Draft Domestic Abuse Bill Contents

3Justice system

Special measures in courts

144.The process of appearing and giving evidence in court can cause considerable trauma to victims of domestic abuse. A court appearance may bring them into direct contact with the abuser, depending on the physical layout of the court buildings and the way the proceedings are conducted. Although in recent years there has been considerable progress in providing security and reassurance to witnesses in criminal proceedings, there is still inconsistency in their application; and the safeguards are much less frequently available in family and other civil courts.

145.It is welcome that the draft Bill (clause 51) extends the availability of assistance (known as ‘special measures’) when giving evidence in criminal proceedings to any complainant where the offence amounts to domestic abuse. The court would not have to be satisfied (as it does now) that the quality of the complainant’s evidence would be affected by fear or distress.188 The measures available include giving evidence from behind a screen, or by live link (not necessarily from within the courthouse). It would still be for the judge to decide which (if any) measures would maximise the quality of the evidence,189 but Amanda Barron told us that in her experience of the “Specialist Domestic Abuse Court” at magistrates’ courts in central London, “almost all of our cases will be granted special measures, because of the nature of the domestic abuse, as they are likely to give much better evidence”.190

146.Welcoming strengthening of the provision of special measures in criminal courts, our witnesses also called particularly for improved protection for victims of domestic abuse when involved in proceedings at family and other civil courts. Olive Craig, Rights of Women, said that it made no sense for the Government to propose a presumption of special measures in the criminal courts where they were already widely employed, but not where it was needed in the family courts.191

147.In 2017, the family courts introduced a new set of rules (Family Procedure Rules, Part 3A) regarding vulnerable people, and a new practice direction about domestic abuse in cases about children (Practice Direction 12J). As a result, arrangements similar to those in the criminal courts (but called “participation directions”) can be made to protect a vulnerable party or witness.192 When considering whether a party or witness is vulnerable, any concerns relating to domestic abuse must be taken into account. Practice Direction 12J makes clear that if victims or children require special measures within the family court, appropriate arrangements, including separate waiting rooms and arrangements for entering and leaving the building, need to be made.193 However, Resolution pointed out that despite these changes, “it is widely recognised that current special measures facilities in the family court hearings, such as video and audio link and screen facilities, are not satisfactory or on a par with those facilities available in the criminal courts”.194 This complaint was echoed by Stay Safe East, who told us that its local family court was equipped with video facilities in only one of 12 courtrooms, had poor physical facilities and inadequate provision of interpreters. They recommended “a national standard for access and special measures for all Family courts and domestic violence courts”.195

148.Lucy Hadley, Women’s Aid told us that the top priority for transforming the response to domestic abuse was improving the family court system, and she called for an “automatic assumption” that special measures will be provided to victims in family courts. She told us of research showing that 61% of the survivors had no access to any special protection measures in the family courts, and only 7% had different entrance and exit times from the perpetrator, a low-cost and easy measure to help keep victims safe.196 The research report concluded that extending such measures would need to be “accompanied by training for court staff to ensure effective implementation and an enabling environment” if special measures were to be successfully used.197

149.In the civil courts, there is little specific provision. The court has an overriding objective to deal with cases fairly and to manage cases actively.198 The court can control how evidence is put before the court,199 and can allow witnesses to give evidence by “video link or other means”.200 But, as the Inns of Court College of Advocacy pointed out in 2015:

there is no focussed practice direction in civil proceedings on the issue of vulnerability, no accepted procedure for advocates, representatives or judges to identify vulnerable people in civil proceedings, no specific special measures and no requirements on judges to manage cases in relation to vulnerable witnesses or parties, including where the case involves litigants in person.201

Women’s Aid pressed for “equal access to special measures for victims across the family, criminal and civil courts”,202 a call echoed by Dame Vera Baird QC.203

150.The Minister told us that special measures were already available in both family and civil proceedings. He said Practice Direction 3AA places a duty on the court to consider whether a party’s application in the proceedings is likely to be diminished by reason of vulnerability, including if they are a victim of domestic abuse, and to consider whether any in-court protections are needed, which can then be ordered by the judge. He added that there were similar arrangements in the Civil Procedure Rules and that the Government had not seen any evidence to suggest that there was an issue with special measures and their effectiveness in the civil court.204

