Domestic Abuse Bill

Written evidence submitted by the Law Society of England and Wales (DAB41)

Domestic Abuse Bill Public Bill Committee

Summary

1. The Law Society of England and Wales is the independent professional body that works to support and represent over 200,000 members, promoting the highest professional standards and the rule of law.

2. The Law Society welcomes the Government’s commitment to tackling domestic abuse, represented by the Draft Domestic Abuse Bill.

3. We are concerned at reports of an increase in the number of domestic abuse cases arising throughout the coronavirus pandemic, and believe it is vital that the justice system is equipped to tackle such cases.

4. In particular we welcome measures in the Bill to prohibit the cross-examination of domestic abuse victims by their perpetrators, the inclusion of economic abuse into the statutory definition of domestic abuse, the inclusion of children aged 16 and 17, and the appointment of a Domestic Abuse Commissioner.

5. However, legislation alone is not enough. There is a need for services to be properly funded and the proposals made within the Bill to be supported by a full programme of education.

6. The Law Society has three key priorities for the Bill:

a) Cross-examination – We welcome steps to prohibit the cross-examination of victims of domestic abuse by their alleged abusers. We encourage the Government to extend this provision to include examination-in-chief.

b) Funding for services – We believe that further funding is required for domestic abuse services and other vital public services in order to adequately tackle domestic abuse, particularly given the increase in cases as a result of coronavirus.

c) Availability of legal advice and support – We encourage the Government to ensure that victims of domestic abuse are able to access legal advice and representation. The legal aid means test is preventing many living in poverty from accessing justice.

Prohibition of cross-examination

7. The Law Society has long called for the prohibition of cross-examination in domestic abuse cases, and the measures in the Bill are welcome.

8. However, we believe these measures should extend not only to cross-examination but also to examination-in-chief, for example, where an allegedly abusive party calls the child of the relationship to give evidence in their favour.

9. We also have concerns regarding its implementation. The question of whether cross-examination is likely to cause significant distress is left to the discretion of the judge. There may be scope for a difference in practice between judges as to whether cross-examination is prohibited or not. This will require adequate training and education for the judiciary, in order to avoid relying on gendered or stereotyped interpretations of the party’s behaviour in determining whether cross-examination will indeed cause stress.

10. In addition, the issue of perpetrators using the family justice processes to further abuse victims goes beyond simply cross-examination. There are other ancillary issues such as repeat applications which drag the process out.

11. To ensure that the victim is fully protected and in the interests of justice the ban should not be restricted only to cross examination on issues of alleged abuse. The ban should apply to cross-examination in all circumstances where there is a history of domestic abuse, for example, where there is cross-examination on finances, because the impact of being questioned by the alleged perpetrator can be harmful regardless of the subject matter and the victim's evidence may be diminished. The impact on the victim is the same regardless of the matter being examined.

12. The criminal court benefits from state funded representation for the prosecution in all cases through the Crown Prosecution Service. In criminal prosecutions, a great deal of material will have been gathered and will have found its way into the trial bundle as a result of the various legal requirements for criminal trials and also the front-loading work conducted by the police as it actively investigates alleged criminal offences. The same is rarely the case with family proceedings.

13. In a family case, if the applicant is not represented, it is unlikely that all the relevant evidence (for example, previous police records) will have been identified and filed in the proceedings. This may mean that the advocate might find a case that is not properly prepared and ready to be heard. There may be a need to raise issues of disclosure or obtaining information to ensure a fair and compliant process.

14. As family cases are far more reliant on witness evidence, usually in the form of witness statements than criminal cases, a key question is whether the advocate would be able to prepare a statement for the victim if one has not been prepared. In addition, it is not clear how the advocates working under the scheme will be remunerated.

15. We believe, where abuse is alleged, legal aid should be re-introduced for all parties in Children Act proceedings, up to the point of a fact-finding hearing and Cafcass report. This would help address the above-mentioned problems and guard against potential inconsistency in the courts’ application of discretion.

Availability of legal advice and support

16. There is insufficient support provided to victims of abuse to pursue their legal cases.

17. The Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO) had a significant effect on the ability of victims of abuse to access the legal advice, assistance and representation that they need in order to escape abusive relationships. LASPO removed legal aid for all private family law cases except where an individual can prove that they are a victim of abuse. Individuals have to provide evidence of the abuse they have suffered in order to get through the domestic violence gateway and access legal aid funded services. Although, the regulations controlling the gateway have been somewhat relaxed since they were first introduced, this still represents a barrier for individuals seeking to remove themselves from an abusive relationship.

