Domestic Abuse Bill (HC Bill 422)

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60 Definition of “personally connected”

(1) For the purposes of this Part, two people (“A” and “B”) are “personally
connected” to each other if any of the following applies—

(a) they are, or have been, married to each other;

(b) 5they are, or have been, civil partners of each other;

(c) they are living together, or have lived together, as if married or in a civil
partnership;

(d) they are, or have been, otherwise in an intimate personal relationship
with each other;

(e) 10they are members of the same family (see subsections (2) and (3)).

(2) A and B are members of the same family if B is A’s parent, grandparent, child,
grandchild, brother or sister.

(3) A and B are also members of the same family if—

(a) one of them is in a relevant relationship with another person (“C”), and

(b) 15the other of them is C’s parent, grandparent, child, grandchild, brother
or sister.

(4) The reference in subsection (3)(a) to being in a relevant relationship is a
reference to—

(a) being married or in a civil partnership, or

(b) 20living together as if married or in a civil partnership.

(5) For the purposes of subsections (2) and (3)—

(a) a relationship of the half blood or by affinity is to be treated as a
relationship of the whole blood, and

(b) the stepchild of a person is to be treated as that person’s child.

61 25Behaviour occurring outside the UK

(1) If—

(a) a person’s course of behaviour consists of or includes behaviour
occurring in a country outside the United Kingdom,

(b) the course of behaviour would constitute the domestic abuse offence if
30it occurred in Northern Ireland, and

(c) the person is a United Kingdom national or is habitually resident in
Northern Ireland,

the person commits the domestic abuse offence.

(2) If the course of behaviour occurs wholly outside the United Kingdom—

(a) 35proceedings for the offence may be taken in Northern Ireland, and

(b) the offence may for incidental purposes be treated as having been
committed in Northern Ireland.

(3) In this section—

  • “country” includes territory;

  • 40“United Kingdom national” means an individual who is—

    (a)

    a British citizen, a British overseas territories citizen, a British
    National (Overseas) or a British Overseas citizen,

    (b)

    a person who under the British Nationality Act 1981 is a British
    subject, or

    (c)

    45a British protected person within the meaning of that Act.

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62 Exception for persons having responsibility for children

(1) A person (“A”) does not commit the domestic abuse offence in relation to
another person (“B”) by engaging in any behaviour that is abusive of B at a time
when—

(a) 5B is under the age of 18, and

(b) A has responsibility for B.

(2) Section 36 of the Children and Young Persons Act (Northern Ireland) 1968
applies for the purposes of determining whether A has responsibility for B as
it applies for the purposes of determining whether a person has responsibility
10for a child or young person within the meaning of that Act.

63 Defence on grounds of reasonableness

(1) In proceedings in respect of a charge of the domestic abuse offence, it is a
defence for a person to show that the course of behaviour was reasonable in the
particular circumstances.

(2) 15That is shown if—

(a) evidence adduced is enough to raise an issue as to whether the course
of behaviour was as described in subsection (1), and

(b) the prosecution does not prove beyond reasonable doubt that the
course of behaviour was not as described in subsection (1).

64 20Alternative available for conviction

(1) In proceedings in respect of a charge against a person (“A”) of the domestic
abuse offence, A may be convicted of an alternative offence if the facts proved
against A—

(a) do not amount to the domestic abuse offence, but

(b) 25do amount to the alternative offence.

(2) For the purposes of subsection (1) the alternative offences are—

(a) an offence under Article 4 of the Protection from Harassment (Northern
Ireland) Order 1997 (S.I. 1997/1180 (N.I. 9)S.I. 1997/1180 (N.I. 9)) (harassment);

(b) an offence under Article 6 of that Order (putting people in fear of
30violence).

65 Penalty for the offence

A person who commits the domestic abuse offence is liable—

(a) on summary conviction, to imprisonment for a term not exceeding 12
months or a fine not exceeding the statutory maximum, or both;

(b) 35on conviction on indictment, to imprisonment for a term not exceeding
14 years or a fine, or both.

