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More Police Powers for Domestic Violence - The Crime and Security Bill Reviewed

Michael Horton of Coram Chambers examines the domestic violence provisions in the Crime and Security Bill and the powers it confers upon the police.

Image of Michael Horton barrister Coram Chambers

 
Michael Horton, Barrister, Coram Chambers

The Crime and Security Bill, published on Friday 20 November 2009, contains some important proposals to give the police significant new powers to intervene in cases of domestic violence.  Those powers are for use by the police in advance of an application being made for injunctive relief under Part IV of the Family Law Act 1996.

Introduction
The proposals were first mooted in a Home Office consultation paper, Together We Can End Violence Against Women and Girls.1  This paper noted that in Austria, Switzerland, Germany and Poland, the police have power to issue a 'go order', requiring the perpetrator or suspected perpetrator of domestic violence to leave the family home.  The law in those countries varied as to the duration of such orders and the extent to which the victim's wishes should be taken into account.  The paper invited the Association of Chief Police Officers to conduct a review of police powers so that, by this autumn, the government would have been able to identify what new police powers might be required.

The result of the review and the consultation are the provisions contained in clauses 21 to 30 of the Crime and Security Bill.  The basic scheme is for the police to issue a  domestic violence protection notice (a DVPN), which is designed to protect a person from domestic violence and may require  another to leave the family home, until a hearing in the magistrates' court.  This hearing must take place within 48 hours of the DVPN being served.  At the hearing, the magistrates would be able to issue a domestic violence prevention order (a DVPO) to last between 14 and 28 days.  The magistrates have power to adjourn the application for a DVPO and if they do so, the notice issued by the police, the DVPN, continues in effect until the DVPO application is determined.  Breach of a DVPO renders a person liable to arrest and/or committal to prison by the magistrates' court.  The duration of the DVPO is intended to afford the person protected by it the opportunity to consult solicitors with a view to bringing an application under Part IV of the Family Law Act 1996.

The DVPN – the details
Clause 21 empowers a senior police officer2 to issue a domestic violence protection notice (DVPN) to anyone aged 18 or over – this person is termed 'P' by the Bill (no doubt denoting 'perpetrator').  The notice may be issued where the officer has reasonable grounds to believe that (i) P has been violent towards, or has threatened violence towards, a person associated with him, and (ii) the issue of the notice is necessary to protect that person from violence or the threat of violence.  The Bill itself does not use any initial to denote the person to be protected, but the explanatory memorandum uses 'V' to denote this person, and the remainder of this article uses that abbreviation.  Before issuing the notice, the officer must take reasonable steps to discover, and take into account, the views of P and of V as to whether or not the notice should be issued.  If the notice is to affect P's occupation of the family home, reasonable steps must be taken to discover the views of any other persons associated with P who live in the same premises and, where known, taken into account.  The Bill is clear however that the officer may issue a notice even where V does not consent to it or opposes it being issued.  The term 'associated person' incorporates the definition from s 62 of the Family Law Act 1996.3

What does the DVPN do?  First, it must contain a non-molestation provision, forbidding P to molest V, which may be expressed to refer to molestation in general or to particular acts of molestation, or both, thus following s 42(5) of the Family Law Act 1996 in relation to non-molestation orders (despite the ill-judged and unnecessary modern trend away from generalised non-molestation orders since s 42A of the 1996 Act was brought into force in July 2007).  Secondly, the officer may include in the DVPN 'ouster' or 'occupation' order type provisions: the notice may (a) prohibit P from evicting or excluding V from the premises; (b) prohibit P from entering the premises; (c) require him to leave; and (d) prohibit him from coming within such distance of the premises as may be specified in the notice.  There is no geographical limit here, so the notice could, for instance, exclude P from say a 20 mile radius from the family home.  However, these 'occupation' order type provisions can only be used where P 'lives with' V.  This will presumably be judged at the time the notice is issued.  If he no longer lives there, it would appear that they cannot be used.  There may well therefore be arguments that purely non-molestation DVPNs can also include 'exclusion zone' type provisions to keep P away from his former home or V's new home (in the same way that courts now, with doubtful jurisdiction, include exclusion zone provisions in non-molestation orders under Part IV).

The contents of a DVPN must comply with cl 22.  A DVPN must state the grounds on which it has been issued, ie recite the police officer's reasonable grounds for believing there has been domestic violence etc.  It must state that if a police officer has reasonable grounds for believing P to be in breach of its terms, P can be arrested without the need for a warrant.  It must also set out the next stages, ie that there will be a hearing in the magistrates' court within 48 hours of service of the notice, that the notice will continue until the application has been determined, and the extent of the magistrates' court's powers to make a DVPO.  The notice must be in writing and served personally on P by a police officer.   On service, P must be asked for an address, which will be the address to which notice of the magistrates' court hearing will be sent.