18. We believe legal aid should be re-introduced for early advice in all family cases. This will ensure that victims of abuse are identified at an early stage and assisted in getting the access to justice that is needed to protect them and their children.

19. In addition to the domestic violence evidence gateway, victims who seek legal aid funded services also have to fulfil financial eligibility criteria (means test). The legal aid means test has three main elements: gross income, disposable income and capital. If any of these is higher than a given threshold, legal aid is denied.

20. A report, commissioned by the Law Society and produced independently by Professor Donald Hirsch of the University of Loughborough, shows that some of society’s most vulnerable – including those living below the poverty line – are unable to meet the legal aid means test. [1]

21. The report’s central finding is that the means testing of legal aid is set at a level requiring many people on low incomes to make contributions to legal costs they cannot afford while maintaining a socially acceptable standard of living. Families with children, and homeowners with low income, are particularly affected by the stringent means test.

22. Before LASPO, anyone who received means-tested welfare benefits would automatically qualify for legal aid in financial terms. LASPO introduced a new capital means test which is more stringent than the capital eligibility rules for means-tested benefits. As a result, many people on very low incomes but with a small amount of capital cannot obtain legal aid.

23. LASPO also increased the level of contributions that individuals have to make towards their legal aid. The National Centre for Domestic Violence (NCDV) collated data on legal aid eligibility during October and November 2014. The data showed that one in five of the 2,026 callers to the NCDV helpline who wished to apply for a non-molestation order were unable to proceed with their application because they could not afford the legal aid contributions. [2]

24. We welcomed the publication of the Government’s post-implementation review of LASPO, and the work it has been undertaking to review the legal aid means test. While this work has slowed as a result of the coronavirus crisis, we believe it is vital that this work resumes as soon as possible to ensure greater access to justice. If people cannot access advice or protect their rights, then those rights effectively do not exist. The Government’s proposed plans are a step in the right direction, and we look forward to working with the Government as they put these plans into action.

Universal credit

25. The Universal Credit process, including mandatory waiting periods and payments to the head of households are also contributing towards an environment where economic abuse becomes more likely. All Universal Credit payments should be processed and paid in advance, not in arrears and no claims should be paid to just one householder. The Government must seek to empower victims of abuse, providing them with the resources and support necessary to be able to leave harmful relationships.

Statutory definition of domestic abuse

26. We welcome the inclusion of economic abuse within the statutory definition. It is positive that the nature of economic abuse is elaborated upon in the Bill, as this is an area where abusive behaviour can often be difficult to clearly identify.

27. However, the statutory definition will only be effective if the judiciary, police, and other relevant agencies receive effective and ongoing training to identify all forms of abusive behaviour, especially that which falls under categories of coercive control or economic abuse. Clear guidance must also be produced, which draws on the expertise of relevant frontline services with first-hand experience.

28. The levels of funding being allocated to training appear insufficient. For instance, response to the consultation states that the Government "will provide £47,000 of funding to update proven police training so that it covers economic abuse." This figure seems very low, given that economic abuse is widely misunderstood, often very subtle, and is likely to require significant training and education in order to be effectively identified.

29. It is important that the definition is easily accessible, clearly understood and widely shared, to ensure that potential victims of domestic abuse can spot the signs and effectively challenge unacceptable abusive behaviour.

30. Children under 16 are best protected under child abuse legislation. In our view, including young people aged 16 and 17 is a positive development. It will ensure that young people are protected from abuse from partners or other associated persons.

Role and powers of the Domestic Abuse Commissioner

31. We welcome the proposal to establish a Domestic Abuse Commissioner, which will hopefully ensure greater coordination between agencies. [3] We note the appointment of Nicole Jacobs to the role ahead of the Bill’s passage.

32. However, given the magnitude of the task, there should be further provision for local Domestic Abuse Commissioners rather than simply one national Commissioner.

33. As with any measures, the establishment of a Domestic Abuse Commissioner and the work of that person’s office will only be effective if adequately resourced, and if the selected person has sufficient powers to make a difference.

34. The Domestic Abuse Commissioner must also recognise the role and expertise of frontline service providers, ensuring their views and experiences are reflected in the Commissioner’s work. This is particularly important to ensure adequate support is available for our increasingly diverse communities, and those in non-standard relationships, with varying levels of power-imbalance. By working with expert frontline providers, the Domestic Abuse Commissioner can have a stronger role in strengthening planning at local and national levels to ensure all are protected from abuse.

