Timeline of the Domestic Abuse Bill so far,<\/p>\n\n\n\n
On 4th<\/sup> July I published a blog article<\/a> reviewing [1], [2] and [3], above. You can consult that article for the state of play at that time. (Whilst the article is lengthy, it is extremely brief compared to the collected volume of material in [1], [2] and [3]). <\/p>\n\n\n\n In this article I provide an\nupdate addressing the content of [4] and how the latest draft of the Bill, [5],\ndiffers from the first draft, [2], such changes being (in part) a response to\nthe Committee\u2019s views in [3]. It is of some importance to keep this under\nreview because the Committee\u2019s recommendations went far further than the\nprovisions of the first draft of the Bill in many areas. <\/p>\n\n\n\n This is still early days in the progress of this Bill. One can expect many Amendments to be tabled, not least those which MP Philip Davies has undertaken to make<\/a>. The latter relate to including parental alienation as a form of domestic abuse (DA), and including false allegations of DA as a form of DA in itself. These proposals are very much to be welcomed, though one would have to blessed with wildly unrealistic optimism to expect such Amendments to succeed. That, however, in no way diminishes the importance of tabling such Amendments. Mr Davies is not the only one to think these measures would be reasonable. Consultation responses to similar effect were made, though oddly they failed to be mentioned in the Government\u2019s report, [2].<\/p>\n\n\n\n I will not cover every clause & issue, which would be tedious and over-long even by my prolix standards. I will concentrate, in turn, on the following four key issues,<\/p>\n\n\n\n I\u2019ll not\ninclude the links again \u2013 they have been given in the numbered list above.<\/p>\n\n\n\n (1) The Definition of DA<\/strong><\/p>\n\n\n\n Clause 1:<\/strong> The (highly feminist) Committee argued for\nthe definition to be explicit that DA is a \u201cgendered crime\u201d. The Government\nresponse appears to be trying to appease the feminist lobby whilst also\nrejecting the suggestion. The Government writes, in their response to the\nCommittee,<\/p>\n\n\n\n \u201cWe fully recognise that domestic abuse is a gendered\ncrime, which disproportionally affects women. This is also emphasised in the\nVAWG Strategy refresh and the National Statement of Expectations, which sets\nout how local areas should ensure victims of violence and abuse against women\nand girls get the help they need. However, we believe that it is critical that\nthe statutory definition is gender-neutral so that all types of abuse are\nidentified and that no victim is inadvertently excluded from support or\nprotection<\/em>.\u201d<\/p>\n\n\n\n And so the Definition remains without the \u201cgendered\u201d flag as\nof the 2nd<\/sup> reading in October\u201919 (as indeed it should). <\/p>\n\n\n\n However, in clause 79 (old clause 57) the Government\nundertook to \u201crecognise the gendered nature of abuse through statutory\nguidance<\/em>\u201d and hence have committed in the revised Bill that, <\/p>\n\n\n\n \u201cAny guidance issued under this section (i.e., by the\nSecretary of State) must, so far as relevant, take account of the fact that the\nmajority of victims of domestic abuse in England and Wales are female<\/em>\u201d.<\/p>\n\n\n\n Whether this is enough to fulfil the feminist lobby\u2019s objectives\nI cannot determine. I can point to three objectives of the feminist lobby,<\/p>\n\n\n\n Para 1(3):<\/strong> The types of DA are listed (physical or sexual abuse, violent or threatening behaviour, controlling or coercive behaviour, economic abuse, and psychological, emotional or other abuse). In the latest draft Bill, the following has been added after this list, \u201cand it does not matter whether the behaviour consists of a single incident or a course of conduct<\/em>\u201d. Not only is this a huge weakening of the definition, but it is also in conflict with the Government\u2019s own definition of coercive or controlling behaviour<\/a>, namely that, \u201cCoercive or controlling behaviour does not relate to a single incident, it is a purposeful pattern of incidents that occur over time<\/em>\u201d. <\/p>\n\n\n\n At one time I was na\u00efve enough to believe that Bills were scrutinised carefully to avoid such conflicts. I know better now. Inconsistencies between Acts are a blessing to judges: they allow them to make up the law themselves. In the case of serious sexual or violent abuse, a single instance might reasonably be considered sufficient. But a single instance of psychological, emotional, economic or controlling \u201cabuse\u201d? One might regard this definition as an abuse of the concept of abuse.