Domestic Violence

Domestic violence happens. Domestic violence is no good for the family unit. Domestic violence is not only bad for the victim but does bad things for and to the children. Domestic violence allegations are often confused.

The police are obliged to take domestic violence very seriously. Different police areas will have different policies for dealing with complaints of domestic violence. To help the neighbourhood officer cope with the decision making process the police will try to compartmentalise situations and as a consequence get it wrong as many times as they get it right. The poor officer who attends a domestic incident is under pressure to perform. If (s)he makes no decision they are taking a chance that they will end up on the wrong end of a complaint. If they make a decision there is still a good chance it will be wrong and a complaint made.

It is impossible to say what factors a police officer will prioritise when considering what to do on a domestic violence call. Clearly they will be concerned about the safety of children if there are any on the premises. They will be concerned about any injuries that they witness. However, their priority might simply be to bring the incident to an end for now, which might mean inviting one of the parties to leave for the time being or then again, and more likey, will make a judgment call and take one of them to the police station. The police will have to work out how they deal with these matters, does the bobby tell his Superintendant about his enquiries for the Superintendant to make a decision or does the Superintendant have to come out and talk to the parties?

Prejudices being what they are you can be sure that the starting point if there are children about is to arrest the man and leave the mother to look after the children. This may not meet the justice of the situation but achieving justice may not be a genuine part of the police process at this time.

The person who is taken to the police station will probably find they have the arrest recorded on the Police National Computer so that they in effect have generated a police record no matter what happens on the arrest. The police like to interview and then offer a caution to the person arrested. This is a much better result for their statistics. Whether or not cautioned or charged the chances are that the arrested party now finds that if ever they need to have an enhanced criminal records bureau check they will find they cannot work with children or vulnerable adults. The fact of the record will also ensure that on any future incident the police will check the computer and jump to the conclusion that the same person is the guilty party no matter what an objective investigation might indicate.

The police have some additional ‘tools’ to help them to deal with Domestic Violence situations. These are Domestic Violence Protection Notices and Domestic Violence Protections Orders.

The reasons for their introduction are easily understood but their impact might not have been fully appreciated by those who caused their introduction. We are not saying they are good and we are not claiming they are bad. Like all similar powers it depends on how they are used and how carefully the police and the courts monitor their use to ensure they are not abused. Although someone thought these provisions were a great idea as they will make it much easier, in effect, to convict the innocent as well as the guilty, the reality is that they are unlikely to find favour with the police.

Not only does the decision making have to be made by an officer of least Superintendant but if the police take it to court they will have to pay £700 in court fees if the matter is disputed. That is likely to be the end of that. If they do decide to try this system then they will need to bear in mind that although it appears the system is set up to make life very easy for them to get an order, there are still substantial arguments the respondent can raise and the police cannot assume that the Magistrates will be happy with the easy with which a person’s rights appear to be trampled by these provisions.

Bear in mind that the provisions make it clear that these proceedings are civil in nature. No doubt this will make people realise that it will therefore be fine to roll over and admit things just to make life easy. However, the reason they are marked as ‘civil’ is to allow the case to be proved with just hearsay evidence. It allows the burden of proof to be reduced down to balance of probabilities. There is still the prospect of prison on a breach being proved. There are specific codes for the police national computer which does equate to a criminal record whatever the police may say. Be clever and contact us quickly.

A Domestic Violence Protection Notice is served on a person by the police. To see the problem that arises you simply need to read the guidance that the police give as to the way in which these are dealt with by them. The police talk about Domestic Violence Protection Notices in terms of perpetrators and victims. They assume a black and white, good and bad scenario. If the officer comes across such an incident then the officer will be assisted by this new power. However, what an officer is more likely to come across is allegation and cross allegation. The officer might feel under pressure to make use of this power which means the officer is forced into the position of being investigator, jury and judge.

This is not something that a police officer is trained to be, it is not a status that the Criminal Justice System should encourage.

However, the number of times this power is going to be used will be limited by two very important features. Firstly, the decision has to be made by a Superintendant or above. There are rules about having to speak to the parties. Secondly, if there is a disputed hearing in the magistrates’ court it will cost the police £700 in fees.

