To what extent does the current law afford victims of domestic abuse effective protection and support - Essay Example

158640   To what extent does the current law afford victims of domestic abuse effective protection and support Legislation on domestic abuse attempts to protect the victims by providing them with a speedy resolution to the problem. The introduction of the Domestic Violence, Crime and Victims Act 2004 has increased the powers of arrest available to police officers and allows the police to be able to arrest those abusers who breach non-molestation orders. Previously victims used to be protected by way of injunctions1 with only a small amount of these have a power of arrest attached to them. This effectively meant that an abuser could not be arrested for breaching the injunction2 and the solution for the victim was to go back to the civil courts through her solicitor to try to get the courts to attach a power of arrest to the injunction3. The 2004 Act is not restricted to just protecting previously married partners. The Act has repealed s4 which required the courts to have regard to the non married status of cohabitants when making decisions in respect of domestic violence incidents4. Legislation on domestic violence is not just limited to couples who have lived together as man and wife or as a cohabiting couple but now covers anyone who has lived in the same residence as part of a family. This includes same sex couples as well as parent and child relationships where either the parents are attacking the children or the children are attacking the parents. It has been the long held opinion that very few cases of domestic violence ever get to court to be fully prosecuted. There is a generalisation that most of the couples are reunited before the case gets to court5. This issue has been addressed in recent develops within the criminal justice system by creating a fast track approach for domestic violence incidents. Throughout the country most police forces have now adopted a system whereby all such cases involving domestic violence of any sort have to be ready to be heard at court within 14 days of the incident. The aim of this was to be able to support victims better and to ensure that the abuser has not had sufficient time to try and persuade the victim to drop the charges against them. Coupled with this the police have adopted the approach of proceeding with prosecutions against abusers even when the victim has made it known that they wish to discontinue with their complaint. In such instances the victim is declared as a hostile witness and will be subpoenaed to attend at court. Within the police force there has always been specialised officers who are specifically trained to deal with victims of domestic violence but with the increase in the powers and the range of people who can be classed as abusers under domestic violence legislation there has been an even greater awareness of the depth of the problem. Police officers are expected to take a positive response to allegations of domestic violence. It used to be the opinion of many officers that dealing with domestic violence victims was a waste of police time as the victims very rarely left their abuser and frequently allowed the abuser back into the home. Domestic violence used to only be thought of in terms of physical abuse, however the changes in legislation have highlighted that abuse can include emotional and sexual abuse. Under the umbrella of domestic violence police officers are allowed to include everything ranging from threatening behaviour to serious injury. It has been noted also that there are very few cases were the assault is an isolated incident. Often domestic violence only comes to light when the abuser has caused really serious injury to their partner or in some case has killed their partner. Family and friends of the victim are often totally oblivious to the abuse that is going on until it is too late as the victims tend to make excuses for their abuser and pretend they have had a fall or trip rather than admit that their partner beats them. It is not only the criminal justice system that is working towards protecting victims of domestic violence. In order to combat the increasing problem there has to be collaboration between the police, social services, medical professions, housing associations and support groups. Those who have been victims of domestic violence are less likely to return to the abuser if there is adequate support to enable them to live apart from thee abuser. The provision of housing for the victims would enable them to be able to live apart from their abuser. Previously the housing provided for such victims was only in the form of hostels, which, whilst preventing the abuser from being able to get to the victim, where not really adequate for a victim with young children to have to care and provide for. In more recent times housing associations and local authorities have been encouraged to assist the victims in finding suitable accommodation. Protection for victims of domestic violence is provided through the criminal justice system as well as through civil proceedings. There is a tendency for collaboration between the two in recent times with many more injunctions6 or non-molestation orders7 being issued with a power of arrest attached. Changes introduced into the Police and Criminal Evidence Act 1984 has given officers the power to enter any premises for the purpose of arresting a person for an arrestable offence, which includes assaults, grievous bodily harm or wounding. A further inclusion under s17(1) (e) of PACE 1984 was the power to enter premises for the purpose of saving life or limb or preventing serious damage to property. By giving the police these extra powers officers can help prevent the victim from further harm without facing charges for excessive use of force. Section 25 of PACE allows an officer to arrest a person where he has reasonable grounds for believing it necessary to prevent him from causing physical injury to another person or to protect a child or other vulnerable person. The remedies available under the civil law include injunctions which may incorporate restraining orders8 such as exclusion from the matrimonial home and powers of arrest as well as family protection orders which can also have restraining orders and powers of arrest attached9. The immediate duty of an officer that is called to a domestic violence incident is to secure the protection of the victim and any children that might be resident in the house. This could involve removing the victim from the house and placing them in a place of safety. Often this could involve placing the victim in a shelter for other women in similar situations or where it is deemed that long term support will be required for the victim they can liaise with statutory or voluntary agencies to provide longer term support such as those agencies mentioned above. The Crown Prosecution Service has also taken a proactive response to domestic violence through increased usage of the witness support groups. Previously witness support groups consisted of mainly police officers or police staff, however within the last two years the CPS has established its own Witness Care Unit which deals not only with domestic violence issues but also other victims of other crimes. This unit has a responsibility to ensure the victim is kept fully informed on the progress