Domestic Violence (1997)

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DOMESTIC VIOLENCE

CP Cavendish Publishing Limited

London • Sydney

DOMESTIC VIOLENCE Deborah Lockton, LLB, M Phil Deputy Head, Department of Law De Montfort University, Leicester Professor Richard Ward, LLB, Solicitor Head of Department of Law De Montfort University, Leicester

CP Cavendish Publishing Limited

London • Sydney

First published in Great Britain 1997 by Cavendish Publishing Limited, The Glass House, Wharton Street, London WC1X 9PX. Telephone: 0171-278 8000 Facsimile: 0171-278 8080 E-mail: [email protected] Visit our Home Page on http://www.cavendishpublishing.com

© Lockton, D, Ward, R, 1997

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, scanning or otherwise, except under the terms of the Copyright Designs and Patents Act 1988 or under the terms of a licence issued by the Copyright Licensing Agency, 90 Tottenham Court Road, London W1P 9HE, UK, without the permission in writing of the publisher.

Lockton, Deborah J Domestic Violence: Text and Materials I. Title II. Ward, Richard 344.1052555 ISBN 1 85941 136 3

Printed and bound in Great Britain

PREFACE

This book is the culmination of a research project into domestic violence in Leicestershire. The aim of the project was to look at the responses of the civil and criminal justice agencies to allegations of domestic violence and to compare the findings with those of other research projects into the incidence of, or reform to, domestic violence. We conducted an investigation into the allegations of domestic violence cited in applications for orders made to Leicester county court over a six-month period, the orders sought and the orders obtained, followed by a verification study of the responses of individual police officers in Leicestershire to a questionnaire. The purpose was to ascertain the perceptions of such officers to such incidents and the training they had received. Since we conducted the study of the Leicestershire police, the force has changed its policy and its training. The law on domestic violence changed during the course of writing this text. The Family Homes and Domestic Violence Bill was withdrawn and eventually became the Family Law Act 1996. Part IV of the Act which deals with domestic violence should come into force during the currency of this text and thus Chapter 3 deals with the Domestic Violence and Matrimonial Proceedings Act 1976, the Domestic Proceedings and Magistrates Courts Act 1978 and the Matrimonial Homes Act 1983 as the present law. It is expected that Part IV of the Family Law Act 1996 will come into force in October 1997. This book would not have been possible without the help and assistance of a great many people. We were given a great deal of cooperation by the staff of Leicester county court, both in the initial study and the follow-up study 12 months later. We also had unstinting help and cooperation from the Leicestershire Police, who distributed the questionnaires and responded quickly to any queries we raised. Cavendish Publishing exercised a great deal of patience when, after we had agreed to write the book, we discovered it was Parliament’s intention to introduce legislation in this area, and the problems suffered by the Family Homes and Domestic Violence Bill held up the delivery of the manuscript. Finally, we must thank Sarah and Keith who accepted the loss of our company with their usual encouragement and support. Despite all of this help, the responsibility of the text, and any error or omissions is ours. The law is stated as at 30 June 1997. Deborah Lockton Richard Ward Leicester, July 1997

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ACKNOWLEDGMENTS

Grateful acknowledgment is made to Sage Publications Ltd for permission to reproduce Table 5.1 in Edwards, S, Policing ‘Domestic’ Violence, 1989, p 164. Grateful acknowledgment is also made to St George’s Hospital Medical School, University of London, Section of Forensic Psychiatry for permission to use examples from a paper given at the Domestic Violence Conference in October 1995. Grateful acknowledgment is also made to Routledge for permission to reproduce extracts from the Journal of Social Welfare and Family Law, entitled ‘Domestic Violence applications: an empirical study of one court’ (JSWFL 17(1) 1995: 67–86). Every effort has been made to trace all the copyright holders but if any have been inadvertently overlooked, the publishers will be pleased to make the necessary arrangement at the first opportunity.

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CONTENTS

Preface Acknowledgments Table of Cases Table of Statutes

v vii xiii xix

1 THE EXTENT OF DOMESTIC VIOLENCE INTRODUCTION NEW PROBLEM?

1 1 2

2 WHAT IS DOMESTIC VIOLENCE? INTRODUCTION THE NATURE OF DOMESTIC VIOLENCE 1 Physical assault 2 Sexual violence 3 Threats of violence 4 Psychological abuse 5 Emotional consequences WHY DON’T WOMEN LEAVE? 1 Severity and frequency of violence 2 Experience with and exposure to violence as a child 3 Education, occupation, number and age of children THE REASONS FOR DOMESTIC VIOLENCE 1 Pathological factors 2 Social factors 3 Cycles of violence 4 The feminist explanation

7 7 7 7 12 15 16 18 20 20 21 22 25 26 27 29 30

3 CIVIL PROTECTION BEFORE 1997 INTRODUCTION STATUTORY APPLICANTS 1 The Domestic Violence and Matrimonial Proceedings Act 1976 2 The Domestic Proceedings and Magistrates’ Courts Act 1978 3 The Matrimonial Homes Act 1983 REMEDIES 1 Non-molestation and exclusion, Domestic Violence and Matrimonial Proceedings Act 1976 2 Personal protection orders and ouster orders under the Domestic Proceedings and Magistrates’ Courts Act 1978

33 33 35 35 37 38 41

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41 44

Domestic Violence ENFORCEMENT OF ORDERS ADEQUATE PROTECTION?

45 47

4 PROTECTION AFTER 1997 INTRODUCTION THE APPLICANTS 1 Applicants for occupation orders 2 Applicants for non-molestation orders 3 Applications by third parties THE ORDERS 1 Occupation orders Section 33 – orders where the applicant is entitled or has matrimonial home rights Section 35 – orders where the applicant is a non-entitled former spouse and respondent former spouse is entitled Section 36 – orders where the applicant is a non-entitled cohabitant or former cohabitant and the respondent is entitled Section 37 – orders where the applicant is a non-entitled spouse or former spouse and the respondent is non-entitled Section 38 – orders where the applicant is a non-entitled cohabitant or former cohabitant and the respondent is non-entitled Additional provisions 2 Non-molestation orders 3 Amendments to the Children Act 1989 EX PARTE ORDERS ENFORCEMENT OF ORDERS 1 Powers of arrest 2 Warrant for arrest UNDERTAKINGS PROTECTION FROM HARASSMENT ACT 1997 ADEQUATE PROTECTION AT LAST? 1 Housing victims 2 Do occupation and non-molestation orders provide adequate protection? 5 THE POLICING OF DOMESTIC VIOLENCE INTRODUCTION DOMESTIC VIOLENCE: OFFENCES AND POWERS 1 Physical violence Unlawful force Intent 2 Non-physical violence

x

49 49 50 50 56 58 58 58 58 63 64 66

66 67 67 68 71 73 73 75 76 76 79 79 80 87 87 89 90 91 95 95

Contents 3 Harassment, molestation and stalking 4 Sexual offences 5 Police powers Powers of entry to property Arrest THE POLICING ROLE IN DOMESTIC VIOLENCE CASES 1 Circular 60/90 2 Home Affairs Committee 3 Home Office Research Study 4 The Leicestershire Study

Experience in dealing with domestic violence incidents Definitions of domestic violence 5 Police responses to domestic violence Information Attitudes Actions at the scene 6 Arrest The use of arrest powers Enforcement of powers of arrest contained in civil orders Pro-arrest approaches 7 Training 8 Domestic Violence Officers (DVOs) and Units (DVUs) 6 PROSECUTION OF DOMESTIC VIOLENCE THE CROWN PROSECUTION SERVICE 1 The decision to prosecute Attitudes of the CPS The victim’s interests and wishes Victim co-operation The offence charged BAIL EVIDENCE 1 Burden and means of proof 2 Competence and compellability 3 The process of giving evidence 4 Preparation for the trial 5 Reluctant testimony 6 Use of out-of-court statements 7 Suspect evidence SENTENCE DEFENCES FOR ‘VICTIMS’ 1 Self-defence

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96 101 101 101 103 106 106 108 109 110

111 113 114 115 116 121 123 123 125 127 129 132 137 137 137 138 141 141 143 144 146 146 147 150 151 151 153 161 162 163 164

Domestic Violence 2 Provocation Was this person provoked? Was the reaction reasonable? 3 Diminished responsibility Appendix I – Family Law Act 1996 Appendix II – Protection from Harassment Act 1997 Index

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165 166 170 174 177 203 213

TABLE OF CASES

A and W, Re [1992] Fam 182 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .55, 57 Adeoso v Adeoso [1980] 1 WLR 1535 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .36, 53 Ansah v Ansah [1977] Fam 138 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .72 Atkin v DPP (1989) Cr App R 199 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .97 Attorney General’s Reference (No 3 of 1979) (1979) 69 Cr App R 411 . . . . . . . . . . . . .152 Attorney General’s Reference (No 6 of 1980) [1981] QB 715; [1981] 2 All ER 1057 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .93 Baker v Armstrong [1969] 2 NSWLR 451 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .96 Bedford v R [1988] AC 130; [1987] 3 All ER 425 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .164 Brown v Secretary of State for Social Security (1994) The Times, 7 December . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .158 Brutus v Cozens [1973] AC 854; [1972] 2 All ER 1297 . . . . . . . . . . . . . . . . . . . . . . . . . . . .97 Burnett v George [1992] 1 FLR 525 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .34 Burris v Azandani [1995] 4 All ER 802 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .34, 35 Clarke v DPP [1995] Crim LR 846 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .98 Collins v Wilcock [1984] 3 All ER 374 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .94 Davis v Johnson [1979] AC 264 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .39, 51 DPP v Boardman [1975] AC 421 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .147 DPP v Camplin [1978] 2 All ER 168 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .170 DPP v Little [1992] 1 All ER 299 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .91 DPP v Smith [1961] AC 290; [1960] 3 All ER 161 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .91 Duo v Osborne [1992] 2 FLR 425 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .36 Ewer v Ambrose (1825) 3 B & C 746 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .152 F v West Berkshire Health Authority [1989] 2 All ER 545 . . . . . . . . . . . . . . . . . . . . . . . .94 Fagan v Metropolitan Police Commissioner [1969] 1 QB 439 . . . . . . . . . . . . . . . . . . . . .91 Galan v Galan [1985] FLR 905 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .42 George v George [1986] 2 FLR 347 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .41 Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112; [1985] 3 All ER 492 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .92 xiii

Domestic Violence H (minors) (sexual abuse: standard of proof), Re [1996] 1 All ER 1 . . . . . . . . . . . . . . .146 Harrison v Lewis [1988] 2 FLR 339 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .36 Holmes v DPP [1946] 2 All ER 124 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .166 Horner v Horner [1982] 2 All ER 495; [1982] Fam 90 . . . . . . . . . . . . . . . . . . . . . . . . . .41, 68 Hoskyn v Metropolitan Police Commissioner [1979] AC 474 . . . . . . . . . . . . . . . . . . . .148 Hughes v Holley (1987) 151 JP 533 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .104 Humberside County Council v B [1993] 1 FLR 257 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .61 Johnson v Walton [1990] 1 FLR 350 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .41, 68 Kendrick v Kendrick [1990] 2 FLR 107 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .46 Khorasandjian v Bush [1993] 1 QB 727; 3 All ER 669 . . . . . . . . . . . . . . . . . . . . . . . . .34, 39, 57, 96, 98 Lavin v Albert [1982] AC 546; [1981] 3 All ER 878 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .104 Lindley v Rutter [1981] 1 QB 128; [1980] 3 WLR 660 . . . . . . . . . . . . . . . . . . . . . . . . . . . .105 McCann v Wright [1996] 1 All ER 204; [1995] FLR 579 . . . . . . . . . . . . . . . . . . . . .36, 46, 96 McLean v Burke [1982] 3 FLR 70 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .36 McLeod v Metropolitan Police Commissioner [1994] 4 All ER 553 . . . . . . . . . . . . . . .102 Melser v Police [1967] NZLR 437 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .98 Middleweek v Chief Constable of Greater Merseyside [1990] 3 WLR 481; [1990] 3 All ER 662 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .105 Miller v Minister of Pensions [1947] 2 All ER 372 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .146 Neill v North Antrim Magistrates’ Court [1992] 4 All ER 846 . . . . . . . . . . . . .154–56, 160 O’Hara v Chief Constable of the RUC [1997] 1 All ER 129 . . . . . . . . . . . . . . . . . . . . . . .129 O’Neill v Williams [1984] FLR 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .36 Palmer v R [1971] AC 814; [1971] 1 All ER 107 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .164 Parkin v Norman [1983] QB 92; [1982] 2 All ER 583 . . . . . . . . . . . . . . . . . . . . . . . . .97, 102 Parris v Parris [1974] Fam Law 77 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .44 Patel v Patel [1988] 2 FLR 179 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .33, 34, 53 Percy v DPP [1995] 3 All ER 124 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .102 Pidduck v Molloy [1992] 2 FLR 202 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .36 Practice Note [1978] 2 All ER 1056 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .42, 127 Practice Note [1981] 1 All ER 224 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .127 Practice Note (Domestic Violence: Powers of Arrest) [1981] 1 WLR 27 . . . . . . . . . . . . .46

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Table of cases Practice Note (Injunctions: Ex Parte Applications) [1978] 1 WLR 925 . . . . . . . . . . . . . .71 R v Acton Justices, ex p McMullen (1990) 92 Cr App R 98 . . . . . . . . . . . . . . . . . . .154, 155 R v Ahluwalia [1992] All ER 889 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .167–69, 171–74 R v Andrews [1987] 1 All ER 513 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .157 R v Ashford Magistrates’ Court, ex p Hilden (1992) 96 Cr App R 93 . . . . . . . . . . . . . .156 R v Baines [1987] Crim LR 508 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .148 R v Baskerville [1916] 2 KB 658 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .161 R v Beck [1982] 1 WLR 461 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .162 R v Bedi and Bedi (1991) 95 Cr App R 21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .158 R v Bishop [1975] QB 274 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .147 R v Britzman [1983] 1 WLR 350 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .147 R v Brown [1962] 2 All ER 1328 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .170 R v Brown [1994] 1 AC 212; [1993] 2 All ER 75 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .93, 94 R v Buchanan (1980) 2 Cr App R (S) 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .163 R v Burstow (1997) 1 Cr App R 114 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .163 R v Butterworth (1993) 14 Cr App R (S) 674 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15 R v Byrne [1960] 2 QB 396 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .174 R v Carr-Briant [1943] KB 607 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .143 R v Carrington (1993) 99 Cr App R 376 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .158 R v Case [1991] Crim LR 192 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .154 R v Caseeram (1992) 13 Cr App R (S) 384 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8 R v Caswell [1984] Crim LR 111 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13 R v Chan-Fook [1994] 2 All ER 552 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .93, 95 R v Chief Constable for Devon and Cornwall, ex p CEGB [1982] QB 458; [1981] 3 All ER 826 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .102 R v Cole (1989) 90 Cr App R 478 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .160 R v Constanza [1997] Crim LR 576 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .96 R v Cousins [1982] QB 526 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .164 R v Cutts [1987] Fam Law 311 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .163 R v Da Silva [1990] 1 All ER 29 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .152 R v Davies [1975] 1 All ER 890 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .170 R v Davies (1986) 8 Cr App R (S) 97 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7 R v Day (1841) 9 C & P 722 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .92 R v Dearn (1990) 12 Cr App R (S) 527 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8 R v Donovan [1934] 2 KB 498 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .93 R v Doughty (1986) 83 Cr App R 319 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .166 R v Dragic (1996) (unreported) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .154 R v Dryden [1995] 4 All ER 987 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .172

xv

Domestic Violence R v Duffy [1949] 1 All ER 932 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .166–70 R v Easton [1995] 3 All ER 730 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .162 R v Fantle [1959] Crim LR 584 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .167 R v Fenton (1975) 61 Cr App R 261 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .174 R v Field [1993] Crim LR 456 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .158, 160 R v Grafton [1995] Crim LR 61 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .159, 160 R v H [1995] 2 All ER 865 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .147 R v Howell [1982] QB 416; [1981] 3 All ER 383 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .102 R v Hudson (1912) 2 KB 464 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .147 R v Humphreys [1995] 4 All ER 1008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .172 R v Ireland [1997] 1 All ER 112 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .95 R v Jennings and Miles [1995] Crim LR 810 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .155 R v Jones (1923) 17 Cr App R 117 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .147 R v Keilty (1995) (unreported) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .161 R v Kennedy [1992] Crim LR 37 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .161 R v Khan (1986) 84 Cr App R 44 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .148 R v Knowlden (1983) 77 Cr App R 94 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .162 R v Kowalski [1988] Crim LR 124 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13 R v Lang (1975) 62 Cr App R 50 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .92 R v Larter and Castleton [1995] Crim LR 75 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .92 R v Linekar (1994) The Times, 26 October . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .92 R v Lobell [1957] 1 All ER 734 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .164 R v Lockley (1995) 2 Cr App R 554 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .158, 159 R v Lovell [1990] Crim LR 111 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .162 R v Makanjuola [1995] 3 All ER 730 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .162 R v Martin (1996) (unreported) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .155, 156 R v Mayers (1872) 12 Cox CC 311 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .92 R v McCarthy [1992] 2 NZLR 530 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .171 R v McGregor [1962] NZLR 1069 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .171 R v McInnes [1971] 3 All ER 295 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .165 R v Miller [1954] 2 QB 282; [1954] 2 All ER 529 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .46, 93 R v M’Loughlin (1838) 8 C & P 635 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .91 R v Moore [1992] Crim LR 882 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .160 R v Morhal [1995] 3 All ER 659 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .171 R v Munroe (1987) 9 Cr App R (S) 408 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15 R v Murphy, Wiseman and Mason [1992] Crim LR 883 . . . . . . . . . . . . . . . . . . . . . . . . .160 R v Newall [1980] Crim LR 576 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .172 R v Nicholas [1994] Crim LR 77 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .163 R v Oatridge (1992) 94 Cr App R 367 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .164 xvi

Table of Cases R v O’Callaghan (1987) 9 Cr App R (S) 187 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15 R v Olugboja [1982] QB 320; [1981] 3 All ER 443 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .92 R v P [1991] 3 All ER 337 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .147 R v Pestano [1981] Crim LR 39 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .153 R v Pitt [1982] 3 All ER 63 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .149 R v Prater [1960] 2 QB 464 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .162 R v R [1991] 4 All ER 481 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13, 101 R v Rock [1994] Crim LR 843 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .157 R v Savage; R v Parmenter [1992] 1 AC 699; [1991] 4 All ER 698 . . . . . . . . . . . . . . .91, 95 R v Scarlett [1993] 4 All ER 629 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .164 R v Setz-Dempsey (1994) 98 Cr App R 23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .154, 160 R v Simpson [1957] Crim LR 815 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .167 R v Smith [1997] Crim LR 614 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .163 R v Spencer [1987] AC 128 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .162 R v Swindon (1995) (unreported) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .161 R v Thompson (1976) 64 Cr App R 96 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .152 R v Thornton [1992] All ER 306 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .167, 170 R v Thornton (No 2) (1996) 2 Cr App R 108 . . . . . . . . . . . . . . . . . . . . . . .168, 170, 173, 174 R v Tower Bridge Magistrates’ Court, ex p Lawlor (1990) 92 Cr App R 98 . . . . .154, 155 R v Tyagi (1986) The Times, 21 July . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .152 R v Wallwork (1958) 42 Cr App R 153 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .149 R v Whitehead (1886) LR1 CCR 33 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .148 R v Williams [1923] 1 KB 340 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .92 R v Wilson [1996] 3 WLR 125 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .93, 94 R v X, Y and Z (1989) 91 Cr App R 36 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .150 R v Yacoob (1981) 72 Cr App R 313 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .148 R v Z [1990] 2 All ER 355 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .149 Ratten v R [1972] AC 378 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .157 Richards v Richards [1984] AC 174 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .35, 38, 39, 41–43, 47, 49, 55, 57 Smith v Chief Superintendent, Woking Police Station (1983) 76 Cr App R 234 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .95 Spencer v Camacho [1983] 4 FLR 662 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .42 Swales v Cox [1981] QB 849; [1981] 1 All ER 1115 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .91 T v T [1963] 2 All ER 746 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13 Thomas v Sawkins [1935] 2 KB 249; [1935] All ER 655 . . . . . . . . . . . . . . . . . . . . . . . . . .102

xvii

Domestic Violence W v K [1988] Fam Law 64 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .146 White v White [1983] Fam 54 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .37 Woolmington v DPP [1935] AC 462 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .146

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TABLE OF STATUTES

Adoption Act 1976 . . . . . . . . . . . . . . . . . .56 Bail Act 1976 s 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . .145 s 3A(5) . . . . . . . . . . . . . . . . . . . . . . . . .145 s 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . .146 s 5B . . . . . . . . . . . . . . . . . . . . . . . . . . .146 Sched 1 . . . . . . . . . . . . . . . . . . . . . . . .146 Children Act 1989 . . . .49, 50, 55, 56, 61, 68 s 1(1) . . . . . . . . . . . . . . . . . . . . . . . . . . .55 s 8 . . . . . . . . . . . . . . . . . . . . . . . . . .55, 57 s 10(8) . . . . . . . . . . . . . . . . . . . . . . . . . .55 s 31(2)(a) . . . . . . . . . . . . . . . . . . . . . . . .69 s 31(2)(b)(i) . . . . . . . . . . . . . . . . . . . . . .69 s 31(2)(b)(ii) . . . . . . . . . . . . . . . . . . . . .70 s 38A . . . . . . . . . . . . . . . . . . . . .69, 71, 75 s 38A(2) . . . . . . . . . . . . . . . . . . . . . . . . .70 s 38A(3) . . . . . . . . . . . . . . . . . . . . . . . . .70 s 38A(4) . . . . . . . . . . . . . . . . . . . . . . . . .70 s 38A(5) . . . . . . . . . . . . . . . . . . . . . . . . .75 s 38A(9) . . . . . . . . . . . . . . . . . . . . . . . . .75 s 38A(10) . . . . . . . . . . . . . . . . . . . . . . .71 s 38B . . . . . . . . . . . . . . . . . . . . . . . . . . .76 s 38B(2) . . . . . . . . . . . . . . . . . . . . . . . . .76 s 38B(3)(a) . . . . . . . . . . . . . . . . . . . . . . .76 s 39(3A) . . . . . . . . . . . . . . . . . . . . . . . . .71 s 44A . . . . . . . . . . . . . . . . . . . . . . . .71, 75 s 44A(2)(a) . . . . . . . . . . . . . . . . . . . . . .71 s 44A(5) . . . . . . . . . . . . . . . . . . . . . . . . .75 s 44A(9) . . . . . . . . . . . . . . . . . . . . . . . . .75 s 44B . . . . . . . . . . . . . . . . . . . . . . . . . . .76 s 44B(2) . . . . . . . . . . . . . . . . . . . . . . . . .76 s 44B(3)(a) . . . . . . . . . . . . . . . . . . . . . . .76 s 44(1)(a) . . . . . . . . . . . . . . . . . . . . . . . .71 s 44(1)(a)(i) . . . . . . . . . . . . . . . . . . . . . .71 s 44(1)(a)(ii) . . . . . . . . . . . . . . . . . . . . .71 s 44(1)(b) . . . . . . . . . . . . . . . . . . . . . . . .71 s 44(1)(c) . . . . . . . . . . . . . . . . . . . . . . . .71 Sched 1 . . . . . . . . . . . . . . . . . . . . . . . . .63

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Children and Young Persons Act 1933 s 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . .150 Civil Evidence Act 1968 s 10 . . . . . . . . . . . . . . . . . . . . . . . . . . .157 s 11 . . . . . . . . . . . . . . . . . . . . . . . . . . .147 Criminal Appeal Act 1968 s 17 . . . . . . . . . . . . . . . . . . . . . . . . . . .170 Criminal Evidence Act 1898 s 1(f) . . . . . . . . . . . . . . . . . . . . . . . . . .147 s 1(f)(ii) . . . . . . . . . . . . . . . . . . . . . . . .147 Criminal Justice Act 1982 s 37 . . . . . . . . . . . . . . . . . . . . . . . . . . . .91 Criminal Justice Act 1988 s 20 . . . . . . . . . . . . . . . . . . . . . . . . . . .158 s 23 . . . . . . . . . . . . . . . . . . .141, 143, 152, 153, 156, 157, 159 s 23(1) . . . . . . . . . . . . . . . . . . . . .155, 158 s 23(1)(ii) . . . . . . . . . . . . . . . . . . . . . . .154 s 23(2) . . . . . . . . . . . . . . . . .153, 154, 158 s 23(2)(a) . . . . . . . . . . . . . . . . . . .154, 160 s 23(3) . . . . . . . . . . . . . . . . .153, 154, 158 s 23(3)(b) . . . . . . . . . . . . . . . . . . . .154–56 s 24 . . . . . . . . . . . . . . . .143, 152, 156–59 s 24(1) . . . . . . . . . . . . . . . . . . . . .156, 158 s 24(1)(i) . . . . . . . . . . . . . . . . . . . . . . .157 s 24(2) . . . . . . . . . . . . . . . . . . . . . . . . .157 s 24(4) . . . . . . . . . . . . . . . . . . . . . . . . .158 s 25 . . . . . . . . . . . . . . . . . . . .154, 158–60 s 25(2) . . . . . . . . . . . . . . . . . . . . . . . . .159 s 26 . . . . . . . . . . . . . . . . . . . .154, 158–60 s 32A . . . . . . . . . . . . . . . . . . . . . . . . . .150 s 32(2) . . . . . . . . . . . . . . . . . . . . . . . . .150 s 33A . . . . . . . . . . . . . . . . . . . . . . . . . .149 s 33(2A) . . . . . . . . . . . . . . . . . . . . . . .149 Sched 2 . . . . . . . . . . . . . . . . . . . . . . . .161 Criminal Justice Act 1991 s 1(2) . . . . . . . . . . . . . . . . . . . . . . . . . .163 s 1(2)(b) . . . . . . . . . . . . . . . . . . . . . . . .163

Domestic Violence Criminal Justice and Public Order Act 1994 . . . . . . . . . . . . . . . . .145 s 27(1)(b) . . . . . . . . . . . . . . . . . . . . . . .145 s 27(3) . . . . . . . . . . . . . . . . . . . . . . . . .145 s 30 . . . . . . . . . . . . . . . . . . . . . . . . . . .146 s 32 . . . . . . . . . . . . . . . . . . . . . . . . . . .161 s 48 . . . . . . . . . . . . . . . . . . . . . . .144, 162 s 51 . . . . . . . . . . . . . . . . . . . . . . .142, 143 s 51(1) . . . . . . . . . . . . . . . . . . . . . . . . .142 s 51(2) . . . . . . . . . . . . . . . . . . . . . . . . .143 s 51(4) . . . . . . . . . . . . . . . . . . . . . . . . .143 s 51(7) . . . . . . . . . . . . . . . . . . . . . . . . .143 s 142 . . . . . . . . . . . . . . . . . . . . . . . . . .101

s 1 . . . . . . . . . . . . . . . . . . . . . . . . . .35, 41 s 1(b) . . . . . . . . . . . . . . . . . . . . . . . . . . .37 s 1(2) . . . . . . . . . . . . . . . . . . . . .35, 36, 40 s 2 . . . . . . . . . . . . . . . . . . . . . . .36, 45, 46 s 2(1) . . . . . . . . . . . . . . . . . . . . . . . . . . .74 s 2(2) . . . . . . . . . . . . . . . . . . . . . . . . . . .36 s 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . .45 s 18(1) . . . . . . . . . . . . . . . . . . . . . . . . . .45 Family Law Act 1996 . . . .1, 33, 35, 49–51, 54, 56, 57, 62, 79, 80 Part IV . . . . . . . . . . . . . . .49, 51, 85, 116 ss 30–32 . . . . . . . . . . . . . . . . . . . . . . . . .49 s 30 . . . . . . . . . . . . . . . . . . . . . . . . .51, 59 ss 33–38 . . . . . . . . . . . . . . . . . . . . . . . . .53 ss 33–41 . . . . . . . . . . . . . . . . . . . . . .49, 50 s 33 . . . . . . . . . .53, 55, 56, 58, 59, 63, 69 s 33(1) . . . . . . . . . . . . . . . . . . . . . . . . . .59 s 33(1)(a) . . . . . . . . . . . . . . . . . . . . . . . .51 s 33(1)(b) . . . . . . . . . . . . . . . . . . . . . . . .51 s 33(2) . . . . . . . . . . . . . . . . . . . . . . .57, 59 s 33(3) . . . . . . . . . . . . . . . . . . . . . . . . . .59 s 33(3)(c)–(f) . . . . . . . . . . . . . . . . . . . . .63 s 33(4) . . . . . . . . . . . . . . . . . . . . . . . . . .59 s 33(5) . . . . . . . . . . . . . . . . . . . . . . .59, 60 s 33(6) . . . . . . . . . . . . . . . . . . . .60, 63, 66 s 33(6)(a)–(d) . . . . . . . . . . . . . . . . . . . .63 s 33(6)(c) . . . . . . . . . . . . . . . . . . . . . . . .60 s 33(6)(d) . . . . . . . . . . . . . . . . . . . . . . . .60 s 33(7) . . . . . . . . . . . . . . . . .60–62, 64, 66 s 33(8) . . . . . . . . . . . . . . . . . . . . . . . . . .60 s 33(10) . . . . . . . . . . . . . . . . . . . . . . . . .62 ss 35–38 . . . . . . . . . . . . . . . . . . . . . .53, 55 s 35 . . . . . . . . . . . . . . . . . . .56, 63–65, 69 s 35(3) . . . . . . . . . . . . . . . . . . . . . . .63, 64 s 35(4) . . . . . . . . . . . . . . . . . . . . . . .63, 64 s 35(5) . . . . . . . . . . . . . . . . . . . . . . .63, 64 s 35(5)(a)–(d) . . . . . . . . . . . . . . . . . . . .63 s 35(6) . . . . . . . . . . . . . . . . . . . . . . . . . .65 s 35(6)(a)–(d) . . . . . . . . . . . . . . . . . . . .63 s 35(6)(a)–(e) . . . . . . . . . . . . . . . . . . . .64 s 35(6)(e)–(g) . . . . . . . . . . . . . . . . . . . .63 s 35(7) . . . . . . . . . . . . . . . . . . . . . . . . . .64 s 35(8) . . . . . . . . . . . . . . . . . . . . . . . . . .64 s 35(9) . . . . . . . . . . . . . . . . . . . . . . . . . .64 s 35(10) . . . . . . . . . . . . . . . . . . . . . . . . .64 s 35(13) . . . . . . . . . . . . . . . . . . . . . . . . .64 s 36 . . . . . . . . . . . . . . . . . . .56, 64–67, 69

Criminal Law Act 1967 s 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . .164 Criminal Law Act 1977 . . . . . . . . . . . . .150 Criminal Procedure Act 1865 s 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . .152 s 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . .153 s 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . .153 Criminal Procedure and Investigations Act 1996 Part II . . . . . . . . . . . . . . . . . . . . . . . . .160 s 47 . . . . . . . . . . . . . . . . . . . . . . . . . . .156 Sched 1 . . . . . . . . . . . . . . . . . . . . . . . .156 Criminal Procedure (Attendance of Witnesses) Act 1965 ss 2–2E . . . . . . . . . . . . . . . . . . . . . . . .148 Domestic Proceedings and Magistrates’ Courts Act 1978 . . . . . . . . . . . .3, 37–39, 44–47, 50, 56, 73, 85 ss 16–18 . . . . . . . . . . . . . . . . . . . . . . . . .35 s 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . .37 s 16(2) . . . . . . . . . . . . . . . . . . . . . . .44, 50 s 16(2)(b) . . . . . . . . . . . . . . . . . . . . . . . .37 s 16(3) . . . . . . . . . . . . . . . . . . . . . . . . . .45 s 16(6) . . . . . . . . . . . . . . . . . . . . . . . . . .72 s 18(1) . . . . . . . . . . . . . . . . . . . . . . . . . .74 s 88(1) . . . . . . . . . . . . . . . . . . . . . . . . . .37 Domestic Violence and Matrimonial Proceedings Act 1976 . . . . . . . . . . . . . . . .3, 35–37, 39, 41–47, 51, 56, 60, 67, 68, 71, 73, 85

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Table of statutes s 36(3) . . . . . . . . . . . . . . . . . . . . . . . . . .64 s 36(4) . . . . . . . . . . . . . . . . . . . . . . . . . .64 s 36(5) . . . . . . . . . . . . . . . . . . . . . . .64, 65 s 36(6) . . . . . . . . . . . . . . . . . . . . . . . . . .65 s 36(6)(a)–(d) . . . . . . . . . . . . . . . . . . . .65 s 36(6)(e)–(h) . . . . . . . . . . . . . . . . . . . .65 s 36(6)(e)–(i) . . . . . . . . . . . . . . . . . . . . .67 s 37 . . . . . . . . . . . . . . . . . . . . . .56, 66, 69 s 37(1)(a) . . . . . . . . . . . . . . . . . . . . . . . .66 s 37(3) . . . . . . . . . . . . . . . . . . . . . . . . . .66 s 37(4) . . . . . . . . . . . . . . . . . . . . . . . . . .66 s 37(5) . . . . . . . . . . . . . . . . . . . . . . . . . .66 s 38 . . . . . . . . . . . . . . . . . . .56, 66, 67, 69 s 38A . . . . . . . . . . . . . . . . . . . . . . . . . . .73 s 38(3) . . . . . . . . . . . . . . . . . . . . . . . . . .66 s 38(4) . . . . . . . . . . . . . . . . . . . . . . . . . .66 s 38(5) . . . . . . . . . . . . . . . . . . . . . . . . . .66 s 40 . . . . . . . . . . . . . . . . . . . . . . . . . . . .67 s 40(2) . . . . . . . . . . . . . . . . . . . . . . . . . .67 s 41 . . . . . . . . . . . . . . . . . . . . . . . . . . . .67 s 41(2) . . . . . . . . . . . . . . . . . . . . . . . . . .64 s 42 . . . . . . . . . . . . . . . . . .49, 50, 57, 100 s 42(1) . . . . . . . . . . . . . . . . . . . . . . .56, 68 s 42(2) . . . . . . . . . . . . . . . . . . . . . . . . . .68 s 42(2)(b) . . . . . . . . . . . . . . . . . . . . . . . .68 s 42(3) . . . . . . . . . . . . . . . . . . . . . . . . . .68 s 42(4) . . . . . . . . . . . . . . . . . . . . . . . . . .57 s 42(5) . . . . . . . . . . . . . . . . . . . . . . . . . .68 s 43 . . . . . . . . . . . . . . . . . . . . . . . . .55, 57 s 43(1) . . . . . . . . . . . . . . . . . . . . . . . . . .57 s 43(2) . . . . . . . . . . . . . . . . . . . . . . .55, 57 s 44 . . . . . . . . . . . . . . . . . . . . . . . . .54, 57 s 44A . . . . . . . . . . . . . . . . . . . . . . . . . . .73 s 45(1) . . . . . . . . . . . . . . . . . . . . . . . . . .72 s 45(2) . . . . . . . . . . . . . . . . . . . . . . .72, 73 s 45(3) . . . . . . . . . . . . . . . . . . . . . . . . . .73 s 45(4) . . . . . . . . . . . . . . . . . . . . . . . . . .73 s 46 . . . . . . . . . . . . . . . . . . . . . . . . . . . .76 s 46(1) . . . . . . . . . . . . . . . . . . . . . . . . . .76 s 46(2) . . . . . . . . . . . . . . . . . . . . . . . . . .76 s 46(3) . . . . . . . . . . . . . . . . . . . . . . . . . .76 s 46(4) . . . . . . . . . . . . . . . . . . . . . .76, 104 s 47 . . . . . . . . . . . . . . . . . . . . . .74, 75, 79 s 47(2) . . . . . . . . . . . . . . . . . . .73, 74, 103 s 47(3) . . . . . . . . . . . . . . . . . . . . . . .74, 75 s 47(6) . . . . . . . . . . . . . . . . . .75, 104, 105 s 47(8) . . . . . . . . . . . . . . . . . . . . . .75, 104 s 47(9) . . . . . . . . . . . . . . . . . . . . . . . . . .75

s 47(10)–(12) . . . . . . . . . . . . . . . . . . . . .75 s 48 . . . . . . . . . . . . . . . . . . . . . . . . . . . .75 s 48(4) . . . . . . . . . . . . . . . . . . . . . . . . . .75 s 52 . . . . . . . . . . . . . . . . . . . . . . . . . . . .68 s 59(1) . . . . . . . . . . . . . . . . . . . . . . .50, 59 s 60 . . . . . . . . . . . . . . . . . . . . . . . .58, 116 s 60(1) . . . . . . . . . . . . . . . . . . . . . . . . . .58 s 60(2) . . . . . . . . . . . . . . . . . . . . . . . . . .58 s 62 . . . . . . . . . . . . . . . . . . .53, 56, 57, 77 s 62(1)(a) . . . . . . . . . . . . . . . . . . . . .52, 53 s 62(1)(b) . . . . . . . . . . . . . . . . . . . . . . . .52 s 62(2) . . . . . . . . . . . . . . . . . . . . . . .56, 68 s 62(3) . . . . . . . . . . . . . . . . . . . . . . . . . .52 s 62(3)(b) . . . . . . . . . . . . . . . . . . . . . . . .54 s 62(3)(c) . . . . . . . . . . . . . . . . . . . . .52, 54 s 62(3)(d) . . . . . . . . . . . . . . . . . . . . . . . .55 s 62(3)(e) . . . . . . . . . . . . . . . . . . . . . . . .53 s 62(5) . . . . . . . . . . . . . . . . . . . . . . . . . .52 s 63(1) . . . . . . . . . . . . . . . . . . . . . . .53, 61 s 63(3) . . . . . . . . . . . . . . . . . . . . . . . . . .61 Sched 6 . . . . . . . . . . . . . . . . . . . . . .50, 68 Homicide Act 1957 s 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . .174 s 3 . . . . . . . . . . . . . . . . . . . . . . . .165, 166 Housing Act 1996 . . . . . . . . . . . . . . . . . . .80 s 189 . . . . . . . . . . . . . . . . . . . . . . . . . . .80 Indecency with Children Act 1960 . . .150 Interpretation Act 1978 Sched 1 . . . . . . . . . . . . . . . . . . . . . . . . .91 Justice of the Peace Act 1861 . . . . . . . . .104 Limitation Act 1980 . . . . . . . . . . . . . . . . .78 Magistrates’ Courts Act 1980 . . . . . . . . .46 s 5A . . . . . . . . . . . . . . . . . . . . . . . . . . .156 s 33 . . . . . . . . . . . . . . . . . . . . . . . . . . .103 s 97 . . . . . . . . . . . . . . . . . . . . . . . . . . .148 s 97A . . . . . . . . . . . . . . . . . . . . . . . . . .148 Matrimonial and Family Proceedings Act 1984 s 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .43

xxi

Domestic Violence Matrimonial Causes Act 1878 . . . . . . . . . .3 Matrimonial Causes Act 1973 . . . . . . . . .44 s 1(2)(b) . . . . . . . . . . . . . . . . . . . . . . . . .43 s 2(6) . . . . . . . . . . . . . . . . . . . . . . . . . . .54 s 23A . . . . . . . . . . . . . . . . . . . . . . . . . . .63 s 24 . . . . . . . . . . . . . . . . . . . . . . . . . . . .63 s 25(1) . . . . . . . . . . . . . . . . . . . . . . . . . .43 Matrimonial Homes Act 1967 . . . . . . . . .51 Matrimonial Homes Act 1983 . . . . .35, 38, 44, 47, 49, 51, 73, 85 s 1(1) . . . . . . . . . . . . . . . . . . . . . . . . . . .38 s 1(2) . . . . . . . . . . . . . . . . . . . . . . . . . . .38 s 1(3) . . . . . . . . . . . . . . . . . .43, 47, 60, 67 s 1(9) . . . . . . . . . . . . . . . . . . . . . . . . . . .38 s 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .38 Offences against the Person Act 1861 . . . . . . . . . . . . . . . . . . . . .91, 98 s 18 . . . . . . . . . . . . . . . . . . . . . . . . . . . .91 s 20 . . . . . . . . . . . . . . . . . . . . . . . . .91, 95 s 47 . . . . . . . . . . . . . . . . . .91, 93–96, 102 Police and Criminal Evidence Act 1984 s 17 . . . . . . . . . . . . . . . . . . . . . . .101, 102 s 17(1) . . . . . . . . . . . . . . . . . . . . . . . . .101 s 24 . . . . . . . . . . . . . . . . . . . . . . .103, 104 s 24(1) . . . . . . . . . . . . . . . . . . . . . . . . .103 s 24(2) . . . . . . . . . . . . . . . . . . . . . . . . .103 s 24(6) . . . . . . . . . . . . . . . . . . . . . . . . .103 s 24(7) . . . . . . . . . . . . . . . . . . . . . . . . .103 s 25 . . . . . . . . . . . . . . . . . . . . . . .103, 104 s 25(1) . . . . . . . . . . . . . . . . . . . . . . . . .103 s 25(3) . . . . . . . . . . . . . . . . . . . . . . . . .103 s 25(3)(d) . . . . . . . . . . . . . . . . . . . . . . .103 s 25(3)(e) . . . . . . . . . . . . . . . . . . . . . . .104 s 47(1A) . . . . . . . . . . . . . . . . . . . . . . .145 s 69 . . . . . . . . . . . . . . . . . . . . . . . . . . .157 s 80 . . . . . . . . . . . . . . . . . . . . . . . . . . .148 s 80(1) . . . . . . . . . . . . . . . . . . . . . . . . .149 s 80(3) . . . . . . . . . . . . . . . . . . . . . . . . .149 s 80(5) . . . . . . . . . . . . . . . . . . . . . . . . .148

Protection from Harassment Act 1997 . . . . . . . . . . . . . . . . . .35, 76, 77, 84, 98, 102 s 1 . . . . . . . . . . . . . . . . . . . . . . . . .77, 100 s 1(1) . . . . . . . . . . . . . . . . . . . . . . . . . . .77 s 1(2) . . . . . . . . . . . . . . . . . . . . . . . . . . .77 s 1(3) . . . . . . . . . . . . . . . . . . . . . . . .77, 99 s 2 . . . . . . . . . . . . . . . . . . . . . .78, 99, 100 s 3 . . . . . . . . . . . . . . . . . . . . . .78, 79, 100 s 3(4)(b) . . . . . . . . . . . . . . . . . . . . . . . . .78 s 3(7) . . . . . . . . . . . . . . . . . . . . . . . . . . .78 s 4 . . . . . . . . . . . . . . . . . . . . . .78, 99, 100 s 4(2) . . . . . . . . . . . . . . . . . . . . . . . . . . .99 s 4(3) . . . . . . . . . . . . . . . . . . . . . . . . . . .99 s 5 . . . . . . . . . . . . . . . . . .78, 79, 100, 116 s 5(5) . . . . . . . . . . . . . . . . . . . . . . .78, 100 s 5(6) . . . . . . . . . . . . . . . . . . . . . . . . . . .78 s 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .78 s 24 . . . . . . . . . . . . . . . . . . . . . . . . . . .129 Protection of Children Act 1978 . . . . . . . . . . . . . . . . . . . . . . .150 Public Order Act 1986 s 4 . . . . . . . . . . . . . . . . . . . . . . . . . .96, 97 s 4A . . . . . . . . . . . . . . . . . . . . . . . . .97, 98 s 5 . . . . . . . . . . . . . . . . . . . . . . . . . .97, 98 s 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .98 Sexual Offences Act 1956 . . . . . . . . . . . .150 s 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . .101 s 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . .102 s 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . .102 s 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . .102 s 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . .102 s 13 . . . . . . . . . . . . . . . . . . . . . . . . . . .102 Sexual Offences Act 1967 s 54 . . . . . . . . . . . . . . . . . . . . . . . . . . .150 Tattooing of Minors Act 1969 . . . . . . . . .92 Vagrancy Act 1824 s 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .95

Prosecution of Offences Act 1985 s 10 . . . . . . . . . . . . . . . . . . . . . . . . . . .137 s 23 . . . . . . . . . . . . . . . . . . . . . . . . . . .137

xxii

CHAPTER 1

THE EXTENT OF DOMESTIC VIOLENCE

INTRODUCTION This book is about domestic violence. The choice of the phrase is deliberate and introduces the problems of terminology in this area. A variety of phrases have been used to describe such violence. Lorna Smith1 states: ‘Domestic violence, family violence, domestic disputes, spouse abuse, wife abuse, battered wives, battered women ... There is a plethora of terms which are used, sometimes interchangeably, to describe the same phenomenon. Often they serve to confuse rather than clarify.’ Many of these phrases, however, concentrate on a marital relationship between the victim and perpetrator of the violence. The phrase ‘domestic violence’, on the other hand, denotes a much wider form of relationship between the victim and the perpetrator. It is important from the outset, however, to establish the boundaries of the phrase for the purposes of this text. ‘Domestic’ can signify a large number of interfamilial relationships but the primary context of this book is the violence occurring, or alleged to have occurred, between married or cohabiting partners, or those who have been in an intimate relationship with the perpetrator. We do not, primarily, intend to examine other interfamilial violence within the text, but wish to concentrate on the responses to domestic violence in the narrow sense defined above by both the civil and the criminal justice system. For the purposes of this text, therefore, the term ‘domestic’ refers only to couples in intimate heterosexual relationships, as, until the coming into force of the Family Law Act 1996, couples in lesbian or homosexual relationships have limited protection. ‘Violence’ is taken to mean emotional and psychological abuse, threats of violence (whether to person or property), harassment, sexual violence, and physical violence against the person or property. In this respect we have adopted, to a large extent, the definition given by the Law Commission:2 The term ‘violence’ itself is often used in two senses. In its narrower meaning it describes the use or threat of physical force against a victim in the form of assault or battery. But in the context of the family, there is also a wider meaning which extends to abuse beyond the more typical instances of physical assault to include any form of physical, sexual or psychological molestation or harassment which has a serious detrimental effect upon the health and well__________________________________________________________________________________________________________________________________________

1 2

Smith, Domestic Violence (1989), Home Office Research Study 107, London: HMSO, p 1. Law Commission Working Paper No 207, Domestic Violence and the Occupation of the Family Home (1992), London: HMSO, para 2.3. 1

Domestic Violence being of the victim, albeit that there is no violence involved in the sense of physical force ... The degree of severity of such behaviour depends less upon its intrinsic nature than upon it being part of a pattern and upon its effect on the victim.

Although Morris3 is clearly correct to stress that the phrase domestic violence hides who is the perpetrator and who is the victim, the phrase does denote the fact that the victim has been subjected to a criminal act. Mirlees-Black4 says that 11% of women report some degree of physical violence in their relationships. Zorza5 states that in the United States violence to women accounts for one-fifth of all hospital emergency room cases. The National Crime Victimisation Survey in the United States estimated that during each year between 1987 and 1991, on average women were the victims of more than 572,000 violent crimes committed by an intimate and 20% of all female victims who were or had been married to the perpetrator reported being the victim of three or more assaults in the six months prior to the survey.6 In a national survey conducted in Canada in 19937 29% of women reported at least one incident of violence by their partners or ex-partners. These statistics show that in the incidents of domestic violence monitored, the victim has suffered an assault at the hands of the perpetrator and thus has been the victim of a criminal act. By using the phrase ‘domestic violence’ the criminality of behaviour of the perpetrator is emphasised.

NEW PROBLEM? Domestic violence is not a new problem, but one which has only attracted attention comparatively recently. Dobash and Dobash8 maintain that husbands have used violence against their wives for centuries as an assertion of their prerogative as a husband. They note that as far back as the 15th century, communities would take action against violent husbands, but also note that action was rarely, if ever, taken against those husbands who were important members of a community and that in all cases the community would only react to particularly severe violence, lesser violence being __________________________________________________________________________________________________________________________________________

3 4 5 6 7 8

Morris, Women, Crime and Criminal Justice (1987), Oxford: Blackwell. Mirlees-Black, ‘Estimating the extent of domestic violence: findings from the 1992 British Crime Survey’ (1995) Research Bulletin 37: 1–19. Zorza, ‘The criminal law of misdemeanour domestic violence, 1970–90’ (1992) Journal of Criminal Law and Criminology 83(1): 46–72. Buzawa and Buzawa, ‘Introduction’ in Buzawa and Buzawa (eds) Do Arrest and Restraining Orders Work? (1996), Thousand Oaks, CA: Sage Publications, pp 1 and 2. Statistics Canada, ‘Wife assault: the findings of a national survey’ (1994) Juristat Service Bulletin 14(9) March. Dobash and Dobash, ‘Community response to violence against wives: charivari, abstract justice and patriarchy’ (1981) Social Problems, 28,5, 563–81. 2

The Extent of Domestic Violence condoned. In English law a husband had a right to ‘chastise’ his wife. In 1765, Blackstone observed ‘the lower rank of people still clung to their ancient privilege and courts of law still permit a husband to restrain a wife of her liberty in any gross misbehaviour’.9 Smith notes that only after pressure was exerted by socially prominent women such as Caroline Norton and Frances Power Cobb did the law step in to provide a remedy for beaten wives in the form of the Matrimonial Causes Act 1878, which gave magistrates the power to grant a separation order and maintenance to a wife whose husband had been convicted of aggravated assault and where her future safety was in peril. It was only in 1974, after the publication of a book by Erin Pizzey,10 that the extent of the problem of domestic violence came to the attention of both the legislature and the public. 11 Pizzey’s book was influential in the establishment of the House of Commons Select Committee on Violence in Marriage,12 which itself led to the passage of both the Domestic Violence and Matrimonial Proceedings Act 1976 and the Domestic Proceedings and Magistrates’ Courts Act 1978. However, Pizzey’s book also led to increased academic interest and awareness in the area of domestic violence and thus more detailed monitoring of the extent and type of domestic violence experienced by victims. The true extent of such violence is, however, still unknown, a fact acknowledged by all working in this area. The reasons for this are manifold. Many researchers note that domestic violence is underreported to the police although there is a discrepancy amongst researchers as to the amount of under-reporting, which varies from 98% 13 to 29%. 14 Edwards15 also noted that only 12% of all reported cases of domestic violence were made the subject of a crime report and four-fifths were later not officially recorded as a crime.16 Localised research can give an indication of the extent of domestic violence, but the nature of the research may again come up against problems of under-reporting. This book is the culmination of a research study into domestic violence in Leicester. The study firstly analysed the number and nature of cases heard by Leicester County Court during a sixmonth period in 1991, supported by a short verification study 12 months later. This was followed by a study of operational officers in the Leicestershire police force to determine attitudes and responses to domestic violence __________________________________________________________________________________________________________________________________________

9 Smith, op cit, p 4. 10 Pizzey, Scream Quietly or the Neighbours Will Hear (1974), Harmondsworth: Penguin. 11 As acknowledged by Freeman, Violence in the Home (1979), Farnborough: Saxon House and others. 12 HC 553–11 (1974–75), London: HMSO. 13 Dobash and Dobash, Violence Against Wives (1979), New York: Free Press. 14 Pahl (ed), Private Violence and Public Policy (1985), London: Routledge and Kegan Paul. 15 Edwards, ‘Police attitudes and dispositions in domestic disputes: the London study’ (1986) Police Journal 230– 41. 16 For reasons for this see Edwards, Sex, Gender and the Legal Process (1996), London: Blackstone Press, Chapter 4. 3

Domestic Violence incidents. The responses of the police are analysed in Chapter 5. Our initial 1991 study17 (hereafter referred to as the Leicestershire study) over a sixmonth period, into applications to Leicester county court for a remedy in cases of domestic violence revealed 299 cases. This, however, would seem to be the tip of the iceberg, as figures from the Leicestershire police force for 1995/96 reveal 5,144 reports of domestic violence18 and research does not suggest a massive surge in the number of reported cases since 1991. It is also difficult to draw general conclusions from individual research. National studies into this area have only been carried out in the United States in 1980 and 1986 by Straus, Gelles and Steinmetz (1980) and Straus and Gelles (1986). The survey took a representative sample of 2,143 couples in 1975. The investigators found 16% of those surveyed reported domestic violence in the year of the survey, while 28% reported violence at some stage during the relationship.19 The survey delineated types of violence ranging from throwing something to using a knife or gun. The survey revealed that in relation to ‘severe’ violence, defined as ‘punching, biting, kicking, hitting with an object, beating up, threatening or using a knife or a gun’, 6% of couples had experienced it in the year preceding the survey and almost 13% during their marriage. On the basis of the figures, Straus et al estimated that almost three million Americans had been subjected to severe violence.20 Data from the US Department of Justice in 1984 revealed that the yearly incident rate of domestic violence was 1.5 per 1,000 people in the population, although this figure represented all persons aged 12 or over involved in violence in the home and thus would also include sibling and adolescent abuse.21 More recent surveys indicate that, despite greater public awareness, the problem is still vast. In Britain, Mooney22 reports that 25% of women reported experiencing domestic violence and 10% reported experiencing domestic violence in the last 12 months. Mirlees-Black,23 analysing the 1992 British Crime Survey, reported that 46% of all violent incidents against women were domestic incidents. In cold figures, 46% of 990,000 (nearly half a million) estimated assaults on women could be classified as domestic, of which 100,000 occurred at home. One hundred and twenty women were murdered by their partners in 1991, representing 41% of all women murdered. In the United States, according to the FBI in 1992, 15% of all murders, where the relationship __________________________________________________________________________________________________________________________________________

17 18 19 20 21 22 23

Jones, Lockton, Ward and Kashefi, ‘Domestic violence applications: an empirical study of one court’ (1995) Journal of Social Welfare and Family Law 17(1): 67–86. For an explanation of the research see below, p 38 and following pages. Leicestershire Constabulary Domestic Violence Annual Report 1995/96. Gelles, Family Violence (1987), Beverly Hills, CA: Sage Publications, p 37. Smith, op cit, p 12. Gelles, op cit, p 38. Mooney, The Hidden Figure: Domestic Violence in North London (1993), London: Islington Council. Mirlees-Black, op cit. 4

The Extent of Domestic Violence between the victim and the murderer was known, were committed by a person in an intimate relationship with the victim.24 Furthermore, in FBI statistics for 1980–91, over 50% of women murdered over the age of 18 were murdered by an intimate.25 Research has also acknowledged that, in addition to the immense personal costs of domestic violence, there are huge social and financial costs to society as a whole. An Australian analysis in 199326 estimated that the cost of a violent 10-year relationship in terms of hospital visits, police call-outs and court applications, would be approximately £29,000. Domestic violence is a problem within society as a whole. The problems of under-reporting of incidents has been noted above, but even on published figures, women form the majority of victims of violent crime committed by intimates. The adequacy of both the civil and criminal law to deal with the perpetrators of this crime is the subject of this book.

__________________________________________________________________________________________________________________________________________

24 Buzawa and Buzawa, op cit, p 3. 25 Carmody and Williams ‘Wife assault and perceptions of sanctions’ (1987) Violence and Victims, 2(1), 25–38. 26 Changing the Landscape: Ending Violence – Achieving Equality (1993), Canadian Panel on Violence Against Women. 5

CHAPTER 2

WHAT IS DOMESTIC VIOLENCE?

INTRODUCTION Domestic violence characteristically includes acts of physical and mental cruelty progressing from a slap or shove, to a punch or kick, and to the more extreme manifestations of violence, in suffocation, strangulation, attempted murder and murder. The prefix ‘domestic’ serves to neutralise the full horror, viciousness and habituation of the violence ...1

The behaviour that is commonly called domestic violence can take on a variety of different aspects. It can be physical assault, sexual abuse, threats of either, or psychological abuse. It usually continues for years before the victims take action (if they do) and, on some occasions, it results in the death of either the victim or the perpetrator. It is not confined to any one socio-economic group nor can it be said that it is caused by any one factor. Furthermore, its practice is extensive. It is necessary to look at some of the manifestations of violence within what should be a loving relationship to fully understand the horror to which victims are subjected and the need for adequate protection to be provided by both the civil and the criminal justice systems.

THE NATURE OF DOMESTIC VIOLENCE

1 Physical assault When a perpetrator of domestic violence is prosecuted the accounts of the violence suffered by the victim come into the public domain and most readers are horrified by what they read. It was stated in Chapter 1 that in England in 1991, 120 women were murdered by their partners, representing 41% of all women murdered, but murder is the ultimate violence and other cases come to court where the victim has been subjected to horrific violence and survived. For example, in R v Davies2 as the result of an attack with a hammer by her husband, the wife suffered a fractured nose, jaw and eye cavity which necessitated the

__________________________________________________________________________________________________________________________________________

1 2

Edwards, Sex, Gender and the Legal Process (1996), London: Blackstone Press, p 180. (1986) 8 Cr App R (S) 97. 7

Domestic Violence removal of her eyeball. In R v Casseeram3 the husband, after attempting to strangle his wife, poured petrol over her and ignited it, resulting in her suffering 17% burns. In R v Dearn4 the husband tied a piece of electrical cord around his wife’s neck for at least five minutes, resulting in irreparable brain damage. These are just some of the more public examples of domestic violence.5 It would be easy to assume that these are isolated incidents, given that often such cases do not reach court. These cases are, however, the very tip of the iceberg. Many studies have been conducted with victims of domestic violence in an attempt to discern the nature and seriousness of the attacks. Dobash and Dobash6 quote from some of the stories told by women. They give examples from a mass of research, including their own7 and that of Kelly.8 Below are just four examples: He once used a stick, he hit me once with a big fibreglass fishing pole, six foot long. And he just went whoosh, he gave me such a wallop with that. I had a mark ... right down my back. I thought my back had broke. (Dobash and Dobash) Each one got harder and harder ... one time he hit me so hard on the back of the head that he broke his own hand. (Kelly) The elbow was all lying open, the top of my legs was lying open ... gashes all over. (Dobash and Dobash) I was used and abused, battered stupid and nearly strangled. I passed out, had my hair torn out of my head. I was actually pulled along the street by my hair. I’ve had my ear stitched, my nose fractured, my jaw fractured. I still remember the doctor saying you must have a jaw like a professional boxer.9

Doctor Gillian Mezey in a conference paper entitled ‘Characteristics of Women Who Kill’10 described the physical violence encountered by 11 women who were eventually prosecuted for the killing of their abuser. She says: The women were beaten with fists, punched, kicked and assaulted with a variety of weapons and implements including cricket and baseball bats and bicycle tubes. They were smashed over the head with saucepans, bottles and cans and beaten with belts or ropes. They were pinned down, held in headlocks and headbutted ... We were struck by the frequency with which women were strangled by their partners, often to the point of losing __________________________________________________________________________________________________________________________________________

3 4 5 6 7

(1992) 13 Cr App R (S) 384. (1990) 12 Cr App R (S) 527. Quoted in Edwards, op cit, pp 182–83. Dobash and Dobash, Women, Violence and Social Change (1992), London: Routledge, pp 2– 4. Dobash and Dobash, ‘The nature and antecedents of violent events’ (1984) 24 British Journal of Criminology 3, 269–88. 8 Kelly, Surviving Sexual Violence (1988), Oxford: Polity Press. 9 Dobash and Dobash, op cit, n 6, p 8. 10 Domestic Violence: The Victim and the Perpetrator, Conference at St George’s Hospital Medical School, October 1995.

8

What is Domestic Violence? consciousness. This seemed an extremely effective way of establishing immediate control and dominance over the woman, of intimidating her and crushing any prospect of dissent or resistance. It did not leave visible bruises, it could not be easily detected, it was quiet and it didn’t attract the attention of neighbours or the children.