151.The Minister accepted that providing special measures would be challenging because of the physical layout of some courts and variations in the availability of facilities to pre-record and provide video links—but he said that this was something that the Government was addressing by investing in the court reform programme. The Government’s intention was to take those needs into account when constructing new court buildings, or undertaking renovations, so that facilities such as separate waiting areas could be provided.205

152.We welcome the proposal that complainants in criminal proceedings for an offence involving behaviour that amounts to domestic abuse will be automatically eligible for special measures.

153.We recommend that this provision be extended to victims of domestic abuse appearing in family and other civil courts. We note the Government’s comment that this is already possible under family court rules but, given the persuasive evidence about poor implementation, we recommend that the provision for special measures in the family court’s rules and practice directions is put on a statutory basis, and that a single consistent approach is taken across all criminal and civil jurisdictions. This is particularly important given the Government’s plans for a reduced but improved court estate, which may provide an additional barrier to participation for vulnerable victims.

Polygraph testing

154.A key part of the Government’s strategy is to strengthen perpetrator interventions to reduce re-offending. This includes tools for community-based staff working with people who have been released from prison or who are serving community sentences. Clause 52 of the draft Bill enables domestic abuse offenders to be subject to polygraph testing as a condition of their licence following their release from custody. This provision is intended to enable the National Probation Service to pilot polygraph testing with high risk domestic abuse perpetrators to monitor compliance with licence conditions in the community. The Government states that polygraph examinations are already successfully used in the management of offenders released on licence while serving a prison sentence for specified sex offences (under the Offender Management Act 2007).206 The evaluation of a 2009–2012 pilot of polygraph testing under the 2007 Act concluded:

Polygraph testing has increased the chances that a sexual offender under supervision in the community will reveal information relevant to their management, supervision, treatment, or risk assessment. It has also increased the likelihood of preventative actions being taken by offender managers to protect the public from harm.207

155.Statements made by the offender during the test, or interview in connection with a test, and their physiological reactions during the test, may not be used in criminal proceedings in England and Wales.208 It may, however, form the basis of licence revocation and recall to prison.209 The results of polygraph testing have been ruled inadmissible in the Canadian and New Zealand courts, common law jurisdictions similar to the UK.210 The Privy Council211 has considered the admissibility of polygraph testing. It noted that “the arguments against the admission of such evidence are very formidable” but did not need to decide whether the courts may accept it in some form in exceptional cases.212

156.Liberty suggested that “the use of polygraph testing risks infringing upon the offender’s rights under Article 5 (right to liberty), Article 6 (right to a fair trial) and Article 8 (right to privacy) [of the European Convention on Human Rights], particularly if their conditions become more restrictive and their monitoring becomes more intrusive as a result of the test.” It also raised concerns that the probation officer may “defer to the machine” rather than make their own, informed decision on managing the offender’s risk.213

157.Dame Glenys Stacey, HM Chief Inspector of Probation, reported that “a good number of probation professionals” would welcome the pilot and emphasised that during her tenure she had not found that such staff preferred anything to be “mechanistic”:

I would be very surprised indeed if there was a lazy resort to that. What they want is assistance to challenge legitimately what they are being told by a skilled liar.214

158.Rights of Women told us they were concerned that polygraph testing might create a false sense of security leading the probation service to over-rely on it for risk assessment and management.215 Respect suggested the money would be better spent on tagging.216

159.Polygraph tests are considered to have assisted probation in monitoring the behaviour of sex offenders and the Government proposes to pilot their use with domestic abuse offenders. It must be absolutely clear that no statements or data from a polygraph test can be used in the criminal courts. This appears to be the effect of the draft Bill but care must be taken to ensure the results of testing are not used in court, and that testing does not become a substitute for careful risk analysis or for other evidence-based interventions with perpetrators.

