Domestic Abuse Bill

Written evidence submitted by Transform Justice (DAB03)

Domestic Abuse Bill 2019-21 – response to call for written evidence, 20 May 2020

Overview

1. Transform Justice is a charity which works for a fair, humane, open and effective justice system. We have produced reports on issues such as digital court reform, adult and child remand, and the use of out of court disposals.

2. In 2018 we published a report [1] on the current criminal justice response to domestic abuse. The report challenges the government’s increased focus on prosecution, restrictive orders and harsher sentences, which evidence shows do not reduce abuse or help victims in the long-term. Instead it calls for an increase in the use of out of court disposals, the piloting of deferred prosecution and the evaluation and roll out of effective perpetrator programmes.

3. We agree with the need to transform the justice process for domestic abuse cases, along with some of the measures in the Bill. However, we believe changes are required if the measures in the Bill are to be effective in reducing domestic abuse. In particular:

a. We oppose the introduction of the Domestic Abuse Protection Order (s24 – s34) and the criminalisation of breach of the Order (s35-s36). We are concerned that the expansion of the existing DVPO and the introduction of a criminal sanction for its breach is based on weak evidence, and that its introduction will be costly and ineffective.

b. More evidence is needed to understand the impact of giving evidence by video link on justice outcomes (Explanatory note 26).

c. Child perpetrators of domestic abuse should not be subject to the same measures as adult perpetrators. We support calls from the Standing Committee for Youth Justice and others to exclude children (under 18 year olds) from the definition of domestic abuse (s1), to conduct a separate review of violence perpetrated by children in domestic situations and to develop separate, child-specific policy proposals for children.

d. We support the introduction of a statutory defence for victims of domestic abuse who go on to offend, as called for by the Prison Reform Trust and others. This would enable a reduction in inappropriate prosecutions and address the lack of legal protection for victims of domestic abuse who are driven to offend.

Creation of a Domestic Abuse Protection Notice and Order – evidence base

4. The Bill introduces a Domestic Abuse Protection Order (DAPO) (s24 – s34) - an order issued by the court which places prohibitions and requirements on the alleged perpetrator to protect the alleged victim from domestic abuse in the short term. The DAPO expands on the existing Domestic Violence Protection Order (DVPO) which was piloted in 2014, introducing a greater number of circumstances in which the order can be used, who can apply for it, which courts can impose it, and the length of the order.

5. We have previously questioned the evidence base for this blanket expansion and continue to oppose its introduction due to an absence of evidence into its effectiveness. An order can provide victims with some breathing space and time to regroup, but there is scant evidence to show that DAPOs will reduce abuse or effectively protect victims. The evaluation [2] of the pilot DVPO showed reduced reoffending only when compared to cases where no further action was taken - no comparison was made to out of court disposals and other approaches. The evaluation found that the order only reduced reoffending in more serious cases, where the police had been called out three or more times before the order was imposed, and that the DVPO may even increase offending in cases where the police had been called out just once. The evaluation report also suggests the DVPO is not cost-effective, equivalent to a return of 23 pence for every pound spent on DVPOs – i.e. a negative return on investment.

6. Despite the small sample size of the initial evaluation, no follow up research or monitoring has been done on DVPO effectiveness and there is no data on the long-term effects of DVPOs on recidivism. We know how many are imposed, but not how many are breached, nor how many victims access support services, nor how many perpetrators access programmes. And we don’t know how they are affecting the behaviour of perpetrators.

7. The impact assessment estimates that the proposals with cost the Legal Aid Agency and HMCTS an extra £6 – 10 million per year. The additional police costs for enforcement have not been calculated, and the assessment makes no mention of costs to other agencies who could have a duty to supervise compliance with the order.

8. We are concerned that the order is being rolled out at significant cost with little understanding of how, if at all, it will reduce abuse in the medium or long-term. The bill documentation states that the introduction of the DAPNs and DAPOs will be accompanied by a programme of work which would include training, communications and awareness-raising for key agencies. But no mention is made of evaluation of the orders or of data collection.