It will be apparent from the above that breach of a DVPN can lead to P's arrest.  On being arrested, cl 23 states that, once arrested, P must be taken to the magistrates' court within 24 hours (ignoring Sundays and bank holidays etc4) of the arrest, or at the hearing of the application for the DVPO if earlier.  The court has the power to remand P when he is brought before the court.  These remands can either be on bail or in custody.5  A remand cannot be for longer than eight clear days unless P and the police consent to a longer remand, or remands are made for medical reports to be obtained. Curiously, there is no other sanction for breach of the DVPN.  P can be arrested, and may also be remanded in custody, and breaching a DVPN will make the magistrates much more likely to make a DVPO, but once the court has made a DVPO, there will be no further consequence to him for breaching a DVPN.

The DVPO
Once a DVPN has been issued, the police must apply for a DVPO, which is made by complaint in the magistrates' court.  It is therefore a civil proceeding.  The application must be heard within 48 hours of service of the DVPN (again ignoring Sundays and bank holidays etc).7  P must be 'given notice' of the hearing (note not personally served with notice of the hearing), and if he gave an address to the police when he was served with the DVPN, he will be deemed to have had notice if the hearing notice has been left at that address.  If P declined to give an address for service of the DVPO application when served with the DVPN, and the police have not been able to give him notice of the DVPO hearing, the court can still proceed with the DVPO application if satisfied that the police have made reasonable efforts to give him notice.  If P has been given notice but does not attend, and the magistrates choose not to proceed in his absence, they may issue a warrant for P's arrest so that he attends the adjourned hearing.8

The basic structure of these new provisions is that the DVPN should last for 48 hours (excluding Sundays and bank holidays etc), and then the matter comes before the court.  However, under cl 24(8), the magistrates can adjourn the hearing of the DVPO application, and if they do adjourn, the DVPN continues in effect until the DVPO application has been determined.  Thus, an administrative power to exclude a person from his home, initially intended to last only for 48 hours, can in effect be extended indefinitely by the proceedings being adjourned.  It is easy to envisage adjournments being granted owing to lack of court time or because the police are not ready with evidence they might wish to present.  The magistrates' options are: (i) issue a DVPO, (ii) dismiss the application for a DVPO, or (iii) adjourn the application.  If they adjourn, they have no power to vary the terms of the DVPN in the interim.  That provides a strong argument against any adjournment, given that it simply extends the notice by default.  There is surely an argument for a DVPN having a maximum duration beyond which it lapses automatically, otherwise there is nothing to stop the 48 hours becoming say 48 days if the application is adjourned (and there is nothing to stop multiple adjournments, even though the court will have the power to proceed in P's absence if reasonable efforts have been made to give him notice of the hearing).

The court's decision-making process
Two conditions must be met before the magistrates' court can make a DVPO.  First, it must be satisfied, on the balance of probabilities, that P has been violent towards or has threatened violence towards an associated person, ie V.  Secondly, the court must 'think that making the DVPO is necessary to protect V from violence or a threat of violence by P'.  As with the officer making a DVPN, the court must also take into account the views, of which it is made aware, of V, and where making 'occupation' type provisions, the views of any other person associated with P, as to whether or not an order should be made and in what terms.9  The court can nevertheless issue a DVPO against V's wishes.  Unless V has given oral evidence at court or provided a written statement to be used at the hearing, she cannot be compelled to attend the hearing or give any evidence at the hearing.10  It seems however that if she has given a written statement, or given oral evidence at a hearing, but later changes her mind about attending court, she can be summoned to court to give oral evidence.

As with DVPNs, the DVPO must contain a non-molestation provision, and again this may prohibit molestation in general, or particular acts of molestation, or both.  Similarly, the court has a discretion to include in the DVPO the same kind of 'occupation order' type provisions which may be inserted into the DVPN.  As with DVPNs, these are only available where P 'lives in' premises which are also lived in by V (presumably, if the DVPN excluded him from the premises, 'lived in' at the date of the notice, which might be some time before the hearing if the hearing has been adjourned).  The magistrates have a fresh discretion whether or not to include these 'occupation' type provisions.  Merely because the DVPN required P to leave the home, the court will not be bound to include in the DVPO an order for him to stay away.  Likewise the absence of any requirement for P to leave the home in the DVPN will not prevent the court including provision for him to leave in the DVPO.

The DVPO can be made for between 14 and 28 days inclusive, beginning on the day on which it is made, and the order must state its duration, as well as the fact that P may be arrested without warrant if a police officer has reasonable grounds for him being in breach.  If so arrested, under cl 26, he must be brought before the magistrates' court within 24 hours (ignoring Sundays and bank holidays etc) of his arrest, and may be remanded when produced at court.  The Bill itself contains no further provisions as to the consequences of a breach of a DVPO.  It is clearly not a criminal offence to breach a DVPO (unlike a non-molestation order which might subsequently be made).  However, although the explanatory memorandum is silent on this issue, there is nothing to prevent the court committing P to prison for a breach of a DVPO for a maximum of two months under s 63 of the Magistrates' Courts Act 1980, and it must be assumed that this is the intended method of enforcement for a breach of a DVPO.

