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Women's Aid briefing: Domestic Violence Crime and Victims Act 2004 17.07.07


The Domestic Violence, Crime and Victims Bill received Royal Assent in November 2004 to become the Domestic Violence Crime and Victims Act (DVCVA) 2004. The Act addresses proposals set out in Safety and Justice, the Government Consultation Paper on domestic violence(1) .

This briefing is an update of our previous briefing of November 2005.  It includes information on the new sections of the act which were implemented on 1st July 2007, as well as summarising the provisions contained within the Act as a whole. 

We also assess the extent to which domestic violence legislation - including the sections of the DVCVA 2004 which have been implemented recently – is likely to increase the safety of those experiencing domestic violence. View an article on the advantages and disadvantages of these changes in the act.
 
The Domestic Violence, Crime and Victims Act 2004 has been cited as the first piece of legislation to address domestic violence in nearly 30 years.  However, many other current pieces of legislation offer remedies for those experiencing domestic violence: see below, Part II.

 
Part I: Provisions in the Domestic Violence Crime and Victims' Act 2004 

 
The Act applies to England, Wales and Northern Ireland. Most of the domestic violence related provisions have been implemented piecemeal throughout 2006 and 2007, the most recent on July 1st 2007.  No date has been set for the remaining provisions (2) to be implemented.
 
A. Domestic violence-related provisions which have been implemented
 
Section 1. Breach of ‘non molestation order’ under Family Law Act 1996 (FLA) to become a criminal offence, with a maximum penalty of 5 years.

 
Civil injunctions (under Part IV of the Family Law Act 1996) offer temporary protection through non-molestation orders or occupation orders.  However, breach of injunction by the perpetrator is often not effectively enforced.  This new provision under section 1 of the DVCVA 2004 is intended to address this issue.  Until now a breach has only been punishable as a civil contempt of court, and as one survivor pointed out during the consultation, without proper backup and enforcement against any breaches, an injunction  “is no more use than waving a till receipt from ASDA”.

From 1st July 2007, the implementation of section 1 of the Domestic Violence Crime and Victims Act 2004 inserted a new section (42A) into the Family Law Act 1996, thereby making a breach of a non-molestation order a criminal offence, which will be dealt with by the criminal courts  - rather than by the Family Proceedings (magistrates’) court or the county (family) court where the original order was made.   This procedure will replace that of attaching a power of arrest to such an order.
 
This does not affect non-molestation orders made before July 1st 2007. Breaches of non-molestation orders issued before July 1st will continue to be treated as a civil contempt of court. As before, the judge may use a sanction, or may decide to vary the order.  In the latter case, it will then be subject to the new rules. 

When a non-molestation order  - either made after July 1st, or an earlier order which has been varied - is breached from now on, the breach will be treated like any other criminal offence, meaning that the perpetrator may be arrested, charged and brought before the magistrates’ court. The victim, who was the applicant in the original civil process, becomes the key witness in a criminal case. As in other criminal cases, the decision whether or not to prosecute will be made by the Crown Prosecution Service (CPS) in conjunction with the police, where there is sufficient evidence and it is in the public interest to do so. The maximum custodial sentence for breaches dealt with as a criminal offence is 5 years.

This process means that the woman becomes a witness in a criminal case rather than an applicant – and that potentially has both advantages and disadvantages.

The advantages of this change are that :

  • it relieves the woman herself of the burden of taking action
  • it should provide a stronger sanction – particularly for those cases in which (in the past) a power of arrest has not been attached
  • the woman is not liable for any costs of a prosecution

The disadvantages are that :

  • it takes the process out of the woman’s hands, and the CPS will be able to pursue proceedings against her wishes – so it may be disempowering, and have consequences which she is powerless to stop
  • she may be unhappy about criminalising her (ex-)partner – who may, for example, be the father of her children. This may be a particular concern for women from Black and Minority Ethnic communities, who are often particularly reluctant to seek help from the police, because of the fear of racist or discriminatory treatment.
  • criminal cases are normally open to the public and the press – in contrast to applications made in the family court, which are held in chambers (i.e. only people involved in the case are allowed in the room).  Although there is a provision for reporting restrictions to protect the identity of victims/witnesses in criminal courts (3)  (both magistrates’ and Crown courts), this has up to now been used only rarely in domestic violence cases.

If the woman is unhappy with instigating a criminal process, she should still be given the option to pursue the breach through the civil courts, using the standard processes available prior to July 1st 2007.  In this case, she should apply to the court that made the original order.  It is then up to the judge or magistrate to decide whether there is sufficient evidence to support her case (i.e. that the order has been breached) and then decide on a penalty. Family Proceedings Courts can hand down custodial sentences of up to two months, and county courts up to two years.

