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Domestic Violence Seminar

     nd22 January 2007

Paper produced and presented by Smita Shah, Barrister at Garden

    Court Chambers

Domestic Violence, Crime and Victims Act 2004

I INTRODUCTION

    The Domestic Violence, Crime and Victims Act 2004 (DVCVA 2004) by its title turned the spotlight onto a serious societal crisis; understandably the Act when announced amid much fanfare was initially hailed as a radical shake up of domestic violence legislation (Bessant 2005), namely the Family Law Act 1996 (FLA). Instead it proved to be a generalised criminal law reform act as well containing a host of other provisions such as making common assault an arrest able offence, introducing a crime of domestic homicide and other changes to the rules of evidence.

    What followed was the piecemeal enactment of its key provisions, section 1-4 relating to domestic violence.

    The relevant provisions of the Act which concern domestic violence, with which this seminar will address, seek to widen the protection offered and criminalise the enforcement of non-molestation orders through the FLA procedure. The seminar will highlight the changes implemented last year, their implications and take a survey of some other initiatives aimed at servicing the needs of victims/survivors of domestic violence. We have had 6 months to allow the act to begin bedding in and certainly it was hoped a flurry of appeals, not simply to keep us all gainfully employed but perhaps to offer much needed guidance on some of the more thornier questions raised by enactment of section 1 of the DVCVA 2004. This does not appear to have happened.

    Nonetheless the key question for victim/survivors of domestic violence will be whether the amendments will confuse or assist them when they need its protection and redress?

II COMMENCEMENT

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    Paper by produced by Smita Shah, Barrister, Garden Court Chambers Not to be re-produced in whole or part without permission DATE 2007

Domestic Violence Seminar

     nd January 2007 22

    thSections 2 and 3 of the DVCV Act 2004 were enacted almost immediately on 5 December 2005,

    which widened the scope pf protection. Sections 1-4 of the DVCV Act 2004 which criminalised the breach on non-molestation injunctions and widened associated persons to include non-

    stcohabiting relationships were finally enacted on 1 July 2007.

III WIDENING PROTECTION

    ; Associated persons to include non-cohabiting couples (s.4 DVCVA 2004)

    ; S. 3 DVCVA 2004 widen co-habitants to include same sex couples

    ; Equal status between married and non-married couples

    The widening of the protection offered within the Family Law Act by the relevant provisions of the DVCV Act 2004 was a welcome change. In line with changing societal attitudes and the reality of family life in the UK; protection offered is widened in two areas, the first is that of the class of ‘associated persons’ and secondly with the definition of ‘cohabitation’.

First, ‘associated persons’ has been expanded to include first cousins within the remit of ‘relative’

    in s. 63 of the FLA 1996, by adding ‘nephew or first cousin’ (Sch 10 para 41 (3)(a)); reflecting

    the extended family paradigm which is increasingly common. There will always be some extended family scenarios which will not fall within ‘associated persons’ no matter what semantic contortions are carried out; the Protection From Harassment Act 1998 (PHA) in parallel to FLA proceedings will still need to be utilised in some cases. The key will be ensuring that the statement reflects the familial structure and relationship, and if necessary disclosure of papers from PHA proceedings to FLA and vice versa where necessary.

    ‘Associated persons’ has also been further widened to a couple who ‘have or have had an intimate personal relationship with each other which was of significant duration’ for non-

    cohabiting couples (s. 4 DVCV Act 2004) which will apply to some but not all non-cohabiting couples. The wording suggests that in any event it will be a factual question to be determined by the judge; with perhaps the first element ‘ an intimate personal relationship’ being the easier

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    Paper by produced by Smita Shah, Barrister, Garden Court Chambers Not to be re-produced in whole or part without permission DATE 2007

Domestic Violence Seminar

     nd January 2007 22

aspect to prove if there are children in the relationship, than the second, ‘ of a significant

    duration’ upon which it is submitted the matter will turn. For childless non-cohabiting couples this will involve producing other evidence such as joint expenses incurred, special accounts, payment of bills etc. HHJ Platt last year in a talk he gave to FLBA members suggested that the drafting suggests that this provision may apply to non-sexual relationships it is a subjective test.