Cross-examination in family courts

160.Following the Legal Aid, Sentencing and Punishing of Offenders Act 2012 (LASPO), legal aid has generally been available to parties in the family court (at least in ‘private law’ cases concerning children) only in “exceptional cases”, unless the party was the victim of domestic abuse.217 The limited availability of legal aid means that parties are often unrepresented in family cases: the reduction in numbers of represented litigants in private law cases after LASPO has been described as “drastic”.218 If a family case (which need not itself be about domestic abuse) involves the victim of abuse giving evidence against an unrepresented perpetrator, the perpetrator will be entitled to cross-examine the victim. In contrast, since 2000 defendants have been barred from personally cross-examining the alleged victim of a sexual offence in criminal courts.219

161.The situation in the family courts has long been decried, with judicial calls as long ago as 2006 for the statutory provision of an advocate to conduct the cross-examination.220 Expressions of judicial dissatisfaction intensified after LASPO.221 Sir James Munby, the then President of the Family Division of the High Court, suggested that publicly-funded representation might have to be provided (rejected in other proceedings by the Court of Appeal),222 and in 2016 issued this statement:

I have been raising since 2014 the pressing need to reform the way in which vulnerable people give evidence in family proceedings. I have made clear my view that the family justice system lags woefully behind the criminal justice system.

I have expressed particular concern about the fact that alleged perpetrators are able to cross-examine their alleged victims, something that, as family judges have been pointing out for many years, would not be permitted in a criminal court. Reform is required as a matter of priority. I would welcome a bar. But the judiciary cannot provide this, because it requires primary legislation and would involve public expenditure. It is therefore a matter for ministers. I am disappointed by how slow the response to these issues has been and welcome the continuing efforts by Women’s Aid to bring these important matters to wider public attention.223

162.Even more starkly, in a 2017 High Court judgment, Mr Justice Hayden said:

It is a stain on the reputation of our Family Justice system that a Judge can still not prevent a victim being cross examined by an alleged perpetrator. […] the process is inherently and profoundly unfair. I would go further it is, in itself, abusive. For my part, I am simply not prepared to hear a case in this way again. I cannot regard it as consistent with my judicial oath and my responsibility to ensure fairness between the parties.224

163.Clause 50 of the draft Bill is the Government’s response. It prohibits a perpetrator from personally cross-examining a victim, and vice versa, where the perpetrator has been convicted of, cautioned for, or charged with, a specified offence (including, the Government intends, domestic abuse offences) against the victim; or the victim is protected by an injunction. Where this absolute prohibition does not apply, the court is given a discretion to prohibit in person cross-examination where it appears to the court that it would diminish the “completeness, coherence and accuracy” of the witness’s evidence (the “quality condition”), or cause “significant distress” to that witness (the “significant distress condition”). The court is given power to appoint an advocate to cross-examine for anyone barred from doing so personally, to ensure their right to a fair trial. The advocate could be paid from public funds under regulations the Lord Chancellor is given power to make.

164.The Law Society of England and Wales told us that cross-examination measures in the Bill are very welcome but identified some problems with their implementation. It suggested judicial practice on prohibiting cross-examination might be inconsistent and that this would 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”. The Law Society said that the ban should apply to cross-examination in all circumstances where there was a history of domestic abuse. It also questioned whether advocates appointed by the court would have the capacity to prepare a witness statement for the victim. The Law Society also recommended that the prohibition should extend to cover questioning of witnesses called by the alleged abusive party themselves: for example, where they called a child of the relationship to give evidence.225

165.Rights of Women welcomed the Government’s intention to prohibit cross-examination in person in certain cases but said that the current proposals provided inadequate protection for victims of domestic abuse. It said that “cross-examination of victims by the perpetrator of abuse is well recognised as a way in which perpetrators can continue their abuse” and that “research has shown that around a quarter of victims of domestic abuse in child contact proceedings are still being cross-examined directly by the perpetrator”.226