<\/p>\n\n\n\n (2) The Proposed DA Commissioner\u2019s Powers<\/strong><\/p>\n\n\n\n Clause 9 (DA Commissioner\u2019s Incidental Powers):<\/strong> There\nis no change to this clause between the earlier and latest drafts of the Bill, but\nit is worth noting this: \u201cThe Commissioner may do anything which the\nCommissioner considers will facilitate, or is incidental or conducive to, the\ncarrying out of the Commissioner\u2019s functions<\/em>.\u201d Couple this with the\nstipulation in Clause 14 that \u201cthe Commissioner may request a specified\npublic authority to co-operate with the Commissioner in any way that the Commissioner\nconsiders necessary for the purposes of the Commissioner\u2019s functions<\/em>\u201d and\nyou begin to understand the power which the Commissioner will wield. As the\nCommissioner will pay close attention to her*<\/sup> Advisory Panel, the\ninfluence of the latter will be considerable. This is worth emphasising in view\nof the undoubted effect that the \u201cgendered\u201d issue will have on the ideological\ncomposition of the Advisory Panel.<\/p>\n\n\n\n *<\/sup>Nicole Jacobs<\/a> has been announced as the Domestic Abuse Commissioner designate, working part time on a salary of up to \u00a3140,000.<\/p>\n\n\n\n Clause 12 (old clause 11) (Strategic Plans):<\/strong> This\nclause relates to strategic plans originating from the Commissioner. The latest\ndraft Bill contains substantial revisions from the earlier draft. The January\nBill required the Commissioner\u2019s strategic plan, or revisions thereto, to be approved\nby the Secretary of State, and the responsibility for laying the plan before\nParliament was to reside with the Secretary of State. In the July Bill no\napproval of the strategic plan by the Secretary of State is required, and the\nCommissioner has the responsibility to lay the plan before Parliament. The Commissioner\nneed only consult<\/em> the Secretary of State, which gives the Secretary of\nState the same status in the production of the plan as the members of the\nAdvisory Panel. This is a huge increase in the power of the Commissioner, in\nline with the Committee\u2019s wishes.<\/p>\n\n\n\n Clause 15 (old clause 14) (Duty to respond to\nCommissioner\u2019s recommendations)<\/strong>: One of the Committee\u2019s most significant recommendations\nwas that the Commissioner should exercise direct power over Government\ndepartments. In the first draft Bill, clause 14 related to the Commissioner\u2019s\npowers over local authorities, specifically that local authorities must prepare\ncomments on the Commissioner\u2019s reported recommendations, including an\nexplanation of what action has been taken to address the recommendations or an\nexplanation of why this has not been done. In the July draft Bill this\nrequirement to respond to the Commissioner\u2019s recommendations has been extended\nto include Government departments (any<\/em><\/strong> Government department). Hence,\nthere will be an obligation on all affected Ministers to respond to the\nCommissioner\u2019s recommendations. These changes go a long way to meeting the Committee\u2019s\nwishes in respect of enhancing the Commissioner\u2019s powers. Specifically, direct\naccountability to Parliament, providing the Commissioner with a degree of independence\nfrom Government, and a degree of supra-governmental powers in respect of being\nable to exercise leverage over Ministers. This is a remarkable power-grab by\nthe VAWG lobby.