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Domestic Violence Prevention and Punishment - A Multi-faceted Approach

Syvil Lloyd Morris, Director of Famil Law at Bastian Lloyd Morris Solicitor Advocates, considers the developing interrelationship between the criminal and family jurisdictions in relation to cases of domestic violence.

Syvil Lloyd Morris, Solicitor Advocate, Bastian Lloyd Morris

 

 














Syvil Lloyd Morris, Solicitor Advocate, Bastian Lloyd Morris Solicitor Advocates

Multi-agency working in the field of domestic violence has now progressed from a mere shibboleth, flowing from the tongue fluently, to a firmly entrenched principle, with protection of the vulnerable at its heart. This is especially apparent from a detailed consideration of the interplay between the criminal law and family law in relation to cases of domestic violence. There are a number of criminal law provisions which nicely dovetail with, or in some cases pragmatically plug the practical gaps in relation to, family law injunctive relief. The recent introduction of domestic violence protection notices (DVPNs) and domestic violence protection orders (DVPOs) neatly exemplifies the interface between criminal law and family law, whilst at the same time highlighting the dichotomy between the two areas. It is to a detailed consideration of all these matters that we shall now turn.

Although the term 'victim' may be perceived negatively by some agencies, we have used this in preference to the term 'survivor' as what follows is an analysis of the legal system's response to domestic violence rather than a commentary on domestic violence as a sociological phenomenon. We hope that this is not seen as hegemonic or hostile rigidity. In this article the terms 'domestic violence' and 'domestic abuse' are used interchangeably unless the context admits otherwise.

Prosecution of domestic violence
Since the 2007-08 review of England and Wales' Specialist Domestic Violence Courts (Justice with Safety) and prosecutors being given progressively more detailed guidance in relation to the prosecution of domestic violence cases (see CPS Policy for Prosecuting Cases of Domestic Violence and CPS Guidance on Prosecuting Cases of Domestic Violence)  the criminal justice system has become increasingly more aware of the need for 'joined up' thinking when working with domestic violence agencies.

This principle is very eloquently captured in the guidance given to prosecutors:

'Regular liaison with Independent Domestic Violence Advisers [IDVAs] (where in place), Witness Care Units (WCUs), and voluntary sector support organisations, is recommended to ensure the victim's safety and support needs are properly understood and addressed. This will also assist prosecutors with receiving regular updates about a victim's situation to inform the prosecution's next steps; similarly, police and prosecutors should keep all linked support services updated with actions taken.'

In 2008 similar sentiments were expressed by the Association of Chief Police Officers (ACPO) in their Guidance for Investigating Domestic Abuse. It is this type of enhanced awareness of the labyrinthine complexities of domestic abuse, and the many forms that it takes, and the need for a coordinated response that have led the CPS and ACPO to recently agree a protocol in relation to allegations of stalking (Protocol on the Appropriate Handling of Stalking Offences between the Crown Prosecution Service and ACPO). All of this is very far from the former practice of 'no crime-ing' incidents of domestic violence because of 'plausible explanations' of lawful self-defence or accident, or taking no further action (NFA) on the pretext that such incidents must by definition be  'minor.'

Overcoming hurdles in the criminal justice system
Weaknesses (we prefer the term 'hurdles') present in the criminal justice system may result in an inevitable 'justice gap', that is the difference between the number of crimes reported and the number of perpetrators brought to justice. However it is now axiomatic that in the context of domestic violence little is to be gained from a system which takes so long to prepare a case on behalf of the State that the momentum of the prosecution (not to mention the resolve of the victim) is lost. Prosecutors and the police would now be acutely embarrassed to discontinue a prosecution without first closely scrutinising the victim's withdrawal statement to assess the substance of the reason for the withdrawal in detail, or ascertain whether or not this has been made under duress. Nor is there anything at all to commend a criminal justice system which allows the victim, in effect to become re-victimised by the process.

