While heavily weighted to ensure that offenders pay for their crimes, Claire Bessant asks whether the Domestic Violence, Crime and Victims Act 2004 will balance the rights of victims and offenders
The Domestic Violence, Crime and Victims Bill published in December 2003 was heralded by Home Office minister Baroness Scotland as 'the most radical overhaul of domestic violence legislation in 30 years'. However, it soon became apparent that the Bill was as much a general crime Bill, as a Bill responding to the concerns of Safety and Justice: The Government's Proposals on Domestic Violence (2003).
The Domestic Violence, Crime and Victims Act 2004 (the Act) does not define domestic violence and the many different definitions in existence cause continuing difficulties in determining the extent of, and how best to respond to, domestic violence.
However, the Act takes some key steps to tackle domestic violence, notably extending the protection of the Family Law Act 1996. Occupation orders will be available to same-sex cohabitants whether or not they are homeowners. The definition of 'associated persons' will encompass parties who have, or have had, an intimate personal relationship with each other, which is or was of significant duration. Long-term girlfriends and boyfriends who have not cohabited can benefit from non-molestation orders.
The Act also envisages increased use of the criminal jurisdiction in addressing domestic violence. Any person who, without reasonable excuse, contravenes a non-molestation order will be guilty of a criminal offence (see section 42A of the Family Law Act 1996). The five-year maximum penalty for conviction on indictment clearly exceeds the maximum two-year sentence for contempt. While much may depend on the anticipated Sentencing Guidelines Council's guidelines on sentencing in domestic violence cases, it is hoped that this higher penalty may deter repeat breaches.
The section 42A offence is an arrestable one. Amendments to schedule 1A of the Police and Criminal Evidence Act 1984 also make common assault an arrestable offence. If a non-molestation order has been made and breached or if there is evidence of assault but no non-molestation order, the police can remove alleged perpetrators and prevent their immediate return. These clear improvements to current police arrest powers should afford greater short-term protection to victims.
Criminal courts are also given greater powers to prevent harassment. A restraining order may be made under section 5 of the Protection from Harassment Act 1997 (as amended by the Act), when a defendant is convicted of any offence. A restraining order may be made under the new section 5A even when a defendant is acquitted of an offence (again it need not be an offence of violence or harassment), provided that the court considers it necessary to protect a person from harassment by the defendant.
These moves away from the family jurisdiction to the criminal jurisdiction do offer some advantages, but they equally raise concerns. On breach of a non-molestation order, the Act permits a criminal court to sentence both for breach of the non-molestation order and for assaults, and to make a further restraining order. Victims need not issue their own application for respondents' committal to prison for breach of a non-molestation order.
However, the family court's ability to attach a power of arrest to a non-molestation order is removed (although breach of an occupation order still falls within the family jurisdiction). Since victims have only limited ability to prevent the respondent's prosecution for breach of a non-molestation order, the new provisions may potentially deter victims from seeking such orders.
Lord Justice Thorpe suggested in Lomas v Parle [2004] 1 WLR 1642, that the Bill would provide an opportunity to consider the possibility of an integrated court. The Act is silent on such matters. In the absence of an integrated court, aware of all relevant orders and able to receive representations from the victim and the defendant (both of whom can obtain appropriate public funding), the situation remains far from perfect.
The Act's failure to recognise that domestic violence victims may not welcome greater use of the criminal courts is perhaps surprising given the focus in part 3 of the Act on support for victims of criminal and anti-social behaviour. However, parts 1 and 2 of the Act also clearly emphasise the government's desire to amend the criminal law, ensuring punishment of offenders.
Particularly contentious is the new homicide offence - causing or allowing the death of a child or vulnerable adult. Section 5 (in force from 21 March 2005) applies when a member of the same household as the deceased, who has had frequent contact with the deceased, caused the victim's death or was aware, or ought to have been aware, that the deceased was at risk but took no reasonable steps to prevent the death. Victims of domestic violence may themselves be caught by the offence, which is drafted widely, and attracts a maximum penalty of 14 years' imprisonment.
Of significant concern are amendments to evidence and procedure, which apply where the offence is charged jointly with murder or manslaughter (see section 6). These sections are clearly designed not only to ensure a conviction takes place, but also to encourage 'less guilty' defendants to divulge who caused the death, to obtain a conviction for murder or manslaughter.
The Act also attacks jury trial. Sections 17 to 20 permit certain counts within an indictment to be tried without a jury provided:
The judge will decide whether trial without jury is in the interests of justice, and whether jury trial is impracticable. The government believes article 6 of the European Convention on Human Rights is not breached.
Sections 22 to 26 of the Act (in force from 31 March 2005) update the law relating to mentally disordered offenders. Again jury trial is affected, by removal of the question of fitness to plead from the jury.
The Criminal Procedure (Insanity) Act 1964 is also amended, enabling the court, when dealing with defendants found under a disability or not guilty by reason of insanity, to make hospital orders under the Mental Health Act 1983 and supervision orders introduced by the Act. Part 3 extends rights to make representations and receive information already afforded to victims of serious sexual or violent offences when the offender is imprisoned, to cases where the offender is subject to disposal under the Mental Health Act 1983.
There is a range of other criminal provisions within the Act: amendments remedying defects in the Criminal Justice Act 2003; greater enforcement powers provided for the purpose of executing magistrates' court warrants; surcharges and powers for the Criminal Injuries Compensation Authority to recover money from offenders.
Many of these provisions focus on ensuring offenders pay for their crimes. Overall, this Act, at first glance, is more concerned with punishment of offenders than protection of domestic violence victims. Undoubtedly, it is right that offenders are brought to justice and that they are appropriately sentenced for their crimes. While we do not have the Domestic Violence Act many hoped for, it is hoped that this Act will ultimately achieve the correct balance between the rights of victims and offenders.
Claire Bessant is a solicitor and principal lecturer in the School of Law at Northumbria University. She is the author of Domestic Violence, Crime and Victims Act 2004, published in March by Law Society Publishing, which can be ordered direct from Marston Book Services, tel: 01235 465 656
No comments yet