35. The Domestic Abuse Commissioner should also be given some responsibility for ensuring effective domestic abuse services are available nationally. While we understand Government’s views that local authorities are best placed to allocate funding, this produces a postcode lottery for survivors of abuse, whose experiences of support can be sporadic.

Domestic Abuse Protection Notices (DAPNs) and Domestic Abuse Protection Orders (DAPOs)

36. We believe there are problems with an excessive focus on criminal responses to domestic abuse. There are a number of reasons for our concerns regarding this approach. Victims of abuse will often be reluctant to make reports, especially if they fear that this will lead to their abuser receiving a criminal record. Involvement of criminal law can often have detrimental consequences for the perpetrator’s employment, which in turn may affect the family, including any children. The focus of criminal law is to identify and prosecute perpetrators, which may not provide the broader and longer-term protection that victims need. At least in this sense, it is a blunt and sometimes ineffective instrument.

37. If victims of domestic abuse are to be offered a realistic opportunity of escaping continued abuse and harm, there needs to be greater emphasis on offering the support and assistance necessary to do so. This includes safe and adequate accommodation, access to funding, and access to other support services, including legal advice, potential assistance with childcare, and counselling. It is crucial that victims of domestic abuse are able to access long-term support that aims to build resilience and confidence, rather than short-term protection by the courts and police.

38. DAPNs are dependent upon the issuing police officer being sufficiently trained and confident in recognising abusive behaviour. DAPNs are likely to offer a more efficient route to obtaining the sort of protection offered by orders under Part 4 of the Family Law Act 1996 (FLA 1996), but such protection depends on effective enforcement. If victims are deterred from involving the police, DAPNs are unlikely to offer much improvement on the current remedies against domestic violence.

39. DAPOs appear to offer an advantage over the complexity of occupation orders, where cohabitants are currently significantly disadvantaged. We welcome the fact that it appears to be easier and more straightforward under the Bill to obtain an order that allows the victim of domestic abuse to remain in the home.

40. However, it is not entirely clear how much additional benefit DAPOs will provide compared with the provisions under Part 4 FLA 1996 for non-molestation orders or occupation orders.

41. There is also concern over the criminal sanctions and the possibility of electronic monitoring of the respondent. Again, these fail to consider the complex relational dynamics of domestic abuse and the difficulty and conflict that victims experience in reporting partners or other associated persons to the police. It is not clear that DAPOs (or DAPNs) offer significant improvement here. There are, again, concerns regarding funding.

Special measures

42. We welcome the introduction of a legislative assumption that all domestic abuse survivors will be treated as eligible for assistance, to make the process as easy as possible. Greater awareness of the measures is essential to encourage complainants to come to court and provide evidence because they will know what to expect.

43. In addition, we argue that witness service intervention in the criminal court should be introduced earlier in the process.

Polygraph conditions for offenders released on licence

44. The Law Society does not agree that polygraph conditions be extended to domestic abuse cases for offenders released on licence.

45. As they provide no evidential use in the courts, the usage appears purely psychological to discourage reoffending.

46. We are also concerned at this measure being a stepping stone towards attempts to introduce this testing further across the justice system, which we would strongly oppose. We question what evaluation has taken place of its existing usage and encourage any extension to be subject to extensive review.

Coronavirus and domestic abuse

47. The Law Society is concerned at reports of an increase in the number of domestic abuse cases arising throughout this pandemic. It is vital that the justice system is equipped to tackle such cases.

48. Lockdown measures have made it even more difficult for victims to get time and space away from their alleged abuser. This creates significant barriers to accessing vital support services and legal advice. Revised guidance should make it easier to access advice and representation for victims to secure injunctions against their alleged abuser.

49. Whilst measures to increase funding for the FLOWS service are welcome, we believe that the criteria for legal aid should be urgently revised to ensure that victims of domestic abuse can access legal advice without having their means assessed.

50. The evidence requirements to satisfy the domestic abuse ‘gateway’ and obtain legal aid in family cases should be relaxed, allowing solicitors to certify that an individual is a victim of abuse. Many victims are required to seek evidence from a medical professional but in the current circumstances this is very difficult to obtain.

51. Nicole Jacobs, the Designate Domestic Abuse Commissioner has said that there will be an inevitable surge in domestic abuse cases reported once some lockdown measures are lifted, that there are victims who will have waited throughout the crisis to feel safe enough to make contact with support services and will take the earliest opportunity to access the courts. It is vital that the justice system is equipped to be able to process these cases and ensure that victims have access to justice.

52. The Domestic Abuse Bill presents the ideal opportunity to make these changes in the midst of the present crisis.

June 2020