In 1997, the national political landscape changed significantly with the election of the New Labour government. In the immediately following years, a number of key policy developments, particularly around crime prevention and crime reduction, were made, most notably the provision
of statutory responsibilities to local authorities and various other public agencies to reduce crime and disorder. As will be seen below, in this time period there was also clear recognition in central government of the need for improvements in the criminal justice systems’ response to domestic violence. This recognition prompted a number of changes nationally, in terms of legislation and national policy, as well as significant steps being promoted within the police and CPS.
In 1997, the Protection from Harassment Act was passed providing measures in both civil and criminal law. The Act enabled the police to arrest a suspect after two incidents of harassing behaviour, or two incidents of putting someone in fear of violence. In addition to criminalising harassment, the Act provided for the granting of restraining orders following a conviction. These (civil) orders were similar to the existing Non-Molestation Orders whereby a perpetrator could be prohibited from making contact with the victim, or attending her address. However, since they were to be imposed by the criminal courts (either for a set time period or indefinitely), any breaches would constitute criminal offences.
In 1999, the Government published the first national policy document on domestic violence entitled: ‘Living without fear: an integrated approach to tackling violence against women’ (Home Office, 1999). In this report, the Government acknowledged the on-going problems concerning the CJS’s response to crimes of violence against women. For example, the report identified that the attrition rate (i.e. the proportion of cases reported to the police but which eventually fail to get prosecuted) was extremely high in cases of domestic violence (Home Office, 1999). The Government articulated that, since the police were the first point of contact in the CJS, it was important to address their treatment of these crimes. Accordingly much of the report focused on recommendations in relation to the police, including proposals to promote the role of DVOs,
and to ensure that the police did indeed meet their responsibilities under the Crime and Disorder Act 1998.
A fundamental shift in how police officers were to respond when attending a domestic incident came with the move towards ‘positive action’. This policy shift sought to limit the discretionary powers of officers and enabled them to arrest the offender even if the victim did not wish them to do so. Maria Wallis (ACPO’s then spokeswoman on domestic violence), called for the police to review their policies and announced that: “Officers will be disciplined if they can’t justify why they
haven’t arrested offenders in domestic violence cases” (Jenkins, 1999, p.10).
In conjunction with the above ‘Living Without Fear’ campaign (1999), the Home Office revised its Circular of 1990. In the new version, chief constables were each invited to consider a range of responses to domestic violence, including; assessing their own force policy; ensuring investigations are of a consistent quality; monitor repeat incidents of domestic violence; produce and implement a domestic violence policy; focus attention on the role of DVO’s; link in with other services in the community; address the link between domestic violence and child protection and, produce and monitor performance indicators (HOC 19/2000, pp12.13). The Circular also highlighted the need for special provisions to be made for minority groups, in particular, minority ethnic, religious and LGBT groups.
In 2001 the CPS policy statement regarding domestic violence was revised in more assertive terms. As the report clarified:
“We regard domestic violence as particularly serious because there is often a continuing
threat to the victim's safety and, in the worst cases, the victim's life and the lives of others (including children's) may be at risk” (CPS, 2001, p.1).
The revised statement detailed how the CPS were to make charging decisions, as well as considerations with regard to avoiding delay, deciding on bail, and the use of bind-overs.
It is interesting to note that in relation to evidence, the CPS stated that:
“We will not automatically assume that calling the victim is the only way to prove a case.
We will actively consider what other evidence may be available, either to support the victim's evidence or as an alternative to the victim's evidence” (CPS, 2001).
Furthermore, in relation to deciding on charges, they suggested:
“The charges in domestic violence cases should reflect the seriousness and persistence of
the defendant's behaviour, the provable intent of the defendant and the severity of the injury suffered by the victim. They must give the court the power to impose a suitable sentence and must help us to present the case clearly and simply” (CPS, 2001).
In assessing the impact of this policy on CPS practice, a small number of policy evaluations were conducted following its publication. Her Majesty’s Crown Prosecution Service Inspectorate (HMCPSI) conducted a review of domestic violence cases between 2002 and 2003. The resulting report identified a number of options open to prosecutors that were not being utilised. For example, the Inspectorate found only a handful of cases in which the option of Section 23 was considered,
with prosecutors suggesting that the application would not be accepted by courts:
“It seems likely from the low proportion of withdrawal cases in the CPS file sample
in which section 23 was considered, and the very few cases in which an application was made, that prosecutors were substantially influenced by the likely attitude of the courts. There was only one example of a successful application” (HMCPSI, 2004,
p.94).