Before the Bill becomes law, the Home Secretary is to issue guidance for the police in relation to their powers under the new provisions.  The police must, when exercising their new powers, have regard to this guidance.  In addition, cl 30 allows the Home Secretary to test out the provisions by pilot schemes in limited geographical areas.

Comment
The intention behind these proposals is to allow the police to take short-term action to protect a person from domestic violence, where the person might in fact be unwilling or unable to take steps to protect themselves.  The administrative notice should last for only 48 hours, but there is a glaring loophole on the face of the Bill which does nothing to prevent any number of adjournments of the hearing for the DVPO, and thus extending the 48 hours into many days or weeks.  Whilst Article 8 rights are engaged by the notion of an administrative direction to leave the family home, if the proposals are tightened up so as to prevent the DVPN continuing beyond a maximum duration, a Human Rights Act challenge does not look promising.  In addition, the notion that the application for a DVPO can be adjourned for three weeks while P is remanded in custody so that medical reports can be obtained does not sit well with the idea that these powers are to be used at an early stage whilst V can go off and obtain advice herself.  There may be every reason why, when P has been arrested for breach of a DVPO, there should be such a lengthy remand.  It is less attractive for someone to be deprived of their liberty on arrest for such a period for breach of a DVPN, ie when there are reasonable grounds to believe they are in breach of an administrative direction, itself made only on there being reasonable grounds that there has been domestic violence.

Are the new powers necessary?  Sitting sad and unimplemented on the statute book is s 60 of the Family Law Act 1996, which would allow rules of court to be made to permit the police (or other persons) to bring an application for orders under Part IV on behalf of victims of domestic violence.  Those provisions also allowed for a pilot process, but did not involve separate proceedings.  One advantage of the s 60 route is that there would be one set of proceedings, so that for instance the evidence used in the police's application would automatically be available to all the parties in later proceedings.   In addition, proceedings for a DVPO are not family proceedings, so the court would not have power, for instance, to make a s 8 order of its own motion.  The s 60 procedure could be made available in a wider range of circumstances.  The Bill's provisions only allow the police to issue notices where there are reasonable grounds to believe there has been violence or the threat of violence.  Under s 60(3), if brought into force, the preconditions were to be left to the rules of court (and the Law Commission's draft Bill had recommended that a constable could apply if there was reasonable cause to believe there had been violence, threatened violence, or molestation).11  It was the then Labour opposition who proposed what has become s 60 of the 1996 Act.  When it came to power, the government view was to await and see how representative injunction actions such as ASBO's worked in practice before deciding whether to implement s 60.  In fact, the court's powers to make orders and injunctions to protect people on applications by persons other than those to be protected have grown and grown over the years.  The latest example is the ability of local authorities to apply for forced marriage protection orders under Part 4A of the 1996 Act.

Most of the Bill's provisions therefore might easily be achieved by bringing s60 of the 1996 Act into force.  The only new power the Bill adds is the 'go order', the DVPN, the administrative power to order a suspected perpetrator of domestic violence to leave the home.  Of course, the police can arrest persons who are suspected of committing criminal offences, and it might be argued that the DVPN power adds little.   In any event, if this new power were still considered necessary, a more elegant next step would be to provide that, once a DVPN is issued, the police must bring an application under Part IV on behalf of V.

Michael Horton
Coram Chambers


 Notes

[1] See http://www.homeoffice.gov.uk/documents/cons-2009-vaw/ 
[2] Superintendent or higher: cl 21(1).
[3] See cl 21(9).
[4] As in s 47(7) of the Family Law Act 1996, the periods of 24 hours and 48 hours exclude Sundays, Christmas Day, Good Friday and bank holidays: cl 23(4).
[5] See s 128 of the Magistrates' Courts Act 1980.
[6] Clause 27(3) to (7) replicates s 48(1) to (3) of the Family Law Act 1996 (remands may be made for the purposes of obtaining a medical report, and may be for that purpose not more than 3 weeks at a time in custody, or 4 weeks at a time on bail), s 48(4) (remand to hospital as if under s 35 of the Mental Health Act 1983 where P appears to suffer from a mental illness), and s 47(12) (bail conditions may be imposed to prevent interference with witnesses or otherwise obstructing the course of justice).
[7] See cl 24(4).
[8] Section 55(2) of the Magistrates' Courts Act 1980.
[9] The draft Bill is ambiguous here.  In cl 21(3), in relation to the issue of a DVPN, the views of P and ... any other associated person who lives in the premises, must be considered.  That provision thus reads as if the other persons must be associated with P.  In cl 25(4), the court must first consider the views of the person to be protected, and secondly of any associated person who lives in the premises.  This reads more like the other persons must be associated with the person to be protected.  In most cases, it may not make a difference.
[10] See cl 24(10), disapplying the provisions of s 97 of the Magistrates' Courts Act 1980, which allow for a material witness to be summoned to attend, or even for the warrant for the arrest of a material witness so that they attend court.
[11] See Michael Horton, Family Homes and Domestic Violence: The New Legislation (FT Law & Tax 1996), pp 166-172, for more details of the legislative history of section 60 of the 1996 Act.