Benjamin Knight gives a cautious welcome to this rather overhyped legislation but sounds an alarm bell over the Government’s rebranding exercise and use of snake oil.
In February 2017, the Government announced its intention to “transform the way we think about and tackle domestic abuse”. This led to the Domestic Abuse Bill being announced in the Queen’s Speech in June 2017.
Appropriately enough, the consultation into this area was launched on 8th March 2018 – International Women’s Day. It closed on 31st May 2018. Of the 3,200+ responses, some 1,000 were from victims of abuse, charities working in that field, and experts in social aspects of Domestic Abuse.
The result of the consultation was these nine proposed measures:
In relation to treatment of alleged victims in the family courts, see Callum Brook’s article.
I would like focus on a couple of aspects of the Bill that may have a significant impact upon those working within and passing through the CJS.
In recognising the complicated nature of domestic abuse, the Government has cast its net wide. This does not represent much innovation beyond the non-statutory definition used by many public bodies and NGOs over the past five years. Nevertheless, the definition consulted upon (and therefore the definition that will end up in the legislation, no doubt) is:
Any incident or pattern of incidents of controlling, coercive, threatening behaviour, violence or abuse between those aged 16 or over who are, or have been, intimate partners or family members regardless of gender or sexual orientation. The abuse can encompass, but is not limited to: psychological, physical, sexual, economic and emotional forms of abuse.
Controlling behaviour is a range of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape, and regulating their everyday behaviour.
Coercive behaviour is an act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten a person.
This definition may seem familiar to criminal lawyers because Section 76 of the Serious Crime Act 2015 created a new offence of controlling or coercive behaviour in an intimate or family relationship. Most criminal lawyers will have encountered such a prosecution by now.
In fact, the Government has acknowledged that,
“…most agencies and charities said that the statutory definition would not necessarily change the way in which their organisation works…The most commonly cited reason was that organisations were already using the existing cross-government definition.”
In short, this legislation is about the “message” and not the law.
Accordingly, there is arguably nothing to see here and the ongoing problems as to what behaviour crosses the threshold into being a criminal offence against which action must be taken. The Government appears to have considered training of police, schools, etc. to recognise domestic abuse symptoms in women and children.
There appears to be little contemplation of the highest suicide risk category: young men. That is not to say that they are being ignored as being more common perpetrators than victims, necessarily. Rather, with self-esteem and “toxic masculinity” being linked to commission of domestic abuse, the Government may still be looking only at symptoms rather than causes when it comes to this group.
The Consultation does include a section on male victims of domestic abuse in which the Government supports its woeful attention to these victims by saying that the number of reported incidents of domestic abuse are split 1.2 million women vs. about 700,000 men per year. But it then considers that recent studies suggest that 40% of men would never report being the victim of such abuse for fear of ridicule, and the fact that the Government’s only response to this issue was to (partially) fund a telephone helpline, this was felt by responders to be inadequate.
As such, the Government has now stated:
We will publish a Male Victims’ Position Statement to recognise the needs of male victims of domestic abuse, sexual violence and forced marriage, and to clarify the government’s position.
We will provide £500,000 of funding to improve support to male victims of domestic abuse.
We will work with the Crown Prosecution Service (CPS) to improve the gender breakdown of CPS and police data to better understand the numbers of male victims of domestic abuse who engage with the criminal justice system.
We will conduct a review of the National Statement of Expectations and, as part of this, consider its impact on the commissioning of male support services. This will work to ensure that commissioners are educated on the complexities of commissioning services that are victim focused, gender aware and provide an appropriate response according to the victim’s needs, including for LGBT+ victims.
That is to be welcomed but, in respect of any gender or sexual identity, there is little clarity as to the threshold of actionable abuse. Is there to be a notional “de minimis” level of control and coercion? Are we simply to trust the police and CPS? Past experience with legislation such as the Fraud Act 2006 has suggested that may not be wise and may not provide adequate foreseeability for a criminal offence and deprivation of liberty to be a consequence.
We already have Domestic Violence Protection Orders/Notices. DVPOs are civil orders that can be applied for by the police and granted by a magistrate.
If granted, the order will immediately ban the perpetrator from returning to a residence and from having contact with the victim for up to 28 days. This period of time allows the victim the opportunity to consider their options and get the support they need.
The process that police follow involves the granting of a Domestic Violence Protection Notice (DVPN) to the perpetrator immediately after the domestic abuse incident. This is then taken to a magistrate the following morning and if agreed, a DVPO will be issued.
They are being used although there seems to be very little up-to-date data as to how frequently, in what circumstances, and in what areas of the country.
Their function was never to create criminal offences. It was to create a separation of the parties in which neither of them had a choice. That was an innovative legal response to the problem of the victims returning to their abusers out of habit, dependence, or other symptom of their abuse. They were also a tool to increase convictions for domestic assaults in the criminal courts.
Anecdotally, I have not seen much evidence to suggest that they work that way. Generally, if the threshold has been crossed to obtain a DVPO/N, there has been a solid, clear, viable prosecution for a substantive offence.
Most importantly, when section 48 of the new Bill becomes law, DVPN/Os will be history. The new Bill will repeal ss. 24 to 33 of the Crime and Security Act 2010 when it becomes law.
What is difference between the DVP tools and the new “Domestic Abuse Protection Notice/Order (DAPN/DAPO)”?
In short, the new scheme has an emphasis on the criminal law. Much like the tail-end of the New Labour Government, we now have a Government that likes control orders with criminal sanctions. The Home Secretary has, in fact, just embarked upon the PR trail for “ASBO-style” knife crime orders. All jolly good for headlines but weary lawyers already know how that story ends.