The woman should in principle be able to pursue this route even if the police are called out to an incident where a non-molestation order has been breached.  Alternatively, if she does not want to involve the police – perhaps from a wish to avoid to the criminal prosecution process (4)  - she may apply separately for a warrant of arrest, or have the matter dealt with in the civil court as outlined above.  However, now that criminal prosecution is the recommended response for breach of injunction, it is not clear whether  legal aid would continue to be available for her to pursue committal proceedings in the county court(5). 

Note that breach of an occupation order, in cases of domestic violence, is not a criminal offence, therefore any such breach will still have to be taken back to the family court, and enforced as contempt of court, as previously.  Where an offender breaches both an exclusion order and a non-molestation order  - a relatively common situation - the woman will be faced with appearance at two separate courts on two separate occasions (except in those very few areas where there is one integrated Domestic Violence Court).  This means additional disruption, and possibly further expense due to childcare provision and/or loss of earnings.

There could also be potential delays from dealing with matters in the criminal court.  Within the civil courts, perpetrators who have been arrested under a power of arrest must be brought back before the court within 24 hours. The breach can then be dealt with immediately, or adjourned for up to 14 days (unless time is extended by court). Within the criminal process, defendants may be kept on remand for longer periods of time, which could be more distressing for the victims. Cases should be listed and dealt with in a timely fashion, as happens at present.  The situation must be monitored to ensure that cases are not extensively delayed, to the detriment of the victim.

Women’s Aid is concerned that there seems to be a disturbing lack of awareness about the implementation of Section 1 of the Domestic Violence Crime and Victims Act 2004. Although  representatives of relevant agencies – including the judiciary, court staff, the Association of Chief Police Officers (ACPO), the CPS and Judicial Studies Board – attended a ”walk through” of the new procedures, provided by Her Majesty’s Courts Service (HMCS), and some training has been rolled out, awareness seems very patchy, and training has so far been limited.  Our concern is that women will receive inconsistent responses depending on where they live, and this may jeopardise their safety. It remains to be seen whether this new provision will increase the effectiveness of enforcement procedures in the case of non-molestation orders.


Section 4: Extending availability of injunctions to same sex couples, and to those who have never cohabited.

 
Part IV of the Family Law Act was extended to include same sex couples on and after 5th December 2005 (following the implementation of the Civil Partnership Act 2004) and – on July 1st 2007 – also to those who, while not living together, have or have had “in an intimate relationship of significant duration”.  Both these changes are to be welcomed.  However the definition of the term “an intimate relationship of significant duration” has yet to be decided by the courts, which will look at the individual circumstances in each case. Intimacy and duration should be the key elements in determining whether the relationship was such that could give rise to issues of power and control. It is not intended that this should include brief sexual encounters, for which the Protection from Harassment Act 1997 is available. 

Women’s Aid welcomes the extension of the FLA to non-cohabiting relationships, and to same sex relationships on the same basis as heterosexual relationships.  However, we are concerned that - for a time, at least - there may be some inconsistency in the courts’ interpretation of what constitutes “an intimate relationship of significant duration”.

With regard to occupation orders, Women’s Aid is also concerned that - as a result of the government’s subsequent amendment to Section 36 (6) (e) - the courts will still be required to have regard to the relationship and the level of commitment involved in it, when considering issuing an occupation order to a cohabitant with no existing right to occupy.

Section 5: Causing or allowing the death of a child or vulnerable adult: all members of a household, aged 16 and over, may be liable for the offence.  

 
This section created a new offence of causing or allowing the death of a child or vulnerable adult.  This puts joint responsibility for such a death onto all adults in a household, even in circumstances where one of them may have been intimidated into non-intervention. All members of the household (subject to age and mental capacity) will be liable for the offence (which has a maximum penalty of 14 years) where:

  • the death occurred as a result of unlawful conduct in anticipated circumstances
  • a member of the household caused the death; and 
  • the defendant was or should have been aware that the victim was at risk but either caused the death or did not take reasonable steps to prevent it. (It will not be necessary to show who caused the death and who failed to prevent it).

The victim in this new offence must have been at risk of serious physical harm, demonstrated by a history of violence towards them or another person in the household. Only those aged over 16 may be guilty of this offence, unless they are the parent of the victim.
 
Women’s Aid recommended that a victim of domestic violence should not be regarded as having caused or allowed a child or vulnerable adult to be killed unless there is clear evidence that this person actively contributed to the injury or killing of a child or a vulnerable adult.  We are concerned that a woman who has been intimidated, threatened or otherwise abused may have been unable to intervene when the perpetrator’s abuse of a child resulted in death; but despite this will be held equally guilty of a homicide she was powerless to prevent.