166.Rights of Women told us that the majority of the women that face family law proceedings against the perpetrator of domestic abuse would fall into the discretionary category because the perpetrator would not have been convicted, cautioned, charged or have a protective injunction against them. It suggested that it would be difficult for judges to conduct the time-consuming enquiry necessary to properly determine whether the “significant distress” or “quality” conditions are met, particularly in cases of controlling or coercive behaviour where there was a pattern of behaviours which may appear innocuous but were powerful enough to silence the victim.227 Rights of Women recommended that the draft Bill be amended so that the prohibition is mandatory where there are allegations of domestic abuse, not just when there has been a conviction.228 The Family Justice Council agreed that the proposed provisions provided too much scope for discretion, adding that this was “to the potential detriment of the efficient administration of justice.”229

167.Practice Direction 12J requires family courts to consider at an early stage whether a hearing is needed to make a “finding of fact” about whether alleged domestic abuse did occur.230 Resolution said that it had anecdotal evidence from its members of an inconsistent understanding and application of Practice Direction 12J, ranging from some cases in which a low level allegation of abuse resulted in the case not progressing, through to more serious cases being “nodded through” without evidence being heard or findings of fact made. Some of its members had suggested that first hearings should be before specialist domestic abuse judges, perhaps supported by a specialist CAFCASS team.231

168.Elspeth Thomson, a member of the national committee of Resolution, told us that the conditions for the proposed ban on cross-examination failed to cover a number of situations in which somebody’s evidence would be compromised by their experiences. She suggested that it should be mandatory to prohibit cross-examination in family proceedings where there had been a finding of fact, for example in the family court, of domestic abuse.232 She also said that a lot of detail needed to be addressed and it would not be enough to transpose the system in criminal courts, where victims are always represented. In the family courts, the victim would often not have a legal representative because they did not meet the legal aid means test. This could result in an inequality of arms if the perpetrator was represented. Resolution suggested that legal aid for representation of both victims and perpetrators might address the family justice problem more effectively than the current proposals and could guard against inconsistency in the court’s application of discretion to prevent cross examination. Resolution also raised other wider issues in the family justice system, including perpetrators using repeat applications, dragging the process out.233

169.The Magistrates Association welcomed the proposals to prohibit cross-examination by alleged perpetrators in family courts, but pointed out that the structure of family proceedings differed significantly from that of criminal proceedings:

For example in criminal proceedings a complainant and defendant will only come together once (ie at the trial itself), but during the course of family proceedings the parties are likely to be in attendance for several hearings. It is not currently clear as to whether advocacy will be provided for the duration of proceedings, or only for specific hearings where requirements under the ‘quality’ or ‘distress’ conditions are most pronounced, or where oral evidence will be heard.234

170.The Minister, Edward Argar, told us that the Government expected the new power to prohibit cross-examination would be “widely used” and that “every victim of domestic abuse should benefit from the provisions against cross-examination in person”. He said that the Government would be producing statutory guidance to sit alongside the Bill, in which it would clearly set out how that power should be exercised in practice, and would work very closely with the judiciary to ensure it was being used properly. He explained:

… we did consider the option in this context of extending the automatic ban on cross-examination in person to cover all instances where there are allegations of domestic abuse. However, given the wide definition of domestic abuse being introduced in this Bill, we felt that a blanket, automatic prohibition against cross-examination in person where domestic abuse is alleged could risk extending the provision further than where it is necessary. We are, of course, open to reflecting on any comments from the Committee in this respect.235

171.With reference to wider issues in the family justice system, the Minister also told us that the Government had announced the establishment of an expert panel to gather evidence on outcomes for children and parent victims in contact cases and other private law children’s proceedings. This would look in particular at any harm caused during or following such proceedings where there were allegations or other evidence of domestic abuse or related crimes.236

172.The proposal to prevent the perpetrators of domestic abuse themselves from cross-examining victims in the family courts is a welcome measure and warmly supported across the board. We are pleased that it is accompanied by publicly-funded representation for perpetrators of abuse where necessary in the interests of justice.

173.However, we are concerned at the potential for inconsistency in application because too many victims of domestic abuse will be protected only at the discretion of the court. We recommend that the mandatory ban is extended so that it applies where there are other forms of evidence of domestic abuse, as in the legal aid regime threshold.