A “senior police officer”, to issue a DAPN, needs only to have reasonable grounds for believing that P has been abusive towards a person aged 16 or over to whom P is personally connected AND that it is necessary to give the notice to protect that person from domestic abuse, or the risk of domestic abuse, carried out by P.
The view of the suspected victim is to be considered but is not decisive.
The Notice can force a suspected perpetrator to move out of their home. It can stop the suspected perpetrator from evicting the suspected victim for a premises. And this powerful order can even be issued by the British Transport Police.
Breaching the Notice will result in loss of liberty for 24 hours (excluding Saturdays, Sundays, Christmas Day, Good Friday and bank holidays) as it carries a power of arrest (section 23) but is not an offence. A full DAPO must be sought within 48 hours of the DAPN being served.
The making of a Domestic Abuse Protection Order is governed by section 25 et s. of the Bill. One can be made without notice. One can be made in the family, civil or criminal courts. The threshold for a DAPO is the same as for a DAPN (above).
A full DAPO may include electronic monitoring – this includes full GPS tracking and may even include a bio-monitor to check for alcohol consumption. This requirement may only last for up to 12 months. This is a serious restriction upon the liberty of a person not convicted of an offence.
These are provisions usually deemed to be punitive restrictions on liberty – often as part of an alternative to a custodial sentence – and they are now to be available without conviction. Of course, electronic tagging has been something of an embarrassment for governments ever since Chris Grayling MP had to admit that a private company was monitoring a number of people who were dead or fictitious.
The DAPO contains notification requirements (in a manner similar to sexual offenders, despite no conviction at all by this stage). This includes “keeping in touch with a designated person”. One does not know whether this will be work for another private service company in the way that many functions of the Probation Service are now in the hands of these behemoths.
Section 35 of the Act deals with breaches of these Orders.
In short, a person who is subject to a domestic abuse protection order commits an offence if without reasonable excuse the person fails to comply with any requirement imposed by the order.
If the Order was made without notice, the offence is only committed once the subject of it is aware of the Order’s existence. Note, that is not the same as that person knowing what the restrictions are.
Importantly, breach of a DAPO is an either-way offence. It carries a maximum sentence of 5 years’ imprisonment.
Moreover, no court may impose a Conditional Discharge for a breach of DAPO (s.35).
As mentioned above, the Notification Requirements attached to a DAPO (s.38) are similar to those applied to sex offenders after conviction. They include complying with collection of biometric data. And, as with sex offenders, breaching those Notification Requirements is an either-way criminal offence (s.39) punishable with up to five years’ imprisonment.
Polygraph testing (“lie-detector testing”) may be a requirement of a DAPO breach licence. The controversial and costly provision that attaches to sex offender monitoring may be added to the licence conditions of a DAPO breacher. This places this offence in a similar category to murderers and sex offenders.
Whilst the Government’s love-affair with Professor Grubin’s lie-detector promotion for sex offenders in the UK has been no doubt profitable for those providing this service and has been rolled-out against a group of society for whom nobody has any sympathy, it is still the case that there is a huge weight of professional and expert analysis of the whole polygraph set-up confirming that it is anything from fallible to hokum.
Even Professor Grubin himself has admitted that victims of offences may appear to the polygraph to be aroused due to stress of their recalling trauma. Is one to assume that somebody being falsely-accused of offending behaviour and knowing that their liberty is in the balance is likely to be as cool as a cucumber when they hit the important questions? Have a bit more of a read here. Or go back to watching the Jeremy Kyle Show.
All in all, the raft of powers and existing practices that are now on a statutory footing or beefed-up by this proposed legislation are to be welcomed as domestic abuse continues to be a potentially fatal pandemic in the UK. Legislation that aims, realistically, to reduce violence and control/coercion to the extent that it may rightly be deemed “criminal” must be a good thing.
But there is scope for abuse within the powers detailed above. Increasingly those who feel that the system is one-sided fear a policy of “belief” in whoever calls the police first. That is to say that there is a drive to accept the account of a person and treat them as a victim and the other party as a “perpetrator” with immediate effect lest you be branded an apologist for domestic abusers. Even observing the existence of such a tendency is often enough to draw criticism.
There will be examples of the use of these powers (in a similar way to non-molestation orders in the family courts) to force a party out of their home, bring about a status quo in terms of child arrangements so that a cost and time burden falls upon the non-resident parent in a way they cannot afford, and so on. On the other hand, there will be lives saved, if these powers are used properly.
As with just about every piece of “landmark” legislation, the real proof will be in the proper and proportionate funding of investigations, enforcement, and monitoring for efficacy. Sadly, recent decades have seen cuts and austerity-drives driven by ideology and newspaper headlines. It is highly likely that these provisions will only have so much life blown into them as is needed to keep the editors of certain newspapers happy.
All CJS professionals, but arguably defence lawyers in particular, will need to be familiar with these powers and the proceedings around them very soon. Time will be of the essence in dealing with these cases. Robust advice as to the serious sentencing powers attached to these Orders will be required. A proper funding regime for these offences will need to be negotiated with the LAA.
Finally, the underlying causes of domestic abuse are still not being tackled pro-actively. As usual, the nation keeps its pound in its pocket until somebody gets hurt and then screams for justice and jails whilst cheerfully handing over that pound to companies with bad records for delivering them value for money when dealing with offenders.
In truth, developing pre-emptive and diversionary routes to deal with the self-esteem of likely victims and perpetrators of domestic abuse would quite possibly be rather better value for money. Emotional literacy on the part of the taxpayer and government might eventually translate into emotional literacy for those in or prone to toxic relationships.
To quote the very loftiest of sources, Elle Woods (Legally Blonde), “Happy people just don’t kill their husbands. They just don’t.”
Central Chambers has a criminal team with experience in all types of domestic abuse and violence allegations, including allegations of coercive and controlling behaviour.
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