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Domestic Violence: All Change

Changes are afoot to radicalise the law in relation to those subjected to and the perpetrators of domestic abuse, should they be man, woman or child. While the proposed changes are in their very early stages, should they be adopted then it will no doubt follow that more men, women and perhaps children (i.e. those over the age of criminal responsibility) may be prosecuted for domestic abuse.
Domestic Violence: All Change Lynne Shirley
At present, there is no specific offence relating to domestic abuse. Currently, offenders are prosecuted for offences of violence, harassment and myriad other offences where the abusive nature of the relationship may be deemed an aggravating feature. Specific guidelines were produced by the Sentencing Council in December 2006 which set out what may be considered as aggravating features in a case involving domestic violence. The guideline begins with the stark words “...there is no specific offence of domestic violence...”. The Sentencing Council thereafter attempted to define what could amount to domestic violence when such behaviour is encompassed in other offences. Other guidelines drafted by the Sentencing Council recognise, where relevant, the aggravating features relating to an abusive relationship.

The courts have always been restrained, however, by only being able to sentence offenders for specific offences to which the offender has pleaded guilty or been convicted. The new Bill would have far reaching consequences however and would mean that offenders could be sentenced for other conduct which has not been tested by a court or jury.  This will no doubt be the subject of much debate both before and after this becomes law, should that be the case.

The Justice Unions’ Group and the All Party Group on Stalking and Harassment have sponsored a private member's bill, the Domestic Violence Bill. If enacted it will enable, for the first time, the sentencing court to ensure that the sentence reflects, where relevant, that the domestic abuse was part of a pattern of behaviour rather than an isolated incident. The United States has already introduced such changes: reporting of crimes and convictions has increased.

The new Bill would enable the court to ensure that the full nature of the abusive relationship is considered when the relevant sentence is imposed. At present the courts can only really pay lip service to the past nature of the relationship unless, for example, previous offences relate to the same complainant. Courts at the moment are therefore, in some respects, restricted to sentencing in a bubble without being able to consider the full picture. Those who support the new Bill suggest that because the court would be able to consider the whole course of conduct meted out by the offender, the reporting of domestic abuse would increase.

The new Bill would provide clarity and perhaps consistency for those subjected to domestic abuse, which would relate to physical and psychological abuse against the complainant and/or her/his children. The present definition by the Sentencing Council of domestic violence relates to adults only. The new proposed definition of domestic abuse is crystal clear to those with a legal eye: “intentionally, wilfully or recklessly causing, or attempting to cause, physical injury or psychological harm to a person.” The definition therefore, by its very nature, can encompass children. The new definition could therefore include conduct, which may not be criminal under present law.

Harry Fletcher, a criminal justice expert and adviser to the National Association of Probation Officers who drafted the Bill has said: “It is extraordinary that domestic abuse is not a criminal offence in the UK. As a consequence, reporting is low and behaviour is missed by workers in the justice system. Conviction rates are appallingly low at 6.5%. The police and Crown Prosecution Service tend to deal with the matter before them and not the long term, repetitive abusive behaviour. This Bill will make domestic abuse an offence with a maximum of up to 14 years in prison. It will be the first time that an attempt will be made to criminalise a course of domestic abuse in this country”.

Those subjected to domestic violence can begin to breathe a sigh of relief. By contrast, the perpetrators of such behaviour will have nowhere to hide in the future should the new Bill become law.

If you would like further information about the topics covered in this article, or to speak to Lynne Shirley, please get in touch with the EA Law - East Anglian Chambers clerking team on 01473 214481.