Hearing the voice of the child in court proceedings

174.We heard evidence from a number of witnesses regarding the need to ensure that the voice of children in private law proceedings under the Children Act 1989 is being heard, particularly when children are saying that they are too scared to have contact with a parent and/or do not want it. A joint submission from a number of organisations in the violence against women and children’s sectors told us that the “welfare and wishes” of a child must be considered in line with the Practice Direction on domestic abuse,237 and that Serious Case Reviews have revealed that, tragically, “children have died or been seriously injured during unsafe contact arrangements with an abuser.”238

175.Representing the voice of children and ensuring that decisions are made in their best interests is the primary responsibility of CAFCASS when providing reports to the Family Court under s.7 of the Children Act 1989. However, we are aware from evidence submitted to us together with wider research that there are ongoing and significant concerns that CAFCASS is not sufficiently representing the voices of children who do not wish to have contact with their parents where domestic abuse is a factor. We therefore consider that it is time for the Government to conduct a thorough review of how CAFCASS can improve its obligations in this regard.

176.We have also heard that judges and magistrates are increasingly meeting children who are involved in cases face to face. We very much welcome this development and would like to encourage all those hearing cases about children’s welfare to consider hearing from children directly.

Other justice issues

177.We received evidence from the Rt Hon Harriet Harman MP and Mark Garnier MP about defendants in domestic homicide cases claiming that the victim had consented to the violence that led to their death. In those circumstances, the charge would be manslaughter rather than murder. Such a case occurred in 2016 when Natalie Connolly was killed by her partner who said that her injuries were inflicted due to consensual “rough sex”. He received a prison sentence of three years eight months. There are concerns that, because of the difficulty in obtaining convictions in domestic abuse cases, especially when the victim has died, prosecutors may pursue the lesser charge in order to obtain a conviction.

178.Given the weight of case law that people cannot consent to violence against them that causes Grievous Bodily Harm, let alone death, we are surprised that prosecutors opted for the lesser charge in the case cited. We consider that the case does not and should not provide a precedent, and we therefore do not recommend any changes to the Bill.

179.The Prison Reform Trust proposed that a new clause should be added to the draft Bill creating a statutory defence for women whose offending is driven by their experience of domestic abuse. Its proposal for the new clause is supported by the Criminal Bar Association. The Prison Trust explained that women in prison in England and Wales have often been victims of more serious offences than those they are accused of committing, and that their experience of abuse and trauma is too often disregarded in decisions by criminal justice agencies.239

180.We recommend that the Government considers the proposal that a new clause be added to the Bill to create a statutory defence for women whose offending is driven by their experience of domestic abuse.

Perpetrator interventions

181.A key aspect of the Government’s domestic abuse strategy is to stop the re-offending of perpetrators, including repeat and serial perpetrators. The Government recognises that domestic abuse often occurs as a repeated pattern of behaviours, with some perpetrators abusing multiple partners over a number of years. Some perpetrator interventions are currently provided by Her Majesty’s Prison and Probation Service for those who have been convicted of offences and are assessed as at risk of re-offending. There are also some programmes for perpetrators who have not been convicted of an offence, which can be delivered or commissioned by the police, local authorities, or by CAFCASS.240

182.The Government recognises that domestic abuse often occurs as a repeated pattern of behaviours, with some perpetrators abusing multiple partners over a number of years. As part of its non-legislative measures accompanying the Bill, it has set out ways in which it aims to improve and increase the use of perpetrator programmes to help stop reoffending. We decided to take evidence on this issue in order to examine whether there was also a need for legislative measures to support this provision.

