11 Domestic abuse remains one of the most prevalent crimes in England and Wales. An estimated 2.4 million adults aged 16 to 74 experienced domestic abuse in the year ending March 2019, two-thirds of whom were women. 1 The police recorded 1,316,800 domestic abuse-related incidents and crimes in the same period and, of these, 57% were recorded as domestic abuse-related crimes; domestic abuse-related crimes recorded by the police accounted for 35% of violent crime. 2 Of the 366 domestic homicides recorded by the police between April 2016 and March 2018, 270 of the victims were women. 3
12 Domestic abuse is not limited to physical violence. It can include repeated patterns of abusive behaviour to maintain power and control in a relationship. The current non-statutory cross-government definition of domestic violence and abuse recognises this and defines domestic abuse as:
"Any incident or pattern of incidents of controlling, coercive or 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 sexuality. It can encompass, but is not limited to, the following types 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 their victim."
13 From 8 March to 31 May 2018 the then Government ran a public consultation on the Government’s approach to tackling domestic abuse. The aim of the proposals in the consultation is to prevent domestic abuse by challenging the acceptability of abuse and addressing the underlying attitudes and norms that perpetuate it. The consultation asked questions under four main themes with the central aim of prevention running through each:
● Promote awareness – to put domestic abuse at the top of everyone’s agenda, and raise public and professionals’ awareness;
● Protect and support – to enhance the safety of victims and the support that they receive;
● Pursue and deter – to provide an effective response to perpetrators from initial agency response through to conviction and management of offenders, including rehabilitation;
● Improve performance – to drive consistency and better performance in response to domestic abuse across all local areas, agencies and sectors.
14 The consultation sought views on a number of legislative and non-legislatives measures under each of these themes. The legislative measures, now incorporated in this Bill, included:
● introducing a new statutory definition of domestic abuse (Part 1);
● establishing a Domestic Abuse Commissioner in law (Part 2);
● creating a new domestic abuse protection notice and domestic abuse protection order (Part 3);
● creating a legislative assumption that domestic abuse victims are to be treated as eligible for special measures in criminal proceedings (Clause 58);
● prohibiting perpetrators of domestic abuse cross-examining their victims in family proceedings in England and Wales (Clause 59);
● extending the extraterritorial jurisdiction of the criminal courts in England and Wales to cover further violent and sexual offences (Clause 60 and Part 1 of Schedule 2);
● putting the guidance underpinning the Domestic Violence Disclosure Scheme on a statutory footing (Clause 64).
15 Some 3,150 responses were received to the consultation. In its response, published on 21 January 2019 alongside a draft Bill, the Government committed to legislate to introduce these measures.
16 The draft Bill was subject to pre-legislative scrutiny by a Joint Committee of both Houses of Parliament, chaired by the Rt. Hon. Maria Miller MP. The Joint Committee published its report on 14 June 2019. The Government response to the Joint Committee’s report (CP 137) was published alongside the introduction of the Bill in the House of Commons on 16 July 2019. The Bill was given an unopposed Second Reading on 2 October 2019, carried over from the 2017-19 session and re-introduced on 15 October 2019, but fell with the dissolution of Parliament ahead of the December 2019 election. The Bill as introduced on 3 March 2020 is broadly the same as the Bill originally introduced in July 2019, but with the notable addition of the measures in Part 4 in respect of the provision of accommodation-based support by local authorities in England and the omission of the Northern Ireland domestic abuse offence (what was Part 2 of the Bill introduced in July 2019) which will now be taken forward in a Bill to be introduced in the Northern Ireland Assembly. Alongside the re-introduction of the Bill, the Government has published a further response to the Joint Committee’s report (CP 214).
Civil protection orders
17 Sections 24 to 33 of the Crime and Security Act 2010 provide for domestic violence protection notices ("DVPNs") and domestic violence protection orders ("DVPOs"). They were implemented across England and Wales from 8 March 2014 following a one year pilot in the West Mercia, Wiltshire and Greater Manchester police force areas.
