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Marie Spenwyn and Fiona Clegg Marie Spenwyn and Fiona Clegg consider the impact of Covid-19 on domestic violence and review the current legislative framework.
Covid-19 and Domestic Violence
1. It is widely reported that domestic violence has significantly increased during the pandemic. The Guardian reported in April 2020 that: “Refuge reported a 700% increase in calls to its helpline in a single day, while a separate helpline for perpetrators of domestic abuse seeking help to change their behaviours received 25% more calls after the start of the Covid-19 Lockdown”.
2. There are concerns that fewer victims are reporting domestic violence at the moment, as it is not safe for them to do so. On the other hand, without currently being able to provide accurate statistics, it appears to be the experience of practitioners in police stations and courts that there has been an increase in offences that can be broadly categorised as domestic. We should bear in mind that there is no one type of victim of such offending and particularly at the moment that offences may be committed against a number of family members. It barely needs to be stated that Covid-19 and the attendant strains and stresses will be likely to exacerbate “triggers” that are well-known in patterns of such offending. In addition the lockdown will have inevitably restricted some victims’ access to support or the ability to escape. It is our view, and again based on anecdotal experience, that the use of Domestic Violence Protection Notices (DVPNs) and Domestic Violence Protection Orders (DVPOs) is on the rise in the meantime as a way to seek to bridge the gap. There has also been a renewed vigour to enact further powers designed to address domestic offences.
3. Whilst there are clear concerns about the rise in offending behaviour, as with any area of criminal practice and procedure, it is wise to ensure that practitioners are prepared to deal with all applications that will emerge, and which may be at the present time made more frequently. The cautionary tale from some of the publicised cases arising from the Covid-19 legislation in itself is a reminder that at times we all need to go back to basics to ensure that orders made are lawful and appropriate challenges are raised; particularly when some of the provisions – and the procedure – may not be familiar to many criminal practitioners. Current Framework – DVPN/DVPO
4. The reported increase in domestic violence during Covid-19 coupled with the fact that complainants are even less likely to come forward at the moment may mean the police are more likely to exercise their powers to issue a DVPN and make a subsequent application for a DVPO in the Magistrates’ Court. The current legislation providing for a DVPN/DVPO can be found in sections 24 to 33 of the Crime and Security Act 2010.
5. DVPNs/DVPOs are often a short term measure, however they clearly have significant consequences for those involved. If there has been a history of police involvement between a complainant (or potential complainant) and a defendant (or potential defendant), or other associated person, then there is a higher likelihood that a DVPN will be issued.
6. A DVPN may be issued to a person (“P”) aged 18 years or over if the authorising officer has reasonable grounds for believing that: i) P has been violent towards, or threatened violence towards, an associated person, and ii) the DVPN is necessary to protect that person from violence or a threat of violence by P.  The authorising officer must consider, amongst other factors, the opinion of the person for whose protection the DVPN would be issued as to its merits . However, it is important to note that the authorising officer may issue a DVPN in circumstances where the person for whose protection it is issued does not consent to the issuing of the DVPN . A DVPN must contain provisions which prohibit P from molesting the person for whose protection it is issued . In circumstances where the parties live together, the DVPN may also contain provisions prohibiting P from entering the premises and prohibiting P from evicting or excluding C from the premises .
7. The DVPN must be in writing and must be served on P personally by a constable . It must state the grounds on which is has been issued and that an application for a DVPO will be heard within 48 hours of the time of service of the DVPN . Notice of the hearing must be given to P. The DVPN continues in effect until that application has been determined. P may be arrested if a constable has reasonable grounds for believing that P is in breach of the DVPN. Should P be arrested for breach of a DVPN, they must be held in custody. P must also be brought before the Magistrates’ court which will hear the application for the DVPO within 24 hours of the time of arrest, or, if earlier, at the hearing of that application . The procedure is fast paced and practitioners representing clients alleged to have breached a DVPN will need to be prepared to also deal with the DVPO application.
8. There are a few points to bear in mind when an application for a DVPO is made. The process is in essence a civil procedure in the Magistrates’ Court. Strict time limits apply. The application must be heard no more than 48 hours after the DVPN was served . The court may adjourn the hearing of the application ; in such circumstances the DVPN continues in effect until the application has been determined . In practice however adjournments are infrequently granted, as matters are dealt with expeditiously. Given the speed of the applications and the making of an order (usually in the same sitting, with the court proceeding to the full ‘hearing’), it is important to be aware of the procedure and to bear in mind when specific evidential challenges need to be made:
i) The complainant is not required to make a statement or attend court. Instead the police statement(s) are used in evidence, as is any evidence admissible as hearsay. Usual procedures for admitting hearsay evidence in criminal cases do not apply.
ii) If the complainant has made a statement it can be relied upon even if a wish to withdraw it has been expressed, without opportunity for oral evidence/challenge.
iii) There is heavy reliance on BWV, with which comes general difficulties of context. For example BWV often includes the reactions of P as a result of police attendance, rather than being truly reflective of their demeanour.
iv) The test applied for the making of an order is the civil standard – on the balance of probabilities.
9. The case of Kerr v Chief Constable of Surrey Police  EWHC 2936 (Admin) is worth reviewing in the context of these orders. This case arose from judicial review proceedings concerning DVPOs and the evidential procedure; it provides an outline of the type of applications made as well as a review of the process. Kerr approves the position set out above.