Probation service

183.The probation service is responsible for accrediting any perpetrator programmes used as part of a criminal sentence. Dame Glenys Stacey, HM Chief Inspector of Probation, told us that around half of those under probation were domestic abusers, and emphasised the potential benefit of undertaking good quality, evidence-based work with those individuals. A recent thematic inspection report from HM Inspectorate of Probation noted that probation services could play an important role in reducing domestic abuse but expressed “grave concern” about some of the probation work intended to protect victims of domestic abuse, and especially children. In terms of the quality and effectiveness of perpetrator interventions, the HMI Probation report stated that:

In the cases we looked at, we found that very little meaningful work had been completed in custody. In the community, domestic abusers were not making enough progress, and many had completed little work to help them improve their relationships and behaviour. While a range of domestic abuse interventions were being offered, I am not assured that these were all evidence-based, evaluated or delivered effectively. Too few individuals were either starting or completing Building Better Relationships, the only accredited domestic abuse programme that the court can impose as part of a community sentence.241

184.Dame Glenys told us that the numbers starting on the Building Better Relationships programme had reduced by 13% in the last eight years, and by 7% in the last year.242 She estimated that just under 5,000 people a year were ordered to go through the programme, in contrast to the much more common court order of a rehabilitation activity requirement (a general provision to undertake rehabilitative activities with the probation company) which was given to around 82,000 people a year.243 She pointed to a number of possible reasons. One problem was that when courts wanted to sentence on the day, for speedy justice, there was insufficient time to check with relevant agencies whether the person was suitable for a programme, and even where the order was recommended, it was not always ordered by courts.244 Another issue was that current probation contract arrangements required Community Rehabilitation Companies245 to offer the Building Better Relationships programme and deliver it only when a court ordered it, and they would therefore not be paid in cases where the programme would suit the individual but the court had not ordered it. She said that since the current probation arrangements had been in place, the numbers on accredited programmes had reduced by about a half.246

185.Dame Glenys said that there was also an estimated 12% decrease last year in the number of perpetrators finishing programmes. This was sometimes for reasons beyond the participants’ control—because of delays in starting the programme, insufficient time before the end of the supervision period to complete the programme, or lack of trainers to deliver the programme. She added that there was also a need for a range of other respected interventions for people with different needs, such as women perpetrators.247

186.To address these problems, Dame Glenys said that first, the National Probation Service would need to be allowed sufficient time to do the right checks before a sentence was given to see whether the individual perpetrator was suitable for a particular programme, and that this might sometimes mean an adjournment of a hearing. Secondly, NPS staff giving advice to a court on the sentence needed to adhere to existing NPS guidance which made it entirely clear that they should order a rehabilitation activity requirement only when no accredited programme or solution was suitable. Thirdly, there was a need to look at the contractual arrangement for probation companies which meant that they were only paid to deliver an order made by the court and that they received no payment for putting someone through one of those programmes of their own volition, even if that was the right thing to do in the individual circumstance. Finally, there was a need for a range of other interventions from accredited programmes to meet the profile of different perpetrators.248 Dame Glenys also agreed that even though Building Better Relationships and other accredited programmes were built on a sound evidence base, it was right that there should be an evaluation to see whether they were actually working, although that process would not be straightforward.249

Other perpetrator programmes

187.The Lloyds Bank Foundation for England and Wales supports individual local charities tackling domestic abuse and also has a strategic national programme to help the domestic abuse sector develop new approaches and respond to the challenges facing it. Since 2015, the Foundation has been the main independent funder supporting Drive, a pilot approach to working with domestic abuse perpetrators that is led by Respect, SafeLives and Social Finance.250

188.The Drive approach focuses on serial perpetrators to prevent abuse and challenge behaviour, and typically works with cases where the victim has been assessed as at high risk of serious harm or fatality.251 Duncan Shrubsole said that evaluation of the Drive project by the University of Bristol had indicated a reduction in physical abuse by two thirds, sexual abuse by three quarters, and controlling behaviour, harassment and stalking by over half. He called for funding and national infrastructure to support more such programmes, and infrastructure around standards and quality to ensure that safe standards were met.252 Drive called for specialist interventions for the full spectrum of perpetrators, including, for example, LGBT+ relationships, honour-based violence and other situations in which there were multiple perpetrators, or in which the couple had not separated.253 Galop told us that currently there were no specific National Offender Management Service-accredited or other programmes for people who perpetrate abuse in same-sex relationships.254 Duncan Shrubsole, of the Lloyds Bank Foundation, said that there had been some history of the prison and probation service “doing things on the cheap with perpetrators” and argued that a bad programme was worse than none at all.255 He said that all interventions should be Respect-accredited to ensure that provision was safe.

