Domestic Violence, Crime and Victims Act 2004
Encyclopedia
The Domestic Violence, Crime and Victims Act 2004 (c 28) is an Act
of the Parliament of the United Kingdom
. It is concerned with criminal justice and concentrates upon legal protection and assistance to victims of crime, particularly domestic violence
. It also expands the provision for trials without a jury, brings in new rules for trials for causing the death of a child or vulnerable adult, and permits bailiff
s to use force to enter homes.
an arrestable offence
. The practical effect of this change was that the police could arrest a suspect at the scene without a warrant, rather than potentially be compelled to leave the suspected assailant with his or her alleged victim. Previously the police would have to allege assault occasioning actual bodily harm, which was arrestable, in order to detain the suspected assailant in borderline cases.
However, the concept of "arrestable offence" was abolished on 1 January 2006. , police can effect an arrest, even in the case of suspected common assault, in order "to prevent the person in question causing physical injury to himself or any other person."
The Act specified common assault as an alternative verdict to a count on an aggravated assault in the Crown Court
, though it is not itself an indictable offence
.
).
The prosecution must satisfy the court that three conditions are met:
The judge should take into account any ways that jury trial can be made easier, but no such measure should result in a trial where the defendant faces a lesser sentence than would be available with the new measures.
Lord Goddard earlier commented in Regina v Abbott
The Law Commission's report commented that this meant one or other parent were potentially "getting away with murder".
The Act deals with the problem in two ways: firstly by creating an offence of "causing or allowing the death of a child or vulnerable adult", and secondly by amending the rules of court procedure to require joint defendants to give their account of events in the witness box, effectively forcing them to incriminate the other if appropriate.
Therefore if it can be established that a child or vulnerable adult died as a result of an unlawful act, it need not be proved which of the two responsible members of the household either caused the death or allowed it to happen.
If there was no obvious history of violence, or any reason to suspect it, then the other members of the household would not be guilty of this offence, even in clear cases of homicide. Where there is no reason to suspect the victim is at risk, other members of the household cannot reasonably be expected to have taken steps to prevent the abuse.
The ambit of the "adverse inference
" (right of the jury to make assumptions about any part of the case, including the guilt of the defendant, based upon his or her failure to answer any question put in court) is extended to include an inference on a joint charge of homicide (murder and manslaughter) and the new offence; this means that if a person is charged with either (or both) homicide offences and this new offence, then silence in the witness box can imply guilt of homicide as well as the new offence. This is subject to the usual safeguard that a person cannot be convicted solely upon the basis of their silence.
The point at which a "no case to answer" submission (see definition) can be made has in certain circumstances been moved to the end of the whole case, not just the prosecution. Joint charges of homicide and the new offence can only be dismissed at the end of the whole case (if the new offence has survived past that stage as well).
The new offence will survive the "no case to answer" test as long as the fundamentals of the offence are demonstrated - the prosecution do not have to show whether the defendant caused or allowed the death to happen. The defendant will be under pressure to give evidence about what occurred - not to do so would result in the adverse inference being drawn.
s to use force to enter homes, overturning a centuries-old doctrine, confirmed by Semayne's case
(1604), that "an Englishman's home is his castle". This had been described in the eighteenth century by William Blackstone
, who wrote in Book 4, Chapter 16 of his Commentaries on the Laws of England
:
In 2009 charities providing advice to debtors said they were seeing bailiffs threatening to break in unless the debtor paid the full fine immediately, as well court and bailiff costs. Previously, charities had been able to advise debtors that bailiffs did not have the right to force entry, and the fine could be referred back to the courts and affordable payment schedules worked out.
Acts of Parliament in the United Kingdom
An Act of Parliament in the United Kingdom is a type of legislation called primary legislation. These Acts are passed by the Parliament of the United Kingdom at Westminster, or by the Scottish Parliament at Edinburgh....
of the Parliament of the United Kingdom
Parliament of the United Kingdom
The Parliament of the United Kingdom of Great Britain and Northern Ireland is the supreme legislative body in the United Kingdom, British Crown dependencies and British overseas territories, located in London...