9. We note the intention to pilot the orders in a small number of police forces (Explanatory note 244) and urge that such a pilot is designed to enable better understanding of the effectiveness of DAPOs in reducing abuse. We advocate for an evidence-based introduction of the DAPO – similar to the three-year pilot outlined elsewhere in the bill for mandatory polygraph testing of high risk perpetrators. This should include process and outcome evaluation to understand how it can be used most effectively and where it has no positive impact or is detrimental. Such a pilot would not be unprecedented; when the government introduced the Knife Crime Prevention Order last year, it accepted the need for a similar pilot to test the orders’ overall effectiveness in reducing knife crime. We believe the same approach is warranted for DAPOs.

Criminalising breach of DAPO

10. The Bill also criminalises the breach of DAPO (s35 – s36). The government estimates that criminalising the breach would cost between £7 and £9.8 million each year in additional prison places and probation supervision, requiring an extra 1,400 additional hearings in the criminal courts and an additional 200 custodial sentences, of an average length of four months.

11. We are opposed to criminalisation of the breach as there is no evidence to suggest that making breach a criminal sanction would act as a deterrent. The high number of prisoners recalled for breach of licence conditions and of breaches of suspended sentence orders indicate that the sanctions for breach do not have a strong deterrent effect.

Legal aid for DAPO applicants and alleged perpetrators

12. It is important that any individual applying for a DAPO has access to free legal advice to prepare for the hearing. All alleged perpetrators should also be eligible for free legal advice given the restrictions on liberty imposed by the order.

Automatic eligibility for special measures – video evidence

13. Where cases are referred to prosecution, we support automatic eligibility for special measures in the criminal courts (s51). We agree with the government’s impact assessment that it should help to mitigate additional sources of stress faced when providing evidence.

14. However, in regard to giving video-recorded evidence and evidence by live video link (Explanatory note 26), we question the government’s view that it will "help victims of domestic abuse to offer better evidence, which in turn should result improved justice outcomes for victims of domestic abuse".

15. Giving evidence on video has been proven to decrease the stress of witnesses, but there is little research into how juries and judges respond to witness evidence given via video. This potential impact needs to be understood so witnesses can make an informed decision about how to provide their evidence. We suggest research is conducted to understand the impact of video links on justice outcomes so all involved understand whether video affects outcomes.

Domestic abuse definition – inclusion of perpetrators under 18 years old

16. We support the Standing Committee for Youth Justice’s call for the definition of domestic abuse (s1) to be changed to exclude children (under 18s) and the need for a separate, child-specific approach to addressing violence perpetrated by children. Subjecting children (under 18s) to the same responses and measures as adults ignores the principles applied in other areas of the justice system - the need for a fundamental difference in treatment of children and adults. Children who are violent in a domestic context are likely to be vulnerable and to have been victims of, or witness to, domestic abuse themselves. The current definition indicates a lack of understanding of the need for a specific, tailored approach for children.

17. We support calls for a separate review of violence perpetrated by children against family members/partners leading to separate policy proposals which are child-specific and, as with other offences committed by children, have the child’s welfare and best interests at heart.

Statutory defence for domestic abuse victims who go on to offend

18. We support the motion from the Prison Reform Trust and others to introduce a statutory defence for victims of domestic abuse who go on to offend themselves.

19. We agree that this would reduce inappropriate prosecutions and address the lack of legal protection for victims of domestic abuse who are driven to offend. There is increasing recognition that domestic abuse is a driver of offending, particularly in women. A statutory defence would allow the court to take account of this connection. Victims of domestic abuse who go on to offend are currently failed twice by the criminal justice system – as victims, and later as defendants where criminalisation draws them into a cycle of offending. A statutory defence factor would signify the government understands the complexities and long-term impacts of domestic abuse, better meeting the strategic policy objectives of the Bill to create a justice system that better serves victims.

May 2020