of the case as well as checking up on any long term effects the attack might have had on the victim. This can include and emotional or psychiatric effects that can be attributed to the violence the partner witnessed whilst in the company of the abuser. Some police forces have addressed the issue of domestic violence by providing all active police officers with guidance and training in dealing with domestic violence. It is envisaged that by training officers into being able to identify a potential victim the number of such incidents could be reduced. Within the Humberside police force weekly bulletins and monthly periodicals have been used as a form of media to increase officer awareness of the number of incidents as well as training the officers to be able to recognise potential victims of such crimes. In line with the above the Home Secretary recommended that Chief Officers should consider issuing a force policy statement detailing their response to domestic violence, whilst providing those that are dealing with this on a day-to-day basis proper training in the handling of such cases. Within this training, guidance should be given on the policy that is in play in their particular location in respect of the way in which domestic violence incidents should be handled. The guidance should also explain the powers that the police have in respect of dealing with such incidents. Domestic violence officers should be made aware of the referral points within other agencies so that they can direct the victims to the most suitable form of assistance.( ACPO 2004) All police forces now have in play a system whereby officers are encouraged to take positive action towards investigating the allegation of assault. Recommendations were also made that all complaints of domestic violence by either victims or witnesses should be recorded in the same way as incidents involving strangers would be recorded. Previously incidents of domestic violence where downgraded because the incident was of a domestic nature. There was a tendency to no crime such incidents without carrying out a thorough investigation of the case to see if the report was inaccurate. Even where incidents are reported and the decision is taken by the CPS to take no further action against the abuser, either because the victim declines to proceed, or there is insufficient evidence to ensure a conviction at court, such records should still be kept so that any officer called to a subsequent incident can see that this is not an isolated attack. Before an officer attends a scene he should be made aware of any injunction that is in force and any power of arrest that is attached to that order. This information is likely to be lodged with the police and should be able to be accessed by the dispatchers so that they can instruct officers that are attending the scene. By doing this the officers will know of the risk of danger to themselves and others and will also know whether the offender can be arrested for any breaches. Arrangements should also be in place with the clerks to the justices of the courts for them to provide the police with details of any injunctions that are in force that do not carry a power of arrest. Guidelines issued to the police under the home office circular recommend that police officers should rarely attempt conciliation if the victim has been the subject of an assault. Officers are also instructed not to ask the victim in the presence of the assailant if they are prepared to give evidence against their attacker. Other Acts that have been introduced that might assist with protecting victim from domestic violence include the Protection from Harassment Act 1997 s510 which allows the use of restraining orders where the conduct of the assailant amounts to harassment or causes the victim a fear of violence. Once such an order has been issued if the assailant breaches the order they can be arrested and face imprisonment for up to 5 years. The Family Law Act 1996 also contains a range of orders that can assist in the protection of domestic violence victims such as non-molestation orders11. Under the newly inserted s42A of the Family Law Act 1996 anyone in breach of a non-molestation order can be imprisoned for 5 years as with a breach of a restraining order12. One of the first Acts to attempt to protect women from domestic violence was Domestic Violence and Matrimonial Proceedings Act 197613. This gave victims the right to apply for injunctions to prevent the abuser from coming near them in the future. The police and CPS often find great difficulty in dealing with domestic violence and are often faced with a reluctant victim when the case is brought before the courts (Cretney and Davis 1996). In a lot of cases the victim has resumed a relationship with the offender before the case is heard and the CPS are forced to use the compellability provision to make the witness take the stand (Cretney and Davis 1997). One of the biggest problems faced by the police and the CPS is that the law is dependent on a complaint been brought by an aggrieved party. In domestic violence cases the victim is often keen to bring chares initially but has often been persuaded by the offender to change their mind before the court case. To address this issue the police have adopted a positive response action whereby the defendant is prosecuted in the name of the Crown thereby allowing the case to continue if the victim retracts their complaint. (Cretney and Davis 1995) It has been suggested that domestic violence victims often change their minds because of dissatisfaction with the way in which the police and the courts treat them as victims. There is a tendency within the police and the court system to trivialise domestic violence. Part of this stems from previous experience of knowing that many victims often return back to the abuser before the court hearing. The attitude perpetuated by the police that the victim will have forgiven the offender before the ink is dry on the charge papers becomes a self fulfilling prophecy. The victims do not feel that their complaint is being taken seriously and feel that it is a waste of time continuing with the court case as the police do not do enough to protect them from the danger of the offender coming back after them. It is often easier for the victim to resume the relationship with the offender and hope that the attacks will stop. There has been a lot of criticism aimed at the CPS for its decisions in respect of charging offenders (The Times 5 July 1994; Home Affairs Select Committee on Domestic Violence 1993). It is common knowledge that charges for such attacks are frequently reduced justified by the CPS on the grounds of ‘speed and mode of trial’. The CPS defends their actions stating that their intention is to avoid delay which might cause added stress for the victims and the witnesses. (CPS 1994 para 8.2) The conclusion that can be drawn from all of the above is that the present system is still not adequate in dealing with protecting the victims of domestic violence but the recent changes in the law are at least recognising the problems faced by the victims. The new approach to domestic violence and the fast track system for bringing cases to court is likely to have an impact on the number of successful prosecutions in the future thereby giving the victims the service and protection they need. 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