By Jess Butterell (Pupil)

Introduction

The period of ‘lockdown’ from the Covid-19 pandemic brings with it anxiety for many people. However, the reality of lockdown can be dangerous for some. Namely, those who live with an abuser, with reports of 16 Domestic Abuse related killings occurring within the first three weeks of lockdown.[1] Which jurisdiction should take responsibility for protecting domestic abuse victims; is domestic abuse during lockdown a social care issue or an issue for the police?

The Law

This is a surprisingly ambiguous area of law as there is no current statutory definition of domestic abuse. The CPS define it as:

“Any incident of controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners or family members, regardless of their gender or sexuality.”[2] 

Prior to the outbreak of Covid-19, the Government were making progress towards implementing the Domestic Abuse Bill 2020 (“the Bill”) which had its first reading on 3 March. The aim of this legislation being to “transform the response to domestic abuse, helping to prevent offending, protect victims and ensure they have the support they need.[3] The Bill was set to include a statutory definition of domestic abuse, in addition to placing a duty upon local authorities in England to provide support to victims of domestic abuse through the provision of refuges and other support lines; thus suggesting a social care approach to the issue. The progress of the Bill has been halted by the lockdown.

Domestic Violence during Lockdown

Lockdown has seen an increase in domestic violence; the Metropolitan Police have been arresting an average of 100 people a day for domestic violence related offences during lockdown.[4] The stresses of working from home, the new-found responsibility for parents of home-schooling and keeping children entertained whilst maintaining a level of normality can lead to tension.

In addition to partner-to-partner domestic violence, some parents have reported the challenges of being in lockdown with aggressive children.[5] This can be concerning for parents of children with conditions such as ADHD or autism who are used to receiving support in daily life, particularly where coping mechanisms are now unavailable.

Reporting of partner-to-partner domestic violence has also increased. The National Domestic Abuse helpline has seen a 25% increase in calls and online requests for help since the lockdown.[6] The UK’s largest domestic abuse charity, Refuge, has also reported a 700% increase in calls to its helpline in a single day.[7] Campaigners have identified at least 16 suspected domestic abuse killings between 23 March and 12 April 2020. Over the last decade the same period had an average of five deaths.[8] With domestic violence reaching a five year record high as of last September[9]  this was already a worrying issue, and the increase during lockdown cannot be ignored.

The Current Advice for Victims of Domestic Violence

The current advice given for those victims of domestic violence is to contact the police and seek support from domestic abuse services. Cleveland Police and domestic violence charities have tried to solve the difficulty of reporting an abusive partner while living with them in lockdown by spreading awareness of a scheme to ask for help by pressing 55 or coughing after dialling 999.[10]

Speaking on this topic last week, Priti Patel sought to assure victims of domestic violence “we have not forgotten you and we will not let you down…And my message to every perpetrator is equally as simple: you will not get away with your crimes.[11] Ms Patel stated the government would protect victims, saying it had given £1.6 billion to local councils to help those in need and that they were working with charities about the issue. Despite this funding, and Local Authorities’ experience in intervening in domestic situations effecting children, they still rank low in the list of suggested contacts for victims[12] with the police at the top of the list.

Whose Jurisdiction is it in Lockdown?

From the above there may be a level of confusion about domestic violence during lockdown as regards which jurisdiction the issue should fall into; should victims be using the criminal jurisdiction and calling the police for help in lockdown, or, should the local authorities and domestic violence charities be taking control of this viewing it through a social care lens.

The answer must be that all of these avenues should be available to victims. Following the announcement of the CPS that during lockdown they would be prioritising the “most serious cases”. This has been endorsed by Chair of the Bar Council, Amanda Pinto QC:

“The important thing is to ensure that the right priorities are identified and given practical effect.  Of course, it is in the public interest that those who commit crimes are dealt with for their wrongdoing and that they are dealt with swiftly. It is all the more so for serious crime.”[13]

This may be taken to include serious cases of domestic abuse where the violence has escalated into physical harm to the victim. However, it remains to be seen whether the lesser offences which capture this behaviour such as harassment or psychological abuse may fall through the net of this new approach. A further offence which may not be captured by this would be any domestic violence from parent-to-child.