Section 32: Introducing a statutory Victims Code of Practice and Commissioner for Victims and Witnesses. This also allows victims to take their case to the Parliamentary Ombudsman if they feel the code has not been adhered to by the criminal justice agencies.

 
The final Code of Practice for Victims of Crime, which became law from April 2006, is now available. This Code of Practice sets minimum standards, which must be delivered consistently on a national basis by all criminal justice agencies.
 
Women’s Aid recommended that all domestic violence victims be given the status of vulnerable / intimidated witnesses in legislation, to have a right to ‘special measures’ for giving evidence unless they state they do not need them. We also recommended that statutory service providers and agencies referred to in the Code be required to:

  • prioritise domestic violence victims’ safety and its prevention in all they do, and comply with nationally agreed minimum standards for services and intervention in cases of domestic violence; 
  • refer victims of domestic violence routinely to local Women’s Aid organisations or other local domestic violence services.

Unfortunately the Victims’ Code of Practice falls short of these recommendations.

B. Domestic violence-related provisions which have not been implemented

The following domestic violence related provisions of the DVCVA 2004  have not yet been implemented, or have been superseded:

Section 9: Statutory multi-agency domestic homicide reviews when anyone over 16 years dies of violence, abuse or neglect from a relative, intimate partner or member of the same household. 

This means that relevant authorities (Chief Constables for England and Wales, local authorities, local probation boards, health authorities and Primary Care Trusts) will have a statutory duty to conduct domestic violence homicide reviews, having regard to Secretary of State Guidance, which will provide details as to leadership, format, timing and participants to take part in the reviews.
 
This section has not yet (July 2007) been implemented.  In June 2007, the Home Office published for consultation their draft guidance for conducting reviews, but a change of government ministers has led to some delay.

Women’s Aid recommended that child deaths and suicide in the context of domestic violence should also be scrutinised under these provisions, because child deaths are not always investigated if there has been no history of child protection concerns, and the impact/context of domestic violence is not scrutinised routinely, so valuable lessons are lost. This was rejected.
 
We await guidance for conducting murder reviews and recommend that this should include clarity on interpreting and implementing the review findings, and be accompanied by resources to enable voluntary sector agencies to participate and contribute valuable evidence.

Section 10: Common assault to become an arrestable offence.  


An arrestable offence is one that attracts a maximum of five years imprisonment or more. The aim is to strengthen and clarify police powers to arrest.  Section 10 of the DVCVA 2004 (which made common assault an arrestable offence) has now been superseded, following the implementation of the Serious Organised Crime and Police Act 2005, which – with a very few exceptions - makes all offences arrestable.

Section 12: Extending availability of restraining orders (under Protection from Harassment Act 1997) to any offence, on conviction; or on acquittal where the court considers it necessary to protect the victim from harassment, based on ‘balance of probability’ evidence.


This provision has not yet been implemented, apparently because it could have an impact on prison places, and currently prisons are over-crowded.  HMCS and the Home Office are discussing when implementation might be effected.

Part II: other previous and current legislation


There are a range of criminal offences, including sexual and physical assault, harassment and criminal damage, which can be used in cases of domestic violence. However most of these (with the exception of those prosecuted under the Protection from Harassment Act 1997) do not take into account the cumulative pattern of violent behaviour, including some offences which may not in themselves be criminal. There also remains a significant problem with consistent implementation, and the judiciary still fail to treat crimes of domestic violence seriously (6).

Housing legislation (Housing Act 1996 and Homelessness Act 2002) includes a legal duty to provide victims with advice and with temporary accommodation if there is actual or threatened homelessness due to domestic violence and to consider applications for permanent rehousing. However, practice differs drastically between local authorities in terms of compliance with the law and government guidance (7). 

Immigration legislation contradicts the Government’s commitment to protecting all victims of domestic violence. A woman with insecure immigration status is not entitled to public funds such as benefits or social housing. Although the Immigration Rule (8) means that someone within the two-year probationary period can apply for leave to remain in the UK if they have the required evidence of domestic violence (such as conviction, court order, medical evidence or statement from the police, social services or a women’s refuge or domestic violence support service), in practice women often cannot access a place of safety to seek support, because they have no means to meet rent or living expenses, thus preventing access to refuges and other housing options.  (Note that women who apply for indefinite leave to remain (IDR) in the UK under the domestic violence rule do not have to fulfil the new English language and “life in the UK” requirements which – since April 2007 – have been mandatory for all other applicants for IDR.)