Mezey also mentions electrocution, attempted drowning in the bath to the loss of consciousness, burning with cigarettes or irons and being doused with scalding liquids. Edwards11 conducted a survey of women in refuges in England, Scotland and Wales in 1986. She had 70 responses which showed, among other things, the types of physical violence to which the respondents had been subjected. The table of those responses is shown below:

Table 1 Forms of spousal violence experienced by women in UK refuges Experience of various forms of abuse

Form of Violence

One form

Two or three More than Total responses forms three forms No %

With open hand With clenched fist (punch) With feet (kick or stamp) With objects (eg stick) With piece of furniture (eg chair) With knife With bottle or other glass Other (sexual or mental)

1 9 nil nil nil nil nil 3

18 24 16 7 6 nil 3 1

19 24 22 21 21 13 12 11

38 57 38 28 27 13 15 15

Total responses Total respondents

13 13

75 29

143 28

231 70

54 81 54 40 38 18 21 21

Reproduced with the permission of Sage Publications Ltd 12 from Edwards Policing ‘Domestic’ Violence (1989)

She further states that 81% of her respondents had sustained extreme physical violence, including several types of abuse, and 84% had experienced varying degrees of physical violence over a period of years. She concludes: ‘Women’s typical experience of violence, then, was being punched, kicked and beaten with an object.’13 These findings are similar to those of the Islington Crime Survey,14 which found that 74.5% of victims of domestic violence had been __________________________________________________________________________________________________________________________________________

11 12 13 14

Edwards, Policing ‘Domestic’ Violence (1989), London: Sage Publications. Ibid, p 164, Table 5.1. Ibid. MacLean, Jones and Young, Preliminary Report of the Islington Crime Survey (1986), London: Centre for Criminology, Middlesex Polytechnic. 9

Domestic Violence grabbed or punched, 92% punched or slapped, 56.9% kicked and 19.7% assaulted with a weapon. The Leicestershire study, conducted in 1991, analysed the affidavits of applicants and tabulated the types of physical violence cited in the applications for civil remedies and their frequency. As can be seen below, this virtually replicates the data from previous surveys.15

Table 2 Types of violence

Punching Kicking Choking/strangling Slaps Throwing across room Pushing/shoving Hitting Using a weapon Hair pulling Dragging across room Hitting with object Throwing objects at applicant Headbutting Pushing against wall Throwing downstairs Biting Burning Hitting head on ground Jumping on Pushing head through glass Stabbing Pinching Sexual abuse Other violence

Civil % No

Family % No

Domestic % No

58 45 32 16 16 19 10 13 10 10 3 3 3 7 3 3 3 3 3 10 33

55 28 40 22 32 33 29 12 22 11 12 14 9 11 5 2 4 13 8 4 14 33

60 43 26 34 20 22 23 8 16 10 11 7 6 7 6 2 1 12 4 1 4 1 9 33

[18] [14] [10] [5] [5] [6] [3] [4] [3] [3] [1] [1] [1] [2] [1] [1] [1] [1] [1] [3]

[51] [26] [37] [20] [30] [31] [27] [11] [20] [10] [11] [13] [8] [10] [5] [2] [4] [12] [7] [4] [13]

[66] [48] [29] [38] [22] [24] [26] [9] [18] [11] [12] [8] [7] [8] [7] [2] [1] [13] [4] [1] [4] [1] [10]

(The percentages are calculated out of those who were basing their applications on physical violence and who also specified the nature of that violence. The figures are 31 in the civil files, 93 in the family files and 111 in the domestic files.)

__________________________________________________________________________________________________________________________________________

15 Jones, Lockton, Ward and Kashefi, ‘Domestic violence applications: an empirical study of one court’ (1995) Journal of Social Welfare and Family Law 17(1) 67–86 at 76. 10

What is Domestic Violence? Such manifestations of domestic violence are worldwide. Harrell and Smith16 conducted studies into restraining orders granted to complainants in two jurisdictions in the United States. Their tabulation of the types of violence cited by applicants shows a remarkable similarity to that found in Edwards’ study and our own. If we take all of the evidence presented above we can see a commonality across different countries, regions and years. Punching, kicking, slapping, strangulation, and the use of weapons are all common forms of domestic violence. In addition, all the research indicates that such incidents of violence are not isolated, but that victims are subjected to years of abuse. Dobash and Dobash17 quote examples of women who have endured 15 and 20 years of physical violence. Mezey18 states: ‘Most women [in the survey] had been subjected to violence and abuse over many years (six women described violence for more than eight years, eg Sophie for 11 years, Barbara for 16 years and Jane for 22 years.’ Edwards19 says that in her 1986 survey, 84% of the respondents had suffered violence which extended over several years. In our own research we identified the periods of abuse from the affidavits, as shown in the table below.20

Table 3 Periods of abuse %

Civil No

Family % No

Domestic % No

One day Days Weeks Months Years Not known

1 11 25 5

2 26 60 12

5 2 15 76 21

4 2 13 64 17

4 3 8 27 68 12

3 2 7 22 56 10

Total

42

100%

119

100%

122

100%

It can be seen from the Leicestershire study that in the majority of cases the abuse had lasted for years, the shortest number of years being two and the __________________________________________________________________________________________________________________________________________

16 Harrell and Smith, ‘Effects of restraining orders on domestic violence victims’ in Buzawa and Buzawa (eds) Do Arrest and Restraining Orders Work? (1996), Thousand Oaks: Sage Publications, p 214. 17 Dobash and Dobash, op cit, n 6, p 4. 18 Op cit. 19 Edwards, op cit, n 11, p 164. 20 Jones et al, op cit, p 74. 11

Domestic Violence longest number being 36. All the commentators mentioned also note the serious physical and emotional consequences of such abuse. Dobash and Dobash21 quote: I had treatment for a fractured skull and I lost a child in a miscarriage due to violence. [The worst aspects of the experience of battering are]: Feeling so ill and tired after the beatings, and so useless, I couldn’t face people with the marks on my body.

Mezey states that three of the women in her survey sustained broken bones and one had her teeth broken. In our own research we analysed the injuries sustained by the applicants as shown below:22

Table 4 Injuries sustained by applicants

Bruising/cuts Bleeding Temporarily unable to walk Broken bones Miscarriage Concussion Burst eardrum Other injuries

Civil %

Family %

Domestic %

64 15 6 15 3 3 18

69 13 1 8 2 1 32

60 11 3 10 3 1 1 24

In these cases 20% across all three jurisdictions had needed treatment for their injuries, including hospitalisation.

2 Sexual violence Research has shown that domestic violence is often manifested not only in physical assault but sexual abuse as well. Frieze23 found that physical violence was often associated with sexual violence. Kelly’s interviews with victims 24 give detailed accounts of the extent and nature of the sexual violence, in addition to physical violence, to which the women had been subjected. __________________________________________________________________________________________________________________________________________

21 Dobash and Dobash, op cit, n 6, p 3. 22 Jones et al, op cit, p 77. 23 Frieze, ‘Investigating the causes and consequences of marital rape’ Signs (1983), vol 8, no 3, pp 532–53. 24 Kelly, op cit. 12

What is Domestic Violence? Mezey 25 states that all of the women in her survey had been subjected to non-consensual intercourse, but that they were generally reluctant to class this in the same category as other forms of sexual abuse. In other words, it appears that many victims separate rape from other forms of sexual abuse. It would be easy to conclude that this is because, until 1991 and the case of R v R,26 nonconsensual sexual intercourse within marriage was not capable of being rape. This was based on the statement of Sir Matthew Hale27 that by marriage the wife consented to intercourse and that consent could not be withdrawn. Although the marital exemption to rape was removed by R v R, Hoff 28 has suggested that it was not the law that prevented victims from perceiving nonconsensual intercourse in marriage as rape, but the fact that many of these women regard sex as their marital duty. Forced sexual acts other than intercourse could, however, be subject to criminal prosecution before the removal of the marital exemption. Prior to the House of Lords ruling in R v R, other cases before the court had involved nonconsensual sexual acts not involving intercourse.29 In many cases the fact that the acts had taken place in situations where the wife had consented in the past made it virtually impossible to prove lack of consent (although in Kowalski30 the Court of Appeal said that the presumption of the wife’s consent to intercourse by virtue of the marriage ceremony did not extend to consent to oral sex). Thus, even where an allegation of a criminal offence had been made, a conviction would be difficult to obtain. Where the forced acts are accompanied by threats and violence, it is more difficult to show consent, but Gelles31 points out that the victims often consider the assaults and threats to be the violence, rather than the sexual act itself. But, of course, in law the violence stems from the lack of consent and not the sexual act itself (see Chapter 5). Hoff 32 states: [The women’s] accounts of violence reveal that the men often forced themselves sexually on the women. Only occasionally, though, did the women refer to such sex under duress as rape, even when specifically asked ‘Did he rape you?’ Generally, the women espoused several traditional values regarding the wife’s role including the notion that sex is a duty a wife owes to her husband.

__________________________________________________________________________________________________________________________________________

25 26 27 28 29

Mezey, op cit. [1991] 4 All ER 481. A History of the Pleas of the Crown (1836). Hoff, Battered Women as Survivors (1990), London: Routledge. Cf R v Caswell [1984] Crim LR 111, R v Kowalski [1988] Crim LR 124, T v T [1963] 2 All ER 746, all cases involving spouses. For further discussion see Chapter 5, below. 30 Op cit. 31 Gelles, Family Violence (1987), Beverley Hills, CA: Sage Publications, p 144. 32 Hoff, op cit, p 58. 13

Domestic Violence Gelles33 comments on research conducted through 40 Rape Crisis Centres in America in 1975.34 This research discovered that all of the women who reported being forced to have sex with their husbands gave in to their husband’s demands rather than be violently forced. Edwards35 recounts an incident where a victim participant in a conference later confided in her that she had endured forced sex to prevent further beatings and protect her children from violence. It would appear, therefore, that in many cases victims will endure sexual intercourse as the lesser of two evils. In our own study in 1991, when we analysed the affidavits as to the type of violence alleged, it can be seen from Table 2 above that sexual abuse was mentioned in a sizeable proportion of cases across all three jurisdictions in the county court, the highest being in the family jurisdiction. For our research purposes, the term ‘sexual abuse’ was defined as any behaviour of a sexual nature not consented to by the applicant. The numbers shown in Table 2 show that in our restricted study nearly one in 10 of the victims had been subjected to sexual violence – in the majority of cases what the applicant described as rape. These examples show that often physical violence includes rape within the dictionary definition and, since the ruling in R v R, the legal definition, but there is a need to dispel the perceptions of the victims and persuade them that non-consensual sex is another form of violent abuse which has nothing to do with passion. Many writers view rape as an attempt by men to exercise power over women.36 Gelles37 theorises that the more resources an individual has the more power he has; therefore, the individual with less resources will use force to obtain power. In the case of violent partners, they use the violence as a means of dominating the victim, to counteract the fact that they are poorly educated, unemployed or inarticulate. Thus it is an assertion of power and control. Forced sexual activity, therefore, is another form of control. Nonconsensual intercourse is, however, only one aspect of the sexual violence38 described by victims. In our study, other forms of sexual abuse were mentioned such as the ripping-off of clothes and forcing applicants to indulge in sexual activity such as dressing up and acting out fantasies. Mezey 39 describes some of the experiences of the women in her survey in detail. They include buggery, insertion of objects (including a loaded shotgun), forced enactment of hard-core pornography and caning, in addition to the victims __________________________________________________________________________________________________________________________________________

33 34 35 36

Gelles, op cit, n 31, p 142. Seites ‘Marital rape: dispelling the myth’ (unpublished). Edwards, op cit, n 11, p 189. Cf Bart, Rape doesn’t end with a kiss (1975), Viva 39–42, 100–2; Brownmiller, Against Our Will: Men, Women and Rape (1975), New York: Simon and Shuster; Dobash and Dobash, op cit; Seites, op cit. 37 Gelles, op cit, n 31, p 140, quoting from Goode, ‘Force and violence in the family’ (1971) Journal of Marriage and the Family 33: 624–36. 38 See below, Chapter 5. 39 Mezey, op cit. 14

What is Domestic Violence? being held or tied down and subjected to physical and verbal abuse during intercourse. She states: Sexual abuse was described by most women as the most extreme and distressing of their experiences, through which their partner could assert total power and control over them, achieve maximum humiliation and destroy their very soul.

She further states that sexual assault is associated with much higher levels of psychological disturbance than other forms of violence, including post traumatic shock syndrome.

3 Threats of violence For victims who have been regularly beaten, threats can inject just as much terror as the actual act. Many victims, therefore, live a life of constant fear. Edwards40 says that this is the most typical way a man will keep a woman in subjugation. The case law shows many examples of threats to kill.41 Other studies show that threats are constantly used in the ‘typical’ domestic violence situation. Mezey42 talks of ‘objects being smashed and destroyed – windows, crockery, the television and the deliberate destruction of anything that was particularly precious to them’. Hoff43 gives an example of a victim who had kerosene poured over her and then her husband threatened to light it. The following day, when she refused to cook his dinner, he beat her. After she had received medical attention, he told her ‘I should have killed you ... don’t mess with me or I’ll do it again’. Harrell and Smith44 interviewed 355 women who had filed for restraining orders in America. Apart from analysing the acts of violence experienced by the women in their study, they also analysed the threats of violence or property damage which had occurred. In their study, 26% of applicants had been threatened with bodily harm, 17% had received threats of harm to their children and 16% had had property destroyed before them. Our own study conducted a similar exercise in relation to the applicants to Leicester county court. The results are shown below.

__________________________________________________________________________________________________________________________________________

40 Edwards, op cit, n 11. 41 Cf R v Munroe (1987) 9 Cr App R (S) 408; R v O’Callaghan (1987) 9 Cr App R (S) 187; R v Butterworth (1993) 14 Cr App R (S) 674. 42 Mezey, op cit. 43 Hoff, op cit. 44 Harrell and Smith, op cit. 15

Domestic Violence

Table 5 Threats of violence

Threatening to assault Threatening to kill Threatening to abuse sexually Threat of assault if relationship ended Threatening to return Threatening to harm or remove children Threatening to damage property

Civil % No

Family % No

Domestic % No

43 26 -

[18] [11] -

38 31 2

[45] [37] [2]

48 41 2

[59] [50] [2]

7 5

[3] [2]

7 2

[8] [2]

17 5

[21] [6]

17 14

[7] [6]

15 3

[17] [4]

16 8

[19] [10]

A comparison of the two sets of findings shows that in the Leicestershire study threats of physical harm occurred in almost twice as many cases as in Harrell and Smith’s research, the highest number of incidents in the domestic jurisdiction. The number of incidents where the children were threatened was about the same, although the destruction of property was more prevalent in our study than in that of Harrell and Smith. It is interesting to note that both studies were undertaken in the same year (1991) and in each the acts described were taken from affidavits and not as a result of direct questions. In other words, these are the acts described by the victims themselves.

4 Psychological abuse If we accept that domestic violence is a way of achieving domination and control, it follows that the perpetrators will use other methods, in addition to threats or physical or sexual assault, to ensure the subjugation of their victims. Many researchers, including ourselves, have found this to be so. Mezey45 says that in her survey the psychological abuse suffered by the women: consisted of insults and humiliation, purposeful distancing of the woman from friends, family and all potential sources of external help. The men exerted extraordinary control over the women’s behaviour, thoughts, feelings, what she wore, where she went, whom she saw, as well as over the family’s resources. They were constantly being humiliated and diminished, told that they were dirty and ugly, that they smelled.

Hoff’s accounts from victims frequently include name calling, being told they were stupid or frigid (to justify sexual abuse). Harrell and Smith isolated the __________________________________________________________________________________________________________________________________________

45 Op cit. 16

What is Domestic Violence? types of psychological abuse described by the victims in their sample. All of the acts described show how the perpetrators wish to control the women they abuse. In 50% of cases the women were not allowed out of the house and in 5% of cases they were not allowed to work. If the woman did work, harassment at her workplace would also occur. Mezey notes that in her study only one woman was working; the others were not allowed to work by their partners. She also notes that by the end of the relationship the women were virtually treated as slaves, their compliance being needed to show commitment and loyalty to their partners. Isolating victims by not allowing them to work and controlling their contact with the outside world seems common to all the research in this area.46 Edwards47 cites an interview she conducted with a victim: He is insanely jealous and possessive ... He won’t let me go out to socialise, take driving lessons, go to keep fit classes, he won’t let me do anything, it leads to arguments.

In addition, such social isolation creates economic dependency, making it difficult for the victim to leave, and, in the men’s eyes, ‘justifies’ the treatment of the woman as his property. Many victim accounts in the studies mentioned above talk of violence occurring because the meal was not cooked right, or was late, or the house was dirty/untidy. It appears that by ‘keeping’ these women, the perpetrators expected, in return, perfection at home and if it did not occur, a beating would be the logical consequence, enforcing the victim’s feelings of uselessness and lack of self-worth. In addition to economic control, the research cites other examples of psychological abuse. Table 6 (page 18) shows the acts of psychological abuse mentioned in the affidavits in our study.48 Such acts were also mentioned by the applicants in the study by Harrell and Smith. Constant phoning, following, and harassment in public all appear from the studies conducted to be common forms of abuse. This form of harassment may be the result of sexual jealousy, pathological jealousy being identified as a characteristic in violent perpetrators.49 Mezey states that 81.8% of her sample mentioned their partners’ pathological jealousy and persistent accusations of infidelity. The control of the women in terms of not allowing them to work or leave the house on their own was to prevent any contact with other men. One husband forced his wife to have an abortion because he was convinced that the child she was carrying was not his. Another would hide in the loft and try to ‘catch her out’, frequently searching her clothes and belongings for ‘evidence’. A third regularly used to examine his partner internally to ensure her fidelity and refused to allow a male doctor to attend __________________________________________________________________________________________________________________________________________

46 47 48 49

Cf Mezey, Hoff, Dobash and Dobash, Edwards, and Gelles. Edwards, op cit, n 11, p 162. Jones et al, op cit, p 78. See below. 17

Domestic Violence

Table 6 Types of psychological abuse and harassment Civil No

%

Family No

Not accepting relationship ended 38

[16]

20

[23]

43

[52]

Insistence on speaking to applicant 33

[14]

14

[16]

27

[33]

%

Domestic % No

Persistent phoning

21

[9]

4

[5]

10

[12]

Following around

17

[7]

4

[5]

13

[16]

-

-

2%

[2]

4%

[5]

45

[19]

15

[18]

21

[26]

Forced entry into applicant’s home 38

[16]

12

[14]

22

[27]

Smashing of household items

24

[10]

24

[28]

41

[50]

Smashing windows

10%

[4]

5%

[6]

14%

[17]

Name calling

41%

[17]

42%

[50]

33%

[40]

Emotional abuse

17%

[7]

36%

[45]

24%

[29]

Unwanted letter writing Insistence on being let into A’s home

her during her pregnancies, resulting in two of her three children being born at home, without medical help. Pathological sexual jealousy is, perhaps, the most dangerous example of all domestic violence because research suggests that male sexual jealousy often leads to spousal homicide. Daly and Wilson 50 conclude: ‘In every society for which we have been able to find a sample of spousal homicides, the story is basically the same. Most cases arise out of the husband’s jealous, proprietary, violent responses to his wife’s (real or imagined) infidelity or desertion.’ Chimbos 51 found a similar pattern in a Canadian study of convicted men and women. In his study he found that the murder came after ‘a history of quarrels, usually about sexual jealousy and possessiveness’.52

5 Emotional consequences The physical results of domestic violence have already been discussed. It is easy to see broken bones, broken teeth, burns, bite marks and bruises. What is not easy to see, however, is the psychological effects of being a victim of __________________________________________________________________________________________________________________________________________

50 Daly and Wilson, Homicide (1988) New York: Aldine De Gruyter, p 202; cited in Dobash and Dobash, op cit, n 6, p 7. 51 Chimbos, Marital Violence: A Study of Interspouse Homicide (1978), San Francisco: R & E Research Associates. 52 Ibid, p 67. 18

What is Domestic Violence? repeated, long-term domestic abuse, although the psychological effects of long-term violence have, to some extent, been brought into the public arena with the introduction of the ‘battered woman’s syndrome’ discussed below. Most victims of violence, however, do not kill their abusers, and research conducted with victims can give us some insight into the mental torment they suffer in addition to the physical injuries they receive. Southall Black Sisters, in giving evidence to the Home Affairs Committee said: ... [W]omen arrive in varying stages of depression. They exhibit signs of confusion, guilt, shame and insecurity. The depression can sometimes be acute, bordering on mental illness. Some women actually suffer a breakdown as a direct result of violence and harassment. A large number of them have actually contemplated or attempted suicide.53

Examples of the above are prevalent throughout the literature. The victim interviewed by Edwards above said: He tries to destroy my confidence, my pride and my dignity. I used to look after myself and I used to have a pride in my appearance, but now I mean look at me. It is because of what he has done to me, just because of what he has done to me ...

Low self-esteem is frequently cited by victims. Hoff54 quotes some of the comments from victims in her survey: ‘I felt totally disgusted with myself’; ‘I started to believe his put downs ...’; ‘I hated myself for living with him’. Interviews with victims also show that they live a life of terror. In our research, a large number of the affidavits mentioned the fear the violence had caused in the applicant. This is shown by the table below.55

Table 7 Effects of violence/harassment on applicants

Feared for their safety Feared for their children Feared for their life Depressed or nervous breakdown Had become physically ill

Civil %

Family %

Domestic %

93% 21% 14% 2% -

91% 39% 29% 19% 6%

96% 34% 29% 12% 7%

__________________________________________________________________________________________________________________________________________

53 Edwards, op cit, n 1, p 222. 54 Hoff, op cit, p 38. 55 Jones et al, op cit, p 78. 19

Domestic Violence Dobash and Dobash56 quote from detailed research into the fear victims suffer. ‘The fear of not knowing what he would do – I feared for my life’; ‘I remember the tension of becoming aware that I had to notice what I was saying all the time, to make sure I didn’t offend him. I had become afraid of him’; ‘I realised I was under terrible strain the whole time ... I’d go into a blind panic about what side the spoon had to be on.’ Often the stress and the tension manifests itself in the form of physical illness. In Mezey’s sample, most women were being treated for symptoms of anxiety, insomnia, and depression and 63.6% were receiving psychotropic drugs from their doctors. In our study, as seen in Table 7, 25% of the applicants in the family jurisdiction had suffered depression, a nervous breakdown or had become physically ill as the result of the violence they had suffered; the corresponding percentages in the domestic and civil jurisdictions were 19% and 2% respectively. Much of the research also indicates that often victims consider or attempt suicide as a result of their ordeals. In Mezey’s group 45.5% had attempted suicide and other research demonstrates that frequently victims contemplate suicide, often only being deterred because of their fears for the safety of their children if they succeeded.57

WHY DON’T WOMEN LEAVE? In 1976 Gelles conducted a study of victims of domestic violence entitled ‘Abused wives: why do they stay?’.58 His research focused on four specific factors, to assess the impact of those factors on a victim’s decision whether or not to seek external help. The factors he identified were: (1) the severity and frequency of violence; (2) experience and exposure to violence in one’s family of orientation; (3) education and occupation of the wife, number of children and age of oldest child; and (4) external constraint on the actions of the victimised wife.59 He analysed three of these in detail.

1 Severity and frequency of violence Gelles identified that the more severe the violence the more likely that the victim would seek outside help. Of his eight victims who experienced severe violence, five divorced their husbands, two sought police help and one sought __________________________________________________________________________________________________________________________________________

56 Dobash and Dobash, op cit, n 6, p 3. 57 Cf Dobash and Dobash, Hoff, Buzawa and Buzawa. 58 Gelles, ‘Abused wives: why do they stay?’ (1976) Journal of Marriage and the Family 38: 659–68, reproduced in Gelles, Family Violence, op cit, p 108. 59 Ibid, p 112. 20

What is Domestic Violence? counselling. Of the nine who were pushed, shoved or had objects thrown at them, only one had divorced her husband and one had sought police help, the other seven doing nothing at all. He also found a correlation between the frequency of the violence and the external help sought. Of those victims struck once, less than half had sought external help, but of those struck monthly all had sought help and of those struck weekly, 83% had sought outside intervention. He also identified that women who were hit daily or weekly were more likely to seek police intervention, whereas those struck monthly were more likely to seek a divorce. His explanation for this divergence in the help sought is that women who suffer frequent violence feel that they need immediate protection and fear the response of the perpetrator should they seek divorce or legal separation, whereas those struck less frequently gradually see less point in staying in the relationship. These are, however, his own conclusions and are not based on any interviews with the victims themselves. Pagelow’s research in 198160 did not support Gelles’s conclusions in respect of the severity and frequency of violence and the decision to stay or leave. Pagelow’s research, however, was with occupants of shelters and thus did not look at women who had stayed in abusive relationships and not sought external intervention.

2 Experience with and exposure to violence as a child The previous research of Gelles 61 and of Straus 62 found that there is a correlation between experience of violence in childhood, either as a victim or a spectator, and the experience of violence as an adult. In his 1976 research, Gelles found that of the 54 women who never saw their parents fight violently, 46% were victims of domestic violence themselves, while 66% of the 12 women who had observed interparental violence became victims. Furthermore, Gelles concluded that the more frequently a woman was struck as a child, the more likely she was to become a victim of violence by her husband. It must be noted, however, that the numbers in Gelles’s 1976 survey were small and that, although other writers have suggested a correlation between childhood experiences of violence and violence as an adult, these theories are open to criticism.63 Furthermore, in Mezey’s sample only 36.4% had witnessed significant parental violence and only one woman had been physically abused as a child. Gelles concluded that although the predominant mode of intervention by those women who had observed parental violence __________________________________________________________________________________________________________________________________________

60 Pagelow, Women-Battering: Victims and their Experiences (1981), Newbury Park, CA: Sage Publications. 61 Gelles, The Violent Home (1974), Beverley Hills, CA: Sage Publications. 62 Straus, ‘Ordinary violence, child abuse and wife beating: what do they have in common?’ in Finkelhor et al (eds) The Dark Side of Families (1983), Beverley Hills: Sage Publications. 63 See below, p 30. 21

Domestic Violence was divorce or separation, these women were only slightly more likely to seek intervention than women who had not observed such violence. Of those women who had not observed parental violence, there was no predominant method of intervention. In addition, the fact that a woman was the victim of childhood violence appears to have no bearing on her decision whether to seek help or not.

3 Education, occupation, number and age of children Gelles looked at this factor on the basis that it would affect the resources the wife had. He had a hypothesis that the fewer the resources at her disposal, the less able the wife is to seek outside help. As a result of his research, he concluded that the variable which best distinguishes women who seek external intervention from those who do not is having employment. Only 25% of those victims who did not seek help were employed, whereas 50% of those who called the police or social services, or sought a divorce or separation had a job at the time. He stated that the less economically dependent a wife is on her husband, the more likely she is to seek help. Furthermore, working gives her another view of life and the ability to see the violence as abnormal within the family structure. He also discovered that women with teenage children were more likely to seek help than those with younger children. These women said that they sought help once their children were old enough to get involved in the violence, suggesting the help was sought to protect the children rather than themselves. Gelles also noted that neither the educational background of the victim, nor the number of children in the family, in itself affected whether the woman sought help or not, although the combined factors of low educational achievement and lack of a job meant the woman was less likely to seek external intervention.64 Gelles’s original research was conducted some 20 years ago, and since then much more research has been conducted into why victims decide to stay or leave. Gelles’s research left many questions unanswered and, in particular, did not answer the question he raised in the title of his article ‘Why do abused wives stay?’. He concentrated on whether they would seek external intervention, rather than looking at the outcome of that intervention on whether they left or stayed. One of the more publicised theories as to why victims of domestic violence remain with perpetrators is the theory of ‘learned helplessness’ developed by Lenora Walker 65 and from which she developed the ‘battered woman syndrome’. Her theory is that women who are the victims of repeated violence have feelings of self-blame, low concepts of self-worth, and suffer __________________________________________________________________________________________________________________________________________

64 This conclusion is supported by Pagelow’s research, op cit, n 60. 65 Walker, ‘Battered women and learned helplessness’ (1978) 2 Victomology 525–26. 22

What is Domestic Violence? from despair, depression and anxiety. Due to the repeated assaults they feel that they cannot control what is happening or what will happen and therefore feel that they are helpless to prevent further violence. Hoff,66 in her interviews with victims, explored the concept of ‘learned helplessness’ and how far it related to a ‘cycle of battering’.67 Helplessness denotes women as passive recipients rather than people who can make decisions and seek help. She therefore asked the women in her study if, during the years of violence, they thought of themselves as helpless. While their responses to some extent supported Walker’s theory, Hoff points out that although these women said that they felt helpless, they pointed to factors such as lack of physical strength or support from friends or external agencies as some of the factors which made them feel so. As Hoff says: Despite their desperate situations and the difficulty in identifying sources of aid, the women were hardly helpless. Generally, they were always scheming about how to stop the battering, eg by examining their own behaviour or ways of escaping the situation, by considering how they could get and keep some money. They took steps to please their mates and to satisfy their demands; they protected and took care of their children ... Their accounts also reveal that they actively defended themselves and that when they did not, it was not necessarily because they felt helpless; rather, they had learned that a worse beating or other negative consequences would ensue.68

In Mezey’s research, most of the women had left their abuser on at least one occasion and virtually all of the women had sought help from the criminal and civil justice system. As such they were not helpless at the beginning of the relationship, but as all the attempts to prevent the violence failed, they became more passive, hopeless and despairing. Hoff criticises the concept of ‘learned helplessness’ because there is a danger of concentrating on the victim’s psychological characteristics alone rather than recognising that a multiplicity of other factors, such as lack of support from friends or other external agencies, can mean that the woman is helpless, that is there is no help available to her. In Hoff’s survey, all the women had eventually left their partners after repeated violence. Their reasons for remaining so long, along with experiences of women who did not leave, serve to give some explanation why women stay. Hoff asked the question ‘why did you stay after the first incident of violence?’. The responses were varied but demonstrated common themes. All of the women loved their partners and made excuses for their behaviour. All showed a commitment to making the relationship work and, if there were children involved, felt that they would be unable to succeed as single parents. In addition, Hoff found that the women had a certain acceptance of male __________________________________________________________________________________________________________________________________________

66 Hoff, op cit, pp 64–66. 67 Walker, The Battered Woman Syndrome (1984), New York: Springer. 68 Hoff, op cit, p 64. 23

Domestic Violence authority and power, although not the authority to use violence. She notes that Dobash and Dobash69 link the view of male authority with the teachings of the church and other social institutions, which encourage wives to keep the family together and project a positive image of her partner to the outside world, irrespective of his behaviour towards her. If one examines the views expressed by the women in Hoff’s research, we can see that they felt that it was their responsibility to hold the family together and to support their partners. Leaving was further complicated by the fact that often they had no money, nowhere to go, and children to consider. In addition, many women said that their partners had blamed them for the violence (in one case, a counsellor asked the woman what she had done to provoke her husband) and often showed remorse after the first beating. Thus practical considerations, coupled with the victim’s self-blame for the violence and her commitment to making the relationship work, all contributed to these women remaining after the first experience of violence. After the first violent incident, Hoff says that the following scenario evolves: Man hits woman; she is shocked; he is remorseful and promises never to do it again; she believes him, acts on the basis of her commitment to make the marriage work and stays with her partner. Although he is probably sincere in his promise not to hit her again, at an unconscious level the fact that she stays with him despite the violence, symbolises for him a certain licence to repeat the violence. After the second incident of violence, the woman is even more condemned – including by her mate – for her ‘stupidity’ and ‘weakness’ in accepting the violence. Not only is the vicious circle closed, but there is little or no condemnation of the men for failing to keep their promises, and frequently indifference to the violence itself by the police or other public officials. Thus, the stage is set for repeated, chronic violence.70

While this reveals the common cycle, it does not explain why the cycle evolves in the first place. Why, then, did the women in Hoff’s survey stay for so long after the violence became repeated? Again the responses to Hoff’s question reveal common themes: economic dependency, child care responsibilities, a commitment to the relationship and the sense of failure are mentioned again and again. What comes through most particularly is that the women had been socialised into the traditional role of the woman as the successful wife and mother, who, as a result of that role, had a responsibility to nurture the family and keep it together. In addition there was a fear of reprisals if they did leave. This fear is not unjustified. Barnard et al71 discovered that 57% of women killed by their spouses or cohabitees had recently left them. __________________________________________________________________________________________________________________________________________

69 Dobash and Dobash, Violence Against Wives: A Case Against the Patriarchy (1979), New York: Free Press. 70 Hoff, op cit, p 44. 71 Barnard, Vera & Vera, and Newman, ‘Till death us do part: a study of spouse murder’ (1982) Bulletin of the American Academy of Psychiatry and Law, 10(4), 271–80. 24

What is Domestic Violence? Mezey, in her study of women who killed their violent partners, analysed why the women were still with their partners at the time of the killings. 90.9% had tried to leave on at least one occasion and 45.5% had made more than one attempt. Their reasons for returning are similar to those given by the women in Hoff’s research: economic dependency, a commitment to the relationship, nowhere to go. In addition, one woman, having left five times, the last time for two years, discovered that her partner was abusing the son she had been forced to leave behind and returned for his sake. Another woman was traced to where she was hiding and terrorised into returning. The women in Mezey’s survey returned and ultimately killed their abusers; those in Hoff’s survey eventually left. What makes a victim of repeated violence finally decide to leave? This is where the responses differ widely, demonstrating that the eventual decision to leave is based on circumstances unique to the individual situation. Fear of being killed, fear of being driven to suicide, fear for the children, an acknowledgment that the violence will not stop, a particular beating, being beaten when pregnant, were all mentioned as the reason the decision was made. However, in addition, these women need social and financial support to overcome the reasons for not leaving sooner. This to some extent explains why some women leave after only a few years and others after many. As Mezey shows, the adequacy or otherwise of the support systems will also often determine whether the woman returns. What the research demonstrates is that the victims of domestic violence all have common reasons for remaining with their violent partners but that their reasons for leaving the relationship (if they do) are diverse and are dependent upon the support available from external agencies. In many cases these support systems are inadequate. One of the women in Mezey’s group had taken out two injunctions against her husband, both of which were broken, leading to more violence. Another brought charges of GBH. These were dropped, although her husband was imprisoned for unrelated property offences for three years and, on his release, began a campaign of retributive violence. Lack of adequate protection from the criminal and civil law, lack of shelter space, lack of adequate housing, and lack of money all imprison these women and allow the ‘cycle of battering’ to continue.

THE REASONS FOR DOMESTIC VIOLENCE Gelles states:72 ‘The last two decades of research on the various aspects of family violence are in agreement on one major point – there are a multitude of factors associated with violence in the home.’ __________________________________________________________________________________________________________________________________________

72 Gelles, Family Violence (1987), Beverley Hills, CA: Sage Publications, p 40. 25

Domestic Violence He continues, however, that researchers have consistently found the following factors related to various aspects of domestic violence: (1) the cycle of violence – the intergenerational transmission of violence; (2) low socio-economic status; (3) social and structural stress; (4) social isolation and low community embeddedness; (5) low self-concept; and (6) personality problems and psychopathology. Much of the research into why domestic violence occurs has been summarised by Jenny Clifton,73 Lorna Smith,74 and Gill Hague and Ellen Malos.75 All argue that research in this area has identified a number of factors which can lead to family violence. These can be categorised into pathological factors, social factors and cycles of violence. In addition there is the feminist explanation of violence.

1 Pathological factors Early research in this area focused on pathological factors rather than cultural or social influences. Faulk76 and Gayford77 argue that men who abuse their wives are mentally ill or disturbed. Gayford’s theories were based on a study of 100 women at the Chiswick Women’s Aid Refuge which concluded that the men who battered their partners were pathologically jealous, badly brought up, spoiled and indulged as children and incapable of looking after themselves. This research, however, has since been criticised on methodological grounds.78 Pizzey79 describes violent partners as psychopaths and many other writers quote examples of the perpetrator exhibiting pathological jealousy.80 Research has examined the pathology of the victim. Some writers have even suggested that female victims have caused the __________________________________________________________________________________________________________________________________________

73 Clifton, ‘Factors predisposing family members to violence’ in Violence in the Family – Theory and Practice in Social Work (1982), Edinburgh: HMSO, pp 25–32. 74 Smith, Domestic Violence (1989) Home Office Research Study 107, London: HMSO, pp 24–29. 75 Hague and Malos, Domestic Violence: Action for Change (1993), Cheltenham: New Clarion Press, pp 54–62. 76 Faulk, ‘Men who assault their wives’ (1974) Medicine, Science and the Law, 14, pp 180–83. 77 Gayford, ‘Wife battering: a preliminary survey of 100 cases’ (1975) British Medical Journal, pp 194–97. 78 Wilson, The Existing Research into Battered Women (1976), London: National Women’s Aid Federation. 79 Pizzey, Scream Quietly or the Neighbours Will Hear (1974), Harmondsworth: Penguin. 80 Cf Gelles, The Violent Home, op cit; Dobash, Dobash et al ‘ Wife beating: the victims speak’ (1978) 2 Victimology, and incidents quoted in Hoff, op cit. 26

What is Domestic Violence? violence to themselves. Gayford81 says that some of the women in his survey were not feminine, that is they did not display what he perceived to be typical feminine behaviour characteristics. Storr 82 states that often nagging, aggression or over-submissiveness can cause domestic violence and that some victims will unconsciously use these to provoke violence. Even Pizzey and Shapiro83 suggested that in some cases women want to be hit and therefore provoke violence, arguing that many women leave one violent relationship only to enter another. Pagelow84 points out, however, that many of the characteristics in victims identified by some writers are contradictory, as demonstrated above in Storr. Andrews85 found little evidence to suggest that victims left one violent relationship to enter another. Furthermore, Smith86 points out that much of the research identifying pathological characteristics has been based on small unrepresentative samples and thus should not be used to generalise, as there has been no research which looks at families with no history of violence in order to identify whether the above characteristics are also present in non-violent families. Sommers, Barnes and Murray,87 however, have criticised the view that mental disorders play little part in domestic violence. They found that certain factors could be isolated to predict violence, for example being young and achieving high scores on Eysenck’s Psychoticism Scale, the Neurotiscism Index and the McAndrew Scale. Furthermore, O’Leary88 discovered in his sample that men who batter exhibit certain personality disorders. George considers that such factors have been dismissed, losing ground to later-developed social and feminist theories. He argues ‘we need to re-examine partner abuse in the light of what the neurosciences can tell us of such behaviours’.89

2 Social factors Criticism of research in this area which focused only on pathological characteristics looks at violence as a response to a variety of social factors. __________________________________________________________________________________________________________________________________________

81 82 83 84 85 86 87

88 89

Gayford, op cit. Storr, Human Aggression (1974), Harmondsworth: Penguin. Pizzey and Shapiro, ‘Choosing a violent relationship’ (1981) New Society, 23 April, p 133. Op cit. Andrews, Violence in Normal Families. Paper presented at the Marriage Research Centre Conference on Family Violence, April 1987. Smith, op cit, p 24. Somers, Barnes and Murray, ‘Alcohol consumption, alcohol abuse, personality and female perpetrated spouse abuse’ (1992) Journal of Personality and Individual Differences 13, quoted in George, ‘Riding the donkey backwards: men as the unacceptable victims of domestic violence’ (1994) The Journal of Men’s Studies, vol 3, no 2, pp 137–59. O’Leary, ‘Through a psychological lens. Personality traits, personality disorders and levels of violence’ in Gelles and Loseke (eds), Current Controversies in Family Violence (1993), Beverley Hills, CA: Sage Publications, pp 7–30. George, op cit, p 149, nn 8, 7. 27

Domestic Violence Clifton, for example, identifies that some writers have suggested that stressinducing factors such as unemployment can lead to violence and have observed an increase in violence in times of high unemployment. Our own research showed that, on average, arguments about money preceded the violence in 5% of cases. Stress can lead to an increase in alcohol consumption and thus, it is argued, explain the higher incidents of domestic violence committed when the perpetrator is drunk. In Gayford’s study over 50% of the women in his sample said that their husbands were drunk once a week. Roy90 found that just over a third of perpetrators in his survey had a drink problem. Again in the Leicestershire study, drink was cited as a factor in 36% of cases in the family jurisdiction of the court and 38% of cases in the domestic jurisdiction, this being the most common factor cited in our sample. Furthermore, in the Leicestershire Constabulary Domestic Violence Annual Report 1995/96, alcohol was cited as a contributory factor to the violent incident in 36% of cases (1,874 incidents out of a total of 5,144 reported). It should be noted, however, that research shows that drink is often the result of other factors and thus a contributory factor to violence rather than the cause. As Smith says ‘alcohol provides “the Dutch courage”’.91 Further research looks to social structural explanations for violence.92 Such research looks to expectations of men created and defined by society as a whole. For example, traditional stereotyping paints the man as successful, the breadwinner, the head of the household, and the dominant partner. By contrast, women are perceived as the homemakers, the subservient partner. Any threat to this order can therefore lead to violence. Harris and Bologh93 surveyed a small sample of 34 men. Fifty per cent were from working class occupations, the rest from middle or upper middle class occupations (Harris and Bologh definitions). The working class group espoused the views expressed above and felt that their wives should be kept in line, seeing themselves as head of the household and expecting obedience from their wives in return for financial support. Harris and Bologh concluded that these men sought supremacy at home to compensate for their low status occupations and that such supremacy asserted their male worth. However, although these views were not shared by those from middle and upper middle class occupations, in that such respondents sought egality at home, pressures of their jobs meant that they could not fulfil this role to the extent of their expectations and their frustrations in trying to be a successful worker __________________________________________________________________________________________________________________________________________

90 Roy, ‘Four thousand partners in violence: a trend analysis’, in Roy (ed) The Abusive Partner (1982), New York: Van Nostrand Reinhold. 91 Smith, op cit, p 30. 92 Cf Straus, ‘A sociological perspective on the causes of family violence’ in Green (ed) Violence and the Family (1980), Boulder, Colorado: Westview Press; Steinmetz and Straus, Violence in the Family (1974), New York: Harper and Row; Gelles, ‘An exchange/control social theory’ in Finkelhor et al (eds) The Dark Side of Families, op cit. 93 Bologh, ‘The dark side of love: blue and white collar wife abuse’ (1985) 10 Victomology, 242–52, quoted in Smith, op cit. 28

What is Domestic Violence? and partner led to frustration which resulted in violence. O’Brien94 argues that, in respect of those with working class occupations, the threat to the husband’s status within the relationship by, for example, the wife achieving more in the workplace or acquiring a higher status than himself, can lead to violence to reassert the dominance of the male as the superior partner. Although this could be seen as an explanation of violence where the husband is in a working class occupation, it fails to explain adequately violence in other classes of society, which, even Harris’s small sample above demonstrates, makes up a sizeable proportion of all domestic violence as a whole. Dobash and Dobash95 give examples which demonstrate that domestic violence is not a problem confined to lower socio-economic groups. They cite the cases of John Fedders, one of President Reagan’s high-ranking legal officials, who had beaten his wife for 18 years96 and of the trial of a wealthy New York lawyer, Joel Steinberg, who was convicted of the murder of his adopted daughter, the transcripts of the trial revealing a catalogue of abuse against his female partner, including a ruptured spleen and minor brain damage. They also cite a case reported in 1989 of a retired vicar who bludgeoned his wife to death over a period of two hours because he was having trouble with his radio reception. Again the trial revealed a catalogue of abuse during 46 years of marriage. These examples reveal that the cause of domestic violence cannot be ascribed to the frustrations of a low status occupation.

3 Cycles of violence The cycle of violence theory suggests that violence is a learned response in childhood which continues into adult behaviour, thus leading to generations of violent adults within a particular family or community. The theory further argues that the response to violence in childhood differs between the sexes. Boys learn to be violent and girls learn to be passive victims. The boy witnessing violence between his parents becomes a violent partner in front of his children who in turn become violent partners in front of their children and so on. The girl, seeing her mother as a victim of violence, chooses a violent partner and herself becomes the victim. The cycle of violence theory thus suggests that violent behaviour can be learned as either a witness or a victim of violence, so creating a ‘norm’. Straus 97 first identified a possible causal link between childhood experience of violence and violence in adulthood, but the studies which are __________________________________________________________________________________________________________________________________________

94 O’Brien, ‘Violence in divorce-prone families’ (1971) 33 Journal of Marriage and the Family 692. 95 Dobash and Dobash, op cit, n 6. 96 Ibid, p 5. 97 Straus, op cit, n 62. 29

Domestic Violence mainly quoted in relation to this correlation are those of Gayford (above) and Gelles.98 Clifton criticises both pieces of research as inconclusive, as there is a lack of clarity of the extremes of violence observed nor whether it is the experience of the perpetrator or victim which has the impact. It has already been noted that Gayford’s research has been criticised by Wilson on methodological grounds. That research found that 40% of the husbands of the victims had been subjected to or had witnessed violence in childhood and 20% of victims reported such experiences. This leaves 60% of perpetrators who had been neither victim to nor witnesses of violence. Likewise, Gelles found that 50% of his sample who had witnessed violence as children became violent as adults, while 50% did not, whereas of those who had not experienced violence in childhood, 40% became violent adults. Therefore, while there is some evidence that behaviour can be learned, the theory does not adequately explain why, as in Gelles’s research, 40% of his group who had not experienced violence in childhood became violent adults. Hague and Malos state: The theory rests ultimately on assumptions about the natural aggressiveness of boys and men, and the passivity of girls and women. This kind of explanation also loses force if violence, and violence against women in particular, is both very common and often accepted by the whole of society ... One possible reason for [the theory’s] popularity is that it seems to suggest that those men who attack their wives or partners, and those women who experience violence, are not ‘people like us’ – but rather belong to a special deviant group of ‘violent families’, who are completely different from the rest of us.99

The theory, therefore, does not provide an adequate explanation for the extent of domestic violence within society today. All that can be said is that experiencing violence as a child, either as a witness or a victim, may, in some cases, lead to an acceptance of violence as a norm, but it is suggested that this is only a contributing factor.

4 The feminist explanation The basis of feminist explanations of domestic violence is that it reflects the inequality of power between males and females in society. Dobash and Dobash100 use the concept of patriarchy to explain this. This consists of two elements: the structural, that is social structures which delineate women’s subordinate role in society, and the ideological, that is the socialisation process that ensures acceptance of this. Buzawa and Buzawa101 sum up the tenets of this theory as: __________________________________________________________________________________________________________________________________________

98 99 100 101

Gelles, The Violent Home, op cit. Hague and Malos, op cit, p 58. Dobash and Dobash, op cit, n 7, quoted in Smith, op cit, p 26. Buzawa and Buzawa, Domestic Violence: the Criminal Justice Response (1990), Newbury Park, CA: Sage Publications. 30

What is Domestic Violence? Women in this model have historically been seen as chattel, unable to manage their own affairs without the strong leadership of an authoritarian family patriarch. The patriarch, in turn, traditionally had the right to enforce male standards of accepted ‘feminine’ behaviour through whatever means necessary, including force.102

This model makes women economically dependent upon their male partners and therefore powerless.103 Pahl104 talks of the assumptions about marriage and the subordinate role of the woman within it, identifying the importance of the allocation of control of the household budget. During her research she found that control over money was seen as a method of controlling wives, so emphasising the dominant role of the male in the relationship. The issue of male dominance and control is emphasised in other studies. Roy105 found that the four most common factors preceding violence were arguments over money, jealousy, sexual problems and alcohol. Dobash and Dobash106 state: The four main sources of conflict leading to violent attacks are the men’s possessiveness and jealousy, men’s expectations concerning women’s domestic work, men’s sense of the right to punish ‘their’ women for perceived wrongdoing, and the importance of men maintaining or exercising their position of authority.

Buzawa and Buzawa107 state that this link between violence towards women and sexual inequality is supported by cross-cultural studies. They quote from Levinson, who conducted a study of 90 small-scale societies worldwide in 1989.108 He found family violence rare or non-existent in 16 of them. In these societies he found that, in addition to a cultural philosophy of peaceful coexistence, spouses enjoy sexual equality. This is reflected in joint decisionmaking in household and financial matters. Smith, citing Morash,109 argues that there is a similarity between the arguments of those who support the social structural explanations and the feminist explanations of domestic violence, although the two groups use different models on which to construct their theories. Straus, for example, agrees that the male dominant society of the western world permits

__________________________________________________________________________________________________________________________________________

102 Ibid, p 18. 103 Cf Schecter, Women and Male Violence: The Visions and Struggle of the Battered Women’s Movement (1982) Boston, MA: South End Press. 104 Pahl, op cit. 105 Roy, op cit. 106 Dobash and Dobash, op cit, n 6, p 4. 107 Buzawa and Buzawa, op cit, n 101, p 19. 108 Levinson, Family Violence in Cross Cultural Perspective (1989), Newbury Park, CA: Sage Publications. 109 Smith, op cit, p 28. 31

Domestic Violence husband-wife violence. 110 Feminist writers, for example Dobash and Dobash, have noted the relevance of family history, the use of alcohol, etc as factors which can contribute to violence. The above theories try to find a cause and thus an explanation for domestic violence. It has already been noted that many of the theories isolate the same factors, while grafting those factors onto different models. What all of these theories demonstrate, however, is that there is no one sole cause, one single factor nor one ideal model which adequately explains the reasons for the extent of domestic violence across the whole spectrum of society today. As George has said:111 If we are to develop a cogent theory of the causes of family violence we need to integrate and define the interplay between the social, psychological, and physiological factors. Rather than assume we have all the answers by focusing only on the social (eg issues of power in relationships) or the psychological (eg the need to dominate), we must look at all the possibilities.

__________________________________________________________________________________________________________________________________________

110 Straus, ‘A sociological perspective on the prevention and treatment of wife beating’ in Roy (ed) The Battered Woman, op cit, n 67. 111 George, op cit, p 149. 32

CHAPTER 3

CIVIL PROTECTION BEFORE 1997

INTRODUCTION Although the most common manifestation of domestic violence is physical assault, which is a criminal offence, there are many reasons why victims of such violence may wish to use the civil rather than the criminal law. Such reasons were given by the Women’s Aid Federation of England when giving evidence to the Home Affairs Committee:1 From the point of view of the woman experiencing the abuse, it may seem preferable to apply for protection in the civil courts rather than to give evidence in a criminal prosecution of her partner. Firstly the process seems to be more under her control: she instructs the solicitor, who will represent her in court, or will instruct a barrister on her behalf. Secondly in most cases the hearing will be in a closed court or in the Judge’s chambers, and there will be no publicity. Thirdly, her partner will not acquire a criminal record, which could hamper his employment prospects and hence indirectly affect the economic situation of the woman and her children.

Prior to the introduction of statutory protection beginning in 1976, victims had only two forms of civil protection at their disposal. These two forms of protection co-existed alongside the statutory protection and will continue to protect those parties not covered by the Family Law Act (FLA) 1996. If proceedings are pending between the parties, the court has the jurisdiction to issue an injunction in those proceedings restraining the assailant from molesting, assaulting or interfering with the applicant. These proceedings are between married parties, for example for judicial separation or divorce. In respect of unmarried parties there lies an action in tort. Until recently, however, English law did not recognise a tort of harassment or molestation per se, and thus an injunction between unmarried parties would only be issued to support an existing legal or equitable right. Furthermore, this right could not be protected by issuing an injunction restraining a defendant from being in the vicinity of the plaintiff’s property. In Patel v Patel 2 a father-in-law originally obtained a non-molestation injunction against his son-in-law which prevented the defendant from molesting the plaintiff, trespassing on the plaintiff’s property or approaching within 50 yards of the property. The exclusion from the area was later deleted by a county court judge, an action __________________________________________________________________________________________________________________________________________

1 2

Home Affairs Committee 1992–93, HC 245, Domestic Violence, vol 11, Memoranda of Evidence, Cmnd 2269, London: HMSO, p xxxiv. [1988] 2 FLR 179. 33

Domestic Violence upheld by the Court of Appeal which held that a defendant could only be excluded from an area if a tort had been or was likely to be committed. Merely being within the vicinity of the property was not a tort. Furthermore, Waterhouse J held that there was no tort of harassment.3 A later Court of Appeal, however, held that an injunction would be issued if the conduct complained of amounted to another tort such as trespass or conduct which was calculated to impair the plaintiff’s health (Burnett v George4). The Court of Appeal in Khorasandjian v Bush5 developed the law further. In this case the parties had never cohabited and the plaintiff lived with her parents. The conduct complained of consisted of unwanted phone calls. The Court of Appeal granted an injunction despite the fact that the plaintiff had no proprietary interest to protect. Dillon LJ, referring to Waterhouse J in Patel, stated that he found it difficult to say that there was no tort of harassment, particularly as the court in Patel had issued a non-molestation injunction. While appearing to accept that a tort of harassment exists, however, Khorasandjian did not deal with the problem of exclusion from an area in which the dwelling house of the plaintiff was situated. The issue of exclusion zones was raised on appeal in Burris v Azadani.6 In that case the defendant appealed against a sentence of imprisonment imposed for breach of an exclusion zone contained in an non-molestation injunction. The defendant argued that the judge had no jurisdiction to impose an exclusion zone and, given that his only breaches of the injunction had been to cycle past the plaintiff’s property, he should not have been imprisoned because such conduct was not tortious. The Court of Appeal rejected the argument that the judge had no jurisdiction to impose an exclusion zone. The Court of Appeal stated that in other areas of law, the courts had developed powers to issue an injunction to protect the interests of the plaintiff even where the conduct restrained was not, in itself, unlawful, for example in the granting of Mareva injunctions. Bingham MR regarded Patel as a case correctly decided, where the court had to balance the interests of the plaintiff against those of the defendant. In that case it was clear that tortious action on the part of the defendant was not reasonably apprehended and thus it was not reasonable to restrain the freedom of the defendant by the imposition of an exclusion zone. In Burris, however, there was reasonable apprehension of future tortious conduct, ie harassment, and thus the exclusion zone was necessary to protect the plaintiff. Schiemann LJ, while agreeing with the Master of the Rolls, was more cautious. Although impliedly accepting a tort of harassment, he stressed that the imposition of the exclusion zone was acceptable in the case because it was imposed in an interlocutory ex parte __________________________________________________________________________________________________________________________________________

3 4 5 6

Ibid, p 182. [1992] 1 FLR 525. [1993] 1 QB 727. [1995] 4 All ER 802.

34

Civil Protection before 1997 injunction, suggesting that his Lordship might have reached a different conclusion if the application had been for a final order. It would appear that, since Burris, victims of molestation not falling within the categories of persons afforded statutory protection before the Family Law Act 1996, and those victims who will still be excluded from the 1996 legislation, despite an enlarged category of protected persons,7 will now be protected from harassment. In addition, a victim will be able to secure greater protection in that the court can exclude the harasser from an area in which the victim resides. Whether Burris limits this power to interlocutory ex parte injunctions has yet to be seen, but the Protection from Harassment Act 19978 should clarify the situation. Although research suggests that the problem of violence within domestic relationships is not a recent one, it was only after the publication of Erin Pizzey’s book9 that a House of Commons Select Committee on Violence in Marriage was established in 1975. The report of this committee10 provided the basis and impetus for legislation in the form of the Domestic Violence and Matrimonial Proceedings Act (DVMPA) 1976. Section 1 of the Act allows the court to issue non-molestation and exclusion orders to protect victims of domestic violence. This Act was later supplemented by ss 16–18 of the Domestic Proceedings and Magistrates’ Courts Act (DPMCA) 1978, which gives magistrates powers to issue personal protection orders and ouster orders. In addition, the House of Lords’ decision in Richards v Richards11 introduced a third form of statutory protection by applying the provisions of the Matrimonial Homes Act 1983 to domestic violence victims.

STATUTORY APPLICANTS 1 The Domestic Violence and Matrimonial Proceedings Act 1976 Although at first glance it would appear that the availability of remedies in civil law to protect victims of domestic violence were more than adequate prior to the enactment of the FLA 1996, the reality is very different. The DVMPA 1976, according to s 1, applies to married applicants and to cohabitees who are ‘living with each other in the same household as husband and wife’ (s 1(2)), but although Parliament recognised for the first time that unmarried partners are as much in need of protection as their married __________________________________________________________________________________________________________________________________________

7 8 9 10

See below, Chapter 4. See below, Chapter 4. Pizzey, Scream Quietly or the Neighbours Will Hear (1974), Harmondsworth: Penguin. House of Commons Select Committee on Violence in Marriage, Report, Minutes of Evidence and Appendices HC 553-11 (1974–75) London: HMSO. 11 [1984] AC 174. 35

Domestic Violence counterparts, the phrase ‘living together in the same household as husband and wife’ is not without its difficulties of interpretation. The DVMPA 1976 was intended to apply to those parties who were living together ‘on a stable basis’.12 The DVMPA 1976 protects married partners irrespective of whether they are living together or not, and in Adeoso v Adeoso13 the Court of Appeal held that the words in s 1(2) were intended to describe the nature of the couples’ relationship and not their living arrangements at the time of application. However, the wording of s 1(2) causes problems in the not uncommon situation where the unmarried victim has moved out of the shared home to escape the violence. A literal interpretation of the section would have nullified the protection, so a series of Court of Appeal decisions laid down the rule that the DVMPA 1976 applied if the parties were living together at the time of the incident which caused the applicant to leave.14 There remains the problem, however, that given that the DVMPA 1976 was designed to facilitate immediate short-term protection, the longer the parties have lived apart, the less likely that the Act can be invoked, and it is problematic whether it can be invoked to restrain violence committed after the parties have ceased to live together. In Harrison v Lewis15 for example, it was held that there was no jurisdiction when the assault occurred nine months after the parties had separated. Furthermore, a perpetrator can only be excluded from the matrimonial home or an area in which the matrimonial home is situated. The inadequacy of the wording of the DVMPA 1976 was addressed by the Court of Appeal in McCann v Wright16 where the court interpreted the provisions in a purposive way. The case involved a cohabitant who had moved out of the shared accommodation to live with her mother. She obtained a non-molestation injunction against the defendant one month after she had left, on the basis of his conduct towards her after her departure. The court found no problem in interpreting s 2(2) in a purposive way. While authority17 had already decided that an injunction could be issued based on violence complained of while the parties were living together as husband and wife, there was no authority stating that the court had jurisdiction in respect of violence committed after the parties had ceased to live together, although Donaldson MR in Duo v Osborne18 and Pidduck v Molloy19 suggested that s 2 be extended to include former spouses and former cohabitants. In essence, this is what the Court of Appeal did in McCann, by protecting the victim against __________________________________________________________________________________________________________________________________________

12 13 14 15 16 17 18 19

Official Report (HC), Standing Committee F, 30 June 1976, col 5, Jo Richardson MP. [1980] 1 WLR 1535. Cf McLean v Burke [1982] 3 FLR 70; O’Neill v Williams [1984] FLR 1. [1988] 2 FLR 339. [1995] FLR 579. See above, n 14. [1992] 2 FLR 425. [1992] 2 FLR 202. 36

Civil Protection before 1997 violence committed by her ex-cohabitant after they had ceased to live together. Furthermore, the court imposed an exclusion zone on the defendant to exclude him from an area where her mother’s house was situated. The section has caused other difficulties. Despite the dicta of Donaldson MR above, it does not appear to protect the victim who is divorced from her assailant and no longer living with him. Cumming-Bruce J in White v White20 said: ‘I think it unlikely that after decree absolute a situation of such urgency should arise between the parties ... which made it necessary to contemplate the use of a power of arrest annexed to an injunction, pursuant to the 1976 Act.’ Furthermore, given that to invoke protection a couple have to be ‘living together as man and wife’, it does not protect victims in other forms of domestic relationships such as those merely sharing living accommodation as friends or family, or those living in homosexual or lesbian relationships. This is because the section is interpreted literally. Thus although cohabitees had statutory protection for the first time, many other victims are excluded from the provisions of the DVMPA 1976 and are forced to rely on the criminal law or on remedies in tort. Children are also protected under the DVMPA 1976. Section 1(b) allows the court to restrain the respondent from molesting a child who is living with the applicant. The interpretation placed on the word ‘molest’ is discussed below. Although the definition of child includes anyone below the age of 18, the requirement that the child has to be living with the applicant restricts the courts’ protection, and thus if the child has only stayed with the applicant on a temporary basis it is doubtful whether the court can issue an injunction for the child’s benefit. It is also doubtful whether the court can protect a person who is over the age of 18 but who is a child in relation to the applicant or respondent in the sense that he or she is the son or daughter of the party.

2 The Domestic Proceedings and Magistrates’ Courts Act 1978 The position in relation to applicants under the DPMCA 1978 is even more restrictive. The DPMCA 1978 only applies to spouses (s 16) and gives no protection to couples living outside of marriage, thus excluding cohabitees, family members or divorced couples. While children can be protected, s 16(2)(b) only gives a remedy in respect of a ‘child of the family’. Section 88(1) defines that phrase as comprising a child of both of the parties to the marriage or any other child who is treated by both parties as a child of the family, other than a foster child placed with them by the local authority or a voluntary organisation. This is a much more restrictive provision than the equivalent __________________________________________________________________________________________________________________________________________

20 [1983] Fam 54 at 63. 37

Domestic Violence ‘child living with the applicant’ under the DPMCA 1976, for although it protects children of the parties, stepchildren and those children that the parties have privately fostered, it does not protect any other child who is living with the applicant and who is the victim of harassment or violence at the hands of the respondent.

