Domestic Abuse Bill

Written evidence submitted by the Centre for Women’s Justice (DAB19)

Proposed amendments to Domestic Abuse Bill regarding bail

1. Introduce a presumption in favour of pre-charge bail for all domestic abuse-related cases and serious sexual offences unless this is clearly not necessary in the individual case:

Centre for Women’s Justice carries out training with frontline domestic abuse and sexual violence services around England and Wales, during which we receive reports from support workers on their day to day experience of supporting victims. We continually hear reports that bail conditions are not used by the police, both following arrest and following voluntary attendance interviews. These include high risk domestic abuse cases dealt with at Multi-Agency Risk Assessment Conferences (MARAC).

Given the repeat nature of virtually all domestic abuse-related crimes and harassment / stalking offences connected to domestic abuse, bail conditions will almost always be appropriate. In approximately 90% of serious sexual offences the suspect is known to the victim [1] and it is critical that there is no contact between the parties during the police investigation in such cases. The removal of the presumption in favour of release without bail will ensure that bail conditions are the norm in the overwhelming majority of cases in these categories.

Placing the presumption in favour of bail on a statutory footing will have greater impact than current police guidance, issued in May 2019 [2] which merely encourages officers to give "serious consideration" to use of bail conditions in domestic abuse and other "high harm" cases. Our experience is that this has not ensured that bail conditions are used in practice. Whilst welcome, the current guidance does not go far enough.

Policing and Crime Act 2017 section 52(3) amends section 30A Police and Criminal Evidence Act 1984 to impose a presumption of release without bail unless the conditions for bail apply. The conditions are that bail is necessary and proportionate in all the circumstances, introduced by section 52(4) of the 2017 Act as an amendment to the 1984 Act.

The amendment sought to the Domestic Abuse Bill would disapply these provisions in domestic abuse-related cases and sexual offences and replace them with the alternative presumption.

2. Extend the initial bail period to six months in domestic abuse-related and serious sexual offences cases:

There are approximately half a million domestic abuse-related crimes per year. [3]

Frontline support workers report to us that is it is very common when victims report domestic abuse, including harassment and stalking, that bail conditions are not imposed and instead they are advised by the police to obtain a non-molestation order through the civil courts. This places the burden of obtaining protection onto victims themselves, rather than the state, which has a duty to protect. Where police advise a non-molestation order, then clearly the conditions for bail conditions have been met, namely that these are "necessary and proportionate". [4] By its nature, domestic abuse almost invariably involves a repeat pattern of behaviour. Harassment and stalking offences against a former partner which take place after the end of a relationship also involve a repeated course of conduct. Victims of these types of offences will as a matter of course require protective measures as there is a particularly high risk that suspects will try to make contact.

Support workers state that police officers often advise victims to obtain a civil order without an apparent understanding of the process involved to obtain such an order, officers treating this as a simple matter for victims to arrange. In fact, the process places high practical, financial and emotional demands on victims. If they qualify for legal aid they must provide detailed financial documentation to lawyers and deal with intrusive questions about their finances, and often have to pay a significant contribution towards legal aid. If they do not qualify they must either pay a solicitor privately (often in the region of £1,500 to £2,000) or make the court application alone. They may have to face their abuser in court if he chooses to contest the order. In addition, they have to pay for a process server to serve the order for it to become valid and arrange for it to be recorded at the police station. Some women do not have the personal, financial or emotional resources, support or ability to go through this process, or do not appreciate the degree of risk they face, and do not obtain civil orders. Non-molestation orders are typically granted for a period of at least six months.

Bail conditions are the most efficient way for the state to meet its obligations to provide protection to vulnerable victims during the police investigation. The use of bail conditions has dropped dramatically since the introduction of the pre-charge bail regime under the Policing and Crime Act 2017 in April 2017 [5] .