In addition to Section 23, the Inspectorate reviewed the use of witness summonses. Whilst potentially inappropriate in many cases, a summons can be of use to a victim who wants to give evidence, whilst not wanting her partner to know she supports the prosecution:
“In the CPS file sample there was an example of a victim withdrawal statement but
the accompanying police report showed that the victim desperately wanted the case to continue, whilst not being seen to support the prosecution” (HMCPSI, 2004, p.91).
Yet despite these possibilities, there was little to suggest in the 2004 report that prosecutors were encouraged to use summonses or warrants in this way.
Interestingly, one study did identify prosecution practices that were in line with the 2001 policy. In a 2004 research project in Croydon, Vallely et al discovered that “More cases were proceeding
in the absence of the victim and, significantly, perpetrators were still being brought to justice even in cases where the victim retracted” (2005, p.7). This outcome was found to have been associated
with improved evidence gathering by the police following extensive training, yet it still relied on the CPS to progress the prosecution without the victim.
In 2003, the Government published a revision to ‘Living Without Fear’ entitled ‘Safety and Justice – the Government’s Proposals on Domestic Violence’ (Home Office, 2003). In this report the Government sought to address a number of problems with the criminal justice response to domestic violence that had persisted, specifically with the aims of; ensuring an effective police response when victims report; improving the prosecution of domestic violence cases and making sure that sentences reflect the crime; ensuring that victims are not deterred by the process; and, making sure that the civil and criminal law offer the maximum protection to victims (Home Office, 2003, p.26).
In focusing on the above issues, the report made a number of recommendations as to how these issues could be addressed. These included; making common assault an arrestable offence; issuing guidance to HMCS regarding the use of bail conditions for domestic violence cases; referring domestic violence to the Sentencing Guidelines Council to improve consistency; making breach of a non-molestation order a criminal offence; extending the use of restraining orders to be issued alongside any offence in the domestic context; establishing a register of domestic violence perpetrators; introducing domestic homicide reviews in order to learn future lessons, and finally, revising the law on homicide so that women who killed their abusers would not be treated unfairly in comparison with men who killed following ‘provocation’ (Home Office, 2003). These recommendations, and the issues they were intended to address, highlighted the fact that the Government at the time recognised the shortcomings of existing practices within the CJS and were prepared to take a more directive and pro-active approach. Furthermore, as this report was also a pre-cursor to new legislation, the Government invited feedback on their recommendations during the consultation.
Following the publication of ‘Safety and Justice’, the Government launched a three-month consultation process regarding a new Parliamentary Bill specifically addressing domestic violence. Responses were received from: victims; refuge workers; health services; and Women’s Aid, providing a range of views on the Report and suggestions for the draft legislation. Among the suggestions, several focused on the need for a common definition of what constituted domestic violence – recognising for example, that the CPS and police used different definitions from one another (Home Office, 2003).
The resulting Domestic Violence Crime and Victims Act (DVCVA) which received Royal Assent in 2004, made changes to both the civil and criminal law with the purpose of: “making sure
that the civil and criminal law offers the maximum protection to all victims to stop the violence recurring” (Home Office, 2003, p. 11). Among the many new provisions detailed within the Act,
the most relevant to criminal offences in the context of domestic violence were:
- Making the breach of a non-molestation order a criminal offence punishable by up to 5 years’ imprisonment.
- Making common assault an arrestable offence.
- Creating a new offence of causing or allowing the death of a child or vulnerable adult. - Extending the provision of restraining orders to be granted upon conviction of any
offence committed within the context of domestic violence (or upon acquittal of such an offence).
These changes sought to address some of the priorities that had been articulated by the Government in both ‘Living Without Fear’ and ‘Safety and Justice’ – in particular, regarding a breach of non- molestation order becoming a criminal offence and extending the use of restraining orders. Whilst most victim-related agencies were encouraged to see changes to criminal law, and more realistic penalties attached to the relevant civil contraventions, there were also several criticisms of the new Act. In particular, many were concerned at the blurring of the boundary between the criminal and civil law, for example, by criminalising any breaches of a (civil) non-molestation order. As Hitchings (2005, p.94) suggested:
“This will mean that the criminal law courts will be dealing with what was originally
a civil matter…and more power will be passed to the police, rather than the victim…As a result, victims of domestic violence will lose control over proceedings…I suggest this is a worrying development”.
For many interested parties, this was a particularly worrying change since previously, the civil law had been available to victims who did not wish to engage in a criminal prosecution. By combining the civil and criminal laws, it was feared that victims who had specifically not wanted the police to become involved, might well refrain from pursuing protection through the civil justice order.