3 The Matrimonial Homes Act 1983 The introduction of the Matrimonial Homes Act (MHA) 1983 into the arena of domestic violence by the House of Lords in Richards, although giving further statutory support to victims, again only applies to those with a matrimonial home defined in its strictest sense, ie married couples. Furthermore, the Act only applies if both spouses are entitled to occupy the home by virtue of a legal estate vested in them jointly or by virtue of a contract or enactment, or if one spouse has a statutory right to occupy the matrimonial home by virtue of s 1(1). The MHA 1983 was designed to deal with the occupation rights of the parties rather than with their physical protection, and as such does not allow the court to do other than declare, enforce, prohibit or suspend the operation of those rights vis-à-vis the spouses (ss 1(2), 1(9) and 9). The operation of the existing legislation was the subject of the Leicestershire study.21 The aim of the project was an investigation into the use of domestic violence legislation and an identification of the type of applicant, the characteristics and nature of cases involving allegations of domestic violence and the remedies obtained. The research into the operation of the courts was conducted over a six-month period and by necessity concentrated on county court jurisdiction, as in the particular region where the research was conducted, applications in the magistrates’ court were virtually nonexistent (one application in the 12 months prior to the research period). Such a discovery supports earlier research by the London Strategic Policy Unit22 that solicitors prefer the jurisdiction of the county court, despite the fact that the magistrates’ courts are generally speedier, cheaper and can grant additional orders such as maintenance. Both the research conducted by the London Strategic Policy Unit and that of Parker in 198523 suggest that this is because solicitors have more confidence in county court judges and that there is a feeling that magistrates, being involved in criminal cases, require a higher standard of proof. Murch et al24 found that solicitors frequently favoured the __________________________________________________________________________________________________________________________________________

21 Jones, Lockton, Ward and Kashefi, ‘Domestic violence applications: an empirical study of one court’ (1995) Journal of Social Welfare and Family Law 17(1) 67–86. 22 London Strategic Policy Unit, Police Response to Domestic Violence (1986), Police Monitoring and Research Unit Briefing Paper 1. 23 Parker, ‘The legal background’ in Pahl (ed) Private Violence and Public Policy (1985), London: Routledge and Kegan Paul. 24 Murch et al, The Overlapping Family Jurisdictions of the Magistrates’ Courts and County Courts (1987) Bristol: Sociological Centre for Family Studies, University of Bristol. 38

Civil Protection before 1997 magistrates for personal protection orders when speed was the important factor. Our regional survey, however, did not show this. Furthermore, Home Office statistics reveal a decline in applications under the DPMCA 1978 since a peak of 8,700 in 1984, in that there were 1,642 applications under that Act in 1993 compared with 20,462 applications under the DVMPA 1976. One aspect of the research was an analysis of the circumstances of the applicants who applied to the court. During the six-month study there were 283 cases involving different applicants. These cases were further classified by reference to the jurisdiction of the court into family, civil and domestic cases. Family jurisdiction identified those cases where a remedy in respect of domestic violence was sought as part of divorce or judicial separation proceedings. Civil jurisdiction identified cases where a remedy was sought based on the court’s jurisdiction in tort (the research being conducted prior to the decision in Khorasandjian v Bush), and domestic jurisdiction identified those applicants using the provisions of the DVMPA 1976. During the research period the majority of the applicants seeking a remedy were women (97.5% in family cases, 98% in both civil and domestic cases). Of 283 applicants, 119 used the family jurisdiction, 42 used the civil jurisdiction and 122 used the DVMPA 1976. Of those invoking statutory protection, 32 (26%) were spouses. This means that of all the applicants in the study, 151 were married to the perpetrator of the violence and yet only 21.19% chose to use the jurisdiction of the court under the DVMPA 1976, while the rest (78.81%) relied on the court’s ancillary jurisdiction in matrimonial proceedings. There may be explanations for this choice of jurisdiction which the research did not reveal – for example, the applications in the family jurisdiction may have been the last of a series of applications, those previous applications having been made under the DVMPA 1976; the applicant may have decided to divorce the perpetrator because of the violence and had not felt in need of protection until the proceedings; the particular court in the study was unsure of its jurisdiction in relation to spouses under the DVMPA 1976 since the decision in Richards. What the research does indicate, however, is that in 1991 the DVMPA 1976 was not being used extensively by those parties it was specifically enacted to protect. This supports the comment by Lord Salmon in Davis v Johnson 25 that the Act was ‘hurried through Parliament to provide urgently needed first aid for “battered wives”’. Less speed might have produced more adequate protection. Analysis of the rest of the applicants reveals that 59.5% in the civil jurisdiction and 50% in the domestic jurisdiction were former cohabitants. This represented 86 (30.39%) of all applicants during the research period. While a large number of these applicants used the DVMPA 1976, 61 (21.07%) were outside the protection of the statute and were forced to rely on the __________________________________________________________________________________________________________________________________________

25 [1979] AC 264, at 340. 39

Domestic Violence court’s tort jurisdiction. The Law Commission (reporting prior to the recent cases discussed above) in its Working Paper No 11326 said of actions in tort: This is not wholly appropriate in the context of domestic violence because the main object of the tort system is financial compensation and in most cases this will either not be available or will reduce the resources otherwise used to maintain the family.

The statistics from the research indicate that the problems of interpreting s 1(2) of the DVMPA 1976 forced victims to use a jurisdiction recognised by the Law Commission in 1989 as totally inappropriate. This is particularly significant when looking at the numbers of cohabitees who used the legislation. Only 23 (19%) of all applicants using the DVMPA 1976 were living with the perpetrator at the time of application, providing strong evidence that in a large number of cases the victim leaves the family home to escape the violence. The consequences of such a move on the legal remedies available have already been noted. Of the remaining applicants using the civil and domestic jurisdiction in the research period, seven (4.27%) were former spouses, four using the civil jurisdiction and three using the domestic jurisdiction, and 12 (6.10%) were former sexual partners who had never cohabited. These 12 used the civil jurisdiction only. The relationship to the respondent was not known in one case in the civil jurisdiction (2.4%) and three cases in the domestic jurisdiction (2.5%). The number of applicants in the research study (283) were taken over a six-month period. Statistics taken from the later research conducted with the police force in the same area, however, indicate that this is only the tip of the iceberg in relation to the number of victims of domestic violence. In 1994, the police recorded 4,467 incidents of domestic violence. This had risen to 4,943 reported incidents during 1995, an increase of 10.7%.27 It will be seen in Chapter 5 that the definition of domestic violence in the policy of Leicestershire police force which participated in the research is much wider than existing or former sexual partners, and the vast difference between the figures of the court applicants and domestic violence incidents involving the police highlights the fact that many victims are excluded from or choose not to seek the protection of the court. It could be hazarded that in some cases this is probably because the victim has no locus to apply for court protection.

__________________________________________________________________________________________________________________________________________

26 Domestic Violence and Occupation of the Family Home (1989), London: HMSO, para 2.9. 27 Leicestershire Police Constabulary, Domestic Violence Annual Report 1995/6. 40

Civil Protection before 1997

REMEDIES In Richards Lord Scarman observed: The statutory provision is a hotchpot of enactments of limited scope passed into law to meet specific situations or to strengthen the powers of specified courts. The sooner the range, scope and effect of these powers are rationalised into a coherent and comprehensive body of statute law, the better.28

It has already been noted that different applicants obtain protection under different pieces of legislation, and that those who do not fall within the restricted statutory definitions can only rely on the jurisdiction in tort. However, in addition to each piece of legislation protecting different classes of victim, the remedies available under the different statutes and the circumstances in which those remedies can be granted differ widely, depending upon which statute is invoked.

1 Non-molestation and exclusion, Domestic Violence and Matrimonial Proceedings Act 1976 Under s 1 of the DVMPA 1976 the court has the power to grant an injunction containing one or more of the following provisions: (a) restraining the other party from molesting the applicant; (b) restraining the other party from molesting a child living with the applicant; (c) excluding the other party from any part of the matrimonial home or from a specified area in which the matrimonial home is situated; (d) requiring the other party to permit the applicant to enter and remain in the matrimonial home.

Molestation is given a wide interpretation. In Johnson v Walton29 it was held that there must be an intention to cause distress or harm, but once intention is established, various decisions have held that the word includes pestering, annoying, following around and any other form of harassment.30 Barron,31 however, notes that injunctions are rarely granted in practice without evidence of physical violence. The power to exclude the other party is wide, allowing the court to exclude from part of the home, or to grant total exclusion, including from an area in which the matrimonial home is situated. Given that exclusion orders are intended to provide a short-term remedy and allow the applicant time to find alternative accommodation or commence __________________________________________________________________________________________________________________________________________

28 29 30 31

[1984] 2 All ER 807 at 818. [1990] 1 FLR 350. Cf George v George [1986] 2 FLR 347; Horner v Horner [1982] 2 All ER 495. Barron, Not Worth the Paper (1990), Women’s Aid Federation, England. 41

Domestic Violence other proceedings,32 a Practice Note of 197833 states that a court should normally impose a time limit of three months on its operation, although persistent breach of the injunction allows a court to grant it for an indefinite period.34 Judicial statistics, however, reveal that in practice, exclusion orders are granted infrequently. In 1994 there were 25,034 applications under the DVMPA 1976. Of these, 24,566 non-molestation orders were granted and 3,946 exclusion orders.35 Again, although it would appear that the powers under the DVMPA 1976 are wide, the reality is different. The DVMPA 1976 does not mention physical violence and thus gives the court power to grant an injunction where the applicant has suffered psychological violence only. Although Lord Scarman said obiter in Richards that he felt physical violence must have taken place before an exclusion order could be granted, Lord Justice Purchas in Galan v Galan36 said this was not necessary, although there has to be a real threat of violence or disturbance. Barron,37 has already noted the reluctance of judges to grant an injunction where there has been no violence. There are further problems in relation to exclusion orders. Although an exclusion order removes the perpetrator from the home, it has already been seen that the 1978 Practice Note said that normally this should only be for three months. While this may appear to be a long time, in reality it does not give the applicant a great deal of time to find alternative accommodation. Furthermore, while the court can exclude the respondent from an area in which the home is situated, it cannot protect the applicant in relation to her place of work etc, unless it happens to be close to the former matrimonial home, nor can it exclude from the applicant’s new home if she has left the matrimonial abode, thus limiting the effect of any non-molestation order. In addition, the orders only remove the respondent and prevent molestation. The orders cannot require the respondent to leave the home habitable for the applicant, and therefore there is the risk that if the applicant moves back into the home, it will be devoid of furniture and cooking facilities, although academic opinion suggests that removal of such items would amount to molestation of the applicant.38 Powers are also limited in respect of the unmarried applicant who is not a joint tenant or joint mortgagor, in that the court cannot order the landlord or mortgagee to accept payment from the occupant, thus putting the applicant at risk of eviction should the respondent _________________________________________________________________________________________________________________________________________

32 33 34 35 36 37 38

Op cit. [1978] 2 All ER 1056. Spencer v Camacho [1983] 4 FLR 662. Judicial Statistics 1981–94. [1985] FLR 905. Op cit. Bromley, Family Law (1992), 8th edn, London: Butterworths, p 167. 42

Civil Protection before 1997 withhold payment of the rent or mortgage. In addition, although the Act itself lays down no criteria that the court should consider before making the exclusion order, Lords Brandon, Diplock and Bridge stated in Richards that the criteria which should be considered when suspending occupation rights under the MHA 1983 should also be considered when excluding under the DVMPA 1976. In other words, judges issuing such orders under the DVMPA 1976 have to consider the criteria listed in s 1(3) of the MHA 1983, namely the parties’ conduct, the parties’ needs and financial resources, the children’s’ needs and all the circumstances of the case. As such, judges exercising their discretion under the DVMPA 1976 have had that discretion restricted. It can be seen, therefore, that the House of Lords’ decision in Richards amounted to a restriction on the powers of the county court in the operation of the DVMPA 1976. The judgment in its entirety has attracted much criticism.39 These criticisms have been reiterated and expanded in the Law Commissions’ Working Paper on Domestic Violence and the Occupation of the Matrimonial Home.40 In particular, the Working Paper criticised the application of the MHA 1983 criteria to exclusions under the DVMPA 1976, arguing that such application failed to take into account the different situations in which exclusion may be sought and that the criteria, which were originally enacted in 1967, did not take into account the very significant developments which had taken place since then and thus failed to give adequate protection against violence because conduct had to be weighed against other factors. As such the criteria did not recognise that priority should be given to protecting the victim rather than preventing hardship to the respondent.41 In addition the ratio of Richards, that the interests of the children are one factor to be considered rather the the predominant factor, means that there is a risk that children’s’ welfare will not be considered and goes against the general trend of the law to give first consideration to the welfare of any children under the age of 18 (s 25(1) of the Matrimonial Causes Act (MCA) 1973 as amended by s 3 of the Matrimonial and Family Proceedings Act 1984). The Working Paper raised two other criticisms against the application of the MHA 1973 criteria to applications under the DVMPA 1976. If an ouster injunction is sought during marital breakdown where divorce proceedings have already begun, then the judge is required to make a decision on the conduct of the respondent which may have been the basis of the petition under s 1(2)(b) of the MCA. Thus the judge is making findings of fact for one purpose in advance of the hearing of the same issue for another purpose. This type of situation invariably impedes any chance of reconciliation the parties may have as it leads to protracted battles in relation to allegations of _________________________________________________________________________________________________________________________________________

39 Cf, Eekalaar, ‘The emergence of children’s rights’ (1986) 6 Oxford Journal of Legal Studies 161. 40 (1992) No 207, London: HMSO. 41 Parker, op cit. 43

Domestic Violence behaviour. This was commented upon by Stamp LJ in Parris v Parris,42 who stated that he deplored the use of hearings to exclude as a pre-trial battle on the allegations of behaviour which would be raised in the divorce hearing. Finally, the Working Paper found that the MHA 1983 criteria are not easily applicable to cohabitants. The criteria, for example, do not direct a court to consider the relative property rights of the parties. Whereas under the MHA 1983 the court can adjust those rights where the parties are married, and the court has the power under the MCA 1973 on judicial separation or divorce to adjust property rights, neither statute applies to cohabitees. Whatever the advantages or disadvantages of the remedies under the DVMPA 1976, a discussion would not be complete without some analysis of the remedies actually applied for and granted under the jurisdiction. In the Leicestershire study, a detailed analysis was undertaken of the remedies applied for and obtained across the three jurisdictions. In relation to applications under the DVMPA 1976, 46.4% (51) of applicants applied for nonmolestation plus ouster plus exclusion orders, 44.5% (49) applied for nonmolestation plus exclusion and 8.2% (9) applied for non-molestation only. Of those who applied for three orders, only 33% (17) obtained them, leaving 77% of applicants with a mixture of orders and undertakings, the next highest number of successful applicants obtaining non-molestation and exclusion orders, 17% (9) and 14% (7) obtaining a non-molestation order only. What is perhaps of concern is that of those who applied for three orders, 31.4% (16) obtained undertakings or a mixture of orders and undertakings. Powers of arrest cannot be attached to undertakings, thus rendering enforcement difficult. Where the applications were for a non-molestation order and exclusion order, however, the success rate was much higher, with 61% (30) of applicants obtaining both orders, 10% (5) obtaining a non-molestation order only and the remainder obtaining a mixture of orders and undertakings. This still left 28.6% (14) with a non-molestation undertaking, again with no possibility of a power of arrest. Of those who applied for a non-molestation order only, 67% (6) were successful, the remaining 33% (3) obtaining undertakings.

2 Personal protection orders and ouster orders under the Domestic Proceedings and Magistrates’ Courts Act 1978 Under s 16(2) of the DPMCA 1978, the magistrates’ court has the power to issue the following: (a) an order that the respondent shall not use, or threaten to use, violence against the person of the applicant; __________________________________________________________________________________________________________________________________________

42 [1974] Fam Law 77. 44

Civil Protection before 1997 (b) an order that the respondent shall not use, or threaten to use, violence against the person of a child of the family.

Under subsection (3): Where on an application for an order under this section the court is satisfied: (a) that the respondent has used violence against the person of the applicant or a child of the family; or (b) that the respondent has threatened to use violence against the person of the applicant or a child of the family and has used violence against some other person; or (c) that the respondent has in contravention of an order made under subsection 2 above threatened to use violence against the person of the applicant or a child of the family, and that the applicant or a child of the family is in danger of being physically injured by the respondent (or would be in such danger if the applicant or child were to enter the matrimonial home) the court may make one or both of the following orders, that is to say: (1) an order requiring the respondent to leave the matrimonial home; (2) an order prohibiting the respondent from entering the matrimonial home.

A comparison with the powers which the county courts possess under the DVMPA 1976 shows that the powers under the DPMCA 1978 are limited in three respects. Firstly, even if the magistrates are convinced that the applicant is in danger, they have no jurisdiction to issue an order if the respondent has not used or threatened violence against the applicant or child. Secondly, given the wording of the section that the order must prohibit violence against the person of the applicant or child, no order can be granted to protect against psychological violence or other forms of molestation, including violence against property. Thirdly, as has already been noted, the class of parties protected is much more restricted and the section only applies to married couples and children of the family.

ENFORCEMENT OF ORDERS In addition to normal contempt powers, enforcement of injunctions issued under the DVMPA 1976 is provided by the power in s 2. This allows a judge to attach a power of arrest to an injunction where the respondent has caused actual bodily harm to the applicant or child concerned and the court considers that he is likely to do so again. The power of arrest allows a constable to arrest if he has reasonable cause to suspect that the respondent is in breach of any of the provisions of the injunction. By s 18(1) magistrates can also attach powers of arrest to orders granted by s 16 if they are satisfied that the respondent has physically injured the applicant or child. To this extent the powers of the magistrates could be said 45

Domestic Violence to be wider than those of the county court, which can only attach such a power where the respondent has caused actual bodily harm to the applicant or child. R v Miller 43 held that physical injury included psychological conditions as well as bruises, lacerations and other injuries. In the case of both the DVMPA 1976 and the DPMCA 1978 the power of arrest is seen as exceptional rather than routine, and thus a Practice Note issued in 198144 states that a three-month time limit should normally be imposed on its operation, although in McCann v Wright a power of arrest was issued for 12 months. Much criticism has been levelled at the power of arrest contained in s 2 of the DVMPA 1976. It has already been noted that a power can only be granted where there has been actual bodily harm and there is a risk of further violence, although the Court of Appeal in Kendrick v Kendrick45 stated that this would be satisfied if the applicant had suffered injury to her state of mind, as long as there was evidence that the applicant had suffered a real change in her psychological condition. Such a power, however, can only be attached to an injunction restraining the respondent from using violence, or an exclusion order. As such, it cannot not be attached to an order restraining the respondent from molesting the applicant generally if the order does not restrain him from using violence, nor can it be attached to an undertaking given by the respondent. Moreover, under both the DVMPA 1976 and the DPMCA 1978, even if a power of arrest is granted, it gives the police a discretion to arrest for a suspicion of a breach of the order’s provisions. It is not mandatory that arrest takes place. It is within the authors’ experience that the misjudgment of a constable in not arresting has led to the murder of an applicant by a respondent. The Working Paper raised further criticisms on the application of the powers of arrest in the county and magistrates’ courts. It noted (paras 5.12, 5.13) that there was a significant difference between the two main Acts’ powers to remand the respondent after his appearance in court following arrest. If arrested under the DVMPA 1976 the judge cannot remand the respondent, but if arrested under the DPMCA 1978 the court can remand in custody or on bail under the Magistrates’ Courts Act 1980. The Working Paper (para 5.14) also noted that powers of arrest are issued in a relatively small number of cases, despite the fact that the Select Committee had strongly argued that injunctions could not be properly enforced unless the police had the power of arrest46 and despite the fact that there is some evidence from the

__________________________________________________________________________________________________________________________________________

43 44 45 46

[1954] 2 QB 282. Practice Note (Domestic Violence: Powers of Arrest) [1981] 1 WLR 27. [1990] 2 FLR 107. Op cit, vol 1, para 45. 46

Civil Protection before 1997 USA and Canada that arrest in domestic violence cases often prevents reoffending.47 The Leicestershire study examined success rates of applications for powers of arrest under the DVMPA 1976. Of the 49 applicants who applied to have such a power attached, 57.1% were successful, although there was a greater success rate when the application was made ex parte (67.7% of all the applications as opposed to 20% where the application was made on notice). In relation to jurisdiction under the MHA 1983, failure to comply with an order can lead to a committal for default, but the court has no specific jurisdiction to attach a power of arrest and the power to attach such a power to injunctions under the DVMPA 1976 does not apply to actions under the MHA 1983 which result in orders (see the Working Paper para 5.9). A power of arrest can, however, be attached to an injunction issued in other family proceedings, for example divorce or judicial separation. Our research showed that there was a relatively high success rate of applications for powers of arrest in the family jurisdiction of the court. Of the 32 applications made, 53.1% were successful, although again the highest success rate was for those applications made ex parte (83.3% of the total applications for such powers in the family jurisdiction). This figure dropped to 22.2% when the application was made on notice.

ADEQUATE PROTECTION? It can be seen from the discussion above that the existing law has moved some way in giving protection to victims of domestic violence but that there is an incoherence between the different pieces of legislation. The DVMPA 1976 was probably the most far-reaching given that it protects both married and unmarried partners, but problems of interpretation and the Richards decision has meant that its operation has become restricted. The DPMCA 1978 has always been restricted in its application and, as evidenced by the authors in their own research, has almost fallen into disuse in some regions. Ancillary jurisdiction in family proceedings allows the court to protect the married victim and attach powers of arrest, but this means that the victim has to take such proceedings, to many a drastic measure to obtain respite from violence. The MHA 1983, while allowing a court to suspend, etc, occupation rights does not allow adequate enforcement of the order, and the introduction by Richards of the criteria in s 1(3) to cases of exclusion under the DVMPA 1976 is seen as

__________________________________________________________________________________________________________________________________________

47 Torgbor, ‘Police intervention in domestic violence – a comparative view’ [1989] Fam Law 195. For an alternative view see Buzawa and Buzawa, Do Arrest and Restraining Orders Work? (1996), Thousand Oaks, CA: Sage Publications. 47

Domestic Violence an undue restriction on the discretion of the county courts and inappropriate, particularly in its application to cohabitants. In short, the present protection for victims of domestic violence is indeed a ‘hotchpot’ which very few victims understand and which is susceptible to failing in its very aim of providing a remedy to battered women.

48

CHAPTER 4

PROTECTION AFTER 1997

INTRODUCTION In 1995 the government introduced the ill-fated Family Homes and Domestic Violence Bill. The original Bill was intended to replace the ‘hotchpot of enactments of limited scope’1 with a single enactment providing remedies available in the High Court, county court and magistrates’ court. The Bill sought to remedy some of the perceived defects in the existing legislation noted in Chapter 3, but political opposition and a campaign led by the Daily Mail led to the Bill’s withdrawal. In 1996, the government introduced the Family Law Bill. This Bill was more far-reaching than its predecessor. The long title states: An Act to make provision with respect to: divorce and separation; legal aid in connection with mediation in disputes relating to family matters; proceedings in cases where marriages have broken down; rights of occupation of certain domestic premises; prevention of molestation; the inclusion in certain orders under the Children Act 1989 of provisions about the occupation of a dwelling house; the transfer of tenancies between spouses and persons who have lived together as husband and wife; and for connected purposes.

Thus the Family Law Act (FLA) 1996, which received Royal Assent on 4 July 1996, attempts to deal with a whole range of family matters, one of which is protection for the victims of domestic violence. The provisions are intended to come into force in October 1997. The provisions relating to domestic violence are contained in Part IV of the FLA 1996, which is entitled Family Homes and Domestic Violence. Sections 30–32 re-enact, to a large extent, the provisions of the Matrimonial Homes Act (MHA) 1983, the rest of Part IV providing specifically for victims of domestic violence. The FLA 1996 provides two remedies – the occupation order2 and the nonmolestation order.3 While jurisdiction rests in a variety of courts, magistrates’ courts cannot make an occupation order where there is a dispute between the parties as to entitlement to occupy by virtue of a beneficial estate, interest, contract or enactment giving the right of occupation, unless it is unnecessary _______________________________________________________________________________________________________ ___________________________________

1 2 3

Per Lord Scarman, Richards v Richards [1984] 2 All ER 807, at 818. Sections 33–41. Section 42. 49

Domestic Violence to determine the question of occupation rights to deal with the application or make the order.4 Murphy5 argues that magistrates should not be entitled to make such significant orders, whether occupation rights are disputed or not. He notes that the Law Commission6 took the view that, ‘though there was a danger involved, it should nonetheless be sacrificed to the greater good of “promoting the general objective of developing a unified family jurisdiction”’.7 He states, however, that the Commission gave undue weight to the fact that magistrates had similar powers under the Domestic Proceedings and Magistrates’ Courts Act (DPMCA) 19788 and points out that the power of the magistrates to oust a perpetrator was restricted to situations where there was violence, or a threat of such and violence to another, or where the respondent had broken a personal protection order (see Chapter 3). The power is much less restricted under the FLA 1996. Sections 33–41 state who can apply for an occupation order and the provisions that can be contained therein. Such an order regulates the occupation rights of the applicant and respondent. In contrast to the pre-1997 law, the class of potential applicants for such orders is much wider, and further the court has the power to include provisions within the order in relation to maintenance, outgoings, contents etc. By s 42, a non-molestation order is an order containing one or both of the following provisions: prohibiting the respondent from molesting a person associated with him, or prohibiting the respondent from molesting a relevant child. Schedule 6 of the FLA 1996 provides important amendments to the Children Act 1989, allowing the court to exclude the respondent from the home where the child resides or an area in which that home is situated, when making an emergency protection or interim care order.

THE APPLICANTS 1 Applicants for occupation orders The class of applicant who can apply for occupation orders and nonmolestation orders differ. In relation to occupation orders, applicants are restricted to entitled persons where the respondent is an associated person, former spouses, cohabitants or former cohabitants. _______________________________________________________________________________________________________ ___________________________________

4 5 6 7

Section 59(1). ‘Domestic violence: the new law’ (1996) MLR (59:6) 845. Domestic Violence and Occupation of the Family Home (1992) Law Com No 207, London: HMSO, para 5.4. At p 846. 50

Protection after 1997 It will be noted that the FLA 1996 introduces new terminology. An entitled person is one who has a right to occupy. By analogy an non-entitled person has no such right. The original 1995 Bill contained the same distinctions. These followed the recommendations of the Law Commission which felt that the purpose of an occupation order where the applicant has no right to occupy is short-term protection, in contrast to an order where the applicant has such a right, where the order often establishes the occupation of the matrimonial home on a longer-term basis.9 The original Bill, however, caused a furore of criticism from its opponents because it did not distinguish between married and unmarried non-entitled applicants and allowed unmarried non-entitled applicants to exclude an entitled respondent from his home. The fact that this was the position under the Domestic Violence and Matrimonial Proceedings Act (DVMPA) 1976, as confirmed in Davis v Johnson10 did nothing to appease the criticism, and the original Bill was withdrawn. Its 1996 successor, therefore, divides non-entitled applicants into former spouses, cohabitants and former cohabitants, the court having regard to different criteria where the parties have cohabited and never married. It could be questioned, however, given that the purpose of Part IV of the FLA 1996 is protection for victims of domestic violence, whether the marital status of the applicant should be a consideration. An entitled person under s 33(1)(a) is a person who has a right to occupy by virtue of a beneficial estate, interest, contract or enactment giving a right to occupy or a person who has matrimonial home rights in relation to a dwelling house. Matrimonial home rights replace the old rights of occupation under the MHA 1967 and 1983. The concept is found in s 30 which provides that where one spouse is entitled to occupy a dwelling house by virtue of a beneficial estate, interest, contract or enactment giving rights of occupation, and the other spouse is not so entitled, the spouse not so entitled has a right to remain in occupation or a right to enter and occupy a dwelling house which was or was intended to be the matrimonial home. It will be seen that these rights are the same as under the old law, in that they can only be acquired by spouses. There is, however, one important amendment. The court will be able to grant matrimonial home rights in relation to a house which was intended to be the couple’s home. Where the applicant is an entitled person, an occupation order can be made against a respondent who is a person associated with the applicant in respect of a dwelling house which is or was intended to be their home.11 Thus the FLA 1996 introduces a further new concept, that of the associated person. Such a concept is fundamental to this part of the FLA 1996, not only in relation to occupation orders for entitled applicants, but also in relation to nonmolestation orders discussed below. _______________________________________________________________________________________________________ ___________________________________

9 Para 4.7. 10 [1979] AC 264. 51

Domestic Violence The definition of associated persons is found in s 62(3) which provides that persons are associated if: (a) they are or have been married to each other; (b) they are cohabitants or former cohabitants; (c) they live or have lived in the same household, otherwise than merely by reason of one of them being the other’s employee, lodger or boarder; (d) they are relatives; (e) they have agreed to marry each other (whether or not that agreement has been terminated); (f) in relation to any child they are both persons who are parents of that child or they have or have had parental responsibility for that child; (g) they are parties to the same family proceedings.

Furthermore, by s 62(5) where a child has been adopted or freed for adoption, two persons are associated with each other if one is the natural parent or grandparent and the other is the child or any person who has adopted the child or has applied for an adoption order, or with whom the child has been placed for adoption. Cohabitants are defined as ‘a man and a woman who, although not married to each other, are living together as husband and wife’. 12 The definition of former cohabitants is construed accordingly, but does not include those cohabitants who have subsequently married each other.13 The inclusion of former spouses as applicants is to be welcomed, as their exclusion from the present legislation is a serious omission and fails to recognise that a divorced victim may be as much in need of protection as a married victim, particularly if the violence was the reason for the divorce. Likewise, the inclusion of former cohabitants will prevent the somewhat tortuous interpretation given to the phrase ‘are living together’ under the existing statutory provisions and commented upon in Chapter 3. Section 62(3)(c) considerably widens the class of applicants and to some extent adopts the recommendations of the Law Commission that persons in a relationship akin to a family relationship should also be protected. The intention is to extend the class of applicant to those sharing a household, but who are not within a relationship which is similar to that of husband and wife. In relation to the term ‘household’ the Law Commission said:14 The crucial test is the degree of community of life which goes on. If the parties shut themselves up in separate rooms and cease to have anything to do with each other, they live in separate households. But if they share domestic chores

_______________________________________________________________________________________________________ ___________________________________

12 Section 62(1)(a). 13 Section 62(1)(b). 14 Para 3.21. 52

Protection after 1997 and shopping, eat meals together or share the same living room, they are living in the same household, however strained their relations may be.

Relative is defined by s 63(1): (a) the father, mother, stepfather, stepmother, son, daughter, stepson, stepdaughter, grandmother, grandfather, grandson or granddaughter of that person or of that person’s spouse or former spouse; or (b) the brother, sister, uncle, aunt, niece, nephew (whether of the full blood or of the half blood or by affinity) of that person or of that person’s spouse or former spouse.

Again this definition is to be welcomed and will protect victims of violence who, until the passing of the FLA 1996, had to rely on the previous restricted tort jurisdiction.15 Section 62(3)(e) also introduces a new class of applicant in the shape of couples who are engaged or have been engaged. The limitations of these definitions, however, are also apparent. First, given the definition of cohabitant in s 62(1)(a), a victim of violence living in a lesbian or homosexual relationship will only be protected by an occupation order if he or she has an entitlement to occupy the dwelling house where they live.16 The wording of the rest of the provisions allowing a court to grant an occupation order is couched in the terms of spouse, former spouse, cohabitant and former cohabitant17 and thus by the restrictive definition in s 62 will exclude the homosexual victim who has no right to occupy. This particular restriction seems absurd, given that the same victim will be able to apply for a non-molestation order discussed below. As Murphy notes18 in respect of ss 35–38: the right to apply derives from a former affective bond between the applicant and the respondent rather than – in the case of s 33 – a proprietary interest. But the applicant from a same-sex relationship will also have enjoyed an affective bond with the respondent. Furthermore, even beyond this similarity, it is just as likely that a homosexual couple shared other responsibilities – such as the payment of bills. Why then does the Act draw such a cruel distinction and afford appreciably less protection to homosexuals?

Second, the definition of cohabitants in s 62(1)(a) does not avoid the problems of the present legislation in that the definition talks of a couple ‘living together as man and wife’. Should the courts adopt the broad view taken of the present provisions in Adeoso v Adeoso19 this adoption of the present definition will at least protect those heterosexual couples who share accommodation but who would, for the purposes of divorce, be considered to be living apart under _______________________________________________________________________________________________________ ___________________________________

15 16 17 18

Cf Patel v Patel [1988] 2 FLR 179 and Chapter 3, above. Section 33. Sections 33–38. Op cit, p 852. 53

Domestic Violence s 2(6) of the Matrimonial Causes Act 1973. The definition still, however, fails to protect those living in the same household (other than children under the age of 18) who have no rights of occupation and who have never had a sexual relationship with the respondent, by not allowing those persons the more effective (some would argue) protection of removing the perpetrator of the violence. Third, the same is true of relatives, in that the applicant must have an entitlement to occupy to apply for an occupation order. Thus the parents living in the home of their child and spouse or partner will still have no protection in the form of excluding the perpetrator of violence if they have no entitlement to occupy that home. These provisions, therefore, seem to put property rights before the protection of victims from violence. Fourth, while the FLA 1996 protects couples who are or have been engaged, the limitations within the Act are apparent. Such applicants, as in the cases above, must have an entitlement to occupy before they can apply. If, however, the applicant has never lived in the property with the respondent, and so cannot come within the provisions of s 62(3)(b) or (c) she will have to show an agreement to marry. By s 44 this means evidence in writing of the existence of an agreement to marry, the gift of an engagement ring, or a ceremony entered into by the parties in the presence of witnesses. It is suggested that these restrictions are fraught with problems. What will be sufficient to constitute evidence in writing has yet to be seen. Whether letters referring to the engagement, newspaper announcements, wedding invitations will be sufficient will be a matter of interpretation for the court. The second form of evidence, the ring, will, it is suggested, also cause problems, in that the ring may no longer exist or there may be a dispute as to the meaning of the giving of the ring, or the parties could not afford a ring. The final evidence is, it is suggested, highly unusual, as it denotes a formal ceremony in front of witnesses (and thus presumably excluding an engagement party) of a sort uncommon in this country. Furthermore, the definition is much more restrictive than the recommendation of the Law Commission which recommended that among those protected should be: [P]eople who have been boyfriend and girlfriend in a romantic relationship ... we envisage that there would be some degree of mutuality and some participation in consensual sexual activity, although not necessarily amounting to sexual intercourse.20

By not adopting the Law Commission recommendation, the FLA 1996 is excluding from protection those victims of violence who have never shared a common household with the perpetrator and have never agreed to marry – the typical boyfriend/girlfriend relationship. Evidence suggests that this will exclude a not inconsiderable number of domestic violence victims. Buchan _______________________________________________________________________________________________________ ___________________________________

20 Para 3.24. 54

Protection after 1997 and Edwards in a 1991 survey in Streatham21 found that 52% of domestic violence victims fell into the boyfriend/girlfriend category which would not satisfy the definition of associated persons. Fifthly, the protection afforded to children, on the face of it, appears comprehensive, particularly with the amendments to the Children Act 1989 discussed below. Closer examination, however, reveals that the protection may not be adequate in certain cases, as acknowledged by Murphy.22 An abused child will be able to show that she is an associated person by s 62(3)(d), but is unlikely to have rights of occupation by virtue of a beneficial interest etc. Even in the rare cases where the child has such rights, the leave provisions in s 43 may make the granting of an order difficult. There are no criteria in s 43(2) by reference to which the court must exercise its discretion in granting leave. Murphy suggests that there are two conceivable approaches. First, the court may use the criteria listed in s 33 and ss 35–38. Although different criteria apply in those sections, certain of them are common, ie the housing needs and resources of the parties and relevant child, the financial resources of the parties, the likely effect of the order on the health, safety or well-being of the parties or relevant child and the conduct of the parties in relation to each other. Conversely, the court may use the welfare principle in s 1(1) of the Children Act 1989. The problems inherent in this second approach are apparent. The welfare principle only applies when looking at issues relating to the upbringing of a child. Lord Hailsham in Richards v Richards 23 refused to hold that an ouster order was an order relating to the child’s upbringing. Furthermore, in an analogous provision relating to leave applications for s 8 orders under the Children Act 1989,24 it has been held that the welfare principle does not apply.25 Given the number of occasions when a child will have occupation rights, and the problems which could attach to leave applications by such children, it means that generally the responsibility for excluding the abuser to protect the child will fall on an adult or the local authority. The adult will have to obtain an occupation order, and thus fall within the class of applicant for such an order, ie an entitled person, spouse, former spouse, cohabitant or former cohabitant. The local authority will have to apply for the new exclusion provisions when seeking an emergency protection order or an interim care order. In neither case can it be argued that this gives adequate protection to a class of victim who must be more vulnerable than most. _______________________________________________________________________________________________________ ___________________________________

21 Buchan and Edwards, Adult Cautioning for Domestic Violence (1991), Police Requirements Support Unit, Home Office Science and Technology Group. 22 Op cit, pp 850–51. 23 Op cit, p 815. 24 Section 10(8). 25 Re A and W [1992] Fam 182. 55

Domestic Violence Finally, the FLA 1996 does not protect those parties who have entered into a religious ceremony of marriage, the formalities of which are not recognised by English law, who do not then cohabit. Such parties do not fall within the definition of associated persons in s 62, whether there is an entitlement to occupy or otherwise. It will be apparent from the discussion above that the ostensibly wide class of applicant for an occupation order under s 33 is restricted to the applicant who is entitled and who is an associated person in relation to the perpetrator of the violence. The FLA 1996, however, does allow applications from nonentitled applicants, but these are limited to a former spouse with no entitlement to occupy where the other has that right (s 35); a cohabitant or former cohabitant who has no entitlement where the other has such an entitlement (s 36); a spouse or former spouse where neither has an entitlement to occupy (s 37) and a cohabitant or former cohabitant where neither has an entitlement (s 38). Thus the FLA 1996 excludes a wide range of potential applicants because of their lack of property rights. The non-entitled child, homosexual partner, relative or fiancé(e), all in what could be described as a close family relationship with the violent respondent, will be unable to remove the respondent from the home which he alone has the entitlement to occupy. It again appears that protection for the victims of violence has been overshadowed by the protection of property rights.

2 Applicants for non-molestation orders Although the class of potential applicants for occupation orders may be restrictive, the class of applicant who may apply for a non-molestation order is less so. By s 42(1) an order may be made preventing the molestation of a person associated with the respondent or a relevant child. The definition of associated person has been discussed above. The definition of relevant child is given in s 62(2). That section states that a relevant child is: (a) any child who is living with or might reasonably be expected to live with either party to the proceedings; (b) any child in relation to whom an order under the Adoption Act 1976 or the Children Act 1989 is in question in the proceedings; and (c) any other child whose interests the court considers relevant.

The FLA 1996 gives protection to a wide class of children and does not restrict protection to children of the family as the DPMCA 1978 does, preferring the more liberal definition in the DVMPA 1976. The FLA 1996, however, goes further than the 1976 legislation, in that it covers children who might reasonably be expected to live with either party, those to whom an order under the Adoption Act or Children Act is in question and any other child whose interests may be affected. Again, however, closer examination of the FLA 1996 reveals its limitations. 56

Protection after 1997 It has already been noted that, where the child herself wishes to apply, the Act by s 43(1) provides that a child under the age of 16 may not apply for any order without the leave of the court. Given that it is unlikely that a child of that age would be an entitled person, applications by children for occupation orders will be comparatively rare. Section 42, however, has no such restrictions in relation to non-molestation orders and, given that a child is an associated person, it is likely that the courts will hear applications by children for such orders, particularly in the situation where the other parent is reluctant to act on their behalf. The problems relating to the leave requirements in s 43(2) in relation to occupation orders have been discussed. It could be suggested, however, that the problems emanating from Richards and the application of the welfare principle will not arise in relation to leave applications for non-molestation orders, as it could be argued that nonmolestation is an issue relating to the child’s upbringing.26 Whatever criteria the courts adopt, the leave requirement will create delay in granting an order. While s 43 is obviously adopting the analogy of the Children Act in respect of applications for s 8 orders, an application by a child for a non-molestation (or occupation) order under the FLA 1996 is different. A child seeking such orders presumably will be doing so as protection against abuse. While it is accepted that there must be some limitation on actions by children, in reality the provision will create delay in granting protection to a victim who will be particularly vulnerable by virtue of that fact that he or she is a child. Secondly, it has already be noted that the protection for fiancé(e)s is limited if they have never cohabited, given the definition of agreement to marry in s 44. There are further limitations in relation to former fiancé(e)s in that they cease to be eligible to apply for either an occupation or nonmolestation order three years after the termination of the agreement (ss 33(2) and 42(4)). While this will leave the applicant with normal property law remedies in relation to occupation, it starkly leaves the former fiancé(e) with no statutory protection against physical or mental abuse. There is evidence in the case law that molestation can last for years.27 This will leave the victim with a remedy in tort where the abuse is physical, but where the abuse is nonphysical the available remedies are less certain, as seen in Chapter 3. Furthermore, by losing the protection of the statute, the victim also loses the more effective enforcement of a power of arrest (see below). Thirdly, the position of the applicant who has undergone a ceremony of marriage not recognised in English law is equally disadvantaged under the non-molestation provisions as under the occupation order provisions. As already noted, such an applicant would not be an associated person under s 62 and thus would be prohibited from applying for a non-molestation order. _______________________________________________________________________________________________________ ___________________________________

26 Although note Re A and W. 27 Khorasandjian v Bush [1993] 3 All ER 669. 57

Domestic Violence Finally, it does not protect the victim who is being molested by the former spouse or cohabitant of partner, as again the victim and molester are not within the definition of associated persons.

3 Applications by third parties Although the Law Commission recommended that third parties should be able to apply for orders on behalf of victims, such a move was resisted by the government until a last minute opposition amendment which is now s 60. Section 60(1) and (2) provide: (1) Rules of court may provide for a prescribed person, or any person in a prescribed category, (a ‘representative’) to act on behalf of another in relation to proceedings to which this part applies. (2) Rules made under this section may, in particular, authorise a representative to apply for an occupation order or for a non molestation order for which the person on whose behalf the representative is acting could have applied.

The rules may further lay down conditions upon which a representative may make an application to the court and the considerations the court must take into account when determining if and how to exercise its powers. The insertion of this provision is a recognition that the victim of domestic violence often feels unable to act because of the repercussions that action may provoke and is a welcome addition to the available protection. How it will work in practice has yet to be seen. The most obvious third party who could take action on behalf of a victim will be the police, although s 60 allows for parties other than the police to act as representatives. The effectiveness of the rules, however, will depend on the willingness of the police to take on this new role, a willingness which may be questionable28 and, more importantly, on the availability of resources.

THE ORDERS 1 Occupation orders Section 33 – orders where the applicant is entitled or has matrimonial home rights The applicants for s 33 orders are those who are entitled to occupy by virtue of a beneficial estate or interest or contract, or by virtue of any enactment giving the right to occupy, or who have matrimonial home rights. The definition _______________________________________________________________________________________________________ ___________________________________

28 See Chapter 5, below. 58

Protection after 1997 given to matrimonial home rights in s 30 means that where the one spouse is entitled to occupy and the other has no such rights, the spouse without those rights will have matrimonial home rights. Thus s 33 applicants will be those with a right to occupy by virtue of an estate etc and a spouse. The occupation order can only be made in relation to a dwelling house which is or has been their home, or was at any time intended to be their home. This means, therefore, that the problems of the previous legislation, in that there was no protection for a victim in relation to property which had never been, nor was ever intended to be, the matrimonial home, still exist. Thus if a victim flees the violence and moves into other accommodation, the only remedy under the legislation will be a non-molestation order. As noted above, however, the respondent has to be a person associated with the applicant and therefore there is no requirement that the parties are married or are cohabitants. The potential limitations on the definition of associated persons have already been discussed. By s 33(1) the applicant may apply to the court for an order containing any of the provisions listed in subsections (3), (4) and (5), although by subsection (2) if the applicant is associated with the respondent by virtue of an agreement to marry, no application can be brought under the Act more than three years after the agreement has terminated. The main provisions are contained in subsection (3) which provides that an order may: (a) enforce the Applicants' entitlement to remain in occupation as against the other person (‘the respondent’); (b) require the respondent to permit the applicant to enter and remain in the dwelling house or part of the dwelling house; (c) regulate the occupation of the dwelling house by either or both parties; (d) if the respondent is entitled as mentioned in subsection (1)(a)(i), prohibit, suspend or restrict the exercise by him of his rights to occupy the dwelling house; (e) if the respondent has matrimonial home rights in relation to the dwelling house and the applicant is the other spouse, restrict or terminate those rights; (f) require the respondent to leave the dwelling house or part of the dwelling house; or (g) exclude the respondent from a defined area in which the dwelling house is included.

There are two further powers under s 33. By subsection (4) the court, can as part of the order, declare that the applicant is entitled or has matrimonial home rights. This provision allows the court to declare entitlement where there is a dispute. The jurisdiction to so, however, is limited. By s 59(1) a magistrates’ court is not competent to entertain any application, or make any order, involving any disputed question as to a party’s entitlement to occupy by virtue of a beneficial estate, interest, contract or enactment giving the right

59

Domestic Violence of occupation, unless it is unnecessary to determine the question in order to deal with the application. This limitation on the magistrates’ court powers reflects the view of the Law Commission as noted earlier. Further, by subsection (5) and (8), if the applicant has matrimonial home rights and the respondent is the other spouse, the court can include a provision that those rights are not terminated by the death of the other spouse or the termination of the marriage if, in all the circumstances, it is just and reasonable to do so. This will protect those applicants who have rights of occupation by virtue of being a spouse of an entitled person, and whose rights would normally terminate when she ceases to be a spouse. The criteria the court must consider when making an order are contained in subsection (6). This provides that the court shall have regard to all the circumstances including: (a) the housing needs and housing resources of each of the parties and of any relevant child; (b) the financial resources of the parties; (c) the likely effect of any order, or of any decision by the court not to exercise its powers under subsection (3), on the health, safety or well-being of the parties and of any relevant child; and (d) the conduct of the parties in relation to each other and otherwise.

At first sight this appears to replicate, to a large extent, the provision in s 1(3) of the MHA 1983 which applied to orders under that Act and the DVMPA 1976.29 Two parts of subsection (6) are, however, very different from the old law. Subsection (6)(c) requires the court to balance the effect of an order, or no order, on the health, safety or well-being of the parties and any relevant child. It is submitted that while the definitions of health and safety will cause few problems, the definition of well-being is fraught with interpretative pitfalls. Further, subsection (6)(d) requires the court to consider the conduct of the parties in relation to each other and otherwise. This is, it is submitted, a much wider test than that under the s 1(3) of the MHA, although, as in the case of its 1983 predecessor, no one factor should carry more weight than another. Subsection 33(7) creates a mandatory duty to make an order in certain circumstances. The subsection provides: If it appears to the court that the applicant or any relevant child is likely to suffer significant harm attributable to the conduct of the respondent if an order under this section containing one or more of the provisions mentioned in subsection (3) is not made, the court shall make the order unless it appears that– (a) the respondent or any relevant child is likely to suffer significant harm if the order is made; and _______________________________________________________________________________________________________ ___________________________________

29 See Chapter 3, above. 60

Protection after 1997 (b) the harm likely to be suffered by the respondent or child in that event is as great as, or greater than, the harm attributable to conduct of the respondent which is likely to be suffered by the applicant or child if the order is not made.

This requires the court to make an order if it is established that the applicant or child is likely to suffer significant harm by the conduct of the respondent unless it can be shown that as great or greater harm is likely to be suffered by the respondent or child if the order in favour of the applicant is made, ie a balance of harm test. This balance of harm test was recommended by the Law Commission, which recognised that under the old law, the court was sometimes forced to choose between the interests of an adult and the interests of a child. The Law Commission stated of this balance of harm test ‘where there is a risk of significant harm to a child, the duty to make an order will come into operation and the child’s welfare will effectively become the paramount consideration’.30 How will this work in practice? Subsection (7) will come into play if the court feels that the applicant or child has suffered significant harm. By s 63(1) harm is defined in terms of the definition in the Children Act 1989. Thus: harm– (a) in relation to a person who has reached the age of eighteen years, means ill-treatment or the impairment of health; and (b)

in relation to a child, means ill-treatment or the impairment of health or development;

‘health’ includes physical or mental health; ‘ill-treatment’ includes forms of ill-treatment which are not physical and, in relation to a child, includes sexual abuse.

Further, by s 63(3), the term significant in relation to a child has the same meaning as under the Children Act 1989, that is a comparison of the child’s health or development with that which could reasonably be expected of a similar child. This raises a variety of issues. Given the explicit definition of ill-treatment in s 63(1), could it be argued that sexual abuse of an adult is not ill-treatment for the purposes of the Act? It is to be hoped that this is not the interpretation placed upon the section by the courts. Second, while there is a definition of significant for the purposes of looking at the harm done to the child, this is not the case in relation to a person over the age of 18. In relation to the term used in the Children Act 1989, the court in Humberside County Council v B 31 approved the dictionary definition of ‘considerable, noteworthy or important’. _______________________________________________________________________________________________________ ___________________________________

30 Para 4.34. 31 [1993] 1 FLR 257. 61

Domestic Violence Whether the same interpretation will apply under the FLA 1996 in relation to adults has yet to be seen. If the court decides that the applicant or relevant child is likely to suffer significant harm, this must be due to the conduct of the respondent before the duty to make an order comes into effect. Thus, if the applicant or child are suffering harm as a result of the respondent’s conduct and significant harm from another source, the first part of subsection (7) is not made out. Should the applicant satisfy the court in relation to the first part of the subsection, the court is then required to use the balance of harm test. Here the wording is complex. If on the test, the harm suffered by the applicant or child is greater than that which would be suffered by the respondent or child on the making of the order, the court is under a statutory duty to make the order in favour of the applicant. If, however, by making the order, the child or respondent will suffer harm which is at least as great as that suffered by the applicant or child, there is no duty to make the order, but the court would still have the discretion to do so. Let us consider this example. The applicant is suffering violence at the hands of her husband. This violence is also affecting the emotional development of their child. The applicant has a boyfriend who is also violent. If her husband is removed it is likely that her boyfriend will move into the dwelling house with her and the child. If the court makes an occupation order against her spouse and her boyfriend moves in, the harm suffered by her child will presumably be as great as that suffered when her husband was around, thus there is no duty on the court under subsection (7) to make the occupation order. This would not impair the court’s discretion to make an order anyway, but, it is submitted, given that the court is under no duty to make an order because to do so would cause as great a harm to the child as making no order, it is unlikely that the court would exercise its discretion. In other words, when the court does not make an order under subsection (7) because of the harm that order would cause a child, it is unlikely that it will exclude under any other provision. Where the harm will be suffered by the respondent, it is submitted that this must also be significant harm before the balance of harm test comes into operation, given that the harm suffered by the respondent must be as great or greater than the significant harm suffered by the applicant or relevant child. Should an order be made, s 33(10) deals with its duration. Although there is no statutory time limit, as in the case of occupation orders sought by other applicants discussed below, subsection (10) provides that an order should be made for a specified time, or until the happening of a specified event or until a further order. Thus although not restrained by a time period, the court must still specify the end of the order.

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Protection after 1997

Section 35 – orders where the applicant is a non-entitled former spouse and respondent former spouse is entitled The applicants for s 35 orders will be non-entitled former spouses where the respondent former spouse is entitled. Subsections (3) and (4) specify the provisions the order must contain in certain circumstances and are thus mandatory. Subsection (3) applies when the applicant is in occupation and the order must contain a provision giving the applicant the right not to be evicted or excluded by the respondent for the duration of the order and prohibiting the respondent from doing so. If the applicant is not in occupation, subsection (4) provides that the court must give the applicant the right to enter and occupy the dwelling house and require the respondent to permit the applicant to exercise that right for the duration of the order. By subsection (5) the court may insert provisions in relation to the occupation rights of the respondent, including exclusion. Subsection (5)(a)–(d) is identical to the provisions in s 33(3)(c)–(f). It has already been seen that when there is an application under s 33, the court is required to consider a variety of factors in s 33(6) in order to decide if and how to exercise its discretion. The same is true of an order under s 35, but given that the applicant for a s 35 order will be non-entitled, the factors the court must consider are different. Further, the court is required to consider one set of factors when considering if an order should be granted and additional considerations when deciding if any of the further provisions in subsection (5) should be inserted. Subsection (6)(a)–(d) is identical to s 33(6)(a)–(d) and the problems discussed above will equally apply to s 35 orders. Section 35(e)–(g) introduces additional factors the court must consider. These are: (e) the length of time that has elapsed since the parties ceased to live together; (f) the length of time that has elapsed since the marriage was dissolved or annulled; and (g) the existence of any pending proceedings between the parties– (i) for an order under section 23A or section 24 of the Matrimonial Causes Act 1973 (property adjustment orders in connection with divorce proceedings etc); (ii) for an order under paragraph 1(2)(d) or (e) of Schedule 1 to the Children Act 1989 (orders for financial relief against parents); or (iii) relating to the legal or beneficial ownership of the dwelling house.

It would appear that the court is being required to look at the reality of the situation in that if it is some time since the relationship broke down and there are existing proceedings which may be more appropriate to deal with the issues relating to the dwelling house, the court can decide not to grant an occupation order.

63

Domestic Violence Should the court decide to grant a s 35 order after considering all the criteria above, then it must insert the provisions in either subsection (3) or (4). It has a discretion, however, whether to insert any of the additional provisions in subsection (5) (subject to subsection (8) below) and to aid the court it must have regard to the factors in subsection (7). This requires the court to have regard to all the circumstances, including those in subsection (6)(a)–(e). In other words, having first considered these factors in relation to whether to grant an order, the court is required to return to them to decide whether to include any discretionary provisions in relation to the respondent’s occupation rights. By subsection (8), if the court makes a s 35 order and it appears that if a subsection (5) provision is not included the applicant or relevant child is likely to suffer significant harm attributable to the conduct of the respondent, the court must include a subsection (5) provision unless, on the balance of harm test discussed, in relation to s 33(7), the respondent or relevant child is likely to suffer as great or greater harm if the provision is included. By subsection (9) and (10), a s 35 order can only be made for a period of six months, although it can be extended on more than one occasion for a further specified period not exceeding six months. It ceases on the death of either party. By subsection (13), any payment of outgoings by the applicant in occupation, shall be treated as if paid by the entitled spouse.

Section 36 – orders where the applicant is a non-entitled cohabitant or former cohabitant and the respondent is entitled Section 36 does not distinguish between those applicants who are cohabitants and those who are former cohabitants. The overriding consideration of the court when looking at occupation orders in respect of parties who live or have lived together outside of marriage is found in s 41(2). This provides that the court must have regard to the fact that the parties have not given each other the commitment involved in marriage. The reason for this provision is obvious when looking at the history and eventual downfall of the 1995 Bill and appears to be directing the court to treat such cases differently to those between spouses or former spouses. The wording, however, is unfortunate. It assumes that parties only show commitment to each other by marrying and fails to take into account that the parties may be unable to marry for a variety of reasons. How it will be interpreted by the courts has yet to be seen but the wording suggests that the unmarried parties will warrant less protection because of the lack of commitment demonstrated by their failure to marry. Subsections (3), (4) and (5) are identical to the corresponding subsections in s 35 and create a duty on the court to include certain provisions in subsection (3) or (4) when an order is made, with a discretion to include one or more of the additional provisions in subsection (5). The difference between the two sections, however, is in the criteria the court must consider when deciding to exercise its power to make an order.

64

Protection after 1997 The factors the court must consider when making an order under s 36 are contained in subsection (6). To some extent they replicate the provisions of s 35(6), with necessary adjustments as s 35 deals with spouses or former spouses and s 36 deals with unmarried parties, thus there is no mention in s 36(6) of proceedings under the MCA 1973, for example. However, s 36(6) has additional factors the court must consider. These are found in subsection (6)(e)–(h). They are: (e) the nature of the parties’ relationship; (f) the length of time during which they have lived together as husband and wife; (g) whether there are or have been any children who are children of both parties or for whom both parties have or have had parental responsibility; (h) the length of time that has elapsed since the parties ceased to live together.

These provisions indicate that the court is required to make a judgment as to the real nature of the parties relationship and on the basis of its conclusions decide, given the nature of the relationship, whether an occupation order should be granted. Further differences between the situation when the applicant is a spouse or former spouse and where the applicant is not married to the respondent can be seen when the court considers whether to include a subsection (5) provision. The court must have regard to the matters in subsection (6)(a)–(d) and the balance of harm test found in s 36(8). However, unlike the previous sections, if the court feels that the applicant or relevant child is likely to suffer significant harm attributable to the conduct of the respondent if a subsection (5) provision is not included, this is a factor for the court to consider. It is not mandatory that the court inserts the provision. This is a very clear distinction in relation to the protection given to entitled and married applicants and those who are unmarried. Again we must await judicial interpretation of the provision, and it is hoped that where, on the balance of harm test, the applicant or child will suffer as great or greater harm than the respondent, a subsection (5) provision will be inserted. It is perhaps significant, however, that this provision would seem to indicate that the unmarried applicant and non-marital child is entitled to lesser protection because of their relationship with the respondent. As with s 35 orders, s 36 orders must be limited to six months but, unlike s 35 orders, can be extended once only for a period of up to six months. Again, therefore, the cohabitant applicant has less protection than her former married counterpart, in that her counterpart in theory has unlimited protection, but because the applicant under s 36 is unmarried, her protection will cease after a maximum of 12 months. The provisions in s 35 relating to payment of outgoings on the dwelling house are replicated in s 36.

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Domestic Violence

Section 37 – orders where the applicant is a non-entitled spouse or former spouse and the respondent is non-entitled This section applies where neither the applicant spouse nor former spouse, nor the respondent, is entitled. One of the parties must, however, be in occupation of the dwelling house (s 37(1)(a)) which is or was the matrimonial home. If neither party is in occupation an order cannot be granted. The powers of the court are contained in subsection (3). This provides that the court may: (a) require the respondent to permit the applicant to enter and remain in the dwelling house or part of the dwelling house; (b) regulate the occupation of the dwelling house by either or both of the spouses; (c) require the respondent to leave the dwelling house or part of the dwelling house; or (d) exclude the respondent from a defined area in which the dwelling house is included.

Subsection (4) states that the criteria in s 33(6) and (7) apply to the exercise of the court’s powers under this section. In other words the court is required to look at housing and financial needs and resources of the parties and relevant child, the effect of any decision of the court on the health, safety or well-being of the parties or relevant child and the conduct of the parties. Furthermore, the balance of harm test applies, requiring the court to grant an order unless the harm suffered by the respondent or relevant child is likely to be as great or greater than that likely to be suffered by the applicant or child if the order is not made. These provisions are discussed above. By s 37(5) an order must be limited to six months, but may be extended on one or more occasions for a further specified period not exceeding six months.

Section 38 – orders where the applicant is a non-entitled cohabitant or former cohabitant and the respondent is non-entitled This section applies where neither party is entitled and one party is in occupation of the dwelling house where they live or lived together as husband and wife. The court, by subsection (3), can make an order with the same provisions as contained in s 37(3) above. In deciding how to exercise its discretion the court is required to consider the criteria in subsection (4) and (5). Subsection (4) lists the same criteria as s 37(4). The difference between the two sections, however, is that the balance of harm test in subsection (5) is merely a factor for the court to consider and there is no requirement to make an order, if applying the test the applicant or relevant child will suffer as great or greater harm than the respondent or relevant child if an order is made. It will be remembered that the same question must be considered when an order is sought under s 36 (cohabitant or former cohabitant applicant with no existing right to occupy where the respondent is entitled) and likewise under 66

Protection after 1997 that section there is no duty on the court to make an order if the applicant satisfies the balance of harm test. The difference, however, between s 38 and s 36 is that under the latter the court must take into account additional criteria such as the nature of the parties’ relationship, the length of the relationship, children, the length of time since the parties lived together and the existence of any other proceedings (s 36(6)(e)–(i)). These criteria are not replicated in s 38. By s 38(6) an order under this section is limited to a period not exceeding six months and may be extended once only for a further period not exceeding six months. Thus the maximum length of the order will be 12 months.

