The long anticipated Domestic Abuse Act received Royal Assent on 29 April 2021. After numerous delays to the parliamentary timetable including the prorogation of parliament and the COVID-19 pandemic it has finally made its way on to the statute book.
The Act not only focuses on substantive and procedural changes to the criminal law, but also includes provisions which are relevant to family proceedings. The key provisions contained in the Act are as follows.
- The Act creates the first statutory definition of domestic abuse which includes not only physical violence but that of emotional, coercive and controlling behaviour and economic abuse. This can be limited to a single event or a series of actions. Children will now be given statutory recognition as “victims” rather than “witnesses” if they see, hear or experience abuse in the home.
- The Act has extended the scope of coercive and controlling behaviour to incorporate abuse post-separation. The offence, initially introduced by the Serious Crime Act 2015, has seen cases increase each year but now the definition will widen the parameters of “personally connected” to include ex-partners and family members who do not live together. This is likely to result in an increase in investigations and prosecutions for this offence.
Further commentary can be found here: Controlling and Coercive Behaviour: Widening the Net
- A statutory presumption is made under the Act, that victims be eligible for special measures in criminal, family and civil courts (for example, to provide evidence via video link). There is now a prohibition on victims of offences being cross-examined by the person who is alleged to have committed the offence against the victim.
- Following release from custody, high risk offenders could now be the subject of polygraph testing as a condition of their licence. Though polygraph testing isn’t 100% accurate, domestic abuse offenders could be subject to regular tests to determine whether they have breached release conditions. Should an individual’s risk be deemed to have increased they could be returned to prison.
See further commentary here: Lie detection tests for convicted domestic abuse offenders is a costly distraction.
- Police have been given new powers to issue civil Domestic Abuse Protection Notices (“DVPN”). These provide victims with immediate protection from offenders and require them to leave the home for up to 48 hours. Magistrates’ courts are now able to issue Domestic Abuse Protection Orders (“DVPO”) following an application by the police. It is suggested that these will prevent domestic abuse offending by enforcing mandatory steps on offenders to change their behaviour such as receiving mental health support. It is estimated that the Police attend more than one million incidents of Domestic Abuse each year, so these powers are expected to be used extensively in replacement of Domestic Violence Protection Orders (“DAPOs”) and Domestic Violence Protection Notices (“DVPNs”). Should individuals breach the conditions of a DAPO they will commit a criminal offence with a maximum penalty of 5 years imprisonment or dealt with by way of a civil penalty as contempt of court.
Further information can be found here: Coming soon: the Domestic Abuse Bill
- A statutory duty is to be placed on local authorities to ensure victims and their children are placed in refuges and other safe accommodation. All those made homeless by domestic abuse will automatically have ‘priority need’ for homelessness assistance.
- The Act ensures that the guidance supporting the Domestic Violence Disclosure Scheme (“Clare’s law”) is put on a statutory footing. The scheme permits any member of the public to ask the police if they or someone they know is in a relationship with someone that could be abusive towards them. However, in a recent Guardian article it was reported that the 35 day response limit following a ‘right to ask’ request was being missed in 23% of cases.
- The Act creates a new criminal offence of non-fatal strangulation (which includes suffocation). The act of non-fatal strangulation involves the intentional strangling of another person or any other act that affects a person’s breathing and could see offenders face up to 5 years imprisonment.
- It extends the scope of disclosing intimate images without the consent of the individual, also known as ‘revenge porn’, to cover the threat to disclose intimate images with the intent to cause distress. The maximum penalty of 2 years imprisonment remains in place.
- The Act contains a theoretical statutory bar to Defendants raising the defence of consent to serious harm for sexual gratification. The intention of the Act was to provide a clarification of the law on consent following the case of R v Brown  2 WLR 556. In Brown and associated cases, the Courts have held a person cannot consent to serious assaults, such as occasioning actual bodily harm for public policy reasons. It was argued that the so called ‘rough sex’ defence was being used often by individuals stating the death was caused accidentally during ‘rough sex’ where the victim consented and that this amendment was required to address. However, it remains to be seen whether this amendment has had the effect that it was intended to.
- A new Domestic Abuse Commissioner role was created and is the first of its kind. Nicola Jacobs, who has taken on this role indicated that the legislation won’t transform things overnight, that there is more to do and so she will be advocating for further change.
The Domestic Abuse Act 2021 was lauded as a landmark piece of legislation. However, a number of proposed reforms did not find their way into the final Act and a number of the headline amendments are not as extensive as they were in earlier drafts of the Bill. As a result, the Act is not as far reaching as had been anticipated and as a result it will have less direct impact on the substantive criminal law.
Time will tell whether the reforms that have been introduced by the legislation will have the desired effect of protecting victims of domestic abuse and imposing stricter measures on those who commit domestic abuse offences. What is certain is that the new powers will be tested as the numbers of domestic abuse cases continue to rise year on year independent of the COVID-19 pandemic.
For further information on the issues raised in this blog post, please contact a member of our criminal litigation team.
About the authors
Nick Dent is an Senior Associate in the Criminal Litigation team with experience in a broad range of general crime and white collar crime cases. He has significant experience at handling criminal cases from the interview under caution to the conclusion of a case. He frequently advises individuals who are under investigation or immediately following their arrest and is acutely aware of the emotional distress and pressure that this can entail. Nick has particular experience in acting on behalf of people who are in the public eye whose reputation and livelihood are at stake.
This blog was also co-authored by Emma Wardall, Paralegal, in the Criminal Litigation Department. Emma has been with the team for 9 years and is an associate member of CILEX.