18 A DVPN is an emergency non-molestation and eviction notice which can be issued by the police, when attending to a domestic violence incident, to a perpetrator. Because the DVPN is a police-issued notice, it is effective from the time of issue, thereby giving the victim the immediate support they require in such a situation. Within 48 hours of the DVPN being served on the perpetrator, an application by the police to a magistrates’ court for a DVPO must be heard. A DVPO can prevent the perpetrator from returning to a residence and from having contact with the victim for up to 28 days. This allows the victim a degree of breathing space to consider their options with the help of a support agency. Both the DVPN and DVPO contain a condition prohibiting the perpetrator from molesting the victim. The Home Office has issued guidance to police forces on the operation of DVPNs and DVPOs.
19 In addition to the DVPN and DVPO other civil orders, including restraining orders (as provided for by section 5 of the Protection from Harassment Act 1997), non-molestation orders (Part IV of the Family Law Act 1996) and occupation orders (Part IV of the Family Law Act 1996), can be made in varying circumstances. These orders differ in terms of who can apply for them, the courts in which the orders may be made, the conditions that may be attached to an order and the consequences of breach. This can lead to confusion for victims and practitioners in domestic abuse cases and problems with enforcement.
20 The Government consultation proposed the creation of a new DAPN, which could be given by the police, and a DAPO, which could be made by the courts in a wide range of domestic abuse-related circumstances (not just in cases involving violence or the threat of violence). Part 3 of the Bill provides for the DAPN, modelled closely on the existing DVPN, and for the DAPO which will have the following key features:
● be available in a variety of courts on application by the police, the victim, persons specified in regulations or any other person with the leave of the court;
● be available to protect a person from domestic abuse, or the risk of domestic abuse, carried out by another person to whom they are personally connected;
● enable the imposition of any requirements (including, prohibitions, restrictions and positive requirements) on the perpetrator that are necessary to protect the victim; and
● breach of a DAPO will be a criminal offence, punishable by up to five years’ imprisonment or a fine or both (or as a civil contempt of court, in the alternative).
Local authority accommodation-based support
21 For the most high-risk victims of domestic abuse, refuges and other forms of safe accommodation provide vital support. In May 2019, the Ministry of Housing, Communities and Local Government ("MHCLG") published a consultation paper seeking views on the Government’s proposals for a new approach to delivering support to victims of domestic abuse and their children in accommodation-based services. The consultation set out proposals to place a new duty on relevant local authorities in England to convene a local partnership board, assess need for domestic abuse accommodation support services, develop and publish strategies, decide what support services are required and commission these accordingly and report back to MHCLG. The consultation closed on 2 August 2019. MHCLG received over 400 responses which were supportive of the proposals. The Government’s response to the consultation was published on 14 October 2019. Part 4 of the Bill gives effect to the proposals in the Government response to the consultation.
22 Many witnesses experience stress and fear during the investigation of a crime and when attending court and giving evidence. Stress can affect the quality of communication with, and by, witnesses of all ages. Some witnesses may have particular difficulties attending court and giving evidence due to their age, personal circumstances, fear of intimidation or because of their particular needs. In such circumstances, where witnesses are considered to be vulnerable or intimidated, "special measures" can improve the quality of their experience by helping them to give their "best evidence".
23 The Youth Justice and Criminal Evidence Act 1999 ("YJCEA 1999) introduced a range of measures that can be used to facilitate the giving of evidence by vulnerable and intimidated witnesses in criminal proceedings in England and Wales. The measures are collectively known as "special measures".
24 Special measures are a series of provisions that help vulnerable and intimidated witnesses give their best evidence in court and help to relieve some of the stress associated with giving evidence. Special measures under sections 23 to 30 of the YJCEA 1999 are available to prosecution and defence witnesses, but not to the accused and are subject to the discretion of the court.
25 Vulnerable and intimidated witnesses are eligible for the special measures in sections 23 to 28 of the YJCEA 1999. The use of intermediaries or communication aids under sections 29 and 30 of the YJCEA 1999 is only available for vulnerable witnesses; that is witnesses who need assistance on grounds of age or incapacity.
26 Intimidated witnesses are eligible for special measures by reason of section 17 of the YJCEA 1999. Generally, in order for a witness to be eligible under that section, the court must be satisfied that the quality of the witness’s evidence is likely to be diminished due to the witness’s fear or distress in relation to testifying in the case. Complainants in sexual offences and modern slavery offences are, by section 17(4), automatically assumed to fall into this category unless they wish to opt out. Witnesses to certain offences involving guns and knives are also assumed to automatically fall into this category unless they wish to opt out (section 17(5)). Currently, complainants in domestic abuse-related offences may be eligible for special measures under section 17 if the court is satisfied the quality of their evidence is likely to be diminished by their fear or distress about testifying, but they do not automatically fall into this category. Clause 58 puts victims of domestic abuse-related offences in England and Wales in the same position as victims of sexual offences and modern slavery offences and witnesses in relation to certain offences involving guns and knives.
