Since 2014 the police and courts have been given powers to fill what is described as a “gap” in providing protection to victims of domestic violence. Following an incident of domestic violence where there may be insufficient evidence to allow a prosecution, the police and Magistrates’ Courts have a power to apply for and make orders that can protect a victim for a period of time.
The orders can prevent contact between the suspected perpetrator of domestic violence and the alleged victim. They can also prevent the suspected perpetrator from returning to the home of the victim even if that home is the settled address of the suspected perpetrator.
The order is intended to allow a period of time during which the alleged victim has time to consider their situation without being influenced by the suspected perpetrator of abuse or subject to further abuse and harm. The police together with various other agencies will try to support the alleged victim during the period that the order is to last. It is intended to provide “breathing space” to consider their options.
Why do the police not charge suspected perpetrators?
There may be many reasons for this. The most common reason is a suspicion of some criminal offence (such as an assault) may not be sufficiently supported by evidence. In applying the Crown Prosecution Service Code, the police may not be given permission to commence a prosecution. The code requires two considerations – one concerning the sufficiency of evidence, the second concerns the public interest. It is often the first issue that can stop an investigation from progressing to a charge where requests for a remand into custody or bail conditions to prevent further offences or harm could be applied for. To afford some protection to the alleged victim, DVPN and DVPO’s can be requested.
What is the process?
Normally a suspect will have been arrested following some complaint or information received by the police. The complaint or information may not come directly from the alleged victim. If after investigation no charges can be brought, the police can issue a Domestic Violence Protection Notice (DVPN) upon the suspect. The notice can only be authorised by a police officer of at least the rank of superintendent. The notice must be served on the suspect personally. This notice lasts up to a maximum of 48 hours until a hearing at the Magistrate’s Court can take place. The 48 hour period does not take into account sundays, bank holidays, Good Friday or Christmas day. The notice gives details of the hearing date and location of the Magistrate’s Court that will hear the full application.
At the Magistrate’s Court, the police can apply for a Domestic Violence Protection Order (DVPO). The order being made can be agreed to by the suspected perpetrator or can be challenged. If the order is challenged, a hearing must take place where evidence can be heard as soon as possible. Current practice often means the hearing will take place on the same day.
What are the consequences if I breach the order?
If a DVPO is made, the suspected perpetrator will be prevented from contact with the alleged victim or returning to their home (even if the home is a couple’s joint home). The order can last up to a maximum of 28 days.
If a suspected perpetrator breaches a DVPN, they can be arrested by the police and detained. If having been given a DVPO by a Magistrate’s Court and breach the terms, they can be fined or sent to prison.
Can I challenge the notice or order?
Technical challenge of a DVPN is possible but unlikely to be a practical step. By the time any challenge can be made through the courts if that is what becomes necessary, the 48 hours will normally have passed.
At the Magistrate’s Court hearing where the DVPO is applied for, objection to the order being made can be put forward together with the reasons for this. The rules of evidence that apply to the hearing can result in live evidence being heard and challenged and hearsay evidence being allowed when appropriate. The court needs to consider the application carefully and if they refuse to make the order, the conditions that applied under the DVPN end at that point.
Should I seek legal advice?
The process and challenging of the orders can be difficult and complicated. Once an order is made it cannot be amended. So even in cases where the making of the order is not to be challenged but the terms may be, assistance may be required. The penalties for breach can include being sent to prison. Advice and representation at court can assist in many ways to those facing applications and those alleged to be in breach. To speak with one of our legal advisors please contact us on 01616 966 229.