In the context of child-to-parent violence in lockdown there is ambiguity as to the approach currently being taken which previously would have been solely in the sphere of social care. Commander Sue Williams from the Metropolitan Police leads with a pragmatic approach in pledging an amnesty for domestic violence victims breaching lockdown rules: “we’re interested in them as a victim of crime and holding the perpetrator to account.”[14] Such a pragmatic approach is undoubtedly helpful in these times for all types of domestic violence.

The family jurisdiction also has a number of mechanisms available to victims of domestic violence. These include Non-Molestation and Occupation Orders. One benefit of such orders is the ability for them to be granted ex-parte and once granted the breach of an order by the abuser constitutes a criminal offence and this can carry a period of imprisonment for up to four years.[15] Although these orders provide a legal recourse for victims of lockdown which is comforting for them, it is unclear whether a breach would be deemed one of the ‘more serious crimes’ prioritised by the CPS during lockdown.

Outside the traditional criminal jurisdiction the police have the ability to apply for civil orders to address issues of domestic violence. This may be a pragmatic way of dealing with domestic violence during lockdown. The Domestic Violence Prevention Order (“DVPO”) available to police could become an important tool to deal with this issue as they can provide reassurance through legal action for victims which can be heard and granted (virtually) by a Magistrates Court at short notice. A DVPO provides protective measures in the immediate aftermath of a domestic violence allegation with the reassurance the perpetrator would face a fine or imprisonment should they breach the DVPO.

Additionally, DVPOs fall within the class of urgent cases that are currently being processed by HMCTS and are less resource intensive than lengthy investigations and prosecutions for the police. A DVPO implements prohibitions to protect a victim from further acts, or threats of violence, for a maximum period of 28 days. A DVPO in lockdown may offer the reassurance to victims of domestic violence in the form of an immediate remedy. An imperfect, quick and relatively short-lived solution; however, the DVPO may prove to be vital in combatting instances of domestic violence for the police and victims in this uncertain climate. As a Chambers, KBW is well equipped to represent the police in DVPO hearings. Our members have significant expertise in obtaining these somewhat unusual orders which are often sought, understandably, within a short timeframe and at any time of the week. Controversially, DVPOs can be granted without the support of the victim.

Conclusion

Overall, the unprecedented situation we find ourselves in calls for a pragmatic approach from the justice system in how we respond to domestic violence (and its rise). Whilst those tragic cases where the result is one of physical violence can be expected to be dealt with through the usual police/criminal channels there remains a question mark about the prevention of serious physical abuse and the recognition of psychological abuse.

There is clearly a need to address psychological harm, lesser physical violence and to try and adopt a guarantee of safety for those who feel trapped in their house with their abusers. The use of DVPOs presents one option for police forces. Further to this, there is also the need for the family sphere of social care to become involved in helping those in need. Local authorities and domestic violence charities should continue to provide support for those who need it whilst working with the police to further their ability to deal with domestic violence in these uncertain times.

[1] https://www.theguardian.com/society/2020/apr/15/domestic-abuse-killings-more-than-double-amid-covid-19-lockdown

[2] https://www.cps.gov.uk/domestic-abuse

[3] Victoria Atkins, Minister for Safeguarding ,https://www.gov.uk/government/publications/domestic-abuse-bill-2020-factsheets/domestic-abuse-bill-2020-overarching-factsheet.

[4] https://www.theguardian.com/society/2020/apr/24/charges-and-cautions-for-domestic-violence-rise-by-24-in-london

[5] https://www.bbc.co.uk/news/uk-52363197

[6] https://www.bbc.co.uk/news/uk-52157620

[7] https://www.theguardian.com/society/2020/apr/12/domestic-violence-surges-seven-hundred-per-cent-uk-coronavirus

[8] https://onepumpcourt.co.uk/news/seeking-settlement-as-a-victim-of-domestic-violence-during-the-covid-19-pandemic/

[9] https://www.bbc.co.uk/news/uk-49459674

[10] https://www.bbc.co.uk/news/uk-england-tees-52119770

[11] https://www.bbc.co.uk/news/uk-52081280

[12] https://www.gov.uk/government/publications/coronavirus-covid-19-and-domestic-abuse/coronavirus-covid-19-support-for-victims-of-domestic-abuse

[13] Ibid.

[14] https://www.theguardian.com/society/2020/apr/24/charges-and-cautions-for-domestic-violence-rise-by-24-in-london

[15] https://www.sentencingcouncil.org.uk/offences/magistrates-court/item/breach-of-a-protective-order-restraining-and-non-molestation-orders/