In response to recommendations from the Home Office (HOC 2001) regarding how the police should be dealing with domestic violence, the Association of Chief Police Officers (ACPO) developed their own strategic guidance for police forces. This guidance was published in 2004 and revised in 2008. The guidance drew on ACPO’s advice on how domestic violence offences should
be dealt with from the moment the incident was reported. The priorities of the police in relation to domestic violence were also outlined as needing to be:
“To protect the lives of both adults and children who are at risk as a result of domestic
abuse;
To investigate all reports of domestic abuse;
To facilitate effective action against offenders so that they can be held accountable through
the criminal justice system;
To adopt a proactive multi-agency approach in preventing and reducing domestic abuse”
(ACPO, 2004, p.5).
The guidance set out the process to be followed by officers following any report of possible domestic violence , from how to deal with reports (and other associated offences), issues around deployment to the scene (including preserving the scene), their duty in relation to positive action, medical treatment and forensic medical examination of the victims, how to deal with counter- allegations, identifying risk, making referrals into voluntary sector support organisations, how to manage the investigation- including the forms of physical evidence to be collected, their responsibilities to victims, other sources of evidence such as statements from professionals, how to deal with the offender following arrest, charging standards (which detail the level of injury/evidence required for each category of offence) and using police bail (which can include conditions to restrict the movements of the offender before they are charged), as well as the role of specialist domestic abuse teams in investigating offences and protecting victims.
There is yet to be a published analysis of the quality of police investigations in domestic violence cases following the 2004 guidance. However, two studies conducted immediately prior to the guidance present differing approaches in different areas. In 2004, Vallely et al conducted an evaluation of two SDVC pilot sites (see part 3 of this chapter) in Caerphilly and Croydon. Whilst evidence-gathering did not improve in Caerphilly, in the Croydon pilot it was found that the quality of evidence available had significantly improved following a training programme for police officers:
“The CPS and Police have obviously implemented the HMCPSI recommendations on
building cases without victim co-operation and have had significant successes” (Vallely,
2005, p.18).
A similar evaluation of five SDVC pilot sites (Cook et al, 2004), which included an analysis of police files, noted a lack of evidence-gathering beyond the statement of the victim:
“Once we looked at “enhanced evidence”, the level dropped appreciably...for example, the
next most common type of evidence was a copy or transcript of the 999 tape (44%), followed by case exhibits (30%), statements from other witnesses (27%), medical statements (12%), and lastly forensic evidence (11%)” (Robinson and Cook, 2006, p.200).
This report also highlighted issues regarding the quality of officers’ witness statements, their lack of understanding of, and failure to use, victim personal statements (as found by Hester 2005), as well as officers not utilising the specialist knowledge of domestic violence officers nor seeking appropriate advice from CPS. These findings would seem to suggest that, immediately prior to the
ACPO guidance, there did not appear to have been much improvement in the quality of evidence- gathering and investigation.
Moreover, whilst ACPO’s spokeswoman on domestic violence suggested that domestic violence be subject to ‘positive action’ in 1999, it was not until the issuance of the ACPO guidance in 2004, that this was officially endorsed. A small number of studies have sought to determine the level of arrest for domestic violence offences since the concept of positive action was introduced. One early evaluative study, was conducted as part of a wider Home Office research programme. The Crime Reduction Programme was undertaken between 2001 and 2003 and found varying rates of arrest amongst the forces involved, with some of the projects managing to increase arrest rates whilst in others, they fell (Hester and Westmarland, 2005).
However, in a 2008 review of Specialist Domestic Violence Courts, it was found that in 11 of the 23 courts who submitted data on police arrest rates, the police were arresting in an average of 80% of domestic violence incidents reported to them (Home Office, 2008a). This was likely to be related to the Key Performance Indicator introduced in 2005 whereby the police were set a target of making an arrest in 80% of domestic violence incidents. Similarly, Hoyle (2008, p. 325) described the impact of the KPI in Thames Valley Police:
“The arrest rate increased from 32% in the year 2003-4 to 58% in the following year...For
cases involving domestic violence between intimate partners, the arrest rate has increased to approximately 84% in cases where a criminal offence has been alleged”.
This KPI was removed in 2007 and has not been replaced and, since then, there has been no known research to determine the impact on arrest rates. However, it would appear that, by introducing a KPI, the positive action policy was being adhered to in the above studies.
Summary of Phase 2
As the above discussion has shown, the early years of the New Labour government from 1997 saw a significant change in the criminal justice policy response to domestic violence. Not only was there a clearer leading intent from the Government but there were also a number of significant changes to policy and practice within the CJS, and particularly in the police. In contrast to the pace and tenor of change pre 1997, the early New Labour years were also marked by the emergence of a much stronger policy discourse on domestic violence and on how it should be dealt with by all statutory services. Despite this momentum, policy evaluations at the time suggested that police and CPS practice had not significantly improved, with varying rates of arrest and quality of investigation by the police persisting, and with little evidence to suggest cases were being progressed without the evidence of the victim.