189.The Magistrates Association also supported the call for accreditation of perpetrator programmes, saying that it was aware that in some parts of the country there was a requirement for any domestic abuse perpetrator programme to be accredited by Respect before it could be ordered by family court. It added that this accreditation provided a certain level of confidence for the bench, as it meant any programme must use interventions with a proven evidence base, the standard of intervention provision was regularly monitored, and there must be support provided to victims alongside interventions for the perpetrator.256

190.In terms of accreditation, Jo Todd said that Respect had a set of standards and a system of accreditation that was supported by the Government and the Home Office, and that those standards should be embedded in commissioning frameworks. This would help to remove any current bad practice such as short weekend courses with men and women in the same perpetrator group. She called for better accountability of programmes in the prison and probation services:

We have more accountability in the voluntary sector for what happens with our accredited programmes than there is in the current probation service and the Prison Service. They accredit a programme and then it is left to the CRCs or the prison to run it as they wish. It is only picked up if there is a thematic domestic abuse inspection that will scrutinise how it is being delivered. We scrutinise the delivery as well as the programme that is being used. It is absolutely crucial that there is synchronicity across the system or coherence across the different areas where perpetrator programmes are being run, so that they are all delivered to that high standard. The Domestic Abuse Commissioner is key.257

191.The Government has agreed that perpetrator interventions can prevent the escalation of offences, or any instances of further abuse and states that its aim in working with perpetrators is to prevent reoffending in order to protect victims and their children, and to give victims the space and security to rebuild their lives.258 It has recognised that “the criminal justice response to perpetrators needs to be improved through better multiagency working with other statutory partners, better use of risk assessment to identify perpetrators, and clearer pathways for managing, monitoring and mitigating the risk that perpetrators pose”259 and stated that it is committed to “transforming our response to perpetrators of domestic abuse at all points in the criminal justice system, from pre-conviction to custody and through to post-conviction in the community”. On 16 May, the Government announced that responsibility for the supervision of all offenders on probation in England and Wales was being returned to the public sector after a series of failings with the system.260

192.The Minister told us that the Government’s aim was to ensure that people received the right intervention at the right time. He accepted the need for accredited perpetrator programmes, and agreed that no programme was better than a bad programme. He said that there were a number of non-legislative commitments in the overall package sitting with the draft Bill. Key elements included courts’ awareness of, and ability to access programmes, and also the ability of the probation service effectively to deliver and monitor them. As part of the reforms to the probation service that were recently set out by the Secretary of State, the Government was committed to improving the assessment and identification of people convicted of a domestic abuse offence who were eligible for the Building Better Relationships accredited programme. In terms of providing a wider range of programmes to meet different types of perpetrator, he said that it was the Government’s intention to ensure that accredited interventions were available that would meet the most frequently occurring needs across the country within the probation case load.261

193.In recent years, the number of individuals given a court order to attend a perpetrator programme has been reducing and fewer perpetrators are successfully completing those programmes. There is also currently no incentive for the probation service to provide perpetrator programmes to offenders who do not receive a court order but might still benefit from the programme. HM Chief Inspector of Probation told us that this was because of systemic problems in the criminal justice system and in the delivery of probation services.

194.Perpetrator interventions which succeed in bringing about significant changes in abusive behaviour must be tailored to the particular type of perpetrator if they are to achieve results, and can be expensive and time consuming. Increasing attendance on unsuitable programmes will not reduce the prevalence of domestic abuse. We heard that there is a need for a wider range of programmes, and for all programmes to be properly accredited and evaluated.

195.The Government has responded to concerns about the probation service’s performance, and its delivery model. It must now ensure that those reforms support its ambition to increase the number of offenders successfully completing good quality perpetrator intervention programmes. In her evidence to us, HM Chief Inspector of Probation identified several factors which were contributing to the reducing number of perpetrators attending and completing suitable programmes. We recommend that the Government sets out how it plans to address those specific concerns.