Furthermore whilst the adversarial prosecution system might present the victim with certain systemic hurdles, this does not mean that procedures that equate to metaphorical springboards should not be implemented to assist the victim. It is this type of analysis that has led to, for example, victims of domestic violence being cross-examined only by court appointed solicitors and not directly by the defendant. There are other 'special measures', such as the victim being permitted to give evidence behind a screen, that are designed to achieve 'best evidence.' A further example is presented by hearsay evidence being automatically admissible in applications for a DVPO (r.4 Magistrates' Courts (Domestic Violence Protection Order Proceedings) Rules 2011). 

Courts may require convicted defendants to attend domestic violence perpetrator programs. Bind-overs may be made even in circumstances where an alleged offender has been acquitted (see R v Sharp 41 Cr.App.R 86; R v Biffen [1966] Crim.L.R.111).

In fact in some cases the making of a 'purely criminal' protective measure, such as a restraining order, might completely obviate the need for family law injunctive relief. This type of 'value added' approach adds substance to the CPS claim that it will always consider it to be in the public interest to prosecute cases of domestic violence and will indeed do so if there is sufficient evidence to secure a conviction. The 'sufficiency of evidence' test is a tension which at once ensures objectivity, fairness, a proper use of resources and in particular a focus on the need for excellence when gathering evidence.

The DPP has recently stressed the inter-relatedness between the two systems by reminding prosecutors that the existence of civil proceedings does not mean that criminal proceedings cannot be commenced or continued (see the CPS Prosecution of Domestic Violence Cases). Fact finding hearings in care proceedings are an example of the converse being true.

MARACs, MAPPAs and MASHs
Multi-agency Risk Assessment Conferences (MARACs) widely introduced in 2006-07 (although the first MARAC was held in Cardiff in 2003) manifest many of the 'value-added' benefits that are to be gained from a collaborative process. MARACs are meetings attended by a broad range of local statutory and voluntary agencies (for example the police, probation, social services and counseling services) to identify and intervene in high-risk cases of domestic violence. Their aim is to design and implement a custom-made plan to meet the needs of each specific victim and their children.

Domestic violence cases may also be included in other local public protection systems such as Multi Agency Public Protection Arrangements (MAPPA) and Multi-Agency Safeguarding Hubs (MASH). The former focuses on convicted offenders assessed as posing the highest risk of serious harm, whereas the latter focuses on prevention, early intervention, awareness raising and support and protection for victims, with the aim of preventing abuse and trying to end repeat victimisation.

New specific offences
Although it can be argued that the proposal to create a specific offence of domestic violence is perhaps an otiose one, in our view it is a most serviceable testament to the proposition that a crucial aspect of the process of providing permanent, as well as immediate, protection is the interface between criminal law and family law. A specific offence of domestic violence might narrow the gap between prosecution of domestic abuse and long-term protection from domestic abuse. It might also reduce or eliminate any tendency to simply equate punishment with protection. This is an important consideration, as even a custodial sentence – even a lengthy one – does not automatically make the victim safe.

Furthermore, it is only rarely that the ending of an abusive relationship signals the end of the risk of continued abuse. Perpetrators cannot simply turn off the tap of power which fuels the need to exert control. This is most vividly exemplified by the recent phenomenon of 'revenge porn' where perpetrators post sexually explicit images of victims on social networking sites. Plans to create a new criminal offence to outlaw the practice which will be punishable by up to 2 years custody (see Criminal Justice and Courts Bill) are to be welcomed.