Aggravation of offence

66 Aggravation of offence where victim is under 18

(1) A charge of the domestic abuse offence against a person (“A”) may include an
40allegation that the offence is aggravated by reason of the person in relation to

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whom the offence is alleged to have been committed (“B”) having been under
the age of 18 at the time of any of the behaviour constituting the offence.

(2) Subsection (3) applies where—

(a) A is charged as mentioned in subsection (1), and

(b) 5the charge is proved.

(3) The court must—

(a) state on conviction that the offence is aggravated by reason of B having
been under the age of 18 as mentioned in subsection (1),

(b) record the conviction in a way that shows that the offence is so
10aggravated,

(c) in determining the appropriate sentence, treat the fact that the offence
is so aggravated as a factor that increases the seriousness of the offence,
and

(d) in imposing sentence, explain how the fact that the offence is so
15aggravated affects the sentence imposed.

(4) If the charge—

(a) is not proved as respects the allegation of aggravation, but

(b) is otherwise proved,

A may be convicted of the charge under deletion of the allegation of
20aggravation.

67 Aggravation of offence where child is otherwise involved

(1) A charge of the domestic abuse offence against a person (“A”) may include an
allegation that the offence is aggravated by reason of involving a relevant child.

(2) For the purposes of this section, “relevant child” means a person under the age
25of 18 who is not A or B.

In this section “B” is the person in relation to whom the offence is alleged to
have been committed.

(3) For the purposes of this section, the domestic abuse offence is aggravated by
reason of involving a relevant child if—

(a) 30at any time in the commission of the offence—

(i) A directed behaviour at the child, or

(ii) A made use of the child in directing behaviour at B, or

(b) the child saw or heard, or was present during, an incident of behaviour
which A directed at B as part of the course of behaviour.

(4) 35 Subsection (5) applies where—

(a) A is charged as mentioned in subsection (1), and

(b) the charge is proved.

(5) The court must—

(a) state on conviction that the offence is aggravated by reason of involving
40a relevant child,

(b) record the conviction in a way that shows that the offence is so
aggravated,

(c) in determining the appropriate sentence, treat the fact that the offence
is so aggravated as a factor that increases the seriousness of the offence,
45and

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(d) in imposing sentence, explain how the fact that the offence is so
aggravated affects the sentence imposed.

(6) If the charge—

(a) is not proved as respects the allegation of aggravation, but

(b) 5is otherwise proved,

A may be convicted of the charge under deletion of the allegation of
aggravation.

Procedural matters

68 Relationship taken as established if not challenged

(1) 10In proceedings in respect of a charge of the domestic abuse offence against a
person (“A”), the prosecutor may serve notice on A, or A’s solicitor, proposing
that the matter of A and B being personally connected, as required for the proof
of the charge, be taken as established for the purposes of the proceedings.

In this subsection “B” is the person in relation to whom the offence is alleged
15to have been committed.

(2) A notice under subsection (1) must be served no later than the point in the
proceedings when the prosecutor complies with section 3 of the Criminal
Procedure and Investigations Act 1996 or purports to comply with it.

(3) If a notice under subsection (1) is served in accordance with this section, the
20matter is to be taken as so established unless it is challenged as provided for in
subsection (4).

(4) The matter is challenged by—

(a) A or A’s solicitor serving on the Director of Public Prosecutions for
Northern Ireland, not later than the seventh day after the day of the
25service of the prosecutor’s notice under subsection (1), a notice of
objection stating the reason for objection, or

(b) such later objection as the court allows in special circumstances.

(5) A notice for the purposes of this section must be in writing.

69 Service of notices under section 68

(1) 30This section contains provision about the service of notices under section 68.

(2) References in this section to a person’s proper address are to—

(a) where the person is the person charged, the person’s usual or last
known address;

(b) where the person is—

(i) 35the solicitor of the person charged, or

(ii) the Director of Public Prosecutions for Northern Ireland,

the address of the person’s office.

(3) Notice is served on a person by—

(a) handing it to the person,

(b) 40leaving it at the person’s proper address,

(c) sending it by post to the person at the person’s proper address, or

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(d) where subsection (4) applies, sending it to the person by electronic
means.