196.The Government must also ensure that there is sufficient provision of quality assured specialist interventions for the full spectrum of perpetrators, across all risk levels. This will require an adequate level of funding and cooperation with expert providers. We did not identify a need for additional legislation to support perpetrator programme measures.

188 Youth Justice and Criminal Evidence Act 1999, s 17

189 Youth Justice and Criminal Evidence Act 1999, s 19(2)

192 Family Procedure Rules, rr 3A.4–3A.5

193 Family Procedure Rules, PD12J, para 10

194 Resolution (supplementary evidence) (DAB0521)

195 Stay Safe East (DAB0541)

197 Women’s Aid and Queen Mary University of London School of Law, “What about my right not to be abused?” Domestic abuse, human rights and the family courts (2018)

198 Civil Procedure Rules (CPR) rr 1.1 and 1.4

199 CPR r 32.1(1)(c)

200 CPR r 32.3

202 Women’s Aid Federation of England (DAB0404)

203 Northumbria PCC (DAB0500)

206 Home Office, Transforming the Response to Domestic Abuse: Consultation Response and Draft Bill (January 2019), p 75

207 Ministry of Justice, The evaluation of the mandatory polygraph pilot (July 2012)

208 Offender Management Act 2007, s 30

209 Explanatory Notes

210 Canada: R v Béland 1987 CanLII 27 (SCC); New Zealand: “… polygraph testing has not received wide support from New Zealand Courts and provide no substitute for the well established rules of evidence…” Kim v Police [2015] NZHC 2543

211 The highest court of appeal for UK overseas territories and Crown dependencies and some Commonwealth countries.

212 Bernal and Another v R [1997] UKPC 18 at [39]

213 Liberty (DAB0216)

217 Legal Aid, Sentencing and Punishment of Offenders Act, ss 9–10 and Sched 1, para 12; The Civil Legal Aid (Procedure) Regulations 2012 (SI 2012 No 3098), reg 33;

218 Sir James Munby, then President of the Family Division, in Q v Q [2014] EWFC 31, at [11]

219 Youth Justice and Criminal Evidence Act 1999, s 34

220 H v L and R [2006] EWHC 3099 (Fam)

221 See, eg, D v K and B [2014] EWHC 700 (Fam)

222 Q v Q [2014] EWFC 31, at [82] and [88]; Re K and H (Children) [2015] EWCA Civ 543, where the Court of Appeal held that a publicly-funded advocate could not be appointed but urged that “consideration should be given to the enactment of a statutory provision” (at [62]).

225 The Law Society of England and Wales (DAB0482)

226 Written submission to JCHR DVB0050

227 Written submission to JCHR DVB0050

229 Family Justice Council (DAB0417)

231 Resolution (supplementary evidence) (DAB0521)

233 Resolution (supplementary evidence) (DAB0521)

234 The Magistrates Association (DAB0526)

239 Prison Reform Trust (DAB0429)

240 Home Office, Transforming the Response to Domestic Abuse: Consultation Response and Draft Bill (January 2019), pp 71–72

244 Delivering Simple, Speedy, Summary Justice was a government initiative introduced in 2006. One of its objectives was that cases that require a court process will be dealt with as quickly as possible consistent with the needs of justice.

245 Since June 2014, probation services have been delivered by two distinct sectors: a public National Probation Service (NPS) and Community Rehabilitation Companies (CRCs), which are independent organisations, owned by private companies, on contract and held accountable by the Ministry of Justice (MoJ). In May 2019, the Government announced that the supervision of all offenders on probation in England and Wales was being put back in the public sector.

250 Lloyds Bank Foundation for England & Wales (DAB0476)

251 Drive Partnership (DAB0480)

253 Drive Partnership (DAB0480)

256 Magistrates Association (supplementary evidence) (DAB0530)

258 Home Office, Transforming the Response to Domestic Abuse: Consultation Response and Draft Bill (January 2019), p 73

259 Home Office, Transforming the Response to Domestic Abuse: Consultation Response and Draft Bill (January 2019), pp 71–72

260Justice Secretary announces new model for probation”, Ministry of Justice, National Probation Service and HM Prison and Probation Service, 16 May 2019

Published: 14 June 2019