Timeline of the Domestic Abuse Bill so far,

In March 2018 the Government set out its intentions for their new Domestic Abuse Bill and invited responses in a public Consultation exercise; In January 2019 the Government reported on the outcome of this Consultation, together with a draft of the Bill itself; On 11th June 2019 a Parliamentary Committee (comprising eight women and four men, six from the Commons and six from the Lords) reported on their view of the draft Bill and how it should be amended; In July 2019 the Government published their response to the Committee’s report; On the 16th July 2019 the Government released a further draft of the Bill; On the 7th October the House of Commons held its second reading of the Bill, based on [5]. It has been agreed that the Bill will be carried over to the next session of Parliament, the next stage being the HoC formal Committee stage (date yet unknown).

On 4th July I published a blog article reviewing [1], [2] and [3], above. You can consult that article for the state of play at that time. (Whilst the article is lengthy, it is extremely brief compared to the collected volume of material in [1], [2] and [3]).

In this article I provide an update addressing the content of [4] and how the latest draft of the Bill, [5], differs from the first draft, [2], such changes being (in part) a response to the Committee’s views in [3]. It is of some importance to keep this under review because the Committee’s recommendations went far further than the provisions of the first draft of the Bill in many areas.

This is still early days in the progress of this Bill. One can expect many Amendments to be tabled, not least those which MP Philip Davies has undertaken to make. The latter relate to including parental alienation as a form of domestic abuse (DA), and including false allegations of DA as a form of DA in itself. These proposals are very much to be welcomed, though one would have to blessed with wildly unrealistic optimism to expect such Amendments to succeed. That, however, in no way diminishes the importance of tabling such Amendments. Mr Davies is not the only one to think these measures would be reasonable. Consultation responses to similar effect were made, though oddly they failed to be mentioned in the Government’s report, [2].

I will not cover every clause & issue, which would be tedious and over-long even by my prolix standards. I will concentrate, in turn, on the following four key issues,

The definition of DA;

The proposed DA Commissioner’s powers;

New provisions for criminal sanctions against (alleged) perpetrators;

Prohibition of cross-examination of accusers by the accused in the family court.

I’ll not include the links again – they have been given in the numbered list above.

(1) The Definition of DA

Clause 1: The (highly feminist) Committee argued for the definition to be explicit that DA is a “gendered crime”. The Government response appears to be trying to appease the feminist lobby whilst also rejecting the suggestion. The Government writes, in their response to the Committee,

“We fully recognise that domestic abuse is a gendered crime, which disproportionally affects women. This is also emphasised in the VAWG Strategy refresh and the National Statement of Expectations, which sets out how local areas should ensure victims of violence and abuse against women and girls get the help they need. However, we believe that it is critical that the statutory definition is gender-neutral so that all types of abuse are identified and that no victim is inadvertently excluded from support or protection.”

And so the Definition remains without the “gendered” flag as of the 2nd reading in October’19 (as indeed it should).

However, in clause 79 (old clause 57) the Government undertook to “recognise the gendered nature of abuse through statutory guidance” and hence have committed in the revised Bill that,

“Any guidance issued under this section (i.e., by the Secretary of State) must, so far as relevant, take account of the fact that the majority of victims of domestic abuse in England and Wales are female”.

Whether this is enough to fulfil the feminist lobby’s objectives I cannot determine. I can point to three objectives of the feminist lobby,

Protection of feminist patriarchy theory, the overarching rationalisation of the feminist position, which requires that DA is viewed exclusively through the lens of men oppressing women;

Funding: it is the endlessly repeated claim that women are the “overwhelming majority” of DA victims that leads to all but the tiniest percentage of funding being allocated to the women’s DA sector – hence the “gendered” perception needs to be maintained to protect funding;

Membership of the new DA Commissioner’s Advisory Panel: This will be a very influential panel, and the feminist lobby will want to ensure their voice remains the only voice that is heard in the context of DA. Kowtowing to the “gendered” perception of DA will facilitate keeping representatives of male victims off the panel, as well as effectively vetoing academic experts in DA whose methodology is neutral rather than feminist.

Para 1(3): The types of DA are listed (physical or sexual abuse, violent or threatening behaviour, controlling or coercive behaviour, economic abuse, and psychological, emotional or other abuse). In the latest draft Bill, the following has been added after this list, “and it does not matter whether the behaviour consists of a single incident or a course of conduct”. Not only is this a huge weakening of the definition, but it is also in conflict with the Government’s own definition of coercive or controlling behaviour, namely that, “Coercive or controlling behaviour does not relate to a single incident, it is a purposeful pattern of incidents that occur over time”.

