I seem to be regularly venturing away from the ‘comfort zone’ of family law, into other areas of law. However, I make absolutely no apology for this, as family law does not exist in a vacuum, and in any event there are lessons to be learned elsewhere for anyone interested in the subject.
Last Friday I mentioned here the new domestic abuse sentencing guidelines issued by the Sentencing Council, the body responsible for developing sentencing guidelines for our criminal courts. I have now had a read of the guidelines, and I think they are definitely of interest. There is of course an interface between criminal and family law, and the principles referred to in the guidelines are relevant to family law anyway, being similar to the matters a family court would take into account when dealing with an application for a non-molestation or occupation order.
As I said on Friday, the big message contained in the guidelines is that criminal offences involving domestic abuse should be considered to be more serious than similar offences committed in a non-domestic context. The reason for this is explained in the guidelines:
“The domestic context of the offending behaviour makes the offending more serious because it represents a violation of the trust and security that normally exists between people in an intimate or family relationship. Additionally, there may be a continuing threat to the victim’s safety, and in the worst cases a threat to their life or the lives of others around them.”
Quite so.
A common problem with dealing with domestic abuse crimes is that the alleged victim withdraws from the prosecution, often because they fear that they may be subjected to a reprisal from the alleged offender, or his/her associates. The guidelines explicitly say that this does “not indicate a lack of seriousness and no inference should be made regarding the lack of involvement of the victim in a case.”
Moving on, the guidelines set out a list of aggravating factors to be taken into account. These include such things as steps taken by the alleged perpetrator to prevent the alleged victim reporting an incident (see my last paragraph), forcing the victim to leave home, the impact of the abuse on any children, using contact arrangements with a child to instigate an offence, and a history of disobedience to court orders, including non-molestation and occupation orders made by the family courts. The interface with family law is clearly seen here: hopefully, the tougher guidelines will eventually filter through and discourage possible perpetrators from such behaviour, in turn making family matters easier to deal with.
Going back to the alleged victim, the guidelines make it clear that:
“A sentence imposed for an offence committed within a domestic context should be determined by the seriousness of the offence, not by any expressed wishes of the victim.”
That emboldening is not mine – the guidelines explain clearly the reasons why the victim should not decide the sentence, including the “risk that a plea for mercy made by a victim will be induced by threats made by, or by a fear of, the offender”. The court should, however, consider the effect of the sentence upon any children.
On the other hand, the guidelines make clear that:
“Provocation is no mitigation to an offence within a domestic context, except in rare circumstances.”
As I always used to say to my clients, there is no excuse for domestic violence.
The guidelines end with a reminder that the court may make a restraining order, “prohibit[ing] the offender from doing anything for the purpose of protecting the victim of the offence, or any other person mentioned in the order, from further conduct which amounts to harassment or will cause a fear of violence.” Interestingly, the guidelines state that:
“If the parties are to continue or resume a relationship, courts may consider a prohibition within the restraining order not to molest the victim (as opposed to a prohibition on contacting the victim).”
This is something that feels a little odd, as one would expect the law to ‘step back’ if the parties voluntarily resume a relationship. Whilst I can certainly see the point in such a prohibition, and whilst of course no one has a right to molest anyone, I can envisage it causing difficulties within the relationship, and possibly acting as a block to the relationship being fully repaired if, indeed, that was possible.
Still, as I also said on Friday, the guidelines represent a very welcome, not to say remarkable, turn-around from the position as it was when I began practising in the early 1980s, when the police shied away from involvement in ‘domestics’. To see now such family specifics as contact arrangements being taken into account by the criminal justice system is progress indeed.
We are criminalising being unhappy – it is absurd.
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And the guidelines given to the police include the preposterous line that denying it is a sign of guilt. What other offence can you “commit” merely by saying you didn’t do it?
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Provocation is no mitigation to an offence within a domestic context, except in rare circumstances.”
As I always used to say to my clients, there is no excuse for domestic violence.”
Actually John, the courts regularly allow “provocation” arguments as a defence for domestic violence and murder but only if the woman is the perpetrator. It will be interesting to see how the Sally Challen appeal goes…