A fundamental difficulty with the pre-charge bail regime introduced in April 2017 is that the initial bail period is only for 28 days and then an extension must be approved by a Superintendent. This procedure has imposed such an onerous administrative burden on forces that they are avoiding the use of bail altogether and either releasing suspects under investigation (RUI) or interviewing them on a voluntary attendance, when bail is not available. The police service warned of the difficulties of meeting the bureaucratic burden imposed by the provisions prior to the passing of the Policing and Crime Act 2017. [6]

For bail to be widely used in practice on a routine basis in all domestic abuse-related crimes and serious sexual offences it must be a practical tool that is available to forces within their available resources and efficient to utilise.

The benefits of an initial six month period in such cases are:

· It will greatly reduce the administrative burden on police forces and make bail conditions an efficient tool thus greatly increasing the likelihood of their routine use;

· It will provide protection for a period equivalent to many non-molestation orders, thus removing the burden on victims to make applications in the civil courts;

· It will reflect a realistic time frame for the police investigation, particularly bearing in mind that frequently domestic abuse-related offences must be charged within six months (common assault and harassment / stalking under section 2 Protection from Harassment Act).

This proposal presents a workable model for police forces which can ensure that officers use bail conditions in practice. It is appropriate in light of the particular need for bail conditions in such offences. It provides a limited time on bail with a review after six months, thus balancing the rights of suspects not to be subject to open-ended restrictions.

Police and Criminal Evidence Act 1984 section 47ZB(1)(b) currently sets the initial bail period at 28 days. An amendment would provide an exception to this in domestic abuse-related and serious sexual offences cases and set the initial period at six months beginning with the bail start date. Section 47ZF would be amended to enable a further extension of the bail limit by a court at the end of the initial six month period.

3. Re-balance the test for extension of pre-charge bail to give full weight to the need to protect victims:

a. The 2017 Act requires that before bail is extended the suspect or his legal representative must be informed and any representations made by them considered, without any requirement to consult victims. A duty to consult victims when assessing whether bail conditions remain necessary and proportionate on an extension of bail should be introduced to balance the provisions.

The Policing and Crime Act 2017 Section 63 amends section 47 Police and Criminal Evidence Act 1984 introducing section 47ZD(3) and (4), the requirements to inform the suspect or their legal representative that a determination on extension of bail is to be made and to consider their representations when making that determination. This should be amended to include informing the complainant or her representatives and the requirement to consider any representations by them when making the determination.

b. Extensions at any stage can only be authorised where a set of conditions is met. One of these conditions, Condition C, is that the police investigation is being conducted diligently and expeditiously [7] .

Whilst speeding up investigations is an admirable aim, in reality, especially with very stretched resources and increases in reporting of domestic abuse and sexual offences, the criteria to extend bail may not be met because investigations have not been progressed swiftly enough. This is a windfall for suspects and leaves victims exposed through no fault of their own. Even in a case which is clearly high risk and there is no question that bail conditions are required, under the current legislation if the investigation is not progressed properly bail will not be extended. This cannot be acceptable and achieves a wholly improper balance between the rights of suspects and victims.

The Policing and Crime Act 2017 should be amended so that Condition C in Section 63 be disapplied where bail conditions relating to protection of the complainant are necessary and proportionate.

October 2019


[1] Home Office, Ministry of Justice and Office of National Statistics (2013) An Overview of Sexual Offending in England and Wales

[2] National Police Chief’s Council guidance issued May 2019 https://news.npcc.police.uk/releases/police-chiefs-guide-officers-to-impose-bail-conditions-protecting-victims-and-vulnerable-people

[3] Office for National Statistics Domestic Abuse Data Tool, latest figures available for year ending March 2018 https://www.ons.gov.uk/peoplepopulationandcommunity/crimeandjustice/datasets/domesticabuseinenglandandwalesdatatool

[4] Policing and Crime Act 2017 section 52(4)

[5] HM Inspectorate of Constabulary, Fire and Emergency Services (HMRCFRS) reports a drop of 65% in the use of bail conditions in domestic abuse cases in the first three months of the new bail regime, see HMICFRS Progress Report on Domestic Abuse of February 2019

[6] See the summary of consultation responses:

[6] https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/418226/150323_Pre-Charge_Bail_-_Responses___Proposals.pdf  

[6]

[7] Policing and Crime Act 2017 Section 63

 

Prepared 31st October 2019