(4) This subsection applies where—

(a) the person on whom the notice is to be served has indicated that it may
5be served on the person by being sent to an electronic address and in an
electronic form specified for that purpose, and

(b) the notice is sent to that address in that form.

(5) In subsection (4)(a) “electronic address” means any number or address used for
the purposes of sending or receiving documents or information by electronic
10means.

(6) A notice sent by electronic means is, unless the contrary is proved, to be treated
as having been served at 9 a.m. on the working day immediately following the
day on which it was sent.

(7) In subsection (6) “working day” means a day other than a Sunday or a public
15holiday.

(8) In its application to service under this section, section 24(1) of the
Interpretation Act (Northern Ireland) 1954 applies as if the reference in it to the
person’s usual or last known place of abode or business were a reference to the
person’s proper address.

70 20No right to claim trial by jury in summary proceedings

In Article 29(1) of the Magistrates’ Courts (Northern Ireland) Order 1981 (S.I.
1981/1675 (N.I. 26)) (right to claim trial by jury for certain summary offences),
after sub-paragraph (p) insert—

(q) section 57 of the Domestic Abuse Act 2019 (the domestic abuse
25offence).”

71 No cross-examination by accused in person

(1) The Criminal Evidence (Northern Ireland) Order 1999 (S.I. 1999/2789 (N.I. 8)S.I. 1999/2789 (N.I. 8))
is amended as follows.

(2) After Article 22 insert—

22A 30Complainants in proceedings for the domestic abuse offence

No person charged with the domestic abuse offence (see section 57 of
the Domestic Abuse Act 2019) may in any criminal proceedings cross-
examine in person a witness who is the complainant, either—

(a) in connection with that offence, or

(b) 35in connection with any other offence (of whatever nature) with
which that person is charged in the proceedings.”

(3) In Article 23 (child complainants and other child witnesses)—

(a) in paragraph (3), after sub-paragraph (cc) insert—

(cd) the domestic abuse offence (see section 57 of the
40Domestic Abuse Act 2019);”;

(b) in paragraph (4)(a), for “or (cc)” substitute “, (cc) or (cd)”.

(4) In Article 24 (direction prohibiting accused from cross-examining particular
witness)—

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(a) in paragraph (1), for “neither of Articles 22 and 23” substitute “none of
Articles 22, 22A and 23”;

(b) in paragraph (3)(e)—

(i) after “Article”, where it first occurs, insert “22A or”, and

(ii) 5after “22” insert “, 22A”.

(5) In Article 26(1) (defence representation for purposes of cross-examination),
after “22,” insert “22A,”.

(6) In Article 27(1) (warning to jury), after “22,” insert “22A,”.

72 Special measures for witnesses

(1) 10Part 2 of the Criminal Evidence (Northern Ireland) Order 1999 (S.I. 1999/2789S.I. 1999/2789
(N.I. 8)) (special measures directions in case of vulnerable and intimidated
witnesses) is amended as follows.

(2) In Article 5 (witnesses eligible for assistance on grounds of fear or distress
about testifying)—

(a) 15in paragraph (4), for “a sexual offence or a slavery or human trafficking
offence” substitute “an offence listed in paragraph (5)”;

(b) after paragraph (4) insert—

(5) The offences are—

(a) a sexual offence;

(b) 20a slavery or human trafficking offence;

(c) the domestic abuse offence (see section 57 of the
Domestic Abuse Act 2019).”

(3) In Article 13(4)(a) (evidence given in private), for “a sexual offence or a slavery
or human trafficking offence” substitute “an offence listed in Article 5(5)”.

25Guidance and interpretation

73 Guidance about investigation of offences

(1) The Department of Justice in Northern Ireland (“the Department”) may issue
guidance about the investigation of the domestic abuse offence to whatever
persons the Department considers appropriate.

(2) 30The Department may revise any guidance issued under this section.

(3) The Department must arrange for any guidance issued or revised under this
section to be published.

74 Application of Interpretation Act (Northern Ireland) 1954

The Interpretation Act (Northern Ireland) 1954 applies for the purposes of this
35Part as it applies to an Act of the Northern Ireland Assembly.

