Domestic Abuse Bill: A Step in the Right Direction

It could be argued that the current, confusing compilation of domestic abuse laws, policies and procedures has failed the victims and survivors of domestic abuse. In 2019, the introduction of the Domestic Abuse Bill sought to rectify the situation. Unfortunately the Bill failed to pass through Parliament before it was dissolved on 6 November 2019 and so we currently eagerly await the House of Commons Committee stage.

The aim of the Bill is to promote awareness of domestic abuse, to provide protection and support to domestic abuse survivors and their families, and to provide a more effective response to perpetrators. The Bill appears promising from its aims, but how far these aims will be achieved in practice can only be speculated on.

Potential changes to be implemented by the Bill:

A statutory definition recognising the fact that domestic abuse encompasses physical, emotional, coercive or controlling and economic abuse.

This statutory definition comes not long after we saw the criminalisation of controlling and coercive abuse. The existing cross-government definition of domestic abuse currently operates on a non-statutory definition. Providing the definition on a statutory basis will hopefully ensure that domestic abuse is properly understood, in particular the separate identification of the wider types of abuse such as economic abuse. The aim is to ensure all agencies such as the NHS, police and local authorities are all applying a common definition and to educate everyone’s understanding as to what domestic abuse means.

The introduction of a Domestic Abuse Commissioner

Nicole Jacobs is designated to undertake the brand new role of Domestic Abuse Commissioner. The Commissioner will oversee and monitor the implementation of the new provisions. They will expectantly raise public awareness of domestic abuse and ensure universal practice on a national level by providing independent and objective advice. Government Ministers and specified public bodies will have a public duty to respond to the Commissioner’s recommendations within 56 days.

Provide for a new Domestic Abuse Protection Notice (DAPN) and Domestic Abuse Protection Order (DAPO)

DAPNs and DAPOs are available for all types of domestic abuse, including controlling and coercive behaviour. The courts will be able to make DAPOs on their own accord in any type of proceedings; the DAPOs will have flexible duration so that they can be used to protect victims for the long-term where necessary. A DAPO will be used to impose both rehabilitative provisions on offenders (such as alcohol/substance misuse programmes) as well as prohibitive measures (such as preventing offenders from contacting their victims). Breach of a DAPO is a criminal offence and carries a maximum custodial sentence of up to five years, or a fine, or both.

A duty on local authorities to support domestic abuse victims and their children staying in refuges and other safe accommodation

A four part statutory framework will be in place to ensure all victims of domestic abuse and their children can access the right support within safe accommodation. The statutory framework will achieve the following:

  • Place a duty on each tier one local authority to appoint a multi-agency Domestic Abuse Local Partnership Board which it will consult.
  • Require local authorities to have regard to statutory guidance in exercising their function.
  • Require the Secretary of State to produce statutory guidance.
  • Require tier two councils to co-operate with the lead local authority.

Safe accommodation includes: sanctuary schemes, refuge, specialist safe, dispersed and move-on accommodation. 

Prevent perpetrators/alleged perpetrators being able to cross examine their witnesses in Court and vice versa

Where necessary, the Family Court will have the power to appoint a publicly-funded advocate to conduct cross-examination. The aim is to prevent the horrific trauma and distress cross-examination can bring to victims. The regulations that qualify for an automatic ban will be introduced. It is expected that all forms of domestic abuse will qualify as well as protection for a wider range of vulnerable witnesses in the family court. The perpetrator does not have to have a conviction, caution, charge or injunction against them and other evidence of domestic abuse such as that used to consider the criteria for legal aid will be sufficient for qualification.

Create a statutory presumption that victims of domestic abuse are eligible for special measures in the criminal courts (for example, to enable them to give evidence from behind a screen or via a video link)

Usually, for a witness to be eligible for special measures when giving evidence, the court needs to be satisfied that the quality of the witness’s evidence is likely to be diminished due to their fear/distress about testifying. Victims of domestic abuse automatically qualify under the presumption if they fall under the new statutory definition of domestic abuse and so no longer have to satisfy this test. However, the court will still need to consider if the measures are needed to improve the quality of the witness’s evidence when deciding to provide special measures and if so what measure(s) are needed. It should be highlighted the statutory presumption applies in the criminal courts and not the family courts.

