Catherine Allen analyses the key provisions of the current Domestic Abuse Bill.
Domestic abuse is a significant and growing problem in the UK. It accounts for 16% of all violent crime and is the crime with the highest number of repeat victims. 30% of women and 16.3% of men will suffer from domestic abuse in their lifetime. In 2019, 2.4 million adults suffered from such abuse (an increase of 24% from 2018). It also remains one of the most under-reported crimes, due to the power and control exerted upon victims.
The ministries of both Theresa May and Boris Johnson was, and has been, dominated first by constitutional matters surrounding Brexit, and now by Covid-19. One issue that has been highlighted by the lockdown is that of domestic violence. The requirement to isolate has clearly posed a significant threat to those trapped in abusive homes. There has been a surge in calls to domestic abuse helplines (an increase of 49%) and the number of unlawful killings has doubled. These stark statistics have reinvigorated interest in the UK’s domestic abuse laws. Currently, the new Domestic Abuse Bill is advancing through Parliament, having passed its first reading on the 3rd March 2020. Although promised in the 2017 Conservative manifesto, the Bill was not introduced until 2019 due to the prorogation of Parliament.
Despite the prevalence of domestic abuse, there has not been a single statute to deal with perpetrators. Piecemeal policies are spread across a number of pieces of legislation, including: The Offences Against the Persons Act 1861, The Sexual Offences Act 2003, The Children Act 2004, and The Domestic Violence, Crime and Victims Act 2004. The inadequacies of the current law have been recognised in Home Office consultations, by cross-party groups, and in awareness raising campaigns supported by the government. This article will assess and critique both the current law on domestic abuse and the most important elements of the proposed Bill.
Section 1 of the Bill provides a definition of “domestic abuse”. This is the first statutory definition of domestic abuse. The non-statutory definition of domestic abuse is “any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners or family members regardless of gender or sexuality. This can encompass but is not limited to the following types of abuse: psychological, physical, sexual, financial and emotional”. This definition is similar to that proposed in the new Bill, save that ‘financial abuse’ is replaced with ‘economic abuse’. This extends recognised abuse not just to incorporate abuse focused upon actual money, but to circumstances in which an abuser, for example, denies a victim the resources so they can get to work. However, due to the minimal change that such codification would bring, will it make such a difference? And is it necessary? The government is confident that putting the definition on a statutory basis will result in the offence being properly understood and taken seriously, which would encourage victims to come forward and access support.
A key concern at the moment is that the absence of a statutory definition is causing ambiguity in the law. Law enforcement does not have an understanding of the range of acts that are capable of constituting domestic abuse, meaning that many reported cases are not being pursued further. Police are failing to refer cases to the CPS, as they do not see non-physical violence as a serious punishable crime. In 2014 the Home Office undertook research on how the law on domestic violence could be strengthened. 85% of the public responses felt that the law did not provide adequate protection for victims, with many highlighting the lacuna in the law surrounding coercive and controlling behaviour in comparison with the orthodox view that simple physical abuse was required. The statutory definition recognises the different aspects of domestic abuse, and will offer clarity to the law. The section states that there are two parts to satisfy before the defendant can be convicted of domestic abuse. First, the parties need to be “closely connected” (defined in s2). Second, the behaviour needs to be “abusive” (as set out in s1(3)).
Section 1(3) identifies the fact that domestic abuse is not just physical, but can also be emotional, coercive, controlling or economic abuse. However, there has still been criticism that the Bill fails to give sufficient attention to the more nuanced versions of abuse which are prevalent in specific religions or cultures. These concerns underly the public criticisms that the Bill does not do enough to protect women from ethnic minorities. It was originally discussed as to whether s1(3) should provide that abuse was “not limited to” the examples given in the legislation. Section 1(3)(e) does state “or other abuse”, thereby indicating that the list is not exhaustive; however, the manner in which these words are interpreted remains to be seen. A traditional interpretation may well lead to lesser known forms of abuse which disproportionately affects BME and migrant women being disregarded. Abuse such as female genital mutilation, forced marriage, honour-based crimes and coercive control exploiting people’s immigration statuses (modern day slavery) may arguably fall under the radar.
The Bill also aims to protect victims through a number of practical adjustments. This includes an extension of the ‘special measures’ offered to victims when giving evidence at trial, as well as the removal of the need for the victims to justify why they should be allowed such special measures. Currently, the court needs to be satisfied that there would be an adverse effect upon the witness’ evidence by giving evidence in the ‘normal’ way, due to fear or distress. It is now proposed that complainants in criminal proceedings for domestic abuse will automatically be eligible for special measures. Steps to reduce the reoffending rate of abusers are also at the heart of the Bill. Clause 52 provides for the ability to polygraph test those released on license, thereby ensuring they are adhering to their license conditions. This scheme has already been implemented in relation to a number of sexual offenders. Concerns about the safety of the victim and the general public provide the rationale for this approach. However, some groups have argued that such a provision should not be included; there are concerns that it is counterintuitive to the rehabilitation of the prisoner and also mounts a serious threat to the prisoner’s Human Rights. It highlights a lack of trust in those that have been released, which builds a greater barrier between them, the rest of society, and the probation services. Also, as Liberty points out, such steps threaten the ECHR rights to liberty (Art 5), a fair trial (Art 6) and respect for private life (Art 8).
Finally, the Bill will prevent victims being cross-examined by the accused. Although this is only an issue in the family court, it is clearly a point that needs to be resolved as the distress it could cause a victim is clear. It stems out of the fact that legal aid funding is very low, meaning that it is only available to parties in family courts in “exceptional circumstances” (i.e. if they were the ones that suffered the domestic abuse). This leaves perpetrators unrepresented and having to act as a litigant in person, which means that they undertake all responsibilities towards their own case including the cross examination of witnesses. The Bill enforces a blanket ban on cross-examination by those convicted, cautioned for or charged with a specified offence against the victim. Moreover, even if this is not the case, they can still be prevented from cross examining if the court decides that such cross-examination would diminish the “completeness, coherence or accuracy” of the witnesses’ evidence or cause “significant distress” to the victim. Instead, a court-designated advocate would undertake the cross examination. While such measures are a step in the right direction for the victim, the abusers right to justice must not be side-lined. Although the bill does not do this in itself (appointment of a fill-in attorney), there is still a lack of recognition towards underfunding/the minimal access to legal aid and the lack of remedial steps being taken in response to the issue.
The introduction of a comprehensive Domestic Abuse Bill is warmly welcomed. It will provide the much-needed recognition of the seriousness of the offence and of the harm it causes, as well as increasing the protection and support for victims. If, and when, enacted the Bill should be highly beneficial, despite its imperfections and some questionable provisions. Not all the changes that the Bill is set to bring about have been discussed in this article. Further important changes that are to be implemented include: the provision of a duty upon local authorities to provide support for victims of domestic abuse and their children, guidance supporting the Domestic Violence Disclosure Scheme (“Clare’s Law”) being placed on a statutory footing, and provision for a new Domestic Abuse Protection Notice and Domestic Abuse Protection Order.