Additional provisions Section 40 allows the court to insert additional provisions into certain occupation orders. Where either the applicant or respondent is entitled to occupy the court can insert provisions relating to the repair and maintenance of the dwelling house; the discharge of outgoings; the payment of rent to the excluded party, if that party, apart from the order, would be entitled to occupy; and the possession, use and security of the furniture and contents. In addition, where the parties are cohabitants or former cohabitants, by s 41 the court must have regard to the fact that the parties have not given each other the commitment involved in marriage, as discussed above. In deciding whether to include any of the s 40 provisions, the court must have regard to the financial needs and resources of the parties and the financial obligations they have or are likely to have in the foreseeable future (s 40(2)). Any provision inserted will cease to have effect when the order ceases to have effect. These provisions are similar to those contained in the s 1(3) of the MHA 1983. There are, however, important differences. These provisions apply equally to cohabitants, which was obviously not the position pre-1997. Furthermore, the court now has additional powers in respect of the contents of the dwelling house, and can require the excluded respondent to leave the house habitable. It should be noted, however, that the provisions can apply to either party and thus the court could provide that the applicant going into occupation allows the respondent the use of certain contents. These provisions adopt the recommendations of the Law Commission.32

2 Non-molestation orders The concept of non-molestation orders is not new. As seen in Chapter 3 the court under the DVMPA 1976 has the power to issue non-molestation

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32 Op cit, paras 4.38 and 4.40. 67

Domestic Violence injunctions, and molestation is given a wide interpretation under that Act.33 The Law Commission recognised the wide definition of molestation under the 1976 Act, which included serious pestering or harassment.34 The Commission considered whether there should be a statutory definition of molestation but concluded that such was not necessary given that the lack of definition had not caused problems. Section 42(1) defines a non-molestation order as an order containing either or both of the following provisions: (a) provision prohibiting a person (‘the respondent’) from molesting another person who is associated with the respondent; (b) provision prohibiting the respondent from molesting a relevant child.

By subsection (2) such an order may be granted in the course of family proceedings or as a free-standing application. In addition, subsection (2)(b) allows a court to make an order of its own volition in any family proceedings ‘for the benefit of any other party to the proceedings or any relevant child’. This would appear to allow the court to grant an order in favour of a person who is not associated with the respondent, although given the definition of a non-molestation order in subsection (1), it is submitted that this is not how it will be interpreted. By subsection (3), family proceedings include proceedings where the court has made an emergency protection order (EPO) under the Children Act 1989 containing an exclusion requirement (discussed below). This means that in addition to excluding the abuser for the duration of the EPO, the court can also grant a non-molestation order in favour of the child. Note, however, there is no such specific power where an exclusion provision is contained in an interim care order. This is because such proceedings are family proceedings under s 62(2) of the Act. Subsection (5) provides that in deciding whether to exercise its discretion, the court must have regard to all the circumstances including the need to secure the health, safety and well-being of the applicant, any other person for whose benefit the order would be made, or any relevant child. The problems which may occur in the definition of well-being have been noted above.

3 Amendments to the Children Act 1989 Section 52 and Schedule 6 of the FLA 1996 amend the Children Act 1989 to allow the court to exclude the abuser of a child when making an EPO or an interim care order. Such provisions adopt the recommendations of the Law Commission35 which felt that there should be some mechanism to protect the _______________________________________________________________________________________________________ ___________________________________

33 Cf Horner v Horner [1982] Fam 90; Johnson v Walton [1990] 1 FLR 350. 34 Para 3.1. 35 Paras 6.15–6.22. 68

Protection after 1997 abused child other than taking the child out of the family environment. The recommendations stressed that the sole purpose of the order should be shortterm protection for the child and this is reflected in the amendments, as it should be noted at this stage that the court has no power to exclude an abuser at the final order stage. The absence of this power, while at the same time adopting the recommendations, seems strange. It is unlikely that anyone would argue with the proposition that under the provisions of the old law, whilst removal of the child would ensure its protection, it could be argued that such provisions in effect ‘punished’ the child for being a victim. It also had the effect of taking the child away from any support systems within the family unit. Removal of the abuser, and enabling the child to remain in a familiar family environment, would seem to be a sensible solution and will help the child to mend both physically and emotionally. The Law Commission, however, stated that in the longer term, the property rights of adults had to play a part. Thus, while short-term protection is now provided for, in the long term the occupation rights of the abuser may take priority. Furthermore, the granting of temporary relief during an application by a local authority for an EPO or interim care order will give another adult, for example the non-abusing parent, or, in some cases the child himself, the opportunity to apply for a longer-term order excluding the abuser, so obviating the need for a care order. As such, the provisions appear to be placing the responsibility for longer-term protection of the abused child in the hands of the associated person, rather than exclusively in the hands of the local authority. Two further general points should be noted before examining the particular provisions in detail. First, a provision excluding the abuser forms part of an EPO or interim care order and is not a substitute for either of those orders. In practice this means that the local authority will still have parental responsibility in relation to the abused child, and thus the power to remove the child, should there be a potential risk to that child’s safety during the currency of the order. Second, unlike the occupation orders elsewhere in the Act which can be used to remove a violent respondent, there is no requirement that a party to whom the exclusion provision relates must be associated with the abused child. Should a non-abusing adult, or the child, wish to go for longer-term protection in the form of an occupation order under ss 33, 35, 36, 37 or 38, the abuser must, however, be an associated person. This means that should the exclusion provision relate to a nonassociated person, the only long-term protection that can be granted for the child will be a care order. Section 38A of the Children Act 1989 will allow a court to include an exclusion requirement in an interim care order. Such a power will exist where the court is satisfied that the threshold criteria in s 31(2)(a) and (b)(i) exist and further:

69

Domestic Violence (a) that there is reasonable cause to believe that, if a person (‘the relevant person’) is excluded from a dwelling house in which the child lives, the child will cease to suffer, or cease to be likely to suffer, significant harm; and (b) that another person living in the dwelling house (whether a parent of the child or some other person)– (i) is able and willing to give to the child the care which it would be reasonable to expect a parent to give him; and (ii) consents to the inclusion of the exclusion requirement (s 38A(2)).

It is clear that the provision envisages a two-stage process. The court must first have decided to make an interim care order and thus must be satisfied that the threshold criteria have been made out. The section, however, does not give the court a power to make an exclusion requirement where the threshold criteria have been made out because the child is beyond parental control under s 31(2)(b)(ii). Once the court has decided to make an interim care order, it can only include an exclusion requirement if the conditions in subsection (2) are made out. This means that there must be reasonable cause to believe that removal of the relevant person will mean that the child will cease to suffer, or cease to be likely to suffer significant harm. In other words it allows the court to remove the cause of the significant harm. Given that to satisfy the threshold criteria, the court must be satisfied that the significant harm suffered or likely to be suffered by the child is attributable to the parental care the child has received, it is submitted that in cases of physical and sexual abuse this first part of s 38A(2) will not be difficult to make out. However, the court cannot make the exclusion requirement unless there is another person in the dwelling house who is prepared to look after the child and who consents to the exclusion requirement being made. Unless both of these criteria are satisfied, the court cannot exclude and it is likely that the child will be removed. By subsection (3) an exclusion requirement is any or all of the following: (a) a provision requiring the relevant person to leave a dwelling house in which he is living with the child; (b) a provision prohibiting the relevant person from entering a dwelling house in which the child lives; and (c) a provision excluding the relevant person from a defined area in which a dwelling house in which the child lives is situated.

As noted before, there is no requirement that the relevant person is associated with the child. Further, the provisions are wide enough to include a person who does not live in the dwelling house with the child. The exclusion requirement can last for a shorter period than the interim care order (subsection (4)). This period can be extended on more than one occasion by the court on an application to vary or discharge the interim order. The requirement will cease to have effect when the interim order ceases to 70

Protection after 1997 have effect, or if the local authority remove the child for a continuous period of more than 24 hours (subsection (10)). The person to whom the exclusion requirement relates may apply for a variation or discharge of the requirement even though they may not be entitled to apply for a variation or discharge of the interim care order (s 39(3A)). Section 44A of the Children Act 1989 will allow a court to include an exclusion requirement in an EPO. The process by which this happens is the same as in relation to interim care orders. The court will first have to satisfy itself that the requirements in s 44(1)(a), (b) or (c) of the Children Act 1989 are satisfied and thus makes an EPO. The EPO may then contain an exclusion provision if: (a) ... there is reasonable cause to believe that, if a person (‘the relevant person’) is excluded from a dwelling house in which the child lives, then– (i) in the case of an order made on the ground mentioned in section 44(1)(a), the child will not be likely to suffer significant harm, even though the child is not removed as mentioned in section 44(1)(a)(i) or does not remain as mentioned in section 44(1)(a)(ii); or (ii) in the case of an order made on the ground mentioned in paragraph (b) or (c) of section 44(1), the enquiries referred to in that paragraph will cease to be frustrated ... (s 44A(2)(a).

In addition, as with interim care orders, there must be a person who is willing to take care of the child and who consents to the requirement being made. The provisions relating to the length of the requirement, when it ceases and variation and discharge are the same as s 38A.

EX PARTE ORDERS Under the pre-1997 law, statute did not state when orders should be granted ex parte. When the DVMPA 1976 first came onto the statute books, a large number of injunctions, particularly non-molestation injunctions, were granted ex parte. This led to a Practice Note being issued in 197836 which noted the concern of the President about the increasing number of applications being made ex parte which should have been made on two days clear notice to the other side. The Practice Note went on to say: ‘An ex parte application should not be made, or granted, unless there is a real immediate danger of serious injury or irreparable damage. A recent examination of ex parte applications shows that nearly 50% were unmeritorious.’

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36 Practice Note (Injunction: Ex Parte Applications) [1978] 1 WLR 925. 71

Domestic Violence The result of this was a reduction in the grant of ex parte injunctions generally,37 a reluctance reflected in the attitude of the Council of Circuit Judges which gave evidence to the Home Affairs Committee stating ‘it is a fundamental principle of natural justice that a court should not grant an order which involves a person’s civil liberties and rights without giving them the opportunity to be heard’.38 It should be noted, however, that in our own research in 1991, this reluctance was less apparent, in that on analysing the percentages of final orders granted after an ex parte application, 48.6% were successful in the civil jurisdiction, 26.5% in the family jurisdiction and 42.6% in the domestic jurisdiction. This might suggest that in all of these cases, the court felt that there was ‘a real immediate danger of serious injury or irreparable damage’ or that the particular court took a different view of when ex parte applications should be granted. The Law Commission approved the judgment of Lord Justice Ormrod in Ansah v Ansah39 where he stated that it was essential, in the administration of justice, for the court to have a power to intervene immediately and without notice, but that this power should only be exercised ‘in an emergency when the interests of justice or the protection of the applicant or child clearly demands immediate intervention by the court’. The Law Commission recommended that the power to act immediately should be retained but that there should be statutory guidelines as to the exercise of the power to ensure consistency between different courts. 40 Our own research indicated a difference in the attitudes of judges in one county court and it has already been said that the particular court appeared to allow a high percentage of ex parte applications. Under the DPMCA 1978, magistrates have similar powers to make expedited orders without notice to the respondent where ‘there is imminent danger of physical injury to the applicant or child’ (s 16(6)). Statutory guidelines applying to all courts should prevent the inconsistency feared by the Law Commission. By s 45(1) of the FLA 1996, the court may grant an ex parte occupation or non-molestation order ‘where it considers that it is just and convenient to do so’. There are, however, statutory guidelines in s 45(2) which the court must consider before making its decision. In addition to having regard to all the circumstances, the court must have particular regard to: (a) any risk of significant harm to the applicant or a relevant child, attributable to conduct of the respondent if the order is not made immediately; (b) whether it is likely that the applicant will be deterred or prevented from pursuing the application if an order is not made immediately; and _______________________________________________________________________________________________________ ___________________________________

37 See Edwards, Sex and Gender in the Legal Process (1996), London: Blackstone Press, p 217. 38 Home Affairs Committee (1992–93) 3rd Report, 1992–93, Domestic Violence, Vol 11, Memoranda of Evidence, HC 245-11, Cmnd 2269, London: HMSO, pxxxvii. 39 [1977] Fam 138. 40 Op cit, para 5.7. 72

Protection after 1997 (c) whether there is reason to believe that the respondent is aware of the proceedings but is deliberately evading service and that the applicant or relevant child will be seriously prejudiced by the delay involved– (i) where the court is a magistrates’ court, in effecting service of the proceedings; or (ii) in any other case, in effecting substituted service.

How these provisions will be interpreted has yet to be seen. The definition of significant harm has already been discussed. Case law will give us the interpretation of ‘seriously prejudiced’. By s 45(3), when a court makes an ex parte order it must give a return date to enable the respondent to make representations. By s 45(4), if an ex parte order is granted the length of that order is part of the computation of the length of the final order, so that the final order is deemed to begin at the date the ex parte order began. While there is a power to grant ex parte EPOs,41 nothing in s 44A gives guidance as to whether an exclusion requirement can be made ex parte. Furthermore, s 38A is silent as to whether an exclusion requirement in an interim care order can be made ex parte. It is thus debatable whether such a power exists and, if it does, whether the court should have regard to the criteria in s 45(2).

ENFORCEMENT OF ORDERS 1 Powers of arrest In Chapter 3 the power of the court to attach a power of arrest under the present law was discussed. The frequency of the use of that power was also discussed in that chapter. It can be seen, therefore, that the power to attach a power of arrest differs between the DVMPA 1976 and the DPMCA 1978, and further that no such power exists under the MHA 1983. The present law, therefore, does not lead to consistency. The FLA 1996 seeks to remedy this inconsistency. By s 47(2), where the court has made an occupation or non-molestation order, if it appears to the court that the respondent has used or threatened to use violence against the applicant or relevant child, it shall attach a power of arrest to one or more provisions of the order unless the court is satisfied that the applicant or child will be adequately protected without the power of arrest being attached. Substantial differences can be noted between the present law and the FLA 1996. First, under the present law the power to attach a power of arrest is discretionary, whereas s 47(2) makes it clear that it is mandatory to attach a _______________________________________________________________________________________________________ ___________________________________

41 Family Proceedings Courts (Children Act 1989) Rules 1991, r 4(4). 73

Domestic Violence power of arrest in certain circumstances. Second, under the present law a power of arrest can only be attached if the respondent has caused the applicant or child actual bodily harm and is likely to do so again (s 2(1) of the DVMPA 1976) or has physically injured the applicant or child and is likely to do so again (s 18(1) of the DPMCA 1978). Under the 1996 legislation, the court can attach a power of arrest because the respondent has threatened or used violence, so appearing to relax the existing test. However, there is still a need to take into account the future actions of the respondent. This is the case under the present law and will continue to be so under the FLA 1996 which requires the court to attach the power of arrest unless it is satisfied that the applicant or child will be adequately protected without it. This must, it is submitted, require the court to look at the likelihood of future attacks and the risk to the applicant or child. Furthermore, the 1996 legislation, although relaxing the criteria somewhat, still requires violence before a power of arrest can be attached. Third, the present law only gives the protection of the power of arrest to spouses or cohabitants. Section 47 of the FLA 1996 allows the power to be attached to an occupation or non-molestation order which can be granted to an applicant who is associated with the respondent; a group, it has already been noted, which is very wide. Section 47(2) creates a duty on the court to attach a power of arrest to ‘one or more provisions of the order’. Thus it is clear that the court must specify the parts of the order the power attaches to, and, given that the court must attach such a power in certain circumstances, presumably the court will have complied with its statutory duty if it attaches the power to only one provision. Section 47(3) provides that subsection (2) does not apply where the court makes an ex parte order. The court, however, may attach a power of arrest to one or more provisions of an ex parte order if it appears to the court: (a) that the respondent has used or threatened to use violence against the applicant or relevant child; and (b) that there is a risk of significant harm to the applicant or child, attributable to the conduct of the respondent, if the power of arrest is not attach to those provisions immediately.

The difference between the power when making a final order and an ex parte order is immediately apparent. Whereas attachment of a power of arrest is mandatory where a final order has been granted, it is discretionary when an ex parte order is made. Further, the criteria the court must consider before attaching a power of arrest are different. When a final order is made the court must, on the evidence, decide whether the parties will be adequately protected without the power. Under subsection (3), however, the court is much more restricted, in that it has to have concluded that there is a risk of significant harm from the respondent if the power is not attached immediately. It would appear, therefore, that if the risk of significant harm is in the future rather than immediate, no power can be attached, although, of course, it could

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Protection after 1997 be attached to the final order. Whether the court can make an ex parte exclusion requirement in an interim care order or an EPO is questionable as discussed above. If such a power exists, presumably the criteria in subsection (3) will apply. The effect of a power of arrest is found in s 47(6), which says that when a power is attached to a provision in an order, a constable may arrest without warrant a person he has reasonable cause to suspect to be in breach of such a provision. It has already been stated in Chapter 3 that the discretionary nature of a power of arrest under the present law can lead to further injury to the victim. Furthermore, the exercise of the discretion under the present law by Leicestershire police will be discussed in Chapter 5. The amendments made to the Children Act 1989 allow a magistrate or judge to attach a power of arrest to an exclusion requirement made in an interim care order or EPO (subsection 38A(5) and 44A(5)). The effect of such a power is the same as the exercise of the power under s 47 (subsection 38A(9) and 44A(9)). Presumably, the criteria the court must have regard to when issuing a power of arrest under s 47 will apply equally to a power attached to an exclusion requirement, although neither s 38A nor s 44A make this clear.

2 Warrant for arrest Under the pre-1997 law, the High Court and the county court have no way of using the police to enforce orders unless a power of arrest is attached. The magistrates’ courts, on the other hand, have a power to involve the police as they can issue a warrant where there are reasonable grounds for believing that the respondent has disobeyed an order. The disparity between the court powers was commented upon by the Law Commission, 42 which recommended that magistrates’ powers should also be given to the High Court and county courts. This recommendation is to be found in s 47(8) of the FLA 1996 which provides that where a court has not attached a power of arrest, or has only attached a power of arrest to certain provisions, if the applicant feels that the respondent has not complied with the order the court may issue a warrant for the arrest of the respondent, if it has reasonable grounds to believe that the respondent has failed to comply with the order (s 47(9)). When a respondent is arrested, either by the exercise of a power of arrest or a warrant, the relevant judicial authority may remand in custody or on bail (s 47(10)–(12)), or, by s 48, may remand for a medical report, where there is reason to suspect that the respondent is ‘suffering from mental illness or severe mental impairment’ (s 48(4)). Such a remand may be for no longer than three weeks if the respondent is committed to custody or four weeks if he is on bail. _______________________________________________________________________________________________________ __________________________________

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Domestic Violence

UNDERTAKINGS In Chapter 3 the use of the court of undertakings under the pre-1997 law, and the effect of an undertaking on the enforcement powers of the court was discussed. The use of the court of undertakings under the present law is extensive.43 The power of the court to accept undertakings is reproduced under the FLA 1996 in respect of any order the court may make. By s 46(1), the court can accept an undertaking in an application for a non-molestation or occupation order and by ss 38B and 44B of the Children Act 1989, the court will have the power to accept undertakings where it has the power to include an exclusion provision in an interim care order or EPO. The court cannot attach a power of arrest to an undertaking (ss 46(2), 38B(2) and 44B(2)); however, the provisions of s 46 and those of ss 38B and 44B of the Children Act 1989 are different. By s 46(3), a court cannot accept an undertaking in any case where it would attach a power of arrest to an order, in essence where the respondent has used or threatened to use violence against an applicant or relevant child, and those parties cannot be adequately protected without a power of arrest being attached to the appropriate order. Such a restriction does not, however, appear in ss 38B or 44B of the Children Act 1989. This may mean, in reality, given that the court must attach a power of arrest in certain circumstances, that the use of undertakings under the FLA 1996 will be considerably less than under the present law.44 Although no power of arrest can be attached to an undertaking, the FLA 1996 states that an undertaking is enforceable as if it were an order of the court (s 46(4)). Similar provisions are contained in the amended Children Act 1989 (ss 38B(3)(a) and 44B(3)(a)). It should follow, therefore, that an undertaking can be enforced by the issue of a warrant for arrest. Whether this is the way the provisions will be interpreted has yet to be seen, but, if so interpreted, the present problems of enforcement should to a large extent be alleviated, in that the court will have the power order the arrest of a respondent who is in breach of either an order or an undertaking. The reluctance of the courts at present to grant a power of arrest has been noted, however. If this reluctance also extends to the issue of warrants, while the potential enforcement powers will be wide, their effectiveness may in reality be severely curbed.

PROTECTION FROM HARASSMENT ACT 1997 The FLA 1996 gives protection, either in the form of occupation orders to those with property or matrimonial home rights or in the form of non_______________________________________________________________________________________________________ ___________________________________

43 Bird, Domestic Violence – The New Law (1996), Bristol: Jordans, p 59: Edwards, op cit, pp 216–17. 44 See, however, the arguments against this view by Kewley, ‘Remedies for the victims of domestic violence’ (1996) Journal of Social Welfare and Family Law 1. For a criticism of Kewley see Murphy, op cit, n 126, pp 859–60. 76

Protection after 1997 molestation orders, but only where the respondent is a person who is associated with the applicant within the meaning of s 62. While appearing to be a wide definition, the limitations within the section have already been discussed, leaving some victims unprotected by the statute. Although the remedies in tort have been greatly expanded recently45 this still leaves the victim in a less favourable position than those protected by the statute with regards to the enforcement of any injunction granted under that jurisdiction. The Protection from Harassment Act (PHA) 1997 has been specifically enacted to protect persons from harassment and similar conduct. It will therefore provide protection for those persons who do not fall within the ambit of the FLA 1996 and who, until the Act comes into force, have to rely on the courts’ jurisdiction in tort. The PHA 1997 creates criminal offences and provides civil remedies for victims of harassment. The criminal liability thus created is discussed later.46 Section 1 prohibits harassment. It states: (1) A person must not pursue a course of conduct– (a) which amounts to harassment of another, and (b) which he knows or ought to know amounts to harassment of the other. (2) For the purposes of this section, the person whose course of conduct is in question ought to know that it amounts to harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other.

The statute, therefore, specifically prohibits harassment, but does not define what constitutes harassment. Dictionary definitions include words such as ‘distress’, ‘trouble’ and ‘worry’ and there is no reason to suppose that harassment will not be given that definition. Should this definition be adopted, however, it is narrower than the definition of molestation, although harassment under the PHA 1997 will constitute molestation for the purposes of the FLA 1996.47 Moreover, it should be noted that a person will only harass another by ‘pursuing a course of conduct’.48 It would thus appear that a oneoff act will not fall within the definition regardless of the distress, trouble or worry it may cause the victim. What amounts to a course of conduct is also not defined, but presumably, given the purpose of the legislation, conduct on two occasions will fall within the definition. Section 1(3) provides, however, that a course of conduct does not amount to harassment if, in the particular circumstances, the pursuit of the conduct was reasonable. How this will be interpreted has yet to be seen. It could be argued that any course of conduct _______________________________________________________________________________________________________ ___________________________________

45 46 47 48

See Chapter 3 above. See below. See p 68. Section 1(1).

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Domestic Violence which causes distress or worry can never be reasonable, but given the phrase ‘in the particular circumstances’ a court can look at the reason behind the conduct. Thus, if the defendant feels that his conduct is welcomed by the other, this would not constitute harassment unless a reasonable person would know that this is not the case. Should harassment be established the civil remedies are found in s 3. This allows the court to grant an injunction restraining the defendant from pursuing any conduct which amounts to harassment, award damages for anxiety or financial loss caused by the harassment and require the defendant to attend a course of counselling, if it appears just and appropriate to do so, for the purpose of persuading him not to harass the victim or anyone else in the future. Section 6 provides that the Limitation Act 1980 does not apply to any action in damages brought under s 3. In addition, s 5 allows the court, of its own volition when sentencing or otherwise dealing with a person convicted of an offence under ss 2 or 4, to issue a restraining order prohibiting the defendant from pursuing further conduct which amounts to harassment or will cause fear of violence, in order to protect the victim. There is no statutory time limit on the length of the injunction or the time limit. Breach of an injunction issued under s 3 or a restraining order issued under s 5, without reasonable excuse, is an offence,49 punishable on conviction on indictment of imprisonment of up to five years and/or a fine and on summary conviction of imprisonment of up to six months and/or a fine.50 The PHA 1997 strengthens the existing protection in tort for those victims not covered by the FLA 1996 and is therefore to be welcomed. The differences in the two pieces of legislation should be noted, however. Obviously, the PHA 1997 does not provide remedies in the form of occupation orders. This could be a problem where, for example, the harasser lives in the same building as the victim but in a different household (for example where one building houses a number of flats). Furthermore, if the ordinary and natural meaning is given to the word harassment, it would appear that it is narrower than the definition of molestation adopted by the courts over the years51 and thus certain conduct which could be prohibited by a non-molestation order will not constitute harassment and a victim who is not associated with the defendant will only have a tortious remedy. In addition, ss 3 and 5 of the PHA 1997 state that the term of any injunction or order shall restrain the defendant from pursuing conduct which amounts to harassment and it is questionable if the court can restrain a defendant from entering an area in which the home or workplace is situated. On the other hand, should harassment be proved, the enforcement of remedies for the victim under the PHA 1997 is arguably more _______________________________________________________________________________________________________ ___________________________________

49 Section 3(4)(b) and s 5(5). 50 Section 3(7) and s 5(6). 51 See Chapter 3 above. 78

Protection after 1997 effective than under the FLA 1996. Under s 47 of the FLA 1996, a court must attach a power of arrest to a non-molestation order if the respondent has used or threatened to use violence against the applicant or relevant child, unless it is satisfied that the applicant or child will be adequately protected without the power being attached. Section 47, therefore, requires violence or the threat of it before the jurisdiction to attach a power of arrest arises and, even if that is established, the court may decide that the applicant or child will be adequately protected without such a power being attached. On the other hand, if an injunction or restraining order issued under ss 3 or 5 of the PHA 1997 is broken without reasonable excuse, this is a criminal offence punishable by a fine and/or imprisonment. While allowing the court some discretion, this is less than that contained in the FLA 1996.

ADEQUATE PROTECTION AT LAST? It is clear from the previous discussion that the FLA 1996 deals, in part, with the perceived inadequacies of the present statutory provisions which exist to protect victims of domestic violence. The powers in the new Act to grant orders against a much wider group of people, to attach powers of arrest and issue warrants for arrest, amount to more comprehensive protection than before. In addition, the PHA 1997 will give more effective protection to a wide group of victims by strengthening the remedies available by making breach of an injunction issued under the Act a criminal offence. It is still questionable, however, whether the Acts will provide adequate protection for certain victims – those of domestic violence. The reasons for this are two-fold. First, the government missed an opportunity to amend housing legislation to ensure that such victims had ready access to alternative accommodation. Second, research in the United States suggests that occupation and non-molestation orders (the remedies under the FLA 1996), even if coupled with powers of arrest, may not provide the protection victims need.

1 Housing victims The Scottish Code of Guidance on Homelessness pointed out: The fact that a woman has an interdict (injunction) ordering her partner not to molest her nor enter the home they formerly shared does not necessarily mean that it is safe for her to return to that home – experience has shown that some people are not deterred by an interdict.52

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52 Para 2.11.b, quoted in Murphy, op cit, p 854. 79

Domestic Violence In other words, agencies working in the area of domestic violence recognise that, without alternative accommodation, a court order will often give little protection to a victim. The FLA 1996 made no substantive amendments to the housing legislation, and thus victims of domestic violence will still only be a priority need if they can show vulnerability on the basis of ‘old age, mental illness or handicap or other physical disability or other special reason’.53 It could be argued that victims of domestic violence are in priority need by virtue of ‘special reason’ and the Code of Guidance issued by the Department of the Environment54 suggests that this is the case. It is clear, however, that not all local authorities interpret the provision in this way.55 Murphy gives two possible reasons for this. First, the Code is not binding on local authorities. Second, although the law now accepts that the phrase domestic violence encompasses more than just physical violence, this is not how local authorities interpret either the Housing Act or the Code.56 Previous discussion has shown that without alternative accommodation, women will often not take action to protect themselves for fear of reprisals against themselves or their children. By amending the Housing Act to require local authorities to regard victims of domestic violence, in its wider sense, as a priority need, the changes introduced by the 1996 Act could have been made much more effective.

2 Do occupation and non-molestation orders provide adequate protection? The essence of the FLA 1996 is to give the court the power to issue occupation and non-molestation orders in many more situations than the existing legislation allows. It is clear from both the recommendations of the Law Commission and the Act that these powers are seen as the effective way of protecting victims of domestic violence. While the Act is not without its flaws, perhaps a more fundamental question must be asked. Are occupation and non-molestation orders the best form of protection for such victims? Research conducted in the United States in 1990 by Klein and in 1991 by Harrell and Smith57 suggests that such remedies do little to provide long-term protection for domestic violence victims. _______________________________________________________________________________________________________ ___________________________________

53 Section 189 of the Housing Act 1996. 54 Homelessness – Code of Guidance for Local Authorities, London: HMSO, 1995. 55 See for example Malos and Hague, Domestic Violence and Housing: Local Authority Responses to Women and Children Escaping Violence in the Home (1993), Bristol Women’s Aid Federation, quoted by Murphy, op cit, n 85, p 860. 56 Thornton, ‘Homelessness through relationship breakdown: the Local Authorities’ response’ (1989) Journal of Social Welfare and Family Law 67, quoted in Murphy, op cit, p 860. 57 Klein, ‘Re-abuse in a population of court restrained male batterers’ and Harrell and Smith, ‘Effects of restraining orders on domestic violence victims’ in Buzawa and Buzawa (eds), Do Arrest and Restraining Orders Work? (1996), Thousand Oaks, CA: Sage Publications, 80

Protection after 1997 In the majority of jurisdictions in the United States, the issue of civil orders is the chief means of protecting domestic violence victims.58 Klein studied a total of 663 cases where a restraining or protective order had been issued to victims of domestic violence. The number in Harrell and Smith’s study was 355, this number coming from two jurisdictions representing 50% of the petitions filed. In both studies the analysis was of cases which involved abuse by a male against a female who was or had been in an intimate relationship with the abuser. Both studies sought to analyse the effectiveness of a civil order in preventing further violence. Klein’s research consisted of an analysis of the court records in each case and further tracking of the abuser for two years. Harrell and Smith’s research consisted of interviewing victims who had filed petitions for restraining orders, three months and 12 months after the order was granted. In both pieces of research, a substantial proportion of petitioners had lived with the abuser named in the order but had ceased to live with him at the time of the application. These proportions were over a third in Klein’s study and nearly half in Harrell and Smith’s. As Klein states: In other words, a significant number of these women had taken significant steps to protect themselves prior to coming to court to request the RO. This finding suggests that their continued abuse may not result so much from their inability to act as from the tenacity of their abusers to pursue them.59

Both studies looked at re-abuse rates after the issue of the restraining order. Both pieces of research found that a high proportion of abusers re-abused despite the restraining order. Klein found that 48.8% of abusers in his study re-abused within the two years after the issue of the order,60 Harrell and Smith found a higher reabuse rate of 60% within the 12 months following the issue of the order.61 Harrell and Smith analysed the abuse reported by the women on the applications for restraining orders. They subdivided the abuse into four categories: severe violence, which included, inter alia, acts such as kicked, bit or punched her, choked or strangled her, forced sex, threats to kill, threats with a weapon; other violent acts, which included slapping, pushing, throwing things; threats of violence/property damage, which included threats to children or others, taking money, destruction of property; and psychological abuse, which included making her stay at home, keeping her away from work, stalking her, harassing her.62 Their analysis reveals that in the 12 months after the issuing of the restraining order, 29% of the women reported re-abuse consisting of acts of severe violence, 24% reported re-abuse consisting of acts of other _______________________________________________________________________________________________________ ___________________________________

58 59 60 61 62

Klein, op cit, p 192. Op cit, p 198. Op cit, p 199. Op cit, p 223. Op cit, p 216. 81

Domestic Violence violence, 43% reported re-abuse consisting of threats of violence and acts of property damage, and 57% reported persistent psychological abuse. Of the total number of women in the study, 212 had a permanent restraining order and 143 a temporary order (lasting 14 to 21 days). Harrell and Smith found no statistical difference in re-abuse rate between those abusers who were subject to a temporary order and those subject to a permanent order, except in the case of psychological abuse, where they found that women with permanent orders were significantly less likely to suffer such re-abuse.63 Klein’s study did not detail the type of re-abuse suffered. He did discover, however, that when looking at those re-abusers arrested, 49.19% were arrested for assault or assault and battery, with or without a weapon. He also found that re-abuse was more likely in the 30 days following the issue of the order, and that the risk of re-abuse dropped progressively during the first year.64 Both pieces of research attempted to analyse predictors to forecast further abuse after the issue of the restraining order. Harrell and Smith looked at the severity of the incident that led to the court order and the history of abuse, the personal characteristics of the woman and man and their relationship, and the response of the criminal justice system.65 They concluded that the severity of the incident which led the woman to seek a court order did not act as a predictor for re-abuse after the order, but that a history of severe abuse prior to the order indicated that re-abuse was more likely. In their sample, more than 20% of the women reported severe violence in the 12 months preceding their applications and almost all the women reported multiple types of abuse. They also discovered that severe prior abuse was significantly related to severity of re-abuse in the year after the restraining order, and other violent acts predicted similar violent acts. Put another way, if re-abuse occurred, it was likely to be of a similar nature to that occurring before the order was granted. Furthermore, persistence of abuse was an indicator of re-abuse, although the length of the history of abuse was not. Harrell and Smith further found that certain case characteristics related to the probability of re-abuse after the order. They measured the resistance of the abuser at the hearing to the order being granted. A high level of resistance at the hearing was seen to significantly increase the probability of a recurrence of severe violence, threats and property damage, and psychological abuse. They state: ‘... it is important to note that strenuous objections voiced by the men should be treated seriously as a warning that abuse may continue.’66 Other case characteristics could be identified as predictors of re-abuse. They found that women who lived with the abuser were significantly less _______________________________________________________________________________________________________ ___________________________________

63 64 65 66

Op cit, p 228. Op cit, p 200. Op cit, p 228. Op cit, p 231. 82

Protection after 1997 likely to suffer re-abuse than women who had left. In addition, women without children were less likely to suffer from re-abuse than those who had children living with them, although it was noted that the re-abuse consisted of violent acts or threats or property damage and usually occurred around visitation rights. In Harrell and Smith’s study, personal characteristics of the woman or the abuser did not affect the probability of re-abuse. They further analysed the response of the police and the courts to restraining order violations. Harrell and Smith felt that this was important as they discovered that if the police arrested the man at the time of the incident that led to the court order, the likelihood of severe violence in the following year was diminished, in that the odds of severe violence in cases where an arrest was made was less than half that of cases where no arrest occurred.67 Arrest, however, had no effect on other types of abusive acts: This finding indicates that although men named in restraining orders continue their abuse, they are less likely to commit acts of serious violence when an arrest has been made. The implication is that aggressive arrest policies reduced the severity of future abuse, but not the likelihood that abuse would be reported.68

Klein’s research, after looking at the probability of re-abuse, also analysed whether any predictors could be identified from his study. He found that in his research group, the only significant predictors were age, prior criminal history and court-ordered contact provisions. Arrest of the abuser, the existence of prior restraining orders, and whether the order was temporary or permanent did not predict re-abuse.69 Furthermore, he found re-abuse rates did not differ between couples who continued to live together and those who did not. In respect of age, Klein found that younger abusers re-abuse more than older abusers and that those abusers without criminal histories or those whose the last arrest was more than 15 years before the restraining order was issued, re-abused less than those with prior active criminal histories. Furthermore, those abusers with more prior complaints on their record were more likely to re-abuse than those with fewer. This pattern was replicated where the abuser’s prior criminal history was drugs or alcohol-related or involved crimes against persons other than the applicant for the restraining order. When looking at court-ordered contact, Klein found that only between abusers with no prior record was there any significant difference in the incidents of re-abuse. Where the abuser had a prior history of abuse or criminal activity, there was no appreciable difference in re-abuse rates: ‘In

_______________________________________________________________________________________________________ ___________________________________

67 Op cit, p 233. 68 Ibid. 69 Op cit, p 200. 83

Domestic Violence other words, abusers with longer prior criminal records re-abused regardless of differences in the specifics of the court RO provisions.’70 What can be concluded from these two research projects? Both studies, conducted over three jurisdictions in America, show that domestic violence is a continual threat which is not, in the main, prevented by court orders. Harrell and Smith’s research tells us a variety of things. Arrest of an abuser before a court order is obtained seems to prevent a repetition of serious violence but has no impact on the continuance of other abusive behaviour. Subject to this, the type of re-abuse which will occur is often the same as the abuse which led to the order being granted. If the woman no longer lives with the abuser, the risk of re-abuse is higher, as is the case where the woman has children living with her. The severity of the incident leading to the order is not indicative of re-abuse, but past history of abuse is. If we compare these findings with those of Klein, certain patterns emerge. Klein found that re-abuse was more likely to occur where the abuser was young, did not live with the victim, and had an existing record of abuse and/or criminal activity. He concludes: ‘It may be that most male abusers do not have criminal records, but the vast majority brought to court by their victims for ROs do.’71 He supports this conclusion by referring to other research of batterers which reveals that most have prior criminal records.72 In addition, in his study one-third of the abusers had prior restraining orders against the same victim. He further concludes that not only did the majority of abusers in his study have prior criminal records, but the reabuse rate was the same as reoffending rates for other types of offence when compared to the reoffending rate of all men on probation in Massachusetts. He warns, however that male abusers are the more dangerous because they have, in the main, prior histories of violence with a ready access to their victims, particularly as the court in his study routinely granted visitation rights to the victim’s children. Taking the two research studies together, there would appear to be evidence that court orders alone will provide only temporary relief for the majority of victims of domestic violence. Furthermore, both pieces of research indicate that in many cases there are certain characteristics which may indicate to the court those respondents who are likely to re-abuse their victim. Given the evidence above, will the new legislation provide greater protection for victims than at present? The PHA 1997 is aimed at protecting victims of harassment who have not lived in the same household as the _______________________________________________________________________________________________________ ___________________________________

70 Ibid. 71 Op cit, p 202. 72 Dunford, Huizinga Elliot, ‘The role of arrest in domestic assault: the Omaha police experiment’ (1990) Criminology, 28(2), 183–206; Hirschel, Hutchinson, Dean, ‘The failure of arrest to deter spousal abuse’ (1992) Journal of Research in Crime and Delinquency, 29(1), 7–34; Sherman, Berk, ‘The specific effects of arrest for domestic assault’ (1984) American Sociological Review, 49, 261–72; Sherman, Schmidt, Rogan, Policing Domestic Violence: Experiments and Dilemmas (1992), New York: Free Press. 84

Protection after 1997 harasser. Some of these victims may have had an intimate relationship with their harasser and thus may be classed as domestic victims. As such, the power to issue injunctions enforceable by criminal sanctions for breach is much more effective than the existing law. The FLA 1996, Part IV of which was enacted specifically to protect victims of domestic violence within the definition adopted by this book, would appear at first sight to give much greater protection to those victims. The FLA 1996 protects a much wider group of victims than is the case under the DVMPA 1976, DPMCA 1978 or the MHA 1983. Furthermore, the new provisions create a statutory duty to grant an order and issue a power of arrest in certain circumstances. This is vastly different from the present law. However, evidence from the research in America would suggest that these changes alone, while providing short-term protection, will not prevent further violence, in many cases shortly after the issue of the order. How could the provisions of the FLA 1996 be made more effective? If we look back to Klein and Harrell and Smith’s studies, certain case characteristics will predict the likelihood of an order being broken. Taking the studies together, it could be said with some certainty that the following characteristics indicate future abuse: (a) younger abusers; (b) abusers separated from their victim; (c) a history of persistent violence against the victim; (d) children living with the victim; (e) previous criminal convictions within the last 15 years; (f) strong resistance to an order being granted by the respondent at the hearing. If all of this information were available to judges, magistrates and the police – if, for example, details of the history of the abuse were given to the court, the respondent’s criminal record was admissible and the behaviour of the respondent at the hearing was taken into account – it could lead to more effective remedies being granted. In such cases where a number of the predictors were present, if judges invariably issued an order with a power of arrest attached, it would reduce the risk of future re-abuse. Furthermore, if the police were given such details when a power of arrest was attached to an order, and were required to arrest when an order was breached and the predictors were present, this could also reduce re-abuse. In addition, if, when arrested, the perpetrators were remanded in custody, this might reinforce the message that violence of any kind is a crime and will be treated as such. The above additional protection needs to be complemented with the provision of alternative accommodation and short-term safe places for victims to go. Re-abuse can only occur if the abuser can find his victim. The failure to impose a statutory duty on local authorities to rehouse domestic violence

85

Domestic Violence victims, plus inadequate funding of refuges, means that, in the majority of cases, court orders can only provide very short-term safety, leaving the victim at risk of re-abuse. The cases described earlier in this text show that often the victim leaves, only to return to the abuser because there is nowhere else to go. No law can adequately protect a victim who has to return to her abuser, or whose abuser can return to the place where he knows she is living. Stricter enforcement of court orders, with imprisonment for breach, coupled with alternative and safe accommodation can go a long way to giving long-term protection. None of the additional protection discussed above can be effective without adequate training for all of those involved in domestic violence. Representatives, judges, magistrates and the police need to be educated to look beyond the facts of the particular incident which brought the complainant to court. Only when the whole history of the case is used to decide the remedies to be imposed can the law say that it is doing all it can to give adequate protection to victims of the violence known as domestic.

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CHAPTER 5

THE POLICING OF DOMESTIC VIOLENCE

INTRODUCTION So far we have concentrated on the powers and responses of the courts to domestic violence incidents, and to allegations of such violence. However, police actions and attitudes are crucial to the question of whether the law provides adequate protection against, and appropriate remedies for, domestic violence. It could be argued that this is obvious, or ought to be so, given the function of the police, for a variety of reasons. First, the police are the initial point of contact in many, though not all, incidents of domestic violence, real or alleged. How responses are made, and the content of those responses, determines the effectiveness of the protection, irrespective of whether that protection is achieved through the criminal or civil process. In short, the police act as ‘gatekeepers’.1 Secondly, the nature of the police response may determine the whole approach taken to the incident and problem. It is the police who decide whether inquiries are initiated and pursued, and if so in what form or with what vigour. The immediate response, in terms of speed and type, will be driven primarily by considerations that focus on criminal justice issues, namely, the preservation of the peace, the investigation, detection and prevention of offences, and the acquisition of evidence to secure convictions. Indeed, the police are ‘the key to the whole criminal justice system’.2 However, it by no means follows that a criminal justice focused response is one that the alleged victim, or members of his or her family, wish. It may not be necessary, or even in their interests.3 Thirdly, the actions of the police are crucial to the successful operation of the prosecution process. Success in prosecuting perpetrators of domestic violence is crucial to the effectiveness of the law as a deterrent against domestic violence, although the police are not, in this context, the only contributor to the success or otherwise of the prosecution process. In particular the role played by the Crown Prosecution Service should be noted.4 Police actions cannot, of course, be considered in isolation. They reflect and are based on systems, attitudes and perspectives which determine what __________________________________________________________________________________________________________________________________________

1 2 3 4

See Stanko, Women Policing and Male Violence: International Perspectives (1989), London: HMSO, p 55. Association of Chief Police Officers, in evidence to Home Affairs Committee (1992–93), 3rd Report, Domestic Violence, Vol 1, Report, HL 2 45–41, HMSO, para 13. See below, p 127. See below, p 137. 87

Domestic Violence actions, if any, are taken. All of these interact. As Edwards observes,5 ‘police conduct is not only the product of individual police attitudes, but is also constructed in accordance with formal rules which provide the legal ratification for much of what they do’. In reality what occurred has, in the past, effectively amounted to a public/private law dichotomy. Although the police are comfortable with, and respond to, issues defined in terms of a criminal justice response, matters that are perceived, rightly or wrongly, as ‘domestic’ may attract different responses. These responses may be coloured by value judgments made about the victim, about his or her behaviour, about the alleged offender, and by judgments as to class and race which are stereotypical, and which shape attitudes.6 In recent years these attitudes and problems have been increasingly explored and researched. The ‘classic’ (and now, perhaps, historic) police reaction to domestic violence is, of course, well-known and well-recognised, and typically involved three characteristics. These were identified by Buzawa and Buzawa7 as follows: (a) relatively few of the potential number of domestic violence cases were ever formally addressed by the police, the majority being screened out; (b) the lack of a desire by police to get involved in family or domestic disputes; (c) a strong, sometimes overwhelming bias, against making arrests. This summary strongly reflects the findings of Edwards,8 and the evidence tendered to the Home Affairs Committee 3rd Report.9 The inadequacies of these reactions have now been recognised and criticised.10 This in turn led to a governmental response, in the form of Home Office Circular 60/90. That circular recommended a more interventionist approach to the policing of domestic violence, and greater inter-agency co-operation. Chief Police Officers were ‘asked to ensure that all police officers involved in the investigation of cases of domestic violence regard as their overriding priority the protection of the victim and the apprehension of the offender’, and the circular identified __________________________________________________________________________________________________________________________________________

5

Edwards, Policing Domestic Violence: Women, The Law and The State (1989), London: Sage Publications, p 81. 6 Ibid, p 92. Cf Sanders, Personal Violence and Public Order: The Prosecution of ‘Domestic Violence’ in England and Wales [1988] 16 International Journal of Sociology of Law 359. 7 Buzawa and Buzawa, Domestic Violence: The Criminal Justice Response (1996), 2nd edn, Newbury Park, CA: Sage Publications, p 37. 8 1989, op cit. 9 1993, op cit. 10 See: Buzawa and Buzawa, op cit; Edwards (1989), op cit; Hamner, Radford and Stanko, Women, Policing and Male Violence: International Perspectives (1989), London: Routledge; Morley and Mullender, Preventing Domestic Violence to Women (1994), Police Research Group Prevention Series, paper 48, London: HMSO. For a review of the literature, see Smith, Domestic Violence 1989, Home Office Research Study No 107, London: HMSO.

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The Policing of Domestic Violence some 13 specific areas requiring action. The detail of this, the responses to it and its impact are discussed later in this chapter.11 In considering the appropriateness of police responses to domestic violence, their wider role should not be overlooked or minimised. It has already been noted that the police are the organisation often most likely to be immediately called upon by a victim of domestic violence. Circular 60/90 stressed the role the police play, or should play, in liaising with other agencies and voluntary bodies so as to ensure that arrangements exist for referring victims of domestic violence to sources of long-term support, and thus ensure that they are supported through the pre-trial process if the criminal justice process is in fact instigated. The police also play a crucial role in crime prevention. The Association of Chief Officers of Police believed that domestic violence should ‘increasingly form part of crime prevention strategy’.12 It is because of this overall context that the police role is crucial. In part this turns on the attitudes of individual officers and the operational policies adopted as well as on the existing legal framework. However, the performance of this role may also depend upon the answer to the simple question: what is domestic violence?

DOMESTIC VIOLENCE: OFFENCES AND POWERS Any discussion of attitudes or responses to domestic violence begs the question: what is meant by this term? In the criminal justice context, domestic violence is not a legal term of art, but one which is of importance in terms of police powers and practices. The definition of domestic violence for the purposes of this text has already been seen,13 but is less important than that used by the police themselves, either in determining the extent of legal power to intervene, or in determining how cases should be handled. Circular 60/90 marked a watershed in that it set in train a process of change in approaches to training and attitudes to the policing of domestic violence. Any policing system which seeks to identify special concerns and procedures in domestic violence cases depends for its efficacy upon those operating and working within that system recognising that the subject matter does, in fact, fall within those concerns and procedures. The Home Affairs Committee defined domestic violence as any form of physical, sexual or emotional abuse which takes place within the context of a close relationship,14 although it concentrated its consideration on the issues of __________________________________________________________________________________________________________________________________________

11 12 13 14

See below, p 106. Home Affairs Committee, 3rd Report, op cit, paras 39–43. See above, p 1. Op cit, para 2, an approach also adopted by Grace, Policing Domestic Violence (1995), Home Office Research Study 139, London: HMSO. 89

Domestic Violence the policing of inter-partner (or ex-partner) violence. One example of a specific police force definition of domestic violence was found by the authors during a study of responses to domestic violence by Leicestershire Constabulary.15 The definition adopted by that force at the time of that survey was: ‘Any incident of violence or aggression where the alleged offender is known to the victim through an existing or previous domestic relationship.’ The definition has changed since the date of that survey. The Leicestershire force currently define domestic violence as:16 Any incident of violence or aggression whether that be physical, sexual, emotional or psychological abuse of an individual by a family member, partner or ex-partner in an existing or previous domestic relationship regardless of gender or sexual orientation.

Both definitions concentrate on the nature of the relationship between complainant and assailant, and are broad enough to include relationships where the persons involved do not cohabit, and never have. Thus the Leicestershire Domestic Violence Annual Report for 1995/96 identified some 18% of all domestic violence incidents for that year as occurring between noncohabiting boyfriend and girlfriend. This concentration on the nature of the relationship rather than the circumstances of the violence is not, in the context of the policing role, crucial. The police role operates within the context of criminal law and of police powers which apply irrespective of the nature of the relationship. These offences and powers are discussed below, and are potentially wide enough to encompass the widest forms of violence, whether actual or threatened, physical or psychological, sexual or non-sexual, and whether the violence is offered to adult or child, partner or ex-partner.

1 Physical violence Non-consensual physical violence is recognised as unlawful by the criminal law, subject to limited defences, and gives rise to a wide range of potential criminal offences. Which offence, or offences, are relevant and appropriate will depend on the nature of the harm suffered, its extent, or the intention of the perpetrator. These offences, or reasonable suspicion of any of them, will also trigger a range of police powers that will facilitate the policing of domestic violence. All of these offences involve assault or battery. An assault is any act by which a person intentionally or recklessly causes another to apprehend

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15 Hereafter referred to as ‘the Leicestershire study’. For details of this study, see below, p 110. 16 See Leicestershire Constabulary: Domestic Violence, Annual Report 1995/96. 90

The Policing of Domestic Violence immediate and unlawful force. 17 A person is guilty of a battery if he intentionally or recklessly applies unlawful force to the body of another person.18 Thus a criminal offence will have been committed in cases of either actual or apprehended force. The actual offences that may arise range from murder or manslaughter, in cases of unlawful killing, attempted murder and the various non-fatal assaults recognised by the law, either under the Offences against the Person Act (OPA) 1861 or at common law. In the context of domestic violence, the main non-fatal offences against the person (other than specifically sexual offences)19 are as follows: (a) 1861 Act, s 18: it is an offence, punishable with life imprisonment, for a person unlawfully and maliciously to wound20 or cause grievous bodily harm21 to any person by any means whatsoever with intent, inter alia, to do grievous bodily harm. (b) 1861 Act, s 20: it is an offence, punishable with a maximum term of imprisonment of five years, to unlawfully and maliciously wound or cause grievous bodily harm. (c) 1861 Act, s 47: it is an offence, punishable by a maximum term of imprisonment of five years, to commit an assault occasioning actual bodily harm. In addition, at common law assault22 (‘common assault’) or battery (‘common battery’) is also an offence, punishable by six months’ imprisonment, or a fine not exceeding level 5 on the standard scale,23 or both. It will be clear from the above that, in the context of domestic violence, the key issues are whether the force used was unlawful, and whether it was intentional.

Unlawful force Force will not, generally, be unlawful if it has been undertaken with consent. An individual can consent to acts that would otherwise amount to assaults or __________________________________________________________________________________________________________________________________________

17 R v Savage; R v Parmenter [1992] 1 AC 699; [1991] 4 All ER 698. For a definition of ‘force’ see Swales v Cox [1981] QB 849; [1981] 1 All ER 1115: ‘the application of energy to an object’. 18 Fagan v Metropolitan Police Commissioner [1969] 1 QB 439. 19 See below, p 101. 20 To constitute a wound, the inner and outer skin must have been broken: M’Loughlin (1838) 8 C & P 635. 21 Grievous bodily harm means harm which is ‘really serious’: DPP v Smith [1961] AC 290; [1960] 3 All ER 161. 22 Which for this purpose includes a battery: DPP v Little [1992] 1 All ER 299. 23 The standard scale of fines applies only to offences which are only triable summarily. The meaning of the standard scale is that given by s 37 of the Criminal Justice Act 1982 and Sch 1 of the Interpretation Act 1978. When this book went to press the standard scale was as follows: Level 1 £200; Level 2 £500; Level 3 £1,000; Level 4 £2,500; Level 5 £5,000. 91

Domestic Violence batteries, provided that consent was not obtained by duress24 or fraud.25 However, there are limits. First, if the victim is so young or mentally disordered as not to be able to comprehend the nature of the act committed, apparent consent will be vitiated.26 Arguably, this will include situations where a partner is tied, hit or otherwise physically subjected to force (eg by the use of objects, substances, or by tattooing27 or piercing) in circumstances where ostensible consent exists but where, because of alcohol or substance abuse, that partner is totally incapable of understanding what is occurring.28 Such cases are likely to be extreme and uncommon, for mere intoxication will be insufficient to vitiate consent. A clear distinction exists in reality between consent, compliance and control. Domestic violence and sexual crime is often underpinned by a desire on the part of the perpetrator to exert power or control.29 No consent exists in law unless it is genuine, and various factors have been held to vitiate apparent consent. Thus rape is committed where the apparent consent is procured by personal violence or threats of personal violence,30 by fraud as to the nature of the act31 or the identity of the actor,32 or because of the mental incapacity of the complainant. ‘Compliance’ raises more difficulties because, although there is apparent consent, that consent may not in any sense be genuine. In R v Olugboja33 the Court of Appeal, in dismissing an appeal against a conviction for rape, drew a distinction between consent and submission. A person who submits in law does not necessarily consent. A person may submit to sexual intercourse, or other conduct, for a variety of reasons that go beyond the range of traditional factors set out above as vitiating consent in rape. Arguably, this is true not only in the law of rape, but generally, and not confined to consent in the law of rape. Despite doubts from some commentators,34 the way seems clear for courts to take a view on the concept of consent that reflects the power and control dynamics that characterise domestic violence situations. Further, there are limits as to what a person can consent to in law. Save in certain limited situations, an individual cannot consent to the infliction of _________________________________________________________________________________________________________________________________________

24 R v Day (1841) 9 C & P 722. 25 See, in the context of rape, R v Williams [1923] 1 KB 340. 26 Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112; [1985] 3 All ER 492. See, generally, Card, Cross and Jones, Criminal Law (1995) 13th edn, London: Butterworths, pp 177–78. 27 Tattooing of a person under 18, other than by a doctor for medical reasons, is unlawful and therefore cannot be consented to: Tattooing of Minors Act 1969. 28 Lang (1975) 62 Cr App R 50. 29 See above, p 16. 30 R v Mayers (1872) 12 Cox CC 311. 31 R v Williams [1923] 1 KB 340. 32 R v Linekar (1994) The Times, 26 October. 33 [1982] QB 320; [1981] 3 All ER 443. See also R v Larter and Castleton [1995] Crim LR 75. 34 See Card, Cross, Jones, Criminal Law, op cit, p 238. 92

The Policing of Domestic Violence actual bodily harm.35 This is an important issue in the domestic context. There may be pressures to consent to extremes of conduct, whether sexual or otherwise. Clearly, issues arise as to genuiness of any purported consent,36 and the limits the law imposes are therefore crucial in striking a balance between prohibiting conduct that is not in the public interest, whilst refraining from legal interference in the private, consensual activities of individuals. This raises difficult issues. In R v Wilson37 Russell LJ observed that ‘consensual activity between husband and wife, in the privacy of the matrimonial home is not, in our judgment, normally a proper matter for criminal investigation, let alone criminal prosecution’. The key word here is ‘normally’. Respect for private and family life is, of course, an internationally recognised right under Art 8 of the European Convention on Human Rights, 38 and that surely includes respect for individual preferences, whether sexual or otherwise. The law recognises, however, that there are limits. The question is: where are these limits to be drawn? The rule that an individual cannot consent to actual bodily harm has been clearly stated. In R v Donovan39 the appellant, in private, beat a girl aged 17 for the purposes of sexual gratification, with her consent. The act was considered to have about it an aggressive element. The Court of Appeal held that consent was immaterial: the conduct was unlawful. The rule is based on questions of public interest in prohibiting actual bodily harm where there is no good reason for it. Clearly, good reason exists for consent to bodily contact in sport, within limits, or for consent to medical treatment. The question remains as to how much further the law should go. This was the issue before the House of Lords in R v Brown,40 where the House had to consider the legality of sadomasochistic acts between consenting male homosexuals. The appellant, who had been convicted of assaults occasioning actual bodily harm contrary to s 47 of the OPA 1861, had willingly participated in acts of physical violence, including genital torture, for the sexual pleasure created or stimulated by the giving and receiving of pain. No permanent injury was suffered. These activities, which were videotaped, occurred in private. The majority of the House, in dismissing the appeals against conviction, concluded that consensual sado-masochistic homosexual encounters which occasioned actual bodily harm were unlawful, consent notwithstanding. This was because public policy required that society be protected by criminal sanctions against a __________________________________________________________________________________________________________________________________________

35 For the meaning of this term see R v Miller [1954] 2 KB 252; [1954] 2 All ER 529, where it was said that this meant any hurt or injury calculated to interfere with the health or comfort of the victim, being more than transient or trifling. ‘Harm’ is a synonym for ‘injury’: R v Chan-Fook [1994] 2 All ER 552. 36 See above, p 92. 37 [1996] 3 WLR 125. 38 See Wadham, Consent to Assault (1996) 146 NLJ 1812; cf Bradwell, op cit, p 1670. 39 [1934] 2 KB 498; see also A-G’s Reference (No 6 of 1980) [1981] QB 715; [1981] 2 All ER 1057. 40 [1994] 1 AC 212; [1993] 2 All ER 75. 93

Domestic Violence cult of violence which contained the danger of the proselytisation and corruption of young men. By contrast, the minority considered the case to raise the issue not of violence but of the criminalisation of private sexual conduct. Lord Mustill perceived cogent public policy reasons why the courts should not intervene in circumstances of this type. The ratio decidendi of Brown is uncertain. It could be confined to the narrow issue of sexual violence in homosexual cases. Indeed, Russell LJ in Wilson41 specifically noted that the certified question in Brown related only to a ‘sadomasochistic encounter’ and that it was not an authority for the general proposition that consent is no defence to a charge involving a s 47 assault. Clearly, however, Brown cannot, and should not, be confined to homosexual conduct, and the principle in issue arguably goes beyond the sexual, sadomasochistic context. In Wilson the appellant had been convicted of a s 47 assault, having, at his wife’s instigation, branded his initials on her buttocks with a hot knife. In quashing the conviction, the Court of Appeal considered that there was no evidence that what the appellant did was any more dangerous or painful than tattooing, that there was no aggressive intent and that it was not in the public interest that such consensual activity between husband and wife in the privacy of the matrimonial home should be a matter for criminal investigation or prosecution. The appropriate place to draw the line is uncertain. Wilson could be viewed simply as a tattooing case, albeit one of an amateur nature, but is unlikely to be so confined. ‘Aggression’ is not a helpful concept to introduce into the analysis, because it begs the question to be answered. An assault is by nature ‘aggressive’ in the sense of being without consent, or, at any rate, consent recognised as valid by the law. If what is meant is to be judged by the motive of the aggressor, that re-introduces into the law concepts of ‘hostility’ that have been rejected as playing no part in the legal test.42 The matter is surely one of public policy, and public policy alone. In Brown the House of Lords regarded what had occurred as ‘physical torture’, with ‘obvious dangers of serious personal injury and blood infection’. The Law Commission has suggested43 that consent should not be a defence to any assault that occasions a ‘serious disabling injury’. Such a formulation would permit those who wish to genuinely consent to sado-masochistic acts to do so. However, it should be remembered that a ‘life of abuse leaves some women incapable of linking a physical relationship to anything other than pain’.44 The issue is crucial to the striking an appropriate balance between _________________________________________________________________________________________________________________________________________

41 [1996] 3 WLR 125. 42 See Collins v Wilcock [1984] 3 All ER 374, per Robert Goff LJ, approved in F v West Berkshire Health Authority [1989] 2 All ER 545. 43 Consent and Offences Against the Person (1994), Law Commission Working Paper No 134, London: HMSO. 44 Bradwell, op cit, p 1670. 94

The Policing of Domestic Violence legitimate private activity and legal condemnation of violence occurring in a domestic context. This balance can perhaps better be struck by focusing on the question of real consent45 rather that the acceptability or otherwise of the conduct.