    What is the nature of the relationship in the eyes of those involved in it? If there is a contest on this jurisdictional issue, the matter is set down, but an ex-parte order exists in the interim, should it be rescinded? If it is, the CPS and police will need to be informed to prevent potential criminal prosecution.

    Secondly, the widening of the definition of ‘cohabitation’ and elevation (by repeal of s.41 which required the court to have regard to cohabitants non-married status by s. 2(1) of DVCV Act 2004) to a status equal to that of married couples; particularly for homosexual couples who had been denied such recognition of their family life and protection under the FLA from domestic violence.

    It was always open to homosexual couples to apply for non-molestation orders and orders under s.33 FLA where both parties jointly owned or had equal rights to a property. The wording of s. 33 FLA allows for application beyond just that of married couples and is not dependent upon the definition of ‘cohabitation’ or whether sufficiently associated enough.

    Where homosexual couples have been excluded from protection is under s. 36 FLA, where only one party was entitled to occupy the property and s. 38, where neither party was entitled to occupy. These provisions were dependent upon the relationship fitting the mould of ‘cohabitation’, which was restricted to heterosexual couples (s. 62 (1) (a)). The new definition is ‘two persons who, although not married to each other, are living together as husband or wife or (if of the same sex) in an equivalent relationship.’ The DVCV Act 2004 also allows cohabitants

    to apply for a transfer of tenancy (Sch 10. para 47 DVCV Act 2004).

    The DVCV Act 2004 also amends slightly s. 36(6) (e) FLA to now include the court to inquire into the ‘nature of the parties relationship and in particular the level of commitment involved’ amended by s. 2(2) DVCV Act 2004.

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    Paper by produced by Smita Shah, Barrister, Garden Court Chambers Not to be re-produced in whole or part without permission DATE 2007

Domestic Violence Seminar

     nd January 2007 22

    In summary the class of persons who can seek the protection under the Family Law Act 1996 which offers both non-molestation and occupation orders has expanded to afford homosexual couples and some members of an extended family structures its protection. However the most surprising amendment which has been tucked away in Schedule 10 para 38 of the DVCV Act 2004 is the abolishing of the Power of Arrest facility for non-molestation orders. The facility remains for occupation orders which, other than the expansion of ‘cohabitation’ are largely left in tact.

IV CRIMINALISING ENFORCEMENT

    ; Criminalise breach of non-molestation orders

    ; Abolition of Powers of arrest attached to non-molestation orders

    ; Amendments to undertakings in schedule 10 para 37.

    The new s. 42A FLA as inserted by s.1 of DVCV Act 2004 makes it a criminal offence to breach a non-molestation order,

    (1) A person who without reasonable excuse does anything which he is prohibited from

    doing by a non molestation order is guilty of an offence.’

    (2) In the case of an ex parte order a person can be guilty of an offence ‘only in respect of

    conduct engaged in at a time when he was aware of the existence of an order’

    (5) Penalties

    - a fine or up to 6 months imprisonment on summary conviction

    - Up to five years imprisonment on indictment.

    Breach of a non-molestation order is now a triable either way offence, which entitles the defendant to elect trial by jury.

Powers of arrest

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    Paper by produced by Smita Shah, Barrister, Garden Court Chambers Not to be re-produced in whole or part without permission DATE 2007

Domestic Violence Seminar

     nd January 2007 22

    The new s. 42A FLA as inserted by s.1 of DVCD Act 2004 makes it a criminal offence to breach a non-molestation order, which renders the need for a power of arrest superfluous to such an order. The power of arrest remains for occupation orders. Hill [June 2005] euphemistically suggests that the abolition of the power of arrest is due to the failure of the mechanism, that the new criminalisation will sit more comfortably with the police and thereby yielding better results.