At one time I was naïve enough to believe that Bills were scrutinised carefully to avoid such conflicts. I know better now. Inconsistencies between Acts are a blessing to judges: they allow them to make up the law themselves. In the case of serious sexual or violent abuse, a single instance might reasonably be considered sufficient. But a single instance of psychological, emotional, economic or controlling “abuse”? One might regard this definition as an abuse of the concept of abuse.

(2) The Proposed DA Commissioner’s Powers

Clause 9 (DA Commissioner’s Incidental Powers): There is no change to this clause between the earlier and latest drafts of the Bill, but it is worth noting this: “The Commissioner may do anything which the Commissioner considers will facilitate, or is incidental or conducive to, the carrying out of the Commissioner’s functions.” Couple this with the stipulation in Clause 14 that “the Commissioner may request a specified public authority to co-operate with the Commissioner in any way that the Commissioner considers necessary for the purposes of the Commissioner’s functions” and you begin to understand the power which the Commissioner will wield. As the Commissioner will pay close attention to her* Advisory Panel, the influence of the latter will be considerable. This is worth emphasising in view of the undoubted effect that the “gendered” issue will have on the ideological composition of the Advisory Panel.

*Nicole Jacobs has been announced as the Domestic Abuse Commissioner designate, working part time on a salary of up to £140,000.

Clause 12 (old clause 11) (Strategic Plans): This clause relates to strategic plans originating from the Commissioner. The latest draft Bill contains substantial revisions from the earlier draft. The January Bill required the Commissioner’s strategic plan, or revisions thereto, to be approved by the Secretary of State, and the responsibility for laying the plan before Parliament was to reside with the Secretary of State. In the July Bill no approval of the strategic plan by the Secretary of State is required, and the Commissioner has the responsibility to lay the plan before Parliament. The Commissioner need only consult the Secretary of State, which gives the Secretary of State the same status in the production of the plan as the members of the Advisory Panel. This is a huge increase in the power of the Commissioner, in line with the Committee’s wishes.

Clause 15 (old clause 14) (Duty to respond to Commissioner’s recommendations): One of the Committee’s most significant recommendations was that the Commissioner should exercise direct power over Government departments. In the first draft Bill, clause 14 related to the Commissioner’s powers over local authorities, specifically that local authorities must prepare comments on the Commissioner’s reported recommendations, including an explanation of what action has been taken to address the recommendations or an explanation of why this has not been done. In the July draft Bill this requirement to respond to the Commissioner’s recommendations has been extended to include Government departments (any Government department). Hence, there will be an obligation on all affected Ministers to respond to the Commissioner’s recommendations. These changes go a long way to meeting the Committee’s wishes in respect of enhancing the Commissioner’s powers. Specifically, direct accountability to Parliament, providing the Commissioner with a degree of independence from Government, and a degree of supra-governmental powers in respect of being able to exercise leverage over Ministers. This is a remarkable power-grab by the VAWG lobby.

(3) Criminal Sanctions via Protection Notices/Orders: Various changes have been made in respect of homeless perpetrators and appeals against protection orders. The more substantive issues are unchanged but worth reviewing briefly.

A Domestic Abuse Protection Notice (DAPN) provides a facility for police to take immediate action when attending a domestic incident. It is effective from time of issue, i.e., immediately, and provides the police with the powers to eject the perceived perpetrator from the home. A DAPN lasts for 48 hours. Within 48 hours of the DAPN being served on the (alleged) perpetrator, an application by police to a magistrates’ court for a Domestic Abuse Protection Order (DAPO) must be heard if the protection is not to lapse. A DAPO can prevent the (alleged) perpetrator from returning to a residence and from having any contact with the (alleged) victim for up to 28 days. This gives the (alleged) victim time to apply for an injunction order, usually a Non-Molestation Order (NMO), which will usually be awarded by the court for a longer duration, typically 6 months. The NMO can be renewed thereafter at the court’s discretion. Hence, the chronological sequence of provisions: DAPN then DAPO then NMO provides the legal means by which an allegation can facilitate the ejection of a man (it will be a man) from his home immediately, and enforce his ejection indefinitely. In addition, these protection orders provide sufficient evidence to meet the requirements of the DA “Gateway” for the accuser’s application for legal aid.