Intent There must be intent to cause the actus reus of the relevant offence. That is not, however, the same as requiring intent to cause the consequence that in fact arises. Providing the act intended was unlawful, the resulting consequences are immaterial for a common assault or battery, or assaults under ss 20 or 47 of the OPA 1861. Thus, if a man throws his pint of beer over his partner he is criminally liable if the glass slips from the hand and causes more severe injury than intended.46 By contrast if he believes (reasonably) that he has the right to do what he is doing, because of perceived consent, then no assault is committed provided the act is one which the law recognises as one for which consent may in fact be given.

2 Non-physical violence An assault or battery does not necessarily involve apprehended or actual physical harm.47 Domestic violence may thus go beyond physical assault and involve non-physical ‘violence’. In Smith v Chief Superintendent, Woking Police Station48 the defendant had been convicted of an offence under s 4 of the Vagrancy Act 1824, which provides that ‘Every person being found ... in any enclosed ... garden for any unlawful purpose shall be deemed to be a rogue and vagabond’. He had entered the garden of a private house and looked through the windows of the house occupied by the victim. The court found that he intended to frighten the woman, and thus there was an assault for the purpose of s 4. He intended to assault her thereby causing her fear and shock. ‘Fear and shock’ may amount to an assault, but do not necessarily constitute actual bodily harm. In R v Chan-Fook49 it was held that ‘actual bodily harm’ may include injury to any part of the body, internal organs, the nervous system and the brain, and includes psychiatric injury, although not emotion such as fear, distress or panic. However, in R v Ireland50 the appellant was convicted of three counts of s 47 actual bodily harm, offences which arose as a result of the appellant making a large number of unwanted telephone __________________________________________________________________________________________________________________________________________

45 46 47 48 49 50

See above, p 92. See the facts of R v Savage; R v Parmenter, op cit. R v Savage; R v Parmenter, above. (1983) 76 Cr App R 234. [1994] 2 All ER 552. [1997] 1 All ER 112. 95

Domestic Violence calls to the women complainants. Commonwealth authority already existed to confirm that threats made over the telephone constituted an assault,51 and in this case the medical evidence established that each of the women had suffered significant psychological symptoms as a result of the silences that followed their answering the telephone. The medical symptoms suffered included palpitations, breathing difficulties, cold sweats, anxiety, inability to sleep, tearfulness, stress and a nervous skin condition. The conduct complained of was held by the Court of Appeal to constitute actual bodily harm for the purposes of s 47. Thus, the criminal law already regulates some conduct that falls under the heading of ‘harassment’. The making of unwanted telephone calls, the ‘stalking’ of an individual causing fear and subsequent physical or psychological harm, and other similar conduct may each fall to be regarded as an assault. However, not all forms of harassment will amount to assault, and the other statutory offences must therefore be considered.

3 Harassment, molestation and stalking Each of these can amount to domestic violence. A typical non-molestation order issued by a civil court 52 might restrain a person from ‘using or threatening violence against the applicant; pestering, harassing, molesting or interfering with her; communicating with her save through solicitors; loitering outside a specific place and from the applicant’s home’.53 Some but not all of these could constitute an assault. Most are capable of falling within the scope of the civil remedy potentially available since the decision of the Court of Appeal in Khorasandjian v Bush.54 However, such conduct is often already a criminal offence, as well as amounting to conduct that may give rise to the preventative powers in respect of breaches of the peace.55 The key offences are those contained in the Public Order Act 1986, as amended. Section 4 makes it an offence, inter alia, for a person– (a) to use towards another threatening, abusive or insulting words or behaviour, (b) to distribute or display to another person any writing, sign or other visible representation which is threatening, abusive or insulting, with intent to cause that person to believe that immediate unlawful violence will be used against him or another by any person, or to provoke the _________________________________________________________________________________________________________________________________________

51 52 53 54 55

Baker v Armstrong [1969] 2 NSWLR 451. See also, now R v Constanza [1997] Crim LR 576. See above, p 67. These were the main terms of the order issued in McCann v Wright [1995] 2 FLR 579. [1993] QB 727. For discussion of this, see above, p 34. See above, p 104. 96

The Policing of Domestic Violence immediate use of unlawful violence against that person or another or whereby that person is likely to believe that such violence will be used or is likely that such violence will be provoked.

By s 4A it is an offence for any person, with intent to cause a person harassment, alarm or distress– (a) to use threatening, abusive or insulting words or behaviour, or disorderly behaviour, or (b) to display any writing, sign or other visible representation which is threatening, abusive or insulting, thereby causing that or another person harassment, alarm or distress.

By s 5 it is an offence for any person– (a) to use threatening, abusive or insulting words or behaviour, or disorderly behaviour, or (b) to display any writing, sign or other visible representation which is threatening, abusive or insulting, within the sight or hearing of a person likely to be caused harassment, alarm or distress, thereby causing that or another person harassment, alarm or distress.

These provisions are extremely broad and capable of dealing with most conduct commonly described as ‘harassment’ or ‘stalking’. For the purposes of s 4, the conduct or words have to be used ‘to another’.56 This is frequently the case, but in any event this limitation does not apply to a s 4A or s 5 offence. What is ‘threatening, abusive or insulting’ is to be decided in the light of the ordinary and natural meaning of those words.57 So, too, is ‘violence’. It is, of course, insufficient that conduct or words give rise to anger, distress or disgust.58 However, it is difficult to imagine many forms of conduct occurring in the context of domestic violence that do not fall within the definitions of the actus reus of the s 4, s 4A or s 5 offence. Certainly, the following of an individual, the repetitive standing outside a dwelling or the making of unwanted telephone calls will frequently be regarded by the ‘recipient’ as threatening, and these offences clearly cover abusive or insulting words or gestures. By contrast, other forms of behaviour may be less clear-cut. Examples might include the deposit of excrement through a letter-box, or the deposit of the body of a dead animal in a front garden. Further, s 4A and s 5 each deal with ‘disorderly’ behaviour, if intended or likely to cause harassment, alarm or distress. The term ‘disorderly’ is vague,

__________________________________________________________________________________________________________________________________________

56 Atkin v DPP (1989) Cr App R 199. 57 Brutus v Cozens [1973] AC 854; [1972] 2 All ER 1297. 58 Parkin v Norman [1983] QB 92. 97

Domestic Violence and although courts have on occasion attempted a definition,59 it is to be given its ordinary and natural meaning.60 It is, ultimately, a question of fact. The Shorter Oxford Dictionary includes, in its definition, ‘violating moral order, constitutional authority or recognised rule; lawless; unruly’ and ‘constituting a nuisance’. It is difficult to conceive of more vague terms, and they are certainly wide enough to encompass diverse forms of unacceptable, but nonviolent conduct, for example the making of unwanted and repeated telephone calls, the taking of unwanted photographs, the sending of unwanted flowers or pizzas. However, these offences have two distinct limitations. The first is that no offence is committed where the words or behaviour are used by, or engaged in by, a person inside a dwelling,61 and the person who is harassed, alarmed or distressed is also inside that or another dwelling. Thus, typically, threats made inside the matrimonial home will not constitute an offence under the 1986 Act, even if heard by a neighbour in an adjacent dwelling. By contrast the same threats shouted from the street or garden to the dwelling, or vice versa, or telephone calls from a call box or public house, would be. However, this is not a significant limitation in the scope of the criminal law or police powers. Such conduct will often amount to another offence under the OPA 1861, or amount to a breach of the peace. Secondly, the requisite intent must exist. By s 6 of the 1986 Act, the person must intend his conduct to be threatening, abusive or insulting or, in the context of s 4A or s 5, to be disorderly, or be aware that it may be one of these. In most cases this will be so, judged in the light of the overall context, but there may be instances where the requisite intent is lacking because the person honestly believes that he is assisting another person, or that his attentions are welcomed or appreciated. In this context, new statutory provisions that extend the criminal law and police powers have been introduced in the Protection from Harassment Act (PHA) 1997. The provisions that relate to extension of the civil law have already been noted. 62 The PHA 1997 was introduced to implement the _________________________________________________________________________________________________________________________________________

59 See, eg Melser v Police [1967] NZLR 437, where Turner J, in the New Zealand Court of Appeal, said: ‘Disorderly conduct ... is conduct which, while sufficiently ill-mannered, or in bad taste, to meet with the disapproval of well-conducted and reasonable men and women, is also something more – it must ... tend to annoy or insult such persons as are faced with it – and sufficiently deeply or seriously to warrant the interference of the criminal law.’ 60 Clarke v DPP [1995] Crim LR 846. 61 ‘Any structure or part of a structure occupied as a person’s home or as any other living accommodation’: s 16 of the 1986 Act. Quaere, whether this includes the common parts of premises in multiple occupation: see, generally, Card & Ward: Criminal Justice and Public Order Act 1994, 1994, Bristol: Jordans, p 388. 62 See above, p 77. For the pre-existing position in tort, see Khorasandjian v Bush [1993] QB 727. For analysis, see Davey: Protecting victims of domestic violence and harassment (1996) 8 Child and Family Law Quarterly 269. 98

The Policing of Domestic Violence proposals set out in a government Consultation Paper63 which proposed the creation of two new criminal offences, as well as new civil processes, and a clear interaction between civil and criminal processes. The PHA 1997 deals with ‘harassment’ but does not define it. The Shorter Oxford Dictionary suggests terms such as ‘trouble’, ‘vex by repeated attacks’, ‘worry’ and ‘distress’, and again it would appear appropriate to attach to the term its ordinary and natural meaning. Section 2 of the PHA 1997 makes unlawful the pursuing of a course of conduct which amounts to harassment of another, and which the perpetrator knows, or ought to know, amounts to harassment of the other. The offence is triable summarily and is an arrestable offence.64 A person ought to know that his course of conduct amounts to harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to harassment, and thus there is no defence for the besotted, single minded or unthinking. It is unclear whether the offence can be committed by conduct on a single occasion. The words ‘course of conduct’ might be construed as suggesting otherwise. The use of the words ‘... course of conduct causes to fear, on at least two occasions ...’ in s 465 does not assist, because arguably the words ‘on two occasions’ refer to the putting in fear, not the ‘course of conduct’. However, it is likely that the making of an on-going series of telephone calls over the span of a couple of hours will be within the ambit of the offence, although it may prove easier to establish, as a matter of fact, a case under s 2 if there is a course of conduct over a significant period of time. The scope of the s 2 offence is broad. Section 1(3) of the PHA 1997 does create a defence that the conduct was, in the particular circumstances, reasonable, but this does no more than allow a magistrates’ court to acquit in circumstances where the conduct complained of is so minor as not to deserve the sanctions of the criminal law. A second, more serious, offence is created by s 4. Under s 4, a person whose course of conduct causes another to fear, on at least two occasions, that violence will be used against him, is guilty of an offence triable either on indictment or summarily. On indictment the offence is punishable with a maximum term of imprisonment of five years, and thus the offence is an arrestable offence. Again, an objective test is introduced as to whether the person ought to have known that his course of conduct would cause such fear.66 The available defences in s 4(3) include a defence where ‘the pursuit of his course of conduct was reasonable for the protection of his or another’s property’. __________________________________________________________________________________________________________________________________________

63 64 65 66

Stalking -–The Solutions: A Consultation Paper (1996) Home Office. See below, p 103. See below, p 100. Section 4(2) of the PHA 1997. 99

Domestic Violence Linked to these two new offences are the civil remedies for a person who is, or may be, the victim of conduct that falls within s 1. Section 3 of the PHA 1997 specifically includes the right to claim damages, including damages for anxiety caused by, and financial loss resulting from, the harassment. By implication from the use in s 3(4) (which deals with injunctions) of the words ‘in such proceedings’, an action may be brought for an injunction in the civil courts, although this is not specifically stated. However, the clear link between s 3 and s 1 means that conduct amounting to ‘harassment’ has to be shown. It is a moot point whether it extends to all matters that may be the subject of a non-molestation order made under s 42 of the FLA 1996. Clearly, harassment constitutes molestation, but the reverse may not necessarily be true. The point is an important one. A power of arrest may or may not be attached to a nonmolestation order.67 By contrast breach of an injunction issued under s 3 of the 1997 Act is a criminal offence punishable on indictment with a maximum term of imprisonment of five years, and is thus an arrestable offence. There are thus significant advantages in ensuring an injunction is issued, where possible, under s 3 rather than s 42 of the FLA 1996. This link between civil and criminal process is crucial, and raises wider issues. Some commentators have argued that ‘stalking’ is essentially a criminal law problem,68 but the PHA 1997 does not take that approach. Instead, the seeking of orders is essentially left to individuals, with the usual issues arising as to the costs of application, legal aid, legal representation, and so on. In this regard the position is no different from that obtaining in respect of orders under the FLA 1996. However, by s 5 of the PHA 1997, a court, when sentencing for a s 2 or s 4 offence, may make an order prohibiting the defendant from doing anything described in the order, for the purpose of protecting the victim of the offence or any other person mentioned in the order, from further conduct which– (a) amounts to harassment, or (b) will cause a fear of violence. Breach of such an order, without reasonable excuse, is itself an offence under s 5(5), punishable on trial on indictment with a maximum term of imprisonment of five years. The offence is thus arrestable. Thus, significant powers exist to make orders in respect of one type of conduct commonly regarded as domestic violence which can be enforced by the police through the criminal process. It may be asked legitimately by some complainants of domestic violence who benefit from the protection conferred by orders made under the FLA 1996 why they, too, should not have orders which automatically attract the protection of the criminal law, with breach of _________________________________________________________________________________________________________________________________________

67 See above, p 73. 68 See, eg The Times, 22 October 1996, commenting on the stalking of a rape complainant, Perry Southall, by a convicted rapist. 100

The Policing of Domestic Violence an order being automatically a criminal offence. In so far as such orders contain a power of arrest 69 the point, from the policing perspective, is probably not crucial, because in any event no legal obligation to arrest arises. This whole issue of arrest is discussed further later in this chapter.70

4 Sexual offences These raise no issues of principle, although clear problems of proof arise in a domestic context.71 Now that the law has accepted that rape can occur within marriage,72 the full range of sexual offences can be available to deal with conduct committed in the domestic context. These will include rape, attempted rape, sexual intercourse with a girl under 13, procurement of a woman, by threat or intimidation, to have unlawful sexual intercourse, incest, and indecent assault. Therefore, non-consensual touching, or other sexual acts of a physical kind (such as tying, or forced participation in sexual activities with another), will each amount to assaults as described earlier as well as one of the specific sexual offences described above. The earlier described issues concerning consent are equally relevant here: consent must be real and genuine. Of more difficulty are the examples, quoted earlier,73 of the ripping of clothes and forced participation in dressing-up and fantasy-related activities. The former, when non-consensual, amounts to criminal damage. The legality of the latter may depend on the nature of any force used. Only if nonconsensual force is used does criminality appear to attach. In short, the scope of the various criminal offences is such as to provide a framework for potential criminal justice interventions in the overwhelming majority of domestic violence situations.

5 Police powers Powers of entry to property Section 17 of the Police and Criminal Evidence Act (PACE) 1984 confers certain powers of entry to property. By s 17(1) a constable may enter and search any premises for the purpose, inter alia, of arresting a person for an arrestable offence,74 or of saving life or limb or preventing serious damage to __________________________________________________________________________________________________________________________________________

69 70 71 72

See above, p 73. See below, p 103. See Chapter 6 below. R v R [1991] 4 All ER 481; , s 1 of the Sexual Offences Act 1956 (as substituted by s 142 of the Criminal Justice and Public Order Act 1994). 73 See above, p 92. 74 See below, p 103. 101

Domestic Violence property. This latter provision is, of course, crucial in many domestic violence situations, but, in any event, most offences of actual, attempted or threatened assault (other than common assault or battery) fall within the definition of an arrestable offence. Thus, typically, a s 47 assault is such an offence, being punishable with a maximum term of imprisonment of five years. It has already been noted that the various offences under the PHA 1997 are arrestable offences, or have a specific power of arrest attached to them. In terms of sexual offences, rape, attempted rape, sexual intercourse with a girl under 1375 are arrestable offences but procurement of a woman, by threats or intimidation, to have unlawful sexual intercourse, 76 unlawful sexual intercourse,77 some (though not all) allegations of incest, and acts of gross indecency78 are not. Even if the offence is an arrestable offence, the officer must hold the requisite intention. The power of entry under s 17 is one of entry for the purposes of arresting for an arrestable offence, or for saving life or limb or preventing serious damage to property. In a case where the constable intends to arrest for an arrestable offence, his intention must exist prior to the entry, for s 17 so requires. There is, of course, no requirement of an intention for arrest where the purpose of entry is to save life or limb, but the evidence in the mind of the officer must be such that he intends his entry to be for that purpose. That is, of course, not a point of difficulty where the police response is in relation to a telephone call from a victim, or from a neighbour complaining of screams, shouts or other conduct that might give rise to fear for the safety of the person in the house who can be regarded as the complainant. Even if powers of entry do not arise by virtue of s 17, wide powers exist at common law in respect of actual or apprehended breaches of the peace. The definition of ‘breach of the peace’, although not entirely clear, is certainly sufficiently broad to include harm or the threat of harm to a person or, in his presence, to his property.79 A constable who reasonably apprehends that a breach of the peace is occurring, or is imminent, may take such steps as are necessary to secure a cessation of that breach of the peace, or to prevent its occurrence. This may include entry to property.80 Finally, a power of entry may arise in respect of the enforcement of a power of arrest attached to an _________________________________________________________________________________________________________________________________________

75 76 77 78 79

Contrary to s 5 of the Sexual Offences Act 1956. Contrary to ss 2 and 3 of the Sexual Offences Act 1956. Contrary to s 6 of the Sexual Offences Act 1956. Contrary to s 13 of the Sexual Offences Act 1956. R v Howell [1982] QB 416; [1981] 3 All ER 383, followed in Parkin v Norman [1983] QB 92; [1982] 2 All ER 583; Percy v DPP [1995] 3 All ER 124. The dicta of Lord Denning MR in R v Chief Constable for Devon and Cornwall, ex p CEGB [1982] QB 458; [1981] 3 All ER 826 are too wide. 80 Thomas v Sawkins [1935] 2 KB 249; [1935] All ER 655; McLeod v Metropolitan Police Commissioner [1994] 4 All ER 553. 102

The Policing of Domestic Violence occupation or non-molestation order, made pursuant to s 47(2) of the FLA 1996. No power to enter for the purposes of effecting a power of arrest attached to a civil order under that section appears to exist. However, a constable who is aware of such a power will, almost certainly, have the basis for apprehension of one of the events, described above, that give rise to a right of entry. So too with the situation where the constable is aware that an undertaking has been given, and thus there is no power of arrest attached to an order. It can be seen, therefore, that the powers of entry in a domestic violence situation are wide, and give to a constable as much discretion as he could reasonably need.

Arrest It will be clear from the discussion of powers of entry that extensive powers of arrest exist. Crucial to these are the powers of arrest under ss 24 and 25 of PACE 1984. Section 24(6) confers on a constable the power to arrest where he has reasonable grounds for suspecting that an arrestable offence has been committed. He may arrest without warrant anyone whom he has reasonable grounds for suspecting to be guilty of that offence. Further, by s 24(7) a constable may arrest without a warrant– (a) anyone who is about to commit an arrestable offence; (b) anyone whom he has reasonable grounds for suspecting to be about to commit an arrestable offence.

‘Arrestable offence’ is defined by s 24(1), to include: (a) offences for which the sentence is fixed by law; (b) offences for which a person aged 21 or over (not previously convicted) may be sentenced to a maximum term of imprisonment of at least five years;81 (c) certain offences specified in s 24(2): these are unlikely to be relevant to domestic violence incidents, save possibly the offence specified in s 24(2)(g), which relates to indecent photographs and pseudo-photographs of children, and the new offence under s 1 of the Protection from Harassment Act 1997.

Equally importantly, perhaps, s 25(1) of PACE 1984 confers a power of arrest for a non-arrestable offence, where various pre-conditions are satisfied. For these purposes, the key pre-condition in s 25(1) is that one of the general arrest conditions be satisfied. These are defined by s 25(3) and include s 25(3)(d), which provides as follows: that the constable has reasonable grounds for believing that arrest is necessary to prevent the relevant person– __________________________________________________________________________________________________________________________________________

81 Or might be so sentenced but for the restrictions imposed by s 33 of the Magistrates’ Courts Act 1980. 103

Domestic Violence (1) (2) (3) (4) (5)

causing physical injury to himself or any other person; suffering physical injury; causing loss of or damage to property; committing an offence against public decency; or causing an unlawful obstruction of the highway.

Further, s 25(3)(e) provides a power of arrest where the constable has reasonable grounds for believing that arrest is necessary to protect a child or other vulnerable person82 from the relevant person. Finally, the powers in relation to breach of the peace identified above should be recalled; a power to detain exists to prevent a breach of the peace from continuing or commencing where such a breach is imminent.83 This includes the power to detain for the purposes of taking a person before a court for the purposes of the making of a binding over order, pursuant to the Justice of the Peace Act 1361.84 It was noted earlier that a court order under the FLA 1996 (or its predecessors) may, or may not, include a power of arrest, and it was pointed out that the absence of a similar power to attach a power of arrest to an undertaking (as opposed to a court order) is a significant gap in the law. This gap may be remedied by the effective use of the new power given to the county and High Courts by s 47(8), to issue a warrant for arrest for breach of an order – given that by s 46(4) an undertaking is enforceable as if it were an order of the court. But it is not yet apparent how this power will, in fact, be exercised. In the light of the above, however, it is submitted that the significance of the gap can be overstated. It will be recalled that a constable may arrest, pursuant to s 47(6) of the 1996 Act, a person who he has reasonable cause to suspect to be in breach of such an order. This is, of course, a wider criterion than exists pursuant to the powers of arrest in PACE 1984 or other specific statutory powers of arrest, but in many cases where the harm, or threatened harm, gave rise to the making of the order under the FLA 1996 there will in fact be grounds for arrest under s 24 or s 25 of PACE 1984. In most cases where an order has been made because of violence or threatened violence, it is likely that the constable has reasonable grounds to suspect that that person is about to commit an arrestable offence, if he is in fact in breach of the order made under the 1996 Act. That, of course, is not an inevitable conclusion, but one which will be the case in most situations. Furthermore, the broad powers in respect of breach of the peace, are likely to deal with the majority cases which do not fall within s 24. The one situation that does not perhaps fall clearly within PACE 1984 is where there is a breach of an _________________________________________________________________________________________________________________________________________

82 As defined by PACE 1984, Code C. This can include a vulnerable adult. 83 Lavin v Albert [1982] AC 546; [1981] 3 All ER 878. 84 See Hughes v Holley (1987) 151 JP 533, and Law Commission Working Paper No 103. 104

The Policing of Domestic Violence occupation order, but where at the time the officer attends the incident no violence has occurred, been threatened, or been apprehended. Even then, however, the existence of the order may cause a constable reasonably to anticipate the likelihood of future violence (ie a future breach of the peace) which will, again, bring into play the preventive powers of the police. It is, of course, one thing for a power of arrest to exist, but quite another for it to be used. Powers of arrest are discretionary, and, indeed, a force policy which required an arrest to be made irrespective of the particular facts would most probably be unlawful.85 However, this does not mean that policies that attempt to stipulate how arrest powers be used are necessarily unlawful. A policy which falls short of requiring an arrest to be made irrespective of the facts of the instant case may be perfectly proper. In Middleweek v Chief Constable of Greater Merseyside86 the court accepted that a policy was prima facie lawful, provided it did not fetter the discretion of the constable and, of course, provided that the criteria of that policy were themselves lawful. Further, the terms of s 47(6) of the FLA 1996 should be recalled: this subsection states that the constable may arrest without warrant a person whom he has reasonable grounds to suspect to be in breach of a provision contained in such an order. This again is discretionary. The discretionary nature of the power of arrest is in one sense important. Patently it is important that any power of arrest is subject to safeguards, and in the usual way. Safeguards in respect of statutory police powers are usually predicated upon the constable holding a particular mental state in respect of the instant facts. The concept of ‘reasonable suspicion’ or ‘reasonable belief’ is an important one. Against that, real dangers exist as to whether, through the exercise of that discretion, domestic violence incidents are being treated differently from other types of violent crime. Research studies indicate that that is so.87 Smith concluded that the overwhelming evidence from research ‘is that in cases where officers intervene in domestic violence incidents, they nevertheless do not arrest the assailant even in cases where there is clear evidence of assault’. This appears to be true irrespective of whether the potential power of arrest comes from the general criminal law, under PACE 1984 or its predecessors, or pursuant to a power of arrest contained in an order. Edwards concluded that arrests were made only rarely in such circumstances.88 It is in this context that debates about so-called ‘mandatory arrest policies’ should be judged.

__________________________________________________________________________________________________________________________________________

85 86 87 88

Lindley v Rutter [1981] 1 QB 128; [1980] 3 WLR 660. [1990] 3 WLR 481; [1990] 3 All ER 662. See Smith, op cit, pp 42–44. Edwards, op cit, Chapter 3, and, in particular p 133, citing the London Policing Study. 105

Domestic Violence

THE POLICING ROLE IN DOMESTIC VIOLENCE CASES It was observed earlier in this chapter that the key issues in the context of policing domestic violence are attitudinal. The substantive law, discussed above, is wide enough for the police to intervene in virtually every domestic violence situation if they choose to do so. However, as Edwards observes:89 the substantive law facilitates different styles of policing, ‘proactive’ in public order situations and ‘reactive’ in spousal violence situations. When an officer is called upon to use discretion in marital violence cases, his or her perceptions of seriousness, culpability, motivation and intent vary in accordance with the particular prevailing conceptions of likely suspects and credible victims.

Edwards stresses the need for that discretion to be focused. As she observes: ‘policing in the absence of policy (or a policy of maximum discretion) facilitates the making of individual judgments, often based upon erroneous stereotypes’. It is that policy that has undergone clear change in recent years. What is less clear is the extent to which those policy changes have been reflected by changing attitudes ‘on the ground’, ie amongst those who deal with domestic violence on a day-to-day basis.

1 Circular 60/90 Awareness that policing practices were, to say the least, less than satisfactory became greater during the 1970s and 1980s as a result of increased focus, both in the United Kingdom and elsewhere, on the nature of the problem and the issues it raises. As far back as 1975, the Report of the Select Committee on Violence in Marriage90 emphasised the need for policy review by the police. Monitoring occurred, seemingly spasmodically, in some police forces, but such studies as were undertaken clearly showed a pattern of police responses to domestic violence which effectively treated domestic violence differently from most other crime. For example, in the London Policing Study conducted by Edwards and others91 there was found to be– ... a tendency towards diverting cases away from criminalisation, by avoiding making of arrests (tendering advice rather than arresting in assault cases) referring parties to other agencies, and in most cases doing no more than attending the call and stopping any violence actually in progress.

In 1988 Bourlet92 found that only nine of the 43 police forces in England and Wales had policies relating to domestic violence, but some forces did take _________________________________________________________________________________________________________________________________________

89 90 91 92

Op cit, p 87. See Edwards, op cit, p 132. Summarised conveniently by Edwards, op cit, pp 134–35. Bourlet, Police Intervention in Marital Violence (1990) Buckingham: Open University Press. 106

The Policing of Domestic Violence positive and proactive steps. For example, in 1987 the Metropolitan Police issued a force order, containing instructions to officers in respect of domestic violence, and creating an expectation, in terms of policy, that officers should treat domestic violence no differently than any other form of assault. It stressed the need to improve training, reporting, awareness of legal powers and their use in domestic violence situations. In particular, the desirability in many instances of the making of an arrest for spousal or child protection reasons was stressed. This approach is mirrored more generally by the contents of Circular 60/90, in which the Home Office offered guidance to all police forces. Chief Officers were ‘asked to ensure that all police officers involved in the investigation of cases of domestic violence regard as their overriding priority the protection of the victim and the apprehension of the offender’. The circular identified some 13 different areas in which action was needed. Police were to– (1) Liaise with other agencies and voluntary bodies to establish arrangements for referring victims to sources of long-term support; (2) Consider the establishment of dedicated domestic violence units where this was practicable and cost-effective, and appointment of liaison officers where it was not; (3) Draw up a force policy statement on the response to domestic violence which emphasised the duty to protect victims from further attack and the need to treat domestic violence as seriously as other forms of violence; (4) Emphasise the need to respond to every incident with some sort of positive action; (5) Review recording policy to ensure all offences were properly recorded and not ‘no crimed’; (6) Recommend that their officers rarely attempt conciliation if the victim had been, or claimed to have been, violently assaulted; (7) Make arrangements for medical assistance to be provided for victims and for forensic medical examinations to be carried out; (8) Ensure that in all cases their officers were aware of their power of arrest in dealing with cases; (9) Ensure that in all cases their officers considered bringing a charge against alleged assailants and explain to victims the need to give evidence; (10)Consider using bail to provide protection for the victim when no charges were brought; (11)Provide full background information to the Crown Prosecution Service; (12)Make arrangements for continued support for the victim during the pretrial period; (13)Advise the Crown Prosecution Service if the victim wished to withdraw, after investigating her reasons and assessing them.

107

Domestic Violence To these ends, the circular identified various specific steps that could be taken, including the adoption of a presumption in favour of an arrest being made where an offence had been committed. This was later stated by the Home Affairs Committee to amount to ‘excellent practice’.93 Throughout, the need for positive police action was stressed.

2

Home Affairs Committee

The Home Affairs Committee Report amounts to an important review of the extent to which police practices in enforcing and applying the criminal law provided effective mechanisms for appropriate responses to complex domestic violence situations, and of the effectiveness of the exhortations in Circular 60/90. Indeed, the evidence given to the committee suggested that effective use of the criminal process was one of the ‘strongest deterrents’ in respect of domestic violence, and the attitudes of perpetrators.94 It should be noted that each of the 13 recommendations in Circular 60/90, and endorsed by the Home Affairs Committee, were procedural and attitudinal rather than recommendations that required changes in the substantive law. There was no evidence before that committee that the historically identified failings of the police in respect of domestic violence were caused by gaps in the substantive law, although the same cannot be said of the rules of evidence.95 Police responses to Circular 60/90 have been striking, at any rate at the organisational and policy-making levels. The Home Affairs Committee96 received evidence that the police service had undergone ‘significant cultural change’, a conclusion confirmed by Grace in Home Office Research Study No 139.97 Virtually all police forces have developed policies on domestic violence, and many (though not all) have developed units exclusively or predominantly dedicated to the investigation and handling of complaints of domestic violence. The police evidence given to the Home Affairs Committee identified ‘significant cultural change’ in the attitudes of the police over the previous decade.98 The general thrust of the testimony given to the committee was that the police take domestic violence much more seriously than hitherto. Police attitudes were changing. Historically, the appropriate response to incidents of domestic violence was considered by the police to be that the complainant _________________________________________________________________________________________________________________________________________

93 Home Affairs Committee (1992–93) 3rd Report, Domestic Violence, Vol 1, Report, HL 2 45-1, London: HMSO, para 16. See generally, below, pp 123–29. 94 See para 12, citing, eg, the evidence of the Chiswick Family Rescue. 95 See below, p 146. 96 Op cit, para 23. 97 Grace, Policing Domestic Violence in the 1990s (1995), Home Office Research Study No 139, London: HMSO. 98 Home Affairs Committee, op cit, para 15. 108

The Policing of Domestic Violence should have recourse to the civil law, with domestic violence considered by many officers to rank alongside lost dogs, rowdy youths and drunks in terms of police interest and importance. Domestic violence incidents were often ‘no crimed’ by officers attending at the scene. Such attitudes were found by the Home Affairs Committee to be changing, although not uniformly so. The committee records complaints, on occasion, of failures to ensure positive management attitudes in respect of police responses to domestic violence, the lack of an interventionist role, and evidence that domestic violence continues not to be taken seriously, or, at any rate as seriously as ‘ordinary’ crime.99 The report concludes that the picture was ‘patchy’.100 It identified the need for dissemination of good practice, particularly through the work of the Inspectorate of Constabulary. One aspect of police performance merited particular comment, namely the rate of arrest. The Home Affairs Committee, although accepting that a ‘mandatory arrest policy’ approach was inappropriate given the levels of discretion the law required to be exercised by police officers, considered that arrest ought to be ‘as normal a response to domestic violence as it is to other violent offences’. It recommended that all chief officers should set out a policy on domestic violence, 101 that domestic violence units be established, and not marginalised 102 and that, generally, good practice be disseminated throughout all officers, and, indeed through all practitioners in the criminal justice system. Such practices should be sensitive to the needs of the black and ethnic minority community.103

3 Home Office Research Study The contents of Circular 60/90, and the recommendations of the Home Affairs Committee Report provide benchmarks against which changes in police attitudes can be assessed, and the effects of practices and changes adopted or made can be measured. For this reason, subsequent research is important. In 1995 a Home Office Research Study into Domestic Violence was published.104 This was the latest of a series of studies looking at the attitudes of the police to domestic violence.105 The survey comprised a telephone survey of all 43 __________________________________________________________________________________________________________________________________________

99 100 101 102 103 104

Ibid, para 16. Ibid, para 17. Ibid, para 21. Ibid, paras 26–27. Ibid, para 34. Grace, Policing Domestic Violence in the 1990s, Home Office Research Study No 139, London: HMSO, 1995. 105 For earlier surveys see Edwards, 1986 and 1989, for a review of the literature see Smith 1989; see also Morley and Mullender, Preventing Domestic Violence to Women, Police Research Group Crime Prevention Unit Series Paper 48, 1994. 109

Domestic Violence police forces in England and Wales, followed up by a detailed study of five selected police forces (Northamptonshire, Nottinghamshire, Thames Valley, South Yorkshire, West Midlands). These forces were considered to be representative of different approaches to responses to domestic violence. Particular aspects of the report are dealt with in relation to specific issues, as they are discussed later in this chapter. However, Chapter 8 of the Research Study contains some more general conclusions. The study found that virtually all forces had developed policies on domestic violence, in line with Circular 60/1990, but concluded that the evidence suggested that although there had been translation of that policy into practice, that translation was limited in extent. Just over half of the forces had a specialist unit with some responsibility for domestic violence, but only five of those forces had wholly dedicated Domestic Violence Units. Awareness of officers as to how domestic violence should be policed was not always matched by the way such cases were policed in fact. There was greater awareness of domestic violence, but clear evidence existed of failures by police managers to communicate effectively force policies to those dealing with domestic violence in the operational context. In short, the general conclusions reached by Grace continue to cast some doubt as to whether the undoubted improvements in policing attitudes and practices have gone sufficiently far.

4 The Leicestershire Study This conclusion is mirrored by the experience found in the Leicestershire study conducted by the authors, although that survey must itself be viewed in a context of changes in force policy and practice. Following an earlier study of the attitudes of Leicester county court to applications founded on allegations of domestic violence,106 a survey was conducted as to attitudes and responses of officers dealing with domestic violence incidents in Leicestershire.107 The objective of the study was to try and identify attitudes and approaches in the context of changes in official police approaches to domestic violence, to seek to establish the degree of attitudinal change, if any, and to see whether attitudes could be characterised by the description ‘intransigent’.108 During 1994, Leicestershire Constabulary dealt with some 4,467 incidents classified by it as incidents of domestic violence. A questionnaire was sent to all operational officers within that force who potentially might be involved in dealing with those incidents of domestic violence during 1994. The number of __________________________________________________________________________________________________________________________________________

106 See Jones, Lockton, Ward and Kashefi, Domestic violence applications: an empirical study of one court (1995) Journal of Social Welfare and Family Law 17(1): 67–86. 107 The survey was conducted with the support of Leicestershire Constabulary, whose assistance is gratefully acknowledged. 108 See Edwards, 1996, op cit, p 197. 110

The Policing of Domestic Violence officers who were sent a questionnaire was 866. The great majority of responses were from officers with experience of domestic violence issues, albeit of different levels of frequency. Some 450 responses were received, a response rate of 51%. Given these levels of response, and bearing in mind that the questionnaire was sent to officers whose duties do not bring them into contact with domestic violence, we are satisfied that the response rate from those who actually come, or are likely to come, into contact with such issues is significantly higher than that figure. All responses were secured by processes that ensured anonymity, thus ensuring identification of actual attitudes and perceptions, not to simply the eliciting of repetitive statements of force policy. At the outset we were concerned to establish two matters. The first is the level of experience of those who actually deal with domestic violence incidents. The second is their perception as to what constitutes domestic violence. These two factors are crucial in determining the levels of training and its effectiveness, and perceptions of domestic violence as criminal behaviour.

Experience in dealing with domestic violence incidents We firstly asked the question: how many domestic violence incidents did you attend last year?109 Responses were classified into bands corresponding to the levels of police service of the respondents. The responses are set out in Table 1 below. They show a pattern of policing, with officers at all levels of experience being exposed to domestic violence incidents. However, the largest number of incidents during that previous 12-month period was dealt with by officers with between one and four years of service. Interestingly, of the 23 respondents who attended more than 100 incidents, the clear majority came from the one to four years’ service group. This firmly suggests, that, in this one force, the burden of policing domestic violence quite often falls on relatively inexperienced officers. This has several implications. Clearly, it is this group of officers who have most recently entered the police service and who might be expected to be most aware of modern policing policies and responses to domestic violence issues. Subjective assessment of levels of satisfaction with training received show these to be highest among newlyappointed officers.110 Yet clearly the amount of time that can be devoted at basic training stage is limited, and occurs at a time when the policing issues and problems may not be appreciated, or understood, by the individual officer. This conclusion is supported by Grace’s study.111

__________________________________________________________________________________________________________________________________________

109 The question was also broken down into subcategories of incidents deal with last week, and last month. Response percentages have been rounded to one decimal point. 110 The percentage rates of dissatisfaction with training in the Leicestershire survey rose as the level of years of service increased. See Table 4 below. 111 Op cit, p 22. 111

Domestic Violence Grace’s study is as follows:

Table 1 How many DV incidents did you attend last year? Length of Service Less than 12 mths 1–4 years 5–9 years

Incidents 0 1–4 5–9 10–19 20–29 30–39 40–49 50–59 60–69 70–79 80–89 90–99 100–109 110–119 120–129 130–139 140–149 150–159 200–210 240–250 350–359 N/R

No 9 2 1 0 1 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0

10+

%

No

%

No

%

No

%

(69.2) (15.4) (7.7) – (7.7) – – – – – – – – – – – – – – – – –

17 13 14 28 23 16 8 12 5 3 0 2 8 2 0 1 0 0 1 1 1 14

(10.1) (7.7) (8.3) (16.6) (13.6) (9.5) (4.7) (7.1) (2.9) (1.8) – (1.2) (4.7) (1.2) – (0.1) – – (0.1) (0.1) (0.1) (8.3)

14 15 8 15 16 13 0 4 2 1 1 2 2 0 0 0 0 1 0 0 0 26

(11.7) (12.5) (6.7) (12.5) (13.3) (10.8) – (3.3) (1.7) (0.8) (0.8) (1.7) (1.7) – – – – (0.8) – – – (21.7)

33 19 15 24 16 6 6 7 1 2 2 2 4 0 0 1 0 1 0 0 0 9

(22.3) (12.8) (10.1) (16.2) (10.8) (4.1) (4.1) (4.8) (0.7) (1.3) (1.3) (1.3) (2.7) – – (0.7) – (0.7) – – – (6.1)

Some managers said that younger operational officers might find dealing with domestic violence incidents particularly difficult as they might feel ‘out of their depth’ and unable to relate to the circumstances in which domestic violence occurs. They might also find it difficult to tell people, often many years older than them, how to ‘run their lives’. Compounding this problem was the feeling that domestic violence situations can be very volatile and the

112

The Policing of Domestic Violence police officer can end up being abused by both the offender and the victim.112 Unsurprisingly, Grace also noted that the officers who said they did not have any problems or difficulties tended to be the older officers, who no longer felt domestic violence cases to be a problem. Grace’s study records doubts amongst police managers as to whether this older group had in fact taken on board the new guidance and training. These observations and findings form an important part of the context in which the application of arrest policies should be considered. The levels of discretion and judgment required of young and inexperienced officers are considerable, and may provide some justification for the adoption of force strategies that favour pro-arrest strategies, thus removing one element of uncertainty that may prove difficult for the less experienced officer to make judgments upon.113

Definitions of domestic violence In our analysis, we also sought to differentiate between those who had attended a domestic violence incident in the previous 12 months (Group A, comprising 422 officers) and those who had not (Group B, comprising 28 officers). Interestingly, some 88 members of Group A (19.5%) did not reply to the question: ‘What in your opinion constitutes domestic violence?’, a reluctance not shared by members of Group B, whose response rate was 100%. The reasons for this failure, or choice, not to reply are unclear, and could equally reflect a perception that the definition was too obvious, or a reluctance to diverge from official force definitions. Unsurprisingly, within both groups the most common form of behaviour mentioned as amounting to domestic violence was physical abuse to a partner. Indeed, the only surprise is that only in 65.9% of responses in Group A and 64.3% in Group B was this in fact mentioned. It is difficult to imagine that any officer would not classify actual physical violence to a partner as domestic violence. The responses may therefore indicate some divergent approaches as to how violence to family members, other than partners, is to be viewed. The second most common form of behaviour mentioned in both groups was threats of violence to family members – mentioned in 32.6% of responses in Group A and 25% of responses in Group B. Similar percentages in the two groups also merge in respect of mental abuse to family members (14.4% in Group A and 14.3% in Group B), violence to property (11.4% in Group A and 10.7% in Group B), sexual violence (3% in Group A and 3.6% in Group B) and physical abuse to non-family members (3.3% in Group A and 3.6% in Group B). In respect of other matters, however, differences emerge __________________________________________________________________________________________________________________________________________

112 Ibid. 113 See below, p 125. 113

Domestic Violence between the two groups. In Group A, 23.9% mentioned physical abuse to a partner only, a factor identified by only 7.1% of Group B. Verbal abuse was identified as domestic violence by some 21.2% of Group A, but by none of Group B. By contrast, 10.7% of Group B mentioned intimidation, compared with 1.5% of Group A. What does all this show us? Certainly, all of the matters referred to above fall within the then force definition of domestic violence, but few responses indicated an awareness that domestic violence might be as widely defined as in fact it is. One obvious conclusion is that, in this regard, there is not full awareness of the scope of force policy. Another feature is the fact that certain matters did not typically form part of the responses. Some 34.1% of Group A and 35.7% of Group B responses did not mention physical violence to the family, and in respect of threats of physical violence those figures rise to 67.4% and 75% respectively. In addition, mental violence to family members was not mentioned by 85.6% of Group A and 85.7% of Group B, and, finally, sexual violence was not generally considered as domestic violence, being mentioned by only 3% and 3.6% of Groups A and B respectively. This is a particularly worrying statistic in the light of the fact that some 10 to 15% of applications to the county court identified during the Leicestershire county court study specifically alleged sexual abuse.114 Again, these figures may reflect on the effectiveness of force training in respect of force policy, because there is no indication that those who are in regular contact with domestic violence have markedly different perceptions than those that are not. Some of these responses might be explicable on the basis that officers consider that matters such as mental violence or sexual abuse are self-evidently domestic violence. On the other hand, they may reflect attitudes to that particular form of conduct – in particular with sexual offences being perceived as something ‘different’ from domestic violence, perhaps to be treated as something more serious. In this respect, the Leicestershire Annual Report for 1995/96 is instructive, and, arguably, provides some support for this conclusion. In its analysis of the offences involved in incidents of domestic violence115 no offences of a sexual nature are specifically identified.

5 Police responses to domestic violence As seen earlier116 police attitudes to domestic violence have, historically, been open to criticism. The London study117 concluded that police responses were usually inappropriate and unhelpful. __________________________________________________________________________________________________________________________________________

114 See Jones, Lockton, Ward, Kashefi, op cit, p 7, discussed above, p 10. 115 Op cit, p 16. 116 See above, p 87. 117 See Metropolitan Police: Report of the Metropolitan Police Working Party on Domestic Violence, 1989. 114

The Policing of Domestic Violence In part this was due to lack of adequate information, in part to a failure to recognise that domestic violence was a serious problem to be dealt with in the same way, and with the same degree of commitment, as other violent crime, in part to inadequate police responses – particularly in the context of arrest powers – and also in part to inadequate training. Of course, all these overlap.

Information The availability of adequate and appropriate information is crucial to effective policing. This is particularly true if the criminal justice response of the police is to provide effective support for the civil law process that complainants may have already instigated, or if appropriate decisions are to be taken as to how violent situations are to be handled. Dobash and Dobash state as follows:118 Women with injunctions are poorly served by officers who arrive at their homes with no knowledge of the history of violence and/or the existence of a court order with the power of arrest. It means that women will have to negotiate with the police over the very existence of a court order.

This last point may be true, but is not inevitable. We have already seen the sheer breadth of statutory and common law police powers that arise in the criminal justice context, and which provide sufficient bases of intervention even where the existence of an injunction is not known of, or where the existence of a power of arrest attached to such an order is in doubt. However, the better the information base available to the police the better, and the more informed police responses are likely to be. Home Office Circular 60/90 recommended that records of domestic violence incidents: should be kept in a manner which permits easy information retrieval so that officers dispatched to an incident can readily establish where there have been previous reports on the household, their frequency and the nature of the previous threats of violence.

The extent to which this has impacted in practice is variable. Grace119 found that the practical ability of officers to do this was limited. Only a quarter of operational officers stated that they were always able to check records, and the capacity to do so often depended on the available time. The key player in a domestic violence response is often the individual at police control, who, Grace discovered, was often too busy to give information, or sufficient information before the officer attended the incident. On occasion the control officer in the forces studied by Grace had first to contact the Domestic Violence Officer to obtain background information, making it less likely that

__________________________________________________________________________________________________________________________________________

118 Women, Violence and Social Change, op cit, p 191. 119 Home Office Research Study, op cit, pp 18–19. 115

Domestic Violence such information would be available to the officers in attendance at the domestic violence incident. Officers saw as the first priority ‘to get to the incident as quickly as possible’ and that checking records ‘only held them up’. The ability to check whether a civil injunction was in place depended partly on the knowledge of those in the base control room; that, in turn, often depended on the efficiency of the solicitor for the complainant sending a copy of it to the police control room, a practice found by Grace not to be invariable. This absence of information is important. It affects the responses of those attend, who have to exercise discretion, and make judgments, without the context that would better inform them. It also weakens the role of the police in adopting a more integrated approach to domestic violence. Such an approach recognises that the civil and criminal justice responses are not separate and distinct, but overlap and are complementary. The effectiveness of remedies granted by the civil courts may often depend on appropriate responses by the police responding to emergency situations. That this is an appropriate way forward is inherent in the Law Commission recommendation that the police themselves should be able to make application to the civil courts for an injunction to protect a complainant. This recommendation has not explicitly been followed by the Part IV of the FLA 1996,120 although it is intended that the powers in s 60 be used to permit this. Nor, in general terms has it been followed in the provisions of the PHA 1997, although the criminalisation of a breach of a non-harassment order made pursuant to s 5 of the PHA 1997 is a pointer towards this approach. These issues are discussed further in Chapter 6.

Attitudes Circular 60/90 identified strategies for changing the essentially negative attitudes of police,121 including the adoption of specific force policies and the creation, though training and policy dissemination, of greater awareness of the issues, problems and appropriate responses. The question arises: how far have modern developments succeeded in changing historically entrenched attitudes? Grace found122 that some two-thirds of the managerial and operational officers interviewed as part of that study saw policing domestic violence as a different job to policing other violent crime, despite the exhortation in Circular 60/90 that ‘a violent assault in a domestic situation should be treated as seriously as a violent assault by a stranger’. The difference appeared, from the responses, to arise because of the interrelationship between victim and perpetrator, and the emotional context in which such incidents occur. _________________________________________________________________________________________________________________________________________

120 See Chapter 4. 121 For a detailed analysis of essentially negative responses, see Edwards, Policing Domestic Violence, op cit, pp 101–10. 122 Op cit, p 17. 116

The Policing of Domestic Violence Arguably, that points strongly to issues relating to willingness to testify and the wishes of the complainant herself being crucial not only in determining appropriate responses123 but also in moulding attitudes. Recorded comments included the following: It’s not so straightforward. There’s a lengthy background to the incident we’re called to, it’s never clear-cut. And there are always difficulties after the event ...

By contrast, another officer states: I don’t think you can draw a distinction [between domestic violence and other violent crime] – ABH is ABH and at the end of the day [domestic violence is] still as much an offence.

However, the attitude demonstrated by the latter comment does presuppose that the incident was to be viewed as, or treated as, actual bodily harm, rather than being downgraded in terms of level of offence to common assault, regarded as appropriate for action to deal with a breach of the peace or even ‘no crimed’, the incident simply being left with a negotiated response by the officers attending the incident. These negative responses manifest themselves in a variety of ways. These range from the initial assessments and classifications of control officers, which determine the form, priority and speed of any police action, to the reaction of the officers who actually attend. Their responses may include the purely advisory and calming, effectively ‘no criming’ the incident, 124 the determining of the level of response in terms of caution and arrest, and may reflect the wishes of the complainant herself. Grace found125 that, despite Home Office Circular 60/90 suggesting that reconciliation is rarely the most appropriate solution, three-quarters of operational officers said that if the perpetrator was still at the scene when they arrived at an incident or if there had only been a verbal dispute they would attempt to calm down the situation without necessarily making an arrest. Many managers considered that if the situation was relatively calm officers should at least try to get the couple to discuss what had happened before deciding whether arrest was appropriate, and the analysis by Grace at Tables 4.2 and 4.3 of that study showed that the preservation of the safety of the complainant, and of children of household, were the key priorities, with counselling and arrest attracting low priority. These responses are important, particularly in respect of policies relating to arrest.126 Similar attitudes were found during the Leicestershire police study, and demonstrate the extent to which officers were aware of the issues _________________________________________________________________________________________________________________________________________

123 124 125 126

See below, pp 150–52. Edwards, op cit, pp 138–51. Op cit, p 20. See further below, p 123.

117

Domestic Violence that domestic violence raises, and the issues which police force policy seeks to address. Indirectly, some responses provide evidence as to which issues need to be addressed in training, or addressed more effectively. The questionnaire in the study therefore sought to identify perceptions as to various matters. The first of these was as to the level of awareness as to the occurrence of domestic violence. The responses, according to length of service, are set out in Table 2 below, and should be considered in the context of the quite restrictive definitions of domestic violence adopted by some officers,127 as opposed to the wide definition of the Force itself.

Table 2 Do you think incidents of DV have– Length of Service Less than 12 mths 1–4 years 5–9 years

Incidents Slightly decreased Greatly decreased Slightly increased Greatly increased Same N/R

10+

No

%

No

%

No

%

No

%

0 0 0 1 1 11

– – – (7.7) (7.7) (84.6)

6 4 54 12 80 13

(3.6) (2.4) (31.9) (7.1) (47.3) (7.7)

4 6 40 13 49 8

(3.3) (5) (33.3) (10.8) (40.8) (6.7)

7 0 48 13 73 7

(4.7) – (32.4) (8.8) (49.3) (4.7)

Self-evidently, the majority of those with less than 12 months’ service felt unable to answer. Of the more experienced officers, the largest percentage across all three groups felt that the incidents of domestic violence had remained the same although a large percentage across the three groups considered that the number of incidents had slightly increased or greatly increased. These perceptions are in fact confirmed by statistics: the subsequent Leicestershire Domestic Violence Annual Reports identify an increase in reported domestic violence incidents for 1994 of 8.1% and for 1995 of 10.7%. What is less clear are the reasons for this, and, in particular, whether this perceived increase marks a heightened awareness of what amounts to domestic violence, and the effect of on-going changes in policy and training, rather than simply a greater exposure to domestic violence incidents. The perceptions of officers were then tested by putting a series of statements to the respondents and asking them whether they agreed or disagreed with each statement, or whether they considered that that statement was not applicable. By analysing the responses it is possible to gauge some of the attitudes held by the officers to domestic violence. These responses _________________________________________________________________________________________________________________________________________

127 See above, p 113.

118

The Policing of Domestic Violence should, of course, be viewed in the context identified by Grace,128 who records as follows: Other changes [in attitude] mentioned, particularly by operational officers, included being more sympathetic to victims and conducting more follow-up, support work with them ... They talked about how changes in the police culture had made it easier to take domestic violence seriously, without being ridiculed by their colleagues ...

Some 12 different statements were put to officers by the Leicestershire questionnaire for response. Certain responses are worthy of note and comment, as indicative of issues that are well documented in earlier and other studies. •

Dealing with domestic violence tends to be a waste of police time because there is a strong likelihood that the victim will withdraw the complaint.

A sizeable number of respondents agreed with this statement, the highest percentage being those officers who had served for less than 12 months (46.2%). The lowest percentage (25%) was in the group of officers of 5–9 years. Such a comment may well reflect the difficulty, actual or perceived, of proceeding in criminal proceedings with a reluctant or non-co-operative complainant, but raises the question as to what ‘positive action’129 can or should be taken in such circumstances. Further, it is underpinned by an assumption that the initiation of the criminal process is the sole, or only legitimate, purpose of police involvement. Research shows that police managers and officers alike put the maintenance of safety of the alleged victim and any children as a first priority, with lower priority being given to arresting the perpetrator.130 The maintenance of the safety of those involved can scarcely be regarded as ‘a waste of police time’, and many again place attitudes to domestic violence incidents in a context perhaps different from that envisaged by police managers. Further, it is a view that accords priority and primacy to the victim’s view and desire, and makes an assumption that the interests and wishes of the complainant inevitably coincide. The purpose of the complainant may be to maintain and preserve the safety and well-being of those involved, not to instigate the criminal justice process through arrest.131 The responses may also provide some limited support for the conclusion that assaults that occur in the domestic context are often seen as to be regarded as more problematic to deal with than others occurring in a nondomestic violence context.132

__________________________________________________________________________________________________________________________________________

128 129 130 131 132

Op cit, p 16. Circular 60/90. Grace, op cit, p 21, Tables 4.2 and 4.3. See Bourlet, op cit. Cf Sanders, op cit. 119

Domestic Violence •

In many cases the victim could have helped himself/herself by leaving home to save repeated violence.

Again, a large number of respondents agreed with this statement, the lowest percentage being in the group who had served less than 12 months (46.1%). The highest percentage was in the group of officers who had served for 10 years or more (69.6%). This may well suggest an element of hardening of attitude with increase in length of service, a depressing but unsurprising conclusion which, perhaps, identifies a need for a pro-active approach to the training of experienced officers. •

I would like to take more positive action at domestic violence incidents.

A large number of respondents who had served for less than 12 months also agreed with this statement (69.2%), but the percentages who did dropped in the 1–4 year and 5–9 year servers (50.9% and 46.7% respectively) rising again in those who had served for 10 years or more (56.1%). There is no obvious explanation for this variation in perception, although the high percentage in agreement among new officers may suggest a greater awareness of the issues being created by basic training. •

Domestic violence only occurs in working class families.

•

Domestic violence is a civil matter and should only be dealt with by a solicitor.

•

The police have no role to play in domestic violence.

Again, unsurprisingly, a large majority across all the groups disagreed with these statements. What is perhaps surprising is that even a minority of officers should agree with these statements given the efforts made by the force to create awareness of the positive role to be played by the police. •

It is often the case that the offender may well have been provoked by the victim.

A large number of officers agreed with the statement. What is interesting, however, is that the percentages rise the longer the service of the respondents. Only 46.2% of those who had served for less than 12 months agreed with this statement rising to 71.6% of those who had served for 10 years or more. •

It is important to ask prior to the arrest of the offender whether the victim is prepared to go to court.

A similar rise in levels of agreement is seen here. 46.1% of those serving less than 12 months agreed with this statement, but the percentages increase with length of service and 68.2% of those with 10 or more years’ service also agreed. The responses here correspond to those cited earlier concerning the withdrawal of complaints, and demonstrate an awareness of the possible evidential problems which may arise where there is an unco-operative victim. However, it is by no means clear that, in the context of crimes not amounting to domestic violence, the view of the complainant as to how the matter might

120

The Policing of Domestic Violence be progressed at a later stage will be decisive as to whether an arrest is made. Comparison may here be made with alleged sexual assault. In many cases involving such allegations a complainant may prove reluctant to testify in court, or prove a difficult witness. These factors do not, and should not, influence the initial arrest decision, and this points firmly to attitudes at operational level which ‘trivialise’ allegations of domestic violence. It is in this context that arrest policies must be viewed. Of the final three statements, two, ‘It is never justified to hit a woman’ (a question which, of course presupposes the reality that the vast majority of victims are female) and ‘On occasion I have difficulty in being caring and understanding to the victim’ produced similar percentages across all four groups. It is in the context of these attitudes that the Leicestershire Constabulary has implemented new domestic violence policies, and adopted Domestic Violence Standards. A key role of those standards is to mould attitudes and responses. Thus, the standards state133 that ‘on every occasion we will endeavour to provide a positive service to people involved in domestic incidents to offer protection, reassurance and advice and to deal with any offences’. It remains to be seen how far the detailed provisions of those standards will in fact achieve that result or merely reflect policy as opposed to reality.

Actions at the scene Most police officers who attend incidents of domestic violence anticipate that they will encounter violence at the scene. In the Leicestershire survey, typically 85% of officers would expect violence to be occurring when they arrive at the scene. That, however, should not surprise, because it may be anticipated that officers called to an incident of actual or threatened violence will expect the violence to be continuing or, at any rate, that it be offered to the complainant or the officer whilst they are at the scene. The questionnaire issued to officers as part of the Leicestershire survey detailed a number of actions which could be taken in domestic violence situations (18 in all) and asked the respondents to say if they would take those actions or if they were not applicable. The responses demonstrate that there are standard actions that a police officer will take irrespective of length of service. For example, the majority of responses across all the groups stated that they would check if there had been previous incidents at the same address, would arrange hospital treatment for injured parties and advise the victim to consult a solicitor. Other actions, however, show a divergence between the groups. For example, 92.8% of those officers with less than 12 months service would give advice to avoid arresting either person, but this _________________________________________________________________________________________________________________________________________ _

133 Op cit, p 2. 121

Domestic Violence percentage reduces across the different groups to 63.5% of those officers with 10 or more years’ service. A similar reduction in percentage is apparent in relation to arranging medical attention by the police surgeon at the Rape Suite. This would be done by 76.92% of officers with less than 12 months service but only 43.9% of those with 10 years’ service or more. These responses can be related back to the officers’ perceptions of domestic violence which showed that very few regarded sexual abuse as domestic violence. Likewise 71% of those officers with 1–4 years’ service would arrest for any offence committed where the power was available, but this drops to 39.1% of officers with 10 years’ service or more. On the other hand 46.2% of officers with 1–4 years’ service would release without charge because the complaint will be withdrawn, but none of the officers with 10 or more years’ service would do so. What do these statistics tell us? On the one hand, it could be said that generally those officers with less service see their role as wider than enforcing the criminal law. A much higher percentage of these officers would, for example, give advice to avoid arresting the offender and advise on victim support groups. In addition a large number of officers with little service would discuss the case with the Domestic Violence Liaison Officer (92.3%) whereas this percentage reduces the more experience the officer has (73.7% of those with 10 years’ service or more). This could indicate that the more experienced officer sees the role of the police in domestic violence as being one relating to enforcement of the criminal law only and one which is carried out by the officer on the spot in isolation from other colleagues. Such a perception could again raise the issue of training of the officers with long service, and is particularly important in the light of Edwards’ research findings that the presence of a domestic violence unit on a police division results in a more positive police intervention at the scene, and an increase in arrests and charges.134 It is this wider approach and attitude that some forces are seeking to develop and foster. In Leicestershire, the Domestic Violence Standards set as objectives the following– • Attend immediately those reports of domestic incident where vulnerable persons may be imminent risk of injury, to offer protection and reassurance, and to deal with any offences; • Act on behalf of vulnerable persons to make arrangements with local authorities, volunteer agencies and hostels to accept those who wish to use their services; • Supply to vulnerable persons who come to our attention as a result of domestic incidents the details of the Area Domestic Violence Liaison Officer, including details of how and when they may be contacted; _________________________________________________________________________________________________________________________________________

134 See Edwards, 1989, op cit; Edwards, 1996, op cit. 122

The Policing of Domestic Violence • Bring to the attention of vulnerable persons their rights and opportunities for reducing the risk of their being subjected to domestic violence. Victim Liaison Officers135 are expected to keep records which link copies of injunctions or orders to domestic incident forms and incident messages, although there appears to be no positive obligation on operational officers to liaise with the Victim Liaison Officer. Further, documentation has been prepared to inform victims of domestic violence who obtain injunctions at the county court what contact to expect from the police, although, curiously, there appears to be no such leaflet for those who do not have a power of arrest attached to any order obtained and to inform police officers as to what is required of them if they attend the county court in civil proceedings.