Domestic violence protection notices (DVPNs) and domestic violence protection orders (DVPOs)
2012 saw the completion of a 15 month pilot scheme in three police force areas. Here DVPNs (imposed by the police and lasting for up to 48 hours) and DVPOs (imposed by the magistrates' court and lasting for a minimum of 14 days and maximum of 28 days) were used to immediately remove violent perpetrators from households, following a domestic violence incident and to prevent their contact with, or molestation of victims. Although it is intellectually tempting to describe these measures, introduced by the Crime and Security Act 2010, as simple and expedient, it is important to note that the procedure can be invoked only where, in the view of the police, there are no other enforceable restrictions that can be placed on the alleged offender. This approach is to be contrasted with the Family Law Act 1996 which enables the court to grant injunctive relief without notice where it is 'just and convenient' to do so (FLA 1996, s 45(1)). However, although ex parte non-molestation orders are routinely granted, it would be exceptional for an ex parte occupation order to be granted.

In care proceedings, family lawyers and practitioners are encouraged to adopt 'a global holistic approach' and to avoid a 'linear' approach (see  Re B-S (Children) [2013] EWCA Civ 1146). Certainly, one dimensional analysis results in one dimensional justice. It will therefore be interesting to see whether, as the jurisprudence develops in the law as it relates to DVPNs and DVPOs, successful challenges may be mounted on the basis that a less interventionist measure, such as a reprimand or even a restorative justice disposal, should have been used. Also, although conceptually it is difficult to see the distinction between a DVPN/DVPO on the one hand and police or court imposed bail conditions on the other, it is important to note that DVPOs and DVPNs are not symbiotically linked to an on-going investigation. This distinction is important because whilst a bail condition's primary purpose is to assist the investigatory process, the primary purpose of a DVPN or DVPO is to protect victims by giving them the time and space to consider their options, free from situational pressures. This may include taking legal advice from a family law specialist or liaising with statutory or voluntary services. DVPNs and DVPOs may be used as evidence of domestic violence for the purposes of solicitors devolving powers associated with the grant of public funding (see Civil Legal Aid (Procedure) Regulations 2012).

An inherent advantage of DVPNs/DVPOs is that the procedures remove from the victim the pressure of making urgent decisions about protective measures. Although the views of the victim are obviously an important consideration, the process is driven by the police at every stage. A victim's consent is not required. A police officer with the rank of superintendent decides whether to issue a DVPN. It is the police who must apply for a DVPO within 48 hours, if a DVPN has been issued. Although perpetrators must be given notice of DVPOs, victims are not required to attend court, unless their witness statement is to be relied on. This is to be contrasted with the procedure for obtaining a non-molestation order or an occupation order, which requires a victim's attendance at court and is heavily reliant upon the victim's statement (and resolve). It should however be noted that in family proceedings 'non-mols' can be made of the court's own motion (see FLA 1996, s 42(2)). 

DVPOs are not renewable and cannot be varied or revoked once made. By contrast, occupation orders may be made for a maximum of 6 months but can be renewed any number of times (FLA 1996, ss 35(10), 37(5); FLA 1996, ss 36(10), 38(6)). Non-molestation orders may be made for a specified period or until further order (FLA 1996, s 42(7)), but in practice they are usually time limited. These 'family law injunctions' are obviously a longer-term remedy (but see JM v CZ [2014] EWHC 1125 (Fam) – longer-term without notice non-molestation orders should not be made as this does not satisfy the requirement under s 45(3) for a full hearing as soon as reasonably possible). The recent President's Practice Guidance: Family Court – Duration of Ex Parte (Without Notice) Orders makes it clear that such orders should not be made for longer than 14 days. On the other hand, criminal restraining orders can be wide-ranging and may last indefinitely.

To undertake this type of differential analysis is not to 'prefer' the criminal procedure over the civil procedure (or vice versa) but to highlight the relative merits and de-merits of both for the purposes of exposition. In fact it is our view that here we see the criminal justice system holding hands with the family justice system to address the debilitating fear which perhaps years of abuse may have left victims with. The two systems first started to court each other in this way in 2007 when breach of a non-molestation order became a criminal offence, punishable by up to 5 years custody (s 1 Domestic Violence, Crime and Victims Act 2004; FLA 1996, s 42A).

