The Domestic Abuse Act 2021

Here we examine the extent to which the Domestic Abuse Act has changed the landscape for the investigation and prosecution of domestic abuse offences. 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. 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 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

(1) This section defines “domestic abuse” for the purposes of this Act. (2) Behaviour of a person (“A”) towards another person (“B”) is “domestic abuse” if— (a) A and B are each aged 16 or over and are personally connected to each other, and (b) the behaviour is abusive. (3) Behaviour is “abusive” if it consists of any of the following— (a) physical or sexual abuse; (b) violent or threatening behaviour; (c) controlling or coercive behaviour; (d) economic abuse (see subsection (4)); (e) psychological, emotional or other abuse; and it does not matter whether the behaviour consists of a single incident or a course of conduct.

Impact of the Domestic Abuse Act on Criminal investigations

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.         

The key provisions contained in the Act are as follows:

1. Creation of new role of Domestic Abuse Commissioner, Nicola Jacobs
2. Statutory definition of domestic abuse includes not only physical violence but that of ‘emotional, coercive and controlling behaviour and economic abuse’
3. Children who witness abuse to be given statutory recognition as “victims”
4. The scope of ‘coercive and controlling behaviour is extended to incorporate abuse post-separation. The definition of “personally connected” is widened to include ex-partners and family members who do not live together.
5. 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.
6. The time limit for prosecution of common assault or battery in domestic abuse cases which under section 39 of the Criminal Justice Act 1988 was six months – the new time limit is two years. The provision came into force in June 2022. It is not retrospective and we expect it to feature in common assault investigations during 2023.
7. Statutory presumption in favour of special measures for complainants in criminal, family and civil courts (for example, to provide evidence via video link). There is also a prohibition on complainants being cross-examined by alleged abuser.
8. High risk offenders could now be the subject of polygraph testing as a condition of their parole licence, to determine whether they have breached release conditions.
9. 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. Breach of DAPO is a criminal offence with maximum sentence of five years’ imprisonment. Increasingly we find that we are contacted by clients under investigation who have been bailed and then issued with a DVPN.
10. Statutory duty is to be placed upon local authorities to ensure victims and children are placed in refuges and other safe accommodation.
11. Guidance supporting the Domestic Violence Disclosure Scheme (“Clare’s law”) is placed on a statutory footing.
12. Definition of ‘revenge porn’ extended to cover the threat to disclose intimate images with the intent to cause distress.

How can we help?

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’.