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Part 3 Prohibition on cross-examination in person in family proceedings

75 Prohibition of cross-examination in person in family proceedings

In the Matrimonial and Family Proceedings Act 1984, after Part 4A insert—

“Part 4B

Family proceedings: prohibition of cross-examination in person

31Q 5Prohibition of cross-examination in person: introductory

In this Part—

  • “the court” means the family court or the High Court;

  • “family proceedings” means—

    (a)

    proceedings in the family court, and

    (b)

    10proceedings in the Family Division of the High Court
    which are business assigned, by or under section 61 of
    (and Schedule 1 to) the Senior Courts Act 1981, to that
    Division of the High Court and no other;

  • “witness”, in relation to any proceedings, includes a party to the
    15proceedings.

31R Prohibition of cross-examination in person: victims of offences

(1) In family proceedings, no party to the proceedings who has been
convicted of or given a caution for, or is charged with, a specified
offence may cross-examine in person a witness who is the victim, or
20alleged victim, of that offence.

(2) In family proceedings, no party to the proceedings who is the victim, or
alleged victim, of a specified offence may cross-examine in person a
witness who has been convicted of or given a caution for, or is charged
with, that offence.

(3) 25Subsections (1) and (2) do not apply to a conviction or caution that is
spent for the purposes of the Rehabilitation of Offenders Act 1974,
unless evidence in relation to the conviction or caution is admissible in,
or may be required in, the proceedings by virtue of section 7(2), (3) or
(4) of that Act.

(4) 30Cross-examination in breach of subsection (1) or (2) does not affect the
validity of a decision of the court in the proceedings if the court was not
aware of the conviction, caution or charge when the cross-examination
took place.

(5) In this section—

  • 35“caution” means—

    (a)

    a conditional caution given under section 22 of the
    Criminal Justice Act 2003;

    (b)

    a youth conditional caution given under section 66A of
    the Crime and Disorder Act 1998;

    (c)

    40any other caution given to a person in England and
    Wales or Northern Ireland in respect of an offence

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    which, at the time the caution is given, that person has
    admitted;

    (d)

    anything corresponding to a caution falling within
    paragraph (a), (b) or (c) (however described) which is
    5given to a person in respect of an offence under the law
    of Scotland;

  • “conviction” means—

    (a)

    a conviction before a court in England and Wales,
    Scotland or Northern Ireland;

    (b)

    10a conviction in service disciplinary proceedings (in
    England and Wales, Scotland, Northern Ireland, or
    elsewhere);

    (c)

    a finding in any criminal proceedings (including a
    finding linked with a finding of insanity) that the person
    15concerned has committed an offence or done the act or
    made the omission charged;

    and “convicted” is to be read accordingly;

  • “service disciplinary proceedings” means—

    (a)

    any proceedings (whether or not before a court) in
    20respect of a service offence within the meaning of the
    Armed Forces Act 2006 (except proceedings before a
    civilian court within the meaning of that Act);

    (b)

    any proceedings under the Army Act 1955, the Air Force
    Act 1955, or the Naval Discipline Act 1957 (whether
    25before a court-martial or before any other court or
    person authorised under any of those Acts to award a
    punishment in respect of an offence);

    (c)

    any proceedings before a Standing Civilian Court
    established under the Armed Forces Act 1976;

  • 30“specified offence” means an offence which is specified, or of a
    description specified, in regulations made by the Lord
    Chancellor.

(6) The following provisions (which deem a conviction of a person
discharged not to be a conviction) do not apply for the purposes of this
35section to a conviction of a person for an offence in respect of which an
order has been made discharging the person absolutely or
conditionally—

(a) section 14 of the Powers of Criminal Courts (Sentencing) Act
2000;

(b) 40section 187 of the Armed Forces Act 2006 or any corresponding
earlier enactment.

(7) For the purposes of this section “offence” includes an offence under a
law that is no longer in force.