The debilitating fear which might reduce some victims of domestic violence to inaction or irrationality is not to be underestimated, or indeed confused with ambivalence. In the consultation document entitled The Prosecution of Domestic Violence Cases, issued by the DPP in May 2014 , it is stated that ' Victims of domestic violence, particularly those who have suffered over considerable time, will have difficult decisions to make that will significantly impact on their lives, and the lives of those close to them. As a result, some victims may not want to go through the criminal justice process, preferring to make use of civil remedies and other safety and support mechanisms.'

On average victims suffer 35 incidents before reporting the matter to police (Jaffe, 1982). It is precisely for reasons such as this that DVPNs and DVPOs are rendered more effective, as a protective remedy, if the victim's refusal to consent to their imposition, even if stated in writing, is not a determining factor. The Interim Guidance Document for police however does sensibly provide that if a victim statement is not to be relied on but materially undermines the police case for a DVPO, then it must be disclosed to the court.

The nature of the abuse and the appropriateness of the response
DVPNs/DVPOs are subject to a legal test of 'necessary to protect from violence or a threat of violence' (see ss 24-26 and ss 27-29, Crime and Security Act 2010). Although there are no statutory guidelines or guidance evolved from case law on this test, it is submitted that the reasons for not having reported previous incidents and the nature of them are relevant considerations for police superintendents and magistrates. This is important because the Home Office definition of domestic violence includes financial, psychological and emotional abuse and it is not restricted to physical or sexual abuse. However it is only on the basis of actual or threatened physical violence that DVPNs or DVPOs may be considered. The relevant standard of proof in court is the civil one although breaches of DVPOs are litigated by reference to the normal criminal standard and punishable by a fine or up to 2 months custody. The Interim Guidance Document for Police provides that the ongoing management of DVPO cases 'should include a multi-agency approach.'

Although it would be tempting to conclude simply that physical and sexual violence are treated more seriously than psychological or emotional abuse by the criminal courts, such a conclusion would be rather less than didactic. We think that a distinction has to be drawn between an abusive threat to cause physical or sexual harm on the one hand, and an abusive threat to restrict financial support or physical intimacy on the other.  It is submitted that a quick comparison between the criminal and civil procedures will reveal why the distinction is a sensible one. In circumstances where victims are not required to give oral evidence on oath, it is submitted that allegations of psychological or emotional abuse are not justifiably addressable by DVPOs. However, it is at exactly this juncture that non-molestation orders step in to fill the void, as the family court will only make such orders if it has heard or received sworn evidence. To make this point should not be seen as offering any kind of commentary on comparative gravity between physical and emotional abuse, but to highlight the nature of the abuse that DVPOs are designed to address.

Conclusion
The interplay between criminal law provisions, multi-agency working and family law protective measures, in the context of domestic violence, is an important area. The escalation of awareness in this regard began in 2007 when it became a criminal offence to breach a non molestation order. The 2008 Review of Specialist Domestic Violence Courts highlighted the signal importance of multi-agency working to maintain a coordinated response to domestic violence. Institutional and incidental systemic hurdles may be matched by conceptual and practical springboards, which assist the victim. The DPP's 2014 consultation document usefully makes the point that criminal provisions are complementary to civil provisions, not mutually exclusive of them. This has been exemplified by our consideration of DVPNs and DVPOs which effectively deal with the mischief of violent perpetrators who, following an incident of domestic abuse, have been released from police custody without charge. The fact that they target instances of physical harm should not be interpreted as proof that emotional and psychological harm are treated less seriously. Such a suggestion may be described as an excellent falsehood, given the fact that a new offence of domestic violence may soon be on our statute books. Also it is trite law that the term 'molestation' includes emotional and psychological harm. Furthermore the practice of so-called 'revenge porn' has now been criminalised. In this way it can be seen that the gap between the punishment of perpetrators of domestic abuse and the long-term protection of victims from the threat of domestic abuse is becoming an increasingly narrow one.

6/11/14