Enable domestic abuse offenders to be subject to polygraph testing as a condition of their licence following their release from custody

The government will implement a three year pilot of mandatory polygraph examinations on domestic abuse perpetrators released on licence identified as being at high risk of causing serious harm. Offences classed as being high risk include those who have breached DAPO, domestic abuse restraining orders and controlling or coercive behavior, all where the offender was sentenced to at least 12 months imprisonment.

Offenders will take the test three months post release from custody then every six months thereafter, unless the test is failed in which case offenders will need to take the test more regularly. Offenders could also be given a formal warning or made subject to additional licence conditions if they fail the test. The tests are designed to detect physiological changes in the offender’s body. Evidence suggests that polygraph testing has resulted in the safeguarding of children and vulnerable adults.

Place the guidance supporting the Domestic Violence Disclosure Scheme (“Clare’s law”) on a statutory footing

Due to Clare’s Law, disclosure can be made by the police to a victim/potential victim about their partners abusive/violent offending. The guidance supporting Clare’s Law will be put into statute to place a duty on the police to have regard to the guidance. It is also designed to increase the awareness of the scheme among the public and produce consistency in the application of the guidance.

Ensure that where a local authority, for reasons connected with domestic abuse, grants a new secure tenancy to a social tenant who had or has a secure lifetime or assured tenancy (other than an assured shorthold tenancy) this must be a secure lifetime tenancy

This measure is introduced to help victims of domestic abuse leave their abusive home without the fear of losing their security of a lifetime tenancy. When re-housing existing lifetime social tenants or granting new lifetime tenancies, local authorities will grant a new lifetime tenancy where the tenant or a member of the household has been a victim of domestic abuse and the new tenancy is granted in connection with that abuse.  

Extend the extraterritorial jurisdiction of the criminal courts in England and Wales, Scotland and Northern Ireland to further violent and sexual offences

Where UK nationals/residents commit certain violent and sexual offences outside the UK, the Bill will allow the perpetrators to be brought to trial in the UK. The Bill comes after the UK signed ‘the Council of Europe Convention on preventing and combating violence against women and domestic violence’ (the ‘Istanbul convention) in 2012. The UK already has extraterritorial jurisdiction over certain offence in the Istanbul Convention: murder/manslaughter in most circumstances, sexual offence when the victim is under 18, forced marriage and female genital mutilation. The Bill now extends extraterritorial jurisdiction to other offences such as sexual offences where the victim is over 18 and other types of murder/manslaughter not previously caught. 

Comment

“There are some 2.4 million victims of domestic abuse a year aged 16 to 74 (two thirds of whom are women) and more than one in ten of all offences recorded by the police are domestic abuse related.” The Domestic Abuse Bill could not have come at a more crucial time. Due to the stringent lockdown measures, the National Domestic Abuse helpline have received an estimated 25% increase in calls and online requests. The symbolic effect of the Bill outweighs any potential uncertainties that will always remain when trying to eradicate such a sensitive, unique form of abuse. In particular, the Bill acknowledges different types of abuse such a technological and economical abuse.

It is also hoped the new DAPN and DAPO will provide a more collaborative approach to domestic abuse as opposed to the current confusing variety of reliefs available across various courts. As stated the new DAPNs and DAPO will allow Courts to impose rehabilitative programs on perpetrators as well as preventive measures. The route of the problem is therefore considering proactive measures as opposed to omissions. Addressing the route of the problem will expectantly provide longer term solutions and reduce the number of repeat offending.

It has been questioned whether the Courts will have sufficient resources to monitor the new measures and this may be something the Domestic Abuse Commissioner addresses. At second reading on 28 April, the House of Commons also identified that to achieve the extensive aims highlighted above, there needs to also be long-term, adequate funding for Councils. Thus, we will have to see if the aim of providing long-term protection to victims can be achieved in practice.