The Children Act 1989 does not explicitly address domestic violence, although (since January 2005) the definition of harm in the Children Act has been expanded to include ‘impairment suffered from seeing or hearing the ill-treatment of another’ (9). Despite legislation and government guidance to family courts, there is still no legal requirement to ensure the safety of the child or resident non-abusive parent. 

Part III: a missed opportunity - additional measures needed 

Women’s Aid welcomes the aim of the Domestic Violence Crime and Victims Act 2004 to strengthen legal protection for victims of domestic violence. It includes important developments that will strengthen powers of the police and the courts to respond more effectively to domestic violence, and it gives a clear message that domestic violence is a crime and will not be tolerated. However we believe that the Act is a missed opportunity, and further legislative and policy changes are necessary to ensure increased protection and services for victims of domestic violence.

Government has supported the principle of domestic violence advocacy services and is currently rolling out advocacy services – or Independent Domestic Violence Advisors (IDVAs) – initially in the areas where there are specialist domestic violence courts, but now also more widely. We welcome this development.

Women’s Aid continues to ask for the following essential amendments to policy and practice:

  • Stronger measures to ensure safe child contact in cases of domestic violence
  • Measures to ensure equal access to protection, support and justice for abused women with no recourse to public funds
  • A national funding framework for local domestic violence advocacy and support services, and for children’s domestic violence services to help them recover from trauma, in every local area.

We also call for an ongoing commitment to fund the National Freephone 24-hour Domestic Violence Helpline (which Women’s Aid runs in partnership with Refuge), and for the provision locally of domestic violence advocacy and support services for women and children, in refuges and in the community, building on existing domestic violence services. 

These changes would significantly improve the legal framework, increase service provision and prioritise prevention of domestic violence in the short and longer term.  Legislation must also be backed up by: 

  • A national domestic violence strategy that is consistently applied across the UK. Currently Wales, Northern Ireland and Scotland either have or are in the process of developing a national domestic violence strategy. Women’s Aid is supporting Amnesty International UK’s campaign for a UK-wide violence against women strategy, that makes the connection between domestic violence and all forms of violence against women including rape and sexual assault, forced marriage, female genital mutilation, trafficking and prostitution
  • Mandatory domestic violence training for all those responsible for implementing the Act - including the police and CPS, the judiciary, housing departments and social landlords, and voluntary sector agencies.  All those involved in domestic violence cases should be required to undertake continuing professional development training in domestic violence annually
  • National minimum standards for domestic violence training and intervention that includes the implementation of routine questioning about domestic violence by all relevant agencies, and transparent decision making systems which are regularly reviewed to ensure safe outcomes.

Future actions?

The implementation of these new sections, and more generally the Domestic Violence Crime and Victims Act 2004 and the Family Law Act 1996 should be regularly monitored to see how they are working in practice. The experience of survivors should also be taken into account (by means of qualitative research) when evaluating and reviewing the outcome of the implementation of this legislation. Without such monitoring we cannot draw any firm conclusions about the benefits and shortcomings of the current legislative provisions for tackling domestic violence.

Ultimately any new domestic violence legislation will only be as effective as its implementation. Responsibility for implementing this Act does not only lie with the justice system. Both the Crime and Disorder Act 1998 and the homelessness legislation (the Housing Act 1996 and the Homelessness Act 2002) emphasise the importance of developing partnerships to provide support to victims of domestic violence and to punish perpetrators’ behaviour. Local authorities (community safety, housing, social care, and education departments in particular) and their partner agencies such as health trusts, drug and alcohol agencies and the voluntary sector, must also commit to local delivery, by working strategically to prioritise domestic violence, victim safety and offender accountability in everything they do. 

References

1. Home Office (June 2003) Safety and Justice.
2. Specifically section 12 on restraining orders and section 9 on domestic violence homicide reviews.
3. Section 46 of Youth Justice and Criminal Evidence Act 1999 [reports relating to adults witnesses] has been in effect since 7th October 2004.
4. 79% of victims of domestic violence do not report the abuse to the police, according to British Crime Survey figures.
5. That is, although this route will still be available in principle, it has not been made clear whether CLS funding will continue to be available for it.
6. HMCPSI (2004) Violence At Home A Joint Thematic Inspection of the Investigation and Prosecution of Cases Involving Domestic Violence. 
7. Levinson and Harwin (2001) ‘Accommodation Provision’ in Taylor-Brown What works in reducing domestic violence?
8. Para 289A – 289C, HC 395 (Immigration Rules).
9. Amended by Children and Adoption Act 2003

 
View other responses to the bill:

Southall Black Sisters response (PDF)

Women's National Commission response (PDF)