of harm should not depend upon particular emotional presentations or assumptions about how a victim should respond to abuse.