31S Prohibition of cross-examination in person: persons protected by
45injunctions etc

(1) In family proceedings, no party to the proceedings against whom an
on-notice protective injunction is in force may cross-examine in person
a witness who is protected by the injunction.

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(2) In family proceedings, no party to the proceedings who is protected by
an on-notice protective injunction may cross-examine in person a
witness against whom the injunction is in force.

(3) Cross-examination in breach of subsection (1) or (2) does not affect the
5validity of a decision of the court in the proceedings if the court was not
aware of the protective injunction when the cross-examination took
place.

(4) In this section “protective injunction” means an order, injunction or
interdict specified, or of a description specified, in regulations made by
10the Lord Chancellor.

(5) For the purposes of this section, a protective injunction is an “on-notice”
protective injunction if—

(a) the court is satisfied that there has been a hearing at which the
person against whom the protective injunction is in force asked,
15or could have asked, for the injunction to be set aside or varied,
or

(b) the protective injunction was made at a hearing of which the
court is satisfied that both the person who applied for it and the
person against whom it is in force had notice.

31T 20Direction for prohibition of cross-examination in person: other cases

(1) In family proceedings, the court may give a direction prohibiting a
party to the proceedings from cross-examining (or continuing to cross-
examine) a witness in person if—

(a) neither section 31R nor section 31S operates to prevent the party
25from cross-examining the witness, and

(b) it appears to the court that—

(i) the quality condition or the significant distress
condition is met, and

(ii) it would not be contrary to the interests of justice to give
30the direction.

(2) The “quality condition” is met if the quality of evidence given by the
witness on cross-examination—

(a) is likely to be diminished if the cross-examination (or continued
cross-examination) is conducted by the party in person, and

(b) 35would be likely to be improved if a direction were given under
this section.

(3) The “significant distress condition” is met if—

(a) the cross-examination (or continued cross-examination) of the
witness by the party in person would be likely to cause
40significant distress to the witness or the party, and

(b) that distress is likely to be more significant than would be the
case if the witness were cross-examined other than by the party
in person.

(4) A direction under this section may be made by the court—

(a) 45on an application made by a party to the proceedings, or

(b) of its own motion.

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(5) In determining whether the quality condition or the significant distress
condition is met in the case of a witness or party, the court must have
regard, among other things, to—

(a) any views expressed by the witness as to whether or not the
5witness is content to be cross-examined by the party in person;

(b) any views expressed by the party as to whether or not the party
is content to cross-examine the witness in person;

(c) the nature of the questions likely to be asked, having regard to
the issues in the proceedings;

(d) 10any behaviour by the party in relation to the witness in respect
of which the court is aware that a finding of fact has been made
in the proceedings or any other family proceedings;

(e) any behaviour by the witness in relation to the party in respect
of which the court is aware that a finding of fact has been made
15in the proceedings or any other family proceedings;

(f) any behaviour by the party at any stage of the proceedings, both
generally and in relation to the witness;

(g) any behaviour by the witness at any stage of the proceedings,
both generally and in relation to the party;

(h) 20any relationship (of whatever nature) between the witness and
the party.

(6) Any reference in this section to the quality of a witness’s evidence are
to its quality in terms of completeness, coherence and accuracy.

(7) For this purpose “coherence” refers to a witness’s ability in giving
25evidence to give answers which—

(a) address the questions put to the witness, and

(b) can be understood, both individually and collectively.

31U Directions under section 31T: supplementary

(1) A direction under section 31T has binding effect from the time it is
30made until the witness in relation to whom it applies is discharged.

(2) But the court may revoke a direction under section 31T before the
witness is discharged, if it appears to the court to be in the interests of
justice to do so, either—

(a) on an application made by a party to the proceedings, or

(b) 35of its own motion.

(3) The court may revoke a direction under section 31T on an application
made by a party to the proceedings only if there has been a material
change of circumstances since—

(a) the direction was given, or

(b) 40if a previous application has been made by a party to the
proceedings, the application (or the last application) was
determined.

(4) The court must state its reasons for—

(a) giving a direction under section 31T;

(b) 45refusing an application for a direction under section 31T;

(c) revoking a direction under section 31T;