Proposed domestic violence reforms

Family Law|July 29th 2014

Domestic violence has been in the news over the past few days. Or, to be more precise, possible changes in the criminal law relating to domestic violence have been in the news. I thought I would add my views to the debate upon those changes.

Now, before I go any further I should make it clear that I am not a criminal lawyer and that I am not therefore au fait with current criminal law and procedure. In fact, when I last practised criminal law many years ago domestic violence was generally considered to be a matter for the family courts, rather than the criminal courts. Back in those days the police, more often than not, would not get involved in ‘domestics’, referring the victims instead to a family lawyer.

Having said that, I think that my many years experience of dealing with domestic violence whilst wearing my family lawyer’s hat entitles me to put forward my views on the subject.

The first news story cropped up last week, when it was reported that David Cameron has indicated that the government will look into the proposal that a separate offence of domestic violence be created. The proposal, put forward by various charities including Women’s Aid, is aimed at closing gaps in the present law which campaigners feel allow perpetrators of domestic violence to avoid prosecution. Specifically, it is considered that the current law does not always take psychological harm into account, or any ongoing pattern of abuse.

Under the current system, perpetrators can be charged with one or more of a number of criminal offences, such as assault, actual bodily harm or even grievous bodily harm. However, each of these focuses on an individual incident of physical violence, rather than ongoing patterns of both physical and psychological abuse.

Now, I am not one of those who think that the answer to any problem is to pass new law. We have plenty of law as it is. However, as any family lawyer will tell you, domestic violence is rarely limited to a single violent incident. Far more likely, it consists of a long-term pattern of controlling and coercive behaviour, which can take the form of both physical and mental cruelty.

A new specific offence of domestic violence could be designed to deal with the reality of the issue, and therefore ensure both that perpetrators do not ‘get away with it’ and that victims are better protected.

The other story, whilst including a proposal for change, actually deals with the present law and how it is applied.

New figures have shown a substantial increase in the number of domestic violence incidents that have been dealt with under the “Community Resolution” procedure, rather than by prosecution of the offender. The procedure was introduced four years ago as a way of dealing with minor offences such as trivial thefts and ‘inconsequential’ assaults. Under it, the police expect the offender to apologise to the victim or pay them compensation, in which case there is no prosecution.

Labour’s shadow Home Secretary Yvette Cooper has warned that this policy is putting thousands of victims of domestic violence at risk. She says that the procedure was never intended to be used for domestic violence and has promised that a new Labour government will pass legislation banning its use in domestic violence cases.

I’m not quite so sure about this. Whilst not wishing to trivialise domestic violence in any way, it seems to me that the police should retain the full range of possible options. Those options can include community resolution, with one proviso: that the victim agrees. Again, all family lawyers will have come across many cases where the victim is reluctant to proceed with a criminal prosecution against the perpetrator – a community resolution is another way for them to proceed, perhaps giving the perpetrator ‘one last chance’, whilst making clear to them the seriousness of their actions. Without that option, the victim might just prefer to do nothing. In short, a community resolution could be the best way to proceed, in appropriate cases.

Whether either of the above changes takes place, one thing is clear: that domestic violence is a serious and widespread issue that blights many lives. We must have the best laws available to combat it.

Author: John Bolch

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

Comment(1)

  1. Stitchedup says:

    Putting the alleged victim in a position where they can decide what they view is an appropriate course of action is a massive mistake… vexatious women should not be allowed to decide the fate of former partners Yet again we see evidence that the UK approach to domestic violence is a nonsense and is in fact extremely damaging to families; the problem as I see it is the issue is effectively spread across family/civil law and criminal law.

    The “Community Resolution” procedure, rather than by prosecution of the offender was introduced as a way of dealing with minor offences such as trivial thefts and ‘inconsequential’ assaults. So within criminal law a person, generally a man, can have “trivial” thefts and “inconsequential assaults” handled within the community resolution procedure. However, trivial breaches of dubious non-mols often secured on an ex-parte basis in the civil courts with no burden of proof, attract the full force of the law in the criminal courts. Here a man can be convicted, and possibly imprisoned, just for sending a text informing an ex that they are running late to pick up the children or speaking to an ex if having a disagreement about the selling price of the former family home.

    To most lay people, theft and assault are far more serious than talking or texting, yet we have this disproportionate attitude to minor breaches of non-mols, which very often are done in circumstances where most commonsensical people would consider there was reasonable excuse.

    As I’ve said before, we are suffering form DV hysteria in the UK. The courts are now interfering with everyday family disputes where any disagreement, criticism or raised voice can be interpreted as emotional abuse, controlling behaviour, intimidating or threatening behaviour by a vexatious women, over zealous solicitor, Police officer, magistrate or district judge when most such incidences would be laughed out of court by a jury of peers.

    John, it is now common knowledge that the domestic abuse card is all too often played in the gamesmanship of divorce and separation to secure occupation of the family home, custody of the children and better financial deals. The legal professional should stop abusing the system, muddying the waters and creating so much noise that you put those at genuine risk in mortal danger.

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