In addition to Clare’s Law, the 8th March 2014 -International Women’s Day- also saw the extension of DVPOs (Domestic Violence Protection Orders also known as “Go-Orders) and DVPNs (Domestic Violence Protection Notices) which had been trialled alongside Clare’s Law. Whilst there has been much publicity surrounding Clare’s Law the DVPO’s have hardly received any air time at all.
The new scheme allows the police to exclude a suspected domestic violence perpetrator from the family home and to prevent contact with the victim for up to 28 days without charges being brought. The aim is to offer immediate protection and “breathing space” to the victim to allow her (or him) to consider what she wants to do and to give her the opportunity to take advice. These orders can even be obtained without the victim’s consent. Initially the police would serve a DVPN excluding the perpetrator for up to 48 hours during which time an application is made to the Magistrates’ Court for an Order which can last up to 28 days.
Whilst I welcome the extra tool available to fight domestic violence I do have two main concerns:
Firstly, DVPOs should not be used as an alternative to criminal charges. If the grounds are met for making a DVPN (made by the police rather than the court) then surely this would enable an arrest and criminal charges to be brought in addition to or instead of the DVPN? The grounds for making a DVPO are that there are reasonable grounds for suspecting that the perpetrator has been violent or threatened violence and the DVPN is necessary to protect the victim from violence or a threat of violence.
If the above grounds are satisfied then, to me, there surely should be criminal charges? Good practise dictates that in cases of domestic violence there should be a presumption in favour of positive action and arrest where possible. In reality however victims are still often faced with the question “Do you want to charge him?” Only the police can decide whether to arrest and the CPS whether to charge and it is wrong to put the onus onto the victim particularly at the point of crisis. If the allegations are investigated properly there can be victimless prosecutions and far less reliance on the victim’s testimony. There seems to be a suggestion that these orders can allow the victim time to obtain a non-molestation order but why should she have to? It is becoming far more difficult to get legal aid and it can take much longer than 28 days to get it and if she can’t get legal aid then why should she have to pay? A non-molestation order is no substitute for criminal charges and a robust restraining order. So please – do not use the DVPNs instead of arrest, investigation and criminal charges.
Secondly, breach of a DVPO is not a criminal offence. Surprised? Whilst breach gives rise to a power of arrest the perpetrator is brought before the Court in relation to Contempt of Court – a bit like beach of a non-molestation order in the olden days. So even though the perpetrator can be sentenced with up to 2 months imprisonment this will not be a criminal offence or form part of his criminal record. This is hardly taking domestic violence seriously is it? Even breach of a non-molestation order which is made in the Civil Courts gives rise to a criminal offence punishable with up to 5 years imprisonment and breach of a Forced Marraige Protection order will soon be a criminal offence so why not DVPOs?
The official line is that DVPNs and DVPOs should only really be used where the outcome would have been No Further Action (in which case I’m expecting a deluge of them…), where there is to be a caution (again not something usually appropriate in domestic violence but hey), or where there has been an arrest but no bail conditions – something I can never understand and tends to put the victim at even more risk.
I’m not saying that these Orders have no use at all but I do think that they should be used only in the minority of cases. If the government is really serious about providing an effective mechanism to tackle domestic violence it will support the Domestic Violence Law Reform Campaign spearheaded by Paladin, Womens Aid and Sara Charlton Charitable Foundation to create a criminal offence of domestic violence to include coercive control.