The test for the officer to apply is whether the individual is aged over 17 and they believe has been violent or threatened violence against another person and that person needs protecting, then the officer can serve a Domestic Violence Protection Notice on the ‘perpetrator’ and thereby produce for that person a serious criminal record. At this stage if the ‘victim’ does not want the Domestic Violence Protection Notice to be served, it matters not. The officer decides. Forget the claim these are civil proceedings and therefore a criminal record does not flow. It will act just like a conviction if every an enhanced criminal records bureau check is carried out. You might also want to consider the impact on your ability to travel to certain countries if this is on your record.

The immediate impact of the Domestic Violence Protection Notice can include:

1. stopping the person from entering or being within a certain distance of the home
2. stopping the person from making the other leave the home
3. require the person to leave the home

If both live at the same address the person is required to leave straight away although they should be allowed to take with them possessions they may need. No doubt there will be a rush to clear and joint bank account in the morning so that one of the parties is then without any money to cover living expenses.

Prior to leaving the premises the police will try to obtain an address and telephone number for the person leaving in case they need to be in touch within the following 48 hours. Refusal to give the details might be taken by the police as an indication of possible further incidents so they may decide to arrest instead. This is important as the police have to arrange a hearing in the magistrates’ court within 48 hours. If they cannot tell you where and when the hearing will take place then the magistrates can go ahead and find against you in your absence.

If a Domestic Violence Protection Notice is breached then the person will be subject to arrest and be taken before the Magistrates within 24 hours.

In any event within 48 hours the police should present the Domestic Violence Protection Notice to the magistrates who then decide whether the Domestic Violence Protection Notice should be continued as a Domestic Violence Protection Order that will then continue for 2 – 4 weeks. Contact us quickly.

A Domestic Violence Protection Order is the next stage on from the Domestic Violence Protection Notice. Now the magistrates’ court is involved so the level or seriousness is increased considerably.

Having been served by a police officer acting as investigator, jury and judge with a Domestic Violence Protection Notice and immediately been evicted from your home, possibly against the wishes of the ‘other party’, within 48 hours the magistrates may decide to continue the terms of the Domestic Violence Protection Notice by making a Domestic Violence Protection Order which will extend restrictions for 2 – 4 weeks. The police will be responsible for telling the person when and where the hearing is to take place. If they fail to contact you then provided the magistrates are happy that the police have tried sufficiently, they can proceed in your absence.

There is little time to get organised. Your employment will be badly impacted and if you need to prepare a case and perhaps instruct solicitors you have precious little time to do any of this and certainly no time to apply for and be granted legal aid if you need this. If you fail to turn up in the Magistrates’ Court they can go ahead and just make the order. Having to go to work to earn a crust for you and the family will not cut any slack with the court.

The court hearing will not be easy. If the other party does not want to support the application to extend the notice into a Domestic Violence Protection Order then the person’s views can be ignored. The police will give evidence of what they believe they witnessed and will give hearsay evidence of the allegation that might have been thrown at you in the heat of the moment. You have little or no chance to cross examine the accuser if the officer is the only one there to tell the magistrates what they heard. You have been excluded from the home and therefore may have no chance of collecting evidence from any other witness who could be asked to come to court to explain what really happened.

The timescale for the hearing to take place is very, very short. If the Domestic Violence Protection Notice is given on say a Friday you may have to prepare over the weekend and try to instruct solicitors over the same period. Although the weekend and bank holidays do not count for the calculation of the 48 hours this does not mean that the court will not hear your case on say the Monday. You will need to contact a firm of solicitors that takes seriously the need to offer clients a 24/7 service with an emergency hot line to get matters started. If you leave it until you get to court you really ought not expect the best result. However, as legal aid will not be available, as the court takes a number of days to consider applications, for early intervention you will need to be able to pay privately.

Not taking these matters very seriously will mean a Domestic Violence Protection Order is made against you and this will impact more seriously on the ‘criminal record’ this incident has created for you. Whereas you might be able to argue an officer got it all wrong, if the court makes a Domestic Violence Protection Order against you then this is a different and higher level of proof of violence. From then on you will always be tainted by the label of domestic violence.

There are specific codes for these matters to be recorded on the police national computer. As they are said to be civil matters and not criminal matters it might be that they never become rehabilitated under the Rehabilitation of Offenders Act. These are provisions that will cause people problems. The issues are serous and can affect you for many years to come.