    Interesting the Home Affairs Select Committee announced in July 2007 an inquiry into the impact of the new provisions. They invited written submissions in October 2007 and have yet to hear oral submissions or report. Women’s Aid took the opportunity to conduct a straw poll. The

    circulated a questionnaire online, by emails and post. In just over a week they received 302 responses from their national networks and individual members. Overall respondents felt that in the last 2-3 years the police response had improved, however when asked specific questions about whether the police responded quickly, sensitively, provided protection to survivors and children, arrested perpetrator etc, the responses were overwhelming sometimes. The police

    response, it was felt depended very much upon individual officer’s attitudes, service was patchy, call centre staff were occasionally clueless and arrests of both perpetrator and victim all suggest the need for ongoing refresher training and resources.

    S.1 of DVCD Act 2004 now criminalises the breach of a non-molestation order, where the defendant has no ‘reasonable excuse’, where previously a committal for breach of such an order amounted to a contempt of court and a maximum penalty of 24 months imprisonment. ‘reasonable excuse’ may include lawful physical chastisement of minors.

Sentencing

    S. 42(a)(5) FLA envisages that conviction on indictment could entail imprisonment not exceeding 5 years or a fine or both and upon summary conviction, imprisonment not exceeding 12 months, or a fine or both (the fine not exceeding the statutory minimum). The courts are unlikely to look towards previous committal sentences handed down and will probably be guided by s. 3 Protection Against Harassment Act 1997 convictions in the criminal arena which are substantially higher.

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    Paper by produced by Smita Shah, Barrister, Garden Court Chambers Not to be re-produced in whole or part without permission DATE 2007

Domestic Violence Seminar

     nd January 2007 22

    The Sentencing Advisory Panel which advises the Sentencing Guidelines Council carried out a consultation and produced their guidelines. They state that the guidelines should in their opinion apply equally to restraining orders (under the Protection Against Harassment Act 1997) and breach of family injunctions and look towards the Court of Appeal for guiding principles in Liddle and Hayes [2000] 1 Cr App R (S) 131 which indicate that the sentencing for breach will be

    influenced by the seriousness of the original offence leading to an order being made, the seriousness of the conduct leading to a breach, whether the defendant had a history of disobeying court orders, the level of risk posed by the defendant, the mental health of the defendant and his willingness to undergo treatment or to accept help from the probation service. For example, they suggest that a single breach involving no or minimal direct contact would warrant a low range community order such as a period of unpaid work or a curfew. If the single breach involved some violence and or significant physical harm or psychological harm and the custody threshold is crossed, custody would begin at 20 weeks.

Service and Drafting of Orders

    Perhaps the two key elements upon which the success of these provisions will be judged on the future are service upon perpetrators and sufficiently tightly worded orders. How can a Respondent be held liable for potential criminal behaviour if he is not aware of proceedings? The existence of an order and what is actually prohibited?

    S.42A(2) DVCD Act 2004 is applicable to orders sought without notice and includes a requirement that the defendant was ‘aware’ of the existence of the orders, but does not go onto to

    explain what qualifies as aware. Will it be sufficient for informal notice to constitute awareness of proceedings and indeed an order? Section 45 (2)(c) of the Family Law Act 1996 looks at deemed service for the Respondent who is evading the proceedings. However an order will necessarily require precision, for example, ‘ the orders are deemed to have been served, one hour after putting through the letter box of the Respondent’. Can the Respondent be text messaged the

    terms of the order? HHJ Platt last August 2007 suggested that he could. To some degree these are questions for the court arena and as yet guiding case law has yet to emerge.

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    Paper by produced by Smita Shah, Barrister, Garden Court Chambers Not to be re-produced in whole or part without permission DATE 2007

Domestic Violence Seminar

     nd January 2007 22

    All of this quite rightly engages Article 5 and 6 of the European convention with more vigour, given that the potential consequences are much graver. ‘Summary arrest and detention is clearly

    an extremely serious interference with a person’s life, which can only be justified by an order which is ‘particularly precise’ – Knopp v Switzerland (1991) 27 EHRR 91 at para 72. An order

    must be clear and precise, necessary and proportionate.