<\/p>\n\n\n\n (3) Criminal Sanctions via Protection Notices\/Orders: <\/strong>Various\nchanges have been made in respect of homeless perpetrators and appeals against protection\norders. The more substantive issues are unchanged but worth reviewing briefly. <\/p>\n\n\n\n A Domestic Abuse Protection Notice (DAPN) provides a facility for police to take immediate action when attending a domestic incident. It is effective from time of issue, i.e., immediately, and provides the police with the powers to eject the perceived perpetrator from the home. A DAPN lasts for 48 hours. Within 48 hours of the DAPN being served on the (alleged) perpetrator, an application by police to a magistrates\u2019 court for a Domestic Abuse Protection Order (DAPO) must be heard if the protection is not to lapse. A DAPO can prevent the (alleged) perpetrator from returning to a residence and from having any contact with the (alleged) victim for up to 28 days. This gives the (alleged) victim time to apply for an injunction order, usually a Non-Molestation Order (NMO), which will usually be awarded by the court for a longer duration, typically 6 months. The NMO can be renewed thereafter at the court\u2019s discretion. Hence, the chronological sequence of provisions: DAPN then DAPO then NMO provides the legal means by which an allegation can facilitate the ejection of a man (it will be a man) from his home immediately, and enforce his ejection indefinitely. In addition, these protection orders provide sufficient evidence to meet the requirements of the DA \u201cGateway\u201d for the accuser\u2019s application for legal aid.<\/p>\n\n\n\n Under the\nterms of the Bill, these Protection Notices\/Orders are not specific to violence\nbut are equally applicable to all behaviours within the definition of Domestic\nAbuse, i.e., including controlling or coercive behaviour, economic abuse, and\npsychological, emotional or \u201cother\u201d abuse. Moreover, a single instance is\nsufficient to establish the abuse and hence the need for protection and hence\nthe ejection of a man from his home, possibly permanently. <\/p>\n\n\n\n Note also\nthat under the terms of the Bill such Notices\/Orders could be made without the\n(alleged) victim\u2019s consent.<\/p>\n\n\n\n A major change to be introduced by the Bill is that breaching the terms of a Protection Notice or Order, currently a Civil offence, will become a criminal offence. The police are also empowered to arrest you, without warrant, if you breach the terms of a DAPN or DAPO and hold you in remand. You should<\/em> come before a magistrate within 24 hours. In an unusual departure from judicial discretion, clause 36 specifies that if a person is found guilty of a breach of a protection order, the court is not permitted to make a conditional discharge<\/em>. Mitigation is vetoed. <\/p>\n\n\n\n Raising a DAPN requires only the opinion of a police officer (albeit notionally a senior officer, an inspector). The terms will invariable prohibit any form of contact with the alleged victim. A common scenario is this: the alleged victim \u2018phones the alleged perpetrator. He picks up. He has now breached the terms of his DAPN and is liable to arrest without further investigation or warrant. When the magistrate subsequently considers the application for a DAPO, the police officer reports that he has already breached the terms of his DAPN and the magistrate is then strongly inclined to grant the DAPO. This is how the system works. The end result is frequently that the man in question, whose alleged offence typically is never meaningfully investigated in any way, is estranged from his own children, possibly forever. <\/p>\n\n\n\n Rather remarkably, the (floridly feminist) Committee\u2019s\nreport expressed concern that the sanctions against (alleged) perpetrators being\nput forward in the Bill might be so draconian as to be counterproductive. They\nwrote, \u201cWe are very concerned, however, that the introduction of indefinite\ntime limits, positive requirements and criminal sanctions combine to create\nsuch a burden on the perpetrator that the courts will be reluctant to impose\nthe orders in all but the most exceptional of circumstances<\/em>\u201d. Their concern\nis not the impact on the (alleged) perpetrator, of course, but the potential\nfor discouraging the usage of the provisions by women. <\/p>\n\n\n\n (4) Prohibition of Cross-Examination of Alleged Victims\nby Litigants-in-Person<\/strong><\/p>\n\n\n\n This is addressed in Part 3 of the latest draft Bill. It has not changed, other than in respect of the title, but the Government\u2019s response to the Committee is worth noting (below). <\/p>\n\n\n\n This is probably the most high profile issue addressed in the Bill: a person accused of domestic abuse being able to cross-examine his accuser in the family court. Since the default withdrawal of legal aid from the Civil Courts by the LASPO Act<\/a> in 2013 it has become common in the family courts for people to be obliged to represent themselves as litigants-in-person (LIPs). This includes the many cases where one parent has been accused of domestic abuse by the other parent, leading to the possibility that an accused person could directly question his accuser in court.