Under the terms of the Bill, these Protection Notices/Orders are not specific to violence but are equally applicable to all behaviours within the definition of Domestic Abuse, i.e., including controlling or coercive behaviour, economic abuse, and psychological, emotional or “other” abuse. Moreover, a single instance is sufficient to establish the abuse and hence the need for protection and hence the ejection of a man from his home, possibly permanently.

Note also that under the terms of the Bill such Notices/Orders could be made without the (alleged) victim’s consent.

A major change to be introduced by the Bill is that breaching the terms of a Protection Notice or Order, currently a Civil offence, will become a criminal offence. The police are also empowered to arrest you, without warrant, if you breach the terms of a DAPN or DAPO and hold you in remand. You should come before a magistrate within 24 hours. In an unusual departure from judicial discretion, clause 36 specifies that if a person is found guilty of a breach of a protection order, the court is not permitted to make a conditional discharge. Mitigation is vetoed.

Raising a DAPN requires only the opinion of a police officer (albeit notionally a senior officer, an inspector). The terms will invariable prohibit any form of contact with the alleged victim. A common scenario is this: the alleged victim ‘phones the alleged perpetrator. He picks up. He has now breached the terms of his DAPN and is liable to arrest without further investigation or warrant. When the magistrate subsequently considers the application for a DAPO, the police officer reports that he has already breached the terms of his DAPN and the magistrate is then strongly inclined to grant the DAPO. This is how the system works. The end result is frequently that the man in question, whose alleged offence typically is never meaningfully investigated in any way, is estranged from his own children, possibly forever.

Rather remarkably, the (floridly feminist) Committee’s report expressed concern that the sanctions against (alleged) perpetrators being put forward in the Bill might be so draconian as to be counterproductive. They wrote, “We are very concerned, however, that the introduction of indefinite time limits, positive requirements and criminal sanctions combine to create such a burden on the perpetrator that the courts will be reluctant to impose the orders in all but the most exceptional of circumstances”. Their concern is not the impact on the (alleged) perpetrator, of course, but the potential for discouraging the usage of the provisions by women.

(4) Prohibition of Cross-Examination of Alleged Victims by Litigants-in-Person

This is addressed in Part 3 of the latest draft Bill. It has not changed, other than in respect of the title, but the Government’s response to the Committee is worth noting (below).

This is probably the most high profile issue addressed in the Bill: a person accused of domestic abuse being able to cross-examine his accuser in the family court. Since the default withdrawal of legal aid from the Civil Courts by the LASPO Act in 2013 it has become common in the family courts for people to be obliged to represent themselves as litigants-in-person (LIPs). This includes the many cases where one parent has been accused of domestic abuse by the other parent, leading to the possibility that an accused person could directly question his accuser in court.

The Bill would prohibit the accused from cross-examining his accuser. To be precise, cross-examination of the accuser by the accused would be prohibited under the Bill if the latter has been convicted of, accepted a caution for, or been charged with, an offence of which the accuser is the victim or alleged victim. He would also be so prohibited if there is an injunction, e.g., a protection order, against him in respect of the (alleged) victim. The Committee was concerned that in many cases these conditions would not be met. They recommended that the mandatory ban be extended to apply if the legal aid “DV Gateway” evidencing criterion is met. This Gateway is as wide as the Grand Canyon (see here) and does not really provide “evidence” in the usual meaning of the word.

The Government has not, so far, obliged the Committee on this issue. However, in their written response to the Committee the Government has observed,

“We recognise that many victims are not able to, or choose not to, pursue their abuser through the justice system, and that therefore these victims may not benefit from the automatic prohibition. We have provided for this in the Bill by giving the court the power to give a binding direction, in clearly-defined circumstances, prohibiting cross-examination in person where the threshold for the automatic prohibition is not met*. The court may give a direction prohibiting such cross-examination where they consider that without it the victim would likely suffer significant distress, or the quality of their evidence would likely be diminished, and that it would not be contrary to the interests of justice to give the direction. Our expectation is that this discretion will be widely used, and that every victim of domestic abuse, however it is evidenced, should benefit from the provisions.” *This refers to Clause 31T.

However, they added,

“We acknowledge the Committee’s recommendation to extend the range of evidence accepted for the automatic prohibition and will consider this very carefully over the course of the summer, including whether we need to make any amendments to the Bill as introduced.”

…so it is not clear if we have heard the last of this issue yet.