6 Arrest The use of arrest powers Home Office Circular 60/90 urged that greater emphasis should be placed on the arrest and charge of offenders. The reasons for that are clear: the police were seen as often ‘reticent to use the powers of arrest’136 available to them. One survey in the 1980s found that, in a study of London police, only in 13% of call-outs to violent incidents in the home did a crime report result, and with only just over 2% involving arrest and prosecution.137 Another, earlier, survey showed an arrest rate of 15% for cases not requiring hospital admission (where severe bruising or black eyes had occurred) and only 20% for cases requiring hospitalisation.138 These responses should be viewed in the context of research in the United States which tends to suggest (although not unequivocally) that these arrest rates are significantly lower than in cases of non-domestic violence assault.139 Research also has found evidence of the widespread use of public order powers, and incidents being down-graded from assault occasioning actual bodily harm to common assault. 140 The former is, arguably, neither surprising nor necessarily wrong, given the breadth and utility of those powers, and indeed allows the officer to act

_________________________________________________________________________________________________________________________________________

135 The successors in Leicestershire to Domestic Violence Liaison Officers. The Leicestershire Domestic Violence Annual Report for 1995/96 uses the terms interchangeably: see pp 3 and 5. 136 Dobash and Dobash, Women, violence and social change, op cit, p 196. 137 Edwards, Police attitudes and dispositions in domestic disputes: The London Study Police Journal (1986), pp 230–41. See also Edwards (1989), op cit. 138 Binney, Harkell and Nixon, Leaving Violent Men: A Study of Refuges and Housing for Battered Women (1981), London: Women’s Aid Federation. 139 Lorna Smith, Home Office Research Study 107, op cit, p 43. 140 See, generally, Edwards, Policing Domestic Violence, op cit.

123

Domestic Violence without the complainant necessarily being required to be a willing witness.141 However, it does raise the issue as to whether domestic violence is perceived as essentially a public order issue, rather than an issue that focuses on the protection of the victim. The practice of ‘downgrading’ is, however, more suspect, in that the perception of the level of seriousness will not only affect the decision as to whether an arrest should be made, and any charge ultimately levelled, but also arguably sends a clear message to the perpetrator that the violence used is not, from a legal perspective, a particularly serious matter. In evidence to the House of Commons Select Committee on Violence in Marriage, the Association of Police Officers observed: ... We are, after all, dealing with persons ‘bound in marriage’, and it is important, for a host of reasons, to maintain the unity of the spouses. Precipitate action by the police could aggravate the position to such an extent as to create a worse situation than the one they were summoned to deal with. The ‘lesser of two evils’ principle is often a good guidance in these situations ... Every effort should be made to reunite the family.142

Yet some 15 years later, Circular 60/90 suggested that reconciliation was not often the most appropriate solution. ‘Arrest and detention of the alleged assailant should always be considered.’ Some indication as to effectiveness of this exhortation can be obtained from the research undertaken by Grace and by the responses to the Leicestershire survey. Grace records as follows:143 Three-quarters of the operational officers said that if the perpetrator was still at the scene when they arrived at an incident, or if there had only been a verbal dispute, they would attempt to cool down the situation without necessarily making an arrest. Two-thirds of the managers said that they supported this approach. Both groups said that the action would and should depend on certain circumstances – in particular how violent the situation was and whether there were any obvious injuries. Many managers said that if the situation was relatively calm, officers should at least try to get the couple to discuss what had happened before deciding whether an arrest was appropriate. Operational officers said that if it seemed as though they would _________________________________________________________________________________________________________________________________________

141 See the comment of an officer, recorded by Edwards, ibid, at p 105: Well there is threatening behaviour for one, or if the incident happens in the street you can use Breach of the Peace. So you might encourage the man into the street. Of course if we charge him with threatening behaviour, for example, that does not prevent the wife substantiating a charge of assault at a later stage. Breach of the Peace is very useful to us indeed. First it does not involve the wife as witness and secondly it allows for a cooling-down period by getting ‘chummy’ to court. This view as to the extent of powers in respect of breaches of the peace is mistaken: see above, p 104. 142 Ibid, p 42. 143 Grace, Policing Domestic Violence in the 1990s, op cit, p 20.

124

The Policing of Domestic Violence not have enough medical evidence to prove that an assault had taken place they were more inclined to deal with the matter informally, without making an arrest. [Some] operational officers also mentioned that they would take what the complainant wanted into account when deciding whether to make an arrest.

Grace concluded144 that although there was general awareness of force policies on arrest, which recommended the arrest of a suspect where possible or appropriate, most accorded it a low priority, with almost half of the operational officers in the survey giving arrest the lowest priority. The attitudes to arrest identified by the Leicestershire survey have already been noted, and, again, provide a context in which the effectiveness of more recent policy statements can be judged. The Domestic Violence Standards, reflecting force policy revised and implemented in early 1995, state that ‘on every occasion we will endeavour to ... act on behalf of vulnerable persons in the domestic environment by arresting offenders, where there is sufficient evidence available, as a matter of policy’. Yet the statistical analysis for 1995/96145 shows that only in some 772 out of 5,144 reported incidents (15%) was an arrest made, and, indeed, no further action was the response in some 3,163 cases. No doubt cogent reasons exist to justify the actions taken in each case, but the overall profile does not suggest that arrest is the immediate, or primary, priority.

Enforcement of powers of arrest contained in civil orders The power to make an arrest can arise either under general police powers,146 or by virtue of a power of arrest attached to a civil order. The use of such a power is not mandatory, and criticisms have been levelled at the police that such powers are not used as frequently as might be. The London Strategic Policy Unit147 claimed that the Metropolitan Police were, in 1986, under instructions to arrest only when the police witnessed the breach of the injunction. The nature of the order may even determine the responses of the police officer. The absence of a power of arrest attached to an injunction may be crucial, despite the fact that powers under the wider law may exist. Grace was able to record148 the following response from the victim of domestic violence: I explained I’d just obtained an injunction although it wasn’t one with powers of arrest attached to it so they [the police] said there wasn’t a lot they could do.

__________________________________________________________________________________________________________________________________________

144 145 146 147

Ibid, p 26. Ibid, p 17. See above, p 103. Police Response to Domestic Violence, Police Monitoring and Research Unit Briefing Paper 1, cited by Smith, op cit, p 44. 148 Op cit, p 40. 125

Domestic Violence In the London Policing Study, Edwards found149 than when there were breaches of injunctions with a power of arrest that power was seldom enforced, and officers regarded injunctions without such a power as of little or no value. She observes: In practice, however, few officers actually arrested men where non-molestation injunctions or protection orders with a power of arrest had been clearly breached. For example, when ouster injunctions were in force and men had returned to the matrimonial home, women were frequently blamed for inviting them back. Men were rarely if ever held responsible for returning to the matrimonial home or accepting the invitation. It was considered the woman’s responsibility to uphold the injunction, although the order was made against the man and often involved his undertaking.150 Where women were considered to have allowed men to return, for whatever reason, the police felt they had forfeited their right to protection when the man became violent, difficult or abusive.

More recently, in the Leicestershire survey, respondents were asked to react to the statement: ‘Arresting the offender should be the last resort in a domestic violence situation.’

These responses of course provide some indication as to effect of the exhortations in Circular 60/90 and changes in police policies or perceptions. In posing this question, no distinction was drawn between the exercise of a power of arrest attached to an order of the court, and the exercise of a power of arrest arising under common law (in respect of breach of the peace) or under statute. 46.1% of those serving less than 12 months agreed with the statement. These percentages dropped to 27.8% in the 1–4 year servers and 29.2% in the 5–9 year servers but rose to 48.6% of those who had served for 10 years or more. The percentages of those with the least amount of service and those with the most service are, therefore, very similar. There is no clear explanation for these differences. Some evidence thus exists to confirm that, at any rate in this regard, changing policy attitudes are being reflected by those who deal with these matters operationally. Yet the statistics for the wider survey conducted by Grace, and cited above, serve to confirm that the responses of the Leicestershire 10 years or more servers are in fact commonplace. Officers in the Leicestershire study were also asked when they would exercise a power of arrest if one was attached to an injunction. Given that such a power of arrest gives the police a discretion it was, perhaps, unsurprising that only 66% overall said always. It could be argued that the failure to arrest for breach of an order where there was evidence of breach (which is why, after all, the officer is attending) would be regrettable given that the trial judge has

__________________________________________________________________________________________________________________________________________

149 Policing Domestic Violence, op cit, pp 106–07. 150 No power of arrest can, of course, be attached to an undertaking: see above, p 76. 126

The Policing of Domestic Violence exercised discretion at the stage of considering whether to attach such an order, and for how long.151 The breakdown of these responses into the respective groups, however, is interesting and shown by Table 3.

Table 3 How often would you use a power of arrest if granted? Length of Service Less than 12 mths 1–4 years 5–9 years

Incidents Never Rarely Sometimes Always N/R

No 0 0 3 6 4

10+

%

No

%

No

%

No

%

– – (23.1) (46.1) (30.8)

0 7 44 116 2

– (4.14) (26.0) (68.6) (1.28)

0 5 30 85 0

– (4.2) (25) (70.8) –

3 7 41 90 7

(2.0) (4.7) (27.7) (60.8) (4.7)

It can be seen that by far the largest percentage of officers who stated that they would always use a power of arrest was in the 5–9 year servers (70.8%) while the lowest percentage is that in the group of officers with less than one year’s service. It should be noted, however, that the response of ‘sometimes’ shows a fairly consistent percentage across all the groups and that there was a no response rate of 30.8% in the group who had served for less than a year. A large number of responses stated the circumstances in which they would not arrest, usually because of the complainant’s wishes, the risk of the complainant withdrawing the complaint or because they felt that arresting the offender would aggravate the situation. This ties in with the responses cited earlier, but raises the basic question: why should these matters be relevant? Even if they are legitimate matters to consider in determining the initiation of the criminal justice process, an integrated approach to domestic violence issues surely predicates that the police (who are, in reality, the first port of call in most incidents) should give effect to the intention of the civil court.

Pro-arrest approaches The reasons why powers of arrest have not, hitherto, been used as extensively as might be can be regarded as demonstrative of a perception of domestic violence as being different from other forms of violence. However, others disagree. For example, Sanders has argued that it is the circumstances of the violence that matter, not the type of situation in which it arises.152 Buzawa __________________________________________________________________________________________________________________________________________

151 See McCann v Wright [1996] 1 All ER 204; Practice Note [1978] 2 All ER 1056; Practice Note [1981] 1 All ER 224. 152 Sanders, op cit (1988) 16 IJSL 359. 127

Domestic Violence and Buzawa153 identify the various factors they consider to amount to they describe as ‘situational factors’, based on research in the United States. First, they observe that the police are more likely to arrest if called to the incident by a third party rather than by the victim. Secondly, the probability of arrest increases as the probability of securing a criminal conviction increases. Thirdly, the willingness of victims to assist officers and of prosecutors to follow cases through to conviction is important. Victim preference and arrest may, unsurprisingly, be linked. Finally, the perception of the officer at the incident to the conduct of the victim may affect that decision as to whether to arrest. For example, if the woman is abusive, disorderly, or drunk it was found that the police rarely made arrests.154 It is in that context that pro-arrest or mandatory arrest policies have developed in some jurisdictions in the United States. Some research in the United States155 has concluded that arrest does work as a deterrent to further violence. In 1984, the Minneapolis project156 (much criticised, inter alia, for its methodology) concluded that arrest did have a deterrent effect, although the authors of the study rejected a mandatory arrest policy in favour of a presumption in favour of arrest. In Canada, Jaffe et al157 found that, following arrest all forms of violence (other than violence involving weapons) were considerably reduced during the period of 12 months after the arrest. However, the research evidence generally is both diverse and contradictory, with many commentators questioning the effectiveness, or indeed appropriateness, of responses based on arrest.158 Arrest may, in the long term, increase the danger of domestic violence. By definition, mandatory policies take no account of particular circumstances, or of the view of the victim. Many victims may not want their partners arrested, because of the financial, employment or social consequences, or because of the fear of retribution or revenge. Indeed, the sole purpose of a complainant calling the police may be to secure the cessation of the violence, not the instigation of the criminal justice process. Of course, there is the different question as to whether the wishes of the victim should be the sole, or even a relevant, determinant of police actions. Mandatory arrest policies, in a literal sense, cannot lawfully exist in England and Wales.159 A police officer seeking to use a power of arrest _________________________________________________________________________________________________________________________________________

153 154 155 156

Domestic Violence: The Criminal Justice Response, op cit, pp 53–62. Buzawa and Austin (1993), cited in Buzawa and Buzawa, op cit, p 56. See Smith, Home Office Research Study No 107, pp 58–61 for a convenient summary. See Sherman and Berk:,’The Specific deterrent effects of arrest for domestic assault’ (1984) 49 American Sociological Review, pp 261–72. 157 Jaffe, Wolfe, Telford and Austin, ‘The impact of police charges in incidents of wife abuse’ (1986) Journal of Family Violence, pp 37–48. 158 See, eg Gelles, Constraints Against Family Violence – How Well Do They Work, in Do Arrests and Restraining Orders Work? Buzawa and Buzawa (eds) (1996), Newbury Park, CA: Sage Publications, pp 30–42; Schmidt and Sherman, Does Arrest Deter Domestic Violence?, ibid, pp 43–53. 159 See above, p 105 for the legality of fettering of police discretion. 128

The Policing of Domestic Violence conferred by statute or by common law must him or herself possess the requisite mental state required by the enabling power For example, the ‘reasonable grounds to suspect’ required by s 24 of PACE 1984, or the anticipation of an imminent breach of the peace, must be held by the arresting officer. No power to arrest arises simply by obeying a standing or even specific instruction, although the mental state may be acquired from what the officer is told by others.160 However, no such obstacle to presumptions in favour of arrest exists, and such approaches, favoured in some jurisdictions in the United States, may be adopted in our own.161 One such presumption exists in Leicestershire, although it is not clear that such a policy has yet had a dramatic effect on arrest rates in domestic violence cases.162 The question remains: to what extent do, or should, the police shape responses to domestic violence situations on the basis of the views, or wishes, of the victim. The Leicestershire standards clearly regard the victim’s views as relevant to the decision. 163 Smith 164 identifies a wide range of research pointing to a correlation between police non-intervention and victim reluctance. Although Sanders has pointed out that withdrawal of complaint is not a phenomenon unique to domestic violence,165 Grace’s study166 found that a majority of officers did not believe that most complainants withdrew their complaints, but that some officers considered themselves to be in a ‘no win’ situation because of the potentiality, or in some cases actuality, of complaint withdrawal. Grace’s study also provides some evidence to support the conclusion that arrest rates are higher in police areas where domestic violence policing is supported by a domestic violence officer. It is less clear why that is so. One possible conclusion is that officers attending incidents of domestic violence are able to ascertain victim wishes in the context of informing them of the support facilities available.

7 Training Changing attitudes and responses to domestic violence might suggest that police training is successfully addressing the key issues that officers who deal with domestic violence operationally have to address. Indeed, Grace remarks167 that ‘all but one of the managers thought that the policing of _________________________________________________________________________________________________________________________________________

160 161 162 163 164 165

See O’Hara v Chief Constable of the RUC [1997] 1 All ER 129. See Morley and Mullender, op cit. See above, p 126. Op cit, p 2. Home Office Research Study No 107, op cit, pp 56–58. Sanders, Prosecuting Domestic and Non-Domestic Violence (1987), unpublished paper, cited by Smith, ibid, p 57. 166 Op cit, pp 22–23. 167 Op cit, p 15. 129

Domestic Violence domestic violence had changed since they joined the police’. Two-thirds of operational officers agreed. The recorded changes in attitude included the greater use of arrest, a more systematic treatment of victims, more follow up and clearer guidelines. Most importantly, respondents talked of a ‘change in culture’. Circular 60/90 had urged Chief Constables to ensure that all officers involved in domestic violence were familiar with their powers, and understood force policies, procedures and liaison arrangements with other agencies. Most officers interviewed by Grace appeared to have a basic understanding of force policy, although, perhaps unsurprisingly, levels of understanding were lower amongst operational officers than amongst managers.168 Surprisingly, less than half of the operational officers surveyed said that they had received any new guidelines on domestic violence, and few said that they had received any training. Despite more pro-arrest policies, most officers continued to attach low priority to the making of an arrest. The Leicestershire survey sought, inter alia, to identify the impact of training amongst operational officers in Leicestershire. It asked officers to respond specifically about the training they had received and their levels of satisfaction with that training. The results across the four groups of officers are tabulated below.

Table 4 Satisfaction with training Length of Service Less than 12 mths 1–4 years 5–9 years

Incidents Very satisfied Satisfied Dissatisfied Very Dissatisfied N/R No Training

No 2 9 2 0 0 0

% (15.4) (69.2) (15.4) – – –

No

%

No

5 (2.9) 98 (58.0) 37 (21.9) 5 (2.9) 4 (2.4) 20 (11.8)

1 48 34 16 21 44

% (0.1) (40.0) (28.3) (13.3) (17.5) (36.7)

10+

No

%

3 45 30 12 58 0

(2.0) (30.4) (20.3) (8.1) (39.2) –

NB: In the 5–9 year group only, some respondents relied to more than one response, accounting for the seeming arithmetical inconsistency in respect of both numbers and percentages. It can be seen that dissatisfaction with training increases the longer the service in, that while 69.2% of officers with less than 12 months’ service are satisfied with the training, this reduced to 30.4% of those officers with more than 10 __________________________________________________________________________________________________________________________________________

168 Ibid, p 25. 130

The Policing of Domestic Violence years’ service. In addition, a large percentage of those officers with 5–9 years’ service were dissatisfied or very dissatisfied with their training and 36.7% denied ever having been trained. This suggests that at the time of the questionnaire the training for new officers was satisfactory, but the training for more experienced officers, whom the statistics show are more likely to attend domestic violence incidents, is minimal if non-existent. Given that a not inconsiderable number of officers feel that domestic violence incidents have increased and given the higher profile now given by the media to such incidents, this profile, read in the context of Grace’s wider study, tends to suggest that there is still a gap between what managers wish to achieve and what in reality being achieved. This can be tested further by examining perceptions of change. The authors knew that the Leicestershire force policy on domestic violence incidents had changed within the five year period preceding the Leicestershire survey. That change was the Leicestershire response to Circular 60/90. The questionnaire issued to officers therefore asked the respondents if they knew of those changes. Obviously this question was primarily directed at the more experienced officers. Of those with 1–4 years’ service, 45.6% did not know if the policy had changed although this is not surprising considering the question asked about changes in the previous five years. The percentage reduced the longer the period of service of the respondent. Officers who knew that there had been changes were asked how those changes had been communicated to them. Although some respondents mentioned more than one method, the overwhelming response was ‘[force] circular’. Given that some of the changes are quite substantial, particularly in relation to the recording of incidents, it has to be questioned whether this is the most effective way of communicating changes in policy within the area of domestic violence. They were also asked whether the changes had had any practical significance. Although many said ‘yes’, it is perhaps significant that 36.7% of the 5–9 year servers and 32.4% of those with 10 years or more service said ‘no’. Such responses could be for a variety of reasons. First, it could be that the policy prior to Circular 60/90 was proactive enough and thus necessary changes were minimal. Given the extensive body of research cited earlier about general police responses, there is no reason to believe that the Leicestershire force was atypical. Secondly, it could indicate that the changes in policy were not adequately communicated to officers. Thirdly, it may be that while the change in policy has been quite substantial, these changes have not affected the actions of experienced officers ‘on the spot’ who have continued to police domestic violence in the way that they did prior to the issuing of the circular. The true picture no doubt reflects a measure of each of these. However, it is clear that a continued need for training, and improved training, exists. Grace found that less than one-quarter of operational officers had received specific training, as opposed to receiving information through the normal 131

Domestic Violence processes of information dissemination. Only two-thirds of operational officers said that they had access to both an information leaflet on domestic violence and a copy of force guidelines. Over half of operational officers felt they could seek the advice of a Domestic Violence Officer, a response that should give cause for concern in the light of the important role such officers play. The officers in Grace’s study identified training needs that included knowledge about the civil law and other options available to the victim; information on which support agencies do what, and how to refer victims to support agencies, together with training on awareness of domestic violence issues and on appropriate interviewing and counselling skills.

8 Domestic Violence Officers (DVOs) and Units (DVUs) The creation of the post of Domestic Violence Officer, and of Domestic Violence Units, was a key part of the scheme recommended by Circular 60/90, so as to ‘perform a more active role in supporting and reassuring the victim and helping her to make reasoned decisions and [in] co-ordinating the work of the welfare and voluntary agencies’. These recommendations have been widely adopted, although in different ways and with different degrees of emphasis. Grace’s study169 found the DVO in the forces comprised in the survey to be highly committed to the work, but often of low rank and with limited authority to tell others how force policy should be implemented. That is a significant finding in the light of the position, highlighted earlier, in respect of the effectiveness of force training policies. Grace found that heavy workloads were common, recording systems laborious and difficult to work, and liaison with others better in respect of inter-agency liaison than inter-force liaison. Coverage was also patchy, with only one of the five police forces surveyed having a DVO in each division. One key issue identified by Grace is that of continuity and experience. The survey found that none of the officers had specialised in domestic violence for more than four years. Although that of itself should not surprise, given that police emphasis on domestic violence has changed since 1990, the short length of tenure of such posts perhaps should. The majority of those surveyed had served for three years or less. The DVOs themselves found this restrictive, saying that they had really only just begun to understand the complex issues of and legislation about domestic violence and had only just forged good links with all the interested agencies before it was time to move on.170 Equally significant are two other matters. The first is in respect of function. Some, although not all, of the DVOs surveyed were part of units with responsibilities wider than simply domestic violence. Interestingly, in Leicestershire the role __________________________________________________________________________________________________________________________________________

169 See, generally, Grace, op cit, pp 27–35. 170 Ibid, p 28.

132

The Policing of Domestic Violence of the Domestic Violence Liaison Officers was ‘enhanced’171 by giving them a wider strategic role and responsibility for other issues such as race, mental health and the elderly. In consequence their title changed to Victim Liaison Officers and numbers increased, with two assigned to each of five policing areas. The second is the role of such officers. Most regarded that role as primarily supportive of the victim, which is clearly a key function. Very few had any significant input into the investigatory function. The majority of respondents considered this division of functions to be highly desirable: being involved in the investigation might compromise their capacity to act as a support for the victim if the case went to trial. Victim support was seen as a key function, advising victims of their civil law rights. However, some preferred simply to refer to a solicitor, perhaps reflecting the fact that there is no real integration of approach between the criminal and civil process. It is certainly no part of police responses to domestic violence as currently perceived for the police to initiate civil action. Grace paints a picture of administrative confusion and inefficiency.172 The report observes: Most DVOs had to collect domestic violence referral forms or Command and Control print-outs of domestic violence each morning, chase up uniformed officers who had not completed referral forms and then manually record each incident on a card index. This meant that time when DVOs could be seeing and helping victims was being spent recording incidents by hand. In addition, because the DVOs were so reliant on uniformed officers completing forms or Control Room staff recording incidents as domestic violence cases, they were not receiving information about all the domestic violence incidents in their area.

This last comment also raises the same issues discussed earlier in respect of perceptions as to what is, or is not, domestic violence. Failure to appropriately classify and record deprives the victim of highly desirable support, as of course does the practice of ‘no criming’ where officers attend but observe that no action needs to be taken. Crucial to the effective work of DVOs is their relationship with officers within their own force. The picture here is variable.173 One DVO observed: [I]ncreasingly officers are referring victims to me. I take their workload off them. Police constables don’t have the time to spend enough time with the victims to do the job properly, the domestic violence officer does.

Yet others referred to ‘old dinosaurs’ or, in the context of the supply of information, ‘no they forget, they are lazy and ignorant. If there is no arrest they do not want to know’. __________________________________________________________________________________________________________________________________________

171 Leicestershire Domestic Violence Annual Report, 1995/96, p 5. 172 Ibid, p 31. 173 Ibid, pp 31–32. 133

Domestic Violence Again, therefore, we see the intermingling of attitudes: lack of sufficient proactivity in the context of arrest may affect also the levels of support accorded the victim. The survey generally identified a range of problems: lack of resources, staff, poor attitude of colleagues, poor facilities, heavy workload, poor recording systems and patchy referral process. It is hard to escape the conclusion that, in the forces surveyed by Grace, the DVOs were highly committed and achieved some successes, but in a context of patchy support. The Leicestershire survey sought to focus on the DVOs in that force area. Leicestershire introduced domestic violence liaison officers into most of its subdivisions as part of its domestic violence policy implementation of Home Office Circular 60/90. Within Leicestershire, the domestic violence liaison officer was, at the time of the survey,174 part of the Community Unit. Among the conclusions of a strategic inspection of Community Units conducted by the force in June 1993 was that there was a need for revised terms of reference for such units and that there was ignorance internally of the work of such units. As such, the inspection recommended a force DVO profile. Such a profile states that the role of the domestic violence liaison officer is: • advice to victims in respect of action available; • liaise with support agencies (including solicitors); • child protection referrals; • reassurance to victims; • maintain contact and update records; • quality control DV records; • maintain history files (include OCIS); • statistical returns; • multi-agency liaison on DV issues; • consultant to management and staff; • supervise withdrawal statements; • promote awareness of domestic violence. Given this key role, and the fact that a large number of different police officers attend domestic violence incidents, the responses to the question ‘How often do you see the Domestic Violence Officer?’175 are surprising. Overall, across all the respondents, 50% said ‘infrequently’. It appears that liaison with the Domestic Violence Officer (VLO) was considered by only half of officers attending such incidents as part of their role. Although since then parts of the changes to organisation and force policy have resulted in more detailed reporting of such incidents and the creation of a computer data base (OCIS), _________________________________________________________________________________________________________________________________________

174 But not now: see above p 109. 175 The question was framed before the change in nomenclature to Victim Liaison Officer. 134

The Policing of Domestic Violence such lack of face-to-face liaison means that the VLO is very much dependent on the accuracy and detail of the reporting, to enable him or her to pursue the appropriate course of action within the remit of the post. The Leicestershire Standards impose duties on the VLOs, but not on operational officers, to be proactive in liaising with the VLO. When these results are compared with the dissatisfaction with training shown by the more experienced officers, and some of the perceptions of domestic violence discussed above, it can be argued that while the policy may have changed, all but the most junior of officers have not had sufficient training to appreciate the impact of Home Office Circular 60/90 and, until this issue is addressed, a large number of officers who attend domestic violence incidents will fail to take the positive action recommended by the circular, and, indeed, expected by the force itself.

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CHAPTER 6

PROSECUTION OF DOMESTIC VIOLENCE

THE CROWN PROSECUTION SERVICE 1 The decision to prosecute The decision as to whether the criminal process is initiated presupposes that the police have decided to charge an offender. Those cases that are ‘filtered out’ by the police, whether by ‘no criming’, or by a decision that no further action is to be taken, do not reach the Crown Prosecution Service (CPS). Those that do still have to meet the criteria by which cases are assessed as appropriate for prosecution, and which are contained in the Code for Crown Prosecutors. That Code 1 provides the principles within which the discretion to prosecute will be exercised. The first question to be determined is that of evidential sufficiency. A prosecution will not be started or continued2 unless the Crown Prosecutor is satisfied that there is admissible, substantial and reliable evidence that an offence known to law has been committed. The evidence must go beyond whether a prima facie case exists, and be such as to create a realistic prospect of a conviction, which will be determined in the light of all the circumstances, including the nature of the likely defence. In evaluating that evidence, the prosecutor will have regard to its admissibility, the reliability of any admissions, whether any witness has a motive for not telling the truth, the presence of matters which will affect the credibility of a witness, the impression the witness is likely to make, any conflicts between witnesses, any grounds to suspect falsehood or concoction, and whether any child witnesses will be able to give sworn evidence. In addition to these general evidential factors, various public interest criteria exist. The Code makes it clear that ‘the interests of the victim are an important factor in determining the balance of the interest and should be taken into account’. The facts that will lead to a decision not to prosecute will vary from case to case, but, broadly speaking, the more serious the offence the __________________________________________________________________________________________________________________________________________

1 2

Issued pursuant to s 10 of the Prosecution of Offences Act 1985, and published in the Annual Reports of the Director of Public Prosecutions. Section 23 of the Prosecution of Offences Act 1985 authorises the discontinuance of proceedings by notice, provided, in summary cases, this is done before the hearing of the evidence or, in cases to be tried on indictment, before committal for trial. The Royal Commission on Criminal Justice (1993, Cn 2263, London: HMSO) considered that weak cases should be identified at as early a stage as possible, before the defendant and others are put to the expense and trouble of a court hearing: Chapter 5, para 37. 137

Domestic Violence less likely it is that a decision not to prosecute will be taken, an approach that, of course, begs the question as to how serious domestic violence offences are perceived to be. The Crown Prosecution Service told the Home Affairs Committee3 that ‘generally, it will be rare for the public interest not to require prosecution for these offences’. Where a prosecution is not considered appropriate, the Crown Prosecutor should consider the appropriateness of cautioning the offender.4 It is unlikely that cautioning the offender is an appropriate course of action in a domestic violence case. Age, likely penalty, any staleness of the incident, youth and the existence of mental disorder may affect the way the discretion can, and should, be used. Further, the complainant’s attitude is important. The Code states 5 that it will be appropriate in some cases for the Crown Prosecutor to have regard to the attitude of a complainant who notified the police but later expresses a wish that no action be taken. It may be that in such circumstances proceedings need not be pursued unless either there is suspicion that the change of heart was actuated by fear or the offence was one of some gravity. The Crown Prosecution Service told the Home Affairs Committee that the practice was, in such cases, for the police to be asked to obtain a written statement setting out the reasons for withdrawal, which is then submitted to the CPS together with a report from the police officer.6

Attitudes of the CPS The evidence tendered to the Home Affairs Committee suggested that the CPS sometimes created unnecessary hurdles which inhibited the treatment of domestic violence as a crime. Individual organisations spoke of police reluctance to prosecute, a belief that prosecution was not always the appropriate response to allegations of domestic violence, the sometimes held belief that a woman will always withdraw her complaint, and a lack both of consistency and of liaison with the police. In their evidence the Southall Black Sisters even observed that the CPS were ‘less progressive than the police’.7 The Home Affairs Committee noted that the CPS accepted some of these criticisms and perspectives, and that ‘historically, offences [of domestic violence] were under-policed and under-prosecuted’. Despite this historical picture, which shows that the danger of under-criminalisation of domestic violence was real, the CPS argued that its position had now changed, with domestic violence being treated with equal seriousness as other offences. Some evidence exists to support this conclusion. In their study, Cretney and __________________________________________________________________________________________________________________________________________

3 4 5 6 7

Third Report, Home Affairs Committee, para 45. Within the Guidelines for cautioning set out in Circular 59/1990. Ibid, para 7(vii). Home Affairs Committee, op cit, para 45. Ibid, para 44.

138

Prosecution of Domestic Violence Davis 8 found that domestic violence is significantly more likely to be prosecuted than assault in other contexts, a conclusion drawn not only from the British Crime Survey of 1992 but also from a survey of cases in Bristol, where the proportion of domestic to non-domestic assault cases prosecuted was in the proportion of 46% to 54%. Nevertheless, specific problems remain. One is discontinuance. Cretney and Davis found a significantly higher discontinuance rate for domestic violence assault cases than for non-domestic violence assault cases. In terms of cases where the victim withdrew her statement, the proportion was 30% of domestic violence to 7% of other cases, and, in terms of overall discontinuance, some 52% of domestic violence to 29% of other cases. They also found a significantly higher rate of discontinuance in those domestic violence cases where the relationship was on-going. In summary, and on the basis of a small sample, Cretney and Davis concluded that current cohabitants 9 were approximately twice as likely to withdraw a complaint as were former or noncohabitants. Perpetrators of domestic violence are more likely than not to be cohabitants, and thus the problem of withdrawal is a real one. Withdrawal occurred at all stages in the proceedings, from the time of the making of the original statement right through to non-appearance at court. CPS policy is that no withdrawal should be taken at face value, and Circular 60/90 envisaged that all complainants wishing to withdraw should make a statement to the police. Cretney and Davis found that the ‘degree of vigour’ applied in such cases varied considerably, with responsibility largely falling on the police. 10 They found some evidence to suggest that women are sometimes required to go to court if they want to retract, and are occasionally required to go into the witness box to do so. They also found some anecdotal evidence to support a conclusion that in part the attitude of the court and prosecution was essentially punitive. They conclude11 that ‘much that police, prosecution and courts currently do to ensure that a retraction is properly made appears designed to protect the prosecuting authorities rather than to uncover coercion [of the victim]. The fact that coercion is seldom if ever revealed by these means forces this conclusion’. They suggested that the courts, and CPS, abandon the practice of requiring withdrawal from the witness box, which was required in some 19% of the withdrawal cases in the survey. The same issue was considered by Grace in her study.12 The operational officers questioned in her survey had perceptions that did not generally __________________________________________________________________________________________________________________________________________

8 9 10 11 12

Cretney and Davis, Policing ‘Domestic’ Assault [1996] Crim LR 162. By which term is meant persons who are living together, whether married or not. Ibid, p 169. Ibid, p 173. Home Office Research Study 139, op cit, pp 23–24, 45–47. 139

Domestic Violence regard withdrawal as commonplace. Less than a quarter of such officers agreed with the proposition that ‘most victims withdrew their complaints’. Over half of those officers said that if a victim decided to withdraw her complaint they would ask her to make a formal retraction statement so that the case could be closed officially. One-third said that they would try to find out why the victim did not wish to continue, and a similar number said that they would simply submit a report to the CPS, leaving it to them to decide whether to proceed. Other actions recorded by Grace were officers trying to persuade the victim of the importance of pursuing the charge and warning her that the case may proceed without her; trying to continue the case without the victim; advising the victim about other ‘non-criminal’ options; and making the victim withdraw in court. Some respondents said that they would ask the domestic violence officer to establish why the complainant was withdrawing. Similar practices are followed in Leicestershire. The Domestic Violence Standards of Leicestershire Constabulary13 state that where an ‘offender’14 has been charged pending a court hearing and the victim wishes to withdraw the complaint, a statement is taken in the absence of the offender. The statement will include the victim’s reasons for wishing to withdraw, particularly if there is a fear of reprisals or an attempt has been made to ‘dissuade’ the victim from giving evidence. The victim is made aware of the implications of withdrawing the complaint and advised that the CPS has the power to continue the prosecution and compel her attendance at court. Where practicable the Victim Liaison Officer will visit the victim to obtain the statement.15 Of particular interest are the reasons identified by officers why complainants withdraw complaints. Chief amongst them16 were that that the complainant still loved, or wished to be reconciled with, the violent partner; fear of reprisals; fear of losing children or a desire to keep the family together, being scared of going to court, and fear of future problems if the partner was imprisoned. A revealing perspective on the issue of withdrawal and discontinuance is provided by the perceptions of the police by other agencies, noted by Grace.17 The CPS respondents said that younger officers sometimes became ‘quickly disillusioned’ when complainants withdrew complaints, or when such officers came under the influence of older officers, more ‘set in their ways’. The CPS respondents uniformly painted a picture that a formal retraction was required in all such cases, and most said that they would ask the police to check out the reasons for withdrawal. Some evidence from the responses indicates that the __________________________________________________________________________________________________________________________________________

13 See above, p 122. 14 (Sic) – the term is unfortunate because it presupposes guilt at a time when that has yet to be established. 15 Ibid, p 12. 16 Ibid, p 24, Table 4.6. 17 Ibid, pp 45–47. 140

Prosecution of Domestic Violence practice of requiring a complainant to come to court to retract is not only not uniformly applied, but also disapproved of by some CPS offices. All the respondent prosecutors said that they would be willing to pursue a case without a victim’s support, but only if there was independent evidence of an assault (usually a witness) and if the case was serious enough to warrant proceeding. Most thought that requiring complainants to give evidence18 should be reserved for the most serious cases where the defendant posed a considerable danger to the victim. Most were of the view that s 23 of the Criminal Justice Act 198819 was rarely used, a view with some justification in the light of the preconditions for its exercise and the judgments left in the hands of the trial judge or magistrates. 20 In many cases fairness to the accused, and the trial process, will demand that the alleged victim be available for cross-examination.

The victim’s interests and wishes As already noted, this is a key consideration, related to but distinct from the question of victim co-operation. The Home Office Victim’s Charter stresses that the wishes of victims are legitimate matters to which regard can, and should, be had. However, a dichotomy may exist between what is in the interests of the victim and what he or she wishes. Police intervention may well be appropriate to safeguard the interests of a complainant, even if the complainant is reluctant to bring or support proceedings.21 So, too, with the prosecution process. Prosecution may have an effect on the victim and her family that may not be desired, but is desirable and in her interests. There is also the further dichotomy between acting in the interests of the victim (whether or not these coincide with her wishes) and acting in the wider public interest to ensure that perpetrators of violent crime (which is what domestic violence is) are prosecuted, convicted and punished. The Council of Circuit Judges told the Home Affairs Committee that ‘... the wishes of the victim should not be the overriding or exclusive determining factor in the decisions of the law enforcement agencies’, a view shared by the CPS.22

Victim co-operation The evidence given to the Home Affairs Committee confirmed that often the first desire of the victim is for the violence to stop.23 Once it has, there may be a disinclination to participate in, or co-operate with, the prosecution process. __________________________________________________________________________________________________________________________________________

18 19 20 21 22 23

See below, p 147. See below, p 153. See below, p 159. See above, p 151. Home Affairs Committee, op cit, para 45. Ibid, para 48. 141

Domestic Violence This co-operation is crucial, for, as Sanders found,24 prosecutors will rarely proceed if the complaint is withdrawn, if for no other reason than that proceeding in the absence of the complainant will usually give rise to unfairness to the accused, and thus the likely failure of the prosecution. Many cases are withdrawn from prosecution on the grounds that the woman either withdrew her allegations or is unwilling to act as a witness.25 In this respect Sanders found some divergence between domestic and non-domestic assault cases; there was some evidence to suggest that, in the latter, the prosecutor might nevertheless proceed, but such cases are more likely to be cases in which cogent supporting evidence exists. By its very nature domestic violence usually occurs in private, and although physical abuse will often be supported by medical evidence, the circumstances in which physical injuries were suffered may not be supported by independent evidence. Evidence of a pattern of abuse, or of a past history of abuse, will not often be admissible to prove the instant allegation.26 This lack of co-operation of the alleged victim may be for various reasons. The complainant may still love the perpetrator, or may experience feelings of degradation or guilt. The trauma of a trial may be another motivator towards non-co-operation, and other important factors may be the loss of security, financial support, loss of accommodation, or the depressing prospects of living on state benefits or in a hostel. An important consideration in some cases may be fear of threats and intimidation. Such conduct by a perpetrator, or, indeed, on his behalf, is of course unlawful. Interference with a witness to proceedings is punishable at common law either as a contempt of court or as an attempt to pervert the course of justice, provided an intent to prejudice the administration of justice is proved. Such offences may not be entirely appropriate to deal effectively with the situation where the prosecution process has not commenced. It was for that reason that s 51 of the Criminal Justice and Public Order Act 1994 was enacted. Section 51(1) creates an offence where a person does to another: (a) an act which intimidates, and is intended to intimidate, that other person; (b) knowing or believing that the other person is assisting in the investigation of an offence or is a witness or potential witness ... in proceedings for an offence; and (c) intending thereby to cause the investigation or the course of justice to be obstructed, perverted or interfered with. __________________________________________________________________________________________________________________________________________

24 Sanders, Prosecuting Domestic and Non-Domestic Violence (1987), unpublished paper cited by Smith, Home Office Research Study No 107, p 64; Sanders, ‘Personal Violence and Public Order: The Prosecution of “Domestic” Violence in England and Wales’ (1988) 16 International Journal of the Sociology of Law 359. 25 National Inter-Agency Working Party: Report on Domestic Violence (1992) Victim Support, London. 26 See below, p 147. 142

Prosecution of Domestic Violence Section 51(2) creates a similar offence in respect of the intimidation of those who have assisted the police or already given evidence. These offences27 go some way to criminalise the conduct of those who use violence to deter co-operation with the prosecution process, particularly as the victim does not actually have to be assisting, etc, the police. It is sufficient that the accused person knows or believes that they are. The complainant may indeed be reluctant, but arguably the fact she has been questioned by the police means that she is ‘assisting’. It would surely be wrong for this purpose to construe the term ‘assisting’ as meaning ‘positively helping’, but in any event the point is probably unimportant because the complainant is a potential witness. Further, the intimidation can be financial as well as physical.28 Thus the man who threatens his partner that if she pursues her complaint he will stop paying the mortgage or a housekeeping allowance potentially commits a s 51 offence just as much as the man who threatens to punch or to throw stones through the windscreen of her car, provided in each case the requisite intent is present. The action complained of must be intended to intimidate. That can be presumed from the nature of the act. Section 51(7) provides that if the accused does an act that falls within (a) above with the knowledge or belief required by (b) above, he shall be presumed, unless the contrary is proved,29 to have done the act with the motive required by (c). This will facilitate prosecution of cases such as that where an accused claims that he hit out, or threatened, in anger, not with the intent to intimidate. In such a case the burden of proof will fall on him. However, the burden of proving the other elements of the offence remains on the prosecution. Thus no offence is committed if the prosecution fails to show that the accused knew or believed that the complainant was assisting in an investigation, or was a witness or potential witness. In cases where the complainant has successfully been intimidated, it is theoretically possible nevertheless for the prosecution to proceed, relying on the witness statement of the complainant being admitted pursuant to s 23 or s 24 of the Criminal Justice Act 1988. This is discussed later, as is the problem caused in law to the prosecution by a complainant becoming reluctant at trial.30

The offence charged Not only is it important that domestic violence cases be prosecuted, it is also important that such prosecutions are in respect of offences that, in their __________________________________________________________________________________________________________________________________________

27 Punishable on conviction on indictment with a maximum term of imprisonment of five years, or a fine, or both, and, summarily, with up to six months’ imprisonment or a fine not exceeding the statutory maximum or both. 28 Section 51(4) of the Criminal Justice and Public Order Act 1994. 29 On the balance of probabilities: see R v Carr-Briant [1943] KB 607. 30 See below, pp 151–52. 143

Domestic Violence seriousness in the scale of offences, reflect the seriousness of what in fact occurred. The Home Affairs Committee31 received evidence that offences were ‘downgraded’ by the Crown Prosecution Service, an allegation strenuously denied by the CPS. However, the Committee was told that ‘provided ... that the offence charged is appropriate to the nature of the facts alleged and provided that the court’s sentencing powers will be adequate, the CPS will also take into account such matters as speed of trial, and mode of trial’. This is confirmed by the Code for Crown Prosecutors, which also refers to sufficiency of evidence. Speed is, indeed, an important factor in the minimisation of withdrawal of complaints by complainants. Trial on indictment may result in a delay of several months and prompt a plea of not guilty, as well, statistically, as being more likely to result in an acquittal.32 By contrast, summary trial will be quicker – and cheaper – and attract a lesser sentence. Further, an accused may be more willing in these circumstances to plead guilty, gaining credit for an early plea,33 particularly if the offence charged is downgraded. In 1989 an earlier Home Affairs Committee Report34 concluded that it was in the interests of justice for charges to be brought that would be tried summarily. However, the 3rd Report of the Home Affairs Committee in 1992 stressed the need for the CPS to make particular efforts to explain their actions to the victim if charges are, in fact downgraded. Grace found35 the attitudes of the CPS were that the first charge laid would be the most serious, but this might be reduced if a lesser offence ‘offered appropriate penalties for the injury sustained’. Several respondents emphasised the desirability of achieving speedy resolution of the case through summary process (for the victims’ sake) although, perhaps unsurprisingly, there is no mention of the benefits this brings in more base, resource terms to the CPS in cost and meeting performance indicators. Most prosecutors thought that ‘bind-overs’36 could be useful in less serious cases, particularly where the victim herself was reluctant to give evidence, or the case as a whole was a weak one. Most prosecutors admitted that a bind-over offered a victim little protection and would not have any deterrent effect on abusers.

BAIL One of the purposes of the complainant calling the police in the first place is often to secure a cessation of the violence she or he is suffering. The effect of __________________________________________________________________________________________________________________________________________

31 32 33 34 35 36

Op cit, paras 65–66. See Zander and Henderson, Crown Court Study, RCCJ Research Study No 19. See s 48 of the Criminal Justice and Public Order Act 1994. HC 118 Session 1989–90, paras 40–43. Op cit, pp 46–47. See above, p 84. 144

Prosecution of Domestic Violence the arrest is therefore diminished if the perpetrator is free to resume his abusive behaviour. The resumption of abusive behaviour can in part be dealt with through prompt use of the civil law, through the complainant moving to a refuge or other accommodation, the whereabouts of which are not known to the perpetrator, and through a rigorous use by the police of the criminal law preventative powers, and an appropriate awareness of the range of potential charges available.37 However, the attention of the 3rd Report of the Home Affairs Committee was drawn to the inadequate use of bail conditions by the courts and by the police.38 The Committee recommended that, as in other cases of serious violence, the police consider detention in police custody of any person who appears likely to commit a further offence against a partner if he or she were bailed. Police forces may adopt policies that are based, presumptively, on a refusal of bail. Such practices are lawful, provided no complete fetter on the exercise of discretion in each case exists. In Leicestershire the police domestic violence standards state: On every occasion we will endeavour to ... detain any person charged with an offence originating from an incident involving domestic violence, within the constraints of the Police and Criminal Evidence Act, in police custody to place them before the next available court.

However, there are sufficient legal powers to regulate bail for protective purposes. Prior to the passage of the Criminal Justice and Public Order Act 1994 it was not possible to impose conditions on police bail granted to persons charged. Only a court could grant such conditional bail.39 That has changed. Section 47(1A) of PACE 198440 provides that ‘the normal powers to impose conditions of bail’ are to be available to a custody officer when he releases on bail. The ‘normal powers’ mean the powers to require the person to comply, before release on bail or later, with such requirements as appear to be necessary to secure that (a) he surrenders to custody; (b) he does not commit an offence while on bail; or (c) he does not interfere with witnesses or otherwise obstruct the course of justice whether in relation to himself or another. A new s 3A(5) of the Bail Act 197641 empowers a constable to impose conditions on the grant of bail where it is necessary to do so for the purpose of preventing that person from: (a) failing to surrender to custody; or (b) committing an offence while on bail; or (c) interfering with witnesses or otherwise obstructing the course of justice, whether in relation to himself or any other person. __________________________________________________________________________________________________________________________________________

37 38 39 40 41

See above, pp 89–101. Third Report, op cit, para 69. Section 3 of the Bail Act 1976. As amended by s 27(1)(b) of the Criminal Justice and Public Order Act 1994. Inserted therein by s 27(3) of the Criminal Justice and Public Order Act 1994. 145

Domestic Violence This power to impose conditions does not extend to a power to require residence in a bail hostel,42 but could include conditions requiring the accused not to visit, contact or otherwise interfere with the complainant, thus bringing into play the sanctions available should bail conditions be breached. In respect of court bail, the presumption in favour of bail contained in s 4 of the Bail Act 1976 is limited by Schedule 1 to that Act. Paragraph 2 of Part I of that Schedule provides that bail need not be granted if the court is satisfied that there are substantial grounds for believing that the accused, if released on bail whether unconditionally or conditionally would: (a) fail to surrender to custody; or (b) commit an offence while on bail; or (c) interfere with witnesses or otherwise obstruct the course of justice. Furthermore a new s 5B of the Bail Act 197643 permits a court to reconsider the grant of bail. An extensive range of powers thus exists to prevent the issue or renewal of bail where a person on bail may commit, or threaten to commit, acts of domestic violence against another. It remains to be seen whether the hopes of the Home Affairs Committee in respect of stricter controls on bail will be fulfilled.

EVIDENCE 1 Burden and means of proof Clear distinctions exist between civil cases involving domestic violence and criminal prosecutions. Disputed allegations of domestic violence in civil proceedings will need to be established only to the standard of the balance of probabilities, although the authorities tend to support the conclusion that if a serious allegation is made against a party in civil proceedings, the standard of proof to be satisfied may be a high one, almost equivalent to that in criminal cases.44 By contrast a finding of guilt in a criminal prosecution presupposes that the prosecution can prove the charge to the criminal standard, namely, that the court is satisfied that the case is proved beyond reasonable doubt.45 The finding on any matter in a civil case is not admissible to prove the truth of that matter in a criminal case, and, even if it were sufficiently relevant, would in most cases be prohibited by virtue of the prohibition of evidence of bad character. Thus the fact that an alleged victim has obtained a civil order will, __________________________________________________________________________________________________________________________________________

42 43 44 45

Ibid, s 3A(2). Inserted therein by s 30 of the Criminal Justice and Public Order Act 1994. Re H (minors) (sexual abuse: standard of proof) [1996] 1 All ER 1; W v K [1988] Fam Law 64. Woolmington v DPP [1935] AC 462; Miller v Minister of Pensions [1947] 2 All ER 372. 146

Prosecution of Domestic Violence generally, have no evidential value or place in a criminal prosecution in respect of that conduct. By contrast, the fact of conviction may well be of considerable support in any civil proceedings relating to the same conduct brought subsequently, and, under s 11 of the Civil Evidence Act 1968, proof of that conviction is admissible evidence in civil proceedings. It shall be taken as proof of the conviction of the commission of that offence unless the contrary is proved. In determining guilt in respect of any criminal offence, it is not generally permissible to make reference to any previous convictions of the accused in respect of earlier acts of violence. Section 1(f) of the Criminal Evidence Act 1898 provides a ‘shield’ against cross-examination about previous convictions or bad character. To this general rule there are exceptions. One is the so-called ‘similar fact’ evidence rule, which applies where the previous convictions, past conduct, or multiple allegations have sufficient probative force to justify admission for the purposes of proving guilt. Thus a history of convictions for domestic assault will not have evidential value, but might do so if the accused alleged, for example, that the injuries suffered by his partner were caused accidentally or were self-inflicted.46 The number of cases where the facts are such as to justify the admission of ‘similar fact’ evidence to prove allegations of domestic violence will be few, because of the high threshold test the law has set in the cases already cited. A second exception to the general rule prohibiting evidence of bad character is where the accused asserts his own good character or casts imputations against the character of the prosecutor or a witness for the prosecution. The term ‘imputation’ has no precise meaning, but includes allegations of wrongdoing or of matters which place the prosecutor or witness in a discreditable light.47 To allege bad or discreditable conduct by a complainant of domestic violence would be sufficient to infringe s 1(f)(ii), and permit cross-examination of an accused as to his bad character, subject only to the discretion of the court to prevent such cross-examination.48

2 Competence and compellability In evidence to the Home Affairs Committee, the Crown Prosecution Service stated:49 Witnesses brought to court in this manner will inevitably have been caused distress. Additionally the prosecutor is unlikely to know how the witness will react; some may give evidence apparently willingly and with a degree of relief __________________________________________________________________________________________________________________________________________

46 For the relevant principles see R v P [1991] 3 All ER 337; R v H [1995] 2 All ER 865; DPP v Boardman [1975] AC 421. 47 R v Hudson (1912) 2 KB 464; R v Jones (1923) 17 Cr App R 117; R v Bishop [1975] QB 274. 48 See R v Britzman [1983] 1 WLR 350. 49 Third Report, op cit, p 63. 147

Domestic Violence that the decision to do so is out of their control; others will become hostile to the prosecution and give evidence which only assists the defence; yet others may refuse to give evidence at all and then find themselves at risk of being punished for contempt whilst the perpetrator of the original offence is discharged.

The CPS observed that ‘the more serious the offence, the more likely it is that an assessment of the public interest will prevail over and above the wishes of the victim’. However, the Chiswick Family Rescue believed that the need for compulsion could often be obviated if court procedures and facilities were improved.50 There is also the question of safety of the witness herself. To compel a witness to give evidence whilst not offering protection or the opportunity of safe accommodation to remove the fear of reprisals is an affront to any concept of fairness. The normal rule is that any individual (other than an accused in those proceedings) is a competent witness for the prosecution if they are capable of giving intelligible testimony. 51 A competent witness is, usually, also compellable, in the sense that, on pain of contempt of court for failure to do so, the witness can be required to attend, answer relevant questions unless excused from doing so by the law or the court, and required to produce relevant documents.52 To this general rule there are various exceptions, one of which applies to the spouse of the accused. At common law spouses were incompetent to give evidence against each other, a rule which historically might have been based on archaic assumptions in law about the unity of man and wife, or assumptions that presupposed bias,53 but in more modern times rested on policy judgments which sought to balance the desirability of having available relevant evidence before the court with the desirability of maintaining matrimonial harmony and the difficulties of compelling a wife (or husband) to give evidence against her (or his) husband (or wife).54 Section 80 of PACE 1984 is the modern legislative response applicable in criminal cases. It should be noted that it applies only to spouses, and only while they are married to each other.55 It does not apply to a cohabitee, nor to spouses who are ‘married’ in a sense not recognised by English law, such as parties to a polygamous marriage abroad,56 to a bigamous marriage,57 or to a ‘gay’

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50 Ibid. 51 See, eg R v Whitehead (1886) LR1 CCR 33; R v Baines [1987] Crim LR 508. 52 Sections 97 and 97A of the Magistrates’ Courts Act 1980; ss 2–2E of the Criminal Procedure (Attendance of Witnesses) Act 1965,. 53 See Criminal Law Revision Committee, 11th Report: Evidence, 1972, Cmnd 4991, pp 92–93. 54 See Hoskyn v Metropolitan Police Commissioner [1979] AC 474. 55 Section 80(5) of PACE 1984. 56 R v Khan (1986) 84 Cr App R 44. 57 R v Yacoob (1981) 72 Cr App R 313.

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Prosecution of Domestic Violence marriage ceremony. Thus a significant number of victims of domestic violence will, for this reason alone, be both competent and compellable witnesses. By s 80(1) a spouse is competent for the prosecution unless she is a coaccused, which is a highly improbable situation in a domestic violence case save where the violence has been addressed to a child of the marriage at the instigation of both parents. However, she is only compellable if one of the three conditions in s 80(3) is satisfied. These are as follows: (a) the offence charged58 involves an assault on,59 or injury or threat of injury to, the spouse or a person at the time of the offence under the age of 16 years; (b) a sexual offence alleged to have been committed against a person under the age of 16 years; (c) an offence of attempting, conspiring aiding or abetting, counselling or inciting such an offence. In these circumstances, the spouse is compellable, although there may well be cogent reasons why a prosecutor would not seek to compel that spouse to testify. A witness who is compelled to give evidence, but declines to do so, is guilty of contempt of court and can be punished for that offence. By contrast, where a spouse is competent but not compellable, then, before he or she takes the oath, the judge must tell them of the fact that they are not compellable. He must also warn the spouse that the right not give evidence, and the right not to answer questions, is waived by the taking of the oath.60 This right not to give evidence, albeit a limited right, is exceptional. Other members of the family are not so protected. In particular, children of the household, who may well hear or see acts or threats of violence and thus be important witnesses, are both competent and compellable. Until recently the laws relating to children’s evidence proceeded on an assumption that a young child was not competent to give even unsworn evidence.61 That is no longer is the position. A child 62 must give his or her evidence unsworn, and is presumed to be a competent witness unless shown to be incapable of giving intelligible testimony.63 Research provides some support for the conclusion that attitudes to the testimony of very young children are changing, but

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58 The position where there are multiple charges some, but not all, of which fall within the subsection is unclear. 59 For the definition of assault see above, p 91. It can include psychological damage. 60 R v Pitt [1982] 3 All ER 63. 61 See, eg R v Wallwork (1958) 42 Cr App R 153, where Lord Goddard CJ observed that it was to be hoped that a five-year-old would never again be called to give evidence, a view rejected by the Court of Appeal in R v Z [1990] 2 All ER 355. 62 For this purpose, a person aged under 14 years: s 33A of the Criminal Justice Act 1988. 63 Ibid, s 33(2A).

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Domestic Violence slowly. Davies et al64 found instances of even three-year-old children’s testimony (through videotaped interview) being accepted for consideration by a few courts.

3 The process of giving evidence Unlike children, who may give evidence through a live television link or, in respect of their examination in chief, can rely on a video-recorded interview65 (in each case, provided the offence being tried falls within the categories set out in s 32(2) of the Criminal Justice Act 1988),66 no special procedures exist to protect the complainant of domestic violence from the trauma of the trial. A court has inherent power in this respect, and could, for example, permit a complainant of domestic violence to be screened from the accused. 67 Screening is supported by some,68 and prosecutors usually consider the desirability of frightened witnesses who are victims of domestic violence being offered the opportunity of giving evidence from behind a screen. The Home Affairs Committee commended the practice of seeking the judge’s permission in appropriate cases. However, the Pigot Report69 favoured the making of a live TV link available to ‘adult vulnerable witnesses’ an approach which might be of positive assistance to victims of domestic violence. There is no evidence to suggest that courts in fact give protection to the complainant in this way to any significant extent, if at all. Evidence to the Home Affairs Committee70 highlighted the need for better court facilities which, particularly in the smaller and older courts, needed significant improvement. Victims and defendants often had to wait together, give evidence in the sight of each other and there was sometimes a lack of police officers on duty to protect victims. The last finding may, if anything, have been further exacerbated by the recent trend towards the use of contract security firms to ensure court security. The Home Affairs Committee regarded the physical environment and the attitude of court officials as of great __________________________________________________________________________________________________________________________________________

64 Davies, Wilson, Mitchell and Milsom, Videotaping Children – An Evaluation (Home Office, 1996). 65 Section 32A of the Criminal Justice Act 1988. 66 These are: (a) an offence involving an assault on, or injury or threat of injury to a person; (b) an offence under s 1 of the Children and Young Persons Act 1933 (cruelty to persons under 16); (c) an offence under Sexual Offences Act 1956, Indecency with Children Act 1960, s 54 of the Sexual Offences Act 1967, Criminal Law Act 1977 or Protection of Children Act 1978; (d) offences of attempting or conspiring to commit, or of aiding, abetting, counselling, procuring or inciting the commission of, an offence falling within (a), (b) or (c). 67 R v X, Y and Z (1989) 91 Cr App R 36. 68 See Home Affairs Committee, 3rd Report, op cit, para 57. 69 Report of the Advisory Group on Video Evidence (Home Office, 1989), para 3.14–3.15. 70 Third Report, op cit, para 55. 150

Prosecution of Domestic Violence importance and recommended ‘a vigorous effort by court administrators to ensure that the best use is made of the facilities available ... In particular we should like to see the rapid provision of separate waiting rooms where these are not available and, wherever possible, supervision by police officers in the courts’.

4 Preparation for the trial Evidence to the Home Affairs Committee recommended the establishment of specialist support workers to support victims of domestic violence through the prosecution process.71 In fact victim support groups do exist at some Crown Court centres. However, a key role is played by the police Domestic Violence Officer (DVO). Grace found72 that most officers thought they should remain neutral and offer advice on the ‘pros and cons’ when the victim was deciding whether to press charges against their partner and whether to give evidence against him. Some officers would be willing to encourage complainants to give evidence, but a majority concluded that it would be wrong to compel victims to give evidence, ‘mainly because this would involve taking away her choices’. All but one of the DVOs surveyed frequently accompanied victims to court, describing their function as the provision of general support for the victim: explaining the court procedures and protecting the victim. However, domestic policies may sometimes be ambivalent on this. Thus the Leicestershire Standards 73 merely speak of the arranging for vulnerable persons to be escorted to and from court in circumstances that cause such vulnerable persons to anticipate harassment when required to attend criminal proceedings. The role of the DVO can also extend to keeping victims informed of the release on bail of alleged offenders, and of any bail conditions imposed by a court.

