Sunday, April 11, 2010


Among the 1.6 billion pieces of legislation brought in by the government in the last decade (a rough estimate, I admit) there have been some good ones.

Take "Sections 12 and 13 of the Domestic Violence, Crime and Victims Act 2004" for example.

Before this law came in, a victim of domestic violence would have had to :-
(a) Wait for the criminal case to result in a guilty verdict
(b) Apply to the civil courts for a restraining order
After this came in :-
(a) Magistrates issue a restraining order at the end of the criminal trial, whether proven or not, if the court considers it necessary to protect a person from harassment.
Imagine you're in an abusive relationship - doesn't that sound like an improvement to you?

Even though this act was passed in 2004, for reasons passing all understanding it only came into force last September, and so I only came across it for the first time the other day.

In that case the Defence lawyer contended that even though his client had just been convicted of something that might have killed his soon-be-be-ex wife, this was a one-off and he had no previous violence conviction. Probation had rated him as a low risk of re-offending and the only thing the Restraining Order would achieve would be to make it difficult for him to maintain his relationship with his teenage son. It would be "a sledgehammer to crack a nut".

After a fascinating discussion in the retiring room with two particularly experienced colleagues, we decided that some nuts do need a sledgehammer and granted the restraining order.

Maybe we've just spoiled the relationship between a father and a son, but more likely we've given a man another reason not to hurt a woman.

I'm sleeping fine.


Marjorie said...

May I add a couple of points?

Firstly, prior to the implementation of these rules it was not necessary for a victim to wait until there had been a guilty verdict to apply to the civil court. Typically the application would be made at an early stage, immediately after the [alleged] assault, and would result in an injunction made without notice on an emergency basis, giving immediate protection. On the return date, either the [alleged] perpetrator would fail to show up, in which case the order would remain in force, or s/he would attend and in cases where there were also criminal proceedigns in which a not-guilty plea was entered, the interim order would be left in place, with any full hearing/finding of fact adjourned until the outcome of the criminal proceedings is known.

Which does mean that the victim could, and can be afforded protection while the slow mills of the criminal law are grinding on.

It was, and is, possible for a victim to seek for an injunction to then remain in force even where there is an aquittal in the criminal trial, as of course the civil, rather than criminal standard of proof applies.

I agree that there are avantages to the power of the magistrates to make restraining orders to protect from harassment, even where they have not enough evidece to onvict of assault, but the suggestion that victims were without protection until after a trial finished is misleading.

Given his comments about the loss of a relationship with the son, did the defence lawyer (once you had made clear taht you would be imposing a restraining order) make any represntations about the terms of it? In injunctions made under the family law act (where the legal representatives are usually family lawyers, rather than criminal lawyers) we often build in provisions to protect the victim without preventing conat to children, for example by forbidding the perpetrator to contact the victim save via solicitors for the purpose of arranging contact with the children , or (where it isn't anticipated that solicitors will continue to be involved) save in writing for the sole purpose of arranging contact - the requirement to be in writing (or, sometimes, specifically by text message or by e-mail) means that there is always evidence of what was said, in case of any new allegations of harassment, and it allows a relationship to be maintained (or rebuilt) with any children while giving the necessary protection to any victim of violence or other abuse.

Obviously the specific terms need to be considered in light of the particualr nature of the violence.

It's something I find defence solicitors raely seem to consider - when someone turns up in my office saying theyare on bail and want to arrange contact with their children, one of the things I often find is that the bail conditions forbid them to contact the other party "either directly or indirectly" - strictly speaking, if I then write to their ex, they ae in breach, as that is surely an 'indirect contact'...

When consiodering bail applications in this kind of case, you may like to consier whether a 'save via solicitors in resepct of contact' proviso would be an appropriate rider to conditions not to contact the victim, where there are children involved.

Stan said...

Marjorie - thanks for the correction. Yes, in that particular case, we made it clear from the start that contact was still possible by prior agreement with the mother's solicitors. The defence didn't get into detailed haggling about the exact terms afterwards.

I've had occasion since to reject one of these in a different case where the grounds were much less compelling - I'm alert to the fact that these orders are a major curtailment of rights and shouldn't be lightly granted.

It's quite a balancing act - I feel for the woman frightened of her ex, but I'm a father too, and I know how crazy if someone put a wall of redtape between me and my Stanetta.