10. However, there remains room for a submission being properly made as to whether the order is viable where a complainant does not support an order (e.g. if the parties intend to continue to live together) – under section 24(3) the decision maker is required to take into account the welfare of the children and the opinion of the person for whose benefit the order is purported to be made.
11. As with the issuing of a DVPN, whilst the court must take into account the opinions and views of the person for whose protection the order is designed, these are not overriding factors when being invited to make a DVPO. Ultimately, it is a decision for the court – frequently a DVPO is made where a complainant does not consent to its making (that being in many ways the raison d’etre of the orders as acknowledged in Kerr). Once it is made there is no provision to vary or revoke it; it must run until the period granted expires. The corollary is that there is no power for the police to apply to extend or vary the DVPO by the police after it has been made.
12. A breach of a DVPO is not a criminal offence but is a civil breach of a court order. Consequently, the breach only has to be proved on the balance of probabilities. As with the DVPO application, the rules of hearsay applicable to criminal cases do not apply; a breach can be proved by officers relying on hearsay. The procedure for a breach of a DVPO is analogous to a breach of bail hearing. Breach of a DVPO carries a penalty of £50 up to a maximum of £5,000 for every day that the person is in default of the order, or two months’ imprisonment. There is little that can be raised in terms of standard mitigation but representations can always be made to the court to request that they consider awarding credit, if the breach has been accepted at the earliest opportunity.
13. The Domestic Abuse Bill 2019-21 was debated at its second reading on Tuesday 28th April 2020 and has now been sent to a Public Bill Committee. The committee is scheduled to report by Thursday 25th June 2020.
14. The proposals in the Domestic Abuse Bill provide a far more robust, and arguably draconian, framework by providing for Domestic Abuse Protection Notice (DAPN) and Domestic Abuse Protection Order (DAPO). Should the Bill obtain royal assent in its current form, the conditions P’s can be subject to are far more intrusive and penalties for breach far greater. The new orders are regarded as being both ‘stronger’ and more accessible. Some key proposals include:
i) Increase in penalties: As noted above currently breach of a DVPO is not a criminal offence but is a civil breach of a court order. By contrast, the draft Bill will provide that the breach of an order will be a criminal offence, subject to a maximum penalty of five years’ imprisonment, an unlimited fine, or both. 
ii) Electronic monitoring: Proposed legislation would allow for electronic monitoring to be used as part of a DAPO to ensure that P’s are complying with their conditions. Electronic monitoring could include location and/or alcohol monitoring. 
iii) Victims and relevant third parties will be apply to apply for them, not just the police: Police will continue to be able to apply for a DAPO at the Magistrates’ court, whilst any other eligible applicant will be able to apply to the family court. DAPOs will also be able to be applied for by a party in any ongoing family or criminal proceedings.
iv) Imposition of positive requirements on P’s, not just prohibitive ones: Positive requirements could include participation in an intervention or parenting programme, or drug and/or alcohol treatment.
v) P’s subject to a DAPO will have to notify the police of their details: Breaches will be a criminal offence, subject to a maximum penalty of five years imprisonment, an unlimited fine, or both.
15. Whilst proposed conditions are more intrusive, one welcome difference it that in its current form the Bill does also include provisions to vary and discharge orders.  This would be a departure from the current position for DVPOs as set out above, where no such remedy is available and may provide some balance in due course.
16. If the Bill is passed, the new orders will be piloted in a number of police force areas and will be accompanied by new statutory guidance and practitioner toolkits. A Role for the Advocate?
17. The Domestic Abuse Bill was in motion well before Covid-19 but given the rise in offending it is inevitable that the Bill will gather momentum and further support, not least as a matter of policy to demonstrate a swift response to the concerns about domestic violence. If passed, the landscape of such orders will once again change, restrictions imposed will be greater and the stakes of breaching an order will be much higher.
18. A review of the current procedures, and of the proposed changes, leads to the question what is it that a defence advocate can bring to proceedings concerning the making of a DVPO, or in due course a DAPO, in circumstances where it appears there is little room (absent the most obvious cases where an order is inappropriate to which the court will likely be alive to) for submissions to prevent an order being made?
19. As practitioners we need to be vigilant, as ever, to ensure the orders available are imposed having taken into account all considerations that can be properly placed before the courts. There is still a place for representations to be made as to relevant conditions and posit alternative workable conditions to those proposed – urging the court to take into account the practical consequences for both those the order is designed to protect and the subject of it. Proper submissions can be made to ask the court to consider the period of the order to be reduced as a way to seek to achieve these aims. If further order is needed then the mechanism is in place for a further application to be made. This approach at least gives some reassurance that orders will be reviewed by the court, even if a formal review is not specifically provided for within the current provisions.
 Crime and Security Act 2010, s.24(2)(a) & (b)
 Ibid. s.24(3)(b)
 Ibid. s.24(5)
 Ibid s.24(6)
 Ibid. s.24(8) (a) to (d)
 Ibid. s.25(2)
 Ibid. s.25(1)(a) to (e )
 Ibid. s.26 (1)(a) & (b)
 Ibid. s.27(3)
 Ibid. s.27(8)
 Ibid. s.27(9)
 Domestic Abuse Bill 2019-21, s.36(5)(a) & (b)
 Ibid. s.32(6) and s.34
 Ibid. s.25(2)(a) to (d) and s.28
 Ibid. s.33
 Ibid. s.38 to s.40. Offences relating to notification – s. 40(3)(a) & (b) and s.40(6)
 Ibid. s.41 and s.42
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