    The DVCV Act 2004 does not define domestic violence or molestation. HHJ Platt has pointed out that we’re in the realm of judge made law, as we have had with Anti-Social Behaviour

    Orders/Injunctions. Where previous non-molestation could be expressed in general and specific terms under section 42(6) of the Family Law Act 1996, the common practice was to use template wording and explain to clients what that meant by way of general guidelines, for example, phoning 20 times a day could amount to harassment, knocking on someone’s door at midnight

    could also amount to intimidation. Practioners are now going to have to prepare tightly worded orders, with termination times and dates specified. Maps may need to be attached to orders with exclusion zones. Some courts have tick box menus that can be obtained prior to seeking an order. It is recommended that these are sought out in order to assist with drafting; a word of caution, not all of the menu’s are up to date and may not withstand prosecution in the criminal courts. For a

    sample draft order, please see attached.

Standard of Proof

    Perhaps the next vexed question will be upon what standard of proof are such orders to be made? Manchester CC and McCann [2002] 4 All ER 593 HL when considering an Anti-Social

    Behaviour Order, in civil proceedings, given the seriousness of the matter felt that a heightened standard of civil proof on par with that of the criminal standard was required. Mindful that the majority of these are orders are to be made by magistrates, the House of Lords clarified that anti-social behaviour orders sought would require the criminal standard of proof. Therefore the Magistrates need to be sure that the defendant had acted in a manner that had caused alarm, distress or harassment to others. There is conflicting case law on this. Hipgrave and Jones 2004 EWHC 2901 QB, (in annexe B) when considering allegations of harassment under the Protection

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    Paper by produced by Smita Shah, Barrister, Garden Court Chambers Not to be re-produced in whole or part without permission DATE 2007

Domestic Violence Seminar

     nd January 2007 22

    Against Harassment Act 1997, the court took a pragmatic approach, and came down on the side of the civil burden of proof considering the context within which such injunctions are sought. It is suggest that this is a much more useful case, although McCann is binding as a House of Lords decision. The conflict is yet to be tested under the DVCV Act 2004.

Which court?

    The usual twin track 47 FLA power of arrest and Notice to Show Cause applications have therefore altered significantly. The DVCV Act 2004 has changed the way that a breach of a non-molestation order is treated to mirror the enforcement procedure within the PHA. Where there is a choice of either criminal proceedings or contempt proceedings, it will no longer be acceptable

    practice as it is now to issue a Notice to Show cause at the same time as an arrest under s.47 FLA, in order to preserve the proceedings. What is unclear is who will decide which proceedings to pursue? The CPS? The victim? The Courts? The reality is that it will be the CPS which will make a decision. If the defendant elects trial by jury, the delay can be 6 months and counting. Again, here the Women’s Aid survey is useful in highlighting the feelings of victims when processed through the criminal justice system. The greatest concern was expressed by respondents about the charging and prosecution process. They found the sentencing inadequate, often following long delays, damaging to survivors sense of worth and credibility where charges were reduced and traumatic court proceedings. If the criminal case is delayed and the harassment has continued, is it open to issue a Notice to Show Cause application but will the Legal Services Commission grant funding where criminal proceedings are pending? Indeed the Women’s Aid survey, when asked

    what the greatest concerns within family law proceedings was, received the unsurprising response was accessing legal aid through the Legal Services Commission.

    Can applicants get a warrant for arrest and go down the summary trial route, or issue contempt proceedings while criminal proceedings are in process? What about cases that are withdrawn through fear? Or if the respondent is acquitted in the criminal court, can you apply to commit or is it an abuse of process? More and more practioners are going to have to become familiar with these legal concepts. What happens when there are concurrent children act proceedings and injunctions? Is there a potential conflict between human rights provisions on Article 5 and 6 and

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    Paper by produced by Smita Shah, Barrister, Garden Court Chambers Not to be re-produced in whole or part without permission DATE 2007

Domestic Violence Seminar

     nd January 2007 22

    an abuse of process argument and the best interests of the child? As yet there is no guiding case law on this which considers the particular context within which the family law operates.