<\/p>\n\n\n\n The Bill would\nprohibit the accused from cross-examining his accuser. To be precise, cross-examination\nof the accuser by the accused would be prohibited under the Bill if the latter\nhas been convicted of, accepted a caution for, or been charged with, an offence\nof which the accuser is the victim or alleged victim. He would also be so\nprohibited if there is an injunction, e.g., a protection order, against him in\nrespect of the (alleged) victim. The Committee was concerned that in many cases\nthese conditions would not be met. They recommended that the mandatory ban be\nextended to apply if the legal aid \u201cDV Gateway\u201d evidencing criterion is met.\nThis Gateway is as wide as the Grand Canyon (see here<\/a>) and does not really provide \u201cevidence\u201d in the usual meaning of the word.<\/p>\n\n\n\n The\nGovernment has not, so far, obliged the Committee on this issue. However, in\ntheir written response to the Committee the Government has observed,<\/p>\n\n\n\n \u201cWe recognise that many victims are not able to, or choose not to, pursue their abuser through the justice system, and that therefore these victims may not benefit from the automatic prohibition. We have provided for this in the Bill by giving the court the power to give a binding direction, in clearly-defined circumstances, prohibiting cross-examination in person where the threshold for the automatic prohibition is not met*. The court may give a direction prohibiting such cross-examination where they consider that without it the victim would likely suffer significant distress, or the quality of their evidence would likely be diminished, and that it would not be contrary to the interests of justice to give the direction. Our expectation is that this discretion will be widely used, and that every victim of domestic abuse, however it is evidenced, should benefit from the provisions<\/em>.\u201d *This refers to Clause 31T.<\/p>\n\n\n\n However, they added,<\/p>\n\n\n\n \u201cWe acknowledge the Committee\u2019s recommendation to extend the range of evidence accepted for the automatic prohibition and will consider this very carefully over the course of the summer, including whether we need to make any amendments to the Bill as introduced<\/em>.\u201d <\/p>\n\n\n\n \u2026so it is not clear if we have heard the last of this issue yet.<\/p>\n","protected":false},"excerpt":{"rendered":" Timeline of the Domestic Abuse Bill so far, On 4th July I published a blog article reviewing [1], [2] and [3], above. You can consult that article for the state of play at that time. (Whilst the article is lengthy, it is extremely brief compared to the collected volume of material in [1], [2] and […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[13],"tags":[],"class_list":["post-3061","post","type-post","status-publish","format-standard","hentry","category-domestic-violence"],"_links":{"self":[{"href":"https:\/\/empathygap.uk\/index.php?rest_route=\/wp\/v2\/posts\/3061","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/empathygap.uk\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/empathygap.uk\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/empathygap.uk\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/empathygap.uk\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=3061"}],"version-history":[{"count":7,"href":"https:\/\/empathygap.uk\/index.php?rest_route=\/wp\/v2\/posts\/3061\/revisions"}],"predecessor-version":[{"id":4355,"href":"https:\/\/empathygap.uk\/index.php?rest_route=\/wp\/v2\/posts\/3061\/revisions\/4355"}],"wp:attachment":[{"href":"https:\/\/empathygap.uk\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=3061"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/empathygap.uk\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=3061"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/empathygap.uk\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=3061"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}\n
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