Investigations in relation to alleged domestic abuse incidents are on the increase, greater police resources are being made available and the definition of many offences is being widened.
Perhaps the most significant development is the Domestic Abuse Act 2021 which has dramatically altered the landscape for the investigation and prosecution of domestic abuse offences.
As a consequence of the Act we are already seeing a change in approach and investigations becoming wider in terms of the potential offences under investigation.
The Domestic Abuse Act widens definitions and time limits for a number of offences. There is no doubt that as a result of this legislation the number of options open to investigators are increased substantially. We also find that a police complaint in relation to one incident can lead to wider investigation which examines the whole history of the relationship. During 2023 we expect the legislation to have an impact on common assault allegations.
Common Assault in Domestic Abuse Cases
A ‘common assault’ when a person inflicts violence on someone else or makes them think they are going to be subjected to violence. It does not have to involve actual physical violence. Threatening words or a raised fist can be enough for the crime to have been committed provided the victim thinks that they are about to be attacked. It is often prosecuted where violence is alleged but there is little or no sign of injury.
Common assault inevitably involves less serious assaults. It is ‘summary only’ which means that it can only be dealt with in the Magistrates’ Court. Significantly, under section 39 of the Criminal Justice Act 1988 proceedings be brought within six months of the incident alleged.
However, for offences of common assault which amount to domestic abuse, the Domestic Abuse Act extends the time limit for prosecution of common assault or battery to two years. Significantly, there is an added proviso that the proceedings must commence within six months of the complainant making or statement or being interviewed by the police. This provision came into effect on 28th June 2022, as part of the Police, Crime and Sentencing Courts Act 2022. It is not retrospective. An allegation could therefore not go back the full two years until 28th June 2024. What’s more given current delays in investigations and the requirements of the DPP’s Guidance on Charging 2020 many cases may not be prosecuted within the six months of the statement/interview of the complainant.
The key provisions contained in the Domestic Abuse Act
- Statutory definition of domestic abuse includes not only physical violence but that of ‘emotional, coercive and controlling behaviour and economic abuse’
- New role of Domestic Abuse Commissioner
- Children who witnessing abuse to be given statutory recognition as “victims”
- Scope of controlling and coercive behaviour is extended to include post separation abuse post-separation and definition of “personally connected” is widened to include ex-partners and family members not living together.
- New criminal offence of non-fatal strangulation (which includes suffocation). Non-fatal strangulation – the intentional strangling of another person or any other act that affects a person’s breathing. Maximum sentence – 5 years’ imprisonment. We are now seeing an increase in the number of cases where this offence is being investigated.
- Time limit for prosecution of common assault or battery in domestic abuse cases which under section 39 of the Criminal Justice Act 1988 increased to two years.
- Statutory presumption in favour of special measuresfor complainants in criminal, family and civil courts (for example, to provide evidence via video link). See also – prohibition on complainants being cross-examined by alleged abuser.
- High risk offenders may be subjected to polygraph testing as a condition of their licence, to determine whether they have breached release conditions.
- New police powers to issue civil Domestic Abuse Protection Notices(“DAPN”) – providing victims with immediate protection from alleged offenders with requirement to leave the home for up to 48 hours. Magistrates able to issue Domestic Abuse Protection Orders (“DAPO”) following an application by the police. Domestic Violence Protection Notices and Orders will be replaced.
- Statutory duty upon local authorities to ensure victims and children are placed in refuges and other safe accommodation.
- Guidance supporting the Domestic Violence Disclosure Scheme (“Clare’s law”) is placed on a statutory footing.
- Definition of ‘revenge porn’ extended to cover the threat to disclose intimate image with intent to cause distress.
The team at Olliers has many years’ experience of defending clients facing allegations of domestic abuse. Allegations may relate to individual incidents, however many come about at the end of a relationship and may relate to a series of incidents or a pattern of behaviour. Often our clients face a combination of police investigation, financial disputes and difficulties with contact to children.
Definition of “domestic abuse” under the Domestic Abuse Act 2021
Domestic abuse can only occur between individuals aged 16 or over. They must be ‘personally connected’ and the behaviour must fall within the definition of ‘abuse’ which consists of;
(a) physical or sexual abuse;
(b) violent or threatening behaviour;
(c) controlling or coercive behaviour;
(d) economic abuse;
(e) psychological, emotional or other abuse;
The behaviour may involve a single incident or a course of conduct.
At Olliers, we specialise in representing clients during the investigation stage of a case. Our pre-charge team will always look at early pre-charge engagement with investigators. Our end game is effective representations against charge arguing on behalf of our clients that the ‘Charging Standard’ as contained within the Code for Crown Prosecutors is not met. We will do this by arguing either that there is not a ‘realistic prospect of a conviction’ or that a prosecution is not in the ‘public interest’.