    What is additionally uncertain is how applications for mixed orders - non-molestation with no powers of arrest and occupation orders with a power of arrest, where a breach crosses both - are to be dealt with? Perhaps double appearances by parties and 2 different sets of proceedings on the same set of facts? Which set of proceedings will take precedent? Who will decide this? Overlapping and multiple proceedings will only serve towards disempowering the victim/survivor of domestic violence. A vital step for many victims/survivors of domestic violence is breaking the cycle of violence and taking back control of their lives, often through the instigation of legal proceedings, where they are an equal party and in the driving seat enabling them to retain some of their dignity. This will be lost if the emphasis is on criminalisation. The DVCA Act 2004 included the establishment of a victim’s commissioner and a code of practice

    for victim in order to make the criminal proceedings more victim-friendly. The other route may be to have concurrent private prosecutions as well as CPS led prosecutions to ensure the victims voice is heard.

    On the other hand, the criminal proceedings will open up a greater scope for sentencing including drug and alcohol treatment programmes, community sentences and in some cases reparative justice. Gilchrist et al [2004] in their study show that alcohol was a feature in a majority of offences (62%) and almost half (48%) of their sample of domestic violence offenders were alcohol dependent. This is a much needed development, under the old contempt proceedings, the courts were ill-equipped to address these issues and give sentences requiring treatment or participation in such programmes.

Undertakings

    As this seminar draws to a close all that is left is to offer undertakings: used as a neat way of drawing FLA proceedings to a close by ensuring some level of protection, normally with no findings of fact and thereby avoiding a costly and an unpleasant hearing. S. 46 FLA has been amended to reflect a growing concern that undertakings were frequently broken and inadequately

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    Paper by produced by Smita Shah, Barrister, Garden Court Chambers Not to be re-produced in whole or part without permission DATE 2007

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    enforced (Hill 2005). No undertakings will be accepted where the respondent has used or threatened violence or where it is necessary to make a non-molestation order so that a breach can be punished under s.42A FLA. Given that the majority of undertakings are offered on a return date, at a directions appointment, it has been suggested [Hill, June 2005] that in order to be compliant with the wording in Sch. 10 para 37 requires the tribunal to undertake a fact-finding exercise to determine whether the threats were made or not. Anecdotal evidence indicates that courts don’t appear to be taking this view.

V OTHER INITIATIVES

    In addition to the legal changes, there are some interesting initiatives aimed at perpetrators and survivors. There are the Specialist Domestic Violence Courts, or combined criminal family courts, of which Croydon and Wales are the pilot studies. There are Domestic Violence perpetrator programmes available as a part of a sentencing package. This seminar is going to focus on a small story reported in The Independent last December (see Independent, 03/12/07 Jeremy Lauren at

    www.independent.co.uk). The story was about CAADA, Co-ordinated Action of Domestic

    violence which has established a pilot scheme where specialist case workers Independent Domestic Violence Advocates are trained to co-ordinate non legal services aimed at keeping victims of domestic violence safe. They are aimed at medium to high risk cases, often in acute circumstances.

    Part of the work involves using Multi Agency Risk Assessment Conferences, rather like child protection conference aimed at providing survivors/ victims with services last year they dealt with 8,000 cases. The program funded by the Home Offices to the tune of ?1m had just evaluated the first 8 pilot schemes, showing that after 6 months in at least 90 of 140 cases the violence had stopped. The largest scheme is at Worthing, West Sussex where 10 IDVA are attached to the Accident and Emergency department of Worthing and Crawley hospital has seen an increase in detection rates of victims of domestic violence and an earlier tapping into services. The programme is now being rolled out nationally.

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    Paper by produced by Smita Shah, Barrister, Garden Court Chambers Not to be re-produced in whole or part without permission DATE 2007

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