House of Commons - Home Affairs

Select Committee on Home Affairs Sixth Report

12 Legislation and strategy

In this section we consider the new powers introduced in the Domestic Violence, Crime and Victims Act 2004, and the case for any further legislation on domestic violence, "honour"-based violence or forced marriage. We also assess the effectiveness of the cross-Government response to domestic violence, and recommend a national strategy.

The Domestic Violence, Crime and Victims Act 2004

399. The Domestic Violence, Crime and Victims Act 2004 introduced new police powers to deal with domestic violence, including making it a criminal offence to breach a non-molestation order, punishable by up to five years imprisonment.[404] It strengthened the civil law on domestic violence to ensure cohabiting same-sex couples have equal access to non-molestation and occupation orders,[405] and extended the availability of these orders to couples who have never lived together or been married.[406] It also made common assault an arrestable offence.[407] A number of measures in the Act have yet to be implemented. These are: extending the courts' powers to impose restraining orders when sentencing for any offence,[408] enabling courts to impose restraining orders on acquittal for any offence, if it is considered necessary to protect the victim from harassment,[409] and putting the establishment and conduct of domestic homicide reviews on a statutory footing.[410]

400. Several witnesses were critical of the Government's slow implementation of the Act. Standing Together Against Domestic Violence stated:

Disappointment must also be expressed at the speed at which the Act has been implemented. The fact that domestic homicide reviews have still to be formally introduced is a worrying sign of the relationship between central and local Government and how politics can be a barrier to changing practice in this crucial area.[411]

Respect called for a timetable for implementation of the remaining sections of the Act:

Implementation of the DVCVA has been disappointingly slow and we would wish to see a clear time frame for the implementation of the remaining sections, particular those allowing the court to impose restrictions on the perpetrator to protect the victim without having to seek this through the civil route.[412]

401. During the course of our inquiry the Government announced that it had reached agreement on implementing section 9, domestic violence homicide reviews. The Parliamentary Under-Secretary of State for the Home Office, Vernon Coaker MP, told us "with respect to statutory homicide reviews, I can tell the Committee that the intention is to implement that in the summer [2008]".[413] The Minister conceded that a barrier to implementation of section 12, restraining orders, has been negotiations between Government departments on the cost of implementation: "there are negotiations continuing between ourselves and the Ministry of Justice with respect to costs and prison places. We should have done it [implemented the section] by now".[414] The implementation of those parts of the Act which have been enacted is currently being independently reviewed by researchers from Bristol University. The Ministry of Justice intends to publish the review in late May or early June 2008.

Breach of non-molestation orders: new police powers

402. The major new police power introduced under the Act made it a criminal offence to breach a non-molestation order, punishable by up to five years imprisonment. We heard mixed evidence about how this new power is working. Chief Constable Brian Moore told us that:

Sections 1 to 4 [of the DVCVA] which deal with the criminalisation of breaches of non-molestation orders are very welcome, though I understand literally on the steps of the committee room that there is some concern as to how effectively that has been implemented across the country.[415]

403. However, a number of witnesses highlighted a trend whereby police are issuing cautions where there is a breach of a non-molestation order, rather than the Crown Prosecution Service charging the perpetrator. District Judge Marilyn Mornington highlighted this:

We have received totally unsolicited reports from all over the country about serious concerns that the police are not treating breaches of injunctions in the serious way they deserve and in accordance with ACPO guidelines. They are either not arresting the person for the breach in the first place or [the CPS is] not charging him or her with a criminal offence. There is enormous concern which the president asked me to pass on to the Committee.[416]

404. The Government should set and publish a timetable for implementation of the remaining sections of the Domestic Violence, Crime and Victims Act. We look forward to the results of the independent evaluation of those parts of the Act which have already been enacted. We urge the Government to review any parts of the Act which that evaluation identifies as performing poorly.

405. The use of cautions by the police as an alternative to charge by the Crown Prosecution Service is wholly inappropriate and dangerous in cases of domestic violence. The Home Office and ACPO must ensure that all police officers are trained to understand the new police powers brought in under the Domestic Violence, Crime and Victims Act. It is vital that all police officers are made aware of the power of automatic arrest on breach of a non-molestation order, and are explicitly instructed not to issue cautions. The Crown Prosecution Service must charge perpetrators in cases of breach of injunction.