27 Being eligible for special measures does not mean that the court will automatically grant them. The court has to satisfy itself that the special measure or combination of special measures is likely to improve the quality of the witness's evidence before granting an application (section 19(2) of the YJCEA 1999). In making this assessment, the court must consider all the circumstances of the case, including in particular any views expressed by the witness and whether the measure or measures in question might tend to inhibit the witness’s evidence being effectively tested by a party to the proceedings (section 19(3)).
28 The victim of a domestic abuse-related offence will be eligible for special measures as an intimidated witness and, with the agreement of the court, this could include one or a combination of:
· Screens (available for vulnerable and intimidated witnesses): screens may be made available to shield the witness from seeing the accused (section 23 of the YJCEA 1999).
· Live link (available for vulnerable and intimidated witnesses): a live link enables the witness to give evidence during the trial from outside the court through a televised link to the courtroom. The witness may be accommodated either within the court building or in a suitable location outside the court (section 24 of the YJCEA 1999).
· Evidence given in private (available for some vulnerable and intimidated witnesses): exclusion from the court of members of the public and the press (except for one named person to represent the press) in cases involving sexual offences, modern slavery offences or intimidation by someone other than the accused (section 25 of the YJCEA 1999). Clause 58(3) makes this special measure available in cases involving domestic abuse-related offences.
· Removal of wigs and gowns by judges and barristers (available for vulnerable and intimidated witnesses at the Crown Court) (section 26 of the YJCEA 1999).
· Video-recorded interview (available for vulnerable and intimidated witnesses): a video recorded interview with the witness may be admitted by the court as the witness's evidence-in-chief (section 27 of the YJCEA 1999).
· Pre-recorded cross-examination (available for vulnerable and intimidated witnesses, although currently only partially commenced 4 ): cross-examination (and re-examination) of the witness may be pre-recorded in advance of the trial, and the recording then played during the trial in place of live evidence (section 28 of the YJCEA 1999).
Cross-examination in family proceedings
29 Courts hearing family proceedings do not have an express power to prevent a perpetrator or an alleged perpetrator of abuse from cross-examining their victim or alleged victim in person, nor do they have the power to order that an advocate be appointed (and funded) to carry out the cross-examination on behalf of the perpetrator or alleged perpetrator.
30 The fact that it is possible at present for perpetrators (alleged or otherwise) to cross-examine their victims in person in family proceedings has attracted criticism, including from the All-Party Parliamentary Group on Domestic Violence. 5 It is widely accepted that such cross-examination can cause the victim significant distress and, as the President of the Family Division has said, "can sometimes amount, and on occasion quite deliberately, to a continuation of the abuse". 6 Clause 59 prohibits cross-examination in person in certain circumstances in family proceedings in England and Wales gives the courts a discretion to prohibit cross-examination in certain other circumstances. Clause 59 also makes provision for the court, in certain circumstances and where it is considered necessary in the interests of justice, to appoint a legal representative to carry out the cross-examination on behalf of the prohibited party. The clause also allows the Lord Chancellor to publish guidance on the role of such a representative, and to make regulations concerning the payment of legal representatives in these circumstances.
The Istanbul Convention – extraterritorial jurisdiction
31 The "Istanbul Convention is the Council of Europe Convention on preventing and combating violence against women and domestic violence. Article 1 sets out the purpose of the Convention as follows:
· protect women against all forms of violence, and prevent, prosecute and eliminate violence against women and domestic violence;
· contribute to the elimination of all forms of discrimination against women and promote substantive equality between women and men, including by empowering women;
· design a comprehensive framework, policies and measures for the protection of and assistance to all victims of violence against women and domestic violence;
· promote international co-operation with a view to eliminating violence against women and domestic violence;
· provide support and assistance to organisations and law enforcement agencies to effectively co-operate in order to adopt an integrated approach to eliminating violence against women and domestic violence.
