Domestic violence has the highest repeat rate of any crime. It is not limited to any particular class, creed or gender. So how should we deal with it? Following its consultation paper “Safety and Justice”, the Government has decided that the best way of tackling this growing - and largely unreported - problem is to criminalise it further.

In July of this year the relevant parts of the Domestic Violence, Crime and Victims Act 2004 come into effect. Previously, a significant proportion of domestic crime incidents that have come before the courts have been dealt with by the family courts. They have the power to make a “non-molestation” injunction against the aggressor, ordering him - or her - not to “assault, molest or otherwise interfere with” the victim. The family court also has power to add a “power of arrest” to a non-molestation injunction where it thinks it is appropriate. This enables the police to arrest a person they suspect has broken, or is about to break the injunction. But this “power of arrest” - which is so crucial to the present procedure - will be removed by the new law.

Under the present system, once an alleged aggressor is arrested under a power of arrest, he must be brought before a judge in the civil court within 24 hours. The judge can deal with the breach there and then or remand him either on bail or in custody to be dealt with on another date. The time the aggressor can be kept on remand is very limited: weeks not months.

Under the new system, there is no need for a separate power of arrest order to be made. Instead, the police will have an automatic right to arrest somebody they suspect has broken a non-molestation injunction. But rather than the aggressor being brought before the family court, they will now be hauled before the criminal court.

The new system aims to cut down domestic violence by marking it as unacceptable. To achieve this, the aggressor must face punishment in the criminal courts if he fails to comply with the order of the civil courts. Writing recently in the New Law Journal, Jane McCulloch, vice chair of Resolution, which represents nearly 5,000 lawyers and family justice professionals, expressed serious concern about the new law. Although she felt that the legislators had the best of intentions in introducing the new provisions, her fear was “that they may actually have the opposite effect to that intended by Parliament, by deterring victims from seeking the court’s protection.”

What drove her to that conclusion? By far the main reason why the new law misses the target is that dealing with domestic violence should be about protecting the victim, not punishing the aggressor. However, the new law is more about prosecuting the aggressor, with victim protection relegated to a side issue. Indeed, the victim will not have the controlling hand on the proceedings. He or she will no longer be a party to the proceedings but merely a witness. The prosecuting authority will be the Crown Prosecution Service, not the victim.

Once the matter comes before the criminal courts, experience shows that many victims will refuse to give evidence against a partner in a criminal prosecution. As the maximum penalty will be five years imprisonment, the alleged aggressor may choose trial by jury in the Crown Court, which may not take place for several months. Under the present procedure, an aggressor can be dealt with by the family courts immediately or in a couple of weeks. In any event, most victims will not want to see their partner dealt with by the criminal courts and imprisoned. That approach hardly does anything to lower the temperature of the dispute between the parties. Daddy can turn round to the children and say: “Look what Mummy has done, she’s put Daddy in prison”.

In the family courts, if a non-molestation order has been breached, the court has the power to review or vary the order. In addition, there might be related proceedings concerning children that can be brought into account. In the criminal courts the issue will be limited to the question of the breach of the order.

The proposed changes help to highlight a growing problem but do not provide an effective solution. As Ms McCulloch says: “protection of the victim should always have priority over punishment and such protection issues within the family context are best dealt with in the family courts”.

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