5 Reluctant testimony The fact that a complainant has taken the oath does not necessarily make that complainant a willing witness. A complainant of domestic violence may be a cohabitee and thus compellable. The complainant may be non-compellable but may, nevertheless, have agreed, with reluctance, to testify. The party calling a witness cannot ask leading questions (save on formal, noncontentious matters). Leading questions are questions which suggest the desired answer to the witness. Nor can a party calling a witness cross-examine __________________________________________________________________________________________________________________________________________

71 Ibid, para 56. 72 Home Office Research Study No 139, op cit, pp 29–30. 73 Op cit, p 2. 151

Domestic Violence his own witness. Thus a prosecutor who has called a reluctant spouse to give evidence may well face problems in obtaining in testimony given actually in court, the facts contained in that witness’s out-of-court statement. The effect of the hearsay rule will usually be to prohibit the adducing of that out-of-court statement in evidence. A prosecutor can invite the witness to refresh her memory from a statement made to the police,74 and so, too, can the judge.75 However, the statement itself is not admissible evidence; it is hearsay,76 and a court can only rely on the truth of its contents if it falls within one of the exceptions to the hearsay rule, such as the statutory exceptions contained in ss 23 and 24 of the Criminal Justice Act 1988. These are discussed below.77 If a witness refreshes memory from that statement this may then lead to the witness overcoming her reluctance, but failing that, the alternative for the prosecutor is to seek to have the witness declared hostile. A hostile witness is a witness who is not desirous of telling the truth at the instance of the party calling her.78 Some hostility or animosity is called for; it is not enough that the witness gives evidence unfavourable to the prosecutor, or is reluctant. However, if the witness is declared hostile by the judge on the application of the party calling the witness then, at common law, she may be asked leading questions (ie questions that suggest the answer to be given) and, under s 3 of the Criminal Procedure Act 1865, previous inconsistent statements may be put to her by the advocate. Even where the witness declines to give any meaningful testimony at all, she may be declared hostile. In R v Thompson79 the daughter of the man accused of incest against her was called to give evidence, took the oath but then indicated she would not give evidence against her father. Despite the fact that there was no testimony that was ‘adverse’, in the sense that she had not given testimony inconsistent with an earlier statement, the court held that the power at common law to declare a witness hostile remained, and thus permitted the prosecutor to cross-examine her on her previous out-of-court statement, and to ask leading questions. However, irrespective of whether hostility is declared at common law or by virtue of s 3 of the 1865 Act, the effect is simply to permit cross-examination and to permit leading questions, and does not confer a general right to attack the credit of the witness. It may be that in such circumstances the reluctant witness may in fact testify as to what happened, in accordance with her outof-court statement. More likely, the result is often to render the witness of little __________________________________________________________________________________________________________________________________________

74 That will apply both in respect of statements which are contemporaneous (ie made while the events are still fresh in the mind of the maker) (Attorney General’s Reference (No 3 of 1979) (1979) 69 Cr App R 411), and those that are not (R v Da Silva [1990] 1 All ER 29). 75 R v Tyagi (1986) The Times, 21 July. 76 An out-of-court statement containing an assertion, express or implied, and being tendered to prove the truth of that assertion. 77 See below, pp 153–58. 78 Ewer v Ambrose (1825) 3 B & C 746. 79 (1976) 64 Cr App R 96.

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Prosecution of Domestic Violence value.80 For that reason, a prosecutor’s reluctance to base a case on a witness who is unwilling to ‘see it through’ is more explicable.

6 Use of out-of-court statements It has already been noted that, generally, an out-of-court statement by any witness – including a complainant of domestic violence – is not admissible to prove the truth of its contents, although it may sometimes be used in crossexamination to weaken the credit of the witness,81 or for the purpose of refreshing memory. The exceptions to the hearsay rule which imposes this limitation are limited, because the rule exist to prevent trials being based, whether wholly or in part, upon out-of-court evidence. The hearsay rule prevents out-of-court statements being used because there are dangers in respect of distortions or fabrication, and the maker of the statement, if unavailable to testify, cannot be cross-examined. If, on the other hand, the maker of the statement is available, the out-of-court statements become selfserving and irrelevant: what matters is what the witness tells the court. Whatever the historical justifications for the rule, its effect, in the domestic violence context, is to prevent the court relying on the truth of statements made by complainants at or nearer the time of the events in question, who, for the various reasons identified earlier,82 are reluctant to give evidence. The legal right to consider such statements is recognised by the statutory provisions in the Criminal Justice Act 1988, which create exceptions to the hearsay rule. Section 23 of the Criminal Justice Act 1988 provides for the admissibility of a statement made by a person in a document as evidence of any fact of which direct oral evidence by him would be admissible, provided the one of requirements set out in s 23(2) is satisfied, or provided that the requirements of s 23(3) are satisfied. Section 23(2) states the following requirements, one of which has to be satisfied: (a) that the person who made the statement is dead or by reason of his bodily or mental condition unfit to attend as a witness; (b) that (i) the person who made the statement is outside the United Kingdom, and (ii) it is not reasonably practicable to secure his attendance, or

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80 See R v Pestano [1981] Crim LR 39. 81 Sections 4 and 5 of the Criminal Procedure Act 1865. 82 See above, p 151. 153

Domestic Violence (c) that all reasonable steps have been taken to find the person who made the statement, but that he cannot be found.

Section 23(2) thus applies to the statement of a complainant who has fled, or who is suffering physical illness or mental trauma subsequent to domestic violence which makes them unfit to attend as a witness. This last phrase is ambiguous, but means unfit to give meaningful testimony. In R v SetzDempsey83 the main prosecution witness in a case involving charges of theft and handling stolen goods was unable to recollect any of the relevant events, due to mental illness. The trial judge had ruled that the witness was ‘unfit to attend as a witness’ within the meaning of s 23(2)(a), a conclusion not doubted by the Court of Appeal, which quashed the conviction because the judge had wrongly exercised his discretion.84 Again, in R v Dragic85 the victim of a burglary had, at the time of trial, been operated on for cancer and had lost his top jaw and left eye. The effect of the operation made it difficult for him to speak. The Court of Appeal, in dismissing an appeal against conviction, was of the opinion that s 23(2)(a) clearly applied, and that the witness statement had been rightly admitted under s 26. The effect of these authorities is that if the effect of the domestic violence has been to traumatise the victim who is therefore in no fit state to give evidence, or meaningful evidence, then the threshold condition in s 23(2) is satisfied. Of course, it may be that a complainant is able to give evidence, but at the risk of suffering further mental damage if she does so. Whether this circumstance falls within the scope of s 23(2)(a) will be a question to be determined by the court on evidence presented to it,86 and thus the answer will turn on what medical evidence is available as to the effect of the witness testifying. The second set of threshold conditions is contained in s 23(3). This states that the requirements mentioned in s 23(1)(ii) are: (a) that the statement was made to a police officer or some other person charged with the duty of investigating offences or charging offenders; (b) that the person who made it does not give oral evidence through fear or because he is kept out of the way.

Clearly, this subsection is of crucial importance in a domestic violence context. The use of the word ‘or’ in s 23(3)(b) demonstrates that the requirements contained in that subsection are alternatives. In R v Acton Justices ex p McMullen87 the Divisional Court, in dismissing applications for judicial __________________________________________________________________________________________________________________________________________

83 (1994) 98 Cr App R 23. 84 He had relied on s 25 rather than s 26, which was the relevant provision given that the statements were prepared for the purposes of criminal proceedings. 85 (1996) unreported. 86 The threshold conditions have to be satisfied and proved by admissible evidence: Neill v North Antrim Magistrates’ Court [1992] 4 All ER 846; R v Case [1991] Crim LR 192. 87 And its companion case, R v Tower Bridge Magistrates’ Court ex p Lawlor (1990) 92 Cr App R 98. 154

Prosecution of Domestic Violence review of decisions of magistrates in the two cases, held that the words ‘fear’ and ‘kept out of the way’ should be read disjunctively. It was inappropriate to speak of the concept of reasonable grounds in determining whether the witness was in fear. It will be sufficient that the court, on the evidence, is sure that the witness is in fear as a consequence of the commission of the material offence or of something said or done subsequently in testifying as to it. The court added that Parliament had let loose ‘two unruly horses’, one named ‘fear’, the other ‘kept out of the way’, both of which would need to be kept under control. On the facts of McMullen, the victim of burglary and woundings was not at court, the absence being due to fear. The court permitted her statement to be read. In Lawlor (the companion case), the witness in fear was X, a 16-year-old boy. He was brought to court by the police, having refused to attend voluntarily. He refused to go into court to testify, and sat in a room in the precincts of the court. He had not complained of any threats and there was no evidence that anyone had tried to interfere with him. A police officer testified in court that X was terrified of being identified. The justices found that X was ‘in fear’, a conclusion upheld as proper by the Divisional Court. The above formulation by the Divisional Court has to be read in the light of a subsequent Court of Appeal decision in R v Martin.88 During the trial of M, on charges of arson, an eye witness, when giving evidence on the voir dire,89 stated that he was not going to give evidence because he was ‘just a bit concerned for meself, the wife and two kids ...’. He went on to say that just before the hearing he had been approached and intimidated by an unknown man who was outside his door but who had not said anything. The trial judge ruled that the statement of the witness could be read, pursuant to s 23(1) and s 23(3)(b), even though there was no evidence that there was ‘something said or done subsequently’. This conclusion was upheld on appeal, the court observing that those words ‘something said or done’ do not appear in the statute. The trial judge was satisfied that the witness was in fear, and he was therefore entitled to admit the out-of-court statement. Whether the witness is in fear must be proved by admissible evidence. Thus in Neill v North Antrim Magistrates’ Court90 the evidence of a police officer as to what he had been told by the mother of the witness as to the state of mind of the witness could not prove that the witness was in fact suffering fear, because it was hearsay evidence, and thus inadmissible. However, fear can be proved in a variety of ways. It may be, for example, that a police officer __________________________________________________________________________________________________________________________________________

88 (1996) unreported. 89 The process whereby evidence is heard, in the absence of the jury, to determine the admissibility of evidence. Where it is known in advance that a witness is unwilling to testify, the reasons should be investigated in the absence of the jury: R v Jennings and Miles [1995] Crim LR 810. 90 [1992] 4 All ER 846. 155

Domestic Violence can testify as to what the witness herself says about fear. This is admissible either because it is evidence of fact it was said, adduced to prove state of mind (and thus not hearsay) or, on an alternative conceptualisation of the same principle, under an exception to the hearsay rule that permits evidence to be given of statements of contemporaneous state of mind.91 On the other hand, there is no necessity for the witness to fail totally to give evidence. In R v Ashford Magistrates’ Court ex p Hilden92 the applicant sought judicial review of his committal for trial on charges of assault and false imprisonment of his girlfriend. She took the oath93 and said that she had no comment to make upon the alleged injuries. The magistrates’ court found that she was in fear, and admitted her out-of-court statement under s 23(3)(b). On the application for judicial review to the Divisional Court it was argued that there was, in fact, no evidence that the witness was in fear. The was rejected by the court. The fact that the witness had given some evidence did not prevent the application of s 23(3)(b). It was sufficient that the woman did not give any evidence of significant relevance to the case.94 It was also open to the court to be satisfied that the evidence was not being given through fear by reason of the demeanour of the witness: she did not have to state that she was not giving evidence through fear. Clearly, s 23 potentially operates in cases where the complainant of domestic violence is unwilling to give evidence because of fear. It will not assist in cases where the complainant changes her mind, or simply is reluctant or refuses because of reasons unconnected with fear. Some assistance in these circumstances might be obtained, at least theoretically, from s 24 of the Criminal Justice Act 1988. Section 24(1) provides that (subject to certain exceptions) a statement in a document shall be admissible in criminal proceedings as evidence of any fact of which direct oral evidence would be admissible, if the following conditions are satisfied: (i) the document was created or received by a person in the course of a trade, business, profession or other occupation, or as the holder of a paid or unpaid office; and

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91 Neill v North Antrim MC, op cit. 92 (1992) 96 Cr App R 93. 93 This is no longer possible in law. The effect of s 47 and Schedule 1 of the Criminal Procedure and Investigations Act 1996, is to prevent a court in committal proceedings from considering oral evidence. Instead committals are based on documentary evidence, as defined by s 5A of the Magistrates’ Courts Act 1980. These documents include, inter alia, documents that fall within the terms of s 23 or s 24 of the Criminal Justice Act 1988. Statements given by witnesses who fulfil the threshold conditions in s 23 or s 24 can therefore be relied on in the committal proceedings. 94 Arguably, this is the explanation for the application of s 23(3)(b) in Martin (above, fn 88) despite the witness giving evidence on the voir dire. 156

Prosecution of Domestic Violence (ii) the information contained in the document was supplied by a person (whether or not the maker of the statement) who had, or may reasonably be supposed to have had, personal knowledge of the matters dealt with.

This provision applies irrespective of whether the information contained in the document was received directly or indirectly, but, in the latter case, each intermediary through whom it passes must have been acting in the course of a trade, business, profession or other occupation, or as the holder of a paid or unpaid office.95 Section 24 will thus operate whenever information is recorded in a domestic violence (or, indeed, any other) case. For example, suppose a woman telephones the police asking for assistance in a domestic violence case, and that information is recorded.96 That conversation may be admissible as evidence in its own right, because it is part of the events that occurred during the offence.97 But even if it falls to be categorised as hearsay it will fall within the exception to the rule created by s 24. So, too, with the statement given to the police after the events, or even a letter written to a friend which is handed to the police, or a note of a conversation made by a friend and handed to the police. Indeed, such is the drafting of s 24 that (irrespective of whether this effect is intended or not) it is difficult to envisage any document received by the police which does not fall within the section.98 This would render s 23 completely otiose. For this reason, Ockleton argues that s 24(1)(i) should be construed to read ‘the document was created or the information was received ...’, which would have the result, on the examples given above, of admitting the police statement but excluding the letter written to or by a friend. The section contemplates that the maker of the statement in the document may be different from the supplier of the information. That is not inevitably so, and cases where the supplier of the information and the maker of the document are one and the same person appear to be within the scope of s 24.99 Thus statements in documents by victims which fail to satisfy the threshold conditions of s 23 can fall also under s 24. The two sections are not mutually exclusive.

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95 Section 24(2) of the Criminal Justice Act 1988. 96 Whether manually in a notebook or pad, or computer is irrelevant. The definition of ‘document’ for the purposes of s 24 is that to be found in s 10 of the Civil Evidence Act 1968, which will include virtually every known form of recording, whether electronic or manual. If the document is produced by a computer, the requirements of s 69 of PACE 1984 may need to be satisfied. 97 Known as a res gestae statement. The test does not confine the statement to the period during which the offence is actually occurring, but can extend to periods where the events were still dominating and controlling the mind of the victim. See Ratten v R [1972] AC 378; R v Andrews [1987] 1 All ER 513. 98 See Ockleton, Documentary Hearsay in Criminal Cases [1992] Crim LR 15. 99 See R v Rock [1994] Crim LR 843. 157

Domestic Violence There is one significant limitation on s 24, contained in s 24(4). This provides that, subject to certain limited exceptions not relevant here, a statement prepared for the purposes: (a) of pending or contemplated criminal proceedings; or (b) of a criminal investigation, shall not be admissible under s 24(1) unless either the threshold conditions in s 23(2) or those in s 23(3) are satisfied, or the person who made the statement cannot reasonably be expected (having regard to the time which has elapsed since he made the statement and to all the circumstances) to have any recollection of the matters dealt with in the statement.

Although it might be thought that it is the state of mind of the supplier of the information that matters, that is not so. In R v Field100 the victim of a s 20 grievous bodily harm was the 30-month-old son of the defendant’s cohabitee. Eleven days after his admission to hospital, the child was interviewed by a social worker and a police officer who recorded the interview. In the interview the child said he ‘fell out of cot’. At trial the defence sought to have the record of the interview admitted under s 24, an application that was refused. On appeal the court stated that the phrase ‘the person who made the statement’ was, in this case, the police officer. She was making a statement which represented her recollection of the conversation with the child. Given that, the trial judge was correct to decline under s 25101 to receive the statement. There was no means of knowing what the recollection of the officer was.102 Again, in Brown v Secretary of State for Social Security103 Collins J held that s 24 drew a distinction between the supplier of the information and the maker of the statement, and that the maker of the statement was the person who actually made the statement as opposed to the person who supplied the information. Thus, on this interpretation, it is possible to adduce in evidence a document under s 24 even where the supplier of the information (for example, the complainant of domestic violence) well remembers the events and is unwilling to testify, provided the officer who made the statement in the document has no recollection, or otherwise satisfies the terms of s 24. Even if the threshold conditions are satisfied, the applicant will have to overcome either s 25 or s 26. These are very different from one another. __________________________________________________________________________________________________________________________________________

100 [1993] Crim LR 456; R v Bedi and Bedi (1991) 95 Cr App R 21; R v Carrington (1993) 99 Cr App R 376; cf R v Lockley [1995] 2 Cr App R 554. 101 See below, p 159. 102 If the statement had been regarded as that of the child, it is unclear whether any basis for admissibility would have existed. The precondition in s 24(4) would not have been satisfied (the child is not deaf, and might perhaps be expected to recollect the events), although even a very young child can be competent as a witness, and thus the precondition in s 23(1) (of which direct oral evidence by him would be admissible) might therefore be satisfied. 103 (1994) The Times, 7 December. 158

Prosecution of Domestic Violence Section 25 confers on a trial judge a discretion to exclude documentary evidence that has satisfied the threshold conditions in either s 23 or s 24 where he is of the opinion that in the interests of justice a statement ought not to be admitted. Section 25(2) requires the court, when considering the exercise of this discretion, to have regard: (a) to the nature and source of the document containing the statement and to whether or not, having regard to its nature and source and to any other circumstances that appear to the court to be relevant, it is likely that the document is authentic; (b) to the extent to which the statement appears to supply evidence which would not otherwise not be readily available; (c) to the relevance of the evidence that it appears to supply to any issue which is likely to have to be determined in the proceedings; and (d) to any risk, having regard in particular to whether it is likely to be possible to controvert the statement if the person making it does not attend to give oral evidence in the proceedings, that its admission or exclusion will result in unfairness to the accused or, if there is more than one, to any of them.

By contrast, where it applies, s 26 creates an additional condition of admissibility. Section 26 applies where a statement which is admissible104 by virtue of s 23 or s 24 appears to the court to have been prepared for the purposes: (a) of pending or contemplated criminal proceedings; or (b) of a criminal investigation.

By virtue of s 26, the statement shall not be given in evidence without the leave of the court, and the court shall not grant leave unless it is of the opinion that it ought to be admitted in the interests of justice, and in considering whether its admission would be in the interests of justice, the court must have regard: (i) to the contents of the statement; (ii) to any risk, having regard in particular to whether it is likely to be possible to controvert the statement if the person making it does not attend to give oral evidence in the proceedings, that is admission or exclusion will result in unfairness to the accused or, if there is more than one, to any of them; and (iii) to any other circumstances that appear to the court to be relevant.

Clearly, in the context of domestic violence, and the problem of unwilling or reluctant witnesses, it is s 26 that is the more important of these two seemingly similar, but in concept different, provisions, although the end result of applying either may be much the same. 105 Most of the out-of-court __________________________________________________________________________________________________________________________________________

104 This is the wording of s 26(1). If, as is suggested, s 26 creates an additional condition of admissibility (ie leave), the wording of s 26 is unfortunate and misleading. 105 See R v Grafton [1995] Crim LR 61; R v Lockley [1995] 2 Cr App R 554. 159

Domestic Violence documents of relevance in this context will have been ‘prepared’ for the purposes of a criminal investigation. Arguably, initial documentation prepared by police officers in respect of the initial call to an incident is documentation prepared for a criminal investigation. The term ‘criminal investigation’ is not defined. Some limited guidance may be gleaned by analogy with the definition of a similar term in the Code of Practice issued pursuant to Part II of the Criminal Procedure and Investigations Act 1996, which includes ‘investigations whose purpose is to ascertain whether a crime has been committed with a view to the possible institution of criminal proceedings’. This would be sufficient to cover the initial call to restore order or to deal with an incident. The term ‘prepared’ seems to contemplate a formal statement, rather than anything reduced to writing in a criminal investigation. In R v Murphy, Wiseman and Mason106 the court identified the fact that the scheme of the legislation was intended to place greater restrictions on statements prepared with litigation in mind than on others. In R v Field107 the court proceeded on the basis of s 25 rather than s 26 in respect of the notes of interview. How should the exercise of s 26 be approached? In R v Cole108 at the trial of C on a charge of actual bodily harm the trial judge permitted the Crown to read a witness statement of a witness to the assault who had since died, and which was thus admissible by virtue of s 23(2)(a). Leave was granted under s 26, which the Court of Appeal found to be acceptable. In dismissing the appeal against conviction the court considered how s 26 should be exercised. A court was not required to disregard the possibility that the accused could controvert the witness statement by giving evidence himself, or by calling other evidence. The court must consider the contents of the statement. The overall purpose of the provision was to widen the power of the court to admit documentary hearsay evidence while ensuring that the accused receives a fair trial. In judging how to achieve the fairness of the trial a balance must on occasions be struck between the interests of the public in enabling the prosecution case to be properly presented and the interest of a particular defendant in not being put in a disadvantageous position, for example by the death or illness of a witness. The public of course also has a direct interest in the proper protection of the individual accused ... A defendant also may wish to make use of the provisions, in order to get before the jury documentary evidence which would not otherwise be admissible.

A court will be reluctant to use documentary evidence to prove identification,109 but that is hardly likely to be the position in a domestic violence case. __________________________________________________________________________________________________________________________________________

106 107 108 109

[1992] Crim LR 883. [1993] Crim LR 456. (1989) 90 Cr App R 478. See also R v Moore [1992] Crim LR 882; R v Grafton [1995] Crim LR 61. Neill v North Antrim Magistrates’ Court [1992] 4 All ER 846; cf R v Setz-Dempsey (1994) 97 Cr App R 23. 160

Prosecution of Domestic Violence On the other hand, simply because evidence is important, or even crucial, does not mean it should not be admitted. In R v Kennedy110 the sole eye witness to a fight had died, and the court permitted his statement to be read, even though, apart from admissions, there was no other eye witness evidence. The judge had correctly reminded the jury of the disadvantages of not having heard the witness in person, and seen and heard him under crossexamination. A court may also take into account the extent to which the statement is either undisputed or supported by other evidence,111 or the fact that the witness has stayed away deliberately to avoid cross-examination,112 a not remote possibility in cases of domestic violence where the complainant is reluctant or unwilling. Where leave is granted, the provisions of Schedule 2 to the Criminal Justice Act 1988 apply in respect of the weight to be given to such evidence, and how the credibility of the maker of the statement can be tested and challenged. The effect of these provisions is to place the witness in the same situation as would have existed had the witness given testimony orally in court.

7 Suspect evidence At common law, the doctrine of corroboration imposed special evidential requirements when it applied. Since 1988 it only applied to the evidence of accomplices and in respect of the evidence of the complainant of a sexual offence. In these cases it was obligatory for a judge to direct a jury that it was dangerous to convict on the uncorroborated testimony of the accomplice or sexual complainant. Corroboration for this purpose had a highly technical meaning.113 Thus in a domestic violence dispute the question of corroboration only arose if a sexual offence was committed, and only in respect of that sexual offence, not in respect of any offences which were non-sexual in nature. The justifications for such a rule, if any cogently existed, no longer matter. Section 32 of the Criminal Justice and Public Order Act 1994 abrogates any obligations to give a warning about convicting the accused on the uncorroborated testimony of an accomplice or sexual complainant. The effect of that is that, now, the precise nature of any warning is a matter for the trial judge, in the context of the particular circumstances of the particular case. The complainant of domestic violence was never in the category of case which required the mandatory warning abolished by s 32, unless the domestic violence involved a sexual offence. However, such a complainant, like any __________________________________________________________________________________________________________________________________________

110 111 112 113

[1992] Crim LR 37. R v Swindon (1995) unreported. R v Keilty (1995) unreported. R v Baskerville [1916] 2 KB 658. 161

Domestic Violence other witness, might have reasons or motives for being less than truthful and, in some cases, be a suspect witness. A line of authority developed culminating in the proposition that a judge was under a duty to warn a jury of the need for caution in looking at the evidence of suspect witnesses,114 unless the dangers were patent and not requiring such a warning.115 The status of such a requirement is now unclear. In R v Makanjuola, 116 the Court of Appeal indicated that it was a matter for the discretion of a trial judge what direction, if any, is given in respect of the testimony of any witness. This might be taken, therefore, as abrogating any obligation to direct in respect of the need for caution. However, it should be borne in mind that the basic duty of a trial judge when directing a jury is to direct them properly on the issues that are before the court. For that reason, where a complainant of domestic violence has a motive to lie, distort or otherwise ‘tailor’ her evidence, and that motive is not patent, it will be the duty of a trial judge to ensure that the jury is aware of it.

SENTENCE In terms of sentence, judicial attitudes should reflect the gravity of the offence for which the accused has pleaded guilty, or been convicted, subject to any appropriate allowance for the fact of a timely plea of guilty. 117 The appropriate sentence will depend on the nature of the charge proved, and thus any tendency in domestic violence cases to undercharge, perhaps to secure a guilty plea to be dealt with summarily, will be reflected in the type and level of punishment imposed, in accordance with normal sentencing principles.118 These will include, if a custodial sentence is appropriate, due regard for the principles of retribution and deterrence. Edwards argues119 that the domestic violence offender is treated differentially compared with the non-domestic violence offender, with research in London in 1990120 showing that even where domestic assailants were convicted of grievous bodily harm, few were sent to prison. Yet the appellate authorities establishing sentencing principle support the conclusion that sentencing courts should treat domestic

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114 115 116 117

See R v Prater [1960] 2 QB 464, R v Beck [1982] 1 WLR 461; R v Spencer [1987] AC 128. R v Lovell [1990] Crim LR 111; R v Knowlden (1983) 77 Cr App R 94. And R v Easton, both reported at [1995] 3 All ER 730. Section 48 of the Criminal Justice and Public Order Act 1994 requires a court, in determining what sentence to pass on an offender who has pleaded guilty, to take into account the stage at which the intention to plead guilty was given, and the circumstances in which it was given. 118 See Ashworth, Sentencing and Criminal Justice (1996) London: Butterworths. 119 Edwards, Sex, Gender and the Legal Process (1996) London: Blackstone Press, pp 207–11. 120 The general trend to increased levels of imprisonment in more recent years should be borne in mind. 162

Prosecution of Domestic Violence violence offences no differently than non-domestic assaults.121 In that context the terms of s 1(2) of the Criminal Justice Act 1991 are relevant. This provides that a court can only impose a custodial sentence (a) if the offence is so serious that only such a sentence can be justified,122 or (b) if the offence is a violent or sexual offence and only such a sentence would be adequate to protect the public from serious harm from the offender. Although a single individual could, for this purpose, be regarded as ‘the public’123 it should be noted that, in considering the application of s 1(2)(b) a court is entitled, and should, have regard to the means by which the public can in fact be protected, and must be proportionate to the offence committed. In a domestic violence case this may include the adequacy of means of protection such as the civil process, and, arguably, a submission in mitigation that an accused has respected, and would continue to respect, civil orders made since the offence would, if accepted as true, prevent the justification for a sentence governed by s 1(2)(b). The crucial factors in sentencing an offender will therefore be the particular facts and the existence of mitigating factors, matters which Edwards argues,124cogently, have been viewed sometimes in the wrong light and in ways that diminish the seriousness of domestic violence offences.

DEFENCES FOR ‘VICTIMS’ It has been seen earlier125 that most domestic violence, although not all, is committed by men upon women. In that context the legal issues generally are clear: did the assault occur, and was the necessary intent present? However, a number of defences are possible, which have particular importance to cases where the victim of domestic violence reacts to that conduct by herself engaging in the use of force, and thus herself ends up as an accused in criminal proceedings. In reality these defences will only be available in those cases where the charge is one of murder. Self-defence is a complete defence to a charge of murder, leading to acquittal of the accused; diminished responsibility or provocation are partial defences that reduce a charge of murder to manslaughter. The advantage of that is, of course, that the sentence imposed, if any, is within the discretion of the court and not subject to the mandatory sentence of life imprisonment.

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121 R v Buchanan (1980) 2 Cr App R (S) 13; R v Cutts [1987] Fam Law 311. 122 ‘Stalking’ can be such an offence: see R v Burstow [1997] 1 Cr App R 114; R v Smith [1997] Crim LR 614. 123 R v Nicholas [1994] Crim LR 77. 124 Op cit, p 210. 125 See Chapter 2. 163

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1 Self-defence Self-defence is a complete defence to any offence the constituent element of which is an assault. It is well recognised at common law126 that the use of reasonable force can found a defence. The court will require to be satisfied127 that the accused was subject to imminent danger, and used such force as was reasonable in the circumstances in defending him or herself. The concept of imminence is crucial, and will remove from the scope of the defence all cases other than those where an actual assault is taking place, or, the courts have decided, cases where such an attack is anticipated imminently. 128 The potential to extend the defence to anticipated attacks is limited by one overriding consideration, namely, was the force used in self-defence reasonable? It is difficult to envisage many, if any, cases where force can be justified to repel an assault before it has commenced. The key issue is that of reasonableness. The test of reasonableness is an objective test, in that the level of force must be judged ex post facto by the court, not by the state of mind of the defendant. However, the judgment the court has to make is as to the reasonableness of the force in the circumstances the accused believed to exist. That belief must, of course, be an honest belief, for otherwise it cannot truly be said that the belief claimed in fact existed, but it does not need to be a reasonable belief. 129 Whether the force used is reasonable must depend on all the circumstances of the case and the extent to which it is necessary. The accused who had the reasonably available opportunity to avoid the threatened assault is unlikely to be able to avail herself of the defence. Further, the defence clearly requires a proportionate response.130 An imminent threat of fatal force clearly can justify high levels of force in self-defence, even fatal force. By contrast, threats of non-fatal force may not necessarily be sufficient to justify a response which involves the infliction of fatal force. The test is essentially a factual one, and the state of mind of the accused, although not decisive, will be crucial. In Palmer v R131Lord Morris observed: ... a person defending himself cannot weigh to a nicety the exact measure of his necessary defensive action. If the jury thought that in a moment of unexpected __________________________________________________________________________________________________________________________________________

126 No statutory provision provides a defence. Section 3 of the Criminal Law Act 1967 permits the use of reasonable force in the prevention of crime, and, arguably, could provide a basis of a defence in a self-defence case: R v Cousins [1982] QB 526. However, it is more likely to rely on the common law. 127 The burden of proof being on the prosecution once there is evidence before the court to raise the issue. It is only in this sense that the defence has any so-called ‘evidential burden’. See R v Lobell [1957] 1 All ER 734. 128 See Bedford v R [1988] AC 130; [1987] 3 All ER 425. 129 R v Oatridge (1992) 94 Cr App R 367; R v Scarlett [1993] 4 All ER 629. 130 See Horder, Defences for battered women who kill (unpublished conference paper, 1995). 131 [1971] AC 814; [1971] 1 All ER 107.

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Prosecution of Domestic Violence anguish a person attacked having only done what he honestly and instinctively thought was necessary, that would be the most potent evidence that only reasonable defensive action had been taken.

It is, ultimately, to be judged by the court, not by the accused. In most domestic violence cases the concept of self-defence will prove of limited value. Reasonableness of the levels of force used will include an assessment of the context in which it is used. For that reason, questions as to the alternatives available to the accused are relevant, including whether or not it was possible to avoid the violence.132 For this reason the defence may be of limited value. Self-defence is essentially a justification for avoiding criminal liability where the accused had no alternative reasonably open to her. Although some commentators133 point to the disparity between men and women, and argue that the law of self-defence is weighted against female defendants, it is submitted that, in the context of self-defence as opposed to provocation, the stance taken by the courts is the only one which can, in fact, be said to be gender-neutral. The issues surrounding self-defence as a defence in domestic violence cases may turn as much on perceptions by the tribunal of fact134 as on the actual legal tests.

2 Provocation135 Provocation is only a defence to murder, reducing the charge to one of manslaughter and therefore avoiding the mandatory life sentence which attaches to murder. It is a common law, not a statutory, defence, albeit one which has been modified by statute. Section 3 of the Homicide Act 1957 states as follows: Where on a charge of murder there is evidence on which the jury can find that the person charged was provoked (whether by things done or by things said or by both together) to lose his self-control, the question whether the provocation was enough to make a reasonable man do as he did shall be left to the jury; and determining that question the jury shall take into account everything both done and said according to the effects which, in their opinion, it would have on a reasonable man. __________________________________________________________________________________________________________________________________________

132 This will therefore include the question of whether or not the accused should have left. Thus the old rule that the accused must have retreated as far as possible, though rejected by the court in R v McInnes [1971] 3 All ER 295, in reality still exists, albeit not in such an absolutist form. 133 Scheider, ‘Equal Rights to Trial for Women: Sex Bias in the Law’ (1980) 15 Harv Civil Rights-Civil Liberties Law Review 623; Taylor, ‘Provoked Reason in Men and Women: Heat of Passion Manslaughter and Imperfect Self-Defence’ (1986) 33 UCLA Law Rev 1679; McColgan, ‘In Defence of Battered Women who Kill’ (1993) 13 Oxford Journal of Legal Studies 24. 134 The jury in a trial on indictment or magistrates on summary trial. 135 See, generally, Horder, Provocation and Responsibility (1992) OUP; Ashworth, ‘The Doctrine of Provocation’ (1976) 35 CLJ 292. 165

Domestic Violence Thus the defence of provocation requires the court to consider whether this person was provoked, whether by words or conduct,136 and whether the effect of that provocation was such as to cause a reasonable person to lose selfcontrol to the extent that justifies the law reducing the charge from murder to manslaughter. Such matters are matters of fact for the jury. There are thus two elements, the first subjective, namely, whether the accused was provoked, the second objective, namely whether a reasonable person would have been provoked to the extent as was the accused. So much is clear from the classic statement of the law by Devlin J in R v Duffy137 where he defined provocation as: ... some act, or series of acts done ... which would cause in any reasonable person and actually caused in the accused, a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him for the moment not master of his own mind ...

Was this person provoked? The subjective element of the test must be judged in the light of the characteristics of the accused, but requires the ‘sudden and temporary loss of self control’ identified by Devlin J. In Duffy, Devlin J emphasised the importance of ‘cooling time’; if there was time for the mind to cool and for reason to prevail over the loss of self-control, the defence of provocation could not be made out, the killing being one driven by revenge and not undertaken in the heat of the moment. This view of the defence of provocation is predicated on a view that the law should excuse responses that are instant, but not those where there is time to reflect. Many argue that this approach is based on a premise that underpins male-orientated behaviour, (namely, that males have a tendency to react in anger, and instantly), and not on one which reflects the realities of female responses to domestic violence. In particular, it may fail to reflect the tendency of battered women not to react to violence or taunts with instant violence,138 but rather to ‘slow burn’, with a violent response following hours, days, or even weeks later. There is also the fact to be considered that the violence experienced by many victims of domestic violence may be exacerbated by resistance. Resistance may be, and often is, met by further abuse. Mezey argues139 that in fact without the capacity to __________________________________________________________________________________________________________________________________________

136 Cf Holmes v DPP [1946] 2 All ER 124, where words alone were held to be insufficient. Such decisions do not survive the passage of s 3 of the Homicide Act 1957. See now, eg R v Doughty (1986) 83 Cr App R 319. 137 [1949] 1 All ER 932. 138 See, eg Donovan, ‘Defences for Battered Women Who Kill’ (1991), 18 Journal of Law and Society 219; Horder, Provocation and Responsibility (1992), Oxford: Oxford University Press; Nicholson and Sanghvi, Battered Women and Provocation -– The Implications of R v Ahluwalia [1993] Crim LR 728. 139 Dr Gillian Mezey, Characteristics of Women Who Kill (1995), unpublished conference paper; Dobash and Dobash, ‘The Nature and Antecedents of Violent Events’ (1984) 24 BJ Crim 269. 166

Prosecution of Domestic Violence suppress anger the woman might well suffer even greater levels of violence. Edwards140 observes that the problem with provocation is masculinism, the tests being predicated on what males do and how they react. She cites, with approval, Scutt,141 who writes: ... the man’s social conditioning and physique enable him to lash back and to come within the bounds of a mitigating defence. The women’s social conditioning and physique preclude her from reacting in the same way, and thus tend to preclude her from gaining the benefit of that rule of mitigation.

It is worth noting that women appear to be more successful in establishing the defence of provocation than do men,142 although, as Cavadino and Dignan acknowledge,143 this may simply reflect the greater levels of provocative conduct with which abused women have to put up. Clearly, the extent to which the law recognises the effect of a course of conduct, and its effect as provocation, is important if the law is to reflect adequately the issues that sometimes arise in domestic violence cases.144 Sometimes the instant act, or series of acts that gives rise to the unlawful killing is itself merely the ‘last straw’, perhaps in itself a relatively trivial act (in the sense only of what has gone before), but is one which in the context of what has gone before, perhaps over a period of years,145 which is sufficient to cause the woman to lose selfcontrol and kill. In Duffy 146 Devlin J focused on the conduct of the deceased in giving rise to the final act of the accused in killing. This is, arguably, too narrow in that the law does entitle the court to have regard to the context in which the killing occurred.147 The clear balance of authority is to regard the preceding conduct, over whatever period, as the context in which the final, decisive act of killing occurred, but not to permit that conduct to excuse the ultimate act if the element of loss of control provoked by the final act (albeit viewed in that context) is absent. This view of the law clearly flows from several decisions of importance from the Court of Appeal. The first is R v Thornton.148 In that case the accused

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140 Edwards, Sex, Gender and the Legal process, op cit, p 393 et seq. 141 Scutt, Sexism and the Criminal Law, in Women and Crime (1981), Scutt and Mukherjee (eds), London: Australian Press in association with George Allen. 142 See Hedderman and Hough, Does the Criminal Justice System Treat Men and Women Differently? Home Office Research and Statistics Department Research Findings No 10, Home Office, 1994. 143 Cavadino and Dignan, The Penal System (1996), Sage Publications, p 284. 144 See, generally, Wasik, Cumulative Provocation and Domestic Killings [1982] Crim LR 29. 145 See R v Ahluwalia, op cit, fn 113 above, where the violence was over a period in excess of 10 years. 146 [1949] 1 All ER 932 at 933. 147 See Fantle [1959] Crim LR 584; Simpson [1957] Crim LR 815. In these cases there were acts of provocation immediately prior to the killing. 148 [1992] All ER 306. 167

Domestic Violence was convicted of the murder of her husband. She had, over a significant period of time, been subjected to violence and abuse by her alcoholic husband, and, on her own evidence, abuse and threats were levelled at her shortly before she stabbed him. However, statements at the scene of the crime and afterwards, and the content of her own testimony, served to confirm there had been no sudden loss of self-control. In these circumstances, the appellant at trial did not specifically raise the defence of provocation, the defence being one of diminished responsibility. Nevertheless, the trial judge left to the jury the defence of provocation, in the terms of a direction in accordance with the principles set out in Duffy. The appellant was convicted of murder. On appeal it was argued that the appellant was entitled to rely on the defence of provocation notwithstanding the fact that the killing of the husband was not in a sudden and uncontrolled exposition of loss of self-control. This submission was rejected. The law did not permit a defence of provocation to succeed if cooling-down time had occurred, the accused not acting under a loss of self-control.149 In dismissing the appeal, the court stated: The aphorism ‘sudden and temporary loss of self-control’ ... serves to underline that the defence is concerned with the actions of an individual who is not, at the moment when he or she acts violently, master of his or her own mind ... It is open to the judge, when deciding whether there is any evidence of provocation to be left to the jury and open to the jury when considering such evidence, to take account of the interval between the provocative conduct and the reaction of the defendant to it. Time for reflection may show that after the provocative conduct made its impact on the mind of the defendant, he or she kept or regained self-control. The passage of time following the provocation may also show that the subsequent attack was planned or based on motives, such as revenge or punishment, inconsistent with the loss of self-control and therefore with the defence of provocation ... We accept that the subjective element in the defence of provocation would not as a matter of law be negatived simply because of a delayed reaction in such cases, provided there was at the time of the killing ‘a sudden and temporary loss of self-control’ caused by the alleged provocation. However, the longer the delay and the stronger the evidence of deliberation on the part of the defendant, the more likely it will be that the prosecution would negative provocation.150

The issue arose again in Ahluwalia.151 In that case the appellant was convicted of the murder of her husband. Over a period in excess of 10 years he beat her, and despite civil injunctions his violence steadily increased in frequency and __________________________________________________________________________________________________________________________________________

149 But note that it appears to have been the practice of some trial judges to proceed on the basis that cooling-down time did not inevitably debar a woman from relying on the provocation defence: see Nicholson and Sanghvi, op cit, p 730. However, the correctness of this statement was confirmed in R v Thornton (No 2) (1996) 2 Cr App R 108. 150 As with all matters other than insanity, or where otherwise prescribed by statute, the onus is on the prosecution to negative the possibility of provocation once it is raised as an issue on the evidence. 151 [1992] All ER 889.

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Prosecution of Domestic Violence severity until it was happening almost daily. She suffered bruises, cuts, scaldings, broken teeth, broken bones and attempted strangulation, and was the subject of frequent death threats. She twice attempted suicide. Despite him having an affair, she pleaded with him not to leave the family. On the night of the killing he told her that the relationship was over, demanded money to pay a bill and threatened to beat her if that was not forthcoming. He threatened her with a hot iron. After brooding about her position for some 21/2 hours she fetched some petrol, lit a candle, poured the petrol over her husband and set it alight. She collected her son and calmly left the house, though was observed by neighbours to be in a shocked state. At her trial she pleaded lack of intent, or, in the alternative, provocation.152 Importantly, no medical evidence was adduced on her behalf to deal with the question of the effects of the sustained suffering of domestic violence, nor did she give evidence in her own defence. She was convicted, but an appeal was ultimately allowed, not on the basis of provocation but of diminished responsibility. In respect of provocation, Lord Taylor CJ considered the court to be bound by previous decisions unless convinced that they were wholly wrong. The requirement of the law was so well-established that if it were to be reversed it should be so reversed by Parliament not the courts. However, he observed as follows: We accept that the subjective element in the defence of provocation would not as a matter of law be negatived simply because of the delayed reaction in such cases, provided that there was at the time of the killing a ‘sudden and temporary loss of control’ caused by the alleged provocation. However, the longer the delay and stronger the evidence of deliberation on the part of the defendant, the more likely it will be that the prosecution will negative provocation.

Arguably, these statements of the law do not mark a departure from the traditional statement of the law in Duffy,153 where the court referred to the presence of a ‘time for passion to cool’ as defeating any claim of provocation. Rather, it marks a change of emphasis, and an acceptance that the crucial part of the subjective element of the test is the actual loss of self-control. Now, the length of time that occurs between the alleged provocation and the retaliation will have evidential value in determining whether or not genuine loss of control occurred, and will not, of itself, amount to a legal bar. This approach is to be welcomed. Ahluwalia is not inconsistent in any way with Thornton. That case marks a simple rejection of the argument that a long, cumulative history of domestic violence can, of itself, provide a basis for reducing a killing from murder to manslaughter where there was no ultimate loss of control. The killing was, in the sense required by the defence of provocation, premeditated

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152 For the problems of alternative defences, see below, p 170. 153 [1949] 1 All ER 932. 169

Domestic Violence and did not occur as a result of any loss of control. It remains the case that killing without loss of control cannot provide the basis for the defence of provocation. To this extent, earlier authorities154 remain good law. Conversely, it is the case that the reasons for that loss of self-control may include the whole history of the case, including the levels of abuse suffered, the length of the period during which they occurred, and whether the accused suffered from any condition such as battered woman syndrome, the so-called ‘slow burn’ reaction.155 In Thornton the trial judge in fact told the jury ‘to take into account the whole picture, the whole story’, and reviewed for them the whole history of physical or verbal abuse. In Thornton (No 2) counsel for the appellant argued that the new medical evidence adduced during that second appeal156 put this aspect of the case in a new perspective, namely that the personality disorder suffered by the appellant, and the mental state of the appellant in the light of the history of her treatment at the hands of her husband, were relevant to her reaction to the stress of events. Clearly, whether there was a sudden and temporary loss of self-control must be considered in the light of the overall facts of the case. The question which remains, in the light of the views expressed by Edwards and others, cited earlier, is whether the very concept of loss of control is gender based. Arguably it is not. The problems that have arisen in the past have done so because of difficulties in factually recognising that loss of control may occur through a variety of causes, and manifest itself in many ways. The decision on provocation in Thornton may factually be open to criticism in the light of the evidence now available, and a wider perception that persistent abuse may result in violent reactions not following the traditionally accepted male stereotype. So, too, with Ahluwalia, where the Court of Appeal accepted that the decision on provocation might well have been different had the medical evidence available to that court been before the court of trial. However, the concept that liability in murder should still attach to those who intend to kill is one which the courts have accepted. It is also the case that the existence of a consistent pattern of abuse is extremely relevant in considering the second, objective part of the test, for they may well justify a finding of provocation where, in its absence, no basis for it would exist.

Was the reaction reasonable? The second element of the test in Duffy is objective. This involves the jury considering what would be the response of a reasonable person. In DPP v Camplin157 Lord Diplock stated: __________________________________________________________________________________________________________________________________________

154 See, eg Davies [1975] 1 All ER 890; Brown [1962] 2 All ER 1328. 155 See Thornton (No 2), op cit, p 116. 156 The second appeal arose in the light of a reference of the case to the court by the Home Secretary pursuant to s 17 of the Criminal Appeal Act 1968. 157 [1978] 2 All ER 168. 170

Prosecution of Domestic Violence the judge should ... explain ... that the reasonable [person] ... is a person having the powers of self-control of an ordinary person of the age and sex of the accused, but in other aspects sharing such of the accused’s characteristics as they think would affect the gravity of the provocation to him, and that the question is not merely whether such a person in like circumstances be provoked or lose his self-control but would also react to the provocation in the way the accused did.

At the heart of the application of this objective element is the question: what characteristics are to be attributed to the reasonable (or, as Lord Diplock put it, ‘ordinary’) person.158 In R v Morhal159 the House of Lords concluded that, in the context of the defence of provocation and the ‘reasonable man’ test, a jury should be directed by reference to a hypothetical person having the power of self-control to be expected of an ordinary person of the age and sex of the defendant, but in other respects sharing such of the defendant’s characteristics as they think would affect the gravity of the provocation to him. In Ahluwalia the trial judge directed the jury to consider how a reasonable, educated, Asian would have reacted to the provocation. Counsel for the appellant argued, on appeal, that the trial judge had failed to properly direct the jury in that he failed to tell the jury that it was also relevant that the appellant was a woman who had been consistently battered. The Court of Appeal rejected this submission, albeit that, given the finding that there was not a sudden and temporary loss of self-control, this part of the judgment was inevitably obiter. The court has been criticised for this rejection,160 but did so on the basis that the essential complaint of the appellant was that the trial judge had failed to direct the jury on battered woman syndrome. Thus, the court rejected the submission in the light of the evidence in the particular case. There was no medical or other evidence before the trial court to suggest that the appellant suffered from post traumatic stress disorder, or battered woman syndrome,161 or any other specific condition. As noted earlier, Lord Taylor CJ observed that different considerations, on the facts, might have applied had the evidence before the appeal court been before the court of trial. Thus, in determining what characteristics are to be ascribed to the reasonable person in considering the objective test, regard must be had to the medical or psychological condition created by prior abuse. Arguably, this is the case irrespective of whether those medical or psychological characteristics are permanent. In

__________________________________________________________________________________________________________________________________________

158 See also R v Morhal [1995] 3 All ER 659. In R v McGregor [1962] NZLR 1069, the approach was also to compare the characteristics of the appellant with the ‘ordinary’ person, although that case must also be read carefully in the light of the reservations in R v McCarthy [1992] 2 NZLR 530. 159 [1995] 3 All ER 659. 160 See, eg Edwards, op cit, p 382. 161 See below, p 173. 171

Domestic Violence Ahluwalia, in the absence of evidence of medical or psychological condition caused by the abuse,162 the evidence of being abused was not regarded as a sufficiently permanent characteristic. It was surely the lack of independent evidence establishing the effect mentally on the appellant that marks the case as different from R v Humphreys,163 where psychiatric evidence established abnormal personality traits mentality; by contrast, no medical evidence was adduced in R v Dryden,164 where the obsessiveness and eccentric character of the accused served to distinguish him from the ordinary person in the community, and could have provided (if the subjective test had been satisfied) the context for deciding whether the bringing of an excavator onto his land amounted to the ‘last straw’ sufficient to satisfy this second, objective element of the test of provocation. Arguably, Ahluwalia does not mark a fundamental shift of approach or emphasis by the appellate courts. If a proper evidential basis is established, characteristics such an anorexia, dyslexia, attentionseeking, or substance addiction can each amount to characteristics relevant to the application of the objective element of the test. So too in the context of abuse acting as an appropriate characteristic. When Lord Taylor CJ in Ahluwalia refers, on the facts of the case, to the lack of any evidence of permanent characteristics, he was referring, arguably, to the fact that no evidence other than as to the fact that abuse had occurred was before the court of trial. What was needed, and not then present, was evidence as to the effects of that abuse. For that reason, the criticisms of that judgment165 in this respect are, arguably, misconceived. In giving judgment in the terms that it did in Ahluwalia, the Court of Appeal appears to have widened the law in a way that provides scope for a realistic application of the defence of provocation in domestic violence cases. Abuse, of itself and without more, is not a characteristic sufficient for the defence of provocation. Other authority suggested166 that a temporary state of mind did not suffice to support a plea of provocation, clearly a restrictive position in the context of domestic violence, but it is noteworthy that the court in Ahluwalia accepted that the battered woman syndrome could provide a basis for identification of a permanent characteristic. The defendant simply had to be ‘a different person from the ordinary run of [women]’ or ‘marked off or distinguished from the ordinary [women] of the community’. The widening of approach in Ahluwalia is therefore to be welcomed. __________________________________________________________________________________________________________________________________________

162 The appellant had, prior to trial, obtained a psychiatric report which concluded that the appellant was suffering from endogenous depression. This was not adduced in evidence to the court. Although perhaps primarily of importance in the context of diminished responsibility, it is not clear why it was not adduced for the purpose of providing evidence of relevant characteristics for the purposes of the defence of provocation. 163 [1995] 4 All ER 1008. 164 [1995] 4 All ER 987. 165 See above, fn 159. 166 See, eg R v Newall [1980] Crim LR 576. 172

Prosecution of Domestic Violence The approach in Ahluwalia goes some way to meeting concerns about the operation of the law of provocation in the ‘slow burn’ context that often applies in domestic violence cases. An individual must be judged in the light of the ordinary person who has suffered the conduct to which the accused has been subject, but with characteristics that can encompass her state of mind. Where it does not meet the concern of some is it does require an act of provocation to trigger the response. Cumulative provocation is not prevented by the current law; what the law does require is some act which triggers the fatal response. What the law does not regard as acceptable is an act of killing which is simply a response to years of abuse. It is in this context that the concept of battered woman syndrome has particular value. In Alhawalia the Court of Appeal accepted that battered woman syndrome can play a part in establishing the conditions in respect of which both the subjective and objective elements of the provocation test could be judged, a conclusion confirmed by the Court of Appeal in Thornton (No 2). The concept of battered woman syndrome raises issues far beyond the scope of this book. The concept was identified by a United States psychologist, Lenore Walker,167 to identify the reasons why some battered women kill. As noted earlier168 it involves two elements; the first, the ‘cycle theory’ identified the typical, three-phase, cycle of abuse. The second involves a concept of ‘learned helplessness’, which, as extrapolated to the problem of domestic violence, involves victims of domestic violence regarding their suffering as unavoidable, and which generates characteristics such as loss of self-esteem, self-blame for the violence, anxiety, depression, fear, and general suspiciousness. The concept of BWS is not beyond criticism from a variety of perspectives, and indeed has been criticised, on the basis of the research which underpins it, 169 of failing to address the key issues which the legal tests of provocation raise, and on the basis that it focuses on the victim and not on the perpetrator of the violence and of the causes within society that encourage or condone it. As Nicolson and Sanhhvi put it:170 BSW replaces one stereotype with another. The rugged man who instinctively lashes out to defend his honour is replaced with the passive woman who can only be helped by doctors and psychiatrists. BWS will help to make successful defences by battered women dependent on their conforming to a socially constructed image of femininity ... Unless they act like the paradigmatically

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167 See Walker, The Battered Woman (1979), London: Harpur & Row; Walker, The Battered Woman Syndrome (1984), New York: Springer. See, generally, Lorna Smith, Domestic Violence, Home Office Research Study (1989), op cit, pp 18–20; Edwards, Sex, Gender and the Legal Process, op cit, pp 227–64. 168 See above, p 171. 169 Faigman, ‘The Battered Woman’s Syndrome and Self Defence: A Legal and Political Dissent’ (1986) 72 Virginia Law Rev 619. 170 See, eg Nicholson and Sanghvi, op cit, p 734. See also the sources cited therein; Dobash and Dobash, Women, Violence and Social Change, op cit, p 225. 173

Domestic Violence violent man, battered women will need to show that they fit law’s image of women: a faithful wife, a devoted mother, someone who tries to keep her family together at all costs and who reacts meekly and pathologically to violence.

Yet provided the purpose of the concept from the legal perspective is borne in mind, namely to focus attention on the fact that victims of domestic violence may well react in ways that do not fit the legal stereotypes, then it serves a useful purpose. Arguably its value is to focus the attention of a court on matters which may affect the extent to which traditional legal concepts and rules in reality fit the responses that women who have in fact been battered are likely to make. Although this has assisted in paving the way for an approach to the ‘objective’ element more favourable to the interests of those who have been abused consistently, the deliberate failure of the Court of Appeal in Ahluwalia to address the question as to whether women victims can ever be expected to respond with a sudden and temporary loss of control shows the limitations of battered woman syndrome in the context of provocation.

3 Diminished responsibility Diminished responsibility is a defence to a charge of murder, created by s 2 of the Homicide Act 1957. Section 2 states: Where a person kills or is a party to the killing of another, he shall not be convicted of murder if he was suffering from an abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts and omissions in doing or being party to the killing.

The key factor in this provision is the phrase ‘abnormality of mind’, elliptically defined by Lord Parker CJ in R v Byrne171 as ‘a state of mind so different from that of an ordinary human being that the reasonable man would term it abnormal’. It will not include abnormality of mind occasioned by hate, jealousy or intoxication,172 but nevertheless is well capable of providing a defence in a case where the accused has suffered persistent abuse resulting in a recognised medical condition. Thus in Ahluwalia and in Thornton (No 2) it was accepted that battered woman syndrome could provide the basis for the establishment of the defence of diminished responsibility.173 In the former case a medical report diagnosing endogenous depression was actually __________________________________________________________________________________________________________________________________________

171 [1960] 2 QB 396. 172 R v Fenton (1975) 61 Cr App R 261. 173 For the position in the United States, see Edwards, Sex, Gender and the Legal Process, op cit, pp 244–46. 174

Prosecution of Domestic Violence available at trial, but not used. Diminished responsibility itself was not run as a defence, and even the question of provocation was secondary to the primary question of whether the accused had intended to kill. At a second trial, following the quashing of the original conviction for murder, the trial court in fact accepted a plea of manslaughter based on diminished responsibility, and some argue that it is essential for the defence to consider running diminished responsibility.174 However, the approach has been criticised as reinforcing the stereotype of domestic violence being a problem essentially for the victim, and upon actual, or perceived, personality disorders of victims, rather upon the conduct of the perpetrator and the proper responses the law should make. The language used is that of mental illness or disorder (eg ‘syndrome’) and the evidence that sustains such a defence is that appropriate to issues which focus on mental health rather than on violence by perpetrators, and once again, the appropriate response the law should make.175

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174 See Nicholson and Sanghvi, op cit, p 736; Mackay, Pleading Provocation and Diminished Responsibility [1988] Crim LR 411. 175 See Gillespie, Justifiable Homicide (1989), cited by Edwards, op cit, p 245. 175

APPENDIX I

FAMILY LAW ACT 1996

CHAPTER 27 ARRANGEMENT OF SECTIONS PART IV FAMILY HOMES AND DOMESTIC VIOLENCE

Rights to occupy matrimonial home Section 30 Rights concerning matrimonial home where one spouse has no estate, etc. 31 Effect of matrimonial home rights as charge on dwelling house. 32 Further provisions relating to matrimonial home rights.

Occupation orders 33 34 35 36 37 38 39 40 41

Occupation orders where applicant has estate or interest etc or has matrimonial home rights. Effect of order under s 33 where rights are charge on dwelling house. One former spouse with no existing right to occupy. One cohabitant or former cohabitant with no existing right to occupy. Neither spouse entitled to occupy. Neither cohabitant or former cohabitant entitled to occupy. Supplementary provisions. Additional provisions that may be included in certain occupation orders. Additional considerations if parties are cohabitants or former cohabitants.

Non-molestation orders 42

Non-molestation orders.

177

Domestic Violence

Further provisions relating to occupation and non-molestation orders 43 44 45 46 47 48 49

Leave of court required for applications by children under sixteen. Evidence of agreement to marry. Ex parte orders. Undertakings. Arrest for breach of order. Remand for medical examination and report. Variation and discharge of orders.

General 62 63

Meaning of ‘cohabitants’, ‘relevant child’ and ‘associated persons’. Interpretation of Part IV.

178

Appendix I

ELIZABETH II FAMILY LAW ACT 1996 1996 CHAPTER 27 An Act to make provision with respect to: divorce and separation; legal aid in connection with mediation in disputes relating to family matters; proceedings in cases where marriages have broken down; rights of occupation of certain domestic premises; prevention of molestation; the inclusion in certain orders under the Children Act 1989 of provisions about the occupation of a dwelling house; the transfer of tenancies between spouses and persons who have lived together as husband and wife; and for connected purposes. [4th July 1996]

B

E IT ENACTED by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:– PART IV FAMILY HOMES AND DOMESTIC VIOLENCE

Rights to occupy matrimonial home 30. Rights concerning matrimonial home where one spouse has no estate, etc (1) This section applies if– (a) one spouse is entitled to occupy a dwelling house by virtue of– (i) a beneficial estate or interest or contract, or (ii) any enactment giving that spouse the right to remain in occupation, and (b) the other spouse is not so entitled. (2) Subject to the provisions of this Part, the spouse not so entitled has the following rights (‘matrimonial home rights’)– (a) if in occupation, a right not to be evicted or excluded from the dwelling house or any part of it by the other spouse except with the leave of the court given by an order under section 33, (b) if not in occupation, a right with the leave of the court so given to enter into and occupy the dwelling house. (3) If a spouse is entitled under this section to occupy a dwelling house or any part of a dwelling house, any payment or tender made or other thing done by that spouse in or towards satisfaction of any liability of the other spouse in respect of rent, mortgage payments or other outgoings affecting 179

Domestic Violence the dwelling house is, whether or not it is made or done in pursuance of an order under section 40, as good as if made or done by the other spouse. (4) A spouse’s occupation by virtue of this section– (a) is to be treated, for the purposes of the Rent (Agriculture) Act 1976 and the Rent Act 1977 (other than Part V and sections 103 to 106 of that Act), as occupation by the other spouse as the other spouse’s residence, and (b) if the spouse occupies the dwelling house as that spouse’s only or principal home, is to be treated, for the purposes of the Housing Act 1985 and Part I of the Housing Act 1988, as occupation by the other spouse as the other spouse’s only or principal home. (5) If a spouse (‘the first spouse’)– (a) is entitled under this section to occupy a dwelling house or any part of a dwelling house, and (b) makes any payment in or towards satisfaction of any liability of the other spouse (‘the second spouse’) in respect of mortgage payments affecting the dwelling house, the person to whom the payment is made may treat it as having been made by the second spouse, but the fact that that person has treated any such payment as having been so made does not affect any claim of the first spouse against the second spouse to an interest in the dwelling house by virtue of the payment. (6) If a spouse is entitled under this section to occupy a dwelling house or part of a dwelling house by reason of an interest of the other spouse under a trust, all the provisions of subsections (3) to (5) apply in relation to the trustees as they apply in relation to the other spouse. (7) This section does not apply to a dwelling house which has at no time been, and which was at no time intended by the spouses to be, a matrimonial home of theirs. (8) A spouse’s matrimonial home rights continue– (a) only so long as the marriage subsists, except to the extent that an order under section 33(5) otherwise provides, and (b) only so long as the other spouse is entitled as mentioned in subsection (1) to occupy the dwelling house, except where provision is made by section 31 for those rights to be a charge on an estate or interest in the dwelling house. (9) It is hereby declared that a spouse– (a) who has an equitable interest in a dwelling house or in its proceeds of sale, but (b) is not a spouse in whom there is vested (whether solely or as joint tenant) a legal estate in fee simple or a legal term of years absolute in the dwelling house, 180

Appendix I is to be treated, only for the purpose of determining whether he has matrimonial home rights, as not being entitled to occupy the dwelling house by virtue of that interest.