The Forced Marriage (Civil Protection) Act (2007)

406. At present, forced marriage is not a specific criminal offence in England and Wales, in the same way that domestic violence is not a specific criminal offence . However, there are a range of current criminal offences and civil remedies which are relevant in relation to forced marriage. These include kidnapping, child abduction, false imprisonment, assault and battery, threats to kill, public order offences, harassment, child cruelty, sexual offences—including rape—and blackmail. There are also a range of existing civil law remedies as well as human rights provisions.[417] In September 2005 the Foreign and Commonwealth Office and the Home Office published a consultation paper, Forced Marriage: A Wrong not a Right, seeking views on whether there should be a specific criminal offence of forced marriage. The majority of respondents felt that the disadvantages of creating new criminal legislation would outweigh the advantages and the Government announced it would pursue civil, rather than criminal, legislation.

407. At Committee stage of the Forced Marriage (Civil Protection) Act [HL], Lord Lester of Herne Hill set out the reasons why criminalisation was not deemed to be an appropriate way forward:

There is already plenty of criminal law to tackle murder, kidnapping, abduction, rape and all the other evil manifestations associated with forcing people into marriage against their will. The problem with the criminal process is that, although there is plenty of existing criminal law, there is a criminal burden of proof and a criminal standard of proof, the court is a criminal court and is held in public, with police and a jury brought into play. It has not proved to be an effective way of tackling a major social problem. People who deal with these cases daily tell me that often the victim does not want to dishonour her family by having a public and punitive hearing. One of the great advantages of the family law approach is that the court can sit in private, sensitively and in a way that will, I hope, reconcile the victim with her or his family, while providing effective protection to put a stop to a course of conduct that may lead to real tragedy. That approach was supported, not just by me—I am a white man, the least qualified person to make judgments of that kind—but by the Southall Black Sisters, a whole variety of women's organisations, including Asian women's organisations, and children's organisations. If that had not been the case, I would not have pushed the Bill any further.

I am not saying it would be inconceivable to have a new crime; other countries have done that. Although female genital mutilation is a crime, there has not been a single prosecution, for all kinds of reasons. This shows that the criminal process is not the best process, even though, with forced marriages and honour killings, one needs to have serious crimes for serious wrongs.[418]

408. The Forced Marriage (Civil Protection) Act [HL] received Royal Assent on 26 July 2007 and is due to come into force in autumn 2008. The Act provides civil remedies, enabling victims and third parties to seek an injunction to prevent a forced marriage. It also puts current guidelines for professionals, issued by the Government's Forced Marriage Unit, on a statutory footing. While forced marriage is not itself made a criminal offence, breach of an injunction would be a contempt of court and courts would have the full range of sanctions available to them, including imprisonment. The Act takes a victim-oriented definition of forced marriage:

A person ("A") is forced into marriage if another person ("B") forces A to enter into a marriage (whether with B or another person) without A's full and free consent.[419]

It clarifies two important elements of this definition, as follows:

The force does not have to be applied directly to the victim—'it does not matter whether the conduct of B is directed against A, B or another person.' That is to say, indirect pressure on other friends or family members counts as force, not just direct pressure on the victim.

The definition of force is wide-ranging—'"force" includes coerce by threats and other psychological means'. Consequently, there does not have to be a specific threat of violence.[420]

Should forced marriage be made a specific criminal offence?

409. During our inquiry strong arguments were made for and against forced marriage being made a specific criminal offence. Director of Karma Nirvana, Jasvinder Sanghera, argued:

In this country we have an offence against littering in the streets and yet we do not have a forced marriage criminal offence.[421]

Ms Sanghera argued that an offence would send out a clear message that forced marriage is wrong:

I have not met a victim yet who believes forced marriage is against the law. They deem themselves to be the perpetrators for going against the families. There needs to be a very strong message that this is criminal activity. I also believe, as a victim of a forced marriage, if I believed it was a criminal offence it would have empowered me to do something.[422]

The Iranian and Kurdish Women's Rights Organisation (IKWRO) agreed with this analysis:

IKWRO regrets that forced marriage was not criminalized fully when there was an opportunity to do so, and we believe this option should be reconsidered if monitoring reveals there is no decrease.[423]

