Criminal mistake over injunctions
Harriet Wistrich, a criminal lawyer and founder of Justice for Women, is quoted in your feature, ‘A National Emergency’ (27 September). She castigates police for failing to prevent Raneem Oudeh’s killing by their slow response and for not using ‘the police power of arrest’ when her non-molestation order was broken multiple times by her violent ex-partner.
In fact, far from strengthening injunctions, making enforcement of breach a matter for the criminal justice system has rendered them virtually useless.
As a former practising family law solicitor, I obtained many injunctions for those wishing to leave abusers safely and permanently – when most killings occur. I did so under tough, evidence-based legislation in part IV of the Family Law Act 1996. This was created by a Law Commission team under future Supreme Court president Lady Hale, as her 2021 memoir Spiderwoman reveals.
This legislation replaced the 1976 domestic violence act. That act introduced non-molestation orders after residents from Erin Pizzey’s Chiswick refuge told MPs criminal proceedings put them at more risk and resolved none of the attendant issues that kept them tied to former partners. Some returned, fatally, to their abusers.
In a straightforward procedure, a statement could be taken in my office, with an ex parte application before a judge the next day. Family judges were mandated to attach powers of arrest to injunctions if an applicant’s statement contained an allegation of a threat of, or actual, violence. A power of arrest was a judge-signed order, directed at police local to the applicant. It ordered them to immediately find, arrest and return a respondent to court within 24 hours, should the applicant injunction-holder report a breach. There, respondents would face up to two years’ committal for contempt, namely defying a judge’s order, if breach was admitted or shown.
The standard of proof was the criminal one but where, as is frequent, there is no corroborative evidence, a court may prefer one party’s version of events to another’s. It is more able to do this when events are so fresh. Such immediate consequences brought a high degree of compliance, creating essential calm to resolve related issues, such as the parties’ finances, suitable long-term accommodation and safe child arrangements, avoiding post-separation abuse. In its simplicity, speed and effectiveness, combined with a legal aid certificate providing continuous cover from initial instructions to any first appearance by a respondent on committal proceedings, applicants had wall-to-wall protection.
However, in an apparent effort to show it was ‘serious’ about tackling abuse, the government decided to make enforcement of injunctions a matter for the criminal courts. The then solicitor general, Harriet Harman, assured parliament it would send perpetrators ‘a strong message’. However, the Domestic Violence (Crime and Victims) Act 2003, implemented in July 2007, drove a juggernaut through the part IV legislation by preventing judges from attaching powers of arrest and making breach a criminal, ‘arrestable’ offence. The term ‘arrestable offence’ was and remains hugely misleading to almost everyone except practitioners experienced in this area. It is simply one with a maximum custodial sentence of five years, for which police may arrest without a warrant, on suspicion such an offence has occurred. It does not mean a charge will follow, still less proceedings.
Now, on breach, the injunction lapses, as does legal aid. The former applicant, more vulnerable than ever, becomes a complainant in criminal proceedings if there is enough evidence and if they can face these – or see the point. The standard sentence for breach of a non-molestation order is a community service order that may be served at home with the victim. As the purpose of injunctions is to provide applicants with the justice system’s strongest protection when leaving an abuser, the cruel absurdity of the present system is clear.
Domestic abuse protection orders, commissioned from Women’s Aid by prime minister Theresa May in 2016 as part of her ‘legacy’, are almost eight years in the making and more complicated than the little-used domestic violence protection orders they are to replace. Like other so-called ‘protective orders’, breach will be a criminal offence, deterring take-up.
After a short pilot (likely to be ‘talked up’), they will be rolled out nationwide. Lady Hale’s legislation (which she pointedly remarks is ‘still there’, albeit bowdlerised) will be repealed. In the words of the minister for safeguarding and violence against women and girls Jess Phillips, speaking at a Labour conference fringe event I attended last month: ‘We cannot have two systems.’
Should this be allowed to happen, the current ramshackle mess cannot but continue. There will be more justice for women super-complaints, and familiar calls for ‘more training’ for judges and police, and ‘better communication’ between agencies, as vulnerable women die at the hands of intimate partners or take their own lives, for lack of a safe way out. In addition, there will also be an exponential rise in numbers of children going into care as family situations deteriorate.
Jan Williams
Campaign for Effective Domestic Abuse Laws, former practising solicitor and member of the Law Society children and family panels, Knaresborough, North Yorks
Up-to-date probate
Your recent article, ‘Probate delays reduced but families still reeling’ (20 September), rightly highlighted the gaps that still exist within the probate service.
Undoubtedly, staff resourcing remains an issue, greater numbers are needed, and we have mooted that secondment or temporary contracting of experienced probate practitioners could add immediate capacity.
However, staffing is just one aspect. It is beyond time for a root-and-branch review of the entire probate process to ensure better case management and the efficient adoption of more contemporary processes and digital tools in the interests of beneficiaries.
More joined-up thinking is required between legal and financial services. For example, the recent guidance by the Joint Money Laundering Steering Group (JMLSG) and its intersection with the estate administration banking protocol has inadvertently complicated the process – something the Council for Licensed Conveyancers is asking JMLSG and the Law Society to address.
Regulation of will-writing and the enforcement of standards that would flow from that could also shorten the time taken to execute the probate process.
All of this points to an industry-wide working group, similar to the Home Buying and Selling Group, being essential to fixing an important part of the nation’s infrastructure. With a small amount of government support, the sector could deliver significant improvements for citizens and all the professionals involved in the process.
Stephen Ward
Director of strategy and external relations, Council for Licensed Conveyancers
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