32 The United Kingdom ("UK") Government signed the Convention on 8 June 2012 but has not yet ratified it. In most respects, the measures already in place in the UK comply with or go further than the Convention requires. A key element of the Convention is making sure that ratifying states can use their national law to prosecute offences required by the Convention when they are committed by their nationals or residents overseas. The legal term for powers to allow prosecution in the UK of offences committed by UK nationals or residents overseas is "extraterritorial jurisdiction". Taking such powers requires primary legislation.
33 The courts in England and Wales already have extraterritorial jurisdiction for some of the offences required by the Convention (for example, female genital mutilation (by virtue of section 4 of the Female Genital Mutilation Act 2003) and forced marriage (by virtue of section 121 of the Anti-social Behaviour, Crime and Policing Act 2014)). However, the courts do not have extraterritorial jurisdiction for other offences required by the Convention (under Articles 33 to 39), accordingly Clause 60 and Part 1 of Schedule 2 extend extraterritorial jurisdiction to the relevant offences to satisfy the requirements of the Convention. These included certain sexual offences and offences against the person.
34 Similarly, the courts in Scotland also already have extraterritorial jurisdiction for some of the offences required by the Convention (for example, female genital mutilation (by virtue of section 4 of the Prohibition of Female Genital Mutilation (Scotland) Act 2005), domestic abuse (by virtue of section 3 of the Domestic Abuse (Scotland) Act 2018) and forced marriage (by virtue of section 122 of the Anti-social Behaviour, Crime and Policing Act 2014)). However, the Scottish courts do not have extraterritorial jurisdiction for other offences required by the Convention (under Articles 33 to 39), and accordingly Part 2 of Schedule 2 to the Bill contains provisions to give domestic effect to the extraterritorial requirements of the Convention in Scotland. These include certain sexual offences and the offences of stalking and assault.
35 In Northern Ireland, the courts also have extraterritorial jurisdiction for some of the offences required by the Convention (for example, female genital mutilation (by virtue of section 4 of the Female Genital Mutilation Act 2003) and forced marriage (by virtue of section 16 of the Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015)). However, the Northern Irish courts do not have extraterritorial jurisdiction for other offences required by the Convention (under Articles 33 to 39). Accordingly, clause 61 and Part 3 of Schedule 2 to the Bill contains provisions to give domestic effect to the extraterritorial requirements of the Convention in Northern Ireland. These include a number of sexual and violent offences.
36 The Preventing and Combating Violence Against Women and Domestic Violence (Ratification of Convention) Act 2017 requires the Government to lay an annual report before Parliament on progress toward ratification of the Convention. The third such report was laid before Parliament on 31 October 2019.
37 Sections 28 to 30 of the Offender Management Act 2007 ("the 2007 Act") make provision for polygraph testing of certain sex offenders as a condition of their licence following their release from custody. Any offender released from custody with such a condition would be required to undertake polygraph tests as part of their duty to comply with their licence conditions. The polygraph is a device that measures certain physiological responses such as heart rate, breathing rate, blood pressure and skin resistance, changes in which are thought to indicate whether the subject is lying. A "polygraph condition" requires the offender, on release, to take part in regular "polygraph sessions", as instructed by their offender manager. The imposition of the condition allows compliance with other licence conditions to be monitored and gives information about an offender’s behaviour that will improve the effectiveness of how an offender is managed during the licence period. Section 30 of the 2007 Act makes it clear that the results of a polygraph examination cannot be used in proceedings against the released person for an offence. Polygraph testing of the most serious sexual offenders has operated across the whole of England and Wales since January 2014. Clause 63 extends these provisions of the 2007 Act to cover domestic abuse offenders.
The Domestic Violence Disclosure Scheme
38 The Domestic Violence Disclosure Scheme, often referred to as "Clare’s Law" 7 , was implemented across all police forces in England and Wales in March 2014.
39 The scheme has two elements: the "right to ask" and the "right to know". Under the scheme an individual or relevant third party can ask police to check whether a current or ex-partner has a violent past. This is the "right to ask". If records show that an individual may be at risk of domestic abuse from a partner or ex-partner, the police will consider disclosing the information.
40 The "right to know" enables the police to make a disclosure if they receive indirect information regarding the current or ex-partner that may impact the safety of the individual, such as information arising from a criminal investigation, through statutory or third sector agency involvement, or from another source of police intelligence.