410. However, other witnesses argued against criminalisation. Nazir Afzal of the CPS told us that he did not consider creation of a specific criminal offence as necessary to prosecute forced marriage:

I have every offence available to me to be able to prosecute these types of crime, so simply having a forced marriage one would not make it any easier.[424]

Imkaan questioned how coercion could be legally defined, in order to differentiate between forced marriage and arranged, or other, marriages.[425]

411. The Parliamentary Under-Secretary of State at the Home Office, Vernon Coaker MP, told us:

The overwhelming view [from the 2005 consultation] was that by making it a criminal offence you would actually increase the problem by driving it underground. There was a fear that you could have a situation whereby family members would possibly be criminalised by the actions of a family member.[426]

The Minister said that the Government would be open to reconsidering criminalisation after the Act has come into force: "we are going to monitor the outcome of the Forced Marriage Act. We will keep it under review".[427]

412. There is a clear case to be made both for and against criminalisation of forced marriage. The key argument we heard in favour of criminalisation was that it would send a powerful deterrent message, both to communities and victims, condemning the practice. The key argument we heard against criminalisation was that victims would be dissuaded from coming forward, by not wishing to criminalise their family, which would make the practice more covert.

413. Those prosecuting forced marriage told us that they did not consider additional legal penalties to be necessary, since a range of criminal offences already exist under which forced marriage can be prosecuted. The Forced Marriage (Civil Protection) Act is due to come into force in autumn 2008, providing a range of further civil remedies for victims. Given these factors, we consider that it would not be appropriate at this time to create a specific criminal offence of forced marriage. However, we consider it imperative that the implementation and effect of the Forced Marriage (Civil Protection) Act is monitored with extreme care.

414. The Government must earmark resources to track implementation of the Forced Marriage (Civil Protection) Act, and draw up criteria for assessment. We recommend that the Government should produce an initial progress report one year after the implementation of the Act, followed by fuller reports in following years. If the implementation of the Forced Marriage Act [in conjunction with other measures being taken to combat forced marriage] cannot demonstrate concrete progress in reducing the prevalence of forced marriage and increasing the safety of victims, then the question of criminalisation should be revisited.

The cross-Government response to domestic violence

Government action on domestic violence is weighted towards criminal justice responses

415. Co-ordination of the Government's response to domestic violence has been improved by the implementation of an Inter-Ministerial Group on Domestic Violence. Ministers from 13 departments sit on the group, which meets quarterly and is currently chaired by Parliamentary Under-Secretary of State at the Home Office, Vernon Coaker MP. Domestic violence policy is led by the Home Office, and delivered through a cross-departmental National Domestic Violence Delivery Plan, against which progress is reported annually.

416. The Government's approach to domestic violence was first set out in a consultation paper—Safety and Justice—in 2003. The paper stated that "the Government's strategy for tackling [domestic violence] is based on three elements: prevention, protection and justice, and support".[428] However, the Government did not subsequently adopt an explicit strategy on domestic violence, but instead introduced the National Domestic Violence Delivery Plan in 2005. The Delivery Plan has five key outcomes, none of which specifically address prevention:

To reduce the number of domestic-violence related homicides;

To reduce the prevalence of domestic violence, particularly in high-incidence areas and/or communities;

To increase the rate of reporting for domestic violence, particularly in high-incidence areas and/or communities;

To increase the rate of reporting for domestic violence offences that are brought to justice, particularly in high-incidence areas and/or communities, as well as in areas with high attrition rates;

To ensure that victims of domestic violence are adequately protected and supported nationwide.[429]

417. Specific objectives are set against these outcomes annually. The objectives of the National Delivery Plan for 2007/08 are:

To increase the early identification of—and intervention with—victims of domestic violence by utilising all points of contact with front line professionals;

To build capacity within the domestic violence sector to provide effective advice and support to victims of domestic violence;

To improve the criminal justice response to domestic violence

To support victims through the CJS and to manage perpetrators to reduce risk.[430]

418. None of the outcomes of the National Delivery Plan specifically address prevention, despite this being identified in the 2003 Safety and Justice consultation as one of three key priorities. Half of the current objectives of the National Delivery Plan focus on criminal justice targets. Our witnesses emphasised that the Government's response remains disproportionately focused on criminal justice responses, with too little emphasis on prevention. For example, Refuge told us that:

Legal protection for victims is not being reinforced by the provision of appropriate services and effective preventative work.[431]

419. The Parliamentary Under-Secretary of State at the Home Office, Vernon Coaker MP, agreed that there was "a danger that the criminal justice system dominates". He told us that "the natural reaction is often to have a criminal justice response to issues. Simply responding in a criminal justice sense will not be sufficient. What are we doing in our schools? What are we doing to support victims when they come forward?".[432]

420. The conclusions we reached in paragraphs 56 to 133 of this report about the real need for more and better education and awareness-raising on domestic violence, "honour"-based violence and forced marriage, further demonstrates that the cross-Government response to domestic violence needs rebalancing towards preventative activity.

A national strategy on domestic violence

421. A more strategic approach to domestic violence, in addition to emphasising prevention, would also provide a framework for synthesising a number of currently contradictory Government targets set for different departments. For example, the police currently have a target to increase arrests and sanction detections, whereas the Crown Prosecution Service is measured on reducing cracked trials. Anecdotal evidence suggest that one outcome of this tension is an increasing use of cautions by the police in domestic violence cases.

422. The Scottish Executive has adopted an overarching Violence Against Women strategy, containing a core commitment to funding specialised support services.[433] This takes a gender-based approach to domestic violence, and links it to other 'violence against women' such as rape and trafficking. The total Scottish Violence Against Women Fund amounts to �8.7 million for 2007-2008.[434] Funded projects must be working towards one of the three 'Ps'—prevention of Violence Against Women, protection of victims, provision of services—or strategic development through multi-agency partnerships. Wales and Northern Ireland also have national strategies on addressing domestic violence and abuse.

423. In another area in which cross-departmental co-ordination is also necessary for similar reasons—that of Social Exclusion—the Government set up a Social Exclusion Task Force. Based at the strategic centre of Government, within the Cabinet Office, the Task Force aims to ensure a cross-departmental approach.

424. Different inspectorates exist to examine the many different agencies involved in responding to domestic violence. For example, Ofsted inspects schools, the Audit Commission inspects local authorities, and there are multiple criminal justice inspectorates.[435] With the exception of the joint HMIC/HMCPSI thematic review in 2004, there does not currently seem to be any co-ordination between these various inspectorates with regard to domestic and "honour"-based violence and forced marriage.

425. The evidence we took in our inquiry convinces us that the Government's response to domestic violence, although it has improved, remains disproportionately focused on criminal justice responses at the expense of prevention. As we identified in paragraphs 56 to 133 of this report, there is too little engagement in preventative activity, primarily around education and awareness-raising. The vast costs of domestic violence to the UK economy and public services—estimated at �25.3 billion in 2005/06 alone—demonstrate the scale of potential savings to be gained by more effective prevention.

426. We therefore recommend that the Government should adopt a strategy on domestic violence, or on violence against women more generally, to include explicit emphasis of the importance of prevention. We consider that such a strategy would facilitate many of the recommendations we have made in this report, including reducing the current over-emphasis on criminal justice responses, improving prevention and early intervention, ensuring more even distribution and sustainable funding of services, and ensuring the equal commitment of all Government departments to tackling domestic violence.

427. The Government's Social Exclusion Task Force, based in the Cabinet Office, could also provide a model for delivering the cross-Government response to domestic violence. The Government should consider whether the cross-Government domestic violence unit, currently located within the Home Office, might be better placed to ensure equal participation from all Government departments if it were based at the strategic centre of Government.

428. There is currently no co-ordinated inspection regime of the response of different statutory agencies to domestic and "honour"-based violence and forced marriage. We recommend that the Government set up a working group of all the relevant inspectorates to co-ordinate the multiple inspection regimes which currently exist.

429. We recommend that the inter-ministerial group should publish an outline of its work programme, and key decisions taken, to ensure greater transparency.

404 This was implemented in July 2007 Back

405 This was implemented in December 2005 via the Civil Partnership Act Back

406 This was implemented in July 2007 Back

407 This was implemented via the Serious and Organised Crime and Police Act 2005. Back

408 Section 12 Back

409 Ibid. Back

410 Section 9 Back

411 Ev 106 Back

412 Ev 200 Back

413 Q 422 Back

414 Ibid. Back

415 Q 14 Back