A draft domestic abuse bill Domestic abuse in 2019 – David Burrows

31 January 2019 by Guest Contributor

Domestic abuse is endemic in UK society. The law’s response has consisted of sporadic police prosecutions, a Protection from Harassment Act 1997 (rarely used), and uncoordinated remedies in family proceedings mostly under Family Law Act 1996 Part 4 (the non-molestation and the occupation order). Each is governed by a different set of procedural rules; and different means of enforcement. Views vary as to what is the legal definition of ‘domestic violence’ – still used by the Legal Aid Agency: see Legal Aid Sentencing and Punishment of Offenders Act 2012 – and ‘domestic abuse’, which is now defined by a family proceedings practice direction which deals only with children proceedings (yes, really): Family Procedure Rules 2010 PD12J.

Probably the only definition in law (as opposed to a Practice Direction) is still that of Lord Scarman in Davis v Johnson[1978] UKHL 1, [1979] AC 264 at 276 where of the then Domestic Violence and Matrimonial Proceedings Act 1976 he said:

I conclude that the mischief against which Parliament has legislated by … the Act [there was no definition in the 1976 Act] may be described in these terms: conduct by a family partner which puts at risk the security, or sense of security, of the other partner in the home. Physical violence, or the threat of it, is clearly within the mischief. But there is more to it than that. Homelessness can be as great a threat as physical violence to the security of a woman (or man) and her children….’. I suspect that definition – though it should be – is rarely cited. (Davis v Johnsonremains important: it provides the continuing House of Lords definition of the stare decisisrule.)

On 21 January 2019 the Home Office and the Lord Chancellor published, to press acclaim (see eg Guardian and Observer) their joint Transforming the Response to Domestic Abuse: Consultation Response and Draft Bill January 2019

The main features of the bill are:

• A definition of ‘domestic abuse’ thus far absent from statute and the common law; and much wider and specific than before
• A commissioner (‘tsar’ as the press call them?) who is to be funded by the government and be responsible for prevention of domestic abuse and for provision of support for those abused (Part 2)
• New police powers and preventative notices and order (Part 3)
• Protection by a court-appointed advocate for abuse by cross-examination of complainants (Part 4).

This post concentrates on the first and last of these and considers the rights issues which may be engaged.

Domestic abuse

At present the most extensive definition of ‘domestic abuse’ is in tucked away Practice Direction 12J Child arrangements and contact orders: domestic abuse and harm. In LASPOA 2012 Sch 1 para 12(9) ‘domestic violence’ is defined as ‘any incident, or pattern of incidents, of controlling, coercive or threatening behaviour, violence or abuse (whether psychological, physical, sexual, financial or emotional) between individuals who are associated with each other’.

The bill sets out the modern definition of ‘domestic abuse’ and refines further the terminology of Yemshaw v Hounslow London Borough Council [2011] UKSC 3, [2011] 1 WLR 433, [2011] 1 FLR 1614, which provided a wider definition of ‘domestic violence’ in the context of homelessness (see eg Lady Hale at [25], [28] and [32]). Prominence for, and a statutory definition of, ‘domestic abuse’ is welcome. Physical abuse and threatening behaviour are in the definition; and so – crucially, I suspect – is ‘controlling or coercive behaviour’. ‘Economic abuse’ and ‘emotional or other abuse’ (echoing Lord Scarman, perhaps) are important developments in statutory thinking.

I will not attempt, here, a thesis on the differences between each of the various definitions which have developed since 1976, save to say the Lord Chancellor will need – surely? – to align the statutory LASPOA definition with the wider and more realistic definition in the bill. Once the bill reaches the statute book – if no General Election intervenes, as happened with the last more modest Tory Lord Chancellor bill in early 2017 – a comparative exercise may be needed show how the law has moved since 1976; and to construe (explain the meaning) of the law in 2019.

‘Protection for victims and witnesses in court’ 

Under the heading, ‘protection for victims’ etc Part 4 introduces a new Part 4B to Matrimonial and Family Proceedings Act 1984 (generally regarded as the statute which still is kicked about by amendment for family proceedings). It might be considered that ‘complainant’ would be more neutral term to use in this context and economical of space.

The scheme under Part 4 is derived from Youth Justice and Criminal Evidence Act 1999. Yes in criminal trials the protection for witnesses has a life of nearly 20 years. Part 4 proposes that where an alleged victim risks being abused all over again in court by being cross-examined by her alleged abuser, the court can appoint an advocate to cross-examine the alleged victim as ‘representative’ of the alleged abuser (proposed s 31V(5); and see YJCEA 1999 s 38(4)). The ‘representation’ point will need careful review: s 31V(7) goes on to say that the representative ‘is not responsible to the party’, as in YJCEA 1999; but what does that mean if the advocate is the alleged abuser’s ‘representative’?

And yes, for any lawyer reading this post: there is provision for payment for lawyers for doing the cross-examination job, set out in proposed s 31W; but the detail of what is paid and how by the Lord Chancellor will be needed.

Human rights issues

On a first reading the bill raises the following rights issues which are not resolved:

(1)       Right to defence

The European Convention on Human Rights Art 6.3(c) says that anyone ‘charged with a criminal offence has’ certain rights to be provided by the state: the right ‘to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require.’

This isn’t a criminal charge, you say. Well, no; but there is case law (Engel and Others v The Netherlands (No 1) (1976) 1 EHRR 647, at 677 paras 80 and 81, 85 and 86; Mubarak v Mubarak [2001] 1 FLR 698) which says that if a person risks imprisonment even though it is non-criminal proceedings, then that engages Art 6.3. Art 6.3 needs to be carefully considered and what its consequences may be for legal aid for, and representation of, alleged abusers.

(2)       Standard of proof

Part of the right to a fair trial is to what standard of proof a case must be proved. Criminal cases require ‘proof beyond reasonable doubt’; whereas in civil cases (including, as many of these will be, family cases) the standard is not so high. In Nulty (Deceased) v Milton Keynes Borough Council [2013] EWCA Civ 15, [2013] 1 WLR 1183 Toulson LJ explained this:

The civil ‘balance of probability’ test means no less and no more than that the court must be satisfied on rational and objective grounds that the case for believing that the suggested means of causation occurred is stronger than the case for not so believing. [35]

The common law is reasonably well settled on this; but not, I think, where the jurisdiction is hybrid (part criminal, part criminal), as under the bill. Are our rights best served by leaving to the judges; or would it be better if Parliament put a clause in this bill to pick up the point?

(3)       Legal aid

Broadly, and subject to means, legal aid is available to alleged victims. It is not for alleged abusers. That may not be regarded as fair (Art 6.1). It implies guilt from the start, perhaps? Even if not, with (1) in mind above, the legal aid position of alleged abusers must be reviewed by the Lord Chancellor. Indeed, the whole subject of legal aid for the proceedings engendered by the bill must be considered: starting from the premise that for a complex subject and with a necessarily complex statute legal aid should be a given for both, or all, parties (Airey v Ireland (1979) 2 EHHR 533) subject to assessment of means. And maybe provision should be incorporated into it, for legal aid, before the bill receives royal assent?

Listen to Clare Ciborowska of 1 Crown Office Row discussing coercive and controlling behaviour with Rosalind English in Episode 43 of Law Pod UK.