41 A disclosure can be made lawfully by the police under the scheme if the disclosure is based on the police’s common law powers to disclose information where it is necessary to prevent crime and if the disclosure also complies with data protection legislation, the Rehabilitation of Offenders Act 1974 ("the 1974 Act") and the Human Rights Act 1998. It must be reasonable and proportionate for the police to make the disclosure based on a credible risk of violence or harm.
42 For the year ending March 2019 there were 7,252 (based on data from 39 police forces) and 6,496 (based on data from 36 police forces) applications under the right to know and right to ask respectively. For these, there were 4,008 and 2,575 disclosures respectively (Office of National Statistics).
43 Non-statutory guidance for the police on the operation of the scheme was first published by the Home Office in July 2012 and which, following an assessment report of the pilot scheme in November 2013, was updated in December 2016. The purpose of the guidance is to support the delivery of the scheme and assist front line officers and those who work in the area of public protection with the practical application of the scheme. The updated guidance took into account the findings of an assessment by the Home Office of the first year’s operation of the scheme.
44 Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services domestic abuse thematic reports, published in 2015 and 2017, concluded that "opportunities were being missed [through the scheme] to provide better support and protection for victims". Both reports identified inconsistencies surrounding the use of the scheme by police forces and noted the low volume of disclosures. The 2017 report concluded that "it is important that both members of the public and officers are aware of the scheme’s purpose and the application process". The Government aims to drive greater use and consistent application of the scheme by putting the guidance underpinning the scheme on a statutory footing and placing a duty on the police to have regard to the guidance (see Clause 64).
45 Under the Housing Act 1985 ("the 1985 Act"), local authority landlords may grant their tenants either secure periodic tenancies, or secure flexible tenancies. Secure periodic tenancies have no fixed end date and can only be brought to an end by the landlord obtaining a possession order on one of the grounds for possession set out in Schedule 2 to the 1985 Act, which are mainly fault grounds. Flexible tenancies, which were introduced by the Localism Act 2011, are tenancies granted for a fixed term of no less than two years. Currently it is for the landlord to decide which type of tenancy to grant and in which circumstances they grant flexible tenancies.
46 Schedule 7 to the Housing and Planning Act 2016 ("the 2016 Act") amends the 1985 Act to prevent the creation in future of secure periodic tenancies (referred to in the 2016 Act as "old-style secure tenancies"), except in limited circumstances. It also removes the power to grant new tenancies and instead requires that new-style fixed term tenancies should generally be granted. The 2016 Act includes a power for the Secretary of State to prescribe in regulations the circumstances in which a local authority may still grant an old-style secure tenancy.
47 The Secure Tenancies (Victims of Domestic Abuse) Act 2018 ("the 2018 Act") amended Schedule 7 to the 2016 Act to deliver on a 2017 Manifesto commitment to ensure " that victims who have lifetime tenancies and flee violence are able to secure a new lifetime tenancy automatically" .
48 The Government has since decided not to implement the 2016 Act provisions at this time, which means that the grant of fixed term tenancies will remain at a local authority’s discretion and the 2018 Act will also not be brought into force at this time.
49 The Government’s Social Housing Green Paper, A new deal for social housing (Cm 9671), published on 14 August 2018, includes a commitment (at paragraph 188) to legislate to put in place similar protections for victims of domestic abuse where local authorities offer fixed term tenancies at their discretion in order to deliver on the 2017 Manifesto commitment. Clause 65 gives effect to that commitment.
1 Domestic abuse in England and Wales overview: November 2019 – Office of National Statistics.
2 Domestic abuse prevalence and trends, England and Wales: year ending March 2019 – Office of National Statistics.
3 Domestic abuse prevalence and victim characteristics: Appendix tables – Office of National Statistics (table 20).
4 Pre-recorded cross-examination and re-examination under section 28 of the YJCEA 1999 is being rolled out in England and Wales using a phased approach. Currently, section 28 has been commenced for vulnerable witnesses in nine Crown Courts, and for complainants of sexual offences and modern slavery offences in three Crown Courts.
5 Domestic Abuse, Child Contact and the Family Courts
6 The annual lecture of The Wales Observatory on Human Rights of Children and Young People delivered by Sir James Munby, President of the Family Division at the College of Law, Swansea University on 25 June 2015
7 Named after Clare Wood who was murdered in 2009 by her former partner, George Appleton, who had a record of violence against women.