31. Effect of matrimonial home rights as charge on dwelling house (1) Subsections (2) and (3) apply if, at any time during a marriage, one spouse is entitled to occupy a dwelling house by virtue of a beneficial estate or interest. (2) The other spouse’s matrimonial home rights are a charge on the estate or interest. (3) The charge created by subsection (2) has the same priority as if it were an equitable interest created at whichever is the latest of the following dates– (a) the date on which the spouse so entitled acquires the estate or interest, (b) the date of the marriage, and (c) 1st January 1968 (the commencement date of the Matrimonial Homes Act 1967). (4) Subsections (5) and (6) apply if, at any time when a spouse’s matrimonial home rights are a charge on an interest of the other spouse under a trust, there are, apart from either of the spouses, no persons, living or unborn, who are or could become beneficiaries under the trust. (5) The rights are a charge also on the estate or interest of the trustees for the other spouse. (6) The charge created by subsection (5) has the same priority as if it were an equitable interest created (under powers overriding the trusts) on the date when it arises. (7) In determining for the purposes of subsection (4) whether there are any persons who are not, but could become, beneficiaries under the trust, there is to be disregarded any potential exercise of a general power of appointment exercisable by either or both of the spouses alone (whether or not the exercise of it requires the consent of another person). (8) Even though a spouse’s matrimonial home rights are a charge on an estate or interest in the dwelling house, those rights are brought to an end by– (a) the death of the other spouse, or (b) the termination (otherwise than by death) of the marriage, unless the court directs otherwise by an order made under section 33(5).

181

Domestic Violence (9) If– (a) a spouse’s matrimonial home rights are a charge on an estate or interest in the dwelling house, and (b) that estate or interest is surrendered to merge in some other estate or interest expectant on it in such circumstances that, but for the merger, the person taking the estate or interest would be bound by the charge, the surrender has effect subject to the charge and the persons thereafter entitled to the other estate or interest are, for so long as the estate or interest surrendered would have endured if not so surrendered, to be treated for all purposes of this Part as deriving title to the other estate or interest under the other spouse or, as the case may be, under the trustees for the other spouse, by virtue of the surrender. (10) If the title to the legal estate by virtue of which a spouse is entitled to occupy a dwelling house (including any legal estate held by trustees for that spouse) is registered under the Land Registration Act 1925 or any enactment replaced by that Act– (a) registration of a land charge affecting the dwelling house by virtue of this Part is to be effected by registering a notice under that Act, and (b) a spouse’s matrimonial home rights are not an overriding interest within the meaning of that Act affecting the dwelling house even though the spouse is in actual occupation of the dwelling house. (11) A spouse’s matrimonial home rights (whether or not constituting a charge) do not entitle that spouse to lodge a caution under section 54 of the Land Registration Act 1925. (12) If– (a) a spouse’s matrimonial home rights are a charge on the estate of the other spouse or of trustees of the other spouse, and (b) that estate is the subject of a mortgage, then if, after the date of the creation of the mortgage (‘the first mortgage’), the charge is registered under section 2 of the Land Charges Act 1972, the charge is, for the purposes of section 94 of the Law of Property Act 1925 (which regulates the rights of mortgagees to make further advances ranking in priority to subsequent mortgages), to be deemed to be a mortgage subsequent in date to the first mortgage. (13) It is hereby declared that a charge under subsection (2) or (5) is not registrable under subsection (10) or under section 2 of the Land Charges Act 1972 unless it is a charge on a legal estate.

32. Further provisions relating to matrimonial home rights Schedule 4 re-enacts with consequential amendments and minor modifications provisions of the Matrimonial Homes Act 1983. 182

Appendix I

Occupation orders 33. Occupation orders where applicant has estate or interest etc or has matrimonial home rights (1) If– (a) a person (‘the person entitled’)– (i) is entitled to occupy a dwelling house by virtue of a beneficial estate or interest or contract or by virtue of any enactment giving him the right to remain in occupation, or (ii) has matrimonial home rights in relation to a dwelling house, and (b) the dwelling house– (i) is or at any time has been the home of the person entitled and of another person with whom he is associated, or (ii) was at any time intended by the person entitled and any such other person to be their home, the person entitled may apply to the court for an order containing any of the provisions specified in subsections (3), (4) and (5). (2) If an agreement to marry is terminated, no application under this section may be made by virtue of section 62(3)(e) by reference to that agreement after the end of the period of three years beginning with the day on which it is terminated. (3) An order under this section may– (a) enforce the applicant’s entitlement to remain in occupation as against the other person (‘the respondent’), (b) require the respondent to permit the applicant to enter and remain in the dwelling house or part of the dwelling house, (c) regulate the occupation of the dwelling house by either or both parties, (d) if the respondent is entitled as mentioned in subsection (1)(a)(i), prohibit, suspend or restrict the exercise by him of his right to occupy the dwelling house, (e) if the respondent has matrimonial home rights in relation to the dwelling house and the applicant is the other spouse, restrict or terminate those rights, (f) require the respondent to leave the dwelling house or part of the dwelling house, or (g) exclude the respondent from a defined area in which the dwelling house is included. (4) An order under this section may declare that the applicant is entitled as mentioned in subsection (1)(a)(i) or has matrimonial home rights. 183

Domestic Violence (5) If the applicant has matrimonial home rights and the respondent is the other spouse, an order under this section made during the marriage may provide that those rights are not brought to an end by– (a) the death of the other spouse, or (b) the termination (otherwise than by death) of the marriage. (6) In deciding whether to exercise its powers under subsection (3) and (if so) in what manner, the court shall have regard to all the circumstances including– (a) the housing needs and housing resources of each of the parties and of any relevant child, (b) the financial resources of each of the parties, (c) the likely effect of any order, or of any decision by the court not to exercise its powers under subsection (3), on the health, safety or well-being of the parties and of any relevant child, and (d) the conduct of the parties in relation to each other and otherwise. (7) If it appears to the court that the applicant or any relevant child is likely to suffer significant harm attributable to conduct of the respondent if an order under this section containing one or more of the provisions mentioned in subsection (3) is not made, the court shall make the order unless it appears to it that– (a) the respondent or any relevant child is likely to suffer significant harm if the order is made, and (b) the harm likely to be suffered by the respondent or child in that event is as great as, or greater than, the harm attributable to conduct of the respondent which is likely to be suffered by the applicant or child if the order is not made. (8) The court may exercise its powers under subsection (5) in any case where it considers that in all the circumstances it is just and reasonable to do so. (9) An order under this section– (a) may not be made after the death of either of the parties mentioned in subsection (I), and (b) except in the case of an order made by virtue of subsection (5)(a), ceases to have effect on the death of either party. (10) An order under this section may, in so far as it has continuing effect, be made for a specified period, until the occurrence of a specified event or until further order.

184

Appendix I

34. Effect of order under s 33 where rights are charge on dwelling house (l) If a spouse’s matrimonial home rights are a charge on the estate or interest of the other spouse or of trustees for the other spouse– (a) an order under section 33 against the other spouse has, except so far as a contrary intention appears, the same effect against persons deriving title under the other spouse or under the trustees and affected by the charge, and (b) sections 33(1), (3), (4) and (10) and 30(3) to (6) apply in relation to any person deriving title under the other spouse or under the trustees and affected by the charge as they apply in relation to the other spouse. (2) The court may make an order under section 33 by virtue of subsection (l)(b) if it considers that in all the circumstances it is just and reasonable to do so.

35. One former spouse with no existing right to occupy (1) This section applies if– (a) one former spouse is entitled to occupy a dwelling house by virtue of a beneficial estate or interest or contract, or by virtue of any enactment giving him the right to remain in occupation, (b) the other former spouse is not so entitled, and (c) the dwelling house was at any time their matrimonial home or was at any time intended by them to be their matrimonial home. (2) The former spouse not so entitled may apply to the court for an order under this section against the other former spouse (‘the respondent’). (3) If the applicant is in occupation, an order under this section must contain provision– (a) giving the applicant the right not to be evicted or excluded from the dwelling house or any part of it by the respondent for the period specified in the order, and (b) prohibiting the respondent from evicting or excluding the applicant during that period. (4) If the applicant is not in occupation, an order under this section must contain provision– (a) giving the applicant the right to enter into and occupy the dwelling house for the period specified in the order, and (b) requiring the respondent to permit the exercise of that right.

185

Domestic Violence (5) An order under this section may also– (a) regulate the occupation of the dwelling house by either or both of the parties, (b) prohibit, suspend or restrict the exercise by the respondent of his right to occupy the dwelling house, (c) require the respondent to leave the dwelling house or part of the dwelling house, or (d) exclude the respondent from a defined area in which the dwelling house is included. (6) In deciding whether to make an order under this section containing provision of the kind mentioned in subsection (3) or (4) and (if so) in what manner, the court shall have regard to all the circumstances including– (a) the housing needs and housing resources of each of the parties and of any relevant child, (b) the financial resources of each of the parties, (c) the likely effect of any order, or of any decision by the court not to exercise its powers under subsection (3) or (4), on the health, safety or well-being of the parties and of any relevant child, (d) the conduct of the parties in relation to each other and otherwise, (e) the length of time that has elapsed since the parties ceased to live together, (f) the length of time that has elapsed since the marriage was dissolved or annulled, and (g) the existence of any pending proceedings between the parties– (i) for an order under section 23A or 24 of the Matrimonial Causes Act 1973 (property adjustment orders in connection with divorce proceedings etc), (ii) for an order under paragraph 1(2)(d) or (e) of Schedule l to the Children Act 1989 (orders for financial relief against parents), or (iii) relating to the legal or beneficial ownership of the dwelling house. (7) In deciding whether to exercise its power to include one or more of the provisions referred to in subsection (5) (‘a subsection (5) provision’) and (if so) in what manner, the court shall have regard to all the circumstances including the matters mentioned in subsection (6)(a) to (e). (8) If the court decides to make an order under this section and it appears to it that, if the order does not include a subsection (5) provision, the applicant or any relevant child is likely to suffer significant harm attributable to conduct of the respondent, the court shall include the subsection (5) provision in the order unless it appears to the court that– (a) the respondent or any relevant child is likely to suffer significant harm if the provision is included in the order, and 186

Appendix I (b) the harm likely to be suffered by the respondent or child in that event is as great as or greater than the harm attributable to conduct of the respondent which is likely to be suffered by the applicant or child if the provision is not included. (9) An order under this section– (a) may not be made after the death of either of the former spouses, and (b) ceases to have effect on the death of either of them. (10) An order under this section must be limited so as to have effect for a specified period not exceeding six months, but may be extended on one or more occasions for a further specified period not exceeding six months. (11) A former spouse who has an equitable interest in the dwelling house or in the proceeds of sale of the dwelling house but in whom there is not vested (whether solely or as joint tenant) a legal estate in fee simple or a legal term of years absolute in the dwelling house is to be treated (but only for the purpose of determining whether he is eligible to apply under this section) as not being entitled to occupy the dwelling house by virtue of that interest. (12) Subsection (11) does not prejudice any right of such a former spouse to apply for an order under section 33. (13) So long as an order under this section remains in force, subsections (3) to (6) of section 30 apply in relation to the applicant– (a) as if he were the spouse entitled to occupy the dwelling house by virtue of that section, and (b) as if the respondent were the other spouse.

36. One cohabitant or former cohabitant with an existing right to occupy (1) This section applies if– (a) one cohabitant or former cohabitant is entitled to occupy a dwelling house by virtue of a beneficial estate or interest or contract or by virtue of any enactment giving him the right to remain in occupation, (b) the other cohabitant or former cohabitant is not so entitled, and (c) that dwelling house is the home in which they live together as husband and wife or a home in which they at any time so lived together or intended so to live together. (2) The cohabitant or former cohabitant not so entitled may apply to the court for an order under this section against the other cohabitant or former cohabitant (‘the respondent’).

187

Domestic Violence (3) If the applicant is in occupation, an order under this section must contain provision– (a) giving the applicant the right not to be evicted or excluded from the dwelling house or any part of it by the respondent for the period specified in the order, and (b) prohibiting the respondent from evicting or excluding the applicant during that period. (4) If the applicant is not in occupation, an order under this section must contain provision– (a) giving the applicant the right to enter into and occupy the dwelling house for the period specified in the order, and (b) requiring the respondent to permit the exercise of that right. (5) An order under this section may also– (a) regulate the occupation of the dwelling house by either or both of the parties, (b) prohibit, suspend or restrict the exercise by the respondent of his right to occupy the dwelling house, (c) require the respondent to leave the dwelling house or part of the dwelling house, or (d) exclude the respondent from a defined area in which the dwelling house is included. (6) In deciding whether to make an order under this section containing provision of the kind mentioned in subsection (3) or (4) and (if so) in what manner, the court shall have regard to all the circumstances including– (a) the housing needs and housing resources of each of the parties and of any relevant child, (b) the financial resources of each of the parties, (c) the likely effect of any order, or of any decision by the court not to exercise its powers under subsection (3) or (4), on the health, safety or well-being of the parties and of any relevant child, (d) the conduct of the parties in relation to each other and otherwise, (e) the nature of the parties’ relationship, (f) the length of time during which they have lived together as husband and wife, (g) whether there are or have been any children who are children of both parties or for whom both parties have or have had parental responsibility, (h) the length of time that has elapsed since the parties ceased to live together, and

188

Appendix I (i) the existence of any pending proceedings between the parties– (i) for an order under paragraph I (2)(d) or (e) of Schedule I to the Children Act 1989 (orders for financial relief against parents), or (ii) relating to the legal or beneficial ownership of the dwelling house. (7) In deciding whether to exercise its powers to include one or more of the provisions referred to in subsection (5) (‘a subsection (5) provision’) and (if so) in what manner, the court shall have regard to all the circumstances including– (a) the matters mentioned in subsection (6)(a) to (d), and (b) the questions mentioned in subsection (8). (8) The questions are– (a) whether the applicant or any relevant child is likely to suffer significant harm attributable to conduct of the respondent if the subsection (5) provision is not included in the order, and (b) whether the harm likely to be suffered by the respondent or child if the provision is included is as great as or greater than the harm attributable to conduct of the respondent which is likely to be suffered by the applicant or child if the provision is not included. (9) An order under this section– (a) may not be made after the death of either of the parties, and (b) ceases to have effect on the death of either of them. (10) An order under this section must be limited so as to have effect for a specified period not exceeding six months, but may be extended on one occasion for a further specified period not exceeding six months. (11) A person who has an equitable interest in the dwelling house or in the proceeds of sale of the dwelling house but in whom there is not vested (whether solely or as joint tenant) a legal estate in fee simple or a legal term of years absolute in the dwelling house is to be treated (but only for the purpose of determining whether he is eligible to apply under this section) as not being entitled to occupy the dwelling house by virtue of that interest. (12) Subsection (11) does not prejudice any right of such a person to apply for an order under section 33. (13) So long as the order remains in force, subsections (3) to (6) of section 30 apply in relation to the applicant– (a) as if he were a spouse entitled to occupy the dwelling house by virtue of that section, and (b) as if the respondent were the other spouse.

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37. Neither spouse entitled to occupy (1) This section applies if– (a) one spouse or former spouse and the other spouse or former spouse occupy a dwelling house which is or was the matrimonial home, but (b) neither of them is entitled to remain in occupation– (i) by virtue of a beneficial estate or interest or contract, or (ii) by virtue of any enactment giving him the right to remain in occupation. (2) Either of the parties may apply to the court for an order against the other under this section. (3) An order under this section may– (a) require the respondent to permit the applicant to enter and remain in the dwelling house or part of the dwelling house, (b) regulate the occupation of the dwelling house by either or both of the spouses, (c) require the respondent to leave the dwelling house or part of the dwelling house, or (d) exclude the respondent from a defined area in which the dwelling house is included. (4) Subsections (6) and (7) of section 33 apply to the exercise by the court of its powers under this section as they apply to the exercise by the court of its powers under subsection (3) of that section. (5) An order under this section must be limited so as to have effect for a specified period not exceeding six months, but may be extended on one or more occasions for a further specified period not exceeding six months.

38. Neither cohabitant or former cohabitant entitled to occupy (1) This section applies if– (a) one cohabitant or former cohabitant and the other cohabitant or former cohabitant occupy a dwelling house which is the home in which they live or lived together as husband and wife, but (b) neither of them is entitled to remain in occupation– (i) by virtue of a beneficial estate or interest or contract, or (ii) by virtue of any enactment giving him the right to remain in occupation. (2) Either of the parties may apply to the court for an order against the other under this section.

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Appendix I (3) An order under this section may– (a) require the respondent to permit the applicant to enter and remain in the dwelling house or part of the dwelling house, (b) regulate the occupation of the dwelling house by either or both of the parties, (c) require the respondent to leave the dwelling house or part of the dwelling house, or (d) exclude the respondent from a defined area in which the dwelling house is included. (4) In deciding whether to exercise its powers to include one or more of the provisions referred to in subsection (3) (‘a subsection (3) provision’) and (if so) in what manner, the court shall have regard to all the circumstances including– (a) the housing needs and housing resources of each of the parties and of any relevant child, (b) the financial resources of each of the parties, (c) the likely effect of any order, or of any decision by the court not to exercise its powers under subsection (3), on the health, safety or well-being of the parties and of any relevant child, (d) the conduct of the parties in relation to each other and otherwise, and (e) the questions mentioned in subsection (5). (5) The questions are– (a) whether the applicant or any relevant child is likely to suffer significant harm attributable to conduct of the respondent if the subsection (3) provision is not included in the order, and (b) whether the harm likely to be suffered by the respondent or child if the provision is included is as great as or greater than the harm attributable to conduct of the respondent which is likely to be suffered by the applicant or child if the provision is not included. (6) An order under this section shall be limited so as to have effect for a specified period not exceeding six months, but may be extended on one occasion for a further specified period not exceeding six months.

39. Supplementary provisions (1) In this Part an ‘occupation order’ means an order under section 33, 35, 36, 37 or 38. (2) An application for an occupation order may be made in other family proceedings or without any other family proceedings being instituted.

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Domestic Violence (3) If– (a) an application for an occupation order is made under section 33, 35, 36, 37 or 38, and (b) the court considers that it has no power to make the order under the section concerned, but that it has power to make an order under one of the other sections, the court may make an order under that other section. (4) The fact that a person has applied for an occupation order under sections 35 to 38, or that an occupation order has been made, does not affect the right of any person to claim a legal or equitable interest in any property in any subsequent proceedings (including subsequent proceedings under this Part).

40. Additional provisions that may be included in certain occupation orders (1) The court may on, or at any time after, making an occupation order under section 33, 35 or 36– (a) impose on either party obligations as to– (i) the repair and maintenance of the dwelling house, or (ii) the discharge of rent, mortgage payments or other outgoings affecting the dwelling house, (b) order a party occupying the dwelling house or any part of it (including a party who is entitled to do so by virtue of a beneficial estate or interest or contract or by virtue of any enactment giving him the right to remain in occupation) to make periodical payments to the other party in respect of the accommodation, if the other party would (but for the order) be entitled to occupy the dwelling house by virtue of a beneficial estate or interest or contract or by virtue of any such enactment, (c) grant either party possession or use of furniture or other contents of the dwelling house, (d) order either party to take reasonable care of any furniture or other contents of the dwelling house, (e) order either party to take reasonable steps to keep the dwelling house and any furniture or other contents secure. (2) In deciding whether and, if so, how to exercise its powers under this section, the court shall have regard to all the circumstances of the case including– (a) the financial needs and financial resources of the parties, and (b) the financial obligations which they have, or are likely to have in the foreseeable future, including financial obligations to each other and to any relevant child. 192

Appendix I (3) An order under this section ceases to have effect when the occupation order to which it relates ceases to have effect.

41. Additional considerations if parties are cohabitants or former cohabitants (1) This section applies if the parties are cohabitants or former cohabitants. (2) Where the court is required to consider the nature of the parties’ relationship, it is to have regard to the fact that they have not given each other the commitment involved in marriage.

Non-molestation orders 42. Non-molestation orders (1) In this Part a ‘non-molestation order’ means an order containing either or both of the following provisions– (a) provision prohibiting a person (‘the respondent’) from molesting another person who is associated with the respondent, (b) provision prohibiting the respondent from molesting a relevant child. (2) The court may make a non-molestation order– (a) if an application for the order has been made (whether in other family proceedings or without any other family proceedings being instituted) by a person who is associated with the respondent, or (b) if in any family proceedings to which the respondent is a party the court considers that the order should be made for the benefit of any other party to the proceedings or any relevant child even though no such application has been made. (3) In subsection (2) ‘family proceedings’ includes proceedings in which the court has made an emergency protection order under section 44 of the Children Act 1989 which includes an exclusion requirement (as defined in section 44A(3) of that Act). (4) Where an agreement to marry is terminated, no application under subsection (2)(a) may be made by virtue of section 62(3)(e) by reference to that agreement after the end of the period of three years beginning with the day on which it is terminated. (5) In deciding whether to exercise its powers under this section and, if so, in what manner, the court shall have regard to all the circumstances including the need to secure the health, safety and well-being–

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Domestic Violence (a) of the applicant or, in a case falling within subsection (2)(b), the person for whose benefit the order would he made, and (b) of any relevant child. (6) A non-molestation order may be expressed so as to refer to molestation in general, to particular acts of molestation, or to both. (7) A non-molestation order may be made for a specified period or until further order. (8) A non-molestation order which is made in other family proceedings ceases to have effect if those proceedings are withdrawn or dismissed.

Further provisions relating to occupation and non-molestation orders 43. Leave of court required for applications by children under sixteen (1) A child under the age of sixteen may not apply for an occupation order or a non-molestation order except with the leave of the court. (2) The court may grant leave for the purposes of subsection (1) only if it is satisfied that the child has sufficient understanding to make the proposed application for the occupation order or non-molestation order.

44. Evidence of agreement to marry (1) Subject to subsection (2), the court shall not make an order under section 33 or 42 by virtue of section 62(3)(e) unless there is produced to it evidence in writing of the existence of the agreement to marry. (2) Subsection (1) does not apply if the court is satisfied that the agreement to marry was evidenced by– (a) the gift of an engagement ring by one party to the agreement to the other in contemplation of their marriage, or (b) a ceremony entered into by the parties in the presence of one or more other persons assembled for the purpose of witnessing the ceremony.

45. Ex parte orders (1) The court may, in any case where it considers that it is just and convenient to do so, make an occupation order or a non-molestation order even though the respondent has not been given such notice of the proceedings as would otherwise be required by rules of court. (2) In determining whether to exercise its powers under subsection (1), the court shall have regard to all the circumstances including–

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Appendix I (a) any risk of significant harm to the applicant or a relevant child, attributable to conduct of the respondent, if the order is not made immediately, (b) whether it is likely that the applicant will be deterred or prevented from pursuing the application if an order is not made immediately, and (c) whether there is reason to believe that the respondent is aware of the proceedings but is deliberately evading service and that the applicant or a relevant child will be seriously prejudiced by the delay involved– (i) where the court is a magistrates’ court, in effecting service of proceedings, or (ii) in any other case, in effecting substituted service. (3) If the court makes an order by virtue of subsection (1) it must afford the respondent an opportunity to make representations relating to the order as soon as just and convenient at a full hearing. (4) If, at a full hearing, the court makes an occupation order (‘ the full order’), then– (a) for the purposes of calculating the maximum period for which the full order may be made to have effect, the relevant section is to apply as if the period for which the full order will have effect began on the date on which the initial order first had effect, and (b) the provisions of section 36(10) or 38(6) as to the extension of orders are to apply as if the full order and the initial order were a single order. (5) In this section– ‘full hearing’ means a hearing of which notice has been given to all the parties in accordance with rules of court, ‘initial order’ means an occupation order made by virtue of subsection (I), and ‘relevant section’ means section 33(10), 35(10), 36(10), 37(5) or 38(6).

46. Undertakings (1) In any case where the court has power to make an occupation order or non-molestation order, the court may accept an undertaking from any party to the proceedings. (2) No power of arrest may be attached to any undertaking given under subsection (1). (3) The court shall not accept an undertaking under subsection (1) in any case where apart from this section a power of arrest would be attached to the order. 195

Domestic Violence (4) An undertaking given to a court under subsection (1) is enforceable as if it were an order of the court. (5) This section has effect without prejudice to the powers of the High Court and the county court apart from this section.

47. Arrest for breach of order (1) In this section ‘a relevant order’ means an occupation order or a nonmolestation order. (2) If– (a) the court makes a relevant order, and (b) it appears to the court that the respondent has used or threatened violence against the applicant or a relevant child, it shall attach a power of arrest to one or more provisions of the order unless satisfied that in all the circumstances of the case the applicant or child will be adequately protected without such a power of arrest. (3) Subsection (2) does not apply in any case where the relevant order is made by virtue of section 45(1), but in such a case the court may attach a power of arrest to one or more provisions of the order if it appears to it– (a) that the respondent has used or threatened violence against the applicant or a relevant child, and (b) that there is a risk of significant harm to the applicant or child, attributable to conduct of the respondent, if the power of arrest is not attached to those provisions immediately. (4) If, by virtue of subsection (3), the court attaches a power of arrest to any provisions of a relevant order, it may provide that the power of arrest is to have effect for a shorter period than the other provisions of the order. (5) Any period specified for the purposes of subsection (4) may be extended by the court (on one or more occasions) on an application to vary or discharge the relevant order. (6) If, by virtue of subsection (2) or (3), a power of arrest is attached to certain provisions of an order, a constable may arrest without warrant a person whom he has reasonable cause for suspecting to be in breach of any such provision. (7) If a power of arrest is attached under subsection (2) or (3) to certain provisions of the order and the respondent is arrested under subsection (6)– (a) he must be brought before the relevant judicial authority within the period of 24 hours beginning at the time of his arrest, and (b) if the matter is not then disposed of forthwith, the relevant judicial authority before whom he is brought may remand him.

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Appendix I In reckoning for the purposes of this subsection any period of 24 hours, no account is to be taken of Christmas Day, Good Friday or any Sunday. (8) If the court has made a relevant order but– (a) has not attached a power of arrest under subsection (2) or (3) to any provisions of the order, or (b) has attached that power only to certain provisions of the order, then, if at any time the applicant considers that the respondent has failed to comply with the order, he may apply to the relevant judicial authority for the issue of a warrant for the arrest of the respondent. (9) The relevant judicial authority shall not issue a warrant on an application under subsection (8) unless– (a) the application is substantiated on oath, and (b) the relevant judicial authority has reasonable grounds for believing that the respondent has failed to comply with the order. (10) If a person is brought before a court by virtue of a warrant issued under subsection (9) and the court does not dispose of the matter forthwith, the court may remand him. (11) Schedule 5 (which makes provision corresponding to that applying in magistrates’ courts in civil cases under sections 128 and 129 of the Magistrates’ Courts Act 1980) has effect in relation to the powers of the High Court and a county court to remand a person by virtue of this section. (12) If a person remanded under this section is granted bail (whether in the High Court or a county court under Schedule 5 or in a magistrates’ court under section 128 or 129 of the Magistrates’ Courts Act 1980), he may be required by the relevant judicial authority to comply, before release on bail or later, with such requirements as appear to that authority to be necessary to secure that he does not interfere with witnesses or otherwise obstruct the course of justice.

48. Remand for medical examination and report (1) If the relevant judicial authority has reason to consider that a medical report will be required, any power to remand a person under section 47(7)(b) or (10) may be exercised for the purpose of enabling a medical examination and report to be made. (2) If such a power is so exercised, the adjournment must not be for more than 4 weeks at a time unless the relevant judicial authority remands the accused in custody. (3) If the relevant judicial authority so remands the accused, the adjournment must not be for more than 3 weeks at a time. (4) If there is reason to suspect that a person who has been arrested–

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Domestic Violence (a) under section 47(6), or (b) under a warrant issued on an application made under section 47(8), is suffering from mental illness or severe mental impairment, the relevant judicial authority has the same power to make an order under section 35 of the Mental Health Act 1983 (remand for report on accused’s mental condition) as the Crown Court has under section 35 of the Act of 1983 in the case of an accused person within the meaning of that section.

49. Variation and discharge of orders (1) An occupation order or non-molestation order may be varied or discharged by the court on an application by– (a) the respondent, or (b) the person on whose application the order was made. (2) In the case of a non-molestation order made by virtue of section 42(2)(b), the order may be varied or discharged by the court even though no such application has been made. (3) If a spouse’s matrimonial home rights are a charge on the estate or interest of the other spouse or of trustees for the other spouse, an order under section 33 against the other spouse may also be varied or discharged by the court on an application by any person deriving title under the other spouse or under the trustees and affected by the charge. (4) If, by virtue of section 47(3), a power of arrest has been attached to certain provisions of an occupation order or non-molestation order, the court may vary or discharge the order under subsection (1) in so far as it confers a power of arrest (whether or not any application has been made to vary or discharge any other provision of the order).

60. Provision for third parties to act on behalf of victims of domestic violence (1) Rules of court may provide for a prescribed person, or any person in a prescribed category, (‘a representative’) to act on behalf of another in relation to proceedings to which this Part applies. (2) Rules made under this section may, in particular, authorise a representative to apply for an occupation order or for a non-molestation order for which the person on whose behalf the representative is acting could have applied. (3) Rules made under this section may prescribe– (a) conditions to be satisfied before a representative may make an application to the court on behalf of another, and

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Appendix I (b) considerations to be taken into account by the court in determining whether, and if so how, to exercise any of its powers under this Part when a representative is acting on behalf of another. (4) Any rules made under this section may be made so as to have effect for a specified period and may make consequential or transitional provision with respect to the expiry of the specified period. (5) Any such rules may be replaced by further rules made under this section.

62. Meaning of ‘cohabitants’, ‘relevant child’ and ‘associated persons’ (1) For the purposes of this Part (a) ‘cohabitants’ are a man and a woman who, although not married to each other, are living together as husband and wife, and (b) ‘former cohabitants’ is to be read accordingly, but does not include cohabitants who have subsequently married each other. (2) In this Part, ‘relevant child’, in relation to any proceedings under this Part, means– (a) any child who is living with or might reasonably be expected to live with either party to the proceedings, (b) any child in relation to whom an order under the Adoption Act 1976 or the Children Act 1989 is in question in the proceedings, and (c) any other child whose interests the court considers relevant. (3) For the purposes of this Part, a person is associated with another person if– (a) they are or have been married to each other, (b) they are cohabitants or former cohabitants, (c) they live or have lived in the same household, otherwise than merely by reason of one of them being the other’s employee, tenant, lodger or boarder, (d) they are relatives, (e) they have agreed to marry one another (whether or not that agreement has been terminated), (f) in relation to any child, they are both persons falling within subsection (4), or (g) they are parties to the same family proceedings (other than proceedings under this Part). (4) A person falls within this subsection in relation to a child if– (a) he is a parent of the child, or (b) he has or has had parental responsibility for the child. 199

Domestic Violence (5) If a child has been adopted or has been freed for adoption by virtue of any of the enactments mentioned in section 16(1) of the Adoption Act 1976, two persons are also associated with each other for the purposes of this Part if– (a) one is a natural parent of the child or a parent of such a natural parent, and (b) the other is the child or any person– (i) who has become a parent of the child by virtue of an adoption order or has applied for an adoption order, or (ii) with whom the child has at any time been placed for adoption. (6) A body corporate and another person are not, by virtue of subsection (3)(f) or (g), to be regarded for the purposes of this Part as associated with each other.

63. Interpretation of Part IV (1 ) In this Part– ‘adoption order’ has the meaning given by section 72(1) of the Adoption Act 1976, ‘ associated’, in relation to a person, is to be read with section 62(3) to (6), ‘child’ means a person under the age of eighteen years, ‘cohabitant’ and ‘former cohabitant’ have the meaning given by section 62(1), ‘the court’ is to be read with section 57, ‘development’ means physical, intellectual, emotional, social or behavioural development, ‘dwelling house’ includes (subject to subsection (4))– (a) any building or part of a building which is occupied as a dwelling, (b) any caravan, house-boat or structure which is occupied as a dwelling, and any yard, garden, garage or outhouse belonging to it and occupied with it, ‘family proceedings’ means any proceedings– (a) under the inherent jurisdiction of the High Court in relation to children, or (b) under the enactments mentioned in subsection (2), ‘harm’–

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Appendix I (a) in relation to a person who has reached the age of eighteen years, means ill-treatment or the impairment of health, and (b) in relation to a child, means ill-treatment or the impairment of health or development, ‘health’ includes physical or mental health, ‘ill-treatment’ includes forms of ill-treatment which are not physical and, in relation to a child, includes sexual abuse, ‘matrimonial home rights’ has the meaning given by section 30, ‘mortgage’, ‘mortgagor’ and ‘mortgagee’ have the same meaning as in the Law of Property Act 1925, ‘mortgage payments’ includes any payments which, under the terms of the mortgage, the mortgagor is required to make to any person, ‘non-molestation order’ has the meaning given by section 42(1), ‘occupation order’ has the meaning given by section 39, ‘parental responsibility’ has the same meaning as in the Children Act 1989, ‘relative’, in relation to a person, means– (a) the father, mother, stepfather, stepmother, son, daughter, stepson, stepdaughter, grandmother, grandfather, grandson or granddaughter of that person or of that person’s spouse or former spouse, or (b) the brother, sister, uncle, aunt, niece or nephew (whether of the full blood or of the half blood or by affinity) of that person or of that person’s spouse or former spouse, and includes, in relation to a person who is living or has lived with another person as husband and wife, any person who would fall within paragraph (a) or (b) if the parties were married to each other, ‘relevant child’, in relation to any proceedings under this Part, has the meaning given by section 62(2), ‘the relevant judicial authority’, in relation to any order under this Part, means– (a) where the order was made by the High Court, a judge of that court, (b) where the order was made by a county court, a judge or district judge of that or any other county court, or (c) where the order was made by a magistrates’ court, any magistrates’ court. (2) The enactments referred to in the definition of ‘family proceedings’ are– (a) Part II, (b) this Part,

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Domestic Violence (c) (d) (e) (f) (g) (h)

the Matrimonial Causes Act 1973, the Adoption Act 1976, the Domestic Proceedings and Magistrates’ Courts Act 1978, Part III of the Matrimonial and Family Proceedings Act 1984, Parts I, II and IV of the Children Act 1989, section 30 of the Human Fertilisation and Embryology Act 1990.

(3) Where the question of whether harm suffered by a child is significant turns on the child’s health or development, his health or development shall be compared with that which could reasonably be expected of a similar child. (4) For the purposes of sections 31, 32, 53 and 54 and such other provisions of this Part (if any) as may be prescribed, this Part is to have effect as if paragraph (b) of the definition of ‘dwelling house’ were omitted. (5) It is hereby declared that this Part applies as between the parties to a marriage even though either of them is, or has at any time during the marriage been, married to more than one person.

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APPENDIX II

PROTECTION FROM HARASSMENT ACT 1997

CHAPTER 40

ARRANGEMENT OF SECTIONS England and Wales Section 1 Prohibition of harassment. 2 Offence of harassment. 3 Civil remedy. 4 Putting people in fear of violence. 5 Restraining orders. 6 Limitation. 7 Interpretation of this group of sections.

Scotland 8 9 10 11

Harassment. Breach of non-harassment order. Limitation. Non-harassment order following criminal offence.

General 12 13 14 15 16

National security, etc. Corresponding provision for Northern Ireland. Extent. Commencement. Short title.

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ELIZABETH II C. 40 PROTECTION FROM HARASSMENT ACT 1997 1997 CHAPTER 40 An Act to make provision for protecting persons from harassment and similar conduct. [21st March 1997]

B

E IT ENACTED by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:–

England and Wales Prohibition of harassment 1.–(1) A person must not pursue a course of conduct– (a) which amounts to harassment of another, and (b) which he knows or ought to know amounts to harassment of the other. (2) For the purposes of this section, the person whose course of conduct is in question ought to know that it amounts to harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other. (3) Subsection (1) does not apply to a course of conduct if the person who pursued it shows– (a) that it was pursued for the purpose of preventing or detecting crime, (b) that it was pursued under any enactment or rule of law or to comply with any condition or requirement imposed by any person under any enactment, or (c) that in the particular circumstances the pursuit of the course of conduct was reasonable.

Offence of harassment 2.–(1) A person who pursues a course of conduct in breach of section 1 is guilty of an offence. (2) A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding six months, or a fine not exceeding level 5 on the standard scale, or both. (3) In section 24(2) of the Police and Criminal Evidence Act 1984 (arrestable offences), after paragraph (m) there is inserted–

204

Appendix II ‘(n)an offence under section 2 of the Protection from Harassment Act 1997 (harassment).’.

Civil remedy 3.–(1) An actual or apprehended breach of section 1 may be the subject of a claim in civil proceedings by the person who is or may be the victim of the course of conduct in question. (2) On such a claim, damages may be awarded for (among other things) any anxiety caused by the harassment and any financial loss resulting from the harassment. (3) Where– (a) in such proceedings the High Court or a county court grants an injunction for the purpose of restraining the defendant from pursuing any conduct which amounts to harassment, and (b) the plaintiff considers that the defendant has done anything which he is prohibited from doing by the injunction, the plaintiff may apply for the issue of a warrant for the arrest of the defendant. (4) An application under subsection (3) may be made– (a) where the injunction was granted by the High Court, to a judge of that court, and (b) where the injunction was granted by a county court, to a judge or district judge of that or any other county court. (5) The judge or district judge to whom an application under subsection (3) is made may only issue a warrant if– (a) the application is substantiated on oath, and (b) the judge or district judge has reasonable grounds for believing that the defendant has done anything which he is prohibited from doing by the injunction. (6) Where– (a) the High Court or a county court grants an injunction for the purpose mentioned in subsection (3)(a), and (b) without reasonable excuse the defendant does anything which he is prohibited from doing by the injunction, he is guilty of an offence. (7) Where a person is convicted of an offence under subsection (6) in respect of any conduct, that conduct is not punishable as a contempt of court. (8) A person cannot be convicted of an offence under subsection (6) in respect of any conduct which has been punished as a contempt of court.

205

Domestic Violence (9) A person guilty of an offence under subsection (6) is liable– (a) on conviction on indictment, to imprisonment for a term not exceeding five years, or a fine, or both, or (b) on summary conviction, to imprisonment for a term not exceeding six months, or a fine not exceeding the statutory maximum, or both.

Putting people in fear of violence 4.–(1) A person whose course of conduct causes another to fear, on at least two occasions, that violence will be used against him is guilty of an offence if he knows or ought to know that his course of conduct will cause the other so to fear on each of those occasions. (2) For the purposes of this section, the person whose course of conduct is in question ought to know that it will cause another to fear that violence will be used against him on any occasion if a reasonable person in possession of the same information would think the course of conduct would cause the other so to fear on that occasion. (3) It is a defence for a person charged with an offence under this section to show that– (a) his course of conduct was pursued for the purpose of preventing or detecting crime, (b) his course of conduct was pursued under any enactment or rule of law or to comply with any condition or requirement imposed by any person under any enactment, or (c) the pursuit of his course of conduct was reasonable for the protection of himself or another or for the protection of his or another’s property. (4) A person guilty of an offence under this section is liable– (a) on conviction on indictment, to imprisonment for a term not exceeding five years, or a fine, or both, or (b) on summary conviction, to imprisonment for a term not exceeding six months, or a fine not exceeding the statutory maximum, or both. (5) If on the trial on indictment of a person charged with an offence under this section the jury find him not guilty of the offence charged, they may find him guilty of an offence under section 2. (6) The Crown Court has the same powers and duties in relation to a person who is by virtue of subsection (5) convicted before it of an offence under section 2 as a magistrates’ court would have on convicting him of the offence.

206

Appendix II

Restraining orders 5.–(1) A court sentencing or otherwise dealing with a person (‘the defendant’) convicted of an offence under section 2 or 4 may (as well as sentencing him or dealing with him in any other way) make an order under this section. (2) The order may, for the purpose of protecting the victim of the offence, or any other person mentioned in the order, from further conduct which– (a) amounts to harassment, or (b) will cause a fear of violence, prohibit the defendant from doing anything described in the order. (3) The order may have effect for a specified period or until further order. (4) The prosecutor, the defendant or any other person mentioned in the order may apply to the court which made the order for it to be varied or discharged by a further order. (5) If without reasonable excuse the defendant does anything which he is prohibited from doing by an order under this section, he is guilty of an offence. (6) A person guilty of an offence under this section is liable– (a) on conviction on indictment, to imprisonment for a term not exceeding five years, or a fine, or both, or (b) on summary conviction, to imprisonment for a term not exceeding six months, or a fine not exceeding the statutory maximum, or both.

Limitation 6. In section 11 of the Limitation Act 1980 (special time limit for actions in respect of personal injuries), after subsection (1) there is inserted– ‘(1A) This section does not apply to any action brought for damages under section 3 of the Protection from Harassment Act 1997.’

Interpretation of this group of sections 7.–(1) This section applies for the interpretation of sections 1 to 5. (2) References to harassing a person include alarming the person or causing the person distress. (3) A ‘course of conduct’ must involve conduct on at least two occasions. (4) ‘Conduct’ includes speech.

207

Domestic Violence

Scotland Harassment 8.–(1) Every individual has a right to be free from harassment and, accordingly, a person must not pursue a course of conduct which amounts to harassment of another and– (a) is intended to amount to harassment of that person, or (b) occurs in circumstances where it would appear to a reasonable person that it would amount to harassment of that person. (2) An actual or apprehended breach of subsection (1) may be the subject of a claim in civil proceedings by the person who is or may be the victim of the course of conduct in question; and any such claim shall be known as an action of harassment. (3) For the purposes of this section– ‘conduct’ includes speech, ‘harassment’ of a person includes causing the person alarm or distress, and a course of conduct must involve conduct on at least two occasions. (4) It shall be a defence to any action of harassment to show that the course of conduct complained of– (a) was authorised by, under or by virtue of any enactment or rule of law, (b) was pursued for the purpose of preventing or detecting crime, or (c) was, in the particular circumstances, reasonable. (5) In an action of harassment the court may, without prejudice to any other remedies which it may grant– (a) award damages, (b) grant– (i) interdict or interim interdict, (ii) if it is satisfied that it is appropriate for it to do so in order to protect the person from further harassment, an order, to be known as a ‘non-harassment order’, requiring the defender to refrain from such conduct in relation to the pursuer as may be specified in the order for such period (which includes an indeterminate period) as may be so specified, but a person may not be subjected to the same prohibitions in an interdict or interim interdict and a non-harassment order at the same time. (6) The damages which may be awarded in an action of harassment include damages for any anxiety caused by the harassment and any financial loss resulting from it.

208

Appendix II (7) Without prejudice to any right to seek review of any interlocutor, a person against whom a non-harassment order has been made, or the person for whose protection the order was made, may apply to the court by which the order was made for revocation of or a variation of the order and, on any such application, the court may revoke the order or vary it in such manner as it considers appropriate. (8) In section 10(1) of the Damages (Scotland) Act 1976 (interpretation), in the definition of ‘personal injuries’, after ‘to reputation’ there is inserted, ‘or injury resulting from harassment actionable under section 8 of the Protection from Harassment Act 1997’.

Breach of non-harassment order 9.–(1) Any person who is found to be in breach of a non-harassment order made under section 8 is guilty of an offence and liable– (a) on conviction on indictment, to imprisonment for a term not exceeding five years or to a fine, or to both such imprisonment and such fine, and (b) on summary conviction, to imprisonment for a period not exceeding six months or to a fine not exceeding the statutory maximum, or to both such imprisonment and such fine. (2) A breach of a non-harassment order shall not be punishable other than in accordance with subsection (1).

Limitation 10.–(1) After section 18A of the Prescription and Limitation (Scotland) Act 1973 there is inserted the following section– ‘Actions of harassment. 18B.–(1) This section applies to actions of harassment (within the meaning of section 8 of the Protection from Harassment Act 1997) which include a claim for damages. (2) Subject to subsection (3) below and to section 19A of this Act, no action to which this section applies shall be brought unless it is commenced within a period of 3 years after– (a) the date on which the alleged harassment ceased, or (b) the date, (if later than the date mentioned in paragraph (a) above) on which the pursuer in the action became, or on which, in the opinion of the court, it would have been reasonably practicable for him in all the circumstances to have become, aware, that the defender was a person responsible for the alleged harassment or the employer or principal of such a person.

209

Domestic Violence (3) In the computation of the period specified in subsection (2) above there shall be disregarded any time during which the person who is alleged to have suffered the harassment was under legal disability by reason of nonage or unsoundness of mind.’. (2) In subsection (1) of section 19A of that Act (power of court to override time-limits), for ‘section 17 or section 18 and section 1 8A’ there is substituted ‘section 17, 18, 18A or 18B’.

Non-harassment order following criminal offence 11. After section 234 of the Criminal Procedure (Scotland) Act 1995 there is inserted the following section–

‘Non-harassment orders Non-harassment orders 234A.–(1) Where a person is convicted of an offence involving harassment of a person (‘the victim’), the prosecutor may apply to the court to make a non-harassment order against the offender requiring him to refrain from such conduct in relation to the victim as may be specified in the order for such period (which includes an indeterminate period) as may be so specified, in addition to any other disposal which may be made in relation to the offence. (2) On an application under subsection (1) above the court may, if it is satisfied on a balance of probabilities that it is appropriate to do so in order to protect the victim from further harassment, make a non-harassment order. (3) A non-harassment order made by a criminal court shall be taken to be a sentence for the purposes of any appeal and, for the purposes of this subsection ‘order’ includes any variation or revocation of such an order made under subsection (6) below. (4) Any person who is found to be in breach of a non-harassment order shall be guilty of an offence and liable– (a) on conviction on indictment, to imprisonment for a term not exceeding 5 years or to a fine, or to both such imprisonment and such fine, and (b) on summary conviction, to imprisonment for a period not exceeding 6 months or to a fine not exceeding the statutory maximum, or to both such imprisonment and such fine. (5) The Lord Advocate, in solemn proceedings, and the prosecutor, in summary proceedings, may appeal to the High Court against any decision by a court to refuse an application under subsection

210

Appendix II (1) above, and on any such appeal the High Court may make such order as it considers appropriate. (6) The person against whom a non-harassment order is made, or the prosecutor at whose instance the order is made, may apply to the court which made the order for its revocation or variation and, in relation to any such application the court concerned may, if it is satisfied on a balance of probabilities that it is appropriate to do so, revoke the order or vary it in such manner as it thinks fit but not so as to increase the period for which the order is to run. (7) For the purposes of this section ‘harassment’ shall be construed in accordance with section 8 of the Protection from Harassment Act 1997.’.

General National security, etc 12.–(1) If the Secretary of State certifies that in his opinion anything done by a specified person on a specified occasion related to– (a) national security, (b) the economic well-being of the United Kingdom, or (c) the prevention or detection of serious crime, and was done on behalf of the Crown, the certificate is conclusive evidence that this Act does not apply to any conduct of that person on that occasion. (2) In subsection (1), ‘specified’ means specified in the certificate in question. (3) A document purporting to be a certificate under subsection (1) is to be received in evidence and, unless the contrary is proved, be treated as being such a certificate.

Corresponding provision for Northern Ireland 13. An Order in Council made under paragraph l(l)(b) of Schedule 1 to the Northern Ireland Act 1974 which contains a statement that it is made only for purposes corresponding to those of sections 1 to 7 and 12 of this Act– (a) shall not be subject to sub-paragraphs (4) and (5) of paragraph 1 of that Schedule (affirmative resolution of both Houses of Parliament), but (b) shall be subject to annulment in pursuance of a resolution of either House of Parliament.

211

Domestic Violence

Extent 14.–(1) Sections 1 to 7 extend to England and Wales only. (2) Sections 8 to 11 extend to Scotland only. (3) This Act (except section 13) does not extend to Northern Ireland.

Commencement 15.–(1) Sections 1, 2, 4, 5 and 7 to 12 are to come into force on such day as the Secretary of State may by order made by statutory instrument appoint. (2) Sections 3 and 6 are to come into force on such day as the Lord Chancellor may by order made by statutory instrument appoint. (3) Different days may be appointed under this section for different purposes.

Short title 16. This Act may be cited as the Protection from Harassment Act 1997.

212

INDEX

Adoption,

52, 56

Alcohol, domestic violence and, Arrest policies on, powers of,

Assault,

90–91, 102

Associated persons, definition of,

52

Association of Police Officers, Australia, domestic violence in, Bail, Battered woman’s syndrome,

124 5 144–46

Balance of harm test,

61–62, 65 19, 22–23, 173–74

Battery, Black and ethnic minorities, Breach of the peace,

91 109 102, 104

British Crime Survey (1992),

4, 139

Burden and means of proof,

146–47

Canada, domestic violence in,

2, 18, 47, 128

Children adoption of, domestic violence and, civil protection from,

52, 56 21–22, 29–30 37–38, 43, 55, 56–57, 60–61, 68–71, 75 evidence of, 149–50 indecent photographs of, 103

Chiswick Family Rescue, Civil protection against domestic violence adequacy of,

33–48 146, 147 45–47, 73–75, 125–27 remedies, 41–45, 58–73, 100 since 1997, 49–86, 100 statutory applicants, 35–40, 50–58, 76–79

28

105, 109, 123–29 45–47, 73–75, 103–05, 123–29 83 75

re-abuse and, warrant for,

before 1997, burden of proof in, enforcement of orders,

148

47–48, 79–86

Class, domestic violence and,

28–29

Code for Crown Prosecutors, 137–38, 144 Code of Guidance on Homelessness,

79–80

Cohabitation See Unmarried partners Common assault,

91

Common battery,

91

Competence and compellability of witnesses, Compliance, Consensual violence,

147–50 92 91–95

Corroboration,

161

Council of Circuit Judges,

141

Court orders See Injunctions and orders Criminal law See also Police; Prosecution burden of proof in, 146–47 domestic violence and, 77, 78, 89–101 harassment, molestation and stalking, 96–101 non-physical violence, 95–96 physical violence, 90–95 sexual offences, 101 Crown Prosecution Service, 137–44, 147–48 attitudes of, 138–41 offences charged, 143–44 victims of violence and, 141–43 Custodial sentences,

213

162

Domestic Violence Cycles of violence theory,

24, 29–30

Defences for ‘victims’ who kill violent men,

153–75

Diminished responsibility,

174–75

Disorderly behaviour,

policing policies,

prosecution of, bail, Crown Prosecution Service, defences for ‘victims’, evidence, sentencing, psychological abuse,

97–98

Divorce, civil protection from violence after, 37, 52, 63–64, 66 Domestic Proceedings and Magistrates’ Courts Act 1978, civil remedies under,

3, 37–38, 39, 50, 56 44–45, 46, 47, 74

137–44 153–75 146–62 162–63 16–18, 42, 95–101 25–32

reasons for, cycles of violence theory, 24, 29–30, 173 feminist explanations, 30–32 pathological, 26–27 social, 27–29 reasons for women remaining in violent relationships, 20–25 sexual, 12–15, 101, 102, 114, 122 threatened, 15–16, 74, 113

Domestic violence children and, civil protection of,

21–22, 29–30 37–38, 43, 55, 56–57, 60–61, 68–71, 75 civil protection against adequacy of, 47–48, 79–86 before 1997, 33–48 enforcement of orders, 45–47, 73–75, 125–27 re-abuse and, 81–86 remedies, 41–45, 58–73, 78–79, 100 since 1997, 49–86, 100 statutory applicants, 35–40, 50–58, 76–79 criminal law and, 77, 78, 89–101 definition of, 89–90, 113–14 emotional consequences of, 18–20 extent of, 1–5 history of, 2–3 nature of, 7–20 physical, 7–12, 90–95 policing of, 58, 83, 87–135 domestic violence officers and units, 109, 110, 115, 122, 132–35 police attitudes, 116–21 police powers, 45–47, 73–75, 101–05 police responses, 114–23 police training, 129–32

88–89, 105, 106–14, 115, 116, 123–35 137–75 144–46

Domestic Violence and Matrimonial Proceedings Act 1976, 3, 35–37, 39–40, 41, 51, 56, 60 civil remedies under, 41–44, 46–47, 67, 74 Domestic Violence Officers and Units (DVOs and DVUs), 109, 110, 115, 122, 132–35, 151 Drunkenness, domestic violence and,

28

Duress,

92

Emergency protection orders (EPOs),

68–71, 75

Emotional consequences of domestic violence, Employment, Engaged couples, civil protection from domestic violence for, Ethnic minorities,

214

18–20 22 54, 57 109

Index European Convention on Human Rights,

93

Evidence, burden and means of proof, competence and compellability of witnesses, out-of-court statements, preparation for trial, process of giving of, reluctant testimony, suspect, Ex parte orders, Exclusion orders,

remedies under,

text of,

147–50 153–61 151 150–51 151–53 161–62

71–73, 74–75 33–35, 37, 41–44, 69, 70–71

Family Homes and Domestic Violence Bill (1995), Family Law Act 1996,

146–62 146–47

19–20, 24, 95, 154–56

Feminist explanations of domestic violence,

30–32

Fraud,

92

Harassment criminal law and, definition of, tort of,

96–101 77–78 33–35, 78

Hearsay evidence,

152, 153

Home Affairs Committee, 88, 89, 108–09, 138, 141, 144, 145, 147–48, 150 Home Office Circular 60/90,

88–89, 106–08, 115, 116, 123, 124, 126, 130, 130–35

Home Office Research Studies,

33–35, 37, 41–44, 69, 70–71 occupation orders, 49, 50–56, 58–67, 73, 80–86 ouster orders, 44–45 police powers of entry, 101–03 restraining orders, 78 tenancy and mortgagees, 42

Homosexual relationships domestic violence in, civil protection from, sado-masochism and, Hostile witnesses, House of Commons Select Committee on Violence in Marriage,

49

1, 33, 49–58, 77, 116 58–76, 79, 80, 85, 100, 103, 104, 105 177–202

Fear,

Homes and property exclusion orders,

108, 109–10

215

1 37, 53 93–94 152–53

3, 35, 46, 106, 124

Imprisonment,

162

Imputations,

147

Indecent photographs of children,

103

Injunctions and orders adequacy of, emergency protection orders (EPOs), enforcement of,

79–86

68–71, 75 45–47, 73–75, 125–27 ex parte orders, 71–73, 74–75 exclusion orders, 33–35, 37, 41–44, 69, 70–71 interim care orders, 69–70, 75 non-molestation orders, 33, 36, 41–44, 49, 50, 56–58, 67–68, 73, 80–86, 96 occupation orders, 49, 50–56, 58–67, 73, 80–86 ouster orders, 44–45 personal protection orders, 44–45 restraining orders, 78 third party applications for, 58 undertakings, 44, 76

Interim care orders, Islington Crime Survey,

69–70, 75 9

Domestic Violence Jealousy, Law Commission,

17–18 1–2, 40, 43, 50, 51, 52–53, 54, 58, 61, 68, 69, 72, 116

Learned helplessness theory, Leicestershire study, civil remedies in, policing in,

22–23, 173 3–4 38–40, 44, 47 28, 90, 110–14, 117–35, 140, 145, 151

types of domestic violence in,

10, 15–16

Lesbian relationships domestic violence in, civil protection from, London Policing Study,

1 37, 53 106, 114, 126

London Strategic Policy Unit, Mandatory arrest policies,

105, 109, 128–29

Marriage breakdown of See Divorce evidence of intention to marry, giving of evidence and, non-recognised, rape within, violence within See Domestic violence

54 148–49 56, 57 13, 14, 101

Mental illness, domestic violence and, Molestation criminal law and, tort of,

38, 125

26–27 96–101 33–35, 41–44

Mortgages, court orders and,

42

Murder domestic violence and, 4–5, 7, 18, 24 of violent men by women, 8, 25 defences in, 163–75 National Crime Victimisation Survey (US),

2

Non-molestation orders,

33, 36, 41–44, 49, 50, 56–58, 67–68, 73, 80–86, 96

Occupation orders,

49, 50–56, 58–67, 73, 80–86

Orders See Injunctions and orders Ouster orders, Out-of-court statements,

44–45 152, 153–61

Pathological factors in domestic violence,

26–27

Personal protection orders,

44–45

Physical illness, domestic violence and, Physical violence, criminal law and,

20 7–12 90–95

Police, 58, 83, 87–135 arrest policies, 105, 109, 123–29 attitudes of, 116–21 domestic violence officers and units, 109, 110, 115, 122, 132–35, 151 policies on domestic violence, 106–14 Home Affairs Committee Report, 88, 89, 108–09 Home Office Circular 60/90, 88–89, 106–08, 115, 116, 123, 124, 126, 130–35 Home Office Research Studies, 108, 109–10 Leicestershire study, 23, 90, 110–14, 117–35, 140, 145, 151 powers of arrest, 45–47, 73–75, 103–05, 123–29 entry to property, 101–03 records of, 115–16, 123 responses to domestic violence, 114–23 training of, 129–32 Pornography, child, 216

103

Index Previous convictions,

147

Prison,

162

Proof, burden of,

146–47

Property See Homes and property 137–75 144–46 137–44 137–44 153–75 146–62 162–63 139–42

Protection from Harassment Act 1997, 35, 76–79, 84–85, 98–100, 103 text of, 203–212 16–18, 42 95–101

Psychological consequences of domestic violence,

18–20

Psychopathy, domestic violence and,

26–27

Rape, within marriage,

92, 101 13, 14, 101

Rape Crisis Centres,

14

Reasonableness test,

164–65, 170–72

Reluctant testimony,

151–53

Restraining orders,

Social class, domestic violence and,

28–29

Social factors in domestic violence,

27–29

Southall Black Sisters,

19, 138

Stalking, criminal law and,

96–101

Statements,

152, 153–61

Stereotypes,

28–29

Submission,

92

Suicide,

161–62

78

Tattooing,

95–96

Television links,

150

Tenancy, court orders and,

42

Third party applications for injunctions and orders,

58

Threats of violence,

Undertakings,

Scottish Code of Guidance on Homelessness,

79–80

domestic violence in,

150

Select Committee on Violence in Marriage,

3, 35, 46, 106, 124

Unlawful force, Unmarried partners, civil protection from domestic violence and,

164–65 19 12–15, 114, 122 217

15–16, 74, 113

Tort of harassment, 33–35, 78 of molestation, 33–35, 41–44 unmarried partners and, 33–35

United States of America civil remedies in,

Screening of witnesses,

94

Telephone calls,

93–94

Sexual violence and sexual offences,

19, 20

Suspect evidence,

Sado-masochism,

Self-esteem,

147

165–74

Psychological abuse, criminal law and,

Self-defence,

93, 101 161 101 102

Similar fact rule,

Prosecution, bail, Crown Prosecution Service, decision on, defences for ‘victims’, evidence, sentencing, withdrawal from,

Provocation,

consenting to, corroboration of, criminal law and, police powers and,

Victim Liaison Officers,

44, 76 11, 15, 47, 79, 80–84, 123, 128 2, 4, 14, 15 91–95

33, 35–36, 42, 51, 52–55, 64–65, 66–67 123, 133, 140

Domestic Violence Victim support groups,

151

Victim’s Charter,

141

Victims who kill violent men, defences for, Warrant for arrest, Witnesses competence and compellability of,

evidence of See Evidence hostile,

153–75

Women, violence towards See Domestic violence

75

Women’s Aid Federation,

147–50

218

152–53

33