Combatting domestic abuse

Following the launch of a scheme piloting the use of domestic abuse protection orders, Chartered Legal Executive Janine Cowie explains how the new orders differ from the old system and the potential impact on victims, defendants and the justice system

This year saw the launch of a two-year pilot scheme to evaluate the effectiveness of domestic abuse protection orders (DAPOs), which were introduced under the Domestic Abuse Act 2021, with a view to providing more protection for domestic abuse victims.

The new system-wide orders are designed to replace the old domestic violence protection notices (DVPNs), which are currently used alongside a number of other orders in cases of domestic violence.

DVPNs

Since 2014, DVPNs have been used across all police forces in England and Wales. They enable police and magistrates’ courts to put in place protective measures in the immediate aftermath of a domestic violence incident.

Other orders – such as non-molestation orders, occupation orders and restraining orders (conviction or non-conviction) – can also assist victims of domestic violence but there has been no single order accessible across criminal, family and civil courts. This has sometimes led to confusion for victims and practitioners on what they could apply for, as well as causing issues with enforcement.

A domestic violence protection order (DVPO) follows on from a DVPN and, when issued, can last for a maximum of 28 days on application by police to the magistrates’ court. Conditions in a DVPO can impose prohibitions on a perpetrator, such as not contacting a victim or preventing them from entering a certain area. However, breach of a DVPO is not a criminal offence, so its effectiveness has been extremely limited, particularly for anyone stuck in long-term domestically violent relationships or situations.

Greater protections

Research and representations made during the drafting of the Domestic Abuse Bill, which became the Domestic Abuse Act 2021 and ratified the Istanbul Convention, found that existing injunctions were limited in their effectiveness. A system-wide order was desperately needed to bring together existing legislation, make any available orders more onerous on the defendant and provide more protection for victims.

As a result, domestic abuse protection notices (DAPN) and DAPOs were introduced. These orders are currently subject to a pilot scheme in Greater Manchester, three London Boroughs (Croydon, Bromley, and Sutton), the British Transport Police, Cleveland Police and North Wales Police.

“A system-wide order was desperately needed to bring together existing legislation, make any available orders more onerous on the defendant and provide more protection for victims.” 

The pilot is expected to last two years, with an initial focus on these areas to evaluate the effectiveness of DAPOs before a potential national rollout.

A DAPN, like a DVPN, will give victims immediate protection following an incident. They can be issued by police and include requirements not to contact a protected person, not to go within a certain distance of a protected person, and not to enter the address or attend the address of a protected person for up to 48 hours.

If the defendant breaches a DAPN, they must be bought before a magistrates’ court within 24 hours, and the court can remand them in custody or give them conditional bail under similar requirements of the DAPN.

Overall, a DAPN and DAPO go much further than their predecessors.

DAPOs can be made on conviction or acquittal of a criminal offence, or without associated criminal matters through the civil and family courts. The police will make an application to a magistrates’ court but a victim or a specified third party such as a family member, friend, or social worker can apply to the family court.

Courts also have the power to issue a DAPO in favour of someone who appears to be a victim of domestic abuse, even if they have not applied for one.

Rehabilitation

The main difference between DAPOs and the previous DVPOs is that the former aims both to protect the victim and rehabilitate the perpetrator, with the aim of decreasing current levels of domestic abuse in the country.

The order can be made in favour of anyone who may need protection. The court must be satisfied that the order is necessary and proportionate to protect someone from domestic abuse, or risk of domestic abuse, and be satisfied about its suitability and enforceability against the perpetrator, considering those with responsibility for supervision.

Unlike breach of a DVPO, breach of a DAPO is an either-way offence which can result in up to five years’ imprisonment. Defendants are also precluded from receiving a conditional discharge for a breach so they cannot be seen to be ‘getting away with it’. The punishment of a DAPO includes similar results to a restraining order but with the addition of a rehabilitative element, which can include an alcohol treatment requirement or requirements to undertake domestic abuse courses.

DAPOs protect people from the age of 16, compared to 18 for DVPOs.

Like DVPOs, DAPOs engage article 8 of the European Convention on Human Rights, which affords someone the right to live a free and uninterrupted family life.

Unlike a DVPO, a DAPO can be made for a specific period, until a specified event such as completion of a specified programme, or until a further order is made. The last element allows a court to be more draconian in its approach by extending the operational period of the order until a further order is made, rather than a DVPO, which can only be issued for a maximum of 28 days.

Notification requirements

There are also notification requirements within a DAPO, notifying police of the perpetrator’s name and home address within three days of the order, and informing them of any change of circumstances such as a change of address. If the defendant is already subject to notification requirements from another DAPO or a sexual harm prevention order, then they would not have to inform the police again. They must also provide fingerprints when requested. Failure to comply with any of these requirements is a further criminal offence of an either-way nature.

A DAPO can also be made without notice, unlike a DVPO where a defendant has to be informed. However, like a non-molestation order, if DAPO is made without notice, then the court must arrange a later hearing to allow the defendant to make representations. The order must be served on the defendant by police in person.

It is estimated that around 55,000 DAPO applications will be made per year and legal aid will be available to applicants and defendants. However, if the police are the applicant, they may be subject to application costs, dependant on the outcome of the pilot.

Awareness and training

The impact of these orders on the justice system is yet to be seen and we await the findings of the pilot.

There are, however, already concerns about the procedure that allows DAPOs to be applied for in the absence of the subject and how much impact notification requirements will have on their daily life and employment. There are also questions about how information will be shared between the criminal and family courts, given the DAPO’s hybrid nature.

There is no doubt that effective implementation of the new orders will require a great deal of training to ensure the police, courts and users of the justice system are fully aware of the changes and how they work in practice.

As with any new legislation, mistakes may very well be made when making applications, which could potentially lead to miscarriages of justice. It is hoped the pilot scheme will highlight where issues might lie so that a future roll-out to the whole of England and Wales is as effective as possible.

Janine Cowie and Charlotte Al-Khanchi are Chartered Legal Executives and legal advisers at Gwent Magistrates’ Courts