. It is concerned with criminal justice and concentrates upon legal protection and assistance to victims of crime, particularly domestic violence
Domestic violence
Domestic violence, also known as domestic abuse, spousal abuse, battering, family violence, and intimate partner violence , is broadly defined as a pattern of abusive behaviors by one or both partners in an intimate relationship such as marriage, dating, family, or cohabitation...
. It also expands the provision for trials without a jury, brings in new rules for trials for causing the death of a child or vulnerable adult, and permits bailiff
Bailiff
A bailiff is a governor or custodian ; a legal officer to whom some degree of authority, care or jurisdiction is committed...
s to use force to enter homes.
Origins
The Act's provisions originated in several reports:- The Home Office White Paper Justice for All (Cm 5563) - many of whose recommendations were implemented in the Criminal Justice Act 2003Criminal Justice Act 2003The Criminal Justice Act 2003 is an Act of the Parliament of the United Kingdom. It is a wide ranging measure introduced to modernise many areas of the criminal justice system in England and Wales and, to a lesser extent, in Scotland and Northern Ireland....
- The Home Office consultation paper Safety and Justice: the Government's Proposals on Domestic Violence (Cm 5847), published in June 2003
- The Home Office policy leaflet "A Better Deal for Victims and Witnesses", published on 21 November 2002
- National Society for the Protection of ChildrenNSPCCThe National Society for the Prevention of Cruelty to Children is a United Kingdom charity campaigning and working in child protection.-History:...
("NSPCC") "Which of you did it?" Working Group Report, published in Autumn 2003 - The Law Commission report: Children: their non-accidental death or serious injury (criminal trials) (LC282), published on 16 September 2003
- The Law Commission consultative report Children: their non-accidental death or serious injury (criminal trials) - a consultative report (LC279), published on 15 April 2003
- The Law Commission report: [The Effective Prosecution of Multiple Offending] (LC277), published in October 2002
- The Law Commission report: Double Jeopardy and Prosecution Appeals (LC267), published on the 6 March 2001
Non-molestation orders
Non-molestation orders under the Family Law Act 1996 were amended to provide a criminal sanction for non-compliance, with a maximum sentence of 5 years' imprisonment. The circumstances in which such orders could be imposed was extended to include same-sex couples and co-habiting couples on an equal footing with married couples. Former co-habitants are also included.Restraining orders
Restraining orders (preventing the recipient from doing anything specified in the order) can be imposed upon acquitted defendants. They are imposed if the court "considers it necessary to do so to protect a person from harassment by the defendant". The Court of Appeal in allowing an appeal against conviction may also remit the matter to the Crown Court to consider a restraining order in respect of the otherwise successful appellant.Common assault
The Act deemed common assaultCommon assault
Common assault was an offence under the common law of England, and has been held now to be a statutory offence in England and Wales. It is committed by a person who causes another person to apprehend the immediate use of unlawful violence by the defendant. It was thought to include battery...
an arrestable offence
Arrestable offence
Arrestable offence is a legal term now obsolete in English law and the legal system of Northern Ireland, but still used in the legal system of the Republic of Ireland. The Criminal Law Act 1967 introduced the category to replace the ancient term felony...
. The practical effect of this change was that the police could arrest a suspect at the scene without a warrant, rather than potentially be compelled to leave the suspected assailant with his or her alleged victim. Previously the police would have to allege assault occasioning actual bodily harm, which was arrestable, in order to detain the suspected assailant in borderline cases.
However, the concept of "arrestable offence" was abolished on 1 January 2006. , police can effect an arrest, even in the case of suspected common assault, in order "to prevent the person in question causing physical injury to himself or any other person."
The Act specified common assault as an alternative verdict to a count on an aggravated assault in the Crown Court
Crown Court
The Crown Court of England and Wales is, together with the High Court of Justice and the Court of Appeal, one of the constituent parts of the Senior Courts of England and Wales...
, though it is not itself an indictable offence
Indictable offence
In many common law jurisdictions , an indictable offence is an offence which can only be tried on an indictment after a preliminary hearing to determine whether there is a prima facie case to answer or by a grand jury...
.
Fitness to plead
Judges, not a specially empanelled jury, now decide if a defendant is fit to plead.". The regime for dealing with defendants who are unfit to plead or not guilty by reason of insanity (that is, committed the physical acts constituting the offence but without the sane intent) has also been modified. The court, not the Home Secretary, makes the assessment (requiring medical evidence to do so) whether the defendant should be committed to a psychiatric hospital.Trial by jury of sample counts only
Trials with a substantial number of charges can now be split into two phases: trial by jury of "specimen counts" and judge-only trial of the remaining counts. This further expands the circumstances in which trials can be heard without a jury (see the Criminal Justice Act 2003Criminal Justice Act 2003
The Criminal Justice Act 2003 is an Act of the Parliament of the United Kingdom. It is a wide ranging measure introduced to modernise many areas of the criminal justice system in England and Wales and, to a lesser extent, in Scotland and Northern Ireland....
).
The prosecution must satisfy the court that three conditions are met:
- given the number of counts, a trial by jury involving all of them would be impracticable
- each count or group of counts to be tried by a jury can be regarded as a sample of counts for judge-only trial
- it is in the interests of justice
The judge should take into account any ways that jury trial can be made easier, but no such measure should result in a trial where the defendant faces a lesser sentence than would be available with the new measures.
Previous difficulties with the law
An intractable legal problem had arisen in relation to cases where a child or vulnerable adult cared for by two people dies as a result of ill-treatment. It is known that at least one of two people is responsible, but not which. This problem had been analysed in a number of cases. The Court of Appeal in Lane v Lane held that neither person could be convicted, nor the trial proceed past the end of the prosecution case, because there was no evidence specifically pointing to a certain defendant.Lord Goddard earlier commented in Regina v Abbott
"Probably one or other must have committed it, but there was not evidence which, and although it is unfortunate that a guilty party cannot be brought to
justice, it is far more important that there should not be a miscarriage of justice and that the law maintained that the prosecution should prove its case."
The Law Commission's report commented that this meant one or other parent were potentially "getting away with murder".
The Act deals with the problem in two ways: firstly by creating an offence of "causing or allowing the death of a child or vulnerable adult", and secondly by amending the rules of court procedure to require joint defendants to give their account of events in the witness box, effectively forcing them to incriminate the other if appropriate.
The new offence
The offence of "causing or allowing the death of a child or vulnerable adult", now referred to as the "new offence", is committed under section 5 of the Act if the following four conditions apply:- A child or vulnerable adult dies as a result of an unlawful act of a person in the "same household"
- The defendant was also member of the same household, with frequent contact with the victim, and present at the time of the unlawful act
- There was a risk of serious physical harm to the victim at the time
- Either:
- The defendant did the unlawful act (that is, directly caused the death), or
- Was aware of the risk (or ought to have been), didn't take reasonable steps to do anything about it, and foresaw the circumstances which led up to the unlawful act causing death
Therefore if it can be established that a child or vulnerable adult died as a result of an unlawful act, it need not be proved which of the two responsible members of the household either caused the death or allowed it to happen.
If there was no obvious history of violence, or any reason to suspect it, then the other members of the household would not be guilty of this offence, even in clear cases of homicide. Where there is no reason to suspect the victim is at risk, other members of the household cannot reasonably be expected to have taken steps to prevent the abuse.
New procedure
Court procedure is amended to restrict the circumstances in which the trial can be stopped at the end of the prosecution case and before the defence case.The ambit of the "adverse inference
Adverse inference
Adverse inference is a legal inference, adverse to the concerned party, drawn from silence or absence of requested evidence. It is part of evidence codes based on common law in various countries....
" (right of the jury to make assumptions about any part of the case, including the guilt of the defendant, based upon his or her failure to answer any question put in court) is extended to include an inference on a joint charge of homicide (murder and manslaughter) and the new offence; this means that if a person is charged with either (or both) homicide offences and this new offence, then silence in the witness box can imply guilt of homicide as well as the new offence. This is subject to the usual safeguard that a person cannot be convicted solely upon the basis of their silence.
The point at which a "no case to answer" submission (see definition) can be made has in certain circumstances been moved to the end of the whole case, not just the prosecution. Joint charges of homicide and the new offence can only be dismissed at the end of the whole case (if the new offence has survived past that stage as well).
The new offence will survive the "no case to answer" test as long as the fundamentals of the offence are demonstrated - the prosecution do not have to show whether the defendant caused or allowed the death to happen. The defendant will be under pressure to give evidence about what occurred - not to do so would result in the adverse inference being drawn.
Bailiff powers
The Act permits bailiffBailiff
A bailiff is a governor or custodian ; a legal officer to whom some degree of authority, care or jurisdiction is committed...
s to use force to enter homes, overturning a centuries-old doctrine, confirmed by Semayne's case
Semayne's case
Semayne's Case 77 Eng. Rep. 194 ; 5 Co. Rep. 91, is an English common law case reported by Sir Edward Coke, who was then the Attorney General of England. In the US, it is recognised as establishing the "knock and announce" rule....
(1604), that "an Englishman's home is his castle". This had been described in the eighteenth century by William Blackstone
William Blackstone
Sir William Blackstone KC SL was an English jurist, judge and Tory politician of the eighteenth century. He is most noted for writing the Commentaries on the Laws of England. Born into a middle class family in London, Blackstone was educated at Charterhouse School before matriculating at Pembroke...
, who wrote in Book 4, Chapter 16 of his Commentaries on the Laws of England
Commentaries on the Laws of England
The Commentaries on the Laws of England are an influential 18th-century treatise on the common law of England by Sir William Blackstone, originally published by the Clarendon Press at Oxford, 1765–1769...
:
In 2009 charities providing advice to debtors said they were seeing bailiffs threatening to break in unless the debtor paid the full fine immediately, as well court and bailiff costs. Previously, charities had been able to advise debtors that bailiffs did not have the right to force entry, and the fine could be referred back to the courts and affordable payment schedules worked out.
Section 60 - Commencement
The following orders have been made under this section:- The Domestic Violence, Crime and Victims Act 2004 (Commencement No. 1) Order 2005 (S.I. 2005/579 (C. 26))
- The Domestic Violence, Crime and Victims Act 2004 (Commencement No. 2) Order 2005 (S.I. 2005/1705 (C. 71))
- The Domestic Violence, Crime and Victims Act 2004 (Commencement No. 3) Order 2005 (S.I. 2005/1821 (C. 77))
- The Domestic Violence, Crime and Victims Act 2004 (Commencement No. 4) Order 2005 (S.I. 2005/2848 (C. 119))
- The Domestic Violence, Crime and Victims Act 2004 (Commencement No. 5) Order 2005 (S.I. 2005/3196 (C. 137))
- The Domestic Violence, Crime and Victims Act 2004 (Commencement No. 6) Order 2006 (S.I. 2006/2662 (C. 90))
- The Domestic Violence, Crime and Victims Act 2004 (Commencement No. 7 and Transitional Provision) Order 2006 (S.I. 2006/3423 (C. 131))
- The Domestic Violence, Crime and Victims Act 2004 (Commencement No. 8) Order 2007 (S.I. 2007/602 (C. 26))
- The Domestic Violence, Crime and Victims Act 2004 (Commencement No. 9 and Transitional Provisions) Order 2007 (S.I. 2007/1845 (C. 69))
- The Domestic Violence, Crime and Victims Act 2004 (Commencement No. 10) Order 2008 (S.I. 2008/3065 (C. 131))
- The Domestic Violence, Crime and Victims Act 2004 (Commencement No. 11) Order 2009 (S.I. 2009/2501 (C. 104))
- The Domestic Violence, Crime and Victims Act 2004 (Commencement No. 12) Order 2009 (S.I. 2009/2616 (C. 117))
- The Domestic Violence, Crime and Victims Act 2004 (Commencement No. 13) Order 2010 (S.I. 2010/129 (C. 16))
- The Domestic Violence, Crime and Victims Act 2004 (Commencement No. 